author: RALEIGH BROWN, Justice.

text:
    CITIZENS NATIONAL BANK OF BRECKENRIDGE et al., Appellants, v. Colene Pennington ALLEN, Appellee.
    No. 5188.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 21, 1978.
    Rehearing Denied Jan. 18, 1979.

      C. J. Eden, Breckenridge, Lawrence Teis, Roye, Sweatt, Neal & Teis, Graham, Stanley P. Wilson, McMahon, Smart, Wilson, Surovik & Suttle, Abilene, for appellants.
    Frank L. Jennings, Jennings, Montgomery, Dies & Turner, Graham, William G. Thompson, Thompson & Cook, Breckenridge, for appellee.
   RALEIGH BROWN, Justice.

Colene Pennington Allen sued Citizens National Bank of Breckenridge to recover the proceeds of a certificate of deposit in the amount of $20,000 issued by the Bank to “Katey Mueller as Trustee for Colene Pennington.” Citizens Bank brought a third-party action against D. C. Stapp in his capacity as Independent Executor of the Estate of Katey Mueller, Deceased. After a jury trial, judgment was entered against Citizens Bank for $20,660.23 plus interest and costs. Citizens Bank was awarded judgment against Stapp for the same amount. Citizens National Bank of Breckenridge and D. C. Stapp bring separate appeals with identical points of error, with Stapp urging one additional point of error. We reverse and remand.

Mrs. Katey Mueller with $20,000 of her own funds purchased from Citizens Bank a certificate of deposit which recited in part that “Katey Mueller, as Trustee for Colene Pennington, has deposited in this Bank Twenty Thousand Dollars ($20,000). . . .” Colene Pennington is one and the same as Colene Pennington Allen.

At all times prior to her death, Katey Mueller was paid the interest on the certificate of deposit by the Bank. She died before the certificate matured. Mrs. Mueller left a duly executed will which was admitted to probate in Stephens County. The will appointed D. C. Stapp, the decedent’s brother, Independent Executor of the estate. After making some specific bequeaths, without any mention of the certificate of deposit, Mrs. Mueller’s will bequeathed and devised the remainder of her property to D. C. Stapp.

After Stapp qualified as Independent Executor of the Estate of Katey Mueller, Deceased, letters testamentary were issued to him. Stapp delivered the letters testamentary to the Bank. Subsequently, he removed the certificate of deposit in question from the safety deposit box of Katey Mueller. On the same day, Stapp negotiated the certificate of deposit at the bank and deposited its proceeds in the bank in savings and checking accounts entitled “Katey Mueller Estate.”

Mrs. Allen sued the Bank contending that Katey Mueller purchased the certificate of deposit as trustee for her and that she was the owner of the certificate on Mrs. Mueller’s death. The bank denied its liability to Mrs. Allen contending that Mrs. Mueller did not intend to effect a gift of the certificate nor did she intend to create any type or kind of trust for the benefit of Mrs. Allen. The Bank brought its third-party action against Stapp contending that if Mrs. Allen should recover against it, the Bank should recover the same amount against Stapp.

Responding to special issues, the jury found: (1) Katey Mueller intended to establish a revocable trust for the benefit of Colene Pennington Allen; (2) Katey Mueller did not, prior to her death, revoke the arrangement; (3) Katey Mueller did not intend such arrangement solely for the purpose of having the funds separately insured; (4) the proceeds of the certificate were paid by the Bank to Stapp by depositing same in an account for the Estate of Katey Mueller; (5) the deposit of such funds was made and accepted under the belief that Katey Mueller intended to retain both the legal and beneficial ownership of the certificate; and (6) the payment of the proceeds by the Bank to Stapp was not in response to an inaccurate or wrongful representation of title to the certificate by Stapp.

Appellants’ first point of error asserts that Colene Pennington Allen has failed to allege a cause of action. They contend that the purchase by Katey Mueller of the certificate of deposit inscribed “Katey Mueller as Trustee for Colene Pennington” established at most a “Totten” or “tentative trust,” and as such as a matter of law is not valid in Texas, citing Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975 (1943).

Our examination of the cases reflects that the term “Totten” or “tentative trust” is an ambiguous term which usually refers to the Totten or tentative trust doctrine promulgated in the case of In re Totten, 179 N.Y. 112, 71 N.E. 748 (1904) as follows:

A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. .

When a deposit is made in an account in the name of the depositor “in trust” for another, the typical instrument containing the trust recitals does not provide for an expressed power of revocation. In the majority of states, an expressed trust is irrevocable unless a power of revocation is reserved in the terms of the trust. Bogert, Trusts & Trustees § 998 (2d ed. 1962).

Thus, in jurisdictions which do not recognize an implied power of revocation, without the application of the “Totten” or “tentative trust” doctrine, a deposit in the depositor’s name “in trust” for another creates an irrevocable trust or no trust at all. If the depositor retains possession of the passbook, the trust is revocable by nature, and it is difficult to show an intent to create an irrevocable trust.

The effect of the “Totten” or “tentative trust” doctrine is to imply a power of revocation into the terms of the trust. Bogert, Trusts & Trustees § 47 (2d ed. 1965). The doctrine creates a presumption that the depositor intended to create a revocable trust which became irrevocable upon his death and enforceable by the beneficiary as to the balance on hand, if the depositor dies without revoking the trust. See In re Petralia, 32 Ill.2d 134, 204 N.E.2d 1 (1965); Restatement (Second) of Trusts § 58 (1959).

Although the “Totten” or “tentative trust” doctrine is normally associated with bank, savings and loan association, or building and loan association accounts opened in trust form, it has been applied to certificates of deposit issued to the purchaser as trustee for another. 46 A.L.R.2d 487 (1972).

While we believe Texas has not adopted the “Totten” or “tentative trust” doctrine in regard to the presumption of intent to create a trust, we believe that when the requisite intent is present, a valid inter vivos revocable trust can be established when a certificate of deposit is purchased and held in the name of the purchaser (trustor-trustee) in trust for another (beneficiary). The intended trust terminates and is enforceable by the beneficiary upon the death of the trustor-trustee if he has not revoked the trust.

Fleck v. Baldwin, supra, held that the deposit of money in an account in the name of the depositor “in trust” for another does not, standing alone, create a presumption that the depositor intended to create an irrevocable trust. The same rule was applied to the purchase of a building and loan stock certificate held in the name of the purchaser in trust for another. Fleck did not involve the application of the Texas Trust Act because the alleged trusts in that case were created before April 19,1943, the effective date of the act. At that time, trusts in Texas, as is presently true in the majority of states, were considered irrevocable unless an expressed power of revocation was reserved in the terms of the trust. See Monday v. Vance, 92 Tex. 428, 49 S.W. 516 (1899); Elbert v. Waples-Platter Co., 156 S.W.2d 146 (Tex.Civ.App.—Fort Worth 1941, writ ref’d w.o.m.). The court in Fleck assumed that the deposits and certificates held “in trust” created either an irrevocable trust or no trust at all, and did not consider the possibility of a revocable trust. The court neither considered nor applied the “Totten” or “tentative trust” doctrine.

Article 7425b-41 of the Texas Trust Act provides that “(e)very trust shall be revocable by the trustor during his lifetime, unless expressly made irrevocable by the terms of the instrument.” The effect of this article is to imply a power of revocation in every trust unless provided otherwise. Thus, in Texas, the “Totten” or “tentative trust” doctrine is not necessary in order to imply a power of revocation to trusts which do not provide for an expressed power of revocation.

The Texas Supreme Court made it clear that a valid inter vivos trust can be created although the trustor reserves the power to revoke if the equitable title otherwise passes at the time of the creation. A valid inter vivos trust does not purport to be a will and therefore is not invalid as an attempted testamentary disposition. Land v. Marshall, 426 S.W.2d 841 (Tex.1968); Westerfeld v. Huckaby, 474 S.W.2d 189 (Tex.1971). Finally, the Texas Trust Act also expressly sanctions the creation of a trust by “(a) declaration in writing by the owner of the property that he holds it as trustee for another person . . .

