author: CHANNING D. BLAEUER, Special Judge.

text:
    Gloria L. MILLER, Plaintiff-Appellant, v. Michael G. WEBER, Defendant-Respondent.
    No. 48068.
    Missouri Court of Appeals, Eastern District, Division Five.
    March 26, 1985.

      James S. Collins, St. Louis, for plaintiff-appellant.
    Mary Virginia Schmidtlein, St. Louis, for defendant-respondent.
   CHANNING D. BLAEUER, Special Judge.

Plaintiff brought this action for personal injuries sustained in an auto accident, seeking damages in the amount of $140,000. The evidence adduced at trial showed that on July 5, 1980, the automobile plaintiff was driving was struck by one driven by defendant, after defendant failed to obey a stop sign.

The jury found for plaintiff on the issue of liability and assessed damages at $30,-000, reduced by $2,175.73 by the trial court to $27,824.77 for advance payments. From this judgment in her favor, plaintiff appeals. We affirm.

Plaintiff, in her two points relied on, assigns as error the admission over objection of certain testimony of defendant’s examining physician. As the jury returned a verdict in plaintiff’s favor on both issues of liability and damages, we surmise that the gist of plaintiff’s complaint is inadequacy of the damage award.

Defendant urges that we not reach the merits of plaintiff’s appeal, as the issue of inadequacy of the verdict was not mentioned in plaintiff’s brief. Defendant argues that Miller v. Haynes, 454 S.W.2d 293 (Mo.App.1970), which requires a defendant to raise the excessiveness of the verdict, as a prerequisite to appellate review of matters of evidence which are relevant to the issue of damages, likewise requires that a party who is awarded damages at trial raise the inadequacy of the verdict in a separate point, as a prerequisite to review of evidentiary matters related to damages. This argument was squarely met by this Court in State ex rel. State Highway Commission v. Gravois Farmers Club, 483 S.W.2d 786 (Mo.App.1972), wherein we held that review of the adequacy of the verdict does not have to be raised in a separate point relied on before an appellate court will review evidentiary matters related to damages.

Hence, we turn to the merits of plaintiff’s assignments of error.

At trial, defendant called a medical expert witness who had examined plaintiff, and whose testimony was in part as follows:

Q. All right. Doctor, I want to ask you something not particularly about this case. [Emphasis added.] Have you treated many people for neck injuries in the course of the years?
A. Yes.
Q. And, assume that a person has their neck injured in an auto accident and that even the first x-ray taken shortly afterward and all repeat x-rays taken after that are perfectly normal for the cervical spine showing even in the beginning no loss of lordotic curve; assume that the person is subjected to a cervical myelo-gram which is reported as a normal cervical myelogram and to an EMG which is reported as a normal EMG. Assume that the injury is diagnosed as cervical strain or soft tissue injury. Are you familiar with that type of injury?
A. Yes.
Q. Now, in your practice and in your familiarity with that type of injury generally how long would a person be off work following that type of injury if the work involves lifting we’ll say or even overhead lifting?
Mr. Collins: I object to that as being speculative, Your Honor.
Mr. Evans: He can be ...
The Court: Overruled ...
Q. (by Mr. Evans) How long in your judgment would that type of injury result in being off work?
Mr. Collins: Further I would object there is no foundation laid for this question as relates to this plaintiff. He’s talking about other people that the doctor treated which is completely irrelevant to this plaintiff and for him to make a conclusion it invades the province of the jury.
The Court: Overruled.

The witness then answered with an opinion to the effect that the person to whom the hypothetical question applied would be off work a period of time which was considerably shorter than that which plaintiff remained off work. Thus, plaintiff’s assignment of error which we infer to be inadequacy of damage award stems from the trial court’s overruling of the objection to the admission of this testimony.

Plaintiff asserts in her brief that the trial court erred as a result of “defendant’s examining doctor being permitted to answer questions which defendant’s attorney advised were ‘something not particularly about this case,’ ” thereby injecting “highly prejudicial evidence into the case based upon irrelevant facts which were not in evidence.” We disagree.

First, plaintiff’s use of defendant’s attorney’s phraseology asking for “something not particularly about this case” is taken out of context. A review of the portion of the transcript quoted above shows that the question by defendant’s counsel from which plaintiff drew the quoted phrase was posed to establish the witness’ expertise and familiarity with the type of injury sustained by plaintiff. The question containing the objeeted-to language, “I want to ask you something not particularly about this case” is simply preamble to the subsequent hypothetical question, and did not introduce any irrelevant facts into the case.

Where, as here, an expert witness is called upon to express an opinion based on facts of which he has no firsthand knowledge, he must be asked by use of a hypothetical question to assume those facts. Harp v. Illinois Central Railroad Co., 370 S.W.2d 387 (Mo.1963). The facts hypothesized in such a question must be supported by competent evidence. Id. at 391.

Whether defendant’s hypothetical question was supported by evidence is not disputed, and if it was, plaintiff has failed to provide us with a transcript of plaintiff’s medical testimony with which to make that determination. We find that the use of the phrase, “I want to ask you something not particularly about this case,” in the first question used in connection with qualifying the expert, did not carry the contamination of “irrelevant facts” into the next series of questions and their answers, and that the trial court committed no error in overruling plaintiff’s objection.

Plaintiff also assigns as error that defendant elicited opinion testimony from his medical expert which was not explicitly stated as being based upon a, reasonable degree of medical certainty. Plaintiff cites us to no authority which mandates the use of these verbal passwords in a question propounded to an expert witness. The trial court is vested with substantial discretion in the admission of expert testimony. Ponciroli v. Wyrick, 573 S.W.2d 731 (Mo.App.1978). Moreover, the record discloses that plaintiff conducted a long and searching cross-examination of defendant’s medical expert, and had every opportunity to inquire whether the expert’s opinion was based upon reasonable medical certainty. The trial court did not abuse its discretion.

The evidence in question going to the issue of damages was properly admitted by the trial court, and the jury responded with a verdict in favor of plaintiff in the amount of $30,000. We have no reason to disturb the jury’s resolution of that issue.

The judgment is affirmed.

CRANDALL, P.J., and JEAN C. HAMILTON, Special Judge, concur.


source: Caselaw Access Project

author: CRANDALL, Judge.

license: Public Domain

text:
    STE. GENEVIEVE COUNTY, Appellant, v. Edwin K. FOX and Melvin Cole, a Partnership, d/b/a Fox & Cole Consulting Engineers, Respondents.
    No. 48746.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 26, 1985.

      Francis J. Elpers, Ste. Genevieve, Ed. D. Weakley, St. Louis, for appellant.
    Clinton B. Roberts, Farmington, for respondents.
   CRANDALL, Judge.

Plaintiff, Ste. Genevieve County, appeals from the entry of summary judgment in the amount of $28,662.60 plus interest in favor of defendants, Edwin K. Fox and Melvin Cole, a Partnership, d/b/a Fox & Cole Consulting Engineers, on their counterclaim. Plaintiff had previously settled its action and dismissed its claim with prejudice. On appeal plaintiff contends the trial court erred in granting summary judgment because issues raised by plaintiff’s affirmative defense to the counterclaim were not precluded by settlement and dismissal of plaintiff’s claim; and that regardless of the effect of the earlier settlement, defendants failed to prove all elements of their counterclaim. We reverse and remand.

Plaintiff filed suit in October of 1983 alleging negligence and breach of contract by defendants because of their failure to perform professional services in connection with a property mapping program for plaintiff. Defendants filed a counterclaim, alleging that at the time plaintiff terminated the contract, it owed defendants $28,664 for services already performed, and that by refusing to pay that sum plaintiff had breached the contract.

In January of 1984, the parties settled plaintiff's claim and entered a Stipulation for Dismissal of Plaintiff’s Cause of Action Only. The Stipulation states:

Come now plaintiff Ste. Genevieve County and defendant Fox & Cole Consulting Engineers and stipulate and agree that the plaintiff’s cause of action, having been compromised and settled, is dismissed with prejudice.
It is expressly agreed and understood by all parties that defendant’s counterclaim is not dismissed but is to remain intact and the dismissal of plaintiff’s claim is to have no bearing on the prosecution of defendant’s counterclaim.

In May of 1984, defendants moved for summary judgment on the counterclaim on the theory that the dismissal with prejudice of plaintiff’s claim acted'as a bar to plaintiff’s ability to defend against the counterclaim, and based on the affidavits on file and requests for admissions to which plaintiff did not respond. The trial court granted defendants’ motion for summary judgment.

We look first to determine if defendants were entitled to summary judgment, assuming that plaintiff is not barred from defending against the counterclaim.

In ruling on a motion for summary judgment, the trial court and the appellate court must scrutinize the record in the light most favorable to the party against whom the motion for summary judgment was filed and against whom judgment was rendered, and must accord to that party the benefit of every doubt. Summary judgment is a drastic remedy and is therefore inappropriate unless the prevailing party has shown by unassailable proof to be entitled thereto as a matter of law. If a genuine issue of fact exists, summary judgment cannot be granted. The genuine issue of fact exists when there is the slightest doubt about the facts. However, the fact in doubt must be a material one which has legal probative force as to a controlling issue.

