text:
    James B. McCLOUD and Bank of Cadiz, Appellants, v. CITY OF CADIZ, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    March 4, 1977.

      Chappell R. Wilson, Cadiz, for appellants.
    Mary G. White, Cadiz, for appellees.
    Before HAYES, LESTER and PARK, JJ.
   HAYES, Judge.

This suit involves alleged irregularities under KRS 61.280 and KRS 424.260. Appellants filed a class action suit to contest certain actions taken by the mayor and council of Cadiz, which they contend violate these statutes. The following fact situations form the basis of the contest:

(1) The Mayor of Cadiz, W. J. Hopson, is a stockholder and employee of an insurance company which had handled all of the city’s insurance business. This business was awarded without advertising for bids.

(2) The City of Cadiz did business, in the form of service and parts with an automobile dealership whose owner was a city councilman, Wilbur Boggess. The city also sought to purchase a vehicle from this officer; however, this deal was rescinded.

(3) The city purchased service and supplies from another councilman, W. D. Burke.

(4) The city deposited all of its money in a bank, Trigg County Farmers Bank, in which city officials served as directors. This business was awarded without advertising for bids.

(5) The city leases a lot from an attorney, Mary G. White, who does certain legal work for the city.

With the exceptions of the bank deposits and parking lot lease, all of these activities have ceased. Appellants sought to enjoin all present and future contracts which violate KRS 61.280, to force the city to comply with KRS 424.260 in its banking and insurance, to recover all monies paid out as a result of these violations and to oust these officials who had participated.

As a result of certain family relationships with several of the defendants, the Trigg County Circuit Judge disqualified himself from the case. C. R. Walden was appointed Special Judge and proof was taken by depositions. After briefs had been submitted, Judge Walden made the following determinations:

(1) Appellants had the right to prosecute this suit as a class action.

(2) The parking lot lease did not violate KRS 61.280 since the attorney was not a city officer.

(3) Appellants were not entitled to an injunction because it was shown that the violations had ceased and there was no evidence that they would continue.

(4) The bank deposits did not violate 61.280.

(5) Insurance and banking does not require advertising for bids pursuant to KRS 424.260.

(6) Appellants had abandoned claim for damages.

It is from these conclusions that appellant prosecutes this appeal. This court, however, can find no error in the conclusions reached by the trial judge.

Basically there are three issues presented by the facts:

I. To what relief, if any, are appellants entitled as a result of past violations of KRS 61.280 — injunction, damages or removal from office?

II. Do deposits in a bank where city officers are directors constitute a violation of KRS 61.280?

III. Is advertising for bids required by KRS 424.260 before money can be deposited by the city or insurance purchased by the city.

KRS 661.280 is designed to prevent self-dealing by city officers. The conduct which it proscribes and the penalties it provides are set out as follows:

No officer of a city of the fifth or sixth class shall be interested, directly or indirectly, in any contract with the city of which he is an officer, or in doing any work or furnishing any supplies for the use of the city or its officers in their official capacity. Any claim for compensation for work done, or supplies or materials furnished, in which any such officer is interested, shall be void, and, if audited and allowed, shall not be paid by the treasurer. Any wilful violation of the provisions of this section shall be grounds for a removal from office, and shall be a misdemeanor, and punished as such.

The only violations of this statute which this court can determine from the facts presented are the parts and services purchased from the councilmen and the insurance obtained from the company where the mayor is employed. The parking lot lease does not constitute a violation of KRS 61.280. Under KRS 87.160 and KRS 87.170, Mary White cannot be a city officer since she is not a resident of Cadiz. As to the banking activities, these do not violate KRS 61.280 for the reasons which will be discussed later in this opinion.

Appellants, however, must prove more than the existence of violations of KRS 61.280 before this court can award them relief. They must establish, additionally, that they are entitled to relief and what that relief should be. This burden has not been met by appellants in any of the three forms of relief they have sought — injunction, damages and ouster.

An injunction is inappropriate in this case since the established violations of KRS 61.280 consist of activities which have ceased. In order to establish their right to an injunction, there must be a clear showing of right to the relief and a showing of urgent necessity, Kentucky Utilities v. Carlisle, 279 Ky. 585, 131 S.W.2d 499. In the absence of an ongoing violation of this statute appellants cannot establish either of these two requirements. Furthermore, this court is not empowered to enjoin possible future violations, Waddle, et al. v. City of Somerset, 281 Ky. 30, 134 S.W.2d 956. In denying a request for an injunction of future unlawful expenditures of money by the City of Somerset, the Court of Appeals made the following statement in Waddle:

In other words, the court is asked to exercise its extraordinary restraining authority to compel the city authorities to obey the law in the future, and to not depart therefrom, notwithstanding the law itself imposes such duty, and which cannot be made more mandatory by a superinduced order from the court even if it possessed any such authority, but which it does not.

Appellants are also unable to establish their claim for damages. It is apparent from the record that appellants have done little to advance this claim and even omitted the claim from the brief submitted to the trial judge. In their appellate brief appellants have cited no authority which would establish their right to such relief and have not made any showing of undue profit. KRS 61.280 is directed towards present violations and does not mention recouping money from past violations. The trial judge, therefore, was correct in holding that appellants had abandoned their claim for damages.

The final form of relief sought by appellants is the ouster of those officials who took part in these violations. Appellants, however, are not the proper parties to bring such an action. The law is well settled in Kentucky that a private individual cannot bring an action for ouster of a public official unless that private individual has a claim to that office. Wegener v. Wehrman, 312 Ky. 445, 227 S.W.2d 997; Attorney General v. Howard, 297 Ky. 488, 180 S.W.2d 415; Jenkins v. Congleton, 242 Ky. 46, 45 S.W.2d 456 and Amberson v. Fowler, 180 Ky. 857, 203 S.W. 322.

As stated above, it is this court’s opinion that the deposit of money by a city of the fifth class with a bank where certain city officers are directors does not violate KRS 61.280. In the case of Commonwealth ex rel. Vincent, Attorney General v. Withers, 266 Ky. 29, 98 S.W.2d 24, the Court of Appeals was faced with determining when a conflict of interest of a public official is not unlawful. The court set forth the following guidelines:

However, the interest is not sufficient to disqualify the officer if the opportunity for self-benefit is a mere possibility or is so remote or collateral, such as being only a debtor, that it cannot be reasonably calculated to affect his judgment or conduct in the making of the contract or in its performance.

Clearly, this case falls within that guideline. Any benefit that the city officers might have received from the lending use of such money is too speculative and remote as to suggest a conflict of interest.

There is, however, an additional reason supporting this court’s conclusion. Statutes such as KRS 61.280 are designed in part to protect the value of goods and services received by the public. In a government regulated activity such as banking there can be no question as to value received. There is, therefore, no opportunity for imposition on the public.

The final issue presented involves the purchase of insurance and the banking activities. Appellants contend that the city council, pursuant to KRS 424.260, should have advertised for bids before procuring such services. Appellants, however, cite no authority to substantiate their position. KRS 424.260 provides, in effect, that no city may make a contract for materials, supplies or equipment, or for contractual services other than professional, involving an expenditure of more than $2,500.00 without first making newspaper advertisement for bids. Appellees argue that banking and insurance are not the kinds of contractual services contemplated by KRS 424.260. Citing an attorney general opinion as authority, appellees claim that the contractual services covered by KRS 424.260 are those involving personal service of a manual or mechanical nature. This court is in agreement with that conclusion. In addition, the generally uniform rates involved in both banking and insurance as well as the professional nature of these activities support the conclusion that the City of Cadiz was not required to comply with KRS 424.260 before securing these services.

Although this court affirms the decision of the lower court, this opinion is not to be construed as an approval of these past violations of KRS 61.280. It is the hope of this court that the city, officers of Cadiz will continue to be aware of this statute and will act according to its guidelines.

All concur.


source: Caselaw Access Project

author: HAYES, Judge.

license: Public Domain

text:
    Keith DEATON et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1977.

      William I. Bubenzer, Covington, for appellants.
    Philip Taliaferro, III, Covington, for ap-pellee.
    HAYES, HOWARD and WILHOIT, JJ.
   HAYES, Judge.