Thus, a valid inter vivos trust may be created by the purchase of a stock certificate held in the name of the purchaser in trust for another if the purchaser so intends. The ultimate and controlling question .is the intent of the purchaser. The recitals on the certificate that such is held “in trust” for another are evidentiary only, and do not give rise to a presumption that a trust was intended. See Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975 (Tex.1943). We hold that when a valid inter vivos revocable trust is established and not revoked during the.lifetime of the trustor, it becomes irrevocable upon his death, and there being no other unfulfilled purposes of the trust expressed, the trust terminates and is enforceable by the beneficiary.

We overrule appellants’ first point of error.

Citizens Bank contends the trial court erred in its definition of the term “trust” in connection with Special Issue 1. Mrs. Allen urges that the Bank waived such complaint by its failure to submit a substantially correct definition.

The court in Lyles v. Texas Employers’ Insurance Association, 405 S.W.2d 725 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.) said:

In the case of explanatory instructions and definitions: if they are omitted, under Rule 279 a request is prerequisite to complaint of the omission by any party, irrespective of reliance on the issue. Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312, syl. 4; Yellow Cab and Baggage Company v. Green, 154 Tex. 330, 277 S.W.2d 92, 93. If the definition is given, but is claimed to be defective, under Rule 274 objection is the means of preserving the complaint. Angeline Casualty Company v. Holt, Tex.Sup., 362 S.W.2d 99, 101. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002.

Since Citizens Bank properly objected to the definition given, the error was preserved.

The challenged instruction stated:

You are instructed that a “TRUST” as that term is used in this Charge is established by the depositing of funds in the name of a trustee for the benefit of another person. You are further instructed that a Trust is revocable if the depositor intended to reserve the power to withdraw all or any part of the deposit at any time during the depositor’s lifetime. You are further instructed that a Trust is revocable unless expressly declared to be irrevocable.

The mere act of depositing funds in the name of a trustee for the benefit of another does not establish a trust. A trust is created by such an act only if the donor intended that a trust be created.

As stated in 89 C.J.S. Trusts § 54 (1955):

It is the general rule that whether any trust, tentative or irrevocable, is in fact created depends on the intention of the parties, and the fact that a deposit is in form in the name of the depositor in trust for another is not conclusive that any trust, tentative or irrevocable, is created, in the absence of the depositor’s intention to create a trust, and the claim that a deposit in the name of another or the depositor created a tentative trust has been denied.

Supportive of such position is Fleck v. Baldwin, 141 Tex. 340,172 S.W.2d 975 (Tex.1943), wherein the court stated:

The ultimate, controlling fact to be determined is the intention of the donor. Such a transportation does or does not create a trust according as the donor intended.

We hold the court erred in instructing the jury that “a trust ... is established by the depositing of funds in the name of a trustee for the benefit of another person.” For such error, the cause must be reversed.

The Bank and Stapp argue that the trial court erred in refusing to permit each party to have six peremptory challenges in the selection of the jury. We disagree.

The record fails to show that either party was required to accept one or more jurors whom it wished to challenge.

The court in Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965) said:

Even before the adoption of the Rules of Civil Procedure, a refusal to allow the proper number of peremptory challenges was regarded as immaterial in the absence of a showing that the party affected was required to accept one or more jurors whom he wished to challenge. See Wolf v. Perryman, 82 Tex. 112, 17 S.W. 772; Snow v. Starr, 75 Tex. 411, 12 S.W. 673. Rules 434 and 503 now provide that no judgment shall be reversed and a new trial ordered for an error of law committed in the course of the trial unless the appellate court is of the opinion that the error was reasonably calculated to and probably did cause the rendition of an improper judgment.
The harmless error rule undoubtedly applies where a party is denied the number of peremptory challenges to which he is entitled. .

Stapp urges that the court erred in overruling his motion in limine directed to the exclusion of testimony of Colene Pennington Allen concerning statements of Katey Mueller.

The granting or overruling of a motion in limine, even if erroneous, is never reversible error. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963). The testimony concerning transactions between Mrs. Allen and Katey Mueller was admitted throughout the trial without objection by Stapp. Therefore, without passing on its applicability, the disqualification imposed by the Dead Man’s Statute, Article 3716, V.A.C.S., has been waived by Stapp. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (Tex.1943).

It is unnecessary to consider the cross-point of Colene Pennington Allen and the conditional point urged by Citizens Bank regarding the prejudgment interest awarded by the court.

The judgment will be reversed and the cause remanded.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    Clairece WOOLEY et vir., Appellant, v. Dr. Raymond J. WEST and Orthopedic Associates, Appellees.
    No. 18035.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 21, 1978.
    Rehearing Denied Jan. 25, 1979.
    Wilson, Berry, Jorgenson & Fuqua, Ken W. Fuqua, Dallas, for appellant.
    Simon, Pebbles, Haskell, Gardner & Betty and Richard U. Simon, Jr. and Anne Gardner, Fort Worth, for appellees.
   OPINION

SPURLOCK, Justice.

Medical malpractice case. Patient sued her orthopedic surgeon for damages from alleged negligence in performing a laminec-tomy. The jury in its answers to special issues failed to find negligence or damages. Therefore error, if any, in the court’s judgment is harmless since Mrs. Wooley complains only about the lack of liability findings in her favor.

Affirmed.

Dr. Raymond West performed back surgery on Clairece Wooley to remove a ruptured disc and to fuse the spinal column at the L-5 level. Complications arose during the procedure, including excessive bleeding and the loss of a portion of a cottonoid sponge. Dr. West searched for the missing piece of sponge for approximately one and one-half hours but abandoned his search on the advice of the anesthesiologist that to continue would endanger Mrs. Wooley’s life.

Shortly after surgery, Mrs. Wooley developed partial loss of bladder and bowel control. The loss has since improved somewhat with time. She also developed what is commonly known as a “foot drop”. She is unable to elevate her right foot. This means her foot drags when she attempts to walk and she is unable to do so without the assistance of some device. This condition has been diagnosed as permanent. She also complained of severe back pain.

A second operation was performed on Mrs. Wooley’s back by Dr. Marvin Overton. He removed the piece of cottonoid lost in the first procedure. He discovered bone chips in the dura and that the L-5 nerve had been almost completely severed. Dr. West admitted unintentionally nicking the dura during the laminectomy. However, he stated he did not believe he severed the L-5 nerve but could not be certain he did not.

The trial court submitted the case to the jury on special issues. By their answers the jury failed to find Dr. West negligent in failing to retrieve the piece of cottonoid, in performing the fusion after the cottonoid was lost, or in opening the dura. They found that he had allowed bone chips to enter the dura and that he partially severed the L-5 nerve but failed to find either was negligence. Special issues 9-12 asked what amounts of money from a preponderance of the evidence would reasonably compensate Mrs. Wooley for her injuries. The jury’s answer to each damage issue was “$0”, therefore they found no damages.

On appeal Mrs. Wooley asserts seven points of error. They are as follows:

“I. The trial court erred in its instructions on Dr. West’s duty, for the reason that said instruction was an impermissible comment on the weight of the evidence.
“II. The trial court erred in refusing to instruct the jury on res ipsa loquitur.
“IV. The trial court erred in refusing to declare Dr. Marvin Overton a hostile witness.
“V. The trial court erred in refusing to submit to the jury an issue on Dr. West’s failure to obtain a consulting opinion.
“VI. The trial court erred in refusing plaintiffs’ trial amendment on Dr. West’s failure to obtain a consulting opinion.
“VII. The jury’s answer to special issue no. 7 is against the great weight and preponderance of the evidence.”

After carefully analyzing each point, we conclude that none of them in any manner attacks the findings of no damages. Instead, each point presents a complaint relating to liability or evidence thereof. Where there is no point on the jury’s finding of no damages, error, if any, on liability issues is harmless. Lewis v. Isthmian Lines, Inc., 425 S.W.2d 893 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ). Mitchell v. Chaparral Chrysler-Plymouth, 572 S.W.2d 359 (Tex.Civ.App.—Fort Worth 1978, writ application pending).