First National Bank of St. Charles v. Chemical Products, Inc., 637 S.W.2d 373, 375 (Mo.App.1982).

It is clear defendants’ counterclaim and motion for summary judgment are based on a contract theory of recovery. Defendants assert nonpayment under the contract for services rendered prior to termination of the agreement by plaintiff.

Plaintiff has raised a genuine issue of fact by asserting that defendants breached the contract by failing to provide services of a quality required by the contract. This is a material fact which goes to defendants’ right to recover under the contract. Plaintiff has raised the issue by way of an amended answer to the counterclaim and the affidavit of Robert Pirrie, an expert who stated he had to redo work done by defendants because it was not done in a professional and workmanlike manner.

Defendants claim they are entitled to summary judgment because plaintiff failed to respond to requests for admissions. Rule 59.01(a). While the requests for admissions did ask plaintiff to admit that defendants billed plaintiff for services performed under the contract and that plaintiff paid for a portion of these services, the requests did not ask plaintiff to admit the services were of the quality required by the contract.

Since we find there was a genuine issue as to a material fact, we now consider whether plaintiff is barred from defending against the counterclaim. Defendants claim that plaintiff cannot raise the issue of the quality of the work performed due to the stipulation of the parties which dismissed plaintiff’s cause of action with prejudice.

Stipulations “are controlling and conclusive, and courts are bound to enforce them.” Pierson v. Allen, 409 S.W.2d 127, 130 (Mo.1966). Stipulations should be interpreted in view of the results the parties were attempting to accomplish. Id. The stipulation here was predicated upon a settlement of plaintiff’s claim. To determine the scope of the settlement, we look to “the intent of the parties, ascertained from the language used and from the circumstances surrounding the settlement.” Stoddard v. Wilson Freight, Inc., 651 S.W.2d 152, 156 (Mo.App.1983).

The intent of defendants by the language of the stipulation is clear. They wanted to reserve the right to pursue the counterclaim. Defendants claim additionally that the parties intended, by agreeing to allow defendants’ counterclaim to be preserved while settling plaintiff’s suit, to waive any defenses plaintiff might have to the counterclaim. We disagree.

The second and final paragraph of the stipulation would have been meaningless if plaintiff did not intend to preserve its right to defend against the counterclaim. The counterclaim could have been settled at the same time as the plaintiff’s claim if the plaintiff did not plan to defend against it. In addition, a release signed by plaintiff stated:

NOW THEREFORE, IN CONSIDERATION of the Settlement Agreement attached hereto, and made a part hereof, We do hereby release, acquit, and forever discharge Fox & Cole Consulting Engineers and Continental Casualty Company, their agents, servants, employees, successors, and assigns who might be liable of and from any and all actions, causes of action, claims, offsets, demands, damages on account of, or in any way growing out of, limited to, work performed pursuant to Articles of Agreement between Fox & Cole Consulting Engineers and Ste. Genevieve County dated March 13, 1981, and as amended.
It is further understood and agreed that the settlement is the compromise of a doubtful and disputed claim and is not to be construed as an admission of liability, which is expressly denied.

The release does not state plaintiff is waiving any defenses it might have to defendants’ counterclaim.

Defendants’ assertion that plaintiff is barred by res judicata from defending against the counterclaim also fails. Defendants argue plaintiff’s defense constitutes a cause of action, and since the defense uses a theory (breach of contract) used in plaintiff’s original cause of action which was settled, that res judicata bars the defense.

Res judicata, or claim preclusion, precludes the same parties from relitigat-ing the same cause of action, while collateral estoppel, or issue preclusion, precludes the same parties from relitigating issues which had been previously adjudicated. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 717 (Mo. banc 1979).

Rule 67.03 states “[a] dismissal with prejudice bars the assertion of the same cause of action or claim against the same party.” It is also the rule that “[¡judgments (including judgments by agreement) are conclusive of the matters adjudicated and are not subject to collateral attack except upon jurisdictional grounds.... And such a judgment ... is a bar to reliti-gation (in a later suit) of the issues so determined under the doctrine of collateral estoppel and res judicata.” Owen v. City of Branson, 305 S.W.2d 492, 497 (Mo.App.1957).

Defendants erroneously contend that plaintiff’s defense of the counterclaim constitutes a cause of action—the same cause of action brought by plaintiff in the original suit which was settled. “A cause of action consists of at least two essential elements; the wrongful invasion of a right, and the privilege or power which law or equity gives to the injured person to seek and obtain redress.” Giloti v. Hamm-Singer Corp., 396 S.W.2d 711, 713 (Mo.1965) (emphasis added). Plaintiff here is not the “injured person.” Plaintiff is not bringing “a cause of action.” It is defending against an action. Consequently, res judicata does not bar plaintiff from defending against this action.

We therefore hold that the trial court erred in granting defendants’ motion for summary judgment. The judgment of the trial court is reversed and the cause remanded.

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

      . Defendants’ brief in a footnote claims plaintiff did not obtain leave of court to amend its answer as required by Rule 55.33(a), and that therefore the failure of consideration defense was never properly before the court. Defendants repeat this contention in another footnote, but then concede plaintiff sought to raise the issue of quality of the work in the affidavit of Robert Pirrie.
      Defendants have not incorporated this discussion as a Point Relied On. Even if they had, it would appear defendants have waived any objection to plaintiffs raising of the issue of consideration. Rule 74.04(c) states: “Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Defendants have waived any objection to the affidavit by failing to move to strike or object in the trial court. Westbrook v. Mack, 575 S.W.2d 921 (Mo.App.1978); Gal v. Bishop, 674 S.W.2d 680, 683 (Mo.App.1984). By the affidavit alone, plaintiff has shown a genuine issue of material fact, so it does not appear critical that the amended answer was not properly filed. Furthermore, it appears defendants have also waived any objection to the amended answer by not objecting to it in the trial court or moving to strike it when it was filed. Rickard v. Rickard, 616 S.W.2d 95, 96 (Mo.App.1981) (where the court allowed the amendment, while here there is no record of any court response to the filing of the amended answer).

      . In the present case there was no stipulation as to liability or any other fact which might have been determined had there been a trial. Since no issues were actually determined, clearly collateral estoppel is not applicable to prevent determination of any issues in the suit on the counterclaim.


author: REINHARD, Chief Judge.

text:
    Henry F. CLASSE, Appellant, v. Fairs & Evelyn DALTON, Respondents.
    No. 48801.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 26, 1985.
    James A. Stemmier, St. Louis, for appellant.
    Fairs Dalton, pro se.
   REINHARD, Chief Judge.

Plaintiff sued for damages to personal property. The trial court sustained defendants’ motion to dismiss, and plaintiff appeals. We reverse and remand.

The record on appeal consists only of the petition, defendant’s motion to dismiss, the court’s order sustaining the motion, the docket sheet minute entries, and the notice of appeal. Plaintiff’s petition refers to no other case. However, defendants moved to dismiss the action for the sole reason that “it arises out of an occurrence that has already been litigated in the cause of Fairs Dalton and Evelyn Dalton vs. Henry F. Classe, cause number 220, which was disposed of in the Circuit Court of Jefferson County, Missouri, on or about the 9th day of December, 1977.” No affidavit or other accompanying documents appear. The trial court entered the following order on defendant’s motion: “Defendant’s Motion to Dismiss, heretofore argued to and considered by the Court, is sustained.”

This ease is controlled by Rippe v. Sutter, 292 S.W.2d 86 (Mo.1956). In Rippe v. Sutter, the trial court heard argument and then sustained the defendant’s motion to dismiss on res judicata grounds. In its order, the trial court referred to the prior actions on which its order was based. However, no evidence of the prior actions was adduced on the record. In reversing the trial court’s order of dismissal, our Supreme Court stated:

[BJecause we are bound by the record before us, we must assume that no evidence was adduced at the time the motions were argued and consequently no proof was before the court to justify the sustention of the motion on the ground of res judicata....
It may well be that the trial court in fact ruled the motion only after examining the files of his court ..., and it may be that the trial court took judicial notice of those records. The difficulty is, however, that nothing ... enables us to determine what it was the trial court judicially noticed, and, consequently, to determine whether the matters of which the court may have taken judicial notice did cause the issues in the instant case to be res judicata. Nor does the factual situation here enable us to apply a presumption of right action on the part of the trial court. That is because ... the record by which we are bound does not even indicate that any evidence was adduced. We are forced to conclude, therefore, that the trial court erred in dismissing the petition.

292 S.W.2d at 89-90.

As in Rippe, we conclude from the record that the trial court erred in dismissing the action because there was no evidence to support the dismissal.

Reversed and remanded for further proceedings.

DOWD and CRANDALL, JJ„ concur.

