text:
    Lillie Belle DARDEN, Appellant, v. The BOARD OF TRUSTEES OF the PUBLIC SCHOOL RETIREMENT SYSTEM OF the SCHOOL DISTRICT OF KANSAS CITY, Missouri, and Geraldine Darden, Respondents.
    No. WD 35539.
    Missouri Court of Appeals, Western District.
    Nov. 6, 1984.

      Byron Neal Fox, Kansas City, for appellant.
    Shirley W. Keeler of Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for the Retirement System.
    Clifford Spottsville, Kansas City, for Geraldine Darden.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   MANFORD, Judge.

This is a direct appeal from a judgment of the circuit court which, the entry thereof, affirmed an administrative decision determining the beneficiary of certain retirement and death benefits. The judgment is affirmed.

A sole point is presented, which in summary charges that the trial court erred in entering a judgment to the favor of respondents because the administrative decision was erroneous, unreasonable, and contrary to the overwhelming weight of the evidence and therefore said decision was not supported by competent and substantial evidence upon the whole record.

The facts as summarized are as follows, and they are undisputed between the parties.

Appellant, Lillie Belle Darden (hereinafter Lillie) was the former wife of Lawrence Darden (hereinafter Lawrence). Lillie and Lawrence were husband and wife until their marriage was dissolved on February 14, 1979. On May 26, 1979, Lawrence married respondent Geraldine (hereinafter Geraldine). Lawrence was employed as a teacher for and within the Kansas City, Missouri School District. He commenced that employment status on February 18, 1970. On February 18, 1970, Lawrence executed a “beneficiary card” advising the Retirement System of the Kansas City School District that his designated beneficiary was Lillie. This card remained on file until Lawrence’s death on January 9, 1980.

On October 1, 1979, Lawrence wrote to the Retirement System, requesting a retirement blank. On October 24, 1979, the System received an application from Lawrence for service retirement. This application requested that Geraldine be appointed beneficiary for retirement purposes. On November 7, 1979, the System approved Lawrence Darden’s application for disability retirement. Subsequently, Lawrence requested that his disability retirement not become effective until he had used his accumulated sick leave. This request was granted. He was paid by the school district up until the time of his death, because his accumulated sick leave had not been exhausted. Thus, at the time of his death, he had not begun to receive any monthly disability retirement allowance.

Following Lawrence’s death, Lillie and Geraldine made claims to the retirement benefits accumulated to the credit of the deceased, Lawrence Darden. Geraldine’s claim was based upon her status as the widow of Lawrence Darden. She presented her claim, supported by the application filed by Lawrence Darden some 2½ months prior to his death. This form designated Geraldine as his wife and as his beneficiary. Lillie’s claim was based upon the original beneficiary card completed on September 18, 1970 which designated Lillie as the beneficiary of Lawrence Darden. This card, like the one supporting Geraldine’s claim, was on file with the school district’s personnel office.

Upon the advice of counsel, the Retirement System filed a declaratory judgment action and evidence was submitted in that action. The court’s jurisdiction to entertain such a declaratory judgment action was questioned by Lillie because § 169.291, RSMo 1978 vests original jurisdiction of such matters in the Retirement Board of the Retirement System. The declaratory judgment action was dismissed.

At the time these events were taking place, there were no statutory provisions for a hearing before the Board of Trustees to resolve conflicting claims to benefits. The Retirement System, in the attempt to resolve the matter, appointed a hearing officer to gather the facts and to submit a recommendation regarding the appropriate beneficiary. A record was compiled. Both parties were afforded opportunity to submit anything additional, but both parties declined the offer. This record was submitted to the Board of Trustees, along with suggested findings prepared by the hearing officer. There has never been any challenge to this procedure by any of the parties. The Board of Trustees entered its decision designating Geraldine as the beneficiary of benefits of the late Lawrence Darden. Lillie filed a petition for review. The circuit court entered judgment against Lillie and this appeal followed.

Before addressing the specifics of the issue presented on this appeal, it is thought advisable to point out certain basic principles applicable to appellate review of such proceedings.

There is no statutory requisite (concerning the determination of beneficiaries to retirement benefits) that a hearing be held, thus pursuant to Chapter 536, RSMo 1978, the decision of the Board of Trustees is a final decision of that agency and is denominated an uncontested ease. State ex rel. Wilson Chevrolet, Inc. v. Wilson, 332 S.W.2d 867 (Mo.1960). Due to this particular status, the circuit court was authorized to take additional evidence and consider the matter de novo. Phipps v. School District of Kansas City, 645 S.W.2d 91 (Mo.App.1982), Long v. Bates County Memorial Hospital, 667 S.W.2d 419 (Mo.App.1983). The parties herein agreed that no additional evidence was necessary and the circuit court secured no additional evidence.

As to the standard of review to be applied and followed by this court in the review of such agency proceedings and decisions, this court is to uphold the agency decision unless that decision is not supported by substantial evidence, is arbitrary and capricious, or is not authorized by law. This court is not authorized to substitute its judgment for that of the agency relative to matters of discretion vested in the agency. Ross v. Robb, 662 S.W.2d 257 (Mo. banc 1983), Mead Products v. Industrial Commission of Missouri, 656 S.W.2d 805 (Mo.App.1983), Fleming Foods of Missouri, Inc. v. Runyan, 634 S.W.2d 183 (Mo. banc 1982). It is to be noted that appellate review in contested versus non-contested agency matters differs, see Long, supra, and the net effect herein is the same due to the disposition by the circuit court.

Lillie’s argument asserts that at the time of his death, Lawrence was an “active employee”. Lillie reaches that conclusion because Lawrence had not, by the date of his death, exhausted all of his sick leave. From this, Lillie then concludes further that the beneficiary card executed by Lawrence on September 18, 1970 controls and hence she (Lillie) is the beneficiary entitled to the claimed benefits.

In support of her assertion, Lillie directs this court’s attention to § 169.322, RSMo 1978, and from that statutory reference, Lillie concludes that “since he (Lawrence Darden) was receiving compensation from the School District, he could not receive retirement benefits.” What § 169.322 specifically says on this question is, “The first monthly payment of such ordinary disability retirement allowance shall not be made to such member so long as he receives compensation from the school district or the retirement system.”

Lillie then directs this court’s attention to § 169.310, RSMo 1978, and this court is at a loss to determine why, since that section addressed the qualifications and terms of retirement board trustees. This section was also repealed in 1982.

Lillie then further asserts that the evidence shows the intent of Lawrence Dar-den to remain an “active employee” until the exhaustion of his accumulated sick leave. Lillie argues that this distinction is vital because of the procedure involved in the designation of beneficiaries before retirement as compared with those applicable after retirement in the event of death before and after retirement. Lillie refers this court to the “Retirement Facts” booklet provided to members. Specific attention is directed to the following phrase within the booklet, which reads:

“If you are eligible to retire but die in active service, the Retirement System will pay in a lump sum to the designated beneficiary(ies) or your estate a sum which consists of your contributions with interest ... Members are urged to file a new beneficiary card whenever the situation makes the old card out of date.”

Thus, Lillie again concludes that the original beneficiary card controls.

Lillie further directs this court to various statutory sections, to wit, §§ 169.-328, 169.350.1(3), 169.324, and 169.326, RSMo 1978. She concludes from these citations that “[different statutes authorize payment from different funds, with different payment options.” This court cannot disagree with her conclusion, but a reading of those reference statutes does not disclose, contrary to her assertion, nor exclusively direct, how a beneficiary is to be ascertained, nor do any of these same statutes mandate how a dispute between contesting beneficiaries is to be determined. The statutes merely outline the retirement allowance, optional plans, and the return of accumulated contributions to members, and provide for the holding of the funds, their disbursement, and deductions. It is true that the aforesaid statutes reference payment to designated beneficiaries. The same statutes do not go beyond that purpose.

It is equally correct, as Lillie contends, that the 1970 beneficiary card was still on file and the instructions to members included the urging to change the cards when personal circumstances warranted such change.

None of these above factors is controlling in the final determination of who the beneficiary entitled to the benefits will be if there be other factors attending to the particular facts and circumstances of any given situation. Stated another way, in the absence of conflicting claims by two or more persons claiming to be beneficiaries, obviously the card (the 1970 card) would control and the above-referenced statutes would prescribe payment, etc.

What is presented in the instant case is a set of particular circumstances from which the Board is requested to make a determination relative to the entitled beneficiary. Thus, the particular circumstances of the instant case cause the entire matter to be placed before the Board for determination.

