author: GAERTNER, Judge.

text:
    ST. LOUIS LITTLE ROCK HOSPITAL, INC. d/b/a Compton Hills Medical Center, Relator, v. Honorable Gary M. GAERTNER, Judge of Division No. 1 of the Circuit Court, St. Louis City, Missouri, Respondent.
    No. 48899.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 27, 1984.

      James J. Amelung, St. Louis, for relator.
    David R. Swimmer, Clayton, for respondent.
   GAERTNER, Judge.

Mandamus Relator St. Louis-Little Rock Hospital, Inc., d.b.a. Compton Hills Medical Center, is a defendant in a wrongful death action entitled McCellan v. St. Louis-Little Rock Hospital, Inc., which is pending in the Circuit Court of the City of St. Louis and over which respondent, a judge of that court, has presided. Our preliminary writ of mandamus is made absolute.

Plaintiffs in the underlying action seek to recover for the allegedly wrongful death of their decedent, who committed suicide by drinking a bottle of toilet bowl cleanser while she was under relator’s care for treatment of her alcohol abuse, chemical dependency and depression. Relator’s alleged negligence consists primarily of an alleged failure to provide adequate supervision and monitoring of the decedent when relator knew or should have known that she was severely depressed and suicidal, and in leaving a bottle of toilet bowl cleanser in her room.

On March 9, 1984, plaintiffs served a request for production on relator and other defendants. Relator objected to a number of the requests on April 4, 1984, but respondent overruled these objections on June 21, 1984. After respondent denied relator’s motion to set aside this order, relator applied to us for a writ of mandamus contending that respondent was without jurisdiction and abused his discretion in overruling relator’s objections to plaintiffs’ requests for production 4 and 7:

4. That complete contents of all investigations made by Defendants concerning decedent or circumstances of her death from November 19, 1982 until the filing of Plaintiffs’ Petition.
* ⅜ * ⅜ sfc *
7. That complete contents of all documentation of suicides, reported suicides, accidental deaths, attempted suicides or threatened suicides within five (5) years prior to November 19, 1982.

The first issue is whether mandamus will lie to review a trial court’s refusal to sustain objections to discovery which are based upon work product or privilege. Respondent contends that no authority exists for use of mandamus in the present case and that, under the present circumstances, it is a “guerilla” substitute for direct appeal which will sabotage orderly appellate procedure.

Mandamus will lie to review a trial court’s sustention of objections to discovery because the refusal to permit discovery of matters which are relevant to the lawsuit and reasonably calculated to lead to admissible evidence and which are neither work product nor privileged is an abuse of discretion. State ex rel. Hudson v. Ginn, 374 S.W.2d 34 (Mo. banc 1964). The converse, the refusal to forbid discovery of matters which are privileged or work product, is an act outside the court’s jurisdiction and an abuse of discretion. See State ex rel. Mueller v. Dixon, 456 S.W.2d 594, 598-599 (Mo.App.1970). Thus, mandamus will also be available to review a trial court’s overruling objections to discovery on the grounds that the matters sought are privileged or constitute work product.

Moreover, prohibition has long been available to prevent a trial court from abusing its discretion by ordering discovery of privileged matters or of work product. State ex rel. Gonzenbach v. Eberwein, 655 S.W.2d 794, 795 (Mo.App.1983); See State ex rel. Mueller v. Dixon, supra. The distinction between mandamus and prohibition is at best blurred, at worst nonexistent, and the subject matter to which the two writs apply overlap to a great extent. See Tuchler, “Discretionary Interlocutory Review in Missouri: Judicial Abuse of the Writ?” 40 Mo.L.Rev. 577, 586-87 (1975). Since prohibition would lie here, we see no reason to deny the applicability of mandamus. Under the circumstances of the present case, we will not engage in fine, anachronistic distinctions of nomenclature. We refuse to revert to the hypertechnical niceties of Common Law Pleading where the title of a pleading was of more importance than its content.

Finally, relator has no adequate remedy by direct appeal. If the matters sought to be discovered are protected from discovery by reason of privilege or work product, then disclosure to plaintiffs would violate the confidentiality essential to maintaining a privilege, and no remedy by appeal eonld restore that confidentiality.

Respondent refused to stay his order which overruled relator’s objections to the requests for production. The refusal to stay, however, does not mean that this court may not compel him to vacate his order, where prohibition is sought. “So long as anything remains to be done to carry a judgment into effect the writ may go, and it may take on such form as the exigencies of the situation may demand.” State ex rel. Buckingham Hotel Co. v. Kimmel, 183 S.W. 651, 652 (Mo.App.1916). The same is true of mandamus. An inferi- or court may not so structure the posture of a case as to preclude review by a superi- or court. If the trial court stays its ruling, the extraordinary writ may issue against the entry of the order; if no stay is issued, the extraordinary writ may issue against the enforcement of the order.

Respondent also argues that relator has waived any objections to the requests for production because relator’s objections were filed beyond the twenty days set forth in Rule 58.01(b). The argument is untenable. Plaintiffs’ requests for production expressly granted relator forty-five days in which to respond and the objections were filed within the forty-five days. Plaintiffs are estopped to assert the twenty day requirement of the rule.

We turn now to the substance of the present case. Two issues are presented to us for determination: (1) Is the information sought by request number four, the complete contents of all investigations made by relator between the date of the incident and the filing of the petition, protected from discovery by the work product doctrine or by the attorney-client privilege; and (2) Is the information sought by request number seven, which includes medical files and incident reports on other patients, protected from discovery by the physician-patient privilege?

As to request number four, it is axiomatic that, under Missouri procedure, a party may not be required to produce the content of his pre-trial investigation in the absence of a showing of substantial need and undue hardship in obtaining equivalent information. Rule 56.01(b)(3). No such showing has been demonstrated by plaintiffs here. Based upon the form and scope of the request, relator’s objection should have been sustained. However, although nothing of record leads to this conclusion, the parties in their respective briefs and in oral argument, seem to have agreed that this request is directed toward a single document, an incident report prepared by a nurse employed by relator. Because the parties have narrowed the issue to this one item, we will overlook the broad form of the request for production and direct our attention to the narrow issue addressed by the parties.

Documents prepared by an agent or employee at the direction of an employer for the purpose of obtaining an attorney’s advice or for use in prospective or pending litigation fall within the attorney-client privilege. The seminal case in Missouri regarding pre-trial production of documents prepared by employees for the employer following an incident is State ex rel. Terminal Railroad Association of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69 (banc 1953).

“A statement concerning an accident obtained by an employer from his servant for the bona fide purpose of being later transmitted to the employer’s attorney for advice, or to be used by the attorney in connection with pending or threatened litigation, is privileged, because it is part of the communication from the client to his counsel. The same is true of a statement by the accredited agent of a corporation, giving his account of an accident for use of counsel in pending or threatened litigation....”

Id. at 73, quoting 58 Am.Jur. 282, Witnesses, § 503. Accord, Martin v. Lingle Re frigeration Co., 260 S.W.2d 562, 566 (Mo.1953); Lindberg v. Safeway Stores, Inc., 525 S.W.2d 571, 572 (Mo.App.1975).

To constitute work product, materials must be prepared in anticipation of litigation. Rule 56.01(b)(3). Accordingly, we must look to the nature and purpose of the incident report in this case. Relator has attached as exhibits to its brief the Compton Hills Medical Center Safety Manual. The section thereof labelled “Incident/Accident Reporting System,” pro-, vides for the preparation in triplicate of reports of all incidents. One copy is sent to the hospital administration, one to the head of the involved department, and one to the hospital’s insurance company. It is significant to note that this third copy is sent to the insuror not immediately after the incident, but “on a monthly basis." The insurance company “feeds these reports into a computer and sends back to the hospital a computer printout.” After review by the Incident Report Coordinator and the Safety Committee, the report forms the basis for corrective and preventive action. It is a further significance that the incident report form, although containing the name of the insurance company, is headed as follows:

The use served by these incident reports is obviously that of future loss prevention, an important and praiseworthy objective. But they are not documents prepared in anticipation of litigation so as to invoke application of the work product exception to discovery.

We turn next to the question of applicability of the attorney-client privilege. The “anticipation of litigation” requirement although determinative here of the work product question, has no application to the question of whether a communication falls within the scope of the attorney-client privilege. Johnson v. Sullivan, 23 Mo. 474, 479-481 (1856); accord, Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, 21 (1947).

At the outset, we note that the fact that the incident report was communicated to relator’s insuror rather than directly to relator’s attorney does not preclude assertion by relator of the privilege. A communication falls within the attorney-client privilege even though the attorney was not yet actually representing the client, provided that the communication was made between the client as an insured to his liability insuror during the course of an existing insured-insuror relationship. State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976).

Nevertheless, relator’s incident report does not fall within the scope of the attorney-client privilege. In order to be privileged, a communication between a client and his attorney, or between an insured and his insuror, must be within the context of the attorney-client relationship. Bussen v. Del Commune, supra 199 S.W.2d at 20; § 491.060(3), RSMo. 1978. In other words, the purpose of the communication must be to secure legal advice from the client’s attorney. See McCormick on Evidence, § 88 (3d ed. 1984). The purpose of the incident report was not to enable relator or its insuror to obtain legal advice, but rather to help relator reduce the number of accidents at its facility. The incident report form called for the nurse to fill in answers coded so that a computer would be able to read the responses. There is no indication that the coded responses were decipherable by relator’s attorneys or that an incident report ever found its way into an attorney’s hands. Moreover, the fact that the form indicates it was for loss prevention purposes only militates not only against finding that the incident report was prepared in anticipation of litigation, but also against finding that the report was prepared for the purpose of seeking professional legal advice.