      . Defendants Dalton have filed no brief on this appeal.


author: KAROHL, Judge.

text:
    Beverly J. BARRETT, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD CO., Defendant-Respondent.
    No. 48855.
    Missouri Court of Appeals, Eastern District, Division One.
    March 26, 1985.

      Kennard Bruce Woods, Chesterfield, for plaintiff-appellant.
    Theodore Joseph Williams, St. Louis, for defendant-respondent.
   KAROHL, Judge.

Plaintiff appeals St. Louis City circuit court dismissal of her cause of action for personal injuries and property damage on the ground of forum non conveniens.

The petition alleges that plaintiff was injured while operating her motorcycle along Independence Street in Cape Girar-deau, Missouri. She charges negligence in the design, construction and defective maintenance of defendant’s railroad crossing, tracks and right-of-way. Plaintiff also alleges that defendant’s conduct violates § 389.610 RSMo 1978 and that defendant failed to warn travelers of the existing hidden danger. When plaintiff encountered the hazard her motorcycle decelerated violently and she was thrown to the pavement sustaining leg and other injuries.

The casualty occurred on August 28, 1983. Suit was filed February 10, 1984. On April 19,1984 defendant railroad moved to dismiss on the basis of the doctrine of forum non conveniens. Defendant’s counsel filed verified suggestions to support the motion. Plaintiff countered by affidavit of counsel. We gather the basic facts from these sworn statements: (1) Plaintiff lives in St. Clair County, Illinois; (2) defendant is a Delaware corporation with offices, agents, property and operations in St. Louis, Missouri and is amenable to service in Cape Girardeau County, Missouri; and, (3) the incident occurred in Cape Girardeau County which is 120 miles (plaintiff’s view) or 150 miles (defendant’s view) from St. Louis. (A mileage chart on the official 1983-84 Missouri map indicates the distance to be 115 miles).

Defendant’s verified statement suggests a number of other matters based on information and belief: (1) All events mentioned in the petition occurred in Cape Girardeau County and did not arise out of or have any connection with any transactions or occurrences in St. Louis, Missouri; (2) no witnesses, exhibits or any other thing related to the case is located in or near St. Louis; (3) all non-medical witnesses’ testimony that “is or may be material” will come from witnesses who reside in Cape Girar-deau; (4) medical witnesses with knowledge of plaintiff’s medical history or their treatment after the incident and whose presence would be desired at trial reside outside of the City of St. Louis (which would almost certainly preclude their use as live medical witnesses during trial); (5) hospital and medical records are located outside of St. Louis; (6) “It may be necessary” to offer testimony of personnel residing near Cape Girardeau to explain diagrams of the scene with the resulting additional expense to bring them to St. Louis; (7) trial in St. Louis would make it impossible for the jury to view the scene “if such viewing would become necessary or desirable.”; and, (8) an already crowded St. Louis circuit court docket would be overloaded by cases like this one.

Plaintiff contends that the court abused its discretion in dismissing her petition by applying the doctrine on these facts and that the decision is premature because the motion precedes any discovery that may confirm the lack of inconvenience to any party or the court should the case remain in St. Louis. She argues: (1) Plaintiff, plaintiff’s counsel and defendant’s counsel are all located in or near to St. Louis; (2) defendant has offices and agents in St. Louis and there is no allegation of harassment of defendant or forum shopping; (3) some of plaintiff’s doctors are located in St. Clair County, Illinois, closer to St. Louis than Cape Girardeau; and, (4) no witnesses are beyond compulsory process issued from the City of St. Louis circuit court.

Defendant argues: (1) Plaintiff cannot bear her burden to demonstrate an abuse of discretion; (2) that justice is best served by applying the doctrine on these facts; and, (3) the doctrine serves a useful purpose in protecting the court from a free choice of forum by plaintiff.

The factors to be considered by the trial court in applying the doctrine of forum non conveniens are listed in State ex rel. Chicago, Rock Island & Pacific Railroad Co. v. Riederer, 454 S.W.2d 36 (Mo. banc 1970). Additional criteria are noted by the United States Supreme Court in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Defendant maintains that the trial court reached the correct result in applying these factors to the facts of this case.

The doctrine of forum non con-veniens was first recognized by our supreme court in Elliott v. Johnston, 292 S.W.2d 589, 593 (Mo.1956) and was developed in Loftus v. Lee, 308 S.W.2d 654, 661 (Mo.1958). We recently approved an intrastate application of the doctrine in State ex rel. Blankenship v. Saitz, 682 S.W.2d 116 (E.D.Mo.App.1984). It is “... to be applied with caution and only upon a clear showing of inconvenience and when the ends of justice require it.” Loftus v. Lee, 308 S.W.2d at 661. “The doctrine cannot be applied by the trial court unless the court in which the action is filed has jurisdiction of the subject matter and venue is proper.” Blankenship, at p. 117. By its nature the decision must be on a case by case basis but the basic factors guiding the trial court have been determined.

Those factors include place of accrual of the cause of action, location of witnesses, the residence of the parties, any nexus with the place of suit, the public factor of the convenience to and burden upon the court, and the availability to plaintiff of another court with jurisdiction of the cause of action which affords him a forum for his remedy.

Riederer, 454 S.W.2d at 39. In addition “the availability of compulsory process for the attendance of unwilling witnesses, the costs of obtaining the attendance of willing witnesses, and the opportunity to view the premises at which the injury occurred” are factors noted by the United States Supreme Court in Gulf Oil Corporation v. Gilbert, 67 S.Ct. at 843. Another consideration which may be primary and overriding is a finding that plaintiff's chosen forum is so unrelated to the cause of action, plaintiff’s residence, and defendant’s office or residence as to constitute “fraudulent procurement” i.e. harassment. Such finding is not a prerequisite to application of the doctrine but it would suffice to justify dismissal. Gulf Oil Corporation v. Gilbert, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062.

The principles of jurisdiction and venue described in statute and Supreme Court rule do not confer an unlimited right in the plaintiff to select the forum, “although a plaintiff’s freedom to select a forum'is significant ...” Moore v. Chicago & Northwestern Transportation Company, 99 Ill.2d 73, 75 Ill.Dec. 423, 426, 457 N.E.2d 417, 420 (1983). In Torres v. Walsh, 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601, 607 (1983) the court approved intra-state application and gave as a justification the avoidance of unnecessary hardship, promotion of fair play and to discourage “jury” shopping.

We review for abuse of discretion, which occurs “only if the ruling is against the logic of the circumstances and if reasonable men could not differ as to the decision.” Carwell v. Copeland, 631 S.W.2d 669, 670-671 (Mo.App.1982). Absent a finding of “fraudulent procurement” the court should honor the plaintiff’s choice of forum if reasonable men could differ with the decision to dismiss. Id.

The only fact known to the trial court which connects plaintiffs cause of action with Cape Girardeau County is that the event occurred there. No non-medical witnesses have been identified. Defendants suggest only that witnesses “whose testimony may be material” reside in that area. If there are such witnesses their number, if any, and unavailability to travel 115-150 miles is unknown. The location of evidence concerning the design, construction and maintenance of the roadway intersection with the railroad tracks in question is unknown but may be in St. Louis. The same is true of medical witnesses who may be called by either party. They are not yet identified. Further, remoteness may be viewed in terms of both distance and time to travel the distance. The distance is approximately 115 miles and the travel time at 55 miles an hour just over two hours. By modern methods of travel the distance is not great.

No unusual circumstance has been shown to make it clear that a viewing of the scene by the jury may be advisable or likely. The event of jury viewing is rare.

It is not clear that this suit is a precursor of a type of suit that would flood the City of St. Louis circuit court with like cases. Nor does it present a threat to timely management of other eases within the city. Defendant suggests that a period of one year between the time a case is at issue in the City of St. Louis and the time of trial is not unusual. Even if true that fact does not establish or prove inconvenience on the courts or the residents of the City of St. Louis one of whom is the defendant. There is no apparent inconvenience based upon presently developed facts for either party or their local St. Louis counsel. Plaintiff resides nearby and defendant has offices and agents in the city. Further there is no evidence of “fraudulent procurement” or harassment in the St. Louis forum.

Plaintiff may proceed elsewhere. However, suit in Illinois would be less related to the cause of action occurring in Cape Girar-deau County than the City of St. Louis and the parties would not have the convenience of compulsory process. All Missouri witnesses reside within 115 miles (approximately) and two and one-half hours of travel time from either Cape Girardeau or St. Louis (depending on place of suit) and are within the range of compulsory process.

We find that dismissal at the pre-discovery stage was an abuse of discretion. Suit in the “home” city of defendant’s offices may or may not become inconvenient for the railroad. No inconvenience to the court or the city has been established, even as to defendant as one of its “citizens.” We do not decide that the doctrine may not be applied at a later stage should it develop that many Cape Girardeau witnesses exist and have material evidence that could be better presented there or other factors may become supportive of the application of the doctrine. However, we do not suggest the requirement of a transfer. The decision remains with the trial court but it must be made on existing facts and not what may occur.