The Board takes the position that Lawrence Darden was not an active employee, but rather, was a retiree on disability to whom benefits were being withheld until he had exhausted his sick benefits. It can be determined from the record that Lawrence Darden had, in fact, ceased active job or employment duties. So only in the too-narrow sense of “active employee” claimed by Lillie could he have in any manner been considered an “active employee.” Lillie’s contention that Lawrence Darden remained an “active employee” simply because he was receiving sick benefits and thus could not receive retirement benefits is a definition resting only upon his source of monies received and excludes any other factor which might be included within the definition of an “active employee.” Lillie’s definition is much too narrow.

In addition, the Board contends that it was within its discretion to decide that Geraldine was the intended beneficiary without regard to whether Lawrence Darden was an “active employee” or a “retired employee” at the time of his death. The Board proceeds further to point out other facts which the Board deems supportive of its decision.

The Board argues to the contrary, that § 169.350.1(3) does not designate or .direct the naming or changing of beneficiaries. As this court mentioned above, this is the conclusion reached by this court and as a result, this court agrees with the Board. The Board also points out that by official Board action, Lawrence Darden had been designated a “retiree.” The Board points out still further that Lawrence and Lillie had been divorced and Lawrence subsequently married Geraldine. The Board points out that Lawrence Darden had indicated his intention and desire in writing to name Geraldine his beneficiary. The Board points out that_ there is nothing in the evidence which shows that it has ever enacted any mandatory provision that a member could effect a change of beneficiary by only going to the personnel office of the School District and physically or manually changing the card which was filled out at the time of original employment. The information booklet merely urges members to effect a change upon a change of personal circumstances.

When this case is reviewed in its entirety and upon the particular facts and circumstances, and then that review is conducted in line with the rules prescribed in Ross, Mead, Fleming, and Long, the following conclusions must be reached.

This is an uncontested case wherein the parties elected not to present any additional evidence to the circuit court. It is also a case involving the discretion of the Board as the designated agency. The evidence upon this record is competent and substantial to support the Board’s decision. There is nothing within the statutory framework prescribing retirement for public school district employees that mandates the procedure for beneficiary designation. There is nothing within the statutory framework which defines an “active employee” as simply one who is drawing monies from the district. The statutes do prohibit an “active employee” from drawing benefits at the same time he or she is an active employee. There is nothing within the statutory framework which prohibits the Board from having designated Lawrence Darden as a “retiree to whom benefits would or could not be paid until he had exhausted his accumulated sick benefits.”

This court is prohibited from substituting its judgment for that of the Board. The decision entered herein by the Board was within its discretion and is based upon competent and substantial evidence.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Charles SHUMPERT, Appellant.
    No. 47485.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 7, 1984.
    Timothy M. Gardner, Clayton, for appellant.
    John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   CRIST, Judge.

Appeal from a jury conviction of stealing, for which defendant, as a prior offender, was sentenced by the court to five years imprisonment. We affirm.

Defendant challenges the sufficiency of the evidence to support his conviction. The testimony indicated a man pulled on victim’s purse twice, and she then gave it up without a struggle. As the man ran, victim yelled to a security guard that someone had taken her purse. The guard chased the man, who was identified as defendant, for about two blocks, losing sight of him for maybe a minute. Defendant was discovered hiding in a storage shed with the purse in his lap. This evidence, which established victim did not consent to the taking of her purse, was sufficient despite defendant’s claimed “alibi” defense, which in fact admitted his presence in the vicinity of the crime. See State v. Gray, 657 S.W.2d 296, 300-801 (Mo.App.1983); and compare State v. Whitt, 592 S.W.2d 316, 318 (Mo.App.1979).

Defendant also claims error in the trial court’s denial of a presentence investigation under § 557.026 RSMo 1978. This contention has been considered and ruled squarely against defendant. Rule 29.-07(a)(1); Cole v. State, 641 S.W.2d 439, 440-41 (Mo.App.1982).

The conviction is supported by substantial evidence. There was no abuse of the trial court’s discretion in denying a presen-tence investigation.

Judgment affirmed.

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


author: GAERTNER, Presiding Judge.

text:
    LAKE THUNDERBIRD PROPERTY OWNERS ASSOCIATION, INC., et al., Plaintiffs-Respondents, v. LAKE THUNDERBIRD, INC., et al., Defendants-Appellants.
    Nos. 47902, 47903 and 47920.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 7, 1985.

      Frederick H. Schwetye, Union, for Lake Thunderbird, Inc.
    Jeffrey J. Kalinowski, St. Louis, for George Hoesch.
    Edward C. Cody, St. Louis, for plaintiffs-respondents.
   GAERTNER, Presiding Judge.

Lake Thunderbird, Inc. and George R. Hoesch appeal from a September 9, 1983, judgment in favor of Lake Thunderbird Property Owners Association, Inc. (Association), and certain individual lot owners of the Lake Thunderbird Development in Franklin County, Missouri. The judgment is reversed.

The “unusual gallimaufry of facts,” in Mr. Hoesch’s words, originated in a class action lawsuit filed by the Association and certain individual lot owners in the Lake Thunderbird Development against the defendants Lake Thunderbird, Inc., the developer of the subdivision, Weber Realty Co., the realtor which handled the real estate contracts, and H. Glenn Weber, who was alleged to be Lake Thunderbird, Inc.’s sole stockholder and the owner of Weber Realty Co. The Association, et al., predicated their lawsuit upon the defendants’ alleged misrepresentations regarding the development of the residential area surrounding Lake Thunderbird and the failure of the defendants to make various improvements.

The parties compromised the lawsuit by entering into “stipulations.” George R. Hoesch signed the stipulations in the signature space for Lake Thunderbird, Inc., but no explanation is given as to his capacity. The trial court incorporated the stipulations into its judgment of September 16, 1975, thus making the stipulation decretal. The decree ordered the defendants, inter alia, to repair an earthen dam at Lake Thunderbird, build a boat dock twenty feet in length, double the size of a sand beach, construct restroom and sanitary facilities and stock the lake with 500 fingerling bass.

Noncompliance by the defendants prompted the plaintiffs to file a motion for contempt. A hearing was held on the motion, at which hearing all parties appeared. The trial court found the defendants in contempt and entered judgment on September 27, 1977, in favor of the plaintiffs for $6,892.50 for attorney’s fees and $5,000.00 for failure to repair the leaks in the dam against the defendants jointly and severally; in favor of the Association for $650.00 against Lake Thunderbird, Inc. for unpaid assessments on lots sold by the developer; and in favor of plaintiffs for $2,000.00 against H. Glenn Weber and for $5,000.00 against Lake Thunderbird, Inc. as punitive damages. The trial court also appointed a receiver to take possession and control of Lake Thunderbird, Inc. reserved the right to make further orders and taxed costs to the defendants. No appeal was taken from this judgment.

Despite the September 27, 1977, judgment, the problems surrounding the Lake Thunderbird Development went unresolved. Lake Thunderbird forfeited its corporate charter on January 1, 1979. The court terminated the court-appointed receiver’s authority on April 10, 1979. The plaintiffs filed a motion to add as defendants the trustees of the Lake Thunderbird, Inc. and a motion for ancillary relief on July 19,1979. The statutory trustees were added on July 24, 1979.

The motion for ancillary relief was presented in two counts. Count I requested additional injunctive relief. Count II sought actual and punitive damages for the failure of Lake Thunderbird, Inc.’s trustees to fix the dam, boat dock, and sanitary facilities.

The corporate charter of Lake Thunderbird, Inc. was reinstated on November 6, 1981. The trustees, including George Hoesch, remained in the lawsuit under the July 24, 1979 order.

After numerous conferences and eviden-tiary hearings, the trial court entered yet another judgment on September 9, 1983. The trial court denied any relief under Count I of the motion for ancillary relief, denied plaintiffs’ requests for damages against the receiver, H. Glenn Weber and Weber Realty Co., but granted relief under Count II against George Hoesch and Lake Thunderbird, Inc.:

Judgment is entered for Lake Thunderbird Property Owners Association, Inc.-, jointly and severally, against Lake Thunderbird, Inc., and George R. Hoesch for $75,000.00 actual damages and $50,-000.00 punitive damages under Count II of said Plaintiffs’ Motion for Ancillary Relief filed July 29, 1979.