Instead of being prepared with the intention of seeking legal advice, the incident report was compiled in the ordinary course of relator’s business as a means of accident prevention, and is, therefore, not privileged. See State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920, 922 (banc 1943). That the incident report may have been subsequently used by relator’s attorney or insuror is irrelevant. A document which is not privileged does not become privileged by the mere act of sending it to an attorney. McCormick on Evidence, § 96, p. 233 (3d ed. 1984); 8 Wigmore on Evidence § 2307, p. 592-593 (McNaughton Rev.1961).

The Missouri Hospital Association as Amicus Curiae, urges us to prohibit discovery of incident reports on the basis of public policy. The Association argues that the important function of eliminating potential hazards and improving the quality control of hospital care will be impaired if incident reports are not clothed in confidentiality, as the possibility of use in litigation would inhibit the preparation of complete and accurate reports. A similar public policy argument regarding the discoverability of hospital “peer review committee” records was recently rejected by our Supreme Court in State ex rel. Chandra v. Sprinkle, 678 S.W.2d 804 (Mo. banc 1984), wherein the court concluded that a plaintiff’s right to discovery outweighed the public policy argument. We are constrained to follow this decision.

Therefore, although request for production number 4 seeking complete investigation reports is in violation of Rule 56.-01(b)(3) and defendant’s objection thereto must be upheld, a more precisely worded request directed to the incident report, since it is prepared for preventive purposes rather than for litigation, would be proper.

Request number seven seeks documentation of suicides, reported suicides, accidental deaths, attempted suicides or threatened suicides within five years prior to the date of the incident here involved. Relator’s hospital records fall within the physician-patient privilege. See State ex rel. Benoit v. Randall, 431 S.W.2d 107, 109 (Mo. banc 1968); Section 491.060(5), RSMo. 1978. In the absence of a waiver of the privilege by the patient himself, a physician must assert on behalf of the patient the privilege regarding confidential communications between the patient and the physician; release of information without a waiver by the patient may give rise to a suit for damages. See Thurman v. Crawford, 652 S.W.2d 240, 242 (Mo.App.1983). No evidence has been presented that relator’s patients have waived their privilege.

That the hospital files are privileged does not necessarily end our inquiry. Where there is a need for or public interest in discovery of material protected by a privilege, disclosure of the privileged communications may be compelled, provided adequate steps are taken to insure that those on whose behalf the privilege is asserted will not suffer possible disclosure and humiliation or embarrassment. See State ex rel. Lester E. Cox Medical Center v. Keet, 678 S.W.2d 813 (Mo. banc 1984). In order to justify even limited disclosure via in camera proceedings, however, the public’s interest in disclosure must be weighed against the public’s interest in the confidentiality of the privileged relationship. See generally State ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 78 (Mo. banc 1984) (grand jury inquiry justifies limited disclosure of material possibly subject to attorney-client privilege).

In State ex rel. Lester E. Cox Medical Center v. Keet, supra, a request for production of medical records of patients other than plaintiff who had developed a bacteriological infection following surgery were sought. The Supreme Court refused to protect such records on the basis of the physician-patient privilege provided the trial judge, in his discretion, was willing to conduct an in camera inspection of the records and mask not only the names of the patients, but also all other material contained in the records which is necessary to “protect the identities and privacy of the non-party patients with appropriate attention to matters claimed to be privileged beyond the identifying characteristics themselves.” Id. at p. 815. The public interest in open pre-trial discovery was deemed sufficient to outweigh the slight breach of privacy involved in such an in camera inspection by a trial judge.

Once again, we are constrained to follow this decision. However, there are noticeable differences between the records sought in Keet and those sought here. First, the quantity of records involved is obviously disparate. While we have no means of accurately determining numbers, it can hardly be doubted that considerably more patients of a hospital dedicated to the treatment of chemical dependency, alcohol abuse and depression would threaten suicide over a five year period than would surgical patients develop subsequent bacteriological infections over an approximate two year period, as in Keet. Additionally, it is such a well-known fact that drug and alcohol abusers and those suffering from depression commonly threaten suicide that the necessity of invading the privacy of other patients for the claimed purpose of establishing a known need to take protective measures against suicide attempts is hardly comparable with the importance of showing prior infections following surgery.

Finally, in contrast to the narrow scope of the request in Keet, seeking only information regarding exactly the same type of situation as in the case at hand, request number seven is so over broad as to be burdensome and oppressive. We see no relevance between accidental deaths, regardless of how sustained, and the deliberate ingestion of toilet bowl cleanser. Also, of questionable relevance would be a record of suicide or attempted suicide by leaping from a window, slashing of wrists, or otherwise than by ingestion of a harmful chemical. That patients in an institution such as that operated by defendant threaten suicide is of such common knowledge that the examination and redacting of five years of all patients records is hardly necessary to establish that relator should have been cognizant of such a danger. The limited utility of relator’s privileged hospital records does not justify the cumbersome, expensive and time-consuming process necessary to discover the information sought and to protect, all the while, the confidentiality of relator’s patients. The extensive production of documents sought by plaintiffs smacks of a fishing expedition. Courts should be wary of issuing fishing licenses to litigants who wish to east their lines into privileged waters.

Therefore, because request number 4 in its present form violates the exclusion from discovery of documents prepared in anticipation of litigation, Rule 56.01(b)(8), respondent is ordered to set aside and vacate his order of June 21, 1984 as to request number 4, without prejudice to the filing of a further request for production limited to the incident report prepared for purposes other than trial preparation. Similarly, respondent is ordered to set aside and vacate said order as to request number 7, without prejudice to the filing of a more narrowly limited request and the inclusion of appropriate orders for in camera inspection, the masking of names and other editing by the trial judge to insure the privacy of non-party patients and, if requested, appropriate orders relating to the expenses involved in searching voluminous records as authorized by Rule 56.01(c).

KAROHL, P.J., and SNYDER, J., concur.

      . Rule 56.01(b)(3) has modified State ex rel. Terminal Railroad Assn. v. Flynn, supra, by making work product discoverable upon a showing of substantial need for the materials and an inability to obtain a substantial equivalent of the materials. Porter v. Gottschall, 615 S.W.2d 63, 65 (Mo. banc 1981).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Billy Joe GARRETT, Defendant-Appellant.
    No. 13514.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 27, 1984.
    Motion for Rehearing Overruled and Transfer to Supreme Court Denied Dec. 13, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Mary E. Burnett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David E. Woods, Public Defender, Poplar Bluff, for defendant-appellant.
   PER CURIAM.

Following jury trial defendant was convicted of second-degree arson and sentenced as a persistent offender to ten years’ imprisonment. He appeals.

For his first point defendant contends that there was insufficient evidence to support the verdict because the state failed to show that the fire was knowingly set by him. As defendant asserts, there was no direct evidence that he started the fire.

In determining if the evidence is sufficient to support the verdict, the evidence and all reasonable inferences must be considered in the light most favorable to the state and all evidence and inferences to the contrary disregarded. State v. Buffington, 588 S.W.2d 512, 514 (Mo.App.1979).

Any fact can be established by circumstantial evidence. State v. Chase, 444 S.W.2d 398, 402 (Mo. banc 1969). To establish facts by circumstantial evidence the circumstances must be such as are inconsistent with defendant’s innocence, but it is not necessary that they be absolutely conclusive of his guilt. State v. McGee, 592 S.W.2d 886, 887 (Mo.App.1980).

The circumstances here strongly indicate that the fire was set and that defendant set it. Defendant, his wife, their three children, and his two stepdaughters lived in a rental house in Charleston, Missouri. On July 21, 1981, defendant and his wife purchased a $5,000 insurance policy insuring the contents of their house against various perils, including fire. The house suffered fire damage on Sunday, August 30, 1981.

Defendant’s stepdaughter, Michelle Lamb, stated that on the afternoon of August 30, 1981, pictures, baby clothes and articles were taken from the house to defendant’s mother’s home. Earlier other clothes and pictures had been taken there. Michelle testified that a few days before the fire defendant told his wife, “Maybe we will do it Saturday.” On Saturday, August 29, he said, “We will do it tomorrow night.” At that time Michelle did not know what defendant was talking about.

On the afternoon of August 30, defendant carried newspapers into the southeast bedroom and spread the papers on the floor of the closet and onto the bed. Defendant also moved some clothes in that bedroom from the back to the front of the closet. When Tammy Lamb, the other stepdaughter, asked defendant about the newspapers and the clothes, defendant said he did it and for her to leave them alone.

On August 30, at approximately 7:30 p.m., Tammy went across the street to babysit. About an hour later Michelle, her mother, and the rest of the children left to go to defendant’s mother’s house, leaving defendant home. At defendant and his wife’s request, Michelle stopped across the street to tell Tammy not to go back to the house when she was through babysitting, but to go to defendant’s mother’s house.

Tammy saw defendant sitting on the porch of the house smoking a cigarette at approximately 9:30 p.m. Defendant then got up, went into the house, and walked through it. Then he came out and walked from the house, past his landlord’s house, “and then he took off running around the corner.” She said that “about five or ten minutes later, the house was in flames.”

Later that evening Tammy saw defendant at his mother’s house. Defendant was in the back bedroom with the lights off and said if the “cops” or anybody came looking for him to tell them he wasn’t there.

A firefighter, who responded to an alarm of the fire, said the doors and windows of the house were locked and the windows down, highly unusual for August. He went to the rear of the building where the fire was coming out through a broken window. He busted in the rear door to get to the fire and upon entering noticed that the door to the southeast corner bedroom was closed and had rags piled against it.

There was evidence that it was a warm day, there were no other fires in the area, and that there were no electrical storms. The fire chief stated that the fire started in the southeast bedroom. There were no electrical wires near where it started. There was evidence that the house was sparsely furnished and defendant stood to gain monetarily by the fire.

The removal of items and the obvious preparation for the fire and the statements as to when appellant was going to “do it” strongly indicate he was preparing to set a fire. He was the only one present in the house, and then left it, walked for awhile, and then ran from it shortly before it started burning.

The evidence was certainly sufficient that the jury could find defendant guilty beyond a reasonable doubt. These circumstances are inconsistent with his innocence and taken together supply sufficient evidence to support the charge. This point is denied.

