text:
    Charles McCLAIN, Movant, v. STATE of Missouri, Respondent.
    No. 48695.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 26, 1985.

      Doris G. Black, St. Louis, for movant.
    John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   GAERTNER, Judge.

Movant Charles McClain appeals from the dismissal without evidentiary hearing of his Rule 27.26 motion to vacate and set aside his consecutive life sentences for first degree murder and forcible rape. His conviction of these crimes was affirmed in State v. McClain, 536 S.W.2d 45 (Mo.App.1976).

In his motion to vacate, his counsel alleged ineffective assistance of trial counsel in (1) failure to seek disqualification of the prosecutor; (2) failure to request or submit instructions submitting murder in the second degree; (3) failure to impeach a state’s witness; and (4) failure to object to inflammatory and prejudicial argument of the prosecutor.

The standard for determining whether a Rule 27.26 movant is entitled to an evidentiary hearing is whether he has pleaded facts, not conclusions which, if true, would entitle him to relief and whether those factual allegations are refuted by the record. Ray v. State, 644 S.W.2d 663, 666 (Mo.App.1982).

Movant’s contention of ineffective assistance in failing to file a motion to disqualify the prosecuting attorney fails to meet this standard as it alleges mere conclusions and not facts. The motion alleges only that trial counsel “failed to file a motion to disqualify the prosecuting attorney on the basis of personal interest.” Movant does not allege any facts which may have constituted a personal interest, This conclusionary allegations fails to invoke any right to an evidentiary hearing,

Nor is an evidentiary hearing required to dispose of movant’s claim that his trial counsel was ineffective for failing to request a second degree murder instruction. This contention is conclusively refuted by the record. Lesser-included homicide instructions were not required in first degree murder trials prior to March 1, 1975. State v. Mudgett, 531 S.W.2d 275, 281 (Mo. banc 1975), cert. denied, 426 U.S. 910, 96 S.Ct. 2234, 48 L.Ed.2d 835 (1976). The state’s case was submitted to the jury on the theory of first degree felony murder, rape being the underlying felony. Under the rule in force at that time, there was no evidence to justify a lesser degree homicide instruction. The evidence at movant’s trial was that the victim was raped and then taken to another location, beaten and deliberately killed so that she could not identify him. The defense was alibi. Under this evidence movant was either guilty of first degree felony murder or of no crime whatsoever. Moreover, his trial counsel, consistently maintaining the alibi defense, agreed that no second degree murder instruction should be submitted. Failure to offer or request an instruction on a lesser-included offense as part of counsel’s trial strategy is not a basis for a claim of ineffective assistance of counsel. Arnold v. State, 632 S.W.2d 54, 55 (Mo.App.1982).

The record also refutes movant’s claim that his trial counsel was ineffective for failing to object to the prosecuting attorney’s closing remarks regarding the fact that movant had been in the penitentiary. The remarks were supported by testimony of witnesses that movant stated at the time of the offense that the victim had to be killed because “he wasn’t going to have anybody send him back to the penitentiary.” The argument was nothing more than a legitimate comment upon the movant’s expressed motive for the commission of the murder. No prejudice resulted from his trial attorney’s failure to object to such an argument.

The final point asserted by mov-ant in his motion charges ineffective assistance of trial counsel in failing to impeach a state’s witness “by means of perjury at the prior trial of movant....” Movant’s first conviction of these offenses and sentence to death was reversed by the Missouri Supreme Court. State v. McClain, 498 S.W.2d 798 (Mo. banc 1973). A witness, Larry Smith, testified at the first trial that he had been charged as a co-defendant with movant but that he had been given no assurances of a light sentence in return for his testimony. It developed that the charges against him were dismissed on the same date that he testified. The Supreme Court reversed the conviction for the reason that “the failure of the prosecutor to disclose that the charge against Smith had been dismissed requires a new trial....” Smith testified at the second trial and the fact that the charges against him had been dismissed was fully developed on both direct and cross-examination. Movant's allegations regarding perjury are mere conclusions. He does not allege that at the time Smith testified that he had no assurance of leniency he was aware of the dismissal of the charges against him. He does not allege that there was a relationship between Smith’s testimony and the dismissal. Moreover, we do not fault trial counsel who, having fully developed the fact that charges against a state’s witness had been dismissed prior to his testimony, determined as a matter of trial strategy to make no reference to a prior trial, conviction and assessment of a death penalty against his client. Failure to impeach a witness as a matter of trial strategy does not serve as a basis for a charge of ineffective assistance of counsel. Jackson v. State, 540 S.W.2d 616, 617 (Mo.App.1976).

The judgment is affirmed.

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


source: Caselaw Access Project

author: CRANDALL, Judge.

license: Public Domain

text:
    Lucille FOLK, Administratrix of the Estate of Gary L. Folk, Deceased, Respondent, v. COUNTRYSIDE CASUALTY COMPANY, Appellant.
    No. 48784.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 26, 1985.
    Dennis Herbert Tesreau, Hillsboro, for appellant.
    Kurt D. Breeze, Hillsboro, for respondent.
   CRANDALL, Judge.

This appeal involves an action on an automobile insurance policy. We affirm in part and reverse in part.

Gary L. Folk purchased an automobile insurance policy from defendant, Countryside Casualty Company. Among the questions asked on the application for insurance was whether Mr. Folk had a physical or mental impairment during the last three years. Mr. Folk answered in the negative. Subsequently he was killed in a one-car accident. The insured vehicle was admittedly a total loss as a result of the accident. It was discovered that Mr. Folk had been prescribed medication for epilepsy. Defendant refused payment for the motor vehicle and returned the premium paid by Mr. Folk to his mother Mrs. Lucille Folk.

Plaintiff, Lucille Folk, in her capacity as Administratrix of the Estate of Gary L. Folk, Deceased, brought this action against defendant under the collision coverage of the insurance policy for property damage to the motor vehicle. The case was tried to a jury. Defendant raised the defense of fraudulent misrepresentation by Gary L. Folk in his application for insurance in that he failed to disclose that he suffered from and was being treated for a convulsive disorder. The jury returned a verdict in favor of plaintiff. The trial court entered judgment for plaintiff for the stipulated amount of property damage plus interest from the date of the notice of loss. The amount of premium plus interest was awarded to defendant.

Defendant alleges four points of trial court error: (1) requiring defendant to add to its affirmative defense instruction the element that decedent knew the representation was false; (2) failing to grant defendant’s motion for a directed verdict because the evidence indicated decedent had represented he had no physical or mental impairment, and that the representation was false and material; (3) refusing to admit evidence of decedent’s three traffic convictions where that evidence would support a finding of an overall intent by decedent to mislead the insurance company; and (4) in allowing plaintiff prejudgment interest on the judgment.

We now consider defendant’s first point. Plaintiff’s verdict-directing instruction correctly required the jury to find that the insurance policy was in force at the time of the accident and that the loss occurred. Haynes v. Missouri Property Ins. Placement Facility, 641 S.W.2d 497, 499 (Mo.App.1982). Defendant proffered the following affirmative defense, being Instruction No. A.

Your verdict must be for defendant if you believe:

First, decedent represented in the application for the policy that during the past three years he had no physical or mental impairment, and
Second, the representation was material, and
Third, the representation was false.

The trial court refused to give defendant’s tendered instruction. The phrase “Fourth, the decedent knew that the representation was false” was added to the instruction and that instruction was given to the jury. The issue then is not whether the instruction as given sets out all the elements necessary to justify a verdict in favor of defendant, but whether the requirement of decedent’s knowledge of falsity is required.

Defendant in its answer pleaded a fraudulent misrepresentation defense. The defense at trial was fraudulent misrepresentation. One of the elements of that defense is knowledge by the person making the representation that it is false. Prudential Property & Casualty Ins. Co., Inc. v. Cole, 586 S.W.2d 433, 436 (Mo.App.1979); Toler v. Missouri Ins. Co., 243 S.W.2d 788 (Mo.App.1951). This element is particularly important under the facts of this case. We assume, arguendo, that Gary L. Folk suffered from epilepsy. The issue, however, is not whether he misrepresented the fact that he had epilepsy but whether he fraudulently misrepresented the fact that he suffered from a physical impairment. Did this convulsive disorder, which may have been controlled by medication or which may have been in total remission, constitute a physical impairment particularly in the mind of the insured? Did the insured know that he was making a false statement to the insurance company? This is a question peculiarly within the province of the jury to decide.

The cases cited by defendant are inapposite. Minich v. M.F.A. Mutual Ins. Co., 325 S.W.2d 56 (Mo.App.1959); Miller v. Plains Ins. Co., 409 S.W.2d 770 (Mo.App.1966). They deal with breach of warranty cases. Defendant's proffered instruction which was refused by tbe trial court is admittedly a modified affirmative defense instruction (MAI No. 32.20) based on breach of warranty. Whether defendant could have pleaded breach of warranty in its answer and properly offered an appropriate instruction at trial is doubtful based upon the record in this case. The question, however, is academic. The defense was fraudulent misrepresentation. Our review on appeal is limited to the same theories heard by the trial judge. Miller v. Plains Ins. Co., 409 S.W.2d 770. Defendant’s first point is denied.

Since defendant’s second point is based on the validity of its first point, it is also denied.

Defendant’s third point claims error in the court’s refusal to admit evidence of the decedent’s prior traffic convictions to prove his propensity to lie on the application. Decedent had answered “No” to the question on the application asking whether he had been convicted or forfeited bail or bond for a moving traffic violation in the preceding three years.

Defendant’s argument further indicates that its theory of defense was fraudulent misrepresentation rather than breach of warranty. The evidence of prior traffic convictions was not offered as an affirmative defense since it was not pleaded, but rather to show some scheme of deception. The defendant reissued the policy after knowledge of these traffic convictions. Further, the evidence was of little probative value. We find no abuse of discretion by the trial court. Defendant’s third point is denied.

Defendant’s fourth point claims the court erred in allowing plaintiff to recover prejudgment interest, because it was not requested in plaintiff’s pleadings. The plaintiff’s pleadings do not ask for prejudgment interest; and despite some discussion regarding this issue at trial, there was no request to amend the pleadings.