Lake Thunderbird, Inc. and George Hoesch appeal only from the September 9, 1983, judgment. Both contend that the trial court erred in entering the September 9, 1983, judgment because: (1) the trial court lost jurisdiction of the case thirty days after the September 16, 1975, judgment; (2) this action is governed by § 407.-110, RSMo.1978, which the proper action was a contempt proceeding. Lake Thunderbird, Inc. contends that the judgment against it was also erroneous because the plaintiffs’ motion for ancillary relief contained no allegations against it. George Hoesch argues that the trial court erred in entering judgment against him because he was not named as an individual trustee and he may not be held personally liable as Lake Thunderbird, Inc.’s trustee. Our disposition of these contentions makes it unnecessary to consider additional arguments made by the defendants separately. The first question is whether the trial court lost jurisdiction to control its judgment thirty days after the September 16, 1975, judgment. This judgment fully disposed of the entire cause between the homeowners and the developers; the decree left nothing to the future judgment of the court. The September 16, 1975, judgment was, therefore, a final judgment. See, State ex rel. Berbiglia, Inc. v. Randall, 423 S.W.2d 765, 769 (Mo. banc 1968).

A court loses control over its judgment thirty days after entry of judgment. Rule 75.01. If timely and appropriate post-trial motions are filed, the power to control is extended to 90 days after the filing of the motions. Rule 81.05. No post-trial motions were filed within 15 days after September 16, 1975. Rule 78.04. The trial court, therefore, had no authority and was without jurisdiction to change, alter or modify its final judgment of September 16, 1975, after October 16,1975. See, State ex rel. Berbiglia, Inc. v. Randall, supra.

That the trial court had no authority to correct, amend, alter or modify its September 16, 1975, judgment does not entirely end our consideration of the issues. “Courts have inherent power to enforce their own judgments and should see to it that such judgments are enforced when they are called upon to do so.” 46 Am. Jur.2d Judgments § 898 (1969). “The rule with reference to the court’s loss of jurisdiction over its judgments after the expiration of the term [changed to thirty days by Rule 75.01] ... merely bars the court’s right to alter, modify or change them but does not preclude their enforcement as originally rendered.” 49 C.J.S. Judgments § 585 (1947); see also Abbott v. Seamon, 229 S.W.2d 695, 700 [11] (Mo.App.1950). The question is whether the September 9, 1983, judgment may be construed as a proper exercise of the trial court’s inherent authority to enforce the September 16, 1975, judgment.

The trial court, in the September 16, 1975, judgment, stated that violation of its terms would constitute a violation of § 407.110, RSMo.1978. The order of September 9, 1983, however, cannot be considered as rendered pursuant to § 407.110 because the monetary sanctions exceed $5,000.00 and because the money is not payable to the state.

Nor can the order of September 9, 1983, be considered as contempt punishment under Rule 74.33. Contempt is nowhere mentioned in the plaintiffs’ motion for ancillary relief or in the September 9, 1983, judgment. That the trial court was aware of its contempt powers is evident from the September 27, 1977, judgment, which expressly cites the defendants for contempt.

In cases of contempt not committed in the immediate view and presence of the court, the alleged contemnor is entitled to notice of the accusation and reasonable time to make his defense. § 476.130, RSMo.1978. Lake Thunderbird, Inc. and George Hoesch did not have reasonable notice that they were accused of contempt; they had notice only of a motion for ancillary relief. “[Wjhether the proceedings [for contempt] be civil or criminal, there must be an allegation that in contempt of court the defendant has disobeyed the order, and a prayer that he be attached and punished therefor.” Gompers v. Bucks Stove & R. Co., 221 U.S. 418, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911).

The September 9, 1983, judgment is void as an attempt to modify the September 16, 1975, final judgment. The 1983 judgment also fails as an attempt to utilize the court’s power to enforce the 1975 judgment through Chapter 407, RSMo., or through contempt proceedings under Rule 74.33. No other authority has been given for the proposition that the 1983 judgment can be viewed as an attempt to enforce the 1975 final judgment. Other points of error need not be addressed.

The judgment is reversed.

SMITH and STEPHAN, JJ., concur.


author: PUDLOWSKI, Presiding Judge.

text:
    Mary Ann HOLZER, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 47923.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 7, 1984.

      Ronald J. Prenger, Jefferson City, for defendant-appellant.
    John Ashcroft, Atty. Gen., Robert Aul-gur, Asst. Pros. Atty., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

This appeal is from a denial of a Rule 27.26 Motion to Vacate Judgment and Sentence filed in the Circuit Court of Osage County, Missouri. The convictions sought to be vacated were for manslaughter, § 565.005, RSMo 1978 and for leaving the scene of an accident, § 577.060, RSMo 1979. We affirm.

On September 17, 1981, Mary Ann Hol-zer, entered an Alford plea to a charge of manslaughter and also to the charge of leaving the scene of an accident. There was no appeal. Thereafter, on September 27, 1982, appellant filed a Motion to Vacate Judgment and Sentence under Missouri Supreme Court Rule 27.26 alleging ineffective assistance of counsel for failure to explain the effects of entering a guilty plea, for failure to afford appellant an opportunity to fully discuss her case and for failure to interview available witnesses. An eviden-tiary hearing was held on May 19, 1983. The trial court found that the transcript of the guilty plea indicated that the plea was voluntarily, knowingly and intelligently made and there was no evidence of the lack of competence by defense counsel. The court stated as its findings of facts and conclusions of law:

FACTS
The court finds the following to be the facts of the case:
1. Movant is in custody.
2. Movant was sentenced 19 NOV 81 in the Circuit Court of Osage County by Judge Brackman.
3. Movant was sentenced to ten years custody MDC and 60 days custody of Osage County Sheriff.
4. Such sentences were imposed after a guilty plea.
5. No appeal was taken.
6. Movant is distinctly of low intelligence and therefore education.
7. Movant was counselled repeatedly by 19th Circuit Public Defender.
8. Movant repeatedly begged that there be no trial although she wanted her witnesses there.
9. Movant pleaded guilty because it “would look better.”
10. The transcript of the plea of guilty indicates that the plea was voluntary, knowingly and intelligently made.
11. There is no evidence of lack of competence of the defense attorney.
CONCLUSIONS OP LAW
The question really presented is: At what point is defense counsel required to decide that his client is too stupid to plead guilty and must therefore proceed to trial even though it is against his professional judgment? The court basically believes all the testimony in this case accurately reflects the witnesses’ current recollection.
However, this court must conclude that as a matter of law the defense counsel has a right to rely upon his interviews, his staffings and his judgment at the time and not engage in clairvoyant adventures as to what a tragically dull-witted client may recollect in the penitentiary.
Therefore, the motion to vacate sentence fails to demonstrate any injustice and must fail.

The facts surrounding the accident and the entrance of the guilty pleas are as follows: State Highway Patrol Trooper Dennis H. Marriott stopped an automobile by use of the red lights and flashers on his patrol car. When Trooper Marriott stepped from his vehicle and walked alongside the patrol car, a car struck him, causing injuries from which he eventually died. The car which struck Trooper Marriott was driven by appellant. Appellant was intoxicated at the time. One headlight on her car was not working. She was not wearing glasses as her license required.

After the impact, appellant continued a short distance before briefly pulling to the side of the road. A short time thereafter, appellant was stopped by law enforcement officers. The right front end and windshield of her car were damaged. At all times, appellant contends she did not know she hit Trooper Marriott.

Between June 1, 1981 and June 14, 1981, appellant remained in custody at the Cole County Jail. Mr. Howard McFadden, Cole County Public Defender, was appointed to represent her. Mr. Robert Roark, an investigator from McFadden’s office, was assigned to the case. He maintained most of the contact between McFadden’s office and appellant and her family. On June 15, 1981, McFadden, at appellant’s request arranged for appellant to be released for treatment for alcoholism at the Charles E. Still Hospital.

Between June 15, 1981 and July 1, 1981, Roark talked to appellant daily and saw her every other day. On most occasions, one of appellant’s family members were present. Appellant told Roark that she didn’t want to plead guilty. She followed this statement with “if my car hit him I guess I’m guilty.” However, appellant informed Roark that she would not plead guilty to the hit and run charge because she did not know an accident had occurred.

On September 17, 1981, appellant appeared before the Honorable John C. Brackmann. On advice from her attorney and family, appellant pled guilty to the charges of manslaughter and leaving the scene of the accident. Appellant was sentenced to ten years for manslaughter and to “time served” for leaving the scene of a motor vehicle accident.

Appellant’s first point alleges her guilty pleas were not knowingly, intelligently and voluntarily made because she did not understand she had waived her right to appeal and was never advised of her right not to be compelled to incriminate herself.