For his second point defendant states that the trial court erred in allowing the fire chief to testify where the fire started because he was not sufficiently qualified as an expert.

By reason of education or specialized experience, a witness who possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion nor drawing correct conclusions qualifies as an expert. State v. Smith, 637 S.W.2d 232, 235 (Mo.App.1982). The determination whether a witness qualifies as an expert rests with the discretion of the trial court, which is not disturbed on review in the absence of abuse. Id.

A witness may be qualified to testify as an expert although his knowledge may have been gained by practical experience rather than by scientific study or research. State v. Myers, 588 S.W.2d 747, 748 (Mo.App.1979). The test of expert qualification is whether he has knowledge from education or experience which will aid the trier of fact. Id.

The fire chief had been with the Charleston Fire Department for 25 years and had worked on approximately 100 fires a year since he started. He has had training in fire control, combat of fires and arson investigation at the University of Missouri at Columbia. These classes are given approximately one time a year. The fire chief had experience both from years of practical experience and in training. There was no abuse of discretion in allowing him to testify. This point is denied.

Defendant contends in his remaining point that the trial court erred by not allowing him to call two witnesses as rebuttal evidence. Defendant offered to prove that one of the state’s witnesses, defendant’s stepdaughter, Tammy Lamb, was incorrect when she testified she did not smoke and that on the night of the fire Tammy had said that defendant was in another town.

After the state had put on its case, defendant presented witnesses, then rested. The state offered no rebuttal evidence and then defendant asked to present the two “rebuttal” witnesses.

Defendant relies primarily on Rule 27.02, setting forth the order of trial by jury in a felony case. It states in part:

“(i) The parties, respectively, may offer evidence in rebuttal only, unless the court, for good cause shown or believing that the interests of justice will be served thereby, permits the parties to offer evidence upon their original cases.”

The state contends that as it offered no rebuttal evidence, rebuttal (or surrebuttal) evidence by defendant was not warranted. It also contends that the evidence tendered by these two witnesses was not proper as it was impeachment of collateral matters. We dispose of the matter on the first contention and do not decide if one or both of the matters defendant sought to show were collateral.

The admission of rebuttal evidence is discretionary with the trial court. State v. Weeks, 603 S.W.2d 657, 664 (Mo.App.1980). Likewise, the scope of rebuttal testimony rests within the broad discretion of the trial court. State v. Crain, 638 S.W.2d 761, 762 (Mo.App.1982).

Often part of the evidence initially offered by a defendant in a criminal trial is in the nature of rebuttal, rebutting the state’s evidence. No explanation is made as to why this evidence was not offered earlier. It is a new matter adduced by the prosecution in rebuttal that entitles a defendant to offer surrebuttal. 23 C.J.S. Criminal Law § 1050.C, p. 1219. See also State v. Huff, 454 S.W.2d 920, 923 (Mo.1970). Absent such new matter there was no abuse of discretion in not allowing defendant to present this evidence.

The judgment is affirmed.

All concur.


author: CRANDALL, Judge.

text:
    Willie Mae WALKER, Appellant, v. DePAUL HOSPITAL, Respondent.
    Nos. 48162, 48163.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1984.

      James F. Koester, St. Louis, for appellant.
    Joseph H. Mueller, St. Louis, for respondent.
   CRANDALL, Judge.

Plaintiff appeals from an order denying her motion to set aside the dismissal of her cause of action and denying the request for a writ of error coram nobis. Plaintiff claims that because a case was pending before the Missouri Supreme Court which involved a legal issue also involved in plaintiff’s claim when her claim was dismissed, (1) there was an irregularity in the dismissal of her petition which warranted the setting aside of the judgment under Rule 74.-32; and (2) there was a mistake of fact which would have prevented the judgment of the trial court, and thus the court should have granted a writ of error coram nobis. We affirm.

Plaintiff Willie Mae Walker filed a petition on July 12, 1979, alleging her unborn child was caused to die while Willie Mae was hospitalized in February of 1978. That petition sought damages for the wrongful death of her unborn child. On December 15, 1979, plaintiff filed an amended petition alleging willful, wanton, intentional and malicious conduct on the part of the defendant. On January 7,1980, defendant filed an answer to the amended petition. On January 26, 1982, defendant filed a motion to dismiss the amended petition on the ground that a wrongful death action may not be maintained for the death of an unborn child. That motion was overruled on March 22, 1982. On March 31, 1982, defendant filed a motion for judgment on the pleadings.

On April 16, 1982, plaintiff filed a second amended petition adding two new counts alleging her child was born alive and was caused to die. On May 17, 1982, defendant filed a motion to dismiss all four counts of plaintiff’s second amended petition. On June 2, 1982, the court dismissed the first two counts of the second amended petition and on August 25, 1982, dismissed the other two counts. The judgment, therefore, became final on September 24, 1982.

On August 16, 1983, the Missouri Supreme Court handed down its decision in O’Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), where the court held that a viable fetus is a person for purposes of the wrongful death statute. § 537.080, RSMo (Supp.1983). This decision changed the law on this issue, set out earlier in State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo. banc 1976) and Olejniczak v. Whitten, 605 S.W.2d 142 (Mo.App.1980), which held a fetus was not a person under the wrongful death statute.

On September 2, 1983, plaintiff filed a motion to set aside the judgment dismissing her cause of action under Rule 74.32, or in the alternative for a writ of error coram nobis. On December 20, 1983, the trial court again sustained the defendant’s motion to dismiss and by implication overruled the plaintiff’s motion.

Plaintiff first claims the trial court erred in failing to set aside the judgment dismissing the cause of action because an “irregularity” existed under Rule 74.32. Rule 74.-32 states: “Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the rendition thereof.”

This rule "provides only a very narrow remedy. The judgment may be set aside for an irregularity under Rule 74.32 only if there was a procedural error patent on the face of the record.” State ex rel. Brooks Erection & Construction Co. v. Gaertner, 639 S.W.2d 848, 850 (Mo.App.1982). “An irregularity within the meaning of Rule 74.32 ... has been defined as the failure to adhere to some prescribed rule or mode of proceeding.... Such an irregularity consists either in omitting to do something that is necessary for the due and orderly conduct of a suit, or doing it at an unseasonable time or an improper manner.” Pikey v. Pikey, 605 S.W.2d 215, 217 (Mo.App.1980).

Plaintiff claims the motion to dismiss in the present case was sustained at an “unseasonable time,” because the O’Grady case was pending before the Missouri Supreme Court.

We cannot accept plaintiff’s argument that an irregularity existed in the trial court proceeding. Plaintiff does not cite a case, and our own research has found no case, supporting the claim that because a higher court has a case pending which might change the applicable law to the case at bar, and the trial court dismisses the claim, that such action constitutes an irregularity. We also note that nothing in the record indicates plaintiff requested a stay of the trial court proceedings.

Plaintiff also claims there was an irregularity in that the dismissal of the claim came prior to a hearing on the merits. Plaintiff cites the rule that “rendition of a premature judgment is an irregularity and may be set aside.” Glick v. Glick, 372 S.W.2d 912, 915 (Mo.1963). Glick, and a case cited by plaintiff, Chenoweth v. La Master, 342 S.W.2d 500 (Mo.App.1961), cannot be used to support plaintiff’s argument. Glick dealt with a claim that a judgment was premature in that it failed to dispose of all the issues in the case. Che-noweth dealt with a judgment against a garnishee which failed to find the amount due from the garnishee. Plaintiff cites no case stating that sustaining a motion to dismiss prior to a hearing on the merits is a premature judgment. Such a rule would defeat the entire purpose of a motion to dismiss. “A motion to dismiss is the proper procedural tool to challenge a petition and to obtain a decision as to whether it alleges sufficient facts to constitute a cause of action....” Morgan v. Morgan, 555 S.W.2d 378, 380 (Mo.App.1977).

Plaintiff’s second point claims trial court error in failing to grant a writ of error coram nobis because the O’Grady case changed the law affecting plaintiffs cause of action.

“The writ of error coram nobis issues to relieve against a judgment entered by the court, acting under a mistake of fact. ‘It lies for error of fact not operating on the face of the record, which fact was unknown to the court, and which, if it had been known, would have prevented the rendition and entry of the judgment.’ ” DeGraffenreid v. Curtwright, 652 S.W.2d 310, 310 (Mo.App.1983), citing Townsend v. Boatmen’s National Bank, 148 S.W.2d 85, 87 (Mo.App.1941).

The error of fact alleged by plaintiff was that the O’Grady case was pending before the Missouri Supreme Court at the time the plaintiff’s petition was dismissed. Plaintiff cites no case in her initial brief which can support such a claim.

Defendant cites two cases which merit discussion. In DeGraffenreid, 652 S.W.2d 310, the court was faced with the dismissal of a plaintiff’s petition several months after a Missouri Supreme Court decision was handed down which plaintiff claimed would have had a bearing on the cause of action. The opinion did not appear in the advance sheets until about a month after dismissal of the claim against one defendant and two days before dismissal of the claim against a second defendant. The court in holding that “the trial court’s mistake, if he was under any mistaken belief, was one of law and not of fact” stated: “A court might in any case make a ruling in ignorance of the existence of an authoritative judicial decision — whether of recent or remote date— but that does not make his mistake one of fact. It is a mistake of law. The writ of error does not lie to correct errors of law.” DeGraffenreid, 652 S.W.?d at 311.

The DeGraffenreid court distinguished its decision from Loeffler v. City of Kansas City, 557 S.W.2d 656 (Mo.App.1977), where the court held that the existence of a statutory provision, mistakenly omitted from the printed statutes by the revisor of statutes, was a mistake of fact upon which a writ of error coram nobis could issue. The court in Loeffler stated: “Whether or not a law exists is a question of fact, and after the fact of its existence is established, then its construction is a question of law.” Id. at 657.