We distinguish Blankenship where plaintiff sued for medical malpractice in St. Louis County when treatment was in Cole County and where plaintiff and all defendants were located in or near Cole County. The one corporate defendant with a registered agent located in the County of St. Louis in fact did business in Cole County and had no other connection with the County of St. Louis.

Respondent railroad has correctly argued to this court that the doctrine of forum non conveniens was recognized at approximately' the same time by Illinois and Missouri and that the development of the doctrine in both jurisdictions has been consistent. Accordingly it relies on a number of Illinois cases where the doctrine was followed. The common thread of these cases was that the only connection with the chosen forum and the suit was defendant’s local availability of service. Each involved the application of law foreign to the jurisdiction and the elements of inconvenience were established facts.

We find the opinions of our supreme court in Loftus v. Lee, 308 S.W.2d 654 (Mo.1958) and of this court in Ingle v. Illinois Central Gulf Railroad Co., 608 S.W.2d 76 (Mo.App.1980) more on point. In Loftus the supreme court reversed application of the doctrine where a Kansas plaintiff sued a Kansas defendant for personal injuries sustained in Kansas. The only contact with Missouri was service on a defendant who attended school in Missouri. The court there held that the doctrine of forum non conveniens should “be applied with caution and only upon clear showing of inconvenience of forum and when the ends of justice require it.” (emphasis added) 308 S.W.2d at 661. In Ingle the court considered complaints similar to those of respondent and found that the preliminary complaints did not prove to be prejudicial or to present the predicted difficulties. 608 S.W.2d at 79. This result is as likely if not probable here. Unless the fears mature into demonstrable inconvenience amounting to unfairness, application of the doctrine is an abuse of discretion at the motion stage of the proceeding.

We reverse and remand.

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

      . Lowe v. Norfolk & Western Railway Company, 124 Ill.App.3d 80, 79 Ill.Dec. 238, 463 N.E.2d 792 (1984); Moore v. Chicago & Northwestern Transportation Company, 99 Ill.2d 73, 75 Ill.Dec. 423, 426, 457 N.E.2d 417, 420 (1983); Wieser v. Missouri Pacific Railway Company, 98 Ill.2d 359, 74 Ill.Dec. 596, 456 N.E.2d 98 (1983); Torres v. Walsh, 98 Ill.2d 338, 74 Ill.Dec. 880, 456 N.E.2d 601 (1983); Petersen v. Chicago & North Western Transportation Company, 117 Ill.App.3d 163, 72 Ill.Dec. 722, 453 N.E.2d 27 (1983); Espinosa v. Norfolk & Western Railway Company, 86 Ill.2d 111, 56 Ill.Dec. 31, 427 N.E.2d 111 (1981).


text:
    Keith Lamarr ADAMS, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 48877.
    Missouri Court of Appeals, Eastern District, Division One.
    March 26, 1985.

      Joseph V. Neill, St. Louis, for plaintiff-appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   KAROHL, Judge.

This is a post conviction relief proceeding under Supreme Court Rule 27.26. Appellant pled guilty to forcible rape and sodomy. The court imposed consecutive sentences of ten years on the rape charge and eight years for the sodomy. In this proceeding the parties stipulated that the sentencing judge indicated he would have made the sentences concurrent except for his interpretation of § 558.026.1 RSMo Cum.Supp.1984. The sentencing judge concluded that this section mandated consecutive sentences for rape and sodomy committed at the same time. The trial court in this proceeding denied appellant’s motion to vacate judgment and sentence. We affirm.

Appellant’s sole point on appeal questions whether § 558.026.1 RSMo Cum. Supp.1984 mandates consecutive sentences for the offenses of rape and sodomy or whether the sentencing court has discretion to impose concurrent sentences for two sexual offenses.

Although appellant does not expressly claim the imposition of consecutive sentences is a violation of his constitutional rights where the sentences were within the authorized range of punishment we infer such and review on the merits. See State v. Baker, 524 S.W.2d 122 (Mo. banc 1975); and Webb v. State, 621 S.W.2d 113 (Mo.App.1981).

At the time of the denial of relief by the trial court and during the briefing period for this appeal the question presented had not been previously decided by an appellate court of this state. This issue was presented to this court in State v. Toney, 680 S.W.2d 268 (Mo.App.1984) together with other issues on a direct appeal from consecutive life sentences on convictions for forcible rape and sodomy.

In the Toney case defendant argued that this section mandated consecutive sentences only where the defendant was charged with a sex crime and one or more non-sexual offenses. We rejected this argument and held that § 558.026.1 RSMo Cum.Supp.1984

is not so limited in scope and requires consecutive sentences for the sexual offense where the defendant is convicted of a sex crime and one or more offenses which occurred at the same time as, or during, the sexual offense, regardless of whether the other offense or offenses were also sex crimes.
The phrase ‘for other offenses’ is nowhere expressly defined and its plain meaning in the context of the statute is any offense other than the particular sexual offense which is referred to in the statute. Thus, even if the other offense is another sexual offense, the sentences must be served consecutively, (emphasis added)

Toney, at 273.

Under this section, the sentencing court must impose consecutive sentences when a defendant is charged with a sex crime and a non-sex crime. When a defendant is charged with a sex crime and two or more non-sex crimes the sentencing court may make the non-sex crime sentences concurrent or consecutive to one another but must make these sentences consecutive to the sentence on the sex crime. When a defendant is charged with a sex crime and a second sex crime and one or more non-sex crimes the sentencing court must first determine whether the non-sex crimes are to be concurrent or consecutive to one another but must make the sentence on the non-sex crimes consecutive to the sentence on the other sex crime which must be consecutive to any other sex crime. We interpret the provisions of this section to isolate sex crimes so that the sentencing for such offenses will be more severe which results from consecutive sentencing for sexual offenses that occur during or at the same time as any other offense whether a sex crime. or a non-sex crime. It would therefore be illogical to construe this section to mandate consecutive sentences for rape and robbery and not rape and sodomy. If the opposite view were adopted then robbery in the discretion of the trial court may be punished more severely than sodomy when prosecuted in conjunction with a rape charge. We find that view inconsistent with the general requirement of § 558.026.1 RSMo Cum.Supp. 1984 that sex crimes be punished more severely. This section removes from the trial court the option of sentencing sex crimes concurrently. Formerly § 558.026.1 Laws 1977 effective January 1, 1979, provided that multiple sentences on any crime would run concurrently unless the court designated consecutive sentences. Section 558.026.1 was amended by Laws 1980 to its present form and indicates the legislative intent for consecutive sentences for the sex crimes expressly mentioned in this section.

Accordingly we affirm the judgment denying post conviction relief.

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


text:
    Brandy PAYAN, a minor, By and Through her Next Friend, Sandra PAY-AN, and Sandra Payan, Individually, Plaintiffs-Appellants, v. Robin HEISE, M.D., and Carolyn Seim-ers (Martin), et al., Defendants-Respondents.
    No. 48889.
    Missouri Court of Appeals, Eastern District, Division One.
    March 26, 1985.

      Leonard P. Cervantes, St. Louis, for plaintiffs-appellants.
    Parks G. Carpenter, St. Louis, for defendants-respondents.
   KAROHL, Judge.

Plaintiff Brandy Payan, a minor, by and through her Next Friend, Sandra Payan, her natural mother, sued defendants St. Louis County Department of Health and Medical Care; E.O. Rutledge, its director; St. Louis County; Dr. Robin Heise, the treating physician; and Dr. Carolyn Seim-ers (Martin), Chief of Service of Obstetrics and Gynecology at St. Louis County Hospital, for damages alleged to have been suffered by Brandy Payan during her delivery as a result of negligence of defendants. Sandra Payan also seeks damages for personal injuries and medical expenses resulting from the same acts of negligence. Defendant Seimers’ motion for summary judgment was granted and designated as a final and appealable order from which plaintiffs have appealed.

Although the finality of judgment has not been questioned by any party to this appeal, we have a duty to inquire and determine sua sponte whether a final ap-pealable judgment has been rendered by the trial court. Chura v. Bank of Bourbon, 674 S.W.2d 675, 678 (Mo.App.1984). The trial court designated the summary judgment order final and appealable, but this designation is not conclusive. Shell v. Shell, 605 S.W.2d 185, 189 (Mo.App.1980). Whether a judgment is final and appealable is not determined by the name applied but by what is actually done according to the content, substance and effect of the order entered. Id. “The right of appeal is statutory, [citation omitted], and the appeal may be taken only from a final judgment. § 512.020. [RSMo 1978]” Klippel v. Watkins, 667 S.W.2d 28, 30 (Mo.App.1984). The circumstances of each case control, but the general tenure of the authorities is consistent. The designation of a partial judgment by the trial court is effective only if the claims and parties separated and the result adjudged constitutes an independent unit which finally disposes of the claims and the parties within the unit. Rule 81.06; Shell, 605 S.W.2d at 191. The present partial judgment does not accomplish this and therefore fails for lack of finality.