Appellate review of findings of fact and conclusions of law is limited to the determination of whether such findings, conclusions and judgment of the trial court, as appear in the record, are clearly erroneous. Jenkins v. State, 637 S.W.2d 808, 809 (Mo.App.1982). Generally, for these findings and conclusions to be clearly erroneous, the appellate court must be left with the definite and firm conviction that a mistake was made after reviewing the entire record. Cherry v. State, 625 S.W.2d 681, 682 (Mo.App.1981). We find no mistake.

Appellant’s main concerns are that she did not understand what was happening when she entered her pleas of guilty and that she thought she would have the opportunity to present witnesses. Appellant’s sister testified that she informed appellant there would be no trial if appellant plead guilty. Appellant’s daughter also explained to appellant that if she pled guilty she would not have a trial and would not have the opportunity to call her witnesses. Further, the trial court before accepting the plea addressed appellant and questioned her to determine if her plea was voluntary and intelligently made. While appellant’s intelligence is at the low end of the normal range, she is able to read at approximately the fifth grade level. Her mental evaluation revealed that she had the judgment and understanding necessary to cooperate and assist in her defense. While appellant may have had difficulty at first understanding the judicial process, we can not hold that the trial court’s determination that appellant, at the guilty plea proceeding, made a voluntary, intelligent and knowing waiver was clearly erroneous.

Next, appellant asserts for the first time, that McFadden did not inform her of her right not to incriminate herself. Appellant did not set forth this error in her 27.26 motion nor did she adduce any evidence on this point at her hearing. A circuit court cannot be found to have committed error for failing to make findings of fact and conclusions of law on issues not presented at the hearing. Johnson v. State, 615 S.W.2d 502, 506 (Mo.App.1981).

Lastly, appellant alleges ineffective assistance of counsel as a result of McFadden’s failure to interview the two passengers who were in her car. This argument has no merit. McFadden’s investigator contacted one of the passengers on several occasions. As to the other, he was unable to locate him. The investigator visited this individual’s home twice and left his business cards. He also visited various taverns in which the passenger was known to frequent. Additionally, McFadden had copies of all statements given to the police by both individuals. It was his opinion that had these witnesses been called, they would have “buried” appellant. Which witnesses to call and whether the witnesses would be helpful is a matter of professional judgment and is not an adequate ground to find appellant’s trial counsel to have been ineffective. Evans v. State, 639 S.W.2d 648, 649-50 (Mo.App.1982). Further, when a defendant pleads guilty to a crime, the adequacy of her trial counsel’s representation is immaterial and the issue is foreclosed if the plea was made voluntarily. Flowers v. State, 632 S.W.2d 307, 312 (Mo.App.1982). As stated earlier, appellant’s plea was voluntary.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.


author: REINHARD, Chief Judge.

text:
    FIRST MISSOURI BANK & TRUST COMPANY OF CREVE COEUR, Respondent, v. Joseph D. NEWMAN, and Patricia Ann Newman, Appellants.
    No. 48130.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 7, 1984.

      Charles Alan Schoene, St. Louis, for appellants. ■
    Milton P. Goldfarb, Clayton, for respondent.
   REINHARD, Chief Judge.

Plaintiff First Missouri Bank and Trust Company brought suit against defendants Joseph and Patricia Newman in seven counts, seeking recovery on various delinquent notes and overdrawn accounts. The case was tried without a jury, and judgment was entered against defendants on all seven counts. Defendant Joseph Newman appeals from the judgment on four of the counts, all of which were based on secured promissory notes. We reverse and remand for a new trial on these four counts.

In 1975 and 1976, defendant entered into four financing agreements with plaintiff bank. Each of the four promissory notes was secured by a motor vehicle. Defendant defaulted on all four notes, and on May 20,1976, the bank sent four notices informing defendant that the bank had repossessed all four vehicles. Each notice also stated:

You have ten (10) days to redeem the collateral by presenting [the total amount owed on the note] in certified funds, to First Missouri Bank & Trust Co. ... In the event you do not choose to redeem the above described collateral, it will be sold pursuant to the Uniform Commercial Code, through the competitive bidding process to the highest bidder. You will be liable for any resulting deficiency [sic] if the proceeds of the sale are not sufficient to cover the payoff figure....

After making repairs to the vehicles, the bank sold all four of them for prices below the amounts still owed by defendants. The bank then filed this action to recover the deficiencies. Defendants filed a general denial.

At trial, the parties stipulated to the authenticity of the notes. The court accepted without objection the bank’s documentary evidence, consisting of the notes and security agreements, a general ledger detailing the costs of repair and the proceeds of the sale of collateral, and a summary of the bank’s requested award. Defendants then offered into evidence the four notices of resale quoted above, along with defendants’ interrogatory, “State whether either Defendant was notified of the sale of the collateral held as security for repayment of notes and accounts referred to in the Petition and state the date and manner in which such notice was given,” and plaintiff’s affirmative answer referencing to the four notices. The bank’s counsel objected to defendants’ evidence on the ground that no defense of improper notice had been pleaded, but the court overruled the objection and accepted the evidence. No other evidence was admitted on the notice of resale. The bank’s sole witness, an employee of the bank, testified as to the nature of the sale. However, upon defendants’ objection, this testimony was stricken on the ground that the witness had no personal knowledge of the sale. Thus, no competent evidence was admitted on the nature of the sale.

On appeal, defendant urges error in the trial court’s awarding a deficiency judgment on the secured notes because the bank failed to prove compliance with the statutory requirements of notice and commercial reasonableness of the sale of the collateral. Defendant bases his argument on § 400.9-504(3), RSMo.1978, which governs a secured party’s right to sell or otherwise dispose of collateral after a debtor has defaulted.

We first address defendant’s argument that the bank did not meet the statutory notice requirements. Section 400.9-504(3) requires that when a secured party intends to sell collateral of the type presented here, reasonable notice of the sale must be sent to the debtor. The statutory requirements for reasonable notice of a public sale are different than those for a private sale. “[Reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor....” Id. In other words, notice of a private sale may simply state the date after which the collateral will be sold; notice of a public sale must include the time and place of sale. Thus, in order to determine whether sufficient notice of the sale was sent, it may first become necessary to determine whether the sale was public or private. Here, the bank’s notice meets the requirements for a private sale, but not for a public sale because no time or place was given.

Because no competent evidence was introduced on the type or manner of sale, it is impossible to discern from the record whether the sale was public or private, and therefore, whether the notice was sufficient. Thus, the issue is whether the bank or the defendants had the burden of proving compliance or non-compliance with the notice requirements. Defendant argues that, as a prerequisite to obtaining a deficiency judgment, the bank must prove that notice was sufficient. The bank argues that by failing to affirmatively plead and prove lack of notice, defendants waived that defense.

Neither the applicable Missouri statute, § 400.9-504, nor the Uniform Commercial Code § 9-504 expressly allocates the burden of proof. We are unable to find any Missouri cases on point, and neither party has cited any. However, we note that the Uniform Commercial Code Comment following § 9-504 states, “[T]his Section follows the provisions of the Section on resale by a seller following a buyer’s rejection of goods (Section 2-706) [enacted in Missouri as § 400.2-706].” Construing the notice requirements of § 400.2-706 in Anheuser v. Oswald Refractories Co., 541 S.W.2d 706, 711 (Mo.App.1976), this court stated:

We hold that when a seller avails himself of the remedy afforded by 400.2-706 he must comply with all of the terms of that section and the burden of showing compliance is upon the seller. In this case there was no finding upon this issue .... Defendant [seller] offered no proof. As this case now stands defendant has not pleaded or proved that he complied with 400.2-706 and it may not recover the difference between the sale price and the contract price.

The case was reversed and remanded for a new trial.

The principles announced in Anheu-ser were applied to the notice requirements of § 400.9-504(3) in Gateway Aviation, Inc. v. Cessna Aircraft, 577 S.W.2d 860 (Mo.App.1978). In Gateway, this court held that because a deficiency judgment after the sale of repossessed collateral is strictly a creature of statute, the right to the deficiency accrues only when there is strict compliance with the statutory requirements. 577 S.W.2d at 863. See also Modern Auto Co. v. Bell, 678 S.W.2d 443 No. 47974 (Mo.App.E.D. Sept. 25, 1984); Executive Financial Services, Inc. v. Garrison, 535 F.Supp. 263, 266 (W.D.Mo.1982), aff'd 722 F.2d 417 (8th Cir.1983) (holding that in Missouri, failure to comply strictly with notice requirements of § 400.9-504(3) precludes deficiency judgment). Although both Gateway and Anheuser involved situations in which no notice of the sale had been sent, we find the reasoning in those eases applicable to the present case, where defendant acknowledges receiving notice but claims it was insufficient to comply with the statute. We also note that in Anheuser, this court expressly rejected the notion that lack of notice under § 400.2-706 was an affirmative defense which must be pleaded by the defendant. 541 S.W.2d at 711. Here, because the bank offered no competent evidence of the public or private nature of the sale, we cannot determine whether the notice was sufficient to comply with the statute. The bank did not meet its burden of proof. We rule this point for defendant.