In the present case, there is no mistake of law or of fact. The trial court held no mistaken belief about what law existed at the time the petition was dismissed. The fact a case was pending before the supreme court was not a fact which required the trial court to act any differently than it did. This is especially true here where the record does not show plaintiff requested of the court that it stay the proceedings until the supreme court ruled. “A writ of error coram nobis does not lie if the fact now alleged as grounds for the writ was known to the complaining party at the time of the judgment, or might have been known by the exercise of reasonable diligence.” Defford v. Zurheide-Hermann, Inc., 536 S.W.2d 804, 810 (Mo.App.1976). We need not decide whether plaintiff met this standard in order to preserve the right to use the writ of error coram nobis, because of our previous discussion.

The plaintiff could have appealed from the dismissal of the petition in order to ask for a new interpretation of the wrongful death statute. No timely appeal was taken.

The order of the trial court denying the motion to set aside its original judgment and denying the request for a writ of error coram nobis is affirmed.

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


text:
    Thomas EVANS and Carolyn Evans, Appellants, v. Jeffrey NOLLE, Respondent.
    No. 48181.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1984.
    Harold G. Johnson, St. Ann, for appellants.
    K. Steven Jones, St. Louis, for respondent.
   ORDER

PER CURIAM.

This is an appeal by plaintiffs from a judgment entered after a jury verdict in favor of defendant in a wrongful death action.

The judgment of the trial court is affirmed. Rule 84.16(b).


author: KAROHL, Judge.

text:
    R.T.C., By and Through his next friend and natural mother, Beverly CUNNINGHAM, individually, Plaintiffs-Respondents, v. Anthony BEARS, Defendant-Appellant.
    No. 48191.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 27, 1984.
    Wayne T. Schoenberg, St. Charles, for defendant-appellant.
    Lee Reneau Elliott, Troy, for plaintiffs-respondents.
   KAROHL, Judge.

This is an appeal from a declaration of paternity, custody and child support. The trial court entered judgment that appellant was the natural father of R.T.C., awarded custody to Beverly Cunningham, ordered appellant to pay $350.00 child support retroactive to the date the petition was filed, reimbursed medical expenses and that appellant pay attorney’s fees and costs.

The petition was filed on January 24, 1983, the issues were joined by defendant’s answer filed on May 3, 1983 and the case was tried to the court without a jury on December 8, 1983.

The docket sheet of the trial court indicates that in September 1983 the plaintiff notified the court the case was ready for trial setting. Defendant filed objections. A second certificate of readiness was filed by the plaintiff on October 24, 1983. On November 7,1983 the court set the case for trial as a non-jury matter for December 8, 1983. Defendant was not present on November 7,1983. When defendant appeared for trial and before the trial began he asserted his right to a jury trial on the authority of Rule 69.01(a) and (b). He filed a formal request for a jury trial. The court declined to rule the matter on procedural grounds relating to timely request and expressly ruled that a party is not entitled to a jury trial on a paternity suit of this type and particularly on the issue of paternity. The trial court was of the opinion that this is primarily an equity action and denied appellant’s request for a jury trial.

The issue to be decided is whether a party to a declaration of paternity suit is entitled to a jury trial. We hold that appellant was entitled to a jury and remand for further proceedings. § 527.090, RSMo. 1978 provides:

When a proceeding under § 527.010 to § 527.130 includes the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

In K.D.R. v. D.E.S., 637 S.W.2d 691 (Mo. banc 1982) the Supreme Court said “The issue as to paternity is purely a fact issue and either party has a right to a jury trial on that issue under § 527.090, RSMo. 1978. Although the right to a jury trial on the paternity issue may not be constitutionally guaranteed it is afforded by the statute referred to above.” Id. at 694.

Section 527.010, RSMo. 1978 defines the scope of the Declaratory Judgment Act. It states in part that “The circuit court ... shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed.” In K.D.R. the mother of an illegitimate child sought a declaration of paternity, custody and future child support. The action was not specifically brought under the Declaratory Judgment Act. The court however found the Act applied and that therefore either party had a right to trial by jury on the paternity issue. The court distinguished those cases in which the issue of paternity was raised during a juvenile code proceeding or in a dissolution proceeding. In such cases although paternity is an issue the relevant statutes do not provide for a jury trial on the issue.

The facts in K.D.R. are strikingly similar to the present case. Here respondent’s mother seeks a declaration of paternity, custody, reimbursement for medical expenses and future child support. There as here recourse under Chapter 527 was not expressly pleaded. We find that K.D.R. governs this case and that therefore the present action falls within the Declaratory Judgment Act. A proceeding under that Act to declare paternity requires a jury determination of the fact issues unless a jury trial is waived. The trial court made no determination of waiver and we find nothing in the record to indicate that appellant affirmatively waived his right to a jury trial. The appellant never waived his right nor did he consent to a non-jury trial on the issue of paternity or on the issues of past child support or reimbursement for medical expenses.

The issue of the award of future child support is on a different footing. “The court’s authority to award ongoing future support is equitable in nature; therefore this aspect of the case is for the court and should not be submitted to the jury.” Missouri Family Law, Third Edition § 18.16. “Due to the inadequacy of the common law, courts have exercised their equitable jurisdiction in awarding child support decrees guaranteeing adequate support for minors before the expense is incurred. The power is said to come from the court’s inherent equitable power to care and provide for minors. Urbanek v. Urbanek, 503 S.W.2d 434 (Mo.App.1973). The purpose of this procedure is to obviate the expense and delay of independent actions until after the expense is incurred on the minor’s behalf, (citations omitted). Therefore a mother has the option, if she wishes, to seek support before the expense is incurred, [an] equitable remedy, or furnish the necessary support and then seek a legal remedy to recover the reasonable value of her expenses.” McNulty v. Heitman, 600 S.W.2d 168, 172 (Mo.App.1980).

We vacate the judgment of the trial court and remand for a jury trial on the issues of fact relating to paternity, past child support and reimbursement of expenses. In the event of a verdict favorable to the plaintiffs on the issue of paternity the court may consider the issue of future child support.

PUDLOWSKI, P.J., and GAERTNER, J., concur.


author: SMITH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Anthony MICHAELS, III, Defendant-Appellant.
    No. 48231.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 27, 1984.
    John M. Morris, Asst. Atty. Gen., Jefferson City, for defendant-appellant.
    Norman S. London, St. Louis, for plaintiff-respondent.
   SMITH, Presiding Judge.

Defendant has appealed from the trial court’s denial of his motion to dismiss the indictment against him based upon his contention that the indictment violates his right to be free from double jeopardy. The State has filed a motion to dismiss the appeal. That motion is well taken and we grant it.

The right to appeal is given by statute. Evans v. Barham, 184 S.W.2d 424 (Mo.1944) [1-3]. Section 547.070 RSMo 1978 provides that a defendant may appeal a “final judgment rendered upon any indictment or information.” Rule 30.01 parallels that statute. Rule 74.01 defines a judgment as “the final determination of the rights of the parties in the action.” In a criminal case the rendition of a sentence is the final judgment. State ex rel. Wagner v. Ruddy, 582 S.W.2d 692 (Mo. banc 1979) [1, 2]; State v. Hams, 486 S.W.2d 227 (Mo.1972) [1, 2]. The denial of defendant’s motion to dismiss did not dispose of the case nor finally determine the rights of the parties. It was not a final judgment and no appeal lies therefrom.

Defendant contends that his right to be free from double jeopardy is defeated if denial of his motion raising that defense is not appealable, relying on United States v. Barket, 530 F.2d 181 (8th Cir.1976) [1-4]. That decision was based on the court’s finding that the denial of defendant’s motion was appealable as a collateral order under federal law. Barket relied heavily on Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). That case specifically held that 28 U.S.C. § 1292 indicated a Congressional intent “to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties.” lc. U.S. 545, 69 S.Ct. 1225. However, the Court also stated that “if Congress had allowed appeals only from those final judgments which terminate an action, this order would not be appeala-ble.” Id. The Missouri statute allows appeals only from “final judgments which terminate an action.” As Barket sets forth there is logic to the allowance of an appeal from denial of a motion to dismiss based on double jeopardy grounds. But the statutes of this state do not allow such an appeal and our jurisdiction is dependent on the statutes.

Appeal dismissed.

SNYDER and SATZ, JJ., concur.

      . Section 547.200 RSMo Cum.Supp.1983 allows appeals by the state from certain pre-trial evi-dentiary rulings. We are unable to conclude that that extremely limited allowance to the state only is reflective of a legislative intent similar to that found by the Court in Cohen.


author: REINHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Virgil MACE, Appellant.
    No. 48461.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1984.

      John Wabon Nichols, Kennett, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Chief Judge.

Defendant was convicted by a jury of conspiracy to commit murder, and the court sentenced him as a prior offender to fifteen years in the Department of Corrections. Defendant appeals, claiming insufficiency of the evidence. We affirm.

Defendant did not testify or present any evidence at trial. Gerald Smith, who was named in the information as defendant’s co-conspirator, testified to the following facts. Defendant and Betty Clark lived in a mobile home in Bloomfield, Missouri. Smith, who had known defendant since 1979, visited defendant and Clark at their home on July 28, 1983. Clark offered Smith $50 to speak to a woman on the phone and tell her he was going to be the hired killer of the woman’s husband. Smith agreed to do so. While Clark was placing the call, defendant asked Smith how much he would charge to kill someone. Smith told him $5,000, to which defendant responded, “Well, what about ten thousand?” At this point, the conversation was interrupted by Clark, and Smith talked on the phone and told the woman, Sherry Patterson, that he would “do the job”. After he was paid in money and drugs for making the call, Smith left.

Before Smith met with defendant and Clark again, he was arrested for burglary. In hopes of gaining leniency on the burglary charge, Smith told the sheriff about the murder plan, and agreed to cooperate in preventing the murder in return for the sheriff’s help.