The instant action arose out of the same alleged negligence of all defendants with Dr. Heise acting as an agent, servant and employee of the other defendants. The action against Dr. Seimers as principal and under a respondeat superior theory is inextricably linked to the plaintiffs’ claim against Dr. Heise and cannot be separated into an independent unit which may be individually and finally disposed. Where one claim is asserted against several defendants, a final judgment is one that disposes of all issues as to all parties. Wicker v. Knox Glass Associates, 242 S.W.2d 566, 571 (Mo.1951). Claims are not for review upon appeal piecemeal or in detached portions. Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597, 599 (1953).

We conclude that the trial court erred as a matter of law in designating its order as final and appealable and therefore do not reach the question whether it abused its discretion.

The appeal is dismissed as premature.

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


text:
    Ida Mae PAULUS (Lipe), Plaintiff-Respondent, v. Richard LIPE, Defendant-Appellant.
    No. 49001.
    Missouri Court of Appeals, Eastern District, Division One.
    March 26, 1985.
    Craig R. Bramman, Clayton, for defendant-appellant.
    Joseph Webb, St. Louis, for plaintiff-respondent.
   KAROHL, Judge.

Former husband appeals the following decree:

INTERLOCUTORY DECREE IN PARTITION
The court has jurisdiction over the subject matter and the parties. It is further found that plaintiff and defendant are tenants in common of the following described real estate:
The South 50 feet of Lot 22 of IVE-LAND, according to the plat thereof recorded in Plat Book 21, Page 21 of the St. Louis County Records. Together with all improvements thereon known and numbered as 1721 Dyer Avenue, St. Louis County, Missouri.
That there are no other persons holding or claiming any interest in said property; that the rights of the parties are clearly set forth and that the real estate is of such a nature that partition in kind cannot be made without great prejudice to the parties in interest;
That respondent has made payments on the deed of trust since 1966, and is entitled to credit therefore; that plaintiff is entitled to a portion of the reasonable use and enjoyment of said property by defendant.
WHEREFORE it is ORDERED, ADJUDGED AND DECREED that said real property be sold to the highest bidder for cash at a public sale, and the court appoints Justin Weil, Vincent M. Flynn and Martha C. Brown of the County of St. Louis, State of Missouri, as commissioners to make such sale and to make reports of the sale of said property to the court and hold the proceeds of said sale pending further order and decree distributing said proceeds and that all costs be taxed against the proceeds of said sale, with credits to the parties as the court shall direct; that the commissioners have the title of said property examined and cost thereof to be taxed as costs, (emphasis ours)

The background facts are that the parties acquired the property as tenants by the entireties on October 19, 1960 and were subsequently divorced on September 8, 1966. No disposition was made of the property. However, wife denied but was found by the court to have signed a quit claim deed form which was undated, unacknowledged, and unrecorded. After the divorce husband occupied the home and made all payments including those on a refinancing secured by a second deed of trust. It is unclear on what terms he occupied the property in relation to plaintiff-former wife’s rights.

Our first duty is to determine finality of judgment and resulting jurisdiction. Grassmuck v. Autorama Auto Equipment, 659 S.W.2d 264, 266 (Mo.App.1983). We find that the judgment of the trial court is not final for purposes of appeal.

Interlocutory orders in partition suits are appealable if they determine rights of parties. § 512.020 RSMo 1978; First Presbyterian Church of Monett v. Feist, 397 S.W.2d 728, 731 (Mo.App.1965). This decree, however, fails to determine the interests of the parties with sufficient particularity. There remains the requirement for further evidence and further orders as to the nature and extent of “credit” to which the court found defendant-former husband is entitled and the extent of any set-off to wife.

The court’s attention is directed to § 528.550 RSMo 1978 which authorizes the appointment of a special commissioner to make the sale because the court found that partition cannot be made without prejudice to the parties.

This appeal must be dismissed in order that the trial court may complete its interlocutory decree by determining with particularity the rights and interests of the parties in the property.

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

      . As to the rights of plaintiff-former wife, if any, See Goforth v. Ellis, 300 S.W.2d 379 at 383 (Mo.1957).


author: PER CURIAM.

text:
    COMMERCIAL UNION INSURANCE COMPANY, Respondent, v. Ronald A. GRAVES, Appellant.
    No. WD 36266.
    Missouri Court of Appeals, Western District.
    March 26, 1985.

      J.D. Williamson, Jr., Independence, for appellant.
    Paul D. Cowing and Mary A. Estes, Kansas City, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   PER CURIAM.

Appeal from summary judgment for plaintiff-respondent in an action for construction of a contract between the parties.

Judgment affirmed. Rule 84.16(b).


author: SHANGLER, Judge.

text:
    Jeannette FERGUSON, Appellant, v. COUNTY OF JACKSON, Missouri, Respondent. Wilbur TAYLOR and Harvey Lee Taylor, Appellants, v. COUNTY OF JACKSON, Missouri, Respondent.
    WD No. 35454, 35456.
    Missouri Court of Appeals, Western District.
    March 26, 1985.
    Charles C. Shafer, III, Kansas City, for appellants.
    John B. Williams, County Counselor, Mary G. Murdock, Legal Counsel, Kansas City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   SHANGLER, Judge.

The plaintiffs Ferguson and Taylor, each by separate petition on behalf of the person and the class, sued Jackson County for a declaratory judgment that the sales of their real property by the county for delinquent taxes did not comply with §§ 141.-040, et seq., RSMo 1978, and so were unlawful. The defendant Jackson County answered that the sales in foreclosure of the tax liens were duly conducted under the Land Tax Collection Law [§§ 141.210 through 141.810], and alleged that §§ 141.-040 et seq. were neither a part of the Law, nor otherwise applicable to tax lien foreclosure proceedings in Jackson County. The defendant further answered that the class action was not a procedure available to challenge the validity of a levy or collection of taxes, and that the petition otherwise failed to state a claim for relief— among other responses. The defendant then moved to dismiss each petition for failure to state a claim. Rule 55.27(a)(6). The trial court sustained the motion as to each petition on the stated ground that §§ 141.040, et seq., are not a part of the Land Tax Collection Law, nor are otherwise applicable to the tax lien foreclosures and sales.

The procedures of Rule 52.08 for a class action were never implemented, nor was the question whether that method avails to adjudicate the validity of a tax collection law ever determined by the trial court. Thus, each petition remains the personal cause of action of each plaintiff, and the judgment entered on each affects only those respective suitors. These judgments were appealed separately. The petitions, the causes of action pleaded, answers and motions to which the judgments respond, are all identical in terms — and the same counsel are on each cause. Our order consolidated the two appeals, and thus this decision issues in each.

The plaintiffs contend for a single point on appeal: The judgments of dismissal were error because the clear words of the Land Tax Collection Law “mandates that §§ 141.040, 141.120 and 141.130 are part of the Land Tax Collection Law and because 141.680 is also part of the Land Tax Collection Law.”

The exposition of that solitary point takes up scarcely a single printed page, and cites no Missouri authority, and gives no clue as to how the §§ 141.040, 141.120 and 141.130 impinge on the cause of action each petition for declaratory judgment attempts. The argument on the point merely cites the terminology of § 141.680.1 [a component of the Land Tax Collection Law]:

“This law shall not affect or infringe upon any of the provisions of sections 141.010 to 141.160, but shall be in addition to and supplementary of the provisions of such sections.... ”

The argument proceeds: that the definitions of § 141.680.1 terms — affect, infringe, supplementary — as “found in any standard dictionary make it abundantly clear that the Collection Law is composed of Section 141.210 to 141.810 and through 141.200.” The argument concludes with the hortative, that whether or not the Land Tax Collection Law [§§ 141.210 through 141.810] stands as a discrete enactment, the entire component Delinquent Taxes Chapter 141 [§§ 141.010 through 141.970] are to be construed “as a whole cloth.” That is the full presentation on appeal.

We do not dwell on the conspicuous inadequacy of the brief as an aid or adjunct to an informed appellate decision. The point relied on does not state, nor does the exposition explain, the how or why the trial court determination that §§ 141.040, 141.-120 and 141.130 are not part of the Land Tax Collection Law makes any difference to the cause of action pleaded in each petition, and the lack of citation altogether simply deepens the mystery. See Rule 84.-04(d) and (e). The argument [which completes the presentation in the brief] that, in any event, all the component provisions of Chapter 141 must be construed “as a whole” cloth is an invention, alien to both the stated point on appeal and to the pleaded cause of action in the petition itself.

The consolidated appeals deserve our peremptory dismissal. The legal file, however, shows such a serious and professional attention by counsel for Jackson County on a governmental function of such consequence, that we respond — but only to the sense of the point on appeal. That sense we make out from the allegation of the petitions and the emphasis on oral argument to this court: that § 141.040 requires commencement of suit for foreclosure of tax liens on lands against a resident be by personal service, whereas the foreclosure proceedings against the real estate of the plaintiffs [under the Land Tax Collection Law [§§ 141.410-141.450]] commenced by publication and notice by mail that suit was filed. The plaintiffs would impose the personal service requirement of § 141.040 upon a foreclosure under the Land Tax Collection Law, and so argue that these several provisions are integral and in pari materia.