This is an appeal from the judgment of the Kenton Circuit Court, Honorable James J. Gillieee, Judge, granting the appellee’s motion for summary judgment. The appellants filed suit against Allstate alleging that the appellee exercised “bad faith” in the handling of their claim under their uninsured motorist coverage.

Pamela and Geralyn Deaton, daughters of Keith and Barbara Deaton, were passengers in an auto involved in an accident on December 5, 1973. The automobile, driven by and apparently owned by Jacqueline Ashbury, ran off the highway and struck a tree, killing Pamela and injuring Geralyn. Ashbury was uninsured. At the time of the accident, Mr. Deaton had an insurance policy with Allstate which provided coverage for all the Deaton family against uninsured motorists in the sum of $10,000.00 for injury sustained by each person or $20,000.00 for all injuries in each accident.

The Deatons filed suit in Kenton Circuit Court against Ashbury and others, including the Allstate Insurance Company. The Deatons recovered a judgment on November 18, 1974, after a trial by jury against Allstate and Ashbury for $11,249.35. Apparently $10,000.00 of this award was for Pamela and $1,249.35 was for injuries suffered by Geralyn.

On November 14, 1975, about one year later, the Deatons again sued Allstate alleging “bad faith” in the settlement of their claim. In their complaint the Deatons stated that prior to filing their initial suit they made repeated demands upon Allstate for payment of the $10,000.00 due under the policy. Appellants alleged that as a result of Allstate’s bad faith in negotiating their claim the appellants were required to hire an attorney to file suit against Allstate. Appellants, therefore, demanded punitive damages in the sum of $500,000.00 and $5,000.00 compensatory damages for attorney fees and cost of litigation. Upon motion by appellee for summary judgment, the trial court found that there was no genuine issue of fact and that appellee was entitled to a judgment as a matter of law.

The appellee attached to its affidavit in support of the motion for summary judgment copies of correspondence between Allstate and appellant’s attorney, William I. Bubenzer. The first letter dated December 12, 1973, was a letter of representation from Mr. Bubenzer to Allstate. In that letter Bubenzer also sought assistance in determining whether the driver had insurance, and he stated he would send all medical bills to Allstate when accumulated.

The next correspondence filed is a letter dated May 28, 1974, from a casualty supervisor of Allstate to appellee’s attorney, Philip Taliaferro. This letter enclosed a copy of a complaint filed against Allstate by the appellants and the investigative file of the Company. Taliaferro was advised that Allstate had already expended $1,980.25 for the burial expenses of Pamela and $218.53 for medical expenses of Geralyn.

On November 5, 1974, Taliaferro wrote Bubenzer to confirm that Taliaferro had on October 14, 1974, offered $11,500.00 on behalf of Allstate to settle but that Bubenzer had not replied to that offer. Further, Taliaferro stated that he had not received a demand on the Geralyn case. The offer of $11,500.00 was broken down to $10,000.00 for Pamela and $1,500.00 for Geralyn. This letter ends, “If possible, I would like to settle this case before you have to spend additional time and money and before my client has to incur additional expenses and attorney fees. Thank you.”

On November 8, 1974, Taliaferro again wrote Bubenzer, restating that an offer of $11,500.00 had been made on October 14, 1974, and that on November 7, 1974, this offer was refused and a demand of $50,-000.00 was made to settle both cases because Allstate was acting in bad faith. Enclosed with this letter was a release for $10,000.00 for the Pamela Deaton claim, with the statement that the check would be sent upon execution of the release. Also enclosed was a copy of the offer of judgment filed that day in Kenton Circuit Court. An offer of $2,500.00 was made in Geralyn Deaton’s case, with an indication that the demand had been $10,000.00 in this case.

In January, 1975, appellants’ attorney signed an order of full satisfaction of judgment for the amount of $11,249.35 plus $50.00 interest, the amount of the judgment obtained by the Deatons against Allstate.

Appellants claim on appeal that the real issue is whether or not the insurer, Allstate, was guilty of “bad faith” and “. this can only be shown by a trial which would disclose the handling of this case by the insurer . . . .”

In Manchester Insurance and Indem. Company v. Grundy, Ky., 531 S.W.2d 493 (1975), the court discusses at length three aspects of the “bad faith” case — whether the action is one of contract or tort, what are the proper measures of damages and whether the question is one of law for the court or one of fact for the jury. That court held that the determination of whether the action is one of contract or tort depends by and large on the nature of the claim — third party or first party. A first party claim gives rise to a contract action.

Manchester, however, deals with a third party claim against the insurer and not with a first party claim against an insurer as in the present case.

Although appellants allege that this is a tort action, this court is of the opinion that this is a breach of contract action. As indicated in General Accident Fire and Life Assurance Corp. v. Judd, Ky., 400 S.W.2d 685 (1966), the measure of recovery for failure to pay money due under the contract is the amount agreed to be paid. Therefore, no recovery for punitive damages, as sought by the appellants, can be ■had, nor consequential damages such as attorney fees, witness fees, etc. The court further states in Judd that:

The opinion in Motors Insurance Corporation v. Jackson, Ky., 340 S.W.2d 610 (1960), though it contains a dissertation from which it might be inferred that consequential damages other than interest are allowable, nevertheless concludes as follows: ‘Even had the evidence met the requirements of proof of such claimed consequential damages, there would have been no legal liability under the facts of this case. . . That conclusion is in accordance with what we consider to be correct legal premise.

The judgment, which was less than Allstate had offered to settle for, against the appellee entered in Kenton Circuit Court was satisfied by appellee with interest. This is the amount to which appellants are entitled under Judd if they can show a breach.

We do not feel that the decision in Judd is contrary to the decision in Service Casualty v. Marcum, Ky., 386 S.W.2d 474 (1965), or in Motors Insurance Corporation v. Howard, Ky., 291 S.W.2d 522 (1956). These cases indicate that under certain circumstances an insurer may be liable for damages to its insured for unreasonable delay in settling a pending claim. It is the opinion of this court that “loss of use” of a vehicle, as was involved in Howard, is not to be considered consequential or punitive damages, but more akin to a contractual obligation under the insurance policy. However, should “loss of use” be construed as a consequential damage, then appellants are still not entitled to their alleged damages since this court can find no evidence of unreasonable delay.

In addition, whether the action brought by appellants is characterized as breach of contract, “bad faith” or unreasonable delay, the trial court was correct in granting a summary judgment. Examining the pleadings and affidavit and construing all inferences in favor of appellants leads this court to only one conclusion — there is no genuine issue of fact and appellee was entitled to a judgment as a matter of law.

Judgment affirmed.

All concur.


author: WHITE, Judge.

text:
    James David BRYANT, as next friend for Thomas, Jr., David and Mary Ann Meadows, infants, et al., Appellants, v. KENTUCKY DEPARTMENT FOR HUMAN RESOURCES and Bureau for Social Services, Russellville, Kentucky, Appellees.
    Court of Appeals of Kentucky.
    March 4, 1977.

      James David Bryant, Harlin, Parker & Rudloff, Bowling Green, for appellants.
    Lynn T. Mitchell, Office of the Counsel Dept, for Human Resources, Frankfort, for appellees.
    Before WHITE, HOGGE and LESTER, JJ.
   WHITE, Judge.

This case involves the custody of children born to Thomas and Judy Meadows. As a result of proceedings in Logan County Juvenile Court, all three children are presently in the temporary custody of the Kentucky Department for Human Resources. The Department of Human Resources contends that the Meadows children are needy, neglected, and dependent; and therefore filed an action to involuntarily terminate the Meadows’ parental rights. The parents, , in their petition for Habeas Corpus, contend they are entitled to the immediate custody of their children because of alleged procedural irregularities in the Juvenile Court proceedings.

The circuit court consolidated the two petitions and held a full-blown hearing on the matter. The court found that the three children were physically abused and mistreated while in the custody of their parents. The circuit court then ordered the petition for Habeas Corpus dismissed and terminated parental rights.