The statute regarding prejudgment interest is § 408.020, RSMo (Supp.1984), which has been held to apply to insurance cases such as this. DeLisle v. Cape Mutual Ins. Co., 675 S.W.2d 97, 104 (Mo.App.1984); Schultz v. Queen Ins. Co., 399 S.W.2d 230, 236 (Mo.App.1965).

Defendant cites us to Fleetwood v. Milwaukee Mechanics Ins. Co., 220 S.W.2d 614, 616 (Mo.App.1949), which is an insurance case involving property damage. The court held that without a claim for interest in the petition, interest could not be awarded.

More recently in Colletta & Sons, Inc. v. R.J. Stephens Drywall & Painting Co., Inc., 670 S.W.2d 114, 115 (Mo.App.1984), the appellant contended that prejudgment interest should not have been awarded since it was not specifically referred to in the body of a counterclaim although it was referred to in the prayer. This court held: “All of the facts necessary for an award of prejudgment interest were included in the body of the counterclaim and the prayer requested interest. That is sufficient to authorize an award of such interest under Sec. 408.020_” Implicit in this court’s holding is the requirement that the issue of prejudgment interest appear in the pleadings.

This same implication is found in General Aggregate Corp. v. LaBrayere, 666 S.W.2d 901, 910 (Mo.App.1984), where this court held that because the plaintiff in the pleadings requested “such other relief as may be proper,” prejudgment interest could be recovered.

In the present case the petition prayed for the “value of the aforementioned property loss, and for her costs therein expended.” The petition stated that demand for payment had been made but did not state on what date. All the facts necessary for an award of prejudgment interest were not included in the pleadings.

Plaintiff cites to Slay Warehousing Co. v. Reliance Ins. Co., 489 F.2d 214, 215 (8th Cir.1974), which held “the award of prejudgment interest in a case in which Section 408.020 is applicable is not a matter of court discretion; it is compelled.” Plaintiff claims this would allow for the award of prejudgment interest regardless of the pleadings. Such an interpretation was not adopted in Garrett v. Citizens Savings Assn., 636 S.W.2d 104, 112 (Mo.App.1982), where the court cited Slay in stating: “Section 408.020 had been applied to mandate an award of prejudgment interest ... where a demand was made in the petition and the amount due under the contract is readily ascertainable, if not strictly liquidated.” (Emphasis added.) In Garrett, the plaintiff had been granted leave to amend the petition to add a request for prejudgment interest.

We hold that plaintiffs recovery is limited by her petition and therefore, the award of prejudgment interest was erroneous.

The judgment of the trial court is affirmed with respect to the $6,279.19 due under the insurance policy for the property loss. The judgment is reversed with respect to the $2,796.57 in prejudgment interest awarded to plaintiff.

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

      . In a recent case the Western District summarized what it called the conflict regarding misrepresentations in insurance cases but did not resolve the perceived conflict. DeLisle v. Cape Mutual Ins. Co., 675 S.W.2d 97, 100 (Mo.App.1984).

      . Of course, plaintiff is entitled to interest on the $6,279.19 from the date of judgment to the date of satisfaction. § 408.040, RSMo (Supp. 1984).


author: KELLY, Judge.

text:
    Sharon KLEINFELD, Plaintiff-Appellant, v. GRANETO DATSUN, INC., Defendant-Respondent.
    No. 48968.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 26, 1985.

      Thomas F. Flynn, St. Louis, for plaintiff-appellant.
    Frank Susman, Clayton, for defendant-respondent.
   KELLY, Judge.

Sharon Kleinfeld appeals from an order of the Circuit Court of St. Louis County quashing a subpoena duces tecum directed to Fred Graneto requiring him to produce at an Examination of Judgment Debtor the records of Graneto Datsun, Inc., and of Fred Graneto and his family for the purpose of tracing the money received by him from the sale of Graneto Datsun, Inc., in an effort to show a transfer in fraud of creditors. We dismiss.

This appeal has its genesis in an action for fraud and misrepresentation surrounding the sale of a 1976 Fiat automobile. The defendants in said cause were Graneto Dat-sun, Inc., a Missouri corporation, and William Noel, an employee and agent of said corporation. Fred Graneto was the President of Graneto Datsun, Inc.; he was not a named party to the litigation.

On December 3, 1982, appellant obtained a partial summary judgment as to liability against Graneto Datsun, Inc. alone, and on March 23, 1983, was awarded a money judgment of $2,500.00 compensatory damages and $50,000.00 punitive damages.

Appellant moved for an examination of the judgment debtor corporation and this was granted on March 28, 1984. She served upon Mr. Graneto a subpoena duces tecum as President of the Corporation. Mr. Graneto filed his Motion to Quash the subpoena duces tecum as to certain documents requested in the subpoena duces te-cum. On July 18,1984, after a hearing, the trial court sustained said motion. This appeal followed.

Examination of the Judgment Debtor, pursuant to § 513.380, RSMo 1978 and Rule 76.27, is a supplementary proceeding, summary in nature, and intended to disclose fraudulently concealed property in order that it may rightfully be subjected to the payment of a just debt. Ackerman v. Green, 201 Mo. 231, 100 S.W. 30, 32 (1907). The court upon hearing the evidence in a judgment debtor examination proceeding has no power to issue any kind of order or judgment, but rather to deliver an opinion in writing stating whether the debtor has and owns property which ought to be applied to the payment of said judgment. Said opinion is purely advisory. A.D. Lumber Co., Inc. v. Wilson, 672 S.W.2d 383, 384 (Mo.App.1984). Section 513.380 makes no provision for an appeal and therefore no appeal lies from an order for such examination. Ackerman, supra at 33 — 34[6]. The Supreme Court, in Acker-man, pointed out that the statute is eom-píete within itself, and the nature of the proceeding and the object to be sought thereby are contradictory to the right of appeal. Because of the summary nature of the proceedings to allow an appeal would defeat the very purpose of the proceedings. Ackerman, Id., p. 34.

The appeal in this case is not from a final judgment, but rather from an order quashing a subpoena duces tecum. Right of appeal is statutory and, except as to certain special orders, an appeal may be taken only from a final judgment, § 512.-020, and, in general, for a judgment to be final it must dispose of all parties and all issues in the case. Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693 (1952). It is clear that the quashing of a subpoena duces tecum is not a final judgment nor is it a “special order” as that term is employed in § 512.020. Therefore no appeal from an order quashing a subpoena duces tecum in an Examination of Judgment Debtor proceeding under § 513.-380 and Rule 76.27 is authorized.

Appeal dismissed.

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

      . All statutory citations are to RSMo 1978.


author: CLEMENS, Senior Judge.

text:
    TANK TRAILER, INC., Respondent, v. MISSOURI STATE HIGHWAY AND TRANSPORTATION COMMISSION, Appellant.
    No. 49024.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 26, 1985.
    Bruce A. Ring, Dennis J. Redel, Jefferson City, for appellant.
    Eric C. Harris, Mayhugh & Harris, Flat River, for respondent.
   CLEMENS, Senior Judge.

The Highway Commission initially won on its complaint against Tank Trailer, Inc. (the company). This in a hearing before the commission’s hearing examiner. However, when this ruling came on for review the circuit court found against the commission; it has appealed to our court.

The commission’s complaint was based on its regulation barring advertising signs — even on the advertiser’s own land— located within a prescribed distance from the highway right-of-way; this, even if the intervening space is used for “an agricultural activity”.

Here the appellant highway commission contends the record refutes the trial court’s finding the space between the highway and the challenged sign was not an agricultural activity. In this the commission would disregard hearing testimony of its own witness: A letter written by the company’s president to the commission describing the use and purpose of the land lying between its plant on the highway and its advertising sign. By that exhibit the company declared the land is not used for agricultural purposes; instead, its purpose is a storage area for materials used in the company’s manufacturing business.

The trial court’s judgment for the company declared: (1) Between the company’s office and the challenged sign there is no other land use. (2) The record does not show any existing farm land. (3) The company owns and uses the entire tract for storage of parts integral to its business. (4) The commission’s challenged order is not supported by competent evidence.

Thereupon the trial court entered judgment against the commission. That decision was based on evidence refuting the commission’s finding the land was agricultural; it supported the company’s contention the land was commercial.

In Ross v. Robb, 662 S.W.2d 257[1] (Mo. banc 1984) the court held that on appeal from an administrative decision our “review is limited to a determination whether the decision was supported by competent and substantial evidence upon the whole record or whether it was arbitrary, capricious, unreasonable or an abuse of discretion.” When the commission order is not affirmatively supported — and here it was not — its decision cannot stand. Lindsey v. Taylor, 541 S.W.2d 38[1] (Mo.App.1976).

Affirmed.

CRIST, P.J., and CRANDALL, J., concur.


author: DIXON, Judge.

text:
    STATE of Missouri, ex rel. James C. KIRKPATRICK, Plaintiff-Respondent, v. The BOARD OF ELECTION COMMISSIONERS OF ST. LOUIS COUNTY, Missouri, Defendant-Appellant, and John Fox Arnold and Al Bauer, Defendants-Intervenors-Appellants.
    No. WD36153.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1985.

      Curtis, Bamburg & Crossen by Kenneth M. Romines, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Bruce Farmer, Asst. Atty. Gen., for plaintiff-respondent.
    Before PRITCHARD, J„ P., and SHAN-GLER and DIXON, JJ.
   DIXON, Judge.

Secretary of State Kirkpatrick as plaintiff filed a suit in declaratory judgment and for injunction. The individual defendants intervened and all parties filed motions for summary judgment. The court sustained the Secretary’s motion, and the Board and Intervenors appeal.

The issue is whether the Secretary may require by regulation, and in turn the court by its decree, that a ballot label and ballot card contain only the names of candidates of one political party and further require that polling booths be identified by party label in primary elections.

At the threshold of this appeal is an issue of mootness. The suit was filed prior to the 1984 primary election and as to the 1984 primary, the issues are moot. The issues may recur in other elections in St. Louis County and may arise in other areas of the state. In view of the continuing viability of the issues, the case will be determined despite the mootness of the issue as to the particular election. State ex rel. Donnell v. Searcy, 347 Mo. 1052, 1059, 152 S.W.2d 8, 10 (banc 1941); State ex rel. Hooker v. City of St. Charles, 668 S.W.2d 641, 643 (Mo.App.1984); State ex rel. Southwestern Bell Telephone Co. v. Public Service Comm’n of Missouri, 645 S.W.2d 44, 51 (Mo.App.1982).