Another meeting at the mobile home was arranged for August 18. On that date, a microphone and transmitter were hidden on Smith’s person by a state patrol officer. Smith was then released and walked to defendant’s home. Defendant, Clark, and Smith formulated a plan to kill Sherry Patterson’s husband, Ronnie Patterson. Smith was to pose as a hitchhiker near Patterson’s home when Patterson left for work, and after Patterson picked him up, Smith was to murder Patterson with defendant’s 22 caliber pistol and make it look like a robbery. Clark told Smith that the $10,000 payment for the murder would come from life insurance policies on Patterson’s life. Smith asked to test fire the gun, and was told to come back the next day to do it.

Smith returned on August 19, after the police again attached a transmitter and microphone to him. Defendant and Clark were in the living room, and Clark instructed Smith to get the gun from the bedroom. Smith retrieved a gun from the bedroom, but defendant told him he had picked up the wrong gun, and instructed him to go back and get the other gun from the other side of the bed. Smith did so, and defendant then told him to go test-fire it at a shed behind the mobile home. The gun was inaccurate and misfired when Smith tested it. Defendant told Smith that the gun could not be repaired, and that he would have to hold it to Patterson’s head when he killed him. Defendant would not allow Smith to take the gun with him that day.

Smith contacted defendant again on August 22. Again, a transmitter and microphone were attached to Smith before he went to defendant’s home. Further discussion took place about the murder plan.

On August 28, defendant contacted Smith for another meeting. This time Smith was not wired by police because of the short notice of the meeting. Smith went to defendant’s home and again met with Clark and defendant. Defendant told Smith he had re-loaded the gun with new cartridges. Clark placed the gun next to Smith. Defendant told Smith he didn’t want the gun back, and instructed Smith to lose the gun when he was finished with it. Clark told Smith when Patterson would be leaving his house the next morning. Smith said he would take care of it, and left with the gun. He then turned the gun over to the sheriff. At trial, the recordings of the meetings were heard.

The state’s amended information, Count I, charged that defendant,

in violation of Section 564.016, RSMo., committed the class B felony of conspiracy, ... in that on or about the 28th day of July, 1983, in the County of Stoddard, State of Missouri, the defendant with the purpose of promoting and facilitating the offense of capital murder, agreed with Gerald Smith, that one or more of them would murder Ronnie Dean Patterson, and that in furtherance of the conspiracy one or more of them furnished Gerald Smith with a deadly weapon.

On appeal, defendant contends the trial court erred in overruling his motion for acquittal at the close of the state’s case and his motion for new trial because the evidence was insufficient in two respects. We review the evidence in the light most favorable to the state, and we will not disturb the verdict of the jury if there is substantial evidence to support it. State v. Crews, 585 S.W.2d 131, 136 (Mo.App.1979).

We first address defendant’s claim that there was “insufficient evidence to sustain a conviction in that there was insufficient evidence to establish the existence of a conspiracy prior to the time that the alleged co-conspirator became a government informer.” Defendant argues that when Smith became a government informer, he was no longer a co-conspirator because he lacked the requisite intent to complete the conspiracy; therefore, since Smith and defendant were the only alleged conspirators, none of the evidence of the events after that point could be used to establish the conspiracy. Defendant relies on United States v. Moss, 591 F.2d 428, 434 n. 8 (8th Cir.1979), for the proposition that “there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy.” (Citations omitted.) Thus, defendant argues, the only competent evidence of conspiracy here is that which arose from the first meeting between defendant and Smith, and this was not sufficient to convict him.

Initially we note that in Moss, the defendant was charged with conspiracy to kidnap in violation of 18 U.S.C. § 1201(c), which provides, “If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.” (Emphasis added.) Here, on the other hand, defendant was charged under § 564.016.1 RSMo.1978, which provides, “A person is guilty of conspiracy with another person or persons to commit an offense if, with the purpose of promoting or facilitating its commission he agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such an offense.” (Emphasis added.) The language of the Missouri conspiracy statute is phrased in the singular, unlike the statute construed in Moss. Furthermore, the “Comment to 1973 Proposed Code,” which immediately follows § 564.016 V.A.M.S. 1979, specifically states that the individual’s conduct, not the group’s, is determinative, and that a “conspirator cannot escape liability because the only other one ... secretly does not intend to go through with the plan.”

A similar argument to defendant’s was made in State v. Hohensee, 650 S.W.2d 268 (Mo.App.1982). There) the defendant was convicted of conspiracy to commit burglary even though the other “conspirators” were government agents who lacked the intent to burglarize. The defendant in Hohensee also cited Moss, among other cases, in support of his argument. In affirming the conspiracy conviction, the Southern District held:

It will be observed that the statute [§ 546.016.1 RSMo.1978] does not open with the language “two or more persons,” but rather it defines conduct which makes “a person’’ guilty of conspiracy. Note also that the statute is in the singular when it uses the language “he agrees ...” Thus, the statute focuses upon the conduct of one person. The “agreeing” done by that one person must involve another person or persons but it is sufficient that “he” alone agrees, and it is also sufficient that he does so “with the purpose of promoting or facilitating its commission .... ” It is the purpose of the individual rather than the purpose or purposes of the pair or group of persons which is required under the statute.

650 S.W.2d at 275-76.

We adopt the reasoning in Hohensee and rule this point against defendant.

Defendant’s second complaint is that “there was insufficient evidence to establish that defendant or a co-conspirator committed the overt act alleged in the information.” Because an overt act in furtherance of the conspiracy must be alleged and proved before a person can be convicted of conspiracy, § 564.016 RSMo.1978, defendant claims his conviction cannot stand. Although defendant admits the allegations of the information are not defective, he contends the state failed to prove its allegation in the information that defendant “furnished Gerald Smith with a deadly weapon.” Rather, defendant claims, the state proved only that Betty Clark gave defendant the gun, and she was not alleged to have been a conspirator.

First, we note that there is no requirement that the overt act be physical. See United States v. Civella, 648 F.2d 1167 (8th Cir.1981) (phone conversation held to be overt act); United States v. Eucker, 532 F.2d 249 (2d Cir.1976) (silence can be an overt act). In determining whether the state’s evidence showed that defendant “furnished” the gun to Smith, we also note that Black’s Law Dictionary (5th ed. 1979) defines the word “furnish” as follows: “To supply, provide, or equip, for accomplishment of a particular purpose...” Here, the state’s evidence indicated that defendant possessed the gun and relinquished its control to Smith. At one of the meetings, defendant instructed Smith to get the gun from next to defendant’s bed, and told Smith to test-fire it. Defendant reloaded the gun with newer cartridges before Smith came to get it on August 28, 1983. When asked by Smith if he wanted the gun back, defendant replied, “No, lose it.” These facts were sufficient to show that defendant took part in furnishing the gun to Smith. It was not necessary that he physically give it to Smith. We rule this point against defendant. Affirmed.

DOWD, CRIST and CRANDALL, JJ., concur.


author: SOMERVILLE, Judge.

text:
    MISSOURI DEPARTMENT OF SOCIAL SERVICES, et al., Appellants, v. AGI-BLOOMFIELD CONVALESCENT CENTER, INC., et al., Respondents.
    No. WD 35697.
    Missouri Court of Appeals, Western District, Division One.
    Nov. 27, 1984.
    See also, 679 S.W.2d 294.

      Gregory W. Schroeder, Gen. Counsel Div., Dept, of Social Services, Jefferson City, for appellants.
    Harvey M. Tettlebaum, W. Duane Benton, Jefferson City, for respondents.
    Before NUGENT, P.J., and SHANGLER and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Plaintiffs-appellants (hereinafter plaintiffs), the Missouri Department of Social Services, Barrett A. Toan, Director, Missouri Department of Social Services, the Missouri Division of Family Services, and Joseph J. O’Hara, Director, Missouri Division of Family Services, filed an action for declaratory judgment in the Circuit Court of Cole County, Missouri, respecting the validity and enforcement of certain provisions, particularly (7)(F)1.C., of 13 CSR 40-81.081 captioned “Prospective Reimbursement Plan For Long-Term Care”. The aforementioned rule was promulgated by the Missouri Department of Social Services pursuant to its legal mandate to administer the Medicaid Program in this state. Defendants-respondents (hereinafter defendants) are some twenty-five (25) separate corporate entities operating nursing homes in the State of Missouri and participating in the Medicaid program.

Defendants filed a motion to dismiss plaintiffs’ petition for declaratory judgment on three stated grounds: (1) plaintiffs’ petition failed “to state a claim upon which relief could be granted”; (2) plaintiffs lacked “standing” to bring the action; and (3) the trial court lacked “jurisdiction over the subject matter”. The trial court, without stating grounds or reason for doing so, sustained defendants’ motion to dismiss and ordered plaintiffs’ cause of action “dismissed with prejudice”. Accordingly, it is assumed on appeal that the trial court dismissed plaintiffs’ petition for declaratory judgment on the grounds or for the reasons set forth in defendants’ motion to dismiss. Vorbeck v. McNeal, 560 S.W.2d 245, 249 (Mo.App.1977). Therefore, defendants’ injection on appeal that the trial court’s order of dismissal was justified for the additional reason that it constituted a proper exercise of discretion pursuant to § 527.060, RSMo 1978, and their conglom-eritic argument on appeal in support thereof, will not be entertained.

Plaintiffs’ single point on appeal, that the trial court erred in dismissing their petition for declaratory judgment on the grounds or for the reasons set forth in defendants’ motion to dismiss, carves the boundaries of appellate review. The issues presented on appeal collectively raise a question of paramount significance — may state agencies and their respective directors invoke declaratory relief respecting the validity and application of their own rules and regulations?