The personal service § 141.040 is a component of a procedure [§ 141.010 through § 141.160] available to a collector of a class one county to enforce payment of land taxes delinquent on the first day of the year. The Land Tax Collection Law is a procedure available to a collector of a class one county to enforce payment of land taxes delinquent two years or more [§ 141.310.2, as amended by L.1982, formerly four years or more ]. Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86, 94[1] (banc 1944); Buchanan v. Cabiness, 362 Mo. 985, 245 S.W.2d 868, 874 (banc 1952). These two procedures are disparate otherwise and do not interrelate. Collector of Revenue of Jackson County v. Parcels of Land, Etc., 362 Mo. 1054, 247 S.W.2d 83, 88[1, 2] (banc 1952). The Land Tax Collection Law is now the exclusive remedy “for all taxes and tax bills four years [now two years] or more delinquent.” Buchanan v. Cabiness, supra, l.c. 245 S.W.2d 874. The purpose of § 141.680 of the Land Tax Collection Law is not [as the plaintiffs argue from the tendentious fragment of that statute rescripted in the brief ] to incorporate the procedure for the collection of delinquent land taxes under §§ 141.040 et seq. into the Land Tax Collection Law, but to preserve intact those suits — otherwise within the purview of the Land Tax Collection Law as newly amended — then pendent to collect delinquent tax bills, and to establish the Land Tax Collection procedure “as the exclusive remedy for all taxes and tax bills [two] years or more delinquent.” Buchanan v. Cabiness, supra, l.c. 245 S.W.2d 874.

The preclusive scheme of the Land Tax Collection Law notwithstanding, the plaintiffs seem to contend for the point that even under the Land Tax Collection Law, nothing short of personal service will do for a valid foreclosure. That contention was met and rejected by our supreme court in Collector of Revenue of the City of St. Louis v. Parcels of Land, etc., 585 S.W.2d 486 (Mo. banc 1979), and then again in Garzee v. Sauro, 639 S.W.2d 830 (Mo.1982). Collector of Revenue of The City of St. Louis was an action to foreclose tax liens under the Municipal Land Reutilization Law, §§ 92.700 et seq. That statute provided for notice of foreclosure to the owner by publication and mail — as does the Land Tax Collection Law. The court determined, in response to contrary contention, that the method of notice provided by the foreclosure statute satisfied constitutional due process as well as the standards of Rule 54. Then, in Garzee, that contention was reasserted, but in the context of the Land Tax Collection Law foreclosure procedure — in the very terms the plaintiffs insist on here: that noncompliance by Jackson County with the procedures for the foreclosure of delinquent land tax liens by personal service under the procedures applicable to first class counties generally under §§ 141.010 et seq. invalidated the sales of their properties. Garzee [as did Collector of Revenue of the City of St. Louis ] cited the principle of Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), that due process does not always require personal service of written notice, but [l.c. 314, 70 S.Ct. 657], such “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,” suffices. Garzee [as did Collector of Revenue for the City of St. Louis for the counterpart service section of the Municipal Land Reutilization Law] held that the requirement of § 141.-440 of the Land Tax Collection Law that the collector send notice by mail to the owner of the land under foreclosure at the last known address, was a mode of notice within the limits of practicality [l.c. 832] “reasonably calculated to reach the interested parties” — and hence constitutionally sufficient. The petitions do not allege that the procedures of § 141.440 were not employed, but only that the plaintiffs were not served in person. The notice by mail conformed to both the statute and constitutional requirement. See generally Note, Due Process Notice Required for Real Estate Tax Sales, 49 Mo.L.Rev. 387 (1984).

The judgments of dismissal are affirmed.

All concur.

      . The remainder of that subsection 1 provides:
      ... nor shall it infringe upon or effect [sic] the provisions of any special charter or the provisions of the general law relating to taxation and the collection of delinquent and back taxes not four years or more delinquent and not specifically provided for in sections 141.-210 to 141.810, [Land Tax Collection Law] except that all suits to collect any delinquent tax bills alleged to be a lien against any parcel of real estate pending at the time this law takes effect may be prosecuted by the parties thereto to judgment and sale, but not after a petition is filed against such parcel of real estate under the provisions of this law.

      . From what we make of the class action allegations of each petition, the foreclosures the plaintiffs seek to invalidate were conducted under the Land Tax Collection Law since year 1972. At that time, the version of § 141.680 of the Land Tax Collection Law in effect [and construed by our supreme court en banc in Buchanan v. Cabiness, supra] was the provision which the fragment the plaintiffs cite begins, but does not fully delineate. The present § 141.680 [amended by L.1982], enacts in explicit and plain terminology the effect Buchanan v. Cabiness attributed to the section by judicial construction:
      1. The remedies and procedures set forth in sections 141.210 to 141.810 [Land Tax Collection Law] shall be the exclusive remedies and procedures available for the collection of delinquent and back land taxes in a county electing to come under or which has come under their authority. Sections 141.210 to 141.810 shall not be affected nor infringed upon by any other laws or parts of law in conflict herewith.


author: PREWITT, Chief Judge.

text:
    COUNTY OF STANISLAUS, Plaintiff-Appellant, v. Lloyd Alvie PRATT, Defendant-Respondent.
    No. 13689.
    Missouri Court of Appeals, Southern District, Division Three.
    March 28, 1985.

      N.E. Brown, Gen. Counsel Div., Dept, of Social Services, Jefferson City, for plaintiff-appellant.
    Joseph P. Fuchs, Dempster, Fuchs & Barkett, Sikeston, for defendant-respondent.
   PREWITT, Chief Judge.

Appellant brought an action under Chapter 454, the Uniform Reciprocal Enforcement of Support Law. It alleged that it is a “political subdivision of the State of California, which has expended welfare monies for the support” of two minor children of defendant. It sought $3,952 from respondent. No prior support order is alleged. Respondent answered, denying each allegation of the petition and otherwise denying any liability to appellant.

The cause was then set for hearing. Appellant was represented by the assistant prosecuting attorney of Scott County, and respondent appeared in person and by his attorney. At the hearing the judge dismissed the petition with prejudice. The order recited the reasons for the dismissal were “the Petitioner not appearing in person and no evidence in support of Petitioner’s petition being adduced”. The record does not show that any evidence was presented or that a request for a continuance was made.

Appellant’s points relied on, not including its citations, state:

I.
The trial court erred in dismissing the petition herein because the petitioner was not required to be present at the hearing in that the trial court was required to continue the hearing to permit evidence relative to the duty of support to be introduced by deposition or by appearing in person in court.
II.
The trial court erred in dismissing the petition herein because the petitioner was not required to be present at the hearing in that respondent did not deny owing the duty of support nor did respondent offer evidence constituting a defense.

In its brief appellant summarizes its contentions, stating “Missouri statutes require that, if a defense is raised, the cause be continued for evidence. No defense was raised, so judgment for petitioner should have been entered. However, if a defense had been raised, a continuance was required.”

Respondent counters that the trial court properly dismissed the petition because no evidence was presented in support of it. We conclude that he is correct.

Obviously, appellant could not appear and we presume that the trial judge expected some representative to appear in its behalf, other than the assistant prosecuting attorney, to prove its allegations. Why appellant would be compelled to have any other representative is not apparent in the record. Of course, ordinarily to be successful the moving party would have to present proof of its allegations.

Appellant primarily relies on § 454.200.1, RSMo Supp.1984. It states:

If the obligee is not present at the hearing and the obligor denies owing the duty of support alleged in the petition or offers evidence constituting a defense, the court, upon the request of either party, shall continue the hearing to permit evidence relative to the duty of support to be introduced by either party by deposition or by appearing in person before the court. The court may designate the judge of the initiating court as a person before whom a deposition may be taken.

This section indicates that if a defendant does not contest the allegations then they are to be taken as true. It does not make them prima facie correct if there is a contested hearing. Had the section intended to make the allegations presumptively true or to place the burden of proof on the defendant, thus changing the usual rule, it could have easily done so. As no request for a continuance was made, the trial court did not have to order one.

The parties do not cite us to any cases discussing the manner or order of proof required under the Uniform Reciprocal Enforcement of Support Law. Our research indicates that most courts hold that the plaintiff has to prove its allegations as is ordinarily the case and that the allegations of the petition or the initiating state’s findings do not provide prima facie proof. See O’Hara v. Floyd, 47 Ala.App. 619, 259 So.2d 673, 675 (1972); Mossburg v. Coffman, 6 Kan.App.2d 428, 629 P.2d 745, 747-748 (1981); City and County of San Francisco v. Juergens, 425 So.2d 992, 996 (La.App.1983); Freano v. Rosenbaum, 399 So.2d 758, 760 (La.App.1981); Lambrou v. Berna, 154 Me. 352, 148 A.2d 697, 702 (1959); State ex rel. Lyon v. Lyon, 75 Nev. 495, 346 P.2d 709, 710 (1959) (thereafter modified by statute); Pfueller v. Pfueller, 37 N.J.Super. 106, 117 A.2d 30, 32 (1955); Way v. Fisher, 425 S.W.2d 704, 705 (Tex.Civ.App.1968) (thereafter modified by statute).