Since we have concluded that all of Mrs. Wooley’s points of error relate to liability, and she failed to raise a point on damages, we need not consider any of her points. However, we have, nevertheless, severally considered each point of error presented in complaint of the judgment and each is overruled.

The judgment of the trial court is affirmed.


author: WARD, Justice.

text:
    L. B. COX, Jr. and Mary L. Graham, Appellants, v. Alfred E. GUTMAN et al., Appellees.
    No. 6754.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 29, 1978.
    Rehearing Denied Jan. 17, 1979.
    Ray, Anderson, Shields, Trotti & Hemp-hill, P. C., Ross H. Hemphill, Dallas, for appellants.
    Thompson & Knight, A. Walter Socolow, Jerry P. Jones, James C. Morriss, III, Stras-burger & Price, Jeffrey S. Osgood, Dallas, Lynch, Chappell, Allday & Aldridge, Randall Lundy, Midland, Jack T. Akin, Dallas, Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Harrell Feldt, David K. Brooks, Midland, for appellees.
   OPINION

WARD, Justice.

This oil and gas case concerns the title to a royalty interest amounting to approximately ¼⅛ of the Vsth royalty from certain lands in Ward County. The Plaintiffs claim as successors to the grantee of a receiver’s deed, and the construction and the effect of that deed is the issue. All claimants filed motions for summary judgment based on stipulated facts. The trial Court denied the Plaintiffs’ motion for summary judgment, entered a take nothing judgment as to the Plaintiffs, granted the claimants/Defendants’ motions for summary judgment, and decreed that the royalty interest vested in those Defendants. We affirm the judgment of the trial Court.

The Delmore Corporation is the common source of title. In 1932, that Company was placed in receivership in the 44th District Court of Dallas County, and J. L. Lattimore was appointed receiver. As the result of a judicial sale, he executed a receiver’s deed on February 23, 1933 to A. E. Cox. The two Plaintiffs, L. B. Cox, Jr. and Mary L. Graham, are the successors in interest to A. E. Cox and make their claim to the disputed royalty interest under this deed. Pursuant to another judicial sale, the receiver executed a second deed on October 23, 1933 to Max Gutman. The Defendants/claimants are the successors in interest of Gutman and claim under this last deed.

On August 10, 1928, the Delmore Corporation executed what is termed a permanent oil and gas lease to Magnolia Petroleum Company, which provided that, in the event of production, a royalty of the value of Vsth of all oil, gas, and other minerals would be payable to the grantor. Certain royalty conveyances to parties not involved in the present controversy were thereafter made by the Delmore Corporation so that by March 29,1930, the Corporation owned a royalty interest in the property in controversy greater than ½ of Vsth royalty, but less than the entire Vsth royalty. On that date, Delmore Corporation executed a deed of trust covering the property in favor of L. B. Cox, Trustee for A. E. Cox, the instrument excepting from its terms an undivided ½ interest in all oil, gas, and other minerals in and under said lands, including V2 of all royalties under and by virtue of any and all leases then in force, the instrument in effect conveying to the Trustee a V2 of Vsth royalty interest in the property. Two years later, on March 29, 1932, following other conveyances of certain royalty interest to parties not involved, Delmore Corporation executed a deed conveying all of its remaining royalty interest in the described property to Lyle Saxon. This is the interest in controversy and amounted to about Vith of Vsth royalty. On April 11, 1932, the Delmore Corporation was placed in receivership in the 44th District Court of Dallas County. During the pendency of the receivership, A. E. Cox filed suit in the 40th District Court of Ellis County against the Delmore Corporation, John L. Lattimore, the receiver, and various other parties. Lyle Saxon intervened in that lawsuit. On December 20, 1932, after jury trial, a judgment was entered in favor of A. E. Cox whereby he recovered, among other things, $26,193.23 from the defendant Delmore Corporation, together with foreclosure against said defendants and the intervenor, Lyle Saxon, of the plaintiff’s deed of trust lien, the lien on the real estate described excepting therefrom the following:

“ * * * except an undivided one-half interest in and to all oil and gas and other minerals in and under said lands including an undivided one-half of all royalties under and by virtue of any and all leases and grants on any and all of said lands * * *. It is intended that hereby a lien is established and foreclosure decreed on all lands, or interest therein, conveyed by said deed of trust, but no more, and this foreclosure as against Lyle Saxon, Intervenor, does not prejudice his interest in any part of the royalty conveyed to him by royalty deed dated March 29, 1932, from defendant Delmore Corporation to Lyle Saxori * * which are not included and conveyed in said deed of trust to L. B. Cox, trustee, but foreclosure is decreed against said Lyle Saxon, Intervenor, for any part of the royalties so conveyed to him, or interest in the above described lands, which is covered and conveyed by said deed of trust * * *.”

The effect of the judgment was that it awarded Cox a foreclosure of his deed of trust lien on ½ of ⅛⅛ royalty from the land in controversy. Because of the pendency of the receivership action, the District Court in Ellis County, in lieu of the issuance of an order of sale, certified its judgment to the District Court of Dallas County for enforcement.

A judicial sale was then effected by John L. Lattimore, receiver of Delmore Corporation, to A. E. Cox pursuant to an order of sale from the 44th District Court of Dallas County, dated February 6,1933. This order of sale of February 6, 1933, directs sale of the “lands described in said judgment of the District Court of Ellis County.” This order begins with the recitation of the rendition of the judgment of the District Court of Ellis County and quotes that judgment in full. It then recites the finality of the Ellis County judgment, “that no other creditors and no stockholders are asserting any interest in the lands or personal property described in said judgment.” The next paragraph states:

“It is therefore, ordered, adjudged, and decreed that J. L. Lattimore, receiver herein, be and he is hereby authorized and instructed to sell * * * the lands described in the foregoing judgment * * * »

The problem before us is created by the confirmation order of February 23, 1933, and the receiver’s deed of the same date. The confirmation order recites that J. L. Lattimore, the receiver, reports the sale to A. E. Cox of the land described in the order of the Court dated February 6, 1933, and uses the terms, “such sale to convey the fee simple title thereto,” and orders that proper conveyance be made of the real property to A. E. Cox, “such conveyance to convey the full fee simple title, to said lands, including all the interest, claim or title of Delmore Corporation and/or said stockholders and creditors * * The receiver’s deed executed the same day conveys to A. E. Cox the property which is described as tracts of land with no mention made of the oil and gas lease mineral interest or of royalty. It also contains the following phrase:

“By this conveyance it is intended to convey the full fee simple title to said lands including all the interest, claims or titles of Delmore Corporation and/or all its stockholders * * * as well as all claims or interest of all its or their creditors * *

We note also that this receiver’s deed is without warranty.

On February 23, 1933, the same date as the receiver’s deed from the receiver to A. E. Cox, Lyle Saxon, who participated in the receiver sale as attorney for the receiver, executed a quitclaim deed to A. E. Cox covering the tracts of land in question, the deed expressly reserving to Lyle Saxon the ¼⅛ of ⅛⅛ royalty interest involved in the present lawsuit.

Thereafter, on March 9,1933, Lyle Saxon reconveyed to John L. Lattimore, the receiver, the approximately ¼⅛ of ⅛⅛ royalty interest which is in dispute and which Delmore Corporation had conveyed to Saxon prior to the appointment of the receiver. Thereafter, in October, 1933, the receiver petitioned the Court to sell this royalty interest to Max Gutman for the price of $1,350.45, and thereafter this royalty was sold by the receiver at a second judicial sale on October 23, 1933 to the said Max Gut-man. As previously pointed out, the Defendants/claimants are the successors in interest of Mr. Gutman.