Defendants’ contention that the bank failed to prove the sale was commercially reasonable under the statute is also well taken. Section 400.9-504(3) requires that “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.” However, the statute does not indicate which party bears the burden of proving that the sale complied or failed to comply with the statutory requirements.

Plaintiff bank maintains that because defendant failed to affirmatively plead the defense of commercial unreasonableness, the issue has been waived. Again, neither party cites nor can we find a Missouri case on point. Some jurisdictions hold that the secured party bears the burden of proving commercial reasonableness; others place the burden of proving commercial unreasonableness on the debtor. See, e.g., Mallicoat v. Volunteer Finance & Loan Corp., 57 Tenn.App. 106, 415 S.W.2d 347 (1966) (burden of proof on secured party); Pruske v. National Bank of Commerce of San Antonio, 533 S.W.2d 931 (Tex.Civ.App.1976) (burden of proof on debtor). We believe the better view is that the party seeking the deficiency judgment bears the burden of proving compliance with the statutory requirement of commercial reasonableness, regardless of whether the debtor affirmatively pleaded a defense of commercial unreasonableness. We so hold because the secured party has a better knowledge of the facts surrounding the sale, and because the secured party is the moving party in a deficiency action. See White & Summers, Uniform Commercial Code 1122-23 (2d ed. 1980) (citing Mallicoat, 415 S.W.2d 347). Our holding on this issue is in keeping with the Missouri policy requiring strict statutory compliance for the protection of the debtor. See Gateway Aviation, Inc. v. Cessna Aircraft, 577 S.W.2d 860 (Mo.App.1978). This point is also ruled in favor of defendant.

Although we find the trial court erred in entering a judgment for plaintiff on the evidence before it, we decline to reverse outright. Because the record indicates that not all of the evidence available was presented to the trial court, the ease should be remanded to give the parties the opportunity to develop the issue. Swope v. Printz, 468 S.W.2d 34 (Mo.1971); Rockett v. Pepsi-Cola Bottling Co., 460 S.W.2d 737 (Mo.App.1970). The judgment on the four counts appealed is reversed and remanded for a new trial.

KAROHL and CRANDALL, JJ., concur.

      . Defendants are divorced, and only the former husband appeals.

      . All Missouri statutory references are to RSMo. 1978.


author: SMITH, Presiding Judge.

text:
    George I. HAUK and Theresa R. Hauk, Plaintiffs-Appellants, v. The FIRST NATIONAL BANK OF ST. CHARLES, a Banking Corporation, Defendant-Respondent.
    No. 48204.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 7, 1984.

      Melvin D. Benitz, St. Charles, for plaintiffs-appellants.
    Morris E. Stokes, St. Charles, for defendant-respondent.
   SMITH, Presiding Judge.

Plaintiffs, George and Theresa Hauk, appeal from a judgment against them in a court-tried case on their claim for breach of contract and from a judgment in favor of defendant, First National Bank of St. Charles, on its counterclaim. We reverse both judgments.

Plaintiffs were the holders of a note and first deed of trust on property owned by Russell Williams. The bank was the holder of second and third deeds of trust on the same property. On September 24, 1982, the bank foreclosed its deeds of trust and purchased the property at foreclosure sale. Payments on plaintiffs’ note were in arrears at the time of foreclosure. Various discussions occurred between the bank and plaintiffs to effectuate a pay-off of the note held by plaintiffs and release of their first deed of trust. Plaintiffs were reluctant to accept prepayment for tax reasons. They offered to accept prepayment on the basis of receiving from $11,000 to $15,000 more than the $58,000 plus due for principal and earned interest. The bank demurred to this arrangement and offered, through plaintiffs’ attorney, the amount of principal and interest due as of September 28,1982. That this offer was actually communicated to plaintiffs is not established by the record, nor does the record show this offer was communicated as a specified amount of money rather than generally as principal and interest due.

The note contained the following pertinent provisions:

“... payable in monthly installments of $872.92 (each of said payments to be first applied to the interest, and the remainder applied to the principal) on the 6th day of each month thereafter ...”
“The makers hereof reserve the right to mature and prepay any number of like installments on any installment due date, it being understood, however, that installments so prepaid shall be considered as prepaid in the reverse order of their maturity, that is to say, the last maturing installment shall be paid first.” (This prepayment provision applied to both the original and amended notes).

On October 13, 1982, counsel for the bank wrote directly to plaintiffs (at their home in Dallas, Texas) with copies to the bank president and plaintiffs’ counsel. The letter contained the following:

“The First National Bank recently was compelled to foreclose on a deed of trust that it had on certain property of Russell Williams, upon which you also had a deed of trust. The First National Bank did therefore tender to you $68,341.98 which was the amount due on your note according to your attorney Mr. Mel Benitz. For some reason, you declined to accept this tender.
“I wish to inform you that this money is available to you at any time at the First National Bank that you should elect to take it. You have only to contact Mr. Tom Boschert, President of the Bank, to receive this payment, and of course, surrender your note and deed of trust and execute a deed of release. All of these await you at the First National Bank.
“Meanwhile, I would inform you that your note does, indeed, carry a prepayment privilege and I, frankly, do not believe that you have any choice but to accept payment ....”

Plaintiffs sent the following mailgram to the bank president, which was received at 12 noon on October 18:

“Accept tender on Russell Williams deal of $68,341.98 per letter from your attorney Claude Knight dated October 13, 1982.
“Will send note, deed of trust, and executed deed of release to Mel Benitz.”

The following letter was sent on October 18 to Plaintiffs:

“Upon review of the foreclosure file on Russell Williams and my letter to you dated October 13, 1982,1 discovered that an error had been made and the amount of tender incorrectly stated.
“In order to set the record straight the amount should read $58,341.98 which was the correct figure given to me- by your attorney_”

On October 22 plaintiffs and their attorney appeared at the bank and presented the note, deed of trust, and executed deed of release and demanded $68,341.98. The bank refused and this suit followed. Plaintiffs sought to recover the figure contained in the letter of October 13 on the basis that a contract existed between the parties based on that letter and plaintiffs’ mail-gram of October 18. The bank counterclaimed seeking a declaratory judgment that it was entitled to prepay the note, that it made full tender on September 28, and sought an order that plaintiffs deliver the note, deed of trust, and deed of release in return for $58,341.98. It also sought a statutory penalty of 10% for improper refusal to release. The trial court found for defendant on plaintiffs claim, and awarded defendant what it prayed in the counterclaim except for the statutory penalty.

The trial court’s decision on plaintiffs’ claim was based upon its legal conclusion that the offer in the letter of October 13 required acceptance by presentation at the bank of the listed documents and that the offer was withdrawn prior to such acceptance. We disagree.

The operative law is stated in Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W.2d 1036 (1933) [1-4]:

“Of course, if an offer calls for the performance of an act, and further provides, either expressly or by necessary implication, that acceptance shall be made by performance of the act, then the acceptance must be in the manner indicated in the offer. But where an offer calls for the performance of an act, and does not provide the manner of acceptance, we know of no reason why the other party could not accept the offer and thus complete the contract by either performing the act called for in the offer, or by agreeing to perform it. The distinction between an offer which calls for a promise, and one which calls for the performance of an act, is that in the former, notice of acceptance is always essential, while in the latter such notice is not required if the act called for in the offer is performed, because performance of the act is an acceptance _ (Citations omitted) However, a holding that notice of acceptance is not essential where the act called for in the offer is performed, is not a holding that the offer could not be accepted by agreeing to perform the act called for in the offer.”

The act called for in the letter of October 13 was the surrender of the note, deed of trust, and an executed deed of release. The letter does not provide that acceptance of the offer could be made only by such act. In fact it provides for acceptance by contacting “Mr. Tom Boschert, President of the Bank.” Plaintiffs contacted Mr. Boschert by their mailgram and promised to perform the required act. Under the teaching of Daggett, supra, the promise to perform the required act was an acceptance of the offer made in the October 13 letter. The trial court therefore erred in its conclusion of law that the subsequent letter of October 18 served to modify the offer of October 13 prior to acceptance by plaintiffs.