State of Minnesota v. Doty, 326 N.W.2d 74, 78 (N.D.1982) states: “Most courts which have addressed similar issues also appear to give prima facie effect to the initiating court’s certification.” However, the cases on which it relies do not support' that statement except where a statute has modified the usual manner or order of proof or there is a support order issued by' another court. In the latter instance § 454.200.2, RSMo Supp.1984 provides:

If the action is based on a support order issued by another court, a certified copy of the order shall be received as evidence of the duty of support, subject only to any defenses available to an obli-gor with respect to paternity or to a defendant in an action or a proceeding to enforce a foreign money judgment.

In some states by statute the petition is taken as true unless the defendant proves otherwise. See Barringer v. Barringer, 24 N.C.App. 142, 210 S.E.2d 90 (1974); State ex rel. Fulton v. Fulton, 31 Or.App. 669, 571 P.2d 179, 180 (1977); State ex rel. Ivory v. Lewis, 660 S.W.2d 797, 798 (Tenn. App.1983); Saunders v. Saunders, 650 S.W.2d 534, 537 (Tex.App.1983). This, of course, indicates that in those jurisdictions such a statute is necessary or proof of the allegations would have to be presented.

Our supreme court, in considering the Uniform Support of Dependents Law (since repealed and replaced by the Uniform Reciprocal Enforcement of Support Law, see 1959 Mo. Laws, S.B. 118), has stated that the “findings, if they may be called that, by the court of the initiating state constitute no more than recommendations to the court of the responding state, and the final decision and the only judgment to be made must be by the court of the responding state.” Ivey v. Ayers, 301 S.W.2d 790, 796 (Mo.1957). Even though the § 454.190 cited there is no longer in force, we read that opinion as indicating that proof at such a hearing is to be presented as in any other case. That section stated, “In any hearing under this act, the Court shall sit as a jury and be bound by the same rules of evidence as are used in circuit courts.” 1951 Mo. Laws, p. 468.

It is also significant that Missouri did not adopt § 23 of the Uniform Reciprocal Enforcement of Support Act (1950 Act). That section states:

§ 23 [Rules of Evidence]
In any hearing under this law, the court shall be bound by the same rules of evidence that bind the [here insert the name of some court in the state that has relaxed the requirement that the technical rules of evidence must be followed, such as the Juvenile Court, the Domestic Relations Court].

Unif. Reciprocal Enforcement of Support Law (1950 Act) § 23, 9A U.L.A. 788 (1979).

If § 454.200.1 had been intended to change the usual rules of proof in a lawsuit, we believe it would have been made clear. We conclude that evidence had to be presented to support appellant’s allegations and absent that the trial court was correct in ruling for respondent.

Respondent requested to file with us documents in a prior action entitled Betty Hendrix v. Lloyd Alvie Pratt as a part of the legal file. That request was taken with the case and is now denied. The record does not establish that those documents are related to this action or that they were presented to the trial court.

The judgment is affirmed.

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


author: FONES, Justice. BROCK, Justice,

text:
    Hoyte M. HOLT, Appellee, v. CITIZENS CENTRAL BANK; Donald E. Moser, Trustee; Richard E. Leddy, Substitute Trustee; Charles H. Lowe and wife, Johnnie Mae Lowe; Furman W. Elgin and wife, Olive C. Elgin; and Wendell T. Rowland, Trustee, Appellants.
    Supreme Court of Tennessee, at Nashville.
    Dec. 17, 1984.
    Rehearing Denied April 22, 1985.
    Richard Leddy, Jim K. Duncan, W. Ken-nerly Burger, J. Mark Rogers, Murfrees-boro, for appellants.
    Patrick J. McHale, Murfreesboro, for ap-pellee.
   OPINION

FONES, Justice.

Plaintiff brought this action to set aside a foreclosure sale on the ground of inadequacy of price so great as to shock the conscience of the court. The trial court found that the inadequate sale price shocked its conscience, but that no irregularity or unfair circumstance was shown and refused to set aside the sale. The Court of Appeals agreed with the trial court’s findings of fact but held that inadequacy of consideration so great as to shock the conscience of the court, standing alone, was sufficient to warrant voiding the sale. We granted defendant’s rule eleven application to review the disagreement of the two lower courts on that legal issue.

I.

The facts reveal that on or about July 5, 1981, plaintiff, Hoyte Holt, defaulted on his payments on a note made in October 1974, payable to defendant, Citizens Central Bank. This note was secured by a deed of trust on real property located at 1009 West Lokey Street, Murfreesboro, Tennessee. Holt had purchased the property for $9,000 at an auction sale in 1973. He estimated its fair market value at $12,000 to $14,000 when he made the note for $8,600 with the bank. The property was a house that was converted into rental units and held as income producing property by Holt, who was in the process of remodeling the house.

After several unsuccessful attempts to contact Holt about the default, the bank commenced foreclosure proceedings through its attorney, Richard Leddy, who sent a letter to Holt advising him of the foreclosure. Notice of the sale was published in a local newspaper, the Murfrees-boro Press, on January 7, 14 and 21, 1982, and the sale was conducted on January 28, 1982. The bank complied with the provisions of the deed of trust and the laws of the State of Tennessee in foreclosing.

Defendant, Charles Lowe, who was a bona fide purchaser unconnected with defendant bank, purchased the property at the sale for 88,60o. Lowe had learned of the sale when he had seen it advertised in the local newspaper. Prior to purchasing the property, Lowe had driven by the house but had not been inside it or inspected it in any other manner. On February 8, 1982, ten days after he had purchased the property and after fully disclosing the facts of the purchase, Lowe sold the house to the defendant, Furman Elgin, for $80,000. There is no indication of collusion between Lowe or Elgin and the bank.

At trial, Holt claimed that he had not received notice of the foreclosure sale. The record, however, reveals that on the morning of the foreclosure sale Holt twice attempted to refinance the loan, and it was during this time that Holt claimed he first learned of the foreclosure proceedings. Neither the chancellor nor the Court of Appeals made any finding on whether Holt received actual notice, both stating that actual notice was not required under either the law or the deed of trust.

From his testimony, Holt appeared to be argumentative and unresponsive. Despite the fact that he was a self-employed businessman (a “remodeler” of residential buildings) who had borrowed money from the bank on several occasions, Holt demonstrated little understanding of the legal terms involved in loan transactions. The equities in this case, however, do not favor the plaintiff, Holt, who, for whatever reasons, appears to have simply disregarded his financial obligations on the mortgage payments too long.

II.

The Court of Appeals reached the conclusion that two Tennessee cases, Donaho v. Bales, 59 S.W. 409 (Tenn.Ch.App.1900) and Wright v. Wilson, 10 Tenn. 294 (1829), established the rule that inadequacy of the price at a foreclosure sale that was so great as to shock the conscience of the court, without any other inequitable circumstance appearing, required a court of equity to set aside the sale. A number of other Tennessee cases were cited by that court, which it correctly noted involved some circumstance in addition to inadequacy of price so great as to shock the conscience of the court. See, e.g. Watson v. United American Bank in Knoxville, 588 S.W.2d 877 (Tenn.App.1979); Pugh v. Richmond, 58 Tenn.App. 62, 425 S.W.2d 789 (1967); Mitchell v. Sherrell, 11 Tenn.App.210 (1929); Meath v. Porter, 56 Tenn. 244 (1872). The cited cases also state the rule so as to indicate that any inequitable circumstance will enhance an inadequate price into a conscience shocking price. The intermediate court held that the rule established in Wilson and Donaho had not been changed or modified by this Court and on the sole ground of a price so inadequate as to shock the conscience of the court, set aside the foreclosure sale.

The authority for the rule adopted in Wilson came from eighteenth and nineteenth century English cases that recognized the problem of establishing a rule predicated upon the vague and variable standard of what may shock the conscience of a court. In an effort to bring as much uniformity as possible to the application of that standard Lord Thurlow, in Gwynne v. Heaton, 1 Br.Ch.Ca. 9, stated the rule to be that, “to set aside a conveyance, there must be an inequity so strong, gross and manifest, that it must be impossible to state to a man of common sense without producing an exclamation at the inequity of it.”

Our reading of the cases in Tennessee and other jurisdictions reveals that while a price of ten percent of the fair market value would probably shock the conscience of any court, a few courts would be shocked by a price of fifty percent of the fair value. It seems hardly appropriate for a court to have such a delicate conscience that it is shocked by a sale price of fifty percent when it is well known that property often brings only one-half its true value at a forced sale under the best of circumstances. See Wright v. Wilson, supra. Thus, experience has confirmed the fears of the early English jurists that such a rule provided no practical guide for drawing the line between a merely inadequate price and a conscience shocking price. We agree with the suggestion of Judge Conner in his reluctant concurring opinion, wherein he suggests that neither buyers nor sellers can feel comfortable with the title to real estate if the sale brings less than the appraised value as long as the present Tennessee rule prevails.