The dispute arises from the mechanisms utilized by the Board in the conduct of primary elections. The papers and the paraphernalia utilized in the primary election process have been filed as an exhibit in this court. When the voter presents himself or herself to the election judges and is identified as an eligible voter, the procedure requires that the voter identify the ballot for the primary election in which the vote is to be cast. The voter may choose the Democratic, Republican ballot, or where such ballots are available, the ballot of the independent or other recognized party participating in the primary election. When the voter has made the selection, the judges of the election deliver to the voter a “ballot card.” This ballot card is color coded to indicate the party affiliation but otherwise contains no meaningful information. It contains only rows of numbers, each of which is positioned upon a round, partly-punched section of the card. Under the procedures here in question, the voter then repairs to any of the voting booths and is confronted with a plasticized booklet denominated the “ballot label.” The voter is instructed to place the ballot card in a slot provided under the “ballot label.” Alignment of the card is accomplished by inserting the upper end of the “ballot card” over posts affixed to the device. The booklet that is the “ballot label” is affixed to the device so that it is positioned above the ballot card in alignment with the “ballot card.” The pages of the “ballot label” contain the names of the candidates for each office on a separate page. In the instance of the disputed procedures, this “ballot label” contains in sections the names of the candidates for each party participating in the election.

The voter accomplishes his or her voting selection by turning to the appropriate page for the office to be voted and inserting a small stylus in the hole provided in the “ballot label” beside the chosen candidate’s name. This causes the stylus to complete the punch out of a “hole” and number in the “ballot card.” The voter, after completion of the voting, removes the “ballot card” and places it in a folder provided. Protruding from the folder is an identifying “tag.” This “tag” is perforated to permit its removal by the election official in charge of the ballot box, the “tag” is retained as part of the election records. The “tag” is the same color as the “ballot card.” The vote is tabulated by inserting the remaining portion of the “ballot cards” in a device that “counts” a vote for each perforation appearing in the “ballot card.” Each perforation is designated for a specific candidate, and no other. The dispute in the instant case centers upon the universal character of the “ballot label” containing the names of the candidates of all parties in the primary election. There is no question but what a voter may roam over the whole field of candidates in all of the parties and punch a hole beside the names of candidates in the same race in different parties. Also, the process permits the voter to vote in different party primaries for different candidates. The stipulation of facts is less than explicit as to the effect of such actions by voters. The stipulation in relevant part states:

20. The system in St. Louis County, Missouri, at primary elections, is set to reject the vote, except write-in votes, for any office and on any question when the number of votes exceeds the number of votes a voter is lawfully entitled to cast.
23. The system in St. Louis County, Missouri, at primary elections, uses automatic tabulating equipment that will reject each ballot on which a voter has voted for candidates of more than one party, by not counting a vote punched in punch positions other than the party designated by the voter in advance to an election judge.

(Emphasis added.)

From that stipulation and the response to the court’s inquiries during the oral argument, it appears that the mechanical counting device excludes only the vote for the candidate of a party different than the ballot card utilized. If the voter has made multiple choices for the same office, the choice for the office, appropriate to the ballot card used, will be counted and only the choice for candidate of the other party will be rejected. If the voter has made choices for different offices in different primaries, only the votes in the primary selected by the voter will be counted.

The Secretary filed a petition in the Cole County Circuit Court for declaratory judgment and a permanent injunction. He asked that the Board be required to label the polling booths by political party affiliation and that separate ballot labels be provided, each containing the names of only one political party, otherwise he would not certify the St. Louis County August 1984 primary election results, asserting they would be in contravention of Chapter 115 RSMo 1978. John Arnold and A1 Bauer, voters in St. Louis County and members of the Board, then asked and were granted permission to enter the suit as defendants-intervenors, alleging the result of sustaining Kirkpatrick’s argument would be to destroy the constitutionally and statutorily mandated secrecy of their vote. After entering into the stipulation of fact, the parties filed cross-motions for summary judgment. On July 13, Judge Kinder sustained the Secretary’s motion and entered an order for declaratory judgment and permanent injunction, requiring that the Board provide separate voting devices for each political party or ticket offering candidates at the primary election and that voters be supplied with a ballot label containing the names of only those candidates of the political party the voter had previously designated. On July 27, the Board and defendants-intervenors’ petitions for a writ of prohibition or a stay of injunction, filed in both this court and the Supreme Court, were denied. The Board and intervenors have appealed from the judgment of the circuit court.

The manner in which the joint brief of appellants has been framed makes it difficult to determine the issues posed. The appellant-intervenors set forth in the brief a point with four subpoints. The appellant Board repeats the point and subpoint in exactly the same language. The point is as follows:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO RESPONDENT AS TO DEFENDANT-INTERVENORS ARNOLD AND BAUER [AND DEFENDANT BOARD] IN THAT:
(A) The trial court’s decree was without substantial evidence to support its conclusion that defendant-intervenors were obligated ... to make a public demonstration of their partisan party preference before other voters ...;
(B) The trial court’s decree was against the weight of the evidence to support the granting of summary judgment in that the evidence showed that the manner in which partisan primaries are conducted in St. Louis County, Missouri, complied with the election laws by not compelling voters to vote in polling booths labeled Republican, Democrat, and non-partisan;
(C) The trial court’s decree erroneously declared the law by holding that the manner in which partisan primaries are conducted in St. Louis County, Missouri violated §§ 115.225, 115.229, 115.395 and 115.397 RSMo, 1978, as amended.
(D) The trial court’s decree erroneously applies the law to a factual circumstance which in all respects complied with the election laws of the State of Missouri, and specifically complied with §§ 115.225, 115.229, 115.395 and 115.397.

Subsections A and B do not raise any issue properly reviewable where a motion for summary judgment has been sustained. The evidentiary review of a court-tried case under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), is not involved in the review required in a case where summary judgment is granted. Review of a summary judgment is a two-step process, first, a determination that there is no genuine issue of fact requiring trial; second, that the judgment is correct as a matter of law. Kaufman v. Bormaster, 599 S.W.2d 35 (Mo.App.1980); Brooks v. Cooksey, 427 S.W.2d 498 (Mo.1968). The record in this case has been examined meticulously and no issue of fact appears. There is no dispute of fact; the issue is whether, under the facts shown, the judgment is correct as a matter of law. The argument portion of the appellants’ brief does not suggest a factual dispute. What the appellants do argue is that the trial court misinterpreted the law in applying it to the stipulated facts.

Despite the confusing and abstract nature of the points by resorting to the argument portion of the brief, the issues may be stated as follows:

1. Does the court’s order that voting booths be labeled with partisan labels in a primary election impinge upon the secrecy of the ballot?
2. Is the requirement of the court’s order that separate ballot labels be provided lawful?
3. Does the law permit the court to order separate voting booths for each party participating in the primary?

The appellants concede in connection with the first issue that the court’s decree did not specifically order that the voting booths be identified with party labels. The court’s order is couched in statutory terms and directs that a “voting device” for each party participating in the primary be provided. Appellants argue that this necessarily requires that the booths must be labeled so that voters will be able to vote properly. The essence of the argument is that by labeling the booths, “the secrecy of the ballot” is compromised and voters will be required to make a “public demonstration” of their partisan party preference before the other voters. In support of this argument, appellants cite Mo. Const. Art. VIII, §§ 2 and 3 (1945). In the brief, they say

Distilled, it is the argument of Defendant-intervenors Arnold and Bauer that they need not wear Scarlett [sic] “D’s”, “R’s”, or “N’s”, before other voters in a polling place in order to participate in a partisan primary in Missouri.

It might be legitimately questioned why a voter who seeks to vote in a partisan primary would consider others’ knowledge of that choice a matter of opprobrium or a “scarlet letter” unless there were some impropriety or appearance of impropriety in the voter’s choice. Missouri is and has been an “open primary” state in the sense that no prior party registration is or has been required as a prerequisite to participation. Primaries, nonetheless, are party elections seeking to find the candidates of a party whom the adherents of that party wish to seek office in the name of the party. Implicit in that process, is the notion that the voters who participate and vote for a party candidate want to elect him to the office he seeks. Under prior versions of the election code, there were provisions permitting challenge to a voter’s choice of party in the primary and requiring upon such challenge an affidavit of support for the candidates of the party, whoever they might be. See §§ 120.460 and 120.470 RSMo 1959. The appellants argue that the failure of the legislature to continue these provisions in the election law indicates a legislative intent to remove any “public demonstration” of the voter’s party preference. That assumption of intent has no support, other than its assertion. It is merely speculation as to legislative intent. The legislature might as well have concluded that the previous requirements were too rigorous and that a voter who was challenged was, in effect, deprived of his right to “split” his or her ticket if his or her nominee lost. Likewise, the oath could be read to require adherence to the electors for the Presidency of the particular party although under the Missouri primary system, the voter has no vote for the candidates for the office of the Presidency. Many other equally plausible reasons for the legislative action might be suggested. Absent some other confirmation such speculation can afford no basis for construction of the statute. In fact, the present statutes do not support the appellant’s analysis of the omission. The statutes still require a public disclosure of the voter’s party preference as the voter must announce to the election official which ballot is to be used. At least some other persons may be aware of that choice. The voter is handed a ballot, which, in the case at bar, is color-coded to designate the party selected. At least a portion of the ballot is visible in the voter’s hands as he or she enters the booth. The ballot tag is removed by another official and any other voter present can determine the party chosen by the color of the tag by observation at either time when the tag is visible.