We turn now to defendant’s contention that it is entitled to relief from the contract because of its unilateral mistake. In Sheinbein v. First Boston Corporation, 670 S.W.2d 872 (Mo.App.1984) we recognized that unilateral mistake could serve as an affirmative defense to an action in law for breach of contract. This defense becomes available if the accepting party knew or had reason to know that a material term expressed was erroneous because of a clerical mistake. Defendant bore the burden of establishing its affirmative defense. The trial court made no finding of fact that plaintiffs knew or had reason to know that the offer as transmitted was in error. The only reference in the findings of fact to this knowledge was to Mr. Hauk’s testimony “that he was unaware of the mistake and believed that the proposal contained in the letter of October 13,1982, was an offer reflecting a change in attitude on the part of the bank.” The trial court expressed no opinion on the credibility of this testimony. In its conclusions of law the trial court held: “The attempt of Plaintiffs to accept the mistaken payoff figure by mailgram on October 18, 1982, was not sufficient to create a contract to pay the mistaken sum because the purported acceptance did not meet the terms of the offer.” This conclusion would indicate that the Court found no basis for utilization of the unilateral mistake defense.

Further, the record does not show that plaintiffs knew or had reason to know of the mistake. All of Mr. Hauk’s dealings with the bank involved his insistence on receiving the principal, earned interest and some amount of unearned interest. This latter figure was set by Mr. Hauk at $15,-000 or approximately one-half of his estimate of the total unearned interest. His position was based on his interpretation of the prepayment provision that it did not eliminate the obligation to pay the full amount of each installment but only accelerated when payment could be made. The amount referred to in the first paragraph of the letter as the “amount due on your note according to your attorney” was not a definite figure supplied by the attorney. Rather it was a listing of principal and earned interest due as of July 15,1982, and a daily interest amount accruing. There is no evidence that plaintiffs knew what figures their attorney had supplied the bank or its lawyers. The evidence further does not demonstrate that plaintiffs were aware of what amount had previously been tendered to their attorney and refused or even that a definite sum was in fact tendered. The bank’s practice of dealing alternately with plaintiffs directly and then their attorney could well have prevented either from knowing precisely what the last offer consisted of, particularly in view of plaintiffs’ distant residence.

While the term “had reason to know” has been used on occasion interchangeably with “should have known” the terms are not synonymous. Fowler v. Park Corp., 673 S.W.2d 749 (Mo. banc 1984) [6]. The latter term signifies a duty upon a party to inquire whereas the former does not impose such a duty. Plaintiffs had no duty to inquire whether the figure in the October 13 letter was correct. It represented an offer of a lesser amount than plaintiffs had demanded and plaintiffs were justified in believing it represented a compromise by the bank. We find no evidence to support defendant’s affirmative defense of unilateral mistake.

Defendant also contends that there was no consideration for the contract because the prepayment provision of the note gave it an absolute right to prepay the note for the amount of unpaid principal and earned interest. We need not make a legal determination of the meaning of the prepayment provision. We do note, however, that some question does exist as to whether a tender of earned interest through September 28 meets the requirement that prepayment occur on an “installment date” which is delineated as the “6th” of each month. See Lowry v. Northwestern Savings & Loan Association, 542 S.W.2d 546 (Mo.App.1976) [2-4], It is also apparent that the language used in the note is less than crystal clear as to the amount required to be paid to prepay the note. The language utilized refers to advance payments of a full specified installment with the prepayment to be applied to the last payment due. It is at least arguable that such a provision serves to allow the debtor to shorten the time required to satisfy the note but does not reduce the total amount that must be paid. For a discussion of prepayment clauses as they affect both creditor and debtor see Dugan v. Grzybowski, 165 Conn. 173, 332 A.2d 97, 86 A.L.R.3d 591 (1973).

Those considerations aside the rule is that the compromise of a doubtful claim is good consideration for a contract. That, subsequently, one party is determined to have no right in law does not obviate the compromise. A claim as to which the doubt or dispute arises must be asserted honestly and in good faith. The party asserting it must have a reasonable belief in his ability to sustain it, although such belief may be due to an honest mistake. Only those disputed claims honestly and in good faith asserted, concerning which the parties may bona fide and reasonably disagree, will support a compromise. Dickey v. Johnson, 532 S.W.2d 487 (Mo.App.1975) [4]; B.H. Tureen Hotels, Inc. v. Nachman & Co., 317 S.W.2d 422 (Mo.1958) [3, 4]; Curry & Co. v. Hedrick, 378 S.W.2d 522 (Mo.1964) [11-13].

The trial court in its conclusions of law stated: “Plaintiffs were in violation of the terms of the note in failing to accept the principal and interest due at the rate of 12⅛⅜ per annum. The refusal to accept the full amount due on the note was in good faith but mistaken belief that the note did not permit prepayment, and no penalty should be assessed.” While we pass no judgment on the correctness of the court's legal conclusion of plaintiffs’ obligations under the note, the factual finding of good faith is binding upon us. Nor on the record before us do we disagree with that finding. The meaning of the prepayment provision is not free from doubt and plaintiffs interpretation thereof cannot be termed frivolous. The consideration was adequate.

In their brief plaintiffs have requested that judgment be entered on their claim for $68,341.98 and interest from October 22, 1982. This request does not correctly reflect the measure of damages for breach of the contract but rather seeks a recovery much like specific performance. In view of our conclusion in this ease, however, the entry of such a decree rather than an award of damages which would leave the note and deed of trust extant, can only inhere to the benefit of defendant. In order to conclude this litigation we will remand this cause with directions to the trial court to enter the judgment requested by plaintiffs ($68,341.98 and legal interest from October 22, 1982) upon consent of defendant, with the further order that upon satisfaction of said judgment plaintiffs surrender to defendant the note and deed of trust and an executed deed of release. If defendant withholds its consent, the trial court is directed to enter judgment for plaintiffs in the amount of $10,000 plus interest from October 22, 1982.

Cause reversed and remanded with directions on plaintiffs’ claim. Judgment on defendant’s counterclaim reversed.

SNYDER and SATZ, JJ., concur.

      . The original note executed in 1970 provided for payments of $945.33 monthly on the 30th of each month. The note was amended in 1981, after execution of the bank’s second and third deeds of trust, to increase the interest rate and change the monthly payments and date of payment. The amended note was not recorded. The bank treated the amended note as the operative one as did the trial court. There was evidence that the amended note was prepared for Mr. Williams by the law firm which represented the bank and which contained a member of its board of directors. That law firm withdrew from this litigation upon request of plaintiffs' attorney. Mr. Hauk testified that the board member advised him the note was proper, did not need to be recorded and that "everything is fine.” The bank admitted knowledge of the amended note shortly after its execution. We treat the amended note as the operative document.

      . See Hunt v. Jeffries, 236 Mo.App. 476, 156 S.W.2d 23 (1941) for a similar fact situation to that found in Daggett where, however, only performance of the act could serve as an acceptance. The terms of the offer distinguish the cases.


author: PER CURIAM.

text:
    Rhett LAWSON, Plaintiff-Respondent, v. Brent DOVER, Defendant, Shelter Mutual Insurance Company, Garnishee, Garnishee-Appellant.
    No. WD 35377.
    Missouri Court of Appeals, Western District.
    Nov. 7, 1984.
    John Banning, Oswald & Cottey, Kirks-ville, for garnishee-appellant.
    Brent J. Mayberry, Mayberry & Mayber-ry, Kirksville, for plaintiff-respondent.
    Before CLARK, P.J., and NUGENT and LOWENSTEIN, JJ.
   ORDER

PER CURIAM.

From a judgment in favor of the plaintiff-garnishor, a judgment creditor, the garnishee-insurance company appeals. The matter was determined moot due to complete satisfaction of judgment after appeal, and therefore the appeal is dismissed.


text:
    STATE of Missouri, Respondent, v. Russell L. MARTIN, Appellant.
    No. WD 35757.
    Missouri Court of Appeals, Western District.
    Nov. 7, 1984.
    James C. Dowling, Franklin & Dowling, Fulton, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   ORDER

PER CURIAM.

Appeal from conviction of driving while intoxicated, third offense, class B felony, Sections 577.010.1 and 577.023.1(2) RSMo Supp. 1982 and sentence of three years imprisonment.