The principal arguments advanced by the Plaintiffs to secure a reversal are twofold. In the first place, they argue that by the order of confirmation of February 23,1933 and the receiver’s deed of that date to A. E. Cox, the full fee simple title of the property passed, the same in no way being limited to the interest covered by the Cox deed of trust. We do not agree with the Plaintiffs for the reasons to be stated. The Court’s order of February 6, 1933 directing the sale is clearly limited to the properties and interest ordered foreclosed by the 40th District Court of Ellis County and was that property and interest originally covered by the deed of trust. That judgment foreclosing the deed of trust applied only to ⅛ of the V&th royalty. Though the order confirming the sale and the receiver’s deed speak in terms of the fee simple title to the land, it should have been limited to that which was described in the order of sale. The property in controversy was conveyed by Delmore to Lyle Saxon on March 29, 1932. The receiver was not appointed until later and acquired only the rights possessed by Delmore on the date of his appointment. He acquired no greater interest than the debtor had in the property. Knox v. Maurer-Krebs Oil Co., 171 S.W.2d 544 (Tex.Civ.App.—Eastland 1943, writ ref’d w. o. m.). The jurisdiction of the Court in administering the property of Delmore was confined to the rights and interests of Delmore. The Court lacked the authority to administer the property of Lyle Saxon for he was not a party to the receivership proceeding. Patten v. Rabinowitz, 114 S.W.2d 310 (Tex.Civ.App.—Dallas 1938, no writ); Clow Gasteam Heating Co. v. Hixson, 67 S.W.2d 619 (Tex.Civ.App.—Dallas 1933, writ dism’d). A grantor cannot convey to a grantee a greater or better title than the grantor holds. Collum v. Neuhoff, 507 S.W.2d 920 (Tex.Civ.App.—Dallas 1974, no writ); Abraham v. Crow, 382 S.W.2d 756 (Tex.Civ.App.—Amarillo 1964, no writ). All that was conveyed by the receiver to A. E. Cox was the property described in the deed of trust and the judgment of the District Court in Ellis County, as this was the only property that the receiver then held.

The Plaintiffs next argue that when Lyle Saxon conveyed the disputed interest to John L. Lattimore, receiver of the Delmore Corporation, on March 9, 1933, then the doctrine of after-acquired title operated to confer title on their predecessor, A. E. Cox. Again, we do not agree. The receiver’s deed refers back to the order of sale entered by the Dallas District Court on February 6, 1933, which specifically limited the interest to be sold to the interest which A. E. Cox had foreclosed. In this situation, the receiver’s deed without warranty did not create an estoppel by deed since it specified the source of title or interest that was released to the grantee, and the later acquired title was acquired from a different source. In the present case, that notice was also expressed by the quitclaim deed of the same date as the receiver’s deed which Lyle Saxon executed to Cox and which clearly reserved to Saxon the disputed interest. Wilson v. Wilson, 118 S.W.2d 403 (Tex.Civ.App.—Beaumont 1938, no writ). See discussion, Hemingway, “After-Acquired Title in Texas,” 20 Sw.L.J. 97 at 119 (1966). Further, this was a deed executed by the receiver in a representative capacity. There, the effect of an estoppel by deed is to bind the representative from thereafter asserting against his grantee and those in privity with the latter an interest owned by the representative individually in the land. The receiver never had such an interest of his own. The interest later conveyed to the receiver was to him in his representative capacity, which was in turn later sold by him under proper order and confirmation order to Mr. Gutman. See Hemingway, supra, 20 Sw.L.J. 310 at 328.

We have considered all of the Plaintiffs’ points and they are overruled. The judgment of the trial Court is affirmed.


author: OSBORN, Justice.

text:
    In the Matter of R.L.S., Appellant.
    No. 6771.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 29, 1978.
    Mike Wade, Monahans, for appellant.
    Ed Keys, County Atty., Monahans, for appellee.
   OPINION

OSBORN, Justice.

This case involves the question of the admissibility of an oral confession of a minor under Section 51.09(b)(2) of the Texas Family Code. Having concluded that the confession was not admissible, the case is reversed and remanded to the trial Court.

The Appellant, R.L.S., and a companion broke into the Monahans High School field house during the early morning hours of November 13, 1977. They did substantial damage to the equipment located in the building. On the same occasion, they damaged other property, including two automobiles. Later that day, the Monahans Chief of Police inspected the field house and found the building had been vandalized. He also discovered the damaged vehicles near the field house. The following morning he had R.L.S. and a companion “picked up” and taken to the police station. He read R.L.S. his “Miranda rights.” The boy did not request a lawyer and said he understood his rights. The officer then proceeded to question R.L.S., and the boy admitted breaking in the field house and “wrecking the place.” He also admitted damaging the cars.

The Court considered the oral confession at the adjudication hearing at which it was determined that R.L.S. had engaged in delinquent conduct. Appellant’s first point asserts the trial Court erred in admitting the oral confession over his objection that it was not admissible under Section 51.-09(b)(2). This provision of the Texas Family Code provides:

“(b) Notwithstanding any of the provisions of Subsection (a) of this section, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:
******
“(2) it be made orally and the child makes a statement of facts or circumstances that are found to be true, which conduct tends to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”

Prior to the 1975 amendment, any waiver ' of a right against self-incrimination had to be voluntarily made in writing or in recorded Court proceedings with consent of counsel after the accused had been informed of his rights and the consequence of waiving them. Sec. 51.09(a); 5 Tex.Tech.L.Rev. 524 (1974). There was good reason for these requirements. In re S.E.B., 514 S.W.2d 948 (Tex.Civ.App.—El Paso 1974, no writ).

Apparently having concluded that these restrictions were overly burdensome on law enforcement personnel, the Legislature in 1975 added paragraph (b). We are concerned only with paragraph (b)(2) which concerns oral statements. The basis for that new provision in the Code is set forth in two law review articles as follows:

“Subdivision (b)(2) attempts to track the language of article 38.22[l](e) by permitting an oral statement to be introduced into evidence if it has led to substantiating evidence. Article 38.22[l](e) contains the phrase ‘which conduce to establish his guilt.’ It was apparently by mistake that the amendment here states instead ‘which conduct tends to establish his guilt.’ * * * ”

Dawson, “Delinquent Children and Children in Need of Supervision,” 8 Tex.Tech.L.Rev. 119 at 132 (1976).

“Paragraph (b)(2) was added to section 51.09 in an apparent attempt to allow oral confessions in juvenile court if the confession leads to evidence, in a fashion similar to Tex.Code Crim.Proc.Ann. art. 38.22, Sec. 1(e) (Supp. 1975-76). * *”

Steele, “Criminal Law and Procedure,” 30 Sw.L.J. 315 at 346, n. 196.

When we look to the criminal law cases involving Article 38.22, Tex.Code Crim.Proc.Ann., they make it abundantly clear that the statement of the accused must lead to the discovery of items or information previously unknown to the State in order for the confession to be admissible. In Chase v. State, 508 S.W.2d 605 (Tex.Crim.App. 1974), cert. denied, 419 U.S. 840, 95 S.Ct. 71, 42 L.Ed.2d 68, the Court said:

“The facts found to be true must be incriminating. Shelton v. State, 168 Tex.Cr.R. 432, 328 S.W.2d 445. When the facts or circumstances asserted have not led to the discovery of items or information previously unknown to the State, confessions have been held inadmissible. Taggart v. State, 149 Tex.Cr.R. 91, 191 S.W.2d 728; Willoughby v. State, 87 Tex. Cr.R. 40, 219 S.W. 468; Baggett v. State, 65 Tex.Cr.R. 425, 144 S.W. 1136. When, however, the statement of the accused has led to the discovery of items or information not theretofore discovered by the State, the ‘found to be true’ requirement of Article 38.22, Section 1, V.A.C.C.P., has been satisfied. Wilson v. State, Tex.Cr.App., 473 S.W.2d 532 (recovery of stolen vehicle); Ashley v. State, supra (identification of keys in defendant’s possession); Stelman v. State, 123 Tex.Cr.R. 330, 58 S.W.2d 831 (location of victim and victim’s wound); Sweat v. State, 115 Tex.Cr.R. 130, 29 S.W.2d 756 (location of burglary and identification of stolen property); Williams v. State, 115 Tex.Cr.R. 28, 27 S.W.2d 233 (location of murder).
“The foregoing authorities dictate that Article 38.22, Section 1(e), V.A.C.C.P., requires that some evidence be found as a result of the defendant’s statement which bolsters the reliability of the facts and circumstances in the statement that conduce to establish guilt.”