It appears from the evidence that on May 18, 1970, a hearing was held in the Logan County Juvenile Court and Thomas Meadows, Jr., and David Meadows were found to be dependent children and were ordered committed to the Department of Child Welfare (now Human Resources). There is medical testimony that David Meadows, an infant less than four months old, had multiple fractures, several of which were old, untreated fractures, in various stages of healing. There is evidence that Thomas Meadows, Jr., had suffered two untreated fractures prior to his commitment. No summons was issued for this hearing and no attorney was present for the Meadows. The evidence is conflicting as to whether or not the Meadows appeared voluntarily.

On May 26, 1972, a second hearing was held in the Logan County Juvenile Court in which Mary Ann Meadows, a third child of Thomas and Judy Meadows, was found to be a dependent child. The basis for this finding was that there were bruises on the back and buttocks of Mary Ann Meadows which in the examining physician’s opinion, were caused by blows. She was then committed to the Department of Child Welfare (now Human Resources). A defective summons was issued before this hearing. The evidence is conflicting as to whether the Meadows were represented by counsel.

There is conflicting evidence as to whether Mr. Meadows agreed to the temporary commitment of all three children. The evidence also is conflicting as to the Meadows’ ability and fitness to care for their children.

Appellants now contend ’that the circuit court erred in 1) dismissing the petition for Habeas Corpus without reaching the merits; and 2) involuntarily terminating the parental rights of the Meadows because such action was contrary to the evidence and to the best interests of the children.

The trial court had dismissed the petition for Habeas Corpus on the grounds that there was a similar suit pending in the Federal District Court. We need not decide whether this was error for there is authority for the trial judge’s decision. In Moore v. Dawson, Ky., 531 S.W.2d 259 (1975), it was held that a trial judge could properly deny a petition for habeas corpus where it was being used as a vehicle to regain custody of children not illegally detained or imprisoned. We adhere to the rule in this jurisdiction that a correct decision will not be disturbed on appeal merely because the trial court gave a wrong or insufficient reason therefore.

We come now to appellants’ second contention that the findings and judgment of the trial court are contrary to the evidence and against the best interests of the children.

Appellant contends in his brief and in oral argument that the findings of fact of the trial court are insufficient. However, appellant has not preserved this error, if any, by a written request or motion pursuant to CR 52.04.

Appellant further contends that the Department for Human Resources must prove child abuse by the parents before parental rights can be involuntarily terminated. We do not accept this interpretation of the statute. Ky.Rev.Stat. § 199.011(4) defines a “neglected child” as any child “who is under such improper parental care and control or guardianship as to injure or endanger the morals, health or welfare of himself or others.” We find the evidence amply demonstrated that the three children come within this definition, in that they suffered injuries for which the parents delayed or neglected to seek medical attention. We cannot say that the trial judge erred in directing the involuntary termination of parental rights.

Furthermore, we feel that the trial court’s consolidation of these two petitions was permissible under Galloway v. Pruitt, Ky., 469 S.W.2d 556 (1971). When, as here, a full-blown hearing is then held, all claims of immediate entitlement to custody by reason of irregularities in the county juvenile court proceedings are merged into an award, if any, of permanent entitlement to custody. Ky.Rev.Stat. § 208.020(7); Allen v. Dept. for Human Resources, Ky., 540 S.W.2d 597 (1976).

In this kind of ease, the court is also of the opinion that it is not in the best interests of the child for the trial court to permit the litigants to delay the adjudication of custody for more than three years. In both Galloway v. Pruitt, supra, and Moore v. Dawson, supra, it is stated that “The trial judges will accord priority to proceedings of this nature and will deal with the issues expeditiously, within the framework of due process.”

The judgment is affirmed.

All concur.


author: WILHOIT, Judge:

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Appellant, v. GREER BROTHERS AND YOUNG, INC., Appellee.
    Court of Appeals of Kentucky.
    March 4, 1977.

      J. Michael Fleming, Dept, of Transp., Bureau of Highways, Frankfort, for appellant.
    Rudy Yessin, Joseph J. Leary, Frankfort, for appellee.
    Before PARK, WILHOIT and VANCE, JJ.
   OPINION AND ORDER

WILHOIT, Judge:

On August 13, 1976, appellant filed a notice of'appeal and designation of record appealing from a summary judgment granted against it by the Franklin Circuit Court. On August 23, pursuant to CR 73.-08, appellant obtained a signed order of the circuit court extending the time for filing the record on appeal until December 10. For some reason appellant did not file this order with the circuit clerk until September 24, and then, through inadvertence, the deputy clerk with whom the order was filed did not note it in the civil docket. No notice of the filing of this order was ever sent to appellee.

After discovering that the order had not been noted in the docket by the clerk, appellant, on October 20, filed a motion requesting the trial court to enter an order nunc pro tunc requiring the clerk to note the August 23 order in the civil docket as of September 23, when it had been filed with the clerk. The court heard arguments and then advised the parties that it intended to deny the motion but would not do so until November 5 in order that appellant might apply to this Court for appropriate relief. On November 8, an order denying the motion was entered. No application for any relief was made to this Court during the interim between the hearing and entry of the trial court’s order nor was that order appealed.

Meanwhile, on October 27 appellee filed a motion in this Court to dismiss the appeal because appellant had failed to file timely the record on appeal. This motion was granted and the matter is now before us on a motion to reconsider the dismissal of the appeal.

Because the August 23 order granting an extension of time in which to file the record on appeal was never noted in the civil docket, it was never entered and, therefore, can be of no effect. CR 58; Murrell v. City of Hurstbourne Acres, Ky., 401 S.W.2d 60 (1966). The result necessarily must be that appellant failed to file timely the record on appeal. Thus this appeal should be dismissed.

Appellant, citing Powell v. Blevins, Ky., 365 S.W.2d 104 (1963), argues very persuasively that the trial court should have granted its motion for an order nunc pro tunc. While we do not know the trial court’s reason for denying the motion, on the surface it appears such an order would have been warranted. Munsey v. Munsey, Ky., 303 S.W.2d 257 (1957). Nevertheless, the failure of the trial court to grant that motion is not properly before us.

The order of the trial court was a final appealable order since the motion for an order nunc pro tunc, in effect, initiated a new proceeding and the order terminated that proceeding. CR 54.01; White v. Hardin County Board of Education, Ky., 307 S.W.2d 754 (1957).

For the reasons stated above and the Court being sufficiently advised, it is hereby ORDERED that appellant’s motion for reconsideration is denied and the order of December 3, 1976 dismissing the appeal is hereby confirmed.

ALL CONCUR.


author: PARK, Judge.

text:
    Mr. and Mrs. John O. McKINSTRY et al., Appellants, v. Mrs. Marvin WELLS et al., Appellees.
    Court of Appeals of Kentucky.
    March 4, 1977.

      Harry B. Miller, Lexington, for appellants.
    Victor Hellard, Jr., Rouse, Rouse & Hel-lard, Mark E. Gormley, Versailles, for ap-pellees.
    Before MARTIN, C. J., and PARK and VANCE, JJ.
   PARK, Judge.

This is an appeal from a judgment of the Woodford Circuit Court directing the Woodford Fiscal Court to grant a zone map amendment in accordance with the recommendations of the Versailles-Midway-Woodford County Planning and Zoning Commission. The property in controversy is a tract of 100 acres situated approximately one mile north of Versailles on the Big Sink Pike. The appellants are the owners of property in the general vicinity who oppose the zone map amendment. The appel-lees are the owner of the property, Mrs. Marvin Wells, and developers holding options to purchase the tract. The fiscal court and its members are also appellees, not having appealed from the judgment of the Woodford Circuit Court.

The property is currently zoned for agricultural use (A-l). By the proposed map amendment, 11 acres could be zoned for single family estate sites (R-l-A) permitting the development of 11 one acre lots. By rezoning 58.8 acres to permit single family medium size lots (R-l-B), 187 lots could be developed having an average of 13,700 square feet. The proposed map amendment would rezone 7 acres to permit multifamily residential use (R-4). A neighborhood business use (B-l) would be authorized for 4 acres, and 3.8 acres would be designated as park use (CO-1). The remaining 15.4 acres would be included in dedicated streets.