There is simply no expectation of absolute secrecy of party choice when a voter participates in a party primary. The appellants argue that the requirements of Art. VIII, § 3 require absolute secrecy, including the voter’s choice of party. That construction of Art. Ill has not been found in any legal authority. To accept it would invalidate even the requirement that the voter announce his or her party preference. The vote referred to in the constitutional provision in the context of a primary is the selection of candidates, not the selection of a party. No one has ever contended that the requirement that the voter announce his or her party selection in the primary was a violation of the secret ballot. Appellants do not now so contend but concede that the requirement that the voter announce a party preference was upheld in State ex rel. McClellan v. Kirkpatrick, 504 S.W.2d 83 (Mo. banc 1974), which rejected an argument that such a declaration was an additional qualification to vote not constitutionally permitted. Throughout the argument appellants have characterized the secrecy of the ballot as “absolute secrecy,” and they cite statutes requiring that election officials not disclose how any person voted.

There is no doubt that absolute secrecy is imposed as to the vote, that is, to the choice of candidates. However, the very nature of a separate party primary and the statutes providing for it, show that the choice of the party is not subject to absolute secrecy as appellants argue.

The second issue requires consideration of the facts in light of the statutes. At primary elections in St. Louis County, the ballot label and the ballot card together comprise the ballot. § 115.013(3) RSMo Supp.1984. The parties stipulated that “the defendants in primary elections in St. Louis County utilize ballot labels which are inserted in a vote recorder, in each polling booth, which contain the names of candidates for office for each and every political party and ticket authorized by law to offer candidates for office at a primary election.” The crux of this issue is that, in the ballot labels, the voter is confronted with the names of candidates of not only his chosen political party, but with the names of candidates of all other political parties as well. This runs squarely counter to the mandate of §§ 115.225.2(6), 115.395.1, and 115.397 RSMo 1978. § 115.225.2(6) states, “[n]o electronic voting system shall be approved unless it (6) Permits each voter in a primary election to vote for the candidates of only one party announced by the voter in advance.” § 115.395.1 provides, “[a]t each primary election, there shall be as many separate ballots as there are parties entitled to participate in the election,” and § 115.397 states, in pertinent part, “[i]n each primary election, each voter shall be entitled to receive the ballot of one and only one political party, designated by the voter before receiving his ballot.” Read in conjunction, these sections clearly require that a voter be given a ballot (e.g., a ballot card and a ballot label) specific to the party he previously designated to the election judge. As a necessary corollary, the ballot, to permit the voter to vote for the candidates of his party alone, must contain only the names of those candidates within his designated party. This the ballot, as used in St. Louis County primary elections, does not do. It permits the voter, by giving him a ballot label containing the names of all of the candidates, to cast a vote for a candidate of a different political party than that he previously designated and potentially to cast a vote for a candidate within his party and one in another party for the same race. If this occurs, the tabulating equipment rejects “each ballot on which a voter has voted for candidates of more than one party by not counting a vote punched in punch positions other than the party designated by the voter in advance to an election judge.” Apparently, in St. Louis County the rejection causes the voter to lose only the vote “improperly” cast for a candidate of a different party. § 115.229.1 provides, however, that “[a]n automatic voting system may be used ... if the automatic tabulating equipment will reject each ballot on which a voter has voted for candidates of more than one party.” Thus, the St. Louis scheme differs from that statutorily mandated and must fall.

Appellants attempt to counter this by pointing to §§ 115.225.2(8) and (9), which state: “No electronic voting system shall be approved unless it (8) Accurately counts all proper votes cast for each candidate and for and against each question; (9) Is set to reject all votes, except write-in votes, for any office and on any question when the number of votes exceeds the number a voter is lawfully entitled to cast.” They assert, because the voter properly casts votes only for candidates within his designated party and because the automatic tabulating equipment rejects votes for candidates in other parties or double votes in the same race, the St. Louis County system complies with the statute. Appellants ignore, however, the implicitly conjunctive nature of the subsections of § 115.225.2 and the explicit mandate of § 115.225.2(6), requiring that voters be permitted to vote only for the candidates within the party the voter previously designated. They also ignore State ex rel. McClellan v. Kirkpatrick, 504 S.W.2d 83 (Mo. banc 1974), wherein the court stated, “[h]ad the General Assembly intended that all of the ballots could be printed upon one sheet of paper and delivered to the voter, it would have so provided_” Id. at 87. Because the ballots in St. Louis County primary elections do not comply with Chapter 115 RSMo 1978, the Election Code, the court correctly granted the Secretary’s motion for summary judgment and ordered St. Louis County to provide the voters with ballot labels containing the names of only those candidates affiliated with the political party the voter previously designated to the election judge.

The third issue raised by the appeal is whether the court’s order that the Board must in some fashion designate (e.g., label as Republican, Democratic, and non-partisan) the polling booths at primary elections is lawful. This involves the Secretary’s interpretation, adopted by the trial court, of 15 CSR 30-10.030. The parties stipulated that “Defendants do not provide separate polling booths for each political party, and non-partisan issues in primary elections.” First, the appellants question the validity of the regulation’s promulgation and second, the Secretary’s authority to promulgate it.

15 CSR 30-10.030 provides, in part, that “[i]n primary elections there shall be at least one [1] voting device for each eligible political party or ticket.” The regulation was promulgated October 5, 1982, and, following a 30 day comment period, became effective February 11, 1983, after the statutorily mandated 90 days post-comment period. § 536.021 RSMo 1978. It was thus validly promulgated and has been in effect since that date. The Secretary likewise had the authority to promulgate this regulation. § 115.225.1. In granting the Secretary’s motion for summary judgment, the court adopted his interpretation of the regulation, essentially requiring a labeling of the polling booths so that each booth pertains to only one political party.

Primaries are constitutional elections and regulations governing their process may be enacted in the exercise of the state’s police power. State ex rel. McClellan v. Kirkpatrick, 504 S.W.2d 83, 86 (Mo. banc 1974); Totton v. Murdock, 482 S.W.2d 65, 67-68 (Mo. banc 1972). Administrative regulations should be sustained if reasonable, Garner v. Missouri Div. of Fam. Services, 591 S.W.2d 27, 28 (Mo.App.1979), and will be sustained if they bear a rational relationship to an articulable state purpose. Emily v. Missouri State Div. of Fam. Services, 570 S.W.2d 783, 786 (Mo.App.1978).

15 CSR 30-10.030 is rationally related to a legitimate state purpose, that of eliminating confusion and the possible disenfranchisement of voters. By in some fashion labeling the polling booth, the voter is able to go directly to the correct polling booth, i.e., the booth containing the ballot label corresponding to the ballot card for his designated political party. He does not enter a polling booth containing a ballot label from a different political party and risk voting for candidates of a different political party, thus losing his vote entirely as not “properly” cast, or risk having to search for a “correct” polling booth from among the booths confronting him. Much simpler, more effective, and more time-efficient is a system whereby the booths are plainly marked to eliminate the voter’s confusion. As the McClellan court stated, however, the rationale for the regulation

is not of decisive importance.... The legislature has the right and duty to make laws regulating the conduct of elections. These legal regulations must be enforced unless their application offends against the constitutional rights of the people to exercise their right to vote. The requirement that a primary voter receive the ballot he selects from an election official which necessarily requires the voter to make his ballot preference known to the election official is not an additional qualification for voting. Rather it is a procedure that is deemed appropriate to uniform and orderly elections where balloting is done at numerous polling places on election day throughout this state.

McClellan, supra at 89. The regulation and its interpretation, as adopted by the trial court, effectuate the clear intent of §§ 115.225, 115.729, 115.395, and 115.397, by requiring that the St. Louis County polling booths be labeled according to party designation during primary elections.

The judgment of the trial court is affirmed.

All concur.

      . The ballot label also contains, as appropriate for the election precinct, all propositions, such as constitutional amendments, referenda or initiatives, as well as any local issues presented. Provision is made to permit a voter to obtain a card that permits voting upon these issues alone and avoid participation in any primary election. These procedures are not at issue in this case.

      . All statutory references are to RSMo 1978, unless otherwise indicated.


author: LOWENSTEIN, Presiding Judge.

text:
    PROM MOTOR HOTEL, INC., Plaintiff/Respondent, v. MOTEL TRAINING COMPANY OF AMERICA, Defendant, and George C. Kopp, Defendant/Appellant.
    No. WD35836.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1985.
    Thomas B. Sullivan, III, Sullivan & Williams, Kansas City, for defendant/appellant.
    Charles M. Thomas, Kevin C. Travis, Grier, Swartzman & Weiner, Kansas City, for plaintiff/respondent.

      Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   LOWENSTEIN, Presiding Judge.

This case involves the registration of a foreign judgment. Rule 74.79. The sole question in the case is whether due notice of Kentucky proceedings was given so as to make a Kentucky judgment enforceable in Missouri pursuant to the full faith and credit clause of the United States Constitution.

The appellant in this case, George C. Kopp, an attorney, was vice-president of Motel Training Company of America (Motel Training), which was a venture of a subsidiary of defendant-respondent, Prom Motor Hotel, Inc. (Prom). The following is a chronology of events in this case:

August, 1974 — Kentucky attorney general filed the original injunction action against Motel Training and several individual defendants, including Kopp. The action also sounded in fraud for false representations about Motel Training programs.
September, 1974 — Kopp as an individual signed stipulation asking for more time to file pleadings, but then never answered the petition. Kopp gave his home address on these documents.
November, 1974 — Kopp joined Void & Sullivan law firm at Crown Center in Kansas City, Missouri.
June, 1975 — Prom made a defendant in Kentucky suit.
August, 1975 — Kopp left Void & Sullivan.
March 1, 1976 — Prom filed cross-claim in original action against Kopp and others; service of process sent to Kopp at Crown Center address.
July 10,1979 — Notice of hearing on default judgment mailed to Kopp at Crown Center address.
July 16, 1979 — Settlement reached between Prom and Kentucky attorney general and judgment entered against Prom for $33,287.52 plus costs; Default judgment entered against Motel Training and Kopp, et al., on Prom’s cross-claim for $33,287.52.
October 5, 1979 — Prom filed this action in Missouri to enforce Kentucky judgment against Kopp (and three other defendants who were never served with process).
November 23, 1979 — Kopp filed answer in Jackson County circuit court.
March 6, 1984 — Trial court granted Prom’s motion for summary judgment, entering a judgment for $45,580.60 and interest and costs.