Similar language was used in McGilvery v. State, 533 S.W.2d 24 (Tex.Crim.App.1976), where the Court said:

“The general rule is that oral confessions by defendants in police custody are not admissible at trial. Smith v. State, Tex.Cr.App., 514 S.W.2d 749, 752; Pierson v. State, 145 Tex.Cr.R. 388, 168 S.W.2d 256, 258-259. The above quoted statute provides an exception to the general rule. When a defendant’s in-custody statement of facts or circumstances which conduce to establish his guilt is found to be true, the statute permits introduction of the statement at trial. The facts or circumstances stated must be shown to conduce to establish guilt by showing that the statement led to the discovery of items or information not previously discovered by the State, and must be incriminating. Chase v. State, Tex.Cr.App., 508 S.W.2d 605, cert. denied, 419 U.S. 840, 95 S.Ct. 71, 42 L.Ed.2d 68 (1974); Ashley v. State, Tex.Cr.App., 362 S.W.2d 847, cert. denied, 372 U.S. 956, 83 S.Ct. 955, 10 L.Ed.2d 10 (1963); cf. Smith v. State, Tex.Cr.App., 514 S.W.2d 749.”

The Court, in Meza v. State, 543 S.W.2d 189 (Tex.Civ.App.—Austin 1976, no writ), found no error in the admissibility of an oral statement under Article 51.09(b)(2), but did note in its opinion that the confession resulted in the location of hidden rifle shells previously unknown to the State. In this case, the oral statement did not lead to any item or information not previously known to the State. Thus, we conclude that the confession was not admissible, and it having been received in evidence probably resulted in harm to the Appellee. Point of Error No. 1 is sustained. It is not necessary that we pass on the other points of error.

The judgment of the trial Court is reversed and the case is remanded to the trial Court for further consideration in accordance with this opinion.


author: BISSETT, Justice.

text:
    Abdelkader AMRANI-KHALDI et al., Appellants, v. The STATE of Texas, Appellee.
    No. 1410.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 29, 1978.

      Gary N. Patterson, Bonilla, Read, Nutto, Bonilla, Inc., Corpus Christi, for appellants.
    Kenneth G. Botary, Eric G. Brown, Asst. Dist. Attys., Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

Involved in this appeal is the forfeiture of an automobile which was allegedly used by Abdelkader Amrani-Khaldi, one of the defendants, to transport for delivery hashish, a controlled substance. The State of Texas, pursuant to the provisions of Tex.Rev.Civ. Stat.Ann. art. 4476-15 § 5.03(a)(5) (1976) brought suit against the above-named defendant and Deborah Amrani-Khaldi, his wife, whereby it sought to forfeit the automobile, a 1974 Plymouth Duster. Trial was to the court, sitting without a jury. Judgment was rendered which forfeited the automobile to the State. Defendants have appealed. We reverse and render.

The trial court filed findings of fact and conclusions of law. The trial court found that the defendant used the automobile in question on January 17, 1978, “to transport for delivery” hashish.

Abdelkader Amrani-Khaldi, hereinafter referred to as the “Defendant”, was stopped by police officers on January 17, 1978, after he was seen leaving the residence of one Denise Hayhorst at 701 Atlantic, Corpus Christi, Texas, in a 1974 Plymouth Duster automobile. Nine hundred seventy-three (973) grams of hashish were found in the automobile. It is conclusively established that hashish is a controlled substance.

In their first point of error, the defendants claim, in substance, that the trial court erred in rendering judgment which forfeited the automobile in question because the automobile was the community property of the defendant and his wife, Deborah, and even if the husband was using the automobile on January 17, 1978, to transport for delivery a controlled substance, the community ownership of the wife barred the forfeiture since she, being an owner of the automobile, did not know that the automobile was being used for such purpose and did not consent thereto. We do not agree.

It is undisputed that the 1974 Plymouth Duster automobile was owned by the defendants as a part of their community property. It is further undisputed that Mrs. Amrani-Khaldi neither knew that thé automobile was to be used by her husband on January 17,1978, to transport for delivery a controlled substance, nor consented to such use.

The marital community in this State is a creature of the Constitution. Tex.Const. art. 16, § 15. Pursuant to this constitutional provision, Tex.Fam.Code § 5.61 (1975) provides, in part, that the “community property subject to a spouse’s sole or joint management, control and disposition is subject to the liabilities incurred by him or her before or during marriage.” It plainly adopts the principle that one spouse can obligate the community property of his or her spouse without the consent or knowledge of the other spouse. We hold that community property is not exempt from forfeiture where such property is used by a spouse in such a manner as to contravene Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 5.03 (1976), even though such property is so used by one spouse without the knowledge or consent of the other spouse. See People v. One 1939 La Salle 8 Touring Sedan, Engine No, 2301026, 45 Cal.App.2d 709, 115 P.2d 39 (1941); People v. One 1941 Buick Club Coupe, Serial No. 13935358, 72 Cal.App.2d 593, 165 P.2d 44 (1946); State v. One 1968 Buick Electra, Delaware Registration 43003, 301 A.2d 297 (Del.Super.1973). Defendants’ first point is overruled.

The defendants, in their fourth point of error, assert that there was no evidence that the defendant used the automobile on January 17, 1978, “to transport for delivery” the 973 grams of hashish. In disposing of that point, we consider only the evidence and permissible inferences which tend to support the trial court’s findings and judgment, as required by Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

Tex.Rev.Civ.Stat.Ann. art. 4476-15, denominated the “Texas Controlled Substances Act,” was enacted by the 63rd Legislature and became effective on August 27, 1973. It superseded and repealed the “Uniform Narcotic Drug Act,” Articles 725b-725d, V.A.P.C.

With respect to forfeitures of vehicles, vessels or aircraft used in transporting narcotics and other prohibited substances, Section 1 of Article 725d, made it unlawful:

“(a) to transport, carry or convey any contraband narcotic in, upon or by means of any vessel, vehicle or aircraft or any occupants thereof;
(b) to conceal or possess any contraband narcotics in or upon any vessel, vehicle or aircraft or occupants thereof;
(c) to use any vessel, vehicle or aircraft or occupants thereof to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange or gift of any contraband narcotic.”

Section 2 of Article 725d, in relevant part, provided

“Any vessel, vehicle or aircraft which is being used in violation of Section 1 of this Act, shall be seized and forfeited to the Texas Department of Public Safety, Narcotics Section . . .; and provided further, no vessel, vehicle or aircraft shall be forfeited where it is shown that the illegal act has been committed by some person other than the owner and without the owner’s knowledge.”

Thus under the old law, an owner’s vehicle could be forfeited based upon nothing more than the mere transportation of a contraband narcotic by the owner, or by another person with the owner’s knowledge. State v. Cherry, 387 S.W.2d 149 (Tex.Civ.App.—Dallas 1965, no writ); Mosse v. State, 332 S.W.2d 383 (Tex.Civ.App.—Dallas 1960, no writ); State v. Meyers, 328 S.W.2d 321 (Tex.Civ.App.—Dallas 1959, writ ref’d n. r. e.); McKee v. State, 318 S.W.2d 113 (Tex.Civ.App.—Amarillo 1958, writ ref’d n. r. e.). Under the new law such is not the case.

Concerning forfeitures, Section 5.03(a)(5) of the Controlled Substances Act (the new law), in pertinent part, reads:

“(5) any conveyance, including aircraft, vehicles, vessels, trailers, and railroad cars, that is used or intended for use to transport for delivery or in any manner facilitate the transportation for delivery of any property described in paragraph (1), (2), or (3) of this subsection . shall be forfeited under this subchapter . [provided] no conveyance shall be subject to forfeiture if the delivery involved is an offer to sell.” (Emphasis supplied).