Attention first focuses on whether plaintiffs’ petition stated a claim upon which relief could be granted. In reviewing the sufficiency of plaintiffs’ petition to state a claim for declaratory relief, this court must construe it favorably to plaintiffs, accept as true all facts alleged therein, and accord it the benefit of every reasonable and favorable inference the facts pleaded will permit. Lalumondier v. County Court of St. Francois County, 588 S.W.2d 197, 198 (Mo.App.1979); and Vorbeck v. McNeal, supra, 560 S.W.2d at 249. Concomitantly, a petition invoking declaratory relief, in order to survive a motion to dismiss for failure to state a claim upon which relief can be granted, must allege a state of facts demonstrating the existence of certain obtaining principles which have evolved from cases addressing actions for declaratory judgments. Wells v. Henry W. Kuhs Realty Co., 269 S.W.2d 761, 767 (Mo.1954); Pollard v. Swenson, 411 S.W.2d 837, 841 (Mo.App.1967); and Vorbeck v. McNeal, supra, 560 S.W.2d at 252. One, facts must be alleged showing a subsisting justiciable controversy between the parties admitting of specific relief by way of a decree of a conclusive character, as opposed to a mere advisory decree upon a hypothetical state of facts. State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, 176 (Mo. banc 1949); Transport Manufacturing & Equipment Co. v. Toberman, 301 S.W.2d 801, 806 (Mo. banc 1957); Pollard v. Swenson, supra, 411 S.W.2d at 841; and Higday v. Nickolaus, 469 S.W.2d 859, 862 (Mo.App.1971). Two, facts must be alleged showing that the party or parties seeking declaratory relief have a “legally protectable interest at stake.” State ex rel. Chilcutt v. Thatch, supra, 221 S.W.2d at 176; City of Jackson v. Heritage Savings & Loan Assoc., 639 S.W.2d 142, 144 (Mo.App.1982); and Higday v. Nickolaus, supra, 469 S.W.2d at 862-63. Three, facts must be alleged showing that the question or subject posed for declaratory relief is appropriate and ripe for judicial resolution. State ex rel. Chilcutt v. Thatch, supra, 221 S.W.2d at 176; City of Jackson v. Heritage Savings & Loan Assoc., supra, 639 S.W.2d at 144 (Mo.App.1982); and Higday v. Nickolaus, supra, 469 S.W.2d at 863.

The petition at hand, upon analysis in conformity with the principles hereinabove enumerated, alleges facts showing the following: (1) that the respective positions of plaintiffs and defendants are polarized as to the validity, construction, meaning and applicability of 13 CSR 40-81.081(7)(F)l.C. with respect to plaintiffs’ presently intended reconsideration of defendants’ Medicaid per diem reimbursement rates; and (2) that plaintiffs were under threat of legal action by defendants if plaintiffs applied 13 CSR 40-81.081(7)(F)l.C., as construed by them, regarding reconsideration of defendants’ Medicaid per diem reimbursement rates.

It is appropriate at this juncture to take note of §§ 208.152.1 and 208.159, RSMo Supp.1983. Section 208.152.1, supra, provides, inter alia, that payments to nursing home participants in the Medicaid program are “... to be made on the basis of the reasonable cost of the care or reasonable charge for services as defined and determined by the division of family servic-es_” Section 208.159, supra, provides, inter alia, that “[notwithstanding the provisions of section ... 208.152 ... the department of social services shall administer payments for nursing home services authorized in sections 208.151, et seq., which govern medical assistance under Title XIX, Public Law 89-97, 1965 amendments to the Federal Social Security Act ... as amended, ... [and] [t]he department shall, pursuant to chapter 536, RSMo, promulgate rules and regulations for the purpose of administering such payments, including rules to define the reasonable costs, manner, extent, quality, charges and fees or payments for nursing home services.” It is also appropriate at this juncture to take note of 42 U.S.C.A. § 1396a(13)(A) which, inter alia, specifies that nursing homes be reimbursed at rates “which the State finds, and makes assurances satisfactory to the Secretary [Secretary of Health and Human Services], are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards_” The duty and responsibility falling upon the agencies and individuals seeking declaratory relief in the instant ease to promulgate rules and regulations appertaining to Medicaid per diém reimbursement rates is patent.

Guiding upon the principles heretofore enumerated for ascertaining whether or not plaintiffs’ petition for declaratory judgment stated a claim upon which relief could be granted, the following two conclusions may readily be drawn: plaintiffs’ petition for declaratory judgment pled facts showing a subsisting justiciable controversy between the parties, admitting of specific relief by way of decree of a conclusive character; and one which was ripe for judicial resolution. The remaining requisite principle attendant determination of whether plaintiffs’ petition for declaratory judgment pled facts upon which relief could be granted, i.e., that plaintiffs had a “legally protectable interest at stake”, presents a more vexing question demanding further analysis and consideration.

The duty and obligation impressed upon the agencies and their respective directors in the instant case to administer the vast and comprehensive social program known as Medicaid, by the promulgation and implementation of rules and regulations, standing alone, demonstrates that plaintiffs had an undeniable interest at stake of magnum importance. When threatened with litigation by defendants if they implemented the controversial rule or rules in question by making retroactive and prospective Medicaid per diem reimbursement rate decreases affecting all but three of the named defendants, and recouping any prior overpayments by withholding said amounts from current Medicaid per diem reimbursement payments (in reliance upon 13 CSR 40-81.081(9)(B)l-3), plaintiffs were squarely presented with the dilemma of either doing a volte-face or incurring the risk of litigation (which in fact materialized the day after plaintiffs filed the instant action for declaratory judgment). A number of serious ramifications, fraught with corresponding duties and potential risks, arose from the predicament faced by plaintiffs, which cannot be minimized. For example, maintenance of a continuing and orderly flow of available funds for overall administration of the Medicaid program, proper utilization of available appropriated funds to achieve a balance of fairness for all Medicaid patients entitled to assistance, and accountability for their statutory duty of properly expending appropriated funds, on the one hand, while, on the other hand, the potential risk of jeopardizing federal participating funds, and a “Sword of Damocles” hanging over them due to unknown risks associated with the threatened litigation if they pursued their intended course.

The case of City of Nevada v. Welty, 356 Mo. 734, 203 S.W.2d 459 (1947), bears considerable weight in determining whether plaintiffs have a “legally protectable interest at stake”. The City of Nevada sought a declaratory judgment upholding the validity of an ordinance “declaring stock pens in defendants’ sales pavilion to be a nuisance and ordering their removal.” Defendants in their answer asserted an intention to sue the city or any of its officers who destroyed any of defendants’ property. On appeal, the judgment of the trial court granting the declaratory relief sought by the City of Nevada was affirmed. It is implicit in the opinion rendered on appeal that the City of Nevada was deemed to have had a “legally protectable interest at stake” by reason of defendants’ threat to sue the City and its officers if any of defendants’ property was damaged. By reason of the quasi-legislative power exercised by administrative agencies in the promulgation of rules and regulations, this court empirically notes that such rules and regulations frequently have an impact approaching, if not equal, to that of many ordinances and statutes. A syllogistic approach to the issue immediately at hand, in light of the pleaded facts and attendant ramifications of serious import inescapably flowing therefrom, compels this court to conclude that plaintiffs in the case sub judice, analogous to a municipality seeking to establish the validity of one of its ordinances when threatened with litigation, likewise have a “legally protectable interest at stake” in establishing the validity of the controversial rule or rules in question when threatened with litigation if implemented by a positive course of action.

Attention now focuses on whether plaintiffs have “standing” to bring the action for declaratory judgment, even though their petition otherwise met the requisite essentials for stating a claim for declaratory relief. From the tone of the respective briefs on appeal, it is obvious that “standing”, both below and on appeal, is raised in the sense of whether plaintiffs and the controversial rule or rules come within the purview of §§ 527.010, 527.020, 527.130 and 536.050.1, RSMo 1978. The particular sense in which “standing” is apparently raised in the instant case should not obfuscate the conceptual relation between “standing” and “legally protectable interest”, or conterminous applicability of the analyses and conclusions heretofore and hereinafter set forth.

Section 527.010, supra, empowers the circuit courts of this state, “within their respective jurisdictions” to “declare rights, status, and other legal relation whether or not further relief is or could be claimed.” Section 527.020, supra, reads: “Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.” Section 527.130, supra, reads: “The word ‘person’, wherever used in sections 527.010 to 527.130, shall be construed to mean any person, including a minor represented by next friend or guardian ad litem and any other person under disability lawfully represented, partnership, joint-stock company, corporation, unincorporated association or society or municipal or other corporation of any character whatsoever.” (emphasis added)

Section 536.050.1, supra, is contained in Chapter 536, RSMo 1978, captioned “Administrative Procedure and Review” and reads, insofar as here pertinent, as follows: “The power of the courts of this state to render declaratory judgments shall extend to declaratory judgments respecting the validity of rules, or of threatened applications thereof, and such suits may be maintained against agencies whether or not the plaintiff has first requested the agency to pass upon the question presented.... Nothing herein contained shall be construed as a limitation on the declaratory or other relief which the courts might grant in the absence of this section.” (emphasis added) Defendants contend that § 536.050.1, supra, precludes administrative agencies from initiating declaratory judgment actions regarding the validity and application of their own rules and regulations. In support of this contention, defendants seize upon the language that “such suits may be maintained against agencies” and advance the argument that such statement excludes administrative agencies from invoking declaratory relief regarding the validity of rules and regulations which they themselves promulgate. Defendants’ position conveniently ignores the concluding sentence of § 536.050.1, supra: “Nothing herein contained shall be construed as a limitation on the declaratory or other relief which the courts might grant in the absence of this section.” It is clear from the aforementioned that the legislature did not intend that § 536.050.1, supra, restrict or limit any right to declaratory relief that might otherwise fall within the purview and contemplation of the Declaratory Judgment Act or the general power of courts to entertain declaratory judgment actions. Consequently, there is no escape from revisiting §§ 527.010, 527.020 and 527.130, supra, for the purpose of determining whether or not plaintiffs were entitled thereunder to bring a declaratory judgment action respecting the validity and application of their own rules and regulations.