The issue in this case is governed by Article IV, § I of the United States Constitution which provides that judgments of sister states are entitled to full faith and credit. The only defenses that may be raised collaterally to attack a foreign judgment are 1) lack of jurisdiction over the subject matter; 2) failure to give due notice, or 3) fraud in the procurement or concoction of the judgment. Gerace v. Conley, 665 S.W.2d 377, 380 (Mo.App.1984). A presumption of validity attaches to the Kentucky judgment which Kopp has the burden of overcoming. Gerace, supra, at 377; Kilgore v. Kilgore, 666 S.W.2d 923, 933 (Mo.App.1984).

Kopp contends that the Kentucky court never acquired jurisdiction over him on Prom’s cross-claim because he never received actual notice of it, nor of the notice and motion for the default judgment. Prom concedes it has no witness who can testify that Kopp timely received these pleadings, but Prom contends actual receipt of a pleading subsequent to the original complaint is not required under the law to make it effective. The Missouri Supreme Court has held that “[wjhether the proceedings to give notice were adequate for that purpose is a matter controlled by the law of Kentucky, and not by that of Missouri.” Jones v. Park, 282 Mo. 610, 222 S.W. 1018, 1022 (Mo.1920). Jones was followed more recently in In the Interest of K.P.B., 625 S.W.2d 692, 694 (Mo.App.1981), where the court held since there had been no constitutional challenge to the method by which a West Virginia adoption statute provided service, the matter was controlled by West Virginia laws. See Corning Truck & Radiator Service v. J.W.M., Inc., 542 S.W.2d 520, 524 (Mo.App.1976), where it is presumed in the sister state’s courts followed its laws and entered a valid judgment.

Kentucky Rule of Civil Procedure 12.08(1) provides that objections to process and personal jurisdiction are waived unless raised by motion or answer. When Kopp filed his stipulation and motion for more time to file an answer, he made no objection to service of process or the personal jurisdiction of the Kentucky court. This operated as Kopp’s general appearance in the Kentucky suit and a waiver of objections.

Kopp cites such authority as Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and Bastian v. Tuttle, 606 S.W.2d 808 (Mo.App.1980), which concern what type of notice and process are constitutionally required before a court can assert personal jurisdiction over a defendant. However, the issue before this court is what type of notice and process are required for a cross-claim filed after the court has obtained personal jurisdiction. In Kentucky this is governed by Rule 5.02 which provides that service “upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court.” The rule further states, “[sjervice by mail is complete upon mailing.”

Kopp thus received all the notice which was required when the cross-claim was mailed to the Crown Center address in Kansas City. Receipt of a pleading subsequent to the original complaint is not required by law to be effective. See Benson v. Benson, 291 S.W.2d 27, 30 (Ky.App.1956), where wife’s service of notice to increase child support, under Rule 5.02 was sufficient and complete upon mailing, and validity of service was not affected by husband’s failure to receive notice; Zurheide—Hermann, Inc. v. London Square Dev. Corp., 504 S.W.2d 161, 165 (Mo.1973), where absent evidence to contrary, there is a rebuttable presumption that a written certificate by counsel making service that papers have been mailed to named parties at an address indicates that the attorney entertained the belief in good faith that the address was in fact the proper address of the parties named.

Kopp knew that earlier pleadings in the Kentucky case were being sent to the Crown Center address, yet he never objected. Since he failed to inform the Kentucky court of his change of address, the Crown Center address was his “last known address” and Prom complied with applicable Kentucky rules when it mailed its pleadings there. Kopp has failed to rebut the presumption Kentucky followed its rules and statutes in entering the judgment sought to be registered. The Missouri trial court was correct in according full faith and credit to the Kentucky judgment.

The judgment is affirmed.

All concur.


author: MATHERNE, Retired Judge.

text:
    Mac A. TIDWELL and wife, Margaret Tidwell, and Appalachian, Inc., Plaintiffs-Appellants, v. Elizabeth B. VAN DEVENTER, Christopher Van Deventer IV, Cecil B. Newman, and the Heirs at Law of Elmer Tate, Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    July 6, 1984.
    Permission To Appeal Denied by Supreme Court Dec. 10, 1984.

      J. Lewis Kinnard, Madisonville, for appellants.
    W. Kyle Carpenter, Knoxville, for Van Deventers.
    Robert J. Pennington, Madisonville, for Newman.
    Kendred A. White, Madisonville, for Heirs of Tate.
   MATHERNE, Retired Judge.

The plaintiffs Tidwell sue to remove cloud on their title to a tract of mountain land located in Monroe County, Tennessee. The plaintiffs allege that the defendants Van Deventer make claim to a portion of their land, and in the event the Van Deven-ters should prevail, the plaintiffs seek relief from the other defendants, plaintiffs’ predecessors in title under warranty deeds executed by those defendants. Cecil B. Newman, property assessor for Monroe County, was made party defendant so that the court could order him to make necessary changes on his official records.

The defendants Van Deventer, by answer, allege that they are the owners in fee of 189 acres of land in District 5 of Monroe County; that the Tidwells can show no source of title to the land they now claim; that they and their predecessors in title have had their assurancies of title recorded for more than 20 years; they and their predecessors in title have paid taxes on their land for more than 20 years prior to this lawsuit, and under Tennessee Code Annotated § 28-2-109 they are presumed prima facie to be the legal owners thereof; that the plaintiffs’ suit is barred by TCA § 28-2-110 in that they and those through whom they claim have failed to have taxes assessed and paid for more than 20 years prior to this lawsuit.

The defendants, heirs of Elmer Tate, by answer deny all material allegations of the complaint and deny that the plaintiffs are entitled to any relief.

The chancellor found that the defendants Van Deventer are the owners of 75 acres of the land claimed by the plaintiffs, and ordered a line established between the parties and vested title in the defendants Van Deventer to that 75 acres. The chancellor held that the plaintiffs bought their land by the boundary and not by the acre and, they having walked the boundaries, received what they bargained for and were entitled to no relief against their predecessors in title.

The plaintiffs appeal insisting that the chancellor erred in failing to find the plaintiffs owned their tract in fee simple; in finding the Van Deventers to be the owners of 75 acres of the land claimed by the plaintiffs; and in failing to grant the plaintiffs relief as against their predecessors in title under their warranty deeds.

In 1952, Christopher Van Deventer III, Elizabeth B. Van Deventer and Christopher Van Deventer IV owned land in District 5 of Monroe County, Fractional Section 12, which land adjoined a tract owned by Elmer Tate in the same District and Section. The parties settled a disputed common boundary by striking a line “Beginning at the Northeast corner of Fractional Section 12, Fractional Township 1 South, Range 5 East, and running in a Southwest direction in a straight line to an oak tree in the center of the Forest Service road at Sandy Gap.” The Van Deventers conveyed to Elmer Tate by warranty deed all the disputed land lying southeast of this line, and Elmer Tate, et ux conveyed to the Van Deventers all the disputed land lying northwest of this line. Each deed called for 75 acres and each deed recited the consideration as “One Dollar ($1.00) and other good and valuable considerations, including the exchange of real estate.” From that date until 1982 the Van Deventers paid taxes on 75 acres in Fractional Section 12. From 1954 to 1973, Elmer Tate paid taxes on 75 acres in Fractional Section 12. In 1974, after Elmer Tate’s death and a sale of 300 acres of land by his heirs to Appalachian, Inc., that corporation paid taxes on 75 acres in Fractional Section 12. In 1975, the plaintiffs Tidwell purchases the 300-acre boundary from Appalachian, Inc. The Tid-wells became aware that there was some question whether they owned 300 acres when they received a notice of tax reduction in 1979 or 1980, after the first tax map ever drafted for Monroe County was completed. Upon investigation, they found the Van Deventers’ claim and this lawsuit followed.

The problem of determining what property the parties exchanged in their 1952 deeds results from references in the deeds to “Sandy Gap.” The deed from the Van Deventers to Elmer Tate includes the following call in its description: “... thence following the North Carolina line to an oak tree in the center of the Forest Service road at Sandy Gap.... ” The 1952 deed from Elmer Tate to the Van Deventers includes the following call: “Beginning at the Northeast corner of Fractional Section 12, Fractional Township 1 South, Range 5 East, and running in a Southwest direction in a straight line to an oak tree in the center of the Forest Service road at Sandy Gap....”

The Van Deventers claim that “Sandy Gap” as used in the 1952 deeds refers to a location on the North Carolina line between Wolf Ridge and Hipps Ridge. The Tidwells and Appalachian, Inc. claim that “Sandy Gap” as used in the deeds refers to a point on the North Carolina line one-half mile to the northwest of the location between Wolf Ridge and Hipps Ridge.

Tennessee Valley Authority maps published prior to 1957 show Sandy Gap located at a point between Wolf Ridge and Hipps Ridge. After 1957, the location that had previously been called Sandy Gap was designated Hipps Gap; after 1957 the designation Sandy Gap was moved one-half mile to the northwest. United States Forest Service maps dated 1953 and earlier show Sandy Gap at a location between Wolf Ridge and Hipps Ridge. After 1968, the location was changed on those maps to a point one-half mile to the northwest.

There was considerable conflicting testimony on the location of Sandy Gap in 1952. The chancellor apparently could not resolve the discrepancies, but he did find that the Van Deventers proved their claim to 75 acres of land and so decreed. We agree with the chancellor that the Van Deventers prevailed.

The Van Deventers deraign their title back to the State Grant in 1847. The only land in Fractional Section 12 to which the Tidwells could show color of title was the 75 acres the Van Deventers conveyed to Elmer Tate in 1952, and a tract purchased by Elmer Tate from the heirs of Grayson Garrett by several deeds dating from 1945 through 1951. The Grayson Garrett land located in Fractional Section 12 was referred to as 75 acres in some deeds, but it could not have been the Van Deventers’ 75 acres deeded by Elmer Tate in 1952.

The deed from the heirs of Elmer Tate to Appalachian, Inc. recites:

This boundary known as the Grayson Garrett Tract and being all of the land owned by Elmer Tate in Fractional Section 12 and 7. This boundary is bounded Northwest by Vandiventer, (sic) Northeast by U.S. Forest Service, South by North Carolina and Tennessee State line, containing 300 acres, more or less.