Definitions, for the purposes of the Controlled Substances Act, are set out in Sub-chapter 1 of the Act. Section 1.02(8), in part, reads:

“(8) ‘Deliver’ or ‘delivery’ means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. For the purposes of this Act, it also includes an offer to sell a controlled substance ...”

Regarding the burden of proof, where, as is the case here, the owner of the property has filed a verified answer denying that the property is subject to forfeiture, Section 5.07(b) of the Act provides:

“ . . . the burden is on the state to prove beyond a reasonable doubt that the property is subject to forfeiture . . ”

On January 16, 1978, a parcel from Morocco, addressed to 710 Atlantic, Corpus Christi, Texas, was opened by the United States Postal authorities. It was found to contain hashish. The Narcotics Division of the Corpus Christi Police Department was notified of the arrival of such a package. It was decided that the parcel would be delivered to the above address by the regular mail carrier. The residence of Ms. Hay-horst was placed under surveillance.

At approximately 1:47 o’clock p. m. on January 17,1978, the postman delivered the package to Ms. Hayhorst at 701 Atlantic. At about 1:55 o’clock p. m., the defendant arrived at Ms. Hayhorst’s apartment in the Plymouth Duster automobile. Shortly thereafter, he exited the residence carrying a white shopping bag, which later turned out to contain the hashish. He was apprehended by the police a few blocks away.

The 973 grams of hashish, which the defendant had in his possession in the automobile at the time he was stopped by the police, amounted, in common parlance, to four “bricks.” Officer Escamilla testified that this was the largest quantity of hashish that she had ever seen; that a person would not use for his own personal use more than one gram a day; and that the street value of the hashish was $61,686.00. Mr. Donald Thain, a chemist for the Texas Department of Public Safety, said that 973 grams was an uncommonly large amount of hashish. Sergeant Zarate, a police officer of 21 years and a narcotics officer for 8 years, stated that he had never seen a person with as much as one “brick” of hashish for his own personal use.

The State argues:

“The trial court, as the fact finder, could reasonably infer that the appellant transported the hashish for delivery.”

We would be inclined to agree but for the literal meaning of Section 5.03(a)(5) of the Act. There is nothing ambiguous or uncertain about the wording of the Controlled Substances Act; hence, there is no need to explore its legislative history, and we are not at liberty to depart from the literal meaning of Sections 1.02(8) and 5.03(a)(5) of the Act. Therefore, the rule which permits such departure has no application here as the intention of the legislature as expressed in the Act is clear, unequivocal and free from doubt. We may not invade the legislative field. Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (Tex.Sup.1961). “If Parliament does not mean what it says, it must say so.” Newton v. Barnes, 150 S.W.2d 72 (Tex.Civ.App.—San Antonio 1941, writ ref’d).

The unusually large quantity of hashish possessed by the defendant was the only evidence produced at trial which could possibly have any bearing with respect to his purpose in transporting the hashish in his automobile. We are thus faced with the issue of whether or not it was inferable, beyond a reasonable doubt, from the sheer quantity of hashish involved, that he was transporting the drug for “delivery” at the time he was apprehended. We hold that it was not.

Furthermore, in construing Section 5.03(a)(5) of the Act we must adhere to the rule that a statute imposing penalties or forfeitures is strictly construed in determining whether it applies to persons or actions not clearly included in the language of the statute. City of San Marcos v. Lower Colorado River Authority, 508 S.W.2d 403 (Tex.Civ.App.—Austin 1974) aff’d as mod. 523 S.W.2d 641 (Tex.Sup.1975). That rule is particularly applicable in the case at bar because a comparison of former article 725d, V.A.P.C., and the Texas Controlled Substances Act shows that an obvious purpose of the legislature in repealing article 725d and enacting the Texas Controlled Substances Act was to narrow the range of circumstances upon which the State could forfeit a vehicle used to transport drugs. Section 5.03(a)(5) of the Act clearly provides for forfeiture only where a vehicle was used to transport controlled substances “for delivery.” The term “delivery” is used in the forfeiture provisions of the Act with a deliberately constricted meaning. Throughout the other subchapters of the Act, the term “delivery” denotes any type of transfer to a third person including an offer of sale; however, in the forfeiture provisions in Subchapter 5, the term “delivery,” as that term is defined in the first sentence of Section 1.02(8), means any type of transfer to a third person except an offer to sell.

There is no direct evidence that, on January 17, 1978, the defendant was transporting the hashish for the purpose of delivering any part of it to a third person. Unquestionably, the State, either by direct or circumstantial evidence, was required to establish, beyond a reasonable doubt, that the defendant was using the automobile on the date in question to transport the hashish for delivery to some third person. There is no basis for an inference that he was transporting the contraband for the purpose of giving any part to some third person. It could be reasonably inferred from the extremely large amount of the hashish involved that the defendant planned to sell at least part of it at some future date or dates to third parties. But, the transporting of a controlled substance for the purpose of making “offers to sell” is not, by the express provisions of Section 5.03(a)(5) of the Controlled Substances Act a ground for forfeiture of an automobile. Hence, we cannot hold that the State proved beyond a reasonable doubt that the 1974 Plymouth Duster automobile was subject to forfeiture under Section 5.03(a)(5) of the Act.

We realize that our holding in this case places an extremely difficult burden upon the State to establish the element of “delivery” in forfeiture cases where the contraband is being transported by a vehicle. Based upon the definition of the term “delivery” in Section 1.02(8) of the Controlled Substances Act and our construction of Section 5.03(a)(5) of the Act, however, we can reach no other conclusion. In drafting that section of the statute the legislature obviously intended to restrict forfeiture to the singular situation in which the owner of the automobile has a present intent to transfer a controlled substance to a third party pursuant to an existing agreement or understanding.

Since we find no evidence of probative force to support the trial court’s finding that the defendants’ automobile was used to transport hashish “for delivery” to a third person, we have no choice but to reverse the trial court’s judgment and to render judgment that the State take nothing. Defendants’ fourth point is sustained.

Our holding makes it unnecessary to dispose of defendants’ remaining points of error.

The judgment of the trial court is REVERSED and judgment is RENDERED that the State take nothing by its suit and that the automobile in question be returned to the defendants.


author: MARTIN, Chief Judge.

text:
    Milburn MAUPIN et al., Movants, v. William B. STANSBURY, Respondent.
    Court of Appeals of Kentucky.
    Oct. 6, 1978.
    As Modified Oct. 13, 1978.

      S. Arnold Lynch, Louisville, Walter R. Butt, III, Louisville, for appellants.
    Joseph J. Leary, Frankfort, for appellee.
   OPINION AND ORDER

Before MARTIN, C. J., and HOWER-TON, and LESTER, JJ.

MARTIN, Chief Judge.

This action comes before the Court on a CR 65.07 motion by members of the City of Louisville’s Board of Aldermen to dissolve a temporary injunction issued by the Jefferson Circuit Court. Because the parties have agreed to strike from the appellate record portions of the record below, the sole issue herein is whether the Mayor’s verified complaint supports the September 18, 1978 order by which the trial court enjoined the Board of Aldermen from:

(1) Issuing or causing to be issued any subpoena compelling the Mayor to appear at any place at any time, for any purpose; and

(2) Expending public funds for the purposes of conducting an investigation, hearing, or other proceeding relating to the office of the Mayor of the City of Louisville.

In light of the discussion below, we conclude that the Board’s motion to dissolve must be denied as part 1 of the temporary injunction, relating to the Board’s power to subpoena the Mayor, and granted as to part 2, dealing with the expenditures of public funds by the Board.

I.

The facts relative to the instant action are undisputed and may be briefly summarized. It appears that the dispute centers on a resolution and an ordinance recently enacted by the Louisville Board of Aider-men. Resolution No. 49, Series 1978, adopted by the Board on August 2, 1978, created a Select Committee of Inquiry. This Committee, composed of five members of the Board, was empowered to conduct an investigation to determine the extent, if any, of any illegal, improper, or unethical activities by the Mayor. Among other things, Resolution No. 49 provided that the Committee was empowered to hire personnel, take testimony, receive evidence, and compel the attendance of witnesses in furtherance of its investigation. Overriding the Mayor’s veto on August 22, 1978, and again on September 12, 1978, the Board subsequently adopted Ordinance No. 78, Series 1978, which gave the Board the power to issue subpoenas in furtherance of any investigation.