The efforts to rezone the property have followed a long, complex and frustrating route before reaching this court. The ap-pellees first sought a zone map amendment for the property in 1974. Following approval of the zone map amendment by the Versailles-Midway-Woodford County Planning and Zoning Commission and by the Woodford County Fiscal Court, suit was instituted in the Woodford Circuit Court by many of the same persons who are appellants on this appeal. On February 11,1975, the Woodford Circuit Court entered a judgment invalidating the zone map amendment which rezoned the property from agricultural use to residential and business uses. The circuit court held that all parties had been denied due process because of the failure of both the Versailles-Midway-Wood-ford County Planning and Zoning Commission and the Woodford County Fiscal Court to make any findings of fact as required by KRS 100.213. The 1975 judgment of the Woodford Circuit Court was without prejudice to the right of the appellees to file a further application for rezoning of the property.

On February 19, 1975, the appellees filed a second application for a zone map amendment. The planning and zoning commission conducted trial-type hearings on March 13, March 24 and April 10,1975. A record was made of these hearings. On May 8, 1975, the planning and zoning commission adopted nine pages of findings of fact and recommended to the fiscal court that the application for zone map amendment be approved. The entire record of the proceedings before the planning and zoning commission was forwarded to the fiscal court together with the recommendations of the commission.

The fiscal court elected not to have a trial-type public hearing. The fiscal court gave notice that it would decide the matter on the basis of the hearings before the planning and zoning commission. On July 26, 1975, a resolution to approve the recommendations of the planning and zoning commission and to adopt its findings of fact was defeated by a 5-3 vote of the members of the fiscal court. The fiscal court made no independent findings of fact and took no further action on the application for zone map amendment.

This action was instituted on August 20, 1975, by the appellees who are the owner and proposed developers of the 100 acre tract. Relying on the decision in City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), the circuit court held that the fiscal court acted arbitrarily when it rejected the recommendations of the planning and zoning commission without making any findings of fact. The circuit court then directed the fiscal court to amend the zone map in accordance with the recommendations of the planning and zoning commission. Two issues are raised by the appeal. First, was the circuit court correct in holding that the fiscal court was arbitrary and denied procedural due process when it rejected the findings and recommendations of the planning and zoning commission without making independent findings of fact of its own? Second, assuming that the circuit court was correct in holding the action of the fiscal court to be arbitrary, was the circuit court correct in directing the fiscal court to grant the application for zone map amendment as recommended by the planning and zoning commission? Both issues must be decided by reference to the comprehensive plan adopted for Woodford County.

Before any map amendment can be granted, KRS 100.213 requires the planning commission or appropriate legislative body to make one of the following findings: (1) that the map amendment is in agreement with the community’s comprehensive plan; (2) that the original zoning classification given to the property was inappropriate or improper; or (3) that there have been major changes of an economic, physical or social nature within the area involved which were not anticipated in the community’s comprehensive plan and which have substantially altered the basic character of the area. Under KRS 100.187(2), a comprehensive plan must contain a land use plan element. This statute further provides:

“A land use plan element * * * shall show proposals for the most appropriate, economic, desirable and feasible patterns for the general location, character, extent, and interrelationship of the manner in which the community should use its public and private land at specified times as far into the future as is reasonable to foresee. Such land uses may cover, without being limited to, public and private, residential, commercial, industrial, agricultural and recreational land uses.”

In determining whether a proposed map amendment is in agreement with the community’s comprehensive plan, the land use plan element is not the only portion of the comprehensive plan which need be consulted. Nevertheless, the classification of the property under the land use plan is the prime consideration in determining whether the map amendment is in agreement with the comprehensive plan. Hines v. Pinchback-Halloran Volkswagen, Ky., 513 S.W.2d 492 (1974).

The comprehensive plan adopted by the Versailles-Midway-Woodford County Planning and Zoning Commission contained a land use plan element. The portion of the land use plan relating to residential use provides:

“Growth Areas — Residential growth during the planning period will occur in the general direction that growth has taken during the past ten to fifteen years. Residential growth is anticipated to the southwest of Versailles between U.S. 62 and McCowans Ferry Road; to the west and east of Nicholasville Road near the southern boundary of Versailles and to the north and south of U.S. 60 just to the east of the bypass.
⅜ * * * * *
“Little residential growth is anticipated to the north, northwest, and west of Versailles. The industrial complex along the U.S. 60 bypass will tend to block residential growth to the north and northeast; the topography to the north and west makes the extension of sanitary sewers into these areas costly, in comparison to other potential residential areas, and steep and low areas will hinder the development in this direction.”

The 100 acre tract in question is located north of the U.S. 60 bypass. On the map included in the comprehensive plan to illustrate the land use plan, a very small portion of the 100 acre tract is designated for future industrial use, the remainder of the tract being reserved for continued agricultural use.

In the application for zone map amendment, the owner and proposed developers asserted that the proposed rezoning was consistent with the “general objectives” of the comprehensive plan. Nevertheless, the application on its face conceded that only a portion of the 100 acre tract was within “the projected area of development in the land use and transportation plan map.” In its findings, the planning and zoning commission made two general findings which it undertook to support by specific findings of fact. First, the planning and zoning commission found “that there have been major changes of an economic, physical or social nature within the area involved which were not anticipated in the community’s comprehensive plan and which have substantially altered the basic character of such area.” Under KRS 100.213, there would be no need for the planning and zoning commission to have made this general finding unless the proposed map amendment was not in agreement with the comprehensive plan. In its second general area of findings, the planning and zoning commission found that the application for zone change was in agreement with the comprehensive plan in nine specific areas.

The facts of this case are very similar to those in the leading case in this area of zoning law, City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971). The owner and proposed developer of a tract of land situated in the City of Louisville sought a zone map amendment. The planning and zoning commission held a public hearing at which evidence was heard. A transcript was made of the proceedings at the hearing. The planning and zoning commission made factual findings in support of its conclusion that there had been major changes of an economic nature within the area involved which were not anticipated in the comprehensive plan and which had substantially altered the basic character of the area. The planning and zoning commission recommended to the board of aldermen of the city that the application for zone map amendment be approved. As in this case, the legislative body refused any rezoning of the property but did not hold its own trial-type hearing. When the action of the board of aldermen was challenged in the circuit court, the circuit court declared the action of the board of aldermen to be arbitrary and a denial of due process to the property owner. The circuit court further directed the board of aldermen to rezone the property for the particular classification sought by the property owner.

In the McDonald case, the Court of 'Appeals held that a property owner seeking a zone map amendment was entitled to procedural due process. The Court of Appeals further held that the legislative body has three alternatives if the planning and zoning commission conducts a trial-type due process hearing and makes factual findings in support of its recommendation. First, the legislative body may follow the commission’s recommendation without a hearing or only an argument-type hearing. Second, the legislative body may review the record made before the commission and determine from that evidence adjudicative facts which differ from those found by the commission. Third, the legislative body may hold its own trial-type hearing and, based upon the evidence presented at that hearing, find different adjudicative facts than those found by the commission.

In the McDonald case, the Court of Appeals held that the board of aldermen acted arbitrarily when it refused to follow the recommendations of the planning and zoning commission without making any finding of adjudicative facts. The Court of Appeals stated:

“In the case before us, the legislative body acted arbitrarily. There was no trial-type due process hearing before it. The adjudicative facts found by the zoning commission do not support the legislative body’s decision. The legislative body did not undertake to afford due process and find different adjudicative facts. Therefore, the circuit court correctly adjudged that the action of the board of aldermen was arbitrary and in this respect, the judgment is affirmed.” Id. at 179.

In this case, the Woodford Fiscal Court conducted no trial-type due process hearing. The adjudicative facts found by the planning and zoning commission do not support the decision of the fiscal court. The fiscal court did not undertake to find different adjudicative facts than those found by the planning and zoning commission.