In both Wilson and Donaho the secured creditor bid in the property not only for an amount less than the value of the property but also for a sum less than the amount of the debt owed. In Donaho, the secured creditor had sued the debtor for a deficiency judgment. In Wilson, the plaintiff, who was a surety of the debtor, was absent from the state at the time of the sale, which the creditors had surreptitiously held. However, the decision in each of those cases appears to have been predicated solely on the conscience shocking inadequacy of price, as construed by the Court of Appeals.

We are convinced that such a rule is impractical and should be abandoned. If a foreclosure sale is legally held, conducted and consummated, there must be some evidence of irregularity, misconduct, fraud, or unfairness on the part of the trustee or the mortgagee that caused or contributed to an inadequate price, for a court of equity to set aside the sale. See Jinkins v. Chambers, 622 S.W.2d 614 (Tex.App.1981), and Swindell v. Overton, 62 N.C.App. 160, 302 S.E.2d 841 (1983). That is the rule we adopt today and apply to this case.

The chancellor and the Court of Appeals have concurred in finding the sale legal in all respects and its only infirmity a conscience shocking inadequate price. That lone infirmity will no longer justify voiding a foreclosure sale.

The judgment of the Court of Appeals is reversed, that of the trial court affirmed, and the suit is dismissed at plaintiffs cost.

COOPER, C.J., and BROCK, HARBI-SON and DROWOTA, JJ., concur.

BROCK, Justice,

concurring.

I concur in the Court’s denial of relief to the appellee-mortgagor in this instance; the price obtained for his property at the foreclosure does not shock my conscience. However, I think that the Court goes too far, farther than is necessary or prudent, in holding:

“If a foreclosure sale is legally held, conducted and consummated, there must be more evidence of irregularity, misconduct, fraud or unfairness on the part of the trustee or mortgagor that caused or contributed to an inadequate price for a court of equity to set aside the sale.”

I cannot, I do not, go that far. Gross inadequacy of the price obtained at such a forced sale, inadequacy so gross that the sale cannot, in good conscience, be permitted to stand should continue to be good reason in equity to warrant relief.

      . At the time of the sale Holt still owed approximately $6,000 on the note. The sale proceeds received from Lowe were applied to the mortgage balance of $5,032.44, a judgment lien the bank had obtained on a personal unsecured debt owed them by Holt in the amount of $2,773.50, and to various costs and expenses.


author: FONES, Justice.

text:
    Robert L. HUSKEY, Appellant, v. STATE of Tennessee, Appellee.
    Supreme Court of Tennessee, at Nashville.
    Feb. 11, 1985.
    Rehearing Denied April 15, 1985.
    Robert L. Huskey, Manchester, pro se.
    Charles L. Lewis, Asst. Atty. Gen., Nashville, for appellee; William M. Leech, Jr., Atty. Gen. and Reporter, Nashville, of counsel.
   OPINION

FONES, Justice.

This case is before the Court on the grant of Rule Nine applications of both the State and the plaintiff, Huskey.

Plaintiff, a lawyer with offices in Manchester, Coffee County, Tennessee, filed a declaratory judgment in the Chancery Court of Davidson County against the State of Tennessee alleging that as appointed counsel for an indigent defendant, the statutory maximum fee was so inadequate that it amounted to an unconstitutional taking of his services without compensation under Article I, Section 21 of the Tennessee Constitution.

Huskey was appointed by the judge of the Circuit Court of Coffee County to represent Alan E. Lemay, an indigent defendant charged with armed robbery and felony murder. He represented Lemay at the trial in that court and upon appeal to the Court of Criminal Appeals and this Court.

In due course, Huskey submitted an application for attorney’s fees to the judge of the Circuit Court of Coffee County who appointed him and presided over the trial. His application for a fee, submitted on the form prescribed by this Court, claimed that he had expended 102.9 hours in the trial court and 78.3 hours in out-of-court preparation. He accompanied that form application with a petition, which was apparently in letter form, to the trial judge to award him a fee in excess of the statutory maximum. That petition is not a part of the record brought to this Court. However, the trial judge responded by letter dated February 4, 1978, agreed that the five hundred dollar fee was inadequate, expressed sympathy but denied Huskey’s request for lack of authority to exceed the statutory maximum.

Huskey filed this suit in Davidson County on September 28, 1982.

The trial court overruled the State’s motion to dismiss and overruled plaintiff’s motion for summary judgment.

The Chancery Court of Davidson County has no jurisdiction to hear Hus-key’s claim for compensation for services rendered in a Coffee County criminal case.

The State did not raise the jurisdictional issue in the trial court, but moved to dismiss on the sole grounds of sovereign immunity. The learned chancellor overruled the motion to dismiss, but observed in his written opinion, sua sponte, as follows:

Finally, it should be noted that the Oklahoma standard contemplates that the court where the indigent’s trial occurred will decide the issue. In most of the reported cases, the issue was initially decided by the court where the indigent’s trial occurred. Here, the plaintiff has elected to bring a separate suit in another court in another circuit. Ultimately, he may be required to seek his relief in the Coffee County Circuit Court. That court, after all, is in the best position to determine if the plaintiff’s representation involved the extraordinary circumstances which result in a constitutional deprivation.

The statutes dealing with the appointment and compensation of counsel for indigent defendants are found in title 40, chapter 14, part 2. T.C.A. § 40-14-208 expressly requires that attorneys seeking compensation for services rendered indigent defendants under court appointment shall file an application with the trial court stating the nature and extent of the services rendered and the expenses incurred. There is no question but that the Legislature intended the “trial court” to be the same court that appointed counsel and wherein the services were rendered, although such designation is not explicit in the statute. In T.C.A. § 40-14-206, the Legislature directed that this Court shall prescribe rules governing applications for compensation and expenses and “such other rules with regard to the accomplishment of the purposes of this part as it deems appropriate in the public interest.”

We hold that the statutes governing appointment and compensation of counsel for indigent defendants in the trial courts of this State, vest exclusive jurisdiction of all claims for compensation for such services in the trial court where the appointment was made and the services rendered, regardless of whether the claim is asserted as a contractual claim against the State of Tennessee, a statutory claim, a constitutional claim, or otherwise based.

T.C.A. § 40-14-208 provides for the payment of compensation and expenses to attorneys representing indigent counsel “upon a certified copy of the court order fixing any compensation” which must be forwarded to the office of the Executive Secretary of the Supreme Court for audit. The Executive Secretary of this Court performs no judicial or adjudicative function whatever. The audit is for the sole purpose of determining whether the statutory maximum hourly, daily and per case limitations have been observed.

A party dissatisfied with a trial court order awarding compenstion may appeal as of right in accord with the provisions of Tennessee Rules of Appellate Procedure applicable to such appeals. The notice of appeal required by Rule 3 shall be filed with the trial court within thirty days after the entry of the order in the trial court adjudicating the claim for compensation.

Plaintiff also alleged that he filed a claim in the Court of Criminal Appeals for his services rendered on the appeal of the Le-may case to that Court and for the preparation and filing of a Rule eleven application to this Court. He asserted that he expended 181.3 hours out-of-court time and 10.3 hours in court on appellate work, and that he petitioned for the allowance of a fee in excess of the statutory maximum and “submitted reasons and justification therefor;” that a member of that Court, while sympathetic, determined that a fee of five hundred dollars was the maximum amount that plaintiff could be awarded.

This record does not contain plaintiff’s so-called reasons and justification why his appellate work was of such a nature and extent that his constitutional right to just compensation has been violated and certainly no such conclusion could be drawn from the face of the claim which he submitted.

It follows from our holding with respect to services rendered in the trial court, that no independent cause of action against the State of Tennessee can be pursued by a lawyer dissatisfied with the award of a fee for representing indigent defendants in the appellate courts. Such a claim must be timely filed in the criminal cases wherein the services were rendered and review of an award of the Court of Criminal Appeals should be sought pursuant to T.R.A.P. 11.

The judgment of the Chancery Court of Davidson County is reversed and this suit is dismissed, without prejudice. Costs are adjudged against plaintiff.

COOPER, C.J., and BROCK, HARBI-SON and DROWOTA, JJ., concur.

      . The homicide Lemay was charged with occurred a few days prior to the re-enactment of the death penalty statute in Tennessee. Thus, since it was not a death penalty case, Huskeys fee was subject to the statutory máximums of $100 per day for each day of trial, $500 for each case or proceeding in the trial court, a like maximum in the Court of Criminal Appeals and the Supreme Court. In capital cases, attorneys may be compensated in such amount as "the appropriate appellate court shall determine to be reasonable for the services rendered."