This deed acknowledges Van Deventer land forming the northwest boundary of the land conveyed. That would be the location of the 75 acres deeded to the Van Deven-ters by Elmer Tate in 1952. The position taken by the plaintiffs would result in Elmer Tate having conveyed to the Van De-venters about 75 acres of land belonging to the U.S. Forest Service. We hold that the evidence preponderates in favor of the finding of the chancellor that the Van Deven-ters own the 75 acres described in the chancellor’s decree, which tract lies to the northwest of the Tidwell property.

The Tidwells and Appalachian, Inc. argue that they and their predecessors have established ownership of the land by: (1) more than 20 years adverse possession which establishes a common law presumption of a grant by the state; (2) seven years adverse possession coupled with recorded assurance of title (TCA § 28-2-101); and (3) seven years adverse possession coupled with 30 years recorded assurance of title. (TCA § 28-2-105).

Each of the three grounds asserted as establishing ownership in the Tid-wells requires adverse possession of the land by the Tidwells and those under whom they claim. The adverse possessor has the burden of establishing by clear and positive proof such adverse possession as will bar the real title. Jones v. Coal Creek Mining & Mfg. Co. (1915) 133 Tenn. 183, 180 S.W. 991; Davis v. Louisville & N.R.R. (1921) 147 Tenn. 1, 244 S.W. 483. The above rule applies to both the length of time and the character of the possession. Southern Coal & Iron Co. v. Schwoon (1921) 145 Tenn. 191, 239 S.W. 398. Actual possession is necessary to perfect title under TCA § 28-2-101. There must be exclusive, actual, adverse, continuous, open and notorious possession for the entire prescriptive period, under a claim of right or title to the property. And the owner must have knowledge of the adverse claim, or it must be so open and notorious as that he will be presumed to have notice of it. Sequatchie Coal & Iron Co. v. Coppinger (1895) 95 Tenn. 526, 32 S.W. 465. There may be actual possession in law without actual occupation or cultivation. Green v. Cumberland Coal & Coke Co. (1903) 110 Tenn. 35, 72 S.W. 459.

The record reveals that in 1953 Elmer Tate had the timber on his property in Fractional Section 12 cut. The parties who did the cutting testified, but their testimony is not of any assistance in determining whether the lands claimed by Van Deven-ter were cut over. These parties stated that they cut up to a line blazed by Elmer Tate. They admit that by mistake they cut on some of the land belonging to the Forest Service. They described directions by pointing to a map, and we cannot know where they were pointing or the direction they refer to. It is established that the timber on a portion of the Van Deventer land was cut and protest was made by Christopher Van Deventer III. The only other acts of possession shown were the fact that some parties camped at some unknown location on the land, and the various parties did walk what was pointed out to them as the boundaries. Under the foregoing authorities we hold that the plaintiffs have not shown such adverse possession of the Van Deventer land as will bar the superior legal title held by the Van Deventers. No claim based upon adverse possession has been established.

The Van Deventers argue that the plaintiffs’ claim is barred by TCA § 28-2-110(a), which provides:

Action barred by nonpayment of taxes. — (a) Any person having any claim to real estate or land of any kind, or to any legal or equitable interest therein, the same having been subject to assessment for state and county taxes, who and those through whom he claims have failed to have the same assessed and to pay any state and county taxes thereon for a period of more than twenty (20) years, shall be forever barred from bringing any action in law or in equity to recover the same, or to recover any rents or profits therefrom in any of the courts of this state.

This statute has been applied in a suit to remove cloud on title. Lee v. Harrison (1954) 196 Tenn. 603, 270 S.W.2d 173. It was also applied and held to bar a suit by a plaintiff claiming property described in her deed which was also encompassed in a deed made to the defendant. Alexander v. Patnek (Tenn.App.1983) 656 S.W.2d 376. The statute was most recently applied to bar plaintiffs claim to mineral rights in certain lands. Burress, et al. v. Woodward, et al., (Tenn.1984) 665 S.W.2d 707.

The evidence shows that from 1951 to 1952 the Van Deventers paid taxes on 189 acres of land in Fractional Section 12. In 1953, following the conveyances between Elmer Tate and the Van Deventers, the Van Deventers paid taxes on 189 acres, but they were reimbursed for one-half of that amount by Elmer Tate. In 1954 no taxes were assessed to Elmer Tate. A notation in the tax book under Van Deventer’s name indicated that the 189 acres had been divided, with Tate paying taxes on 75 acres, and the Van Deventers paying on 75 acres. Thereafter, until 1982 the Van Deventers paid taxes on 75 acres assessed to them in Fractional Section 12. From 1954 to 1973, Elmer Tate paid taxes on 75 acres in that Section. The land on which Elmer Tate paid taxes was described as “Sec. 12 from Van Deventer.” 1974 taxes on 75 acres were assessed to Elmer Tate with a notation “now Sanford Gray” [president of Appalachian, Inc.] by Tate’s name; after the conveyance by Appalachian, Inc. to the Tid-wells, the Tidwells paid taxes on varying acreages in Fractional Section 12 through 1982.

The Van Deventers have paid taxes on the 75 acres of land in Fractional Section 12 since 1952. It is unclear as to what land in that section the Tidwells have paid taxes on. It is clear, however, that the Tidwells and “those through whom they claim” have failed to have taxes assessed and paid on the 75 acres the Van Deventers own in fractional Section 12 for a period of more than 20 years. The statute is, therefore, a complete bar to their present cause of action. Burress, et al. v. Woodward, et al., supra.

For the reasons. stated, we affirm the chancellor’s decree setting a boundary between the parties and vesting title to a described 75 acres in the Van Deventers.

We agree with the chancellor that the sale to the Tidwells was by the boundary and not by the acre. However, we disagree with the chancellor’s holding that the purchasers walked the boundaries and got what they bargained for. It is true that the purchasers, Sanford Gray for Appalachian, Inc. and Mac Tidwell, walked the boundaries as pointed out to them. The boundary walked, however, included the Van Deventer’s 75 acres which the purchasers did not get under the deeds from the Tate heirs. This problem is not one of a 300-acre tract of mountain land ending up 75 acres short. Rather, we have a situation where the buyers were shown land not owned by the sellers and the sellers, by warranty deed, attempted to convey that land to the buyers. It is a matter of title, not acreage. We will express no opinion on what, if any, remedy the various buyers have, but we remand the lawsuit to the Chancery Court for a determination of those issues.

The cost in this court is adjudged one-half against the Tidwells and one-half against the Van Deventers.

PARROTT, P.J., and GODDARD, J., concur.


text:
    JOHN DEERE COMPANY, Plaintiff and Counter-Defendant-Appellant, v. PRODUCTION CREDIT ASSOCIATION OF MURFREESBORO, Defendant and Counter-Plaintiff-Appellee.
    Court of Appeals of Tennessee, Western Section at Nashville.
    Sept. 5, 1984.
    Application for Permission to Appeal Denied by Supreme Court March 4, 1985.
    B. Timothy Pirtle, McMinnville, for plaintiff and counter-defendant-appellant.
    George C. Eblen, Shelbyville, for defendant and counter-plaintiff-appellee.
   NEARN, Presiding Judge, Western Section.

This appeal involves a dispute between two commercial lenders, John Deere Company and Production Credit Association (P.C.A.), over their interests in the proceeds from the sale of a piece of farm equipment purchased by James Willis. The Chancellor held that neither had priority over the other under Article 9 of the U.C.C. (T.C.A. § 47-9-101, et seq.), and that their rights in the proceeds were pro rata, according to the amount each loaned to Willis.

The facts are not disputed. In a transaction prior to the one in question here, P.C.A. acquired a security interest in “all farm machinery and equipment, including but not limited to all tractors, tilling and harvesting equipment” owned by Willis and in all such property acquired in the future. The financing statement was properly filed on December 10, 1980. At that time, Willis owned a John Deere 6600 combine.

In September, 1981, this combine burned. The insurance proceeds on the combine were turned over to P.C.A. and applied to Willis’ debt. Shortly thereafter, Willis borrowed $17,859.03 from P.C.A. to be used as a down payment on the purchase of a new combine and flex head from General Equipment Company (hereinafter “General”).

To provide these funds, a sight draft made payable to General, drawn on a P.C.A. account and signed by Willis, was given to Willis by P.C.A. The face of the draft contained wording that it was to be used for the purchase of a John Deere 6620 combine, with a specific serial number. At the time of the issuance of this draft, P.C.A. did not obtain a new security agreement from Willis, nor was a new financing statement filed. However, the P.C.A. financing statement filed on December 10, 1980, contained both a future advances clause and an after-acquired property clause.

The same day that the sight draft was issued by P.C.A. — October 14, 1981 — Willis signed a retail installment contract for the purchase of a new John Deere 6620 combine and a new John Deere 215 flex head from General for $59,000.00 less a down payment of $17,800.00. At the same time, he also signed a security agreement and financing statement in favor of General, which was properly filed on October 23, 1981. General accepted the draft of P.C.A. as down payment on the combine. Shortly after the transaction was completed between Willis and General, General assigned the security agreement and financing statement to the John Deere Company. John Deere accepted the assignment from General on October 29, 1981.

Subsequently, Willis defaulted on both the debts to P.C.A. and to John Deere. He voluntarily released the combine and flex head to P.C.A. At the time of the default, the balance owed to Deere was $52,216.28 and the balance owed to P.C.A. was $17,-859.03. Deere filed suit against Willis and P.C.A., seeking possession and sale of the combine, that the proceeds be paid into the Court for a determination of the interests of P.C.A. and Deere and that a judgment for any deficiency be entered against Willis. P.C.A. surrendered the collateral with a reservation of its rights in the proceeds and filed a cross-claim against Willis and John Deere claiming a purchase money security interest in the combine in the amount loaned to Willis by P.C.A. for the down payment, $17,859.03. P.C.A. based its claim upon the draft dated September 14, 1981, issued by it to General and upon its original financing statement and security agreement filed in December, 1980.

Willis neither appeared nor filed any pleading. In a non-jury trial, the Chancellor gave John Deere a judgment against Willis in the sum of $52,216.28 as the unpaid balance of the promissory note, plus attorney’s fees in the amount of $3,600.00.