The appellants argue that the comprehensive plan adopted by the planning and zoning commission constitutes the community’s “findings of fact” and that the comprehensive plan for Woodford County contains sufficient factual findings to support the action of the fiscal court. This argument fails to recognize the difference between adjudicative facts and legislative facts. As stated by Professor Davis:

“Adjudicative facts are the facts about the parties and their activities, businesses, and properties. Adjudicative facts usually answer the question of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kinds of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.” 1 K. Davis Administrative Law Treatise, § 7.02, p. 413 (1958).

The enactment of a comprehensive plan is based upon a finding of legislative facts. A comprehensive plan has general application throughout the community and the facts to be considered do not relate as such to a particular individual or the status of his property. However, when determining whether to grant a zone map amendment, the legislative body must decide whether an individual because of his own particular factual situation is or is not entitled to some form of relief. In such cases, there must be a finding of adjudicative facts. See City of Louisville v. McDonald, supra, at 177-78. A legislative body is not governed by judicial standards in making findings of legislative facts. Therefore, findings of legislative facts cannot be a substitute for findings of adjudicative facts which due process requires be made in deciding a request for zone map amendment, cf. Young v. Neale, Ky., 457 S.W.2d 358 (1969).

The appellants assert that the holding in the McDonald case has been modified by the later decisions in Montfort v. Archer, Ky., 477 S.W.2d 144 (1971); Hays v. City of Winchester, Ky., 495 S.W.2d 768 (1973); and Edlin v. Fiscal Court of Jefferson County, Ky., 497 S.W.2d 229 (1973). The appellants would construe these three cases to hold that a fiscal court is required to make findings of adjudicative facts only if it grants a zone map amendment. The three cases cited extend, rather than limit, the holding of the McDonald case. If the legislative body does not follow the recommendations of the planning and zoning commission, the legislative body must make its own findings of adjudicative facts. Any decision to grant or deny an application for zone map amendment must be supported by a finding of adjudicative facts.

In this case, the Woodford Fiscal Court declined to follow the recommendations of the planning and zoning commission. The fiscal court made no findings of adjudicative facts. The action of the fiscal court was clearly arbitrary, and that portion of the judgment of the circuit court so declaring must be affirmed.

In addition to holding the action of the fiscal court to be arbitrary, the circuit court directed the fiscal court to grant the zone map amendment as recommended by the planning and zoning commission. In the McDonald case, the Court of Appeals held such action by the circuit court to be erroneous. The circuit court had no authority to direct that the property be rezoned for the particular classification recommended by the zoning commission. The circuit court should have directed the fiscal court to make the findings of adjudicative facts necessary for judicial review. The McDonald opinion emphasizes that the ultimate decision on a zone map amendment must be by the legislative body. Even if it should be finally determined that a refusal by the fiscal court to change the classification of the 100 acre tract from A-l was arbitrary, it would not follow that the courts could direct the particular classification to be applied to the property. At most, the fiscal court could be ordered to classify the property under some classification other than A-1. Taylor v. Coblin, Ky., 461 S.W.2d 78 (1970). Mandamus will issue to compel a fiscal court to act by exercising a discretionary duty, but mandamus will not be used to control the fiscal court’s discretion by directing that it be exercised in any particular way. Akins v. Peak, 239 Ky. 847, 40 S.W.2d 324 (1931); Kaufman v. Humphrey, Ky., 329 S.W.2d 575 (1959).

The appellees contend that the remedy imposed by the circuit court is supported by the decision in City of Louisville v. Kavanaugh, Ky., 495 S.W.2d 502 (1973). In that case, the property owners sought a map amendment for a tract which was zoned for single family residential use (R-5). According to the comprehensive plan, the property was to be developed for multifamily apartment use (R-6). The property owners sought to have the property rezoned for high density multifamily use (R-7). After a hearing, the planning and zoning commission recommended that the application for rezoning to high density multifamily use (R-7) be denied. However, the planning and zoning commission did recommend that a map amendment be approved which would reclassify the property for multifamily apartment use (R-6) as shown in the comprehensive plan. The legislative body refused to make any change in the zoning classification of the property. The circuit court held the action of the legislative body to be arbitrary and directed the legislative body to grant a zone map amendment reclassifying the property for multifamily apartment use (R-6).

On appeal, the Court of Appeals affirmed. Both the comprehensive plan and the record in the case established that the original R-5 zoning classification was erroneous. The court stated:

“If there is some question concerning the possible assignment of a zoning category other than R-6 that would entail administrative or legislative discretion we would have to characterize the action of the circuit judge in directing assignment of the R-6 category as erroneous, but in this instance we are not presented with that situation.” Id. at 505.

The Court of Appeals pointed out that the comprehensive plan provided for an R-6 designation, that the planning commission recommended an R-6 zone classification, that the owners of the property were willing to accept an R-6 classification, and that no evidence was presented before either the planning and zoning commission or the legislative body which would support a finding that any zone classification would be more appropriate than R-6. Consequently, the circuit judge made no de novo determination between possible alternative classifications.

In the present case, the appellees seek a combination of R-l-A, R-l-B, R-4, CO-1 and B-l zoning. The land use element of the comprehensive plan does not provide that the property should be developed under any of these zoning classifications. Even if it would be appropriate to grant a zone map amendment for this property, it is apparent that the particular zone classification for each particular area of the 100 acre tract calls for administrative and legislative discretion. Consequently, the action of the circuit court is not supported by the decision in the Kavanaugh case, and it violates the rule laid down in the McDonald case. It was error for the circuit court to direct the fiscal court to grant the specific zone map amendments recommended by the planning and zoning commission, and that portion of the judgment of the circuit court is reversed.

On remand, the circuit court should enter judgment directing the fiscal court to adopt one of the following alternatives: (1) to follow the recommendations of the planning and zoning commission; (2) to review the record made before the planning and zoning commission and to make its own finding of adjudicative facts from that record; or (3) to hold its own trial-type hearing and make a finding of adjudicative facts. In order that the parties may receive a final resolution of this matter, the circuit court may impose a reasonable time limit within which the fiscal court must act. The circuit court may enforce its order by all of the appropriate powers of an equity court.

The judgment of the circuit court is affirmed in part and reversed in part, with directions to enter a new judgment in accordance with this opinion.

All concur.


text:
    Frank RIFFE and House of Aluminum, Inc., Appellants, v. Mr. and Mrs. Thomas BLACK, Appellees.
    Court of Appeals of Kentucky.
    March 4, 1977.

      Philip M. Owens, Stanton, for appellants.
    Terence L. Moore, Blakely, Moore & Get-tys, Covington, for appellees.
    Before HAYES, HOWARD and WIL-HOIT, JJ.
   HAYES, Judge.

Appellees, Mr. and Mrs. Thomas Black, brought suit in Boone Circuit Court to recover damages resulting from the installation of a pool at their home. The action was tried before a special commissioner who concluded that appellants, Frank Riffe and the House of Aluminum, Inc., had not only breached certain warranties, but also had been negligent in the installation of this pool. The commissioner recommended judgment against appellants. This recommendation was confirmed by the circuit judge and appellants were ordered to pay $4,324.63 plus interest to the appellees. This appeal, therefore, has been brought to contest the report of the special commissioner and the order entered confirming that report.

There is no transcript of the proceedings because the parties agreed to proceed without a reporter. The parties, however, stipulated that the findings of fact of the commissioner would be final. The following facts, therefore, are taken from the findings of fact made by the special commissioner. On March 12, 1972, Mr. and Mrs. Black agreed to purchase a pool from Mr. Frank Riffe, who is doing business as the House of Aluminum. Riffe also was to install the pool and he selected the location where the pool was installed. This pool was a product manufactured by Heldor Associates, Inc. The walls of the pool were prefabricated steel which were set into the excavation site. Sand was trowelled for the bottom of the pool and a vinyl liner was placed into this excavation. When the pool was filled, as directed by Riffe, a wrinkle developed in the bottom. Riffe agreed to reseat the liner but failed to do so.

In the fall of 1973, appellees were preparing the pool for the winter, they discovered a hole in the liner. This hole was located in the area of the wrinkle and allowed water to leak from the pool. After being informed of the hole, Mr. Riffe advised Mr. Black to remove the liner from the pool so that Mr. Riffe could fix it in the spring. Riffe, however, did not appear as he had stated. Fearing further defects in the liner, Mr. Black took the liner to Riffe. Black then refused attempts by Riffe to repair the liner and the liner was sent to Heldor for inspection. The liner was returned as not defective and there was no proof that any product was defective.