After passage of Resolution No. 49, the Mayor was requested to produce his appointment book and to submit to questioning by members of the Committee. On advice of counsel, the Mayor refused to comply with these requests. Thereafter, on September 12, 1978, the Mayor filed a verified complaint in the Jefferson' Circuit Court seeking a declaratory judgment pursuant to K.R.S. 418.040 as to the Board’s power to establish the Select Committee, to authorize subpoenas, and to expend public funds to carry out an investigation. This complaint also sought a restraining order and permanent injunction.

On the basis of this verified complaint, the Jefferson Circuit Court entered a restraining order on the same day as the complaint was filed. This order restrained the Board of Aldermen from issuing subpoenas to the Mayor and from expending public funds for the purposes of investigating the Mayor’s office. The next day, September 13, 1978, the Board filed a motion requesting the trial court to dissolve the restraining order. Hearing on this motion was set for September 14. The day of the hearing, a motion pursuant to CR 65.03 and CR 65.04 for a temporary injunction was filed by the respondent Mayor.

Both the motion to dissolve the restraining order and the motion for a temporary injunctive relief were heard by the trial court on September 14. The Board members subsequently filed their answer to the Mayor’s complaint on September 15. On September 18, the circuit court entered its order granting the temporary injunction, thereby continuing the earlier prohibitions of the restraining order.

Because it is undisputed that the trial court had only the verified complaint and various motions before it on September 15, the Mayor’s motion to strike all other documents from the record is hereby granted. A three-judge panel being required by CR 76.34(3) for a final disposition of this motion, we now address the CR 65.07 motion to dissolve.

II.

Because the injunction is an extraordinary remedy, sufficiency of the evidence below must be evaluated in light of both substantive and equitable principles. Realizing that the elements of CR 65.04 must often be tempered by the equities of any situation, injunctive relief is basically addressed to the sound discretion of the trial court. Bartman v. Shobe, Ky., 353 S.W.2d 550 (1962); 42 Am.Jur.2d Injunctions § 357. Unless a trial court has abused that discretion, this Court has no power to set aside the order below. CR 65.07; Oscar Ewing, Inc. v. Melton, Ky., 309 S.W.2d 760 (1958). Although the Oscar Ewing, Inc. case, supra, dealt with appellate review of a denial of the temporary injunction, it is our opinion that the abuse of discretion test is equally applicable in our review of temporary injunctions which have been issued. Therefore, the sole question presented to this Court is whether the Mayor’s verified complaint, standing alone, affords a sufficient basis for the trial court’s issuance of this temporary injunction.

CR 65.04 sets out the substantive elements for temporary injunctive relief by providing that the remedy is warranted only where it is clearly shown that one’s rights will suffer immediate and irreparable injury pending trial. The purpose of these requirements is to insure that the injunction issues only where absolutely necessary to preserve a party’s rights pending the trial of the merits. Although the injunction is not to be substituted for a full trial on the merits, Oscar Ewing Inc. v. Melton, supra, it is clear that the party must show, either by verified complaint, affidavit, or other proof, that such harm is likely to occur unless the injunction issues.

In order to show harm to his rights, a party must first allege possible abrogation of a concrete personal right. Morrow v. City of Louisville, Ky., 249 S.W.2d 721 (1952). While the nature of this right may be, and usually is, disputed, it is clear that some substantial claim to a personal right must be alleged. Because a temporary injunction often has the effect of enforcing a mere claim of the right, doubtful cases should await trial of the merits. Oscar Ewing, Inc. v. Melton, supra.

In addition to showing that personal rights are at stake, CR 65.04 further requires a clear showing that these rights will be immediately impaired. Thus, the remote possibility of some feared wrong in the future is insufficient to support a trial court’s award of a temporary injunction. Chapman v. Beaver Dam Coal Co., Ky., 327 S.W.2d 397 (1959). Rather, the element of “immediacy” contemplates that the parties show an urgent necessity for relief. McCloud v. City of Cadiz, Ky.App., 548 S.W.2d 158 (1977). This means that “[a]n injunction will not be granted on the ground merely of an anticipated danger or an apprehension of it, but there must be a reasonable probability that injury will be done if no injunction is granted.” Hamlin v. Durham, 235 Ky. 842, 32 S.W.2d 413, 414 (1930). Although the above cases dealt with permanent injunctive relief, we believe that the reasoning of those cases is equally applicable to temporary injunctive relief. We would further note, that in the area of temporary injunctive relief, the clearest example of irreparable injury is where it appears that the final judgment would be rendered completely meaningless should the probable harm alleged occur pri- or to trial. CR 65.04(1); Oscar Ewing, Inc. v. Melton, supra at 761.

In addition to the above substantive aspects of CR 65.04, various equitable considerations must also be evaluated. For example, in any temporary injunctive relief situation the relative benefits and detriments should be weighed. Kentucky High School Athletic Association v. Hopkins, Ky.App., 552 S.W.2d 685 (1977). Obviously, this entails a consideration of whether the public interest will be harmed by the issuance of the injunction or whether its effect will merely be to maintain the status quo.

CR 65.04 requires the party to “clearly show” the substantive aspects of that rule. However, the fact that the purpose of a temporary injunction is to afford only temporary relief creates some problems in ascertaining the degree of showing necessary to support the issuance of such an injunction. At a minimum, the rule contemplates that a mere allegation that irreparable injury will result is insufficient. Rather, “[t]he complaining party must allege and prove facts from which the court can reasonably infer such would be the result.” 42 Am.Jur.2d Injunctions § 48; Morrow v. City of Louisville, supra; Oscar Ewing, Inc. v. Melton, supra. However, to require one to carry an extremely high burden of proof as to his entitlement to the right would effectively dispose of the merits without a full trial. Where there has been no judicial determination as to the underlying controversy, we do not believe a rule requiring a party to show a substantial probability of success on those merits is an appropriate standard. Harrison’s Sanitarium v. Commonwealth, Ky., 417 S.W.2d 137 (1967).

Rather, we believe the sufficiency of a verified complaint to support a temporary injunction should be evaluated by a balance-of-the-hardships test. That rule, well recognized in the federal system, provides that if the complaint shows a probability of irreparable injury and the equities are in favor of issuance, it is sufficient if the complaint raises a serious question warranting a trial on the merits. Blackwelder Furn. Co. v. Seiling Mfg. Co., Inc., 550 F.2d 189, 193-94 (4th Cir. 1977); Sonesta Int’l Hotels Corp. v. Wellington Assoc., 483 F.2d 247 (2nd Cir. 1973); Stuart v. Nappi, 483 F.Supp. 1235, 1240 (D.C.Conn.1978). See generally Louisville Cycle & Supply Co., Inc. v. Baache, Ky., 535 S.W.2d 230 (1976).

Therefore, in light of the above discussion, applications for temporary in-junctive relief should be viewed on three levels. First, the trial court should determine whether plaintiff has complied with CR 65.04 by showing irreparable injury. This is a mandatory prerequisite to the issuance of any injunction. Secondly, the trial court should weigh the various equities involved. Although not an exclusive list, the court should consider such things as possible detriment to the public interest, harm to the defendant, and whether the injunction will merely preserve the status quo. Finally, the complaint should be evaluated to see whether a substantial question has been presented. If the party requesting relief has shown a probability of irreparable injury, presented a substantial question as to the merits, and the equities are in favor of issuance, the temporary injunction should be awarded. However, the actual overall merits of the case are not to be addressed in CR 65.04 motions. Unless a trial court has abused its discretion in applying the above standards, we will not set aside its decision on a CR 65.07 review.