Judgment affirmed. Rule 30.25(b)


author: GREENE, Judge.

text:
    Ronald E. ESSICK, Claimant-Respondent, v. The CITY OF SPRINGFIELD, Missouri, By and Through the BOARD OF PUBLIC UTILITIES of the CITY OF SPRINGFIELD, Missouri, Employer-Appellant.
    No. 13737.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 9, 1984.
    Kenneth W. Johnson, Johnson, Sweeney & Miller, Springfield, for claimant-respondent.
    Rae L. Nickell, Springfield, for employer-appellant.
   GREENE, Judge.

Employer, City Utilities of Springfield, appeals from the Labor and Industrial Relations Commission’s final award allowing compensation to claimant, Ronald E. Es-sick.

The facts of this case are not in dispute. Essick sustained an on-the-job injury on October 19,1981. As a consequence of this accident, he missed 44% weeks of work. During his period of temporary total disability, Essick received Worker’s Compensation in the amount of $7,805.17 (44% weeks times the stipulated compensation rate of $174 per week). Essick also received additional “disability pay” for 26 weeks, totaling $7,211.44, in order that his Worker’s Compensation pay be supplemented up to the amount of his regular net pay. This supplement was paid under the terms of a collective bargaining agreement between City Utilities and the International Brotherhood of Electrical Workers, Local 753.

The Administrative Law Judge (hereinafter AU) found that Essick had suffered a permanent partial disability in the amount of twenty percent of the body as a whole as the result of the injury, and rendered an award of $8,352 in his favor. The AU also rejected City Utilities’ claim for a credit, under the provisions of § 287.160.3, RSMo 1981, V.A.M.S. and § 287.100 RSMo 1978, V.A.M.S., as to the supplement paid Essick.

City Utilities appealed to the Commission which issued a final award allowing compensation that approved and affirmed the ALJ’s decision.

On appeal to this court, the sole question to be resolved is whether the Commission erred in denying City Utilities’ claim to a credit against the award. At the time of Essick’s injury, § 287.160.3 provided that, “the employer shall be entitled to credit for wages paid the employee after the injury, and for any sum paid to or for the employee or his dependents on account of the injury, except for liability under Section 287.140 [medical benefits].” City Utilities contends that the disability pay received by Essick was wages paid on account of the injury. This court has recently held such payments made under a collective bargaining agreement are not solely on account of the injury and thus the employer is not entitled to a credit. Evans v. Missouri Utilities Co., 671 S.W.2d 812, 816[3] (Mo.App.1984).

Evans involved a private employment situation whereas the instant case is one of public employment. In the public employment setting, City Utilities argues that § 287.100 mandates a credit for the employer. Section 287.100 states in the relevant part:

Nor shall anything in this chapter be construed as interfering with the right of any public employee to draw full wages, or collect and retain his full fees, so long as he holds his office, appointment or employment, but the period during which the same are received after the injury shall be deducted from the period of compensation payments due hereunder.

In construing § 287.100, it seems to us that the right to draw full wages, upon which this controversy centers, does not refer to the type of “right” conferred by a collective bargaining agreement. Aside from the collective bargaining agreement, Essick had no “right” to draw full wages upon his disability.

It has been noted, in a case involving a private employment situation, that § 287.-100 is not a credit provision for public employers, but rather a disqualification provision for public employees. At the time the Worker’s Compensation laws were passed, public employees, unlike their counterparts in the private sector, were generally allowed to continue at their full salary during disability. Strohmeyer v. Southwestern Bell Tel. Co., 396 S.W.2d 1, 7 (Mo.App.1965). In other words, § 287.100 was intended to neutralize any advantage that an employee drawing Worker’s Compensation benefits might gain solely because of his position as a public employee. It would be perverse to interpret this statute so that a public employee, who has successfully negotiated for the right to receive additional disability pay by the terms of his collective bargaining agreement, would be treated less favorably by the Worker’s Compensation laws than would a private employee who works under similar terms. We refuse to apply the disqualification provision of § 287.100 to a public employee when a private employee under the same type of terms would not be forced to forego the full benefits for which he has bargained.

In City of St. Louis v. Grimes, 630 S.W.2d 82 (Mo. banc 1982), the court held that wages paid to a public employee during the period of compensability under Worker’s Compensation may be offset against a permanent partial disability benefit as well as against temporary total benefits. City Utilities cites Grimes as an exception to the Evans case, which, in its opinion, would allow a public employer to offset wages paid to an employee even under a collective bargaining agreement. There is, however, no indication in the Grimes. opinion that the wages being paid to the public employee were done so pursuant to a collective bargaining agreement. Presumably, the court found in Grimes that the “right” to receive wages during the period of disability arose from a source contemplated under § 287.100, and thus was subject to being offset against the final award. Grimes does not apply under the facts in this case.

In interpreting § 287.100 and the case law in this area, we have kept in mind that all doubts are to be resolved in favor of the employee. Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 923[8] (Mo.App.1982). Accordingly, we determine that City Utilities is not entitled to a credit under § 287.160.3 nor to an offset under § 287.100.

The award and judgment are affirmed.

TITUS, P.J., and FLANIGAN, J., concur.

      . In 1983, the legislature amended § 287.160.3 to provide: "the employer shall not be entitled to credit for wages or such pay benefits paid to the employee or his dependents on account of injury or death."


author: GAERTNER, Judge.

text:
    Donald G. EVERETT, Plaintiff-Appellant, v. James L. BISHOP, Jr., Defendant-Respondent.
    No. 47761.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 13, 1984.

      Jeffrey Maguire, Cape Girardeau, for plaintiff-appellant.
    John L. Oliver, Jr., Cape Girardeau, for defendant-respondent.
   GAERTNER, Judge.

Plaintiff sustained serious injuries when the motorcycle he was operating collided with defendant’s automobile. Both vehicles were southbound on Fairlane Drive. As defendant made a right turn into the driveway of his residence, plaintiffs motorcycle struck the right front door of defendant’s automobile. Plaintiff claimed that as he was following defendant’s car it turned left across the center line. Plaintiff thought defendant was making a left turn into an intersecting street some distance beyond the driveway. However, according to plaintiff, he saw the automobile brake lights come on and it suddenly and without signal turned back to the right and into the driveway. Plaintiff was unable to stop before the collision. Defendant denied making an improper turn and charged plaintiff with contributory negligence by reason of excessive speed and following too closely.

Plaintiff appeals from the judgment entered upon a jury verdict in favor of the defendant. We affirm.

Plaintiff first asserts error in the admission of the opinion testimony of defendant’s witness, John Senne, an accident reconstruction expert. On direct examination plaintiff testified that upon seeing the automobile brake lights he applied first his rear wheel brake and then the front wheel brake in order to avoid cartwheeling. On cross-examination, his testimony was that he “slammed on his brakes.” He had used that identical expression in his deposition testimony which was read to the jury as an admission. It was undisputed that the motorcycle left 37 feet of skid marks.

Mr. Senne had prepared for his testimony by examining the scene of the accident, viewing photographs of the automobile, the police report and the deposition testimony. Under the conditions which existed, a motorcycle travelling 30 miles per hour would travel 33 feet during a ¾ second reaction time and an additional 30 feet after the brakes were applied. Therefore, he concluded, that plaintiff was driving in excess of the 30 mile per hour speed limit because even after leaving 37 feet of skid marks, the motorcycle was still moving at the time of impact. Based upon his examination of the photographs showing the damage to the automobile, he concluded the speed of the motorcycle at impact was 10 miles per hour, which, combined with the length of the skid marks, indicated a speed in excess of 39 miles per hour when the brakes were applied.

Having properly preserved his objection, plaintiff now makes a two-fold attack upon the admission of this opinion evidence. First he claims the foundation for the opinion was improper in that it was based upon calculations assuming both brakes were applied for the entire length of the skid, whereas plaintiff’s testimony was that he applied the rear brake first and the front brake later. We reject this argument, first because Mr. Senne testified the difference between a single or double brake application would be slight and, in either event, the facts indicated plaintiff’s speed exceeded 30 miles per hour. Secondly, plaintiff’s argument ignores the fact that plaintiff also testified to “slamming on the brakes.” A hypothetical question need not include every fact in evidence so long as it includes enough facts to support the questioner’s theory. Grindslaff v. Tygett, 655 S.W.2d 70, 74 (Mo.App.1983). “The questioner may elicit an opinion on any combination or set of facts he may choose, if the question propounded fairly hypothesizes facts the evidence tends to prove and fairly presents the questioner’s theory so that the answer will be of assistance to the jury on the issue.” Huffman v. Terminal Railroad Association of St. Louis, 281 S.W.2d 863, 870 (Mo.1955). Therefore, the discrepancy between plaintiff’s testimony on direct examination and that on deposition and cross-examination, while a matter for consideration of the jury in weighing the evidence and in determining credibility, is not material to the propriety of the hypothetical question.