Since the liner had been removed as requested by Riffe, the pool was subjected to greater pressure from the surrounding earth. The rains caused the steel panels to bow. Appellees attempted to ease this pressure by digging around the panels; however, many of the panels were damaged in this unsuccessful process. Riffe again offered to repair- the pool at a substantial cost to appellees but this offer was refused. The continuing pressure totally destroyed the pool by 1975.

In addition to these findings of fact the special commissioner made the following finding as to the proximate cause of the destruction of the pool:

Your Commissioner believes that the first hole in the liner developed as a result of the initial wrinkle in the bottom which appeared when Riffe first seated the liner in the excavation and filled the pool. All of the subsequent problems relate back to Riffe’s failure to reseat the liner as he had promised to do. His failure to appear again on May 10, 1974, was the proximate cause of the further damage to the liner and the collapse of the metal panels, with the result that Black has nothing for his money but an ugly hole in his lawn and a few salvageable components of the swimming pool kit which are now useless to him.

Based upon these findings of fact, the commissioner arrived at the following conclusions of law:

(1) Appellants breached the implied warranty of merchantability as provided in KRS 355.2-314 because they did not install the pool in a workmanlike manner using suitable materials.

(2) Appellants also breached the warranty of fitness for a particular purpose under KRS 355.2-315 in the installation of this pool.

(3)Appellants were negligent in installing the pool and in failing to provide reasonable service to correct defects caused by their negligent installation.

Appellants contend that these conclusions of law are not supported by the facts. This court disagrees and affirms the decision of the lower court.

KRS 355.2-102 sets out the scope of the sales provisions of the commercial code. It provides in part that “unless the context otherwise requires, this article applies to transactions in goods.” (Emphasis added). Furthermore, both KRS 355.2-314 and KRS 355.2-315 are generally concerned with goods and their fitness and merchantability. The commissioner in his findings stated that there was no proof of defective goods. There was, however, proof of defective services performed in relation to the goods. The warranty provisions of KRS 355.2-314 and KRS 355.2-315 apply to services when the sale is primarily one of goods and the services are necessary to insure that those goods are merchantable and fit for the ordinary purpose. In addition, the findings of the commissioner are sufficient to support the conclusion that these warranties were breached. A hole at the bottom of a pool caused by negligent installation renders that pool unfit for its ordinary purpose.

The examination of the facts which gave rise to the destruction of this pool, reveals a situation similar to that expressed in Poor Richard’s Almanac in 1758, under the heading, “A Little Neglect May Breed Great Mischief”. In that situation Benjamin Franklin discussed how the lack of a horseshoe nail eventually led to the downfall of a kingdom. The facts of the present case also reveal a situation where a little neglect did breed great mischief.

The commissioner found that the proximate cause of the destruction of this pool was the failure of appellants to reseat the liner after a wrinkle had developed when the pool was installed and their failure to repair the hole which developed later. Appellants, however, do not argue that this finding of fact was clearly erroneous or an abuse of discretion as provided in CR 52.01. Instead, appellants contend that the conclusion that they were negligent is not supported by the facts. This argument is without merit since one of the facts found by the commissioner was that appellants’ failure to make reasonable repairs was the proximate cause of the destruction of the pool. This fact alone is sufficient not only to sustain the commissioner’s conclusion that appellants were negligent but also to affirm the judgment against appellants.

Judgment is affirmed.

All concur.


author: GANT, Judge. HOWERTON, Judge,

text:
    CITY OF FRANKFORT, Kentucky, et al., Appellants, v. The SILENT WORKERS CIRCLE OF the KINGS DAUGHTERS AND SONS (FRANKFORT, KENTUCKY) INC., Appellee.
    Court of Appeals of Kentucky.
    March 4, 1977.
    Allen Prewitt, Jr., City Sol., City of Frankfort, Frankfort, for appellants.
    Joseph J. Leary, Frankfort, for appellee.
    Before GANT, HOWERTON and COOPER, JJ.
   GANT, Judge.

This action was brought by the City of Frankfort, Kentucky, and an interested taxpayer to set aside a deed dated November 26, 1975, executed by three commissioners of the City of Frankfort, pursuant to a duly enacted resolution, to the Appellee, The Silent Workers Circle of the Kings Daughters and Sons (Frankfort, Kentucky) Inc. The consideration for this deed was $1.00, together with the agreement by Kings Daughters to assume and save the City harmless from any indebtedness which might be incurred because of the failure of Kings Daughters to operate the hospital for the period of time provided for in the agreement under which Hill-Burton funds were received, which funds were used in the construction of the annex in question. There was a further provision surrounding the execution of this deed and that was the agreement of Kings Daughters to convert the premises into apartments for the elderly which would be rented on a cost basis, and the deed contained a reverter clause providing that title to this property would revert to the City in the event the property ever ceased to be used for that purpose or to be operated on a non-profit basis.

A history of Kings Daughters Hospital and its relationship with the City of Frankfort is necessary in order to put this case into proper perspective. In 1954, when this hospital had been operated for approximately 50 years, the hospital had become virtually obsolete and it was necessary to construct an annex to the hospital in order to provide modern facilities and equipment for the growing population of Frankfort and the surrounding area. In these pre-revenue-sharing days, the principal source of income for the City of Frankfort was a municipally owned utility operated by the Electric and Water Plant Board of the City of Frankfort. Federal funds, under the Hill-Burton Act, were available only through municipally owned facilities and so a paper transaction was arranged by which the Appellee, Kings Daughters, would transfer the ground upon which the annex was to be constructed to the City of Frankfort. The City of Frankfort would, in turn, issue $350,000 worth of revenue bonds, these bonds to be purchased by the Electric and Water Plant Board, as there was no readily available market for them otherwise. An additional $350,000 of Hill-Burton funds would then be allocated and the annex constructed with this $700,000. The property was then to be leased back to Kings Daughters for the purpose of operating a non-profit hospital on this site. All of this was carried out and some time in 1955 the site was deeded to the City of Frankfort for a nominal consideration. Some 20 years later, these facilities again became inadequate and it was necessary for Kings Daughters to relinquish its license to operate a non-profit hospital and a new hospital was constructed, rendering this property surplus so far as its use as a hospital was concerned. By this time, the Utility Board had paid off the bonds through the use of their own revenue and without the benefit of revenue from the general tax funds of the City of Frankfort. Although all the funds for the amortization of these bonds were paid from the revenues of the utility, they apparently had no objection to this transfer of the property back to Kings Daughters or the operation of the apartments thereon as hereinabove set out.

It should be noted that the entire transaction relating to the issuance of the bonds by the City and their purchase by the Board was approved by the Court of Appeals of Kentucky on March 11, 1955, in the case of Perkins v. City of Frankfort et al., Ky., 276 S.W.2d 449 (1955). That action was apparently a taxpayer’s suit, challenging the validity of the ordinances providing for the issuance of these revenue bonds by the City and the purchase of those bonds by the Electric and Water Plant Board for the purpose of building a hospital annex. This action is apparently the second action in the chain, this one seeking to prohibit the transfer of the annex property back to the original grantor under the circumstances which we have heretofore described.

It is the opinion of this Court that the transfer by deed of the annex property in question here was a valid transfer by the City of Frankfort under all of the attending circumstances. First, it is doubtful that the City of Frankfort or any taxpayer thereof is the real party in interest to bring this suit. Ky.Rev.Stat. 96.175 provides as follows: “(7) The title to any property, real or personal, which the board may acquire shall vest in the municipality for the use and benefit of the electric and water system.” There can be little doubt that title to this property was acquired by the Board of the Electric and Water Plant of the City of Frankfort. They had agreed to purchase the bonds before they were issued and did purchase them and it was their revenue which was utilized to pay off these bonds. Under this Statute, the City would occupy a quasi-trusteeship of the naked legal title for the use and benefit of the Board and not for the use and benefit of its own taxpayers. The Board is not a party to this action.