As to P.C.A.’s claim against John Deere, the Chancellor held that each of the creditors had a purchase money security interest in the collateral and that to the extent of its $17,859.03 loan to Willis, P.C.A. had an equal priority in the combine or in the proceeds therefrom with John Deere. Based on the percentage ratio of the amount of the down payment to the purchase price, he awarded P.C.A. judgment against John Deere in the sum of $16,-860.00.

John Deere Company appeals and insists that P.C.A. could not have a purchase money security interest in the collateral based on the filing of their financing statement of December 1980 that contained an after-acquired property clause. We hold that P.C.A. does have a purchase money security interest in the collateral and because their financing statement was filed prior to Deere’s, they also have priority over Deere’s interest. We therefore must affirm in part and reverse in part.

Pursuant to T.C.A. § 47-9-204, a party has a valid security interest in collateral when there is an agreement between the debtor and the secured party that the secured party has an interest in the collateral, when the secured party gives value and when the debtor has rights in the collateral. In order to perfect a security interest in farm equipment to insure that it will be superior to interests of third parties, the secured party must file a financing statement in the county of the debtor’s residence. See T.C.A. § 47-9-401(1). If the value given is used by the debtor to purchase the collateral, then the secured party has a purchase money security interest in the collateral, which normally would give him priority over any other security interest in the same collateral, as long as he perfected his interest by filing a financing statement within twenty days of the debtor receiving possession of the collateral. See T.C.A. §§ 47-9-107(b) and 47-9-312(4).

In this case we have two secured parties fighting over the same collateral, now converted to money. It is undisputed that Deere has a perfected purchase money security interest in the collateral. It is also undisputed that P.C.A. gave the debtor money to purchase the collateral. The problem is that the security agreement and financing statement that P.C.A. is relying on were filed earlier, in another loan transaction. However, both of these instruments include an after-acquired property clause that we believe is sufficient to accomplish the purpose of giving P.C.A. a purchase money security interest in the combine. This is especially true in this case because the recorded financing statement specifically describes farm equipment. The purpose of the financing statement is to put third parties who check the filings on notice. We believe the financing statement P.C.A. had on file would have alerted Deere to the possibility that P.C.A. had an interest in the collateral. After thus being notified, it was incumbent upon Deere to look into the matter further if they wanted to make sure that they had the highest priority interest in the collateral. That is the purpose of notice filing. The burden is upon the party seeking a purchase money security interest to check recorded filings. Such task certainly should be performed when the credit advanced is substantially less than the purchase price of the collateral. Such fact clearly opens up the distinct possibility that someone else has advanced the debtor funds and will therefore be claiming a purchase money security interest in that collateral.

Because this is a case of first impression, we have done considerable independent research. We find no case directly in point. However, there are some reported cases that on first blush may appear to be contrary to our holding and therefore should be discussed.

There are a group of cases, dealing with consumer goods, that hold that if the collateral in question secures both its own purchase money loan and any other non-purchase money loan, the security interest loses its purchase money character. See In re Manuel, (1975 5th Cir.) 507 F.2d 990; In re Jones, (1980 Bankr.M.D.N.C.) 5 B.R. 655; In re Coomer, (1980 Bankr.E.D.Tenn.) 8 B.R. 351; In re Slay, (1980 Bankr.E.D.Tenn.) 8 B.R. 355; In re Jebbia, (1980 Bankr.S.D.Ala.) 9 B.R. 542; In re Mulcahy, (1980 Bankr.S.E.Ind.) 3 B.R. 454. We believe those cases are here inapplicable because they are concerned with different facts and different policy issues. The cited cases deal with consumer goods and we are dealing here with farm equipment, which is an entirely different category of collateral. See T.C.A. §§ 47-9-109(1) and 47-9-109(2). Further, the purpose of the bankruptcy laws, particularly in consumer eases, is to give the debtor a “fresh start”. There is, in order to accomplish this purpose, a household goods exception that allows bankrupt debtors to retain a certain amount of their household property if there is not a creditor who claims a purchase money security interest in the property. See 11 U.S.C. § 522(f)(2)(A). The Bankruptcy Courts therefore construe the law in favor of the exemption in order to effectuate the policy of the Bankruptcy Act. See In re Coomer, supra. In this case we are not concerned with household goods; the debtor, insofar as we know, is not officially bankrupt; is not present on appeal and has no interest in this appeal. These are major distinguishing features between this case and those cited.

In the cited cases, there was a consumer who borrowed money to buy household goods. The creditor took a purchase money interest in those goods. Later, the creditor loaned more money, sometimes extinguishing the first debt, retaining a purchase money interest in the original collateral to the full extent of the new loan. The consumer then declared bankruptcy and sought to avoid the creditor’s purchase money security interest in his household goods. In each of the cited cases, except In re Slay, supra, the Bankruptcy Court held that by consolidating the loans the creditor lost any purchase money security interest in the collateral because the collateral was securing more than its purchase price, with no way to determine which portion of the loan represented only the purchase money. The exception, In re Slay, supra, held that in a case where the loan was consolidated, but no payments were made on the consolidated loan, the Court could easily determine what portion was purchase money and therefore the creditor retained a purchase money security interest to the extent of that amount.

In the case at bar, as far as we can determine from record, P.C.A. had a security agreement and a prior recorded financing statement and based thereon advanced to the debtor $17,859.03. The draft for $17,859.03 was given to the debtor, who in turn gave it to Deere, who applied it as a down payment for the new collateral. The undisputed testimony of P.C.A. was that no payments were made on the new loan. There is no difficulty in determining what portion of the loan was represented by the purchase money.

Additionally, P.C.A. is not claiming a purchase money security interest in the collateral any greater than the purchase money it loaned. They are claiming a purchase money security interest to the extent of the present consideration they advanced for the purchase of the combine, not for any prior loans they made. If they were, different results might be reached. See T.C.A. § 47-9-107, comment 2.

Therefore, we hold that P.C.A. has a purchase money security interest in the combine only up to the amount of the value they gave that was used for the purchase, that is, for $17,859.03. It is not our view that in all cases where a financing statement is filed and the lender has an after-acquired property clause in the financing statement that a purchase money security interest is retained in whatever the borrower purchases. A security interest yes, but the type will depend upon the circumstances. Where the funds are delivered by the lender for the specific purpose of purchasing specific equipment that is specifically covered by the prior financing statement of the parties, that security interest is a purchase money security interest when the funds are so used. Such are the provisions of T.C.A. § 47-9-107(b).

Deere asserts that a new financing statement had to be filed for P.C.A. to obtain a purchase money security interest in the combine. We see no reason for a second filing of a financing statement by P.C.A. to insure a purchase money security interest. The first filing was notice to the world of a security interest in farm equipment and after-acquired property, and any further notice filing would be, in our opinion, supererogation.

Since we hold that both parties have a perfected purchase money security interest in the combine, it must be determined which has priority.

Both interests attached at the same time, that is, when the debtor acquired rights in the collateral. P.C.A. had, in essence, a pre-filing and Deere’s filing related back to the day the debtor obtained possession under T.C.A. § 47-9-312(4). Since this section does not assist us in determining which party has priority, we must look to the “clean up” section, § 47-9-312(5). Since both parties perfected by filing, the first to file has priority. See T.C.A. § 47-9-312(5)(a). Therefore, P.C.A.’s purchase money security interest is superior to Deere’s.

Accordingly, P.C.A. is entitled to $17,-859.03 of the disputed fund and John Deere is entitled to the balance.

The result is that the holding of the Chancellor that both P.C.A. and Deere possess purchase money security interest in the collateral is affirmed. However, his holding that the interests are held equally on a pro rata basis is reversed. Costs below are as there adjudged. Since the assessment of costs of appeal are not governed by the U.C.C., we adopt in principal the policy of the Chancellor and assess them on an equal, pro rata basis of one-half to each.

Done at Nashville in the two hundred and eighth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.

TOMLIN and HIGHERS, JJ. concur.


text:
    Linda H. BAXTER and Thomas Baxter, Plaintiffs-Appellants, v. Richard I. VANDENHEOVEL, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Dec. 6, 1984.
    Application for Permission to Appeal Denied by Supreme Court March 4, 1985.

      Robert L. Childers and Louis P. Chiozza, Jr., Memphis, for plaintiffs-appellants.
    Don G. Owens, Jr., Memphis, for defendant-appellee.
   NEARN, Presiding Judge, Western Section.

This is a plaintiffs’ appeal from an allegedly insufficient jury verdict approved by the Trial Judge.

An understanding of the issues presented for appeal will be facilitated if we first set forth a statement of the case.

Plaintiff, Linda H. Baxter, suffered injuries in a vehicular accident occurring on November 6, 1978. A few days later, on November 27, 1978, while driving her other automobile, it was struck in the rear by a large tractor-trailer rig being driven by the defendant, Richard Vandenheovel.

Suit was filed against the other driver in the first accident immediately prior to the running of the one year statute of limitations (T.C.A. § 28-3-104 (1984)) for injuries allegedly sustained in the first accident. Suit was filed, again immediately prior to the running of the statute of limitations, on the second suit on November 27, 1979. The second suit is the one presently before us. In the complaint it is alleged that all injuries from which Linda H. Baxter suffers were caused by and were the proximate result of the second accident on November 27, 1978. On September 26, 1983, an order of non suit was entered in the suit arising from the November 6, 1978, accident. In both suits, Thomas Baxter, the husband of Linda, was joined as a plaintiff seeking recovery for loss of consortium. At the close of the proof in this suit, the Trial Judge directed a verdict against the defendant on the issue of negligence, but submitted the issues of causation and damages to the jury. The jury returned a verdict for the plaintiff, Linda H. Baxter, in the amount of $5,000.00 but found against Thomas Baxter. Plaintiffs’ motions for a new trial or additur were overruled and the matter is now before us.