Plaintiff also attacks the opinion testimony that he was traveling 39 miles per hour because it was based in part upon the opinion that his speed at impact was 10 miles per hour. He argues that the latter opinion was based solely upon the damage to the automobile as reflected by photographs, an improper and inadequate foundation for the opinion evidence of speed. We agree. In Missey v. Kwan, 595 S.W.2d 460, 463 (Mo.App.1980) an estimate of vehicular speed based in part upon the damage to the vehicles was held to be improper and of no probative value. This conclusion has even more validity here where the expert based his opinion only upon photographs of one vehicle as opposed to personal examination of both vehicles as in Mis-sey. However, as in Missey, we find the error in the admission of the evidence to be non-prejudicial. In that case the distinction between speed estimates based on damage and those based upon skid marks was examined. The distance in which a particular vehicle could be stopped under specified conditions when traveling at a certain speed after the application of the brakes can be mathematically computed. Skid marks, a corollary of braking distance, therefore provides probative value to an estimate of the speed of a vehicle at the time the brakes are applied. No such computation is derivable from vehicular damage. Id. at 463. Here, Mr. Senne testified that at a speed of 30 miles per hour, under the existing condition, the motorcycle could have been stopped in 30 feet after the application of brakes. Thus, the skid marks of 37 feet, even without the impact factor, established plaintiff’s speed to be in excess of the posted speed limit. Including a ¾ second reaction time, at 30 miles per hour plaintiff could not have stopped his motorcycle in less than 63 feet, according to Mr. Senne. Therefore, since plaintiff testified he was following defendant’s automobile at a distance of 40 feet or less, the two elements of the contributory negligence submission, excessive speed or following too closely, were fully supported even if the evidence of the 39 mile per hour speed had been excluded. In overruling plaintiff’s motion for a new trial, the experienced trial judge apparently recognized, and we agree, that no prejudice could have resulted from the admission of this testimony. Not being prejudicial, the error does not warrant reversal. Id. at 463.

Next plaintiff asserts error in refusing his request to strike a venireman for cause. A prospective juror, Mr. Hasten, was an employee of Chaffee General Hospital. Plaintiff’s attorney asked Hasten if he was familiar with either of the law firms in this case as they had both been involved in litigation concerning the hospital. The venireman denied any such familiarity. Defense counsel subsequently told Hasten that his firm represented the hospital which had been sued by the firm of plaintiff’s attorney. Hasten said this would have no bearing upon his consideration of the case. No objection was made to the obviously improper attempt to curry favor with the prospective juror. Rather, plaintiff’s attorney waited until the conclusion of the vóir dire examination and then challenged Hasten for cause. The trial court chose to accept Kasten’s statement that he was “just an Indian, not a chief” at the hospital and would therefore not be affected by the information regarding other irrelevant lawsuits. This ruling falls within the wide discretion vested in the trial court and will not be overturned on appeal absent an abuse thereof. State v. Pennington, 642 S.W.2d 646, 649 (Mo.1982). We see no such abuse here. The misconduct of defendant’s attorney could have easily been cured by a prompt objection and request for reprimand. The rather trivial incident certainly does not warrant reversal.

Plaintiff’s final contentions relate to rulings of the trial court on objections to final argument. It is such a firmly established principle of appellate review that such matters are within the broad discretion of the trial court that a detailed discussion of the incidents would have no precedential value. We find no abuse of this discretion.

The judgment is affirmed.

CRIST, P.J., and STEPHAN, J., concur.


text:
    In re the MARRIAGE OF Sam BAUGH, Petitioner-Appellant, and Rebecca Lynn Baugh, Respondent.
    No. 13397.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 14, 1984.
    Warren H. Sapp, Kansas City, for petitioner-appellant.
    Michael O’Keefe, North Kansas City, for respondent.
   GREENE, Judge.

Sam Baugh appeals from that part of a dissolution decree awarding custody of Scott Baugh, the two-year-old son of the parties, to his wife, Rebecca.

The sole issue is whether the trial court considered the proper criteria, including the relevant factors set out in § 452.375.2, in awarding custody. Section 452.375.2 provides:

2. The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
(1) The wishes of the child’s parents as to his custody;
(2) The wishes of a child as to his custodian;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school, and community;
(5) The mental and physical health of all individuals involved; and
(6) The needs of the child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child.

Relevant findings of fact by the trial court on this issue are:

9. Petitioner, Sam Ward Baugh, is an able-bodied twenty-five (25) year old male capable and desirous of earning a living. He has worked throughout the marriage and has applied his earnings to the support of himself, his wife, and their child. His conduct as a father has gone largely unchallenged and he desires to have custody of his son. He has obeyed the orders of this Court despite his displeasure with them. He considers his relationship with his son to be close and meaningful. Petitioner’s relationship with his father, Harold Baugh, is unusually close and appears to overshadow and determine petitioner’s other relationships. It is a father and son relationship appropriate to a child of younger age. Mr. Baugh, Sr., although well-intentioned, has created for his son a position of continuing dependency in which it is Mr. Baugh Sr. who is the real manager or decision maker. The influence of Petitioner’s father is so strong that it is difficult, if not impossible, to assess the independent capabilities and desires of the Petitioner, who has been deprived of the opportunity to stand alone and prove himself. He is at this point, psychologically, and financially dependent upon his father. It appears that the Petitioner has been forced to choose between his father and his wife, or between his “old” family and his “new” one. Petitioner receives approximately twelve thousand dollars per year, of which $8400.00 is classified by him as a gift from his father.
10. Respondent, Rebecca Lynn Baugh, is an able-bodied twenty year old female. She is capable and desirous of earning a living. She has worked throughout the marriage, except for a brief pregnancy leave, and has applied her earnings to the marriage. She is described as “Not the All-American girl, motherhood type — but more career-oriented” by her father-in-law. She seems independent, strong, resilient, and unwilling to accept the role of a dependent housewife apparently desired by Petitioner. She is, generally, unwilling to accept the kind of management which Petitioner accepts from his father. Her major complaints were directed almost exclusively at Petitioner and his father, she voiced only minor complaints in regard to the Petitioner himself. She has occasionally vented her frustrations in an indiscreet fashion, but these appear to have been passing episodes. If she were male, we would casually describe her as having sown some “wild oats.” She has displayed a desire to get on with a new life in a responsible fashion. Her relationship with her son is loving, close, and apparently normal. She is employed in what she considers to be a career position. Respondent earns approximately Nine Thousand Four Hundred Dollars per year.
11.The child, Scott Matthew Baugh, is a healthy and apparently well adjusted two (2) year old boy, requiring no extraordinary care. The child is possessed of no independent financial resources. He has resided with his mother in Kansas City, Missouri, for approximately two (2) months, attends day care while she works and accompanies her to her parents’ home in Clinton, Missouri, on most weekends. Alternate weekends are spent in his father’s custody in Clinton, Missouri.

In its conclusions of law, the trial court determined that Rebecca was the proper person to have custody of her son.

We have carefully read the 532 page transcript filed in this case. It was a swearing match with Sam’s witnesses, including his mother and father, attempting to prove that Rebecca was an unfit mother, and Rebecca’s witnesses attempting to prove that she was the proper custodian for Scott. It would serve no useful purpose to repeat the charges and counter charges made by the parties at the hearing. It suffices to say that when examined in the light most favorable to the prevailing party, Haswell v. Liberty Mut. Ins. Co., 557 S.W.2d 628, 633 (Mo. banc 1977), keeping in mind that the trial court was in a much better position than we are to judge the credibility of the witnesses, E_ (S)_v. E_, 507 S.W.2d 681, 683 (Mo.App.1974), the determination by the trial court that custody of Scott should be placed in Rebecca is supported by substantial evidence, is not against the weight of the evidence, and was not based on any erroneous declaration or application of law. It also shows that the trial court adequately considered statutory and other criteria relevant to the custody determination. This being so, the judgment pf the trial court should be affirmed. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Judgment affirmed.

TITUS, P.J., and FLANIGAN, J., concur.

      . All references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1978, V.A.M.S.