It seems to this Court that the issue is also settled by the use to which Kings Daughters has agreed to put the property. In addition to the consideration of $1.00 and the further consideration that the Appellee would hold the City harmless from any liability toward the refunding of Federal funds for failure to operate the hospital for the prescribed period of time, there is the agreement of the Appellee to operate housing for the elderly on a cost basis. In the case of Ezelle et al. v. City of Paducah et al., Ky., 441 S.W.2d 162, 164 (1969), we find the following statement:

Under the holdings of this court that a governmental body may choose a private institution as an instrumentality for the accomplishment of a public purpose we find no violation of Section 179 . applied in the instant case. [See also] Norman v. Kentucky Bd. of Managers World Columbian Exp., 93 Ky. 537, 20 S.W. 901, 18 L.R.A. 556; Board of Trustees of House of Reform v. City of Lexington, 112 Ky. 171, 65 S.W. 350; Hager v. Kentucky Children’s Home Society, 119 Ky. 235, 83 S.W. 605, 67 L.R.A. 815; Butler v. United Cerebral Palsy of Northern Kentucky, Inc., Ky., 352 S.W.2d 203.

Providing housing for the elderly at cost by a charitable corporation is, in fact, serving a specific public purpose.

For the reasons above stated, the case is affirmed.

HOWERTON, Judge,

concurring.

I concur in the result reached by the majority, but I must differ in the reasoning by which such result was reached.

This action is an appeal from a summary judgment of the Franklin Circuit Court, wherein the Court concluded that there was no issue of fact in controversy, and that as a matter of law, the City of Frankfort, pursuant to a properly enacted ordinance, conveyed property to the Appellee with a covenant of special warranty of title and that the deed recited adequate consideration and was binding upon the parties. I affirm this decision of the Franklin Circuit Court.

I am at an absolute loss to understand where the majority found the evidence to conclude that “the City would occupy a quasi-trusteeship of the naked legal title for the use and benefit of the Board (Electric and Water Plant Board of the City of Frankfort) and not for the use and benefit of its own taxpayers.” I must also conclude that KRS 96.175(7) has no application to this case. The subsection reads as follows: “The title to any property, real or personal, which the board may acquire shall vest in the municipality for the use and benefit of the electric and water system.” The property in question was never acquired by the “Board”; it was acquired by the City of Frankfort, and if it was acquired for the use and benefit of anyone, it was for the use and benefit of the Appellee.

The issues raised by the parties to this appeal are as follows: The Appellants argue that a legislative body of a Kentucky municipality may not make a gift of city-owned real estate to a private corporation, and that a deed by which such gift was made may be cancelled. The Appellee contends that the City has no standing to maintain this action, and further, that the City is estopped to maintain this action.

I agree at the outset that the City may not give real property to a private corporation, but I conclude that the facts surrounding the transfer of this property do not constitute a gift. I am also disposed to agree with the Appellee that the City has no standing to maintain this action and that, under the circumstances of this case, the City would be estopped by its deed. But, there is still the taxpayer to contend with. As stated in McQuillin Municipal Corporation, 3rd Edition, Yol. 10 § 28.49:

If a municipal corporation purports to, transfer its property without power to do so, it may, in some instances, avoid or set aside the invalid transfer . . . and the restraint, recision, or cancellation of such a transfer may be compelled in a suit by a taxpayer, or by other appropriate court process, provided such avoidance is not barred by the doctrine of estoppel to the extent that it is applicable against the municipal corporation. .

The Kentucky legislature has enacted three general statutes granting municipalities the power to dispose of real estate. They are: KRS 65.010, KRS 82.060(1), and KRS 84.010(1). In essence, the statutes gave the City the authority to convey its surplus property for such purposes and considerations as the City legislative body deemed proper for the public welfare.

In the case at bar, the City legislative body did declare the hospital annex to be surplus to its needs and deeded the property to the former owner for the sum of One Dollar with conditions and a reversionary clause. The City originally acquired the property from the Appellee for the purpose of obtaining a Hill-Burton Grant to construct the new wing on the hospital which was owned and operated by the Appellee. The City acquired the property for a nominal sum and essentially held title for the use and benefit of the Appellee. The property was, in fact, leased to the Appellee until June 30, 2014. The new construction was attached to and became inseparable from the original building. The new conveyance was based upon the condition that the property be used for a specific public purpose, to wit: housing for the low and moderate income families of Frankfort. The deed contained a possibility of reverter, conditioned upon the Appellee ceasing to use the property for the stated purpose. Furthermore, the conveyance contained a substantial contingent liability by requiring the Appellee to hold the City harmless in the event the City was required to repay any of the Hill-Burton Grant funds due to the discontinuance of the hospital for which the grant was made.

Although the City held legal title to a valuable piece of real estate, it had almost no investment in it. The municipal utility bought the bonds for the City’s matching funds, and the utility has written-off the loss.


text:
    O. J. SCHULZ, t/d/b/a Schulz’s Grocery and Donald A. Stothman, Appellants, v. Muriel CHADWELL, Appellee. Donald O’BRYAN, by his statutory guardian George O’Bryan, Appellant, v. John C. PETERSON and Robert H. Peterson, d/b/a Seven Sons Farm, and P & D Manufacturing Company, Appellees. Stuart N. PEARLMAN, Appellant, v. LIBERTY NATIONAL BANK AND TRUST COMPANY OF LOUISVILLE and Louisville Home Federal Savings and Loan Association, Appellees.
    Court of Appeals of Kentucky.
    March 18, 1977.

      John G. Crutchfield, Louisville, Jon William Goodman, Davis Williams, Munford-ville, Stuart N. Pearlman, Charles H. Zimmerman, Jr., Louisville, for appellants.
    Marshall P. Eldred, Jr., Claude S. Eddle-man, Jr., Louisville, Robert Spragens, Jr., Lebanon, William S. Bowman, William A. Miller, Louisville, for appellees.
   PARK, Judge.

Common questions of appellate practice are raised by motions to dismiss filed in these three appeals. In each case, the motion to dismiss asserts that the notice of appeal failed to specify the appellees as required by CR 73.03, as amended by the Supreme Court effective July 1, 1976.

Prior to July 1, 1976, a notice of appeal under CR 73.03 was required to specify only “the parties taking the appeal.” As amended, CR 73.03 provides:

“The notice of appeal shall specify all the appellants and all the appellees; ‘et al’ and ‘etc.’ are not proper designations of parties.”

In construing the requirements of CR 73.03 as amended, in Yocom v. Franklin County Fiscal Court, Ky., 545 S.W.2d 296 (Ky.Ct. of App.1976), this court stated:

“In order that the court can determine who is entitled to the additional ten days to cross-appeal allowed by CR 74, the notice of appeal must specify all of the appellees as required by CR 73.03 as amended. If the notice of appeal designates the appellees in such a way that it is possible to determine who is entitled to prosecute a cross-appeal under CR 74, then it follows that the notice of appeal has satisfied the requirements of CR 73.-03 that all appellees be specified.”

The notice of appeal in each case will be examined in light of these principles.

In appeal No. CA-771-I, the plaintiff in the trial court was Muriel Chadwell, and the defendants were O. J. Schulz, t/d/b/a Schulz’s Grocery, and Donald A. Strothman. The body of the notice of appeal provides:

“Notice is hereby given that O. J. Schulz, t/d/b/a Schulz’s Grocery, and Donald A. Strothman, defendants above named, hereby appeal to the Court of Appeals of Kentucky from the final Judgment entered in this action on October 20, 1976.”

The caption to the notice of appeal read:

“Muriel Chadwell Plaintiff vs. O. J. Schultz, t/d/b/a Schultz’s Grocery and Donald A. Strothman Defendants.”

The notice of appeal clearly specifies that the two defendants, Schulz and Strothman, were taking the appeal. Being the only other party to the action, the plaintiff Muriel Chadwell was obviously the appellee.