Defendants contend that since rules and regulations promulgated by administrative agencies are not enumerated in § 527.020, supra, plaintiffs had no “standing” to bring the declaratory action in question. This contention is untenable as § 527.050, RSMo 1978, specifically provides as follows: “The enumeration in sections 527.020 to 527.040, does not limit or restrict the exercise of the general powers conferred in section 527.-010, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.” Defendants’ argument that plaintiffs were not entitled to seek declaratory relief because administrative rules and regulations are not enumerated in § 527.020, supra, necessarily fails by force of statute.

Defendants further contend that plaintiffs are not “persons” as statutorily defined in § 527.130, supra, and therefore lacked “standing” to bring a declaratory action respecting the validity and application of rules and regulations which they promulgated and intended to apply. Significantly, § 527.130, supra, begins “[t]he word ‘person’, wherever used in sections 527.010 to 527.130, shall be construed to mean any person, including ...” (emphasis added), and then continues with an enumeration of examples of various types of entities. The transitive verb “including” does not evince a legislative intent to limit the definition of “persons” solely to the enumerated entities. To the contrary, “include-ed/-ing” is defined in Webster’s Third New International Dictionary (1971 edition) as “to place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate”, (emphasis added) Defendants’ alternate contention necessarily fails by force of definition.

Section 527.120, RSMo 1978, is also of cardinal significance: “This law is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.” Moreover, the following excerpt from State Tax Comm’n v. Administrative Hearing Comm’n, 641 S.W.2d 69, 75 (Mo. banc 1982), affords guidance and support: “This Court has recognized that a ‘declaratory judgment action provides an appropriate method of determining controversies concerning the construction of statutes and powers and duties of governmental agencies thereunder/ ... [citation of authority omitted], and that in a proper case courts have the right, independent of the Declaratory Judgment Act, see §§ 527.010-130, to declare void the rules or regulations of an administrative body, ... [citation of authority omitted]. The declaration of the validity or invalidity of statutes and administrative rules thus is purely a judicial function.”

Defendants cite Polar Ice Cream & Creamery Company v. Andrews, 146 So.2d 609 (Fla.App.1962), in support of their overall argument that plaintiffs lacked “standing” to seek declaratory relief regarding the controversial administrative rule or rules. In Polar Ice Cream & Creamery Company, the Florida Milk Commission and its individual members filed a declaratory judgment action against Polar Ice Cream and Creamery Company respecting the validity of an “order” of the Commission. In filing the declaratory judgment action, the Commission and its members relied on a special venue provision of the Florida Administrative Procedure Act. The Polar Ice Cream & Creamery Company appealed from an order of the trial court denying its motion to dismiss the petition for a declaratory decree on the ground of improper venue. The Florida Court of Appeals, in determining the venue question, “pause[d] to note” that under the Florida Administrative Procedure Act the right to obtain judicial declaration as to the validity or meaning of a rule adopted by a state agency was confined to those persons whose rights were affected and did not extend to the agency which adopted the rule. The Florida Court of Appeals then proceeded to hold that the special venue provision in the Florida Administrative Procedure Act was inapplicable and the cause was remanded to the trial court with directions to enter an order transferring the case to the court of another county having venue under the general venue statutes. There is nothing in the opinion, dicta or otherwise, indicating or suggesting that plaintiffs therein could not maintain a declaratory judgment action respecting the validity of one of their own rules or orders under statutory provisions authorizing declaratory relief apart from the Florida Administrative Procedure Act. Polar Ice Cream & Creamery Company is rejected-as persuasive authority for deciding the instant case. The case of City of Lincoln v. First National Bank, 146 Neb. 221, 19 N.W.2d 156, 158 (1945), although not cited by any of the parties, appears, at least inferentially and in part, to support plaintiffs’ right in the case at hand to seek declaratory relief. “We have held that the term ‘person’ used in the declaratory judgment act is broad enough to include the state or any subdivision thereof_ [citation of authority omitted]. In both Dill v. Hamilton, 137 Neb. 723, 291 N.W. 62, 129 A.L.R. 743, and Lynn v. Kearney County, 121 Neb. 122, 236 N.W. 192, this court approved the views expressed in State v. Grove, 109 Kan. 619, 201 P. 82, 84, 19 A.L.R. 1116, wherein it was said: ‘It is hardly conceivable that any fundamental principle of our government, beyond legislative control, prevents two disputants, each of whom sincerely believes in the rightfulness of his own claim, but each of whom wishes to abide by the law, whatever it may be determined to be, from obtaining an adjudication of their controversy in the courts without one or the other first doing something that is illegal ... if he is mistaken in his views of the law.’ ” This court readily acknowledges that neither Polar Ice Cream & Creamery Company, supra, nor City of Lincoln, supra, constitutes definitive authority, one way or the other, for guidance in resolving the apical issue presented by the instant appeal.

This court is equally quick to concede that none of the parties have cited, and this court’s independent research has failed to disclose, any case authority from this or other jurisdictions which comprehensively addresses and resolves the precise issue of whether an action for declaratory judgment lies for an administrative agency to obtain a judicial resolution of the validity and application of one of its own rules and regulations. Although the task is made more difficult, the lack of prece-dential case authority does not relieve this court of its responsibility to resolve this unique issue. Based upon the foregoing analysis of plaintiffs’ petition for declaratory judgment and apposite statutory provisions in the Declaratory Judgment Act, this court holds that plaintiffs’ petition stated a claim for declaratory relief and that they had “standing” in the sense considered by the trial court to bring the action. Perforce, the trial court erred in dismissing plaintiffs’ petition for declaratory judgment.

Resolution of the third and final ground ostensibly relied on by the trial court for dismissing plaintiffs’ petition for declaratory judgment — lack of jurisdiction over the subject matter — is self-evident. In holding that plaintiffs’ petition stated a claim for declaratory relief and that they had “standing” to bring the same, § 527.010, supra, automatically resolves any doubt in favor of plaintiffs as to subject matter jurisdiction being vested in the trial court to entertain plaintiffs’ petition for declaratory judgment.

The order of the trial court dismissing plaintiffs’ petition is reversed and the case is remanded for further proceedings.

Reversed and remanded.

All concur.

      . The Medicaid Program, 42 U.S.C.A. § 1396, et seq., provides, inter alia, for federal and state sharing of payments for nursing home services provided certain qualified individuals.

      . The legal file discloses that the day after plaintiffs filed their petition for declaratory judgment, defendants, as plaintiffs, filed a multi-count petition against plaintiffs (except plaintiff O'Hara), and others, as defendants, seeking a contra-declaratory judgment regarding the validity, meaning and applicability of 13 CSR 40-81.081(7)(F)1.C., injunctive relief, and attorney fees and compensatory and punitive damages in the amount of One Million Dollars (51,000,000) under 42 U.S.C.A. § 1983.

      . This concluding sentence in § 536.050.1, RSMo 1978, is not contained in § 7 of the Model State Administrative Procedure Act.


text:
    James A. CAPPER, Appellant, v. Ella E. CAPPER, Respondent.
    No. WD 35822.
    Missouri Court of Appeals, Western District.
    Nov. 27, 1984.
    James R. Brown, Brown & Brown, Kansas City, for appellant.
    John R. Shank, Gunn, Hall & Stahl, P.C., Gladstone, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   ORDER

PER CURIAM.

Husband appeals from judgment of dissolution arguing that the evidence failed to demonstrate that the marriage was irretrievably broken, that the award of periodic maintenance to the wife was not supported by the evidence, and that the judge abused his discretion in awarding attorney fees to the wife. Judgment affirmed. Rule 84.-16(b).


author: DIXON, Judge Presiding.

text:
    GOLDEN SUN FEEDS, INC., Appellant, v. Earl DUGAN, d/b/a Dugan and Son Feed, Respondent.
    No. WD35369.
    Missouri Court of Appeals, Western District.
    Nov. 27, 1984.

      Mulford & Cole, Kirksville, for appellant.
    Keith W. Hicklin, Hicklin & Dial, Memphis, for respondent.
    Before DIXON, J.P., and SHANGLER and CLARK, JJ.
   DIXON, Judge Presiding.

Golden Sun appeals from a jury verdict for defendant in its action to recover on the defendant’s guaranty of notes and on a second count based in contract. The issues presented involve admission of evidence and the propriety of an affirmative defense instruction.

Earl Dugan was a retail dealer for Golden Sun Feeds, Inc. Dugan and Golden Sun entered into a Dealer Finance Agreement. Dugan delivered feed to retail customers and took back a signed delivery ticket and invoice containing a promissory note for the customer to execute to Dugan as payee. He then indorsed the notes as guarantor and forwarded them to Golden Sun, which sent Dugan the notes’ face amount. The delivered feed was the property of the dealer, which he purchased on open account from Golden Sun. There was originally a count in Golden Sun’s petition claiming Dugan owed on the open account, but the trial court granted Dugan summary judgment on that count. The arrangement on the handling of the notes was thus very similar to any financing plan in which customer notes are assigned to a lender and guaranteed by the merchant. The transaction was simply a sale of the “paper.”

In 1980, the Welsh Bros. Grain & Livestock Co. executed 19 such notes, which Dugan indorsed and forwarded to Golden Sun, receiving their face value in return. The notes each stated an 11% interest rate and had different maturity dates. Welsh Bros, did not pay off the notes. On April 1,1981, Welsh Bros, executed a promissory note to Golden Sun for a sum equal to the principal and interest on the 19 notes. It had an 18% interest rate, monthly payments of $2,000 a month, and the balance was due on April 1, 1982. The Welshes individually signed the note and individually guaranteed its full payment. Dugan did not know about or consent to the new note. In 1981, before the notes were executed, Welsh Bros, lost its corporate status. The Welshes individually went into bankruptcy. Golden Sun filed against Dugan in two counts. Count I was based on a theory of note guarantee. Count II pleaded a cause of action under the retail sales agreement. The counts were alternative theories for the recovery of the same amount.