Applying the above considerations to the matter at hand, we are of the opinion that the Mayor’s verified complaint amply supports the trial court’s grant of a temporary injunction only insofar as the Board’s subpoena power is concerned. Unlike the plaintiffs in Black Unity League of Kentucky v. Miller, 394 U.S. 100, 89 S.Ct. 766, 22 L.Ed.2d 107 (1968), cited by the Board, the Mayor has alleged that he has already been requested to relinquish his appointment book and to submit to questioning. These allegations, being uncontroverted at the time of the hearing, set forth a strong probability that acts threatened by the Board could impair the Mayor’s rights to such an extent that should a final judgment be rendered in his favor, such judgment would be entirely meaningless. CR 65.-04(1). In addition, we are of the opinion that the equities of this situation further support the trial court’s ruling as to the Board’s subpoena power. The current effect of this injunction is merely to preserve the status quo. Oscar Ewing, Inc. v. Melton, supra; Harrison’s Sanitarium v. Commonwealth, supra. Because of that effect, the injunction in no way impairs either the rights of the Board or the public interest. In fact, the only detriment to the Board is one of delay. Should a final judgment be rendered against the Mayor as to this issue, the subpoenas may be issued at that time. Finally, although we express no opinion as to the merits of this case, we do believe the uncontroverted allegations of this complaint raise serious questions as to the scope of Kentucky’s Home Rule Act, K.R.S. 83.410 et seq. Cf. Fiscal Ct. of Jefferson Co. v. City of Louisville, Ky., 559 S.W.2d 478 (1977) (construing K.R.S. 67.083). Although we believe that a speedy resolution of this case is necessary, we cannot say on this CR 65.07 motion that the trial court abused its discretion by issuing part 1 of the temporary injunction.

However, as to part 2 of the injunction, relating to the Board’s power to expend public funds in furtherance of an investigation, we are compelled to find an abuse of discretion. The complaint itself, although uncontroverted, alleges no facts as to how these expenditures will irreparably harm the Mayor. At the most, the complaint creates only a speculation of possible harm to the taxpayers as a group. There being no clear showing of possible irreparable injury to the Mayor’s rights, part 2 of the temporary injunction is improper. Morrow v. City of Louisville, supra at 724.

In sum, having considered the complaint, the arguments of counsel, and the equities, it is hereby ORDERED that the motion to dissolve the temporary injunction is DENIED as to part 1 of the order relating to the Board’s issuance of subpoenas, and GRANTED as to part 2 of the order relating to the Board’s expenditure of public funds in furtherance of an investigation of the Mayor’s office.

All concur.


author: PRITCHARD, Judge.

text:
    Dr. Wallace VERBURG, Respondent, v. KANSAS CITY SCHOOL DISTRICT et al., Appellants. Dr. Thomas DREILING, Respondent, v. KANSAS CITY SCHOOL DISTRICT et al., Appellants.
    Nos. KCD 29234, KCD 29233.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 27, 1978.
    Application to Transfer, Out of Time, Denied Feb. 13, 1979.
    John R. Phillips, D. Brook Bartlett, Jay M. Shapiro and John K. Brungardt, Kansas City, for appellants; Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, of counsel.
    Thomas J. Cox, Jr., Kansas City, for respondents.
    Before WELBORN, Special Judge, Presiding, HIGGINS, Special Judge and PRITCHARD, J.
   PRITCHARD, Judge.

The dispositive issue in these consolidated appeals is whether respondents were entitled to procedural due process of law in their demotions from their positions as professional employees of appellant.

The trial court held that respondents were not granted a hearing to protest their demotions and present their grievances, following the procedure they were instructed to follow by their superiors [Grievances, Regulations and Procedures, adopted 11/20/73], and ordered them reinstated to the ranks and positions they occupied prior to October 14,1974, with judgment for back salaries.

Respondent Verburg, a psychologist in charge of psychological services, with a title of district coordinator, for the 1974-1975 school year, had been continuously employed by appellant since 1957 under contract for each year. On October 14, 1974, he was given a letter by Robert J. Ward, Director of Personnel, stating that as a result of the reorganization of the District’s administrative staff, his status was changed from District Coordinator — School Support and Development to Specialist II — Psychological Services — Special Education. His immediate supervisor was designated to be Ms. Marjory Farrell. Respondent Dreiling was first employed by appellant in 1968, and he was a school psychologist. He also received a letter of October 14,1974, stating that because of the district reorganization of administrative staff, his status was changed from Specialist III — School Support and Development to Consultant — Psychological Services, and his immediate supervisor was designated to be Dr. Wallace Verburg who had been his supervisor previously.

Both respondents then in the ensuing months pursued the four level steps of the employee grievance procedures. Step Three of these procedures requires that the superintendent or his deputy shall hold a hearing in the matter. Step Four, being an appeal to the Board of Directors, provides that it may, at its option, hold a hearing in the matter. Although respondents met with the deputy superintendent, no hearing encompassing the taking of evidence was had, and the superintendent denied the grievance, as did the Board of Directors, without a hearing.

Neither respondent attempted to pursue the procedures of § 168.101.6, RSMo (Laws of Missouri, 1973, H.B. 151, pp. 277, 278), nor could they have because that statute expressly excepts metropolitan school districts such as appellant. That statute is mentioned in the briefs and in some of appellant’s correspondence to respondents. It should be noted, however, that this statute is erroneously reported in Vol. 11, page 135, of the pocket part, V.A.M.S., as requiring only three years reemployment of the certificated employee.

There is nothing to indicate that either respondent was charged with or guilty of any misconduct, or incompetency or inefficiency in the performance of duties. All that appears as a reason for their demotions is that it was a result of reorganization of the district’s administrative staff, as noted in the initial letters to them.

Each of respondents’ 1974-1975 contracts for employment contained this paragraph: “This contract offer is extended and your acceptance of the same is with the understanding that the District may transfer or reassign individual administrators to any position within the District for which he or she is qualified. Such transfers will not result in a decrease in salary for the remainder of the 1974-75 school year.” The evidence is that neither respondent suffered a decrease in salary for that contract year, nor were their duties changed.

This contract paragraph reduced respondents’ expectation of continued employment in their staff positions to a mere abstract concern that they would be rehired in the same positions and at the same salaries. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), controls. There the court noted, at page 569, 92 S.Ct. at page 2705, that “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” The facts in Roth were that he was a political science teacher under a one-year contract, and he was not a tenured teacher because he had not been employed for four years as required by the statute. He was given notice that his contract would not be renewed, which was all that he was entitled to under University rule. The court said, 408 U.S. 566, 567, 92 S.Ct. 2704, “A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment. There are no statutory or administrative standards defining eligibility for re-employment. [Italics added.] State law thus clearly leaves the decision whether to rehire a nontenured teacher for another year to the unfettered discretion of university officials.” And further at page 575, 92 S.Ct. at page 2708, “Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another.” At page 578, 92 S.Ct. at pages 2709, 2710, the court said further that the terms of Roth’s employment “did not provide for contract renewal absent ‘sufficient cause.’ * * * [T]he terms of the respondent’s appointment secured absolutely no interest in re-employment for the next year. * * * In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.” In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the court noted the principles set forth in the concurrently decided Roth case which govern reemployment of nontenured teachers, who generally possess no constitutionally protectible interests, but remanded the case upon Sindermann’s factual allegation for a determination that he had a de facto tenure by reason of university policies — a situation which does not here exist.

Considering the contractual provision, above noted, which amounts to an administration standard of reemployment, to which respondents acceded in accepting their contracts, respondents have no constitutionally protectible right which would entitle them to the procedural rights of a statement of reasons for demotion and a hearing thereon. All that appears is that respondents were reassigned in their administrative position in accordance with their contracts, which appellant followed. Compare Coe v. Bogart, 377 F.Supp. 310 (E.D.Tenn.1974), aff’d 519 F.2d 10 (6 Cir.), where a teacher was transferred pursuant to the authority of a Tennessee statute [as contrasted to the contractual authority here], the District Court holding that the school district’s action constituted a routine transfer of personnel within the school system in the interest of administrative efficiency which did not amount to a punitive demotion or a deprivation of property.

The judgment is reversed.

All concur.