Counsel for appellants give the following as issues on appeal:

A. The court erred in allowing an insufficient and/or inadequate and speculative verdict to remain intact upon a demonstration that such verdict was well below the lower limit of the range of reasonableness.
B. The court erred in its charge to the jury in that it was vague, abstract and confusing.
(l)(a) The court erred in its charge regarding damages, generally, including the reasonable value of medical care and supplies: Past and future diminution in earning capacity; and pain and suffering; and in refusing accurate special requests.
(1)(b) The court erred in its charge regarding the aggravation of a pre-existing condition.
(2) The court erred in interlineating on the verdict form.
C. The court erred in allowing evidence regarding the existence, disposition and legal effect of the disposition of another lawsuit involving the appellants and another defendant.
D. The trial court erred in its charge on loss of consortium.
E. The trial court erred in directing a verdict on negligence and not also directing a verdict on causation.

Unless the alleged error complained of on appeal was contained in the motion for a new trial, we are unable to consider it. T.R.A.P. 3(e). We have diligently read the motion for new trial and, giving appellants all possible leeway, find that most of that complained of on appeal was not contained in the motion for new trial. Our task is rendered somewhat difficult because the manner and verbiage used to present the issues on appeal bear little resemblance to the manner and verbiage used in the motion for a new trial. The issues presented on appeal are given an alphabetical designation of order, while the issues contained in the motion for a new trial are given a numerical designation with no apparent relationship between the respective orders. The restatement of the issues on appeal has also caused us considerable difficulty. For instance, we tried to consider Issue D to be a restatement of item 3 contained in the motion for new trial, which was as follows:

3. The jury verdict was erroneous because the Court directed a verdict in favor of the Plaintiffs as to negligence which required the jury to return a verdict for at least nominal damages, if not more, in the case of Thomas Baxter v. Richard I. Yandenheovel.

However, upon examination of appellants’ brief, we discover that the argument in regard to Issue D has nothing to do with motion for new trial issue 3, but is, in its entirety, an argument addressed to the failure of the Trial Judge to charge plaintiffs’ special requested charge. The charge is set forth both as requested and as given, and plaintiffs urge this Court to accept the requested version of the charge. In addition, the motion for new trial contains no complaint regarding the Court’s failure to charge the appellants’ special requested instruction. In short, the items mentioned in the motion for a new trial and the issues on appeal are a mixture of apples and oranges when it is required that the objects be the same.

We have done our very best to decipher the issues and consider the following to be properly before us on appeal:

1. Whether the Trial Court erred in allowing evidence regarding the first lawsuit and the nonsuit taken as to it.
2. Whether the Trial Court erred by interlineating on the verdict form submitted to the jury regarding the claim of plaintiff Thomas Baxter.
3. Whether the Trial Court erred in not directing a verdict on the issue of causation.
4. Whether the verdict is so inadequate as to require a new trial.

During the course of the trial, Mrs. Baxter was cross-examined regarding statements made in the pleadings and depositions taken in the first suit to the effect that all of her injuries were the result of the first accident. Such statements were clearly inconsistent with testimony and her position in the second suit that all injuries were the result of the second accident. The inconsistency is made more apparent by the fact that the first suit was filed exactly one year from the date of the first accident and just a few days before the suit arising from the second accident was filed, which alleged that all of her injuries were the result of the second accident. Clearly, these statements were admissible as prior inconsistent statements. See, e.g., Sikes v. Tidwell, (1981 Tenn.App.M.S.) 622 S.W.2d 548; State v. Grady, (1980 Tenn.Crim.App.) 619 S.W.2d 141. However, prior inconsistent statements may be explained, and such inconsistencies go only to the weight to be given the witness’s testimony. Sikes, 622 S.W.2d at 551. Mrs. Baxter, in our opinion, did a credible job of explaining the apparent inconsistency. She and her counsel testified that at the time the first suit was filed, neither she, her doctor, nor her counsel knew which accident caused her injuries. Her doctor would offer no. opinion at that time and the statute of limitations was about to run on the first accident. Therefore, in order to protect her rights in the event the doctors decided that the first accident was the cause, the first suit was filed. Further, when her doctors concluded that the cause of Mrs. Baxter’s injuries was the second accident, counsel orally informed the Trial Judge in the first suit that a non-suit would be taken, although the formal order of non-suit was not entered until the day of the trial of the second suit. As already noted, counsel for plaintiffs also took the stand to explain the apparent inconsistency in the pleadings; his explanation was the same as Mrs. Baxter’s. However, on cross-examination, counsel was quizzed regarding the legal effect of a non-suit, i.e., whether the first suit could be refiled after the second suit was ended by judgment. This cross-examination is the main thrust of the first issue. We are not required to rule upon the propriety of such examination because our examination of the record does not reveal any objection made to such cross-examination. Evidence admitted without objection at the trial level cannot be the subject of complaint at the appellate level. See Hohenberg Brothers Co. v. Missouri Pacific Railroad Co., (1979 Tenn.App.W.S.) 586 S.W.2d 117. Accordingly, the first issue is found against the appellants.

In appellants’ brief, they argue that an interlineation by the Trial Judge on a suggested jury form confused the jury. We first note that the jury form evidently used by the jury is not contained in the record. However, the appellants’ brief refers us to the following portion of the charge of the Court:

To make the rendition of your verdict more easily mechanical, we have prepared for you a Jury verdict form, the first paragraph [of] which reads, “We, the Jury, find in favor of the plaintiff, Linda H. Baxter, and assess damages at”, and then a blank, which paragraph you may or may not use, depending upon the proff [sic] and law that I have heretofore charged you, that is the proof applied to the law.
The next paragraph says, “We, the jury, find in favor of the plaintiff, Thomas Baxter, and assess damages at”, and then a blank, which paragraph you may or may not use.
And then it says, “We, the Jury, find for the Defendant, against Thomas Baxter”, and I would suggest you use that only in the event that you find that Mrs. Baxter is entitled to recover and Mr. Baxter is not, and in which event you strike through the unapplicable portions.
And the last paragraph says, “We, the jury, find for the defendant against both plaintiffs,” And I adding in I think something — if you recall, when I said, “We, the Jury, find for the defendant against both plaintiffs,” I am adding “as to complaints for personal injuries and loss of consortium and award nominal damages in the amount of blank.”
And if you should use that last paragraph, you can just strike through all of the rest of the others that wouldn’t be applicable.
R., vol. 3, pp. 425-26.

The addition made by the Trial Judge as indicated in the penultimate paragraph is the allegedly confusing part. We find that it is not confusing when considered together with the paragraph of the charge immediately preceding the above quotation in which the Trial Judge charged that since negligence had been proven, a nominal damage award had to be given even if no actual damages were found as follows:

But if you find that Mr. and Mrs. Baxter are not entitled to recover, it would be your duty to assess nominal damages against Mr. Vandenheover [sic], since I have charged you that he is guilty of negligence which caused the collision, but not necessarily the injuries and loss of consortium and loss of services.
R., vol. 3, pp. 424-25.

It seems from the quoted parts of the record that the form verdict (which we do not have) omitted any reference to nominal damages and the Trial Judge interlineated it to provide for them. Neither the motion for new trial nor brief of counsel on appeal questions the correctness of the portion of the charge concerning nominal damages, which we, therefore, do not consider, but both allege that it is so confusing as to constitute reversible error. We do not find it confusing; but its correctness we do not pass upon. The issue is found against the appellant.

The gist of the argument on the issue of the Trial Judge’s failure to direct a verdict on causation is that the only medical proof in the record is that Mrs. Baxter’s injuries were caused solely by the accident with the defendant. This proof is found in the deposition of Mrs. Baxter’s doctor. Although Hudson v. Capps, (1983 Tenn.App.W.S.) 651 S.W.2d 243, and Reserve Life Insurance Co. v. Whittemore, (1969 M.S.) 59 Tenn.App. 495, 442 S.W.2d 266, hold that the general rule is that undisputed medical proof may not be ignored by the jury, the issue presented is without merit for two reasons. The first is that the motion for a directed verdict for the plaintiffs as to liability was made by plaintiffs only at the close of plaintiffs’ proof. The Court denied the motion, stating that the Court thought it should hear defendant’s proof. At the close of all the proof, we do not find that plaintiffs’ motion was renewed. When ruling upon this type of motion, the Trial Judge must rule based upon the status of the proof at the time the motion is made. When additional proof is adduced subsequent to the denial of the first motion, the Trial Judge must then, if a new motion is made, examine the new or renewed motion in light of the cumulative proof. We can not hold him in error for failing to rule when no later motion was made. See Holmes v. American Bakeries Co., (1970 W.S.) 62 Tenn.App. 601, 466 S.W.2d 502. The second reason we find the issue to be without merit is that even if the motion had been made, it would be to no avail. We do not fault the general rule that undisputed medical proof may not be ignored by the jury. However, we are of the opinion that the general rule does not apply when the medical opinion is based upon purely subjective findings. A reading of the medical testimony shows clearly that the doctor based his opinion on statements given him by Mrs. Baxter as to when her pain or complaints ceased and/or commenced. Basically, in this case, the doctor’s opinion is based upon his assessment of Mrs. Baxter’s credibility. Such credibility is ordinarily for the jury and the jury in this case was not bound to accept the medical testimony. See Lodge Manufacturing Co. v. Wilkerson, (1956) 199 Tenn. 318, 286 S.W.2d 865.

We have reviewed the evidence in light of the error alleged as to the insufficiency of the verdict, and while we may not agree with the amount of the jury’s verdict, we find that, based on the proof, the jury could have found that not all of Mrs. Baxter’s injuries were caused by the second accident. Considering this finding, the jury could have reasonably concluded that the second accident was the cause of $5,000.00 of her injuries. The jury, having reached this conclusion, would not be obligated to compensate plaintiffs in this judgment for injuries suffered in both accidents. See Haws v. Bullock, (1979 Tenn.App.E.S.) 592 S.W.2d 588. Furthermore, next to the jury, the Trial Judge was in the best position to determine the reasonableness of the verdict. See Strother v. Lane, (1976 Tenn.App.M.S.) 554 S.W.2d 631. Once the Trial Judge has, as here, approved the verdict, appellate Courts must give great weight to that decision. See Karas v. Thorne, (1975 Tenn.App.W.S.) 531 S.W.2d 315.

Accordingly, we must find the last issue against appellant and affirm the judgment below with costs adjudged against the appellant.

Done at Jackson in the two hundred and ninth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.

TOMLIN and CRAWFORD, JJ., concur.