The plaintiff first complains that the trial court erred in admitting a photocopy of the April 1 note. Plaintiff urges that his objection to admission of the note on the grounds of violation of the best evidence rule should have been sustained. The photocopy was admitted during the cross-examination of a witness for plaintiff, one Sawyer, plaintiff’s credit manager. In pretrial discovery, defendant had requested documents, and a copy of the note had been produced. At Sawyer’s deposition, a copy was attached and he was questioned on the issue. There is no claim made that the copy varied from the original in any respect. The content of the document is no wise in dispute. The only issue is the legal effect of the April 1 note. When the best evidence issue first arose during cross-examination, the colloquy and questioning demonstrated the original note was in the office of plaintiff’s counsel, some 20 miles from the site of the trial. Plaintiff’s counsel and defendant’s counsel met with the trial court to consider pretrial matters at 7:45 a.m. on the day of trial. Plaintiff filed a so-called “motion in limine” raising the legal issue concerning the admission of the note, but not raising the issue of the best evidence rule. It is obvious the best evidence rule objection was either on the spur of the moment, an afterthought, or an attempt to “sand bag” on the issue.

In these circumstances the trial court was well within its discretion in refusing to apply the stricture of the best evidence rule. Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920, 925 (Mo. banc 1981). There is no issue as to authenticity or accuracy, as both plaintiffs credit manager and a maker of the note identified the exhibit as a true copy of the original.

In three separate points, the plaintiff asserts additional error in the admission of the April note. First, the plaintiff argues that the note was invalid and of no legal force or effect because it purported to be a corporate obligation of Welsh Bros. Grain and Livestock Co., a corporation that had forfeited its charter three months prior to the execution of the note.

Contrary to Golden Sun’s assertion, the April note had legal effect and was properly admitted despite Welsh Bros, having already forfeited its charter. The board and officers had no authority to transact new business in the corporation’s name, but, under Section 351.525 RSMo 1978, as statutory trustees they are held jointly and severally liable for all obligations so incurred. State ex rel. Jay Bee Stores, Inc. v. Edwards, 636 S.W.2d 61 (Mo. banc 1982); Leibson v. Henry, 204 S.W.2d 310 (Mo. banc 1947). The note was not a void instrument; it had vitality and was enforceable against the statutory trustees, as well as against the individuals who signed as co-makers of the note.

Golden Sun also asserts error in permitting testimony about the execution and delivery of the April note on the ground of irrelevancy. As best this may be understood, Golden Sun is claiming the April note could not affect either the Count I claim for guarantee or the Count III claim on the dealer contract. Dugan’s liability as a guarantor was extinguished on two different bases.

Welsh Bros, executed the April note without the knowledge or consent of Du-gan, the guarantor on the original 19 notes. The terms of the April 1 note were different from those of the original 19; including different interest rates, different maturity dates on the debt, and different modes of payment. There were also different parties. Because the guarantor did not consent to a materially different obligation, his liability on the notes was discharged. Eberly v. Lehmer, 48 S.W.2d 151 (Mo.App.1932).

The jury could likewise have found that when Golden Sun accepted the April 1 promissory note from Welsh Bros., the debtors’ liability on the 19 original notes was extinguished. Robert Welsh, one of the guarantors on the note, testified that he believed the new note was intended to replace the original notes and, pursuant to the conditions of the note, Golden Sun accepted two payments, of $2,000 each. This is sufficient to permit the jury to infer that the parties agreed the second note was given to extinguish the obligation on the prior notes because “... such an agreement is not required to be shown by direct testimony but the agreement or intention may be inferred, as in the case of other contracts, from the facts, circumstances, and conduct of the parties.” Wolfson v. Baltimore Bank of Kansas City, 157 S.W.2d 560, 566 (Mo.App.1942).

In urging that the defendant’s affirmative defense instruction was erroneous, Golden Sun first argues there was no evidence to support the instruction.

To support this, Golden Sun recasts its argument with respect to the admissibility of the subsequent note. Golden Sun argues the April note was not evidence of payment and thus could not support the instruction given. What has heretofore been stated is a sufficient answer to this branch of the argument. There was enough in this record to permit a jury finding that the subsequent note was given to and accepted by Golden Sun as payment for the 19 feed notes of Welsh Bros.

Golden Sun further argues that the question of payment of the 19 feed notes is irrelevant to the issues under the contract. It is their position that the payment to the defendant of the face amount of the 19 feed notes gave rise to a separate contractual right independent of the guaranty on the notes.

The contract language in relevant part is as follows:

Upon the due date of any note or contract, the Dealer will be required to forward to GOLDEN SUN FEEDS, INC. the face value of the note plus interest for the term of the note. It should be noted that the due date shown on the note is the responsibility of the Dealer to GOLDEN SUN FEEDS, INC. and will have no bearing on whether or not the farmer has paid his obligation to the Dealer. It is agreed by the Dealer that it is his responsibility to forward to GOLDEN SUN FEEDS, INC. the face value of the note plus interest on or before the due date. The status of the settlement of this note between the GOLDEN SUN DEALER and his customer will have no bearing on the settlement of this note between GOLDEN SUN FEEDS, INC. and the GOLDEN SUN DEALER.

Under this language, the nonpayment of the 19 feed notes is critical to the creation of the contract right. If those notes were paid, the contract creates no further right. The contract is, in effect, a rescript of the note guarantee. There is no suggestion that Dugan in any way settled or compromised the notes. The issue of liability was properly submitted to the jury and the affirmative defense of payment was likewise properly submitted.

Golden Sun cites Popovsky v. Griwach, 238 S.W.2d 363 (Mo.1951), in support of its arguments. That case involves a suit by the payee of a note against the maker and a claim that the delivery of notes by third parties constituted payment. It is wholly different factually than the instant case. Wolf son, supra, is much more analogous factually and its principle controls in this case.

The verdict and judgment are affirmed.

All concur.


author: PREWITT, Chief Judge.

text:
    Rodinald Lee REMINGTON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13644.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 28, 1984.
    Motion for Rehearing Overruled and to Transfer to Supreme Court Denied Dec. 18, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      M. Elise Branyan, Asst. Public Defender, Springfield, for movant-appellant.
    John D. Ashcroft, Atty. Gen., T. Chad Farris, Asst. Atty. Gen., Jefferson City, for respondent.
   PREWITT, Chief Judge.

Movant pled guilty to sodomy by having deviate sexual intercourse with another person less than fourteen years old. § 566.060, RSMo 1978 (since amended). He was sentenced to 10 years’ imprisonment. Under Rule 27.26 he seeks to vacate the judgment and sentence. Following a hearing the trial judge denied the relief sought and movant appeals.

Movant contends in his first point that the trial court erred by finding that movant made his plea of guilty knowingly, intelligently and voluntarily. Movant asserts that he did not because (1) he lacked necessary and material information regarding the Criminal Sexual Psychopath Act, § 202.700-770, RSMo 1978; (2) he believed that his confession would be introduced against him at trial; and (3) he was suffering from a mental defect at the time he entered the plea.

The record supports the trial court’s findings. Movant’s former attorney testified that he had advised him regarding the criminal sexual psychopath law. There was evidence indicating that the confession would have been admissible and movant’s former attorney testified he discussed the confession with movant. He said that they discussed the confession and movant did not tell him of any of the assertions that movant now says invalidates the confession.

Although there was evidence that mov-ant attempted to commit suicide and was in need of psychiatric treatment, there was no showing that he suffered from any mental disease or defect which would prevent him from being able to enter a voluntary plea of guilty. This point is denied.

In his second point movant contends that his counsel was ineffective in not advising him of the criminal sexual psychopath law; in not petitioning the court or the Newton County Prosecuting Attorney for treatment under that act; in not investigating the case and interviewing witnesses; and in not moving to suppress his confession.

As previously noted, there was evidence that movant had been advised of the criminal sexual psychopath law and that in discussion with his attorney movant had not presented any basis for invalidating the confession. Movant’s attorney said he urged the prosecuting attorney to proceed under the criminal sexual psychopath law and the prosecutor refused.

There was no showing that counsel was ineffective in his manner of investigation nor that any further investigation would have been helpful. To show ineffective assistance of counsel in failing to interview witnesses or otherwise investigate, it must be shown that such reasonable efforts would have aided movant’s position. Fields v. State, 596 S.W.2d 776, 778 (Mo.App.1980). No evidence indicated this. The second point is denied.

In his remaining point movant contends that the trial court erred when it failed to make findings of fact and conclusions of law regarding movant’s claim that the prosecutor of Newton County abused his discretion by not filing a petition under the criminal sexual psychopath law.

The trial court found that the refusal of the prosecuting attorney to proceed under the criminal sexual psychopath law was within his discretion. The cases state that such proceedings were within the prosecutor’s discretion. Davis v. State, 482 S.W.2d 468, 471 (Mo.1972); Lyle v. State, 617 S.W.2d 403, 405 (Mo.App.1981). However, that discretion must be exercised in good faith and not arbitrarily. State ex rel. Kirks v. Allen, 255 S.W.2d 144, 148 (Mo.App.1953).

Although we agree that for someone with movant’s problems treatment is often preferable to imprisonment, on the record we cannot say that the prosecutor abused his discretion under the Act. Movant did not show and does not contend that the prosecutor had reason to believe he was “considered dangerous to others”. See § 202.700.

Moreover, even had the prosecutor proceeded under that act, its use is not a defense to a criminal action, § 202.750, and this charge might have proceeded. See § 202.730; Garrett v. State, 554 S.W.2d 462, 465-466 (Mo.App.1977). Point three is denied.

The judgment is affirmed.

HOGAN, P.J., and MAUS and CROW, JJ., concur.

       Since repealed, see Laws of Mo.1980, pp. 503, 508 § 1; § 632.475, RSMo Supp.1983. All statutory references hereafter are to RSMo 1978.