In appeal No. CA-765-I, the notice of appeal provides:

“Notice is hereby given that Donald O’Bryan by his Statutory Guardian, George O’Bryan, hereby appeals to the Court of Appeals from the Findings of Fact, Conclusions of Law and Judgment entered in this action on the 23rd day of December, 1976.”

The caption to the notice of appeal provides:

“Donald O’Bryan, by his Statutory Guardian, George O’Bryan Plaintiff vs. John C. Peterson and Robert H. Peterson d/b/a Seven Sons Farms Loretta, Kentucky and P & D Manufacturing Company, Plainfield, Illinois Defendants.”

In this case, there are two parties other than the appellant. Nevertheless, the caption named both of the other parties.

In appeal No. CA-736-I, the body of the notice of appeal provides:

“NOTICE is hereby given that the defendant, Stuart Pearlman, hereby appeals from the Final Order for Summary Judgment entered herein on November 18, 1976.”

The caption to the notice of appeal provides:

“Liberty National Bank and Trust Company of Louisville Plaintiff vs. Stuart N. Pearlman, et al. Defendants and Louisville Home Defendant Federal Savings and and Cross-Loan Association Plaintiff Stuart N. Pearlman Cross-et al. Defendants.”

In addition to the parties named in the caption, Mary D. Pearlman, Restoration Management Inc., Daniel H. Ruckriegel, and Brody Floor Coverings Inc., were parties to the action in the circuit court. In an attempt to amend his notice of appeal, Pearlman indicates that the only parties made appellees were Liberty National Bank and Trust Company of Louisville and Louisville Home Federal Savings and Loan Association, both of whom are specifically named in the caption of the notice of appeal.

A number of Official Forms are contained in an Appendix to the Rules of Civil Procedure. CR 84 provides:

“The forms contained in the Appendix of Forms are sufficient under the Rules and are intended to indicate the simplicity and brevity of statement which the Rules contemplate.”

Form 22 of the Appendix relates to the notice of appeal under CR 73.03. As amended effective July 1, 1976, Form 22, provides:

“Notice is hereby given that C.D. and E.F., defendants above named, hereby appeal to the [name of appellate court] [from the order (describing it)] [from the final judgment] entered in this action on _, 19_”

Form 22 as amended does not require that the appellees be named in the body of the notice of appeal. Nevertheless, in the amendment to Form 22, the following material was added at the end of the form:

“(Each appellant and each appellee must be named, ‘Et al.’ and ‘etc.’ are not sufficient designations.)”

If the appellees must be specified in the notice of appeal but need not be specified in the body of the notice of appeal, it follows that the appellees may be named in the caption to the notice of appeal.

In each case, the body of the notice of appeal follows Form 22 by naming only the person taking the appeal. As long as it conforms to Form 22, a notice of appeal is not defective under CR 73.03 merely because the appellees are not specified in the body of the notice. CR 84; cf. Lee v. Stamper, Ky., 300 S.W.2d 251 (1957).

The appellees are specifically named in the caption of each notice of appeal. If the appellees are not, named in the body of the notice of appeal, better practice would dictate that the appellant use the designation “appellee” in the caption. Nevertheless, there is no magic to the use of the term “appellee.” As we said in Yocom v. Franklin County Fiscal Court, supra, CR 73.03 is satisfied if the notice of appeal designates the appellees in such a way that it is possible to determine who is entitled to prosecute a cross-appeal under CR 74. In these three appeals, it is apparent that the appellees were all persons specifically named in the caption to the notice of appeal other than the appellants.

In discussing the technical requirements of pleading in Prewitt v. Clayton, 21 Ky. (5 T.B.Mon) 4 (1827), Chief Justice Bibb stated:

“It was unnecessary after stating the facts which constitute a trespass quare clausum fregit, to call the trespass by its name. A bear well painted and drawn to the life is yet the picture of a bear, although the painter may omit to write over it ‘this is the bear.’ ”

To paraphrase Justice Bibb, there is no “ca-balistic charm” in the word “appellee.”

Taking into consideration Official Form 22, this court concludes that a notice of appeal complies with CR 73.03 if an appellee is specifically named in the caption even though he is not explicitly designated as an appellee. In appeal No. CA-771-I, the plaintiff Muriel Chadwell was necessarily the appellee in the appeal taken by both defendants. In appeal No. CA-765-I, the plaintiff appealed and specifically named both defendants in the caption of the notice of appeal. By specifically naming both defendants, it is apparent that the plaintiff-appellant intended to make both of them appellees. In appeal No. CA-736-I, the defendant and cross-defendant, Pearlman, specifically named the plaintiff, Liberty National Bank and Trust Company of Louisville, and the defendant and cross-plaintiff, Louisville Home Federal Savings and Loan Association, in the caption of the notice of appeal. By so doing, Pearlman sufficiently identified them as appellees. Under CR 73.03, the remaining parties to the action were not made parties to the appeal by the use of “et al.” in the- caption. Not being specifically named, they were not parties to the appeal, but this would not prevent the appeal from being perfected as to the parties who were specifically named in the caption.

In the absence of any specific designation using the term “appellee,” any party, other than an appellant, who is specifically named in the caption will be deemed to be an appellee. If a party is not so named, it is not grounds for dismissing the appeal unless the omitted party is an indispensable party to the appeal.

For the foregoing reasons, the motions to dismiss the appeals in these three cases are DENIED.

All concur.


author: STEWART, Judge.

text:
    STATE of Missouri ex rel. MASADA SEISAKUSHO COMPANY, LTD., Relator, v. The Honorable Herbert K. MOSS, Judge of the Circuit Court of Jefferson County, Missouri, Division 1, Respondent.
    Nos. 38368 and 38369.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 22, 1977.
    Joseph A. Krai, III, Coburn, Croft, Shepherd & Herzog, St. Louis, for relator.
    Robert A. Wulff, Stephen D. Hoyne, Amelung, Wulff & Willenbrock, St. Louis, for respondent.
   STEWART, Judge.

This proceeding in prohibition had its origin in two actions, one for wrongful death and another for personal injuries. The actions arise out of the use of a hydraulic jack manufactured by relator. Plaintiffs in the underlying actions sued Kohler City Supply Co. and U. S. Import Distributors, Inc. U. S. Import Distributors, Inc. filed its third party petition against relator and Seiko Trading Co. The relator has its principal place of business in Tokyo, Japan.

Third party plaintiff initiated proceeding to obtain service of third party defendants as provided in United Nations Convention for Service Abroad of Judicial and Extrajudicial Documents. 20 U. S. Treaties 361.

In view of the conclusion which we reach it will serve no purpose to detail the facts surrounding the service of process and the returns thereon. Suffice it to say that relator entered its appearance solely for the purpose of filing its motion “To Quash the Summons and Return . . . ” The court overruled the relator’s motion. Pursuant to petition by relator we issued our Preliminary Writ of Prohibition.

The preliminary writ was amended to permit the court to order the issuance of an alias third party summons upon plaintiff.

The parties have advised us that subsequent to the amendment of the writ, the trial court, at the request of third party plaintiff, ordered the issuance of an alias summons directed to relator. The court also, within the intent of the amended writ, extended the time for service of the alias summons.

It has long been held that “an order of record that an alias summons be issued necessarily must constitute an abandonment of the original service.” Pacific Mutual Life Insurance Co. of Calif. v. Mansur, 136 Mo.App. 726, 118 S.W. 1193 (1909). See also State ex rel. Gardner v. Hall, 282 Mo. 425, 221 S.W. 708, 711 (banc 1920). The rule is necessary for orderly procedure for the reason stated in Mansur at page 1194:

“Constructively the defendant was present in court in obedience to the original summons, heard the plaintiff ask for the alias order, witnessed the pronouncement of the order by the court, and saw it entered of record. In effect, plaintiff there confessed and the court ruled that the summons was insufficient, and the defendant was told by the court to depart with the assurance that it need not reappear to answer the petition until commanded so to do by the service upon it of the alias summons.”

In the present case the moment the alias summons was ordered issued relator was no longer in court. The issues raised by the preliminary writ no longer existed. There is nothing before us for our determination. The preliminary writ is quashed.

McMILLIAN, P. J., and SMITH, J., concur.