text:
    SOUTHLAND CAPITAL CORPORATION, Appellant, v. Harold CLARK and Jerry Clark, d/b/a J & H Paint Company, Appellees.
    No. 5455.
    Court of Civil Appeals of Texas, Waco.
    July 31, 1975.

      Zimmerman & Sullivan, G. Dennis Sullivan, Dallas, for appellant.
    Crowder, Mattox & Morris, Allen R. Morris, Dallas, for appellees.
   OPINION

JAMES, Justice.

This is an appeal by Defendant-Appellant Southland Capital Corporation from judgment against it in favor of Plaintiff-Appel-lees Harold Clark and Jerry Clark for $2,251.60 plus $500. attorney’s fees.

Plaintiffs sued Defendant for $2,398.22 (plus $1500. attorney’s fees) for painting work done on Defendant’s apartments, pleading contract and quantum meruit alternatively.

Trial was to a jury which found:

1) Do you find * * * that the work performed by Plaintiffs, their agents or employees, upon the apartments in question was done in a good and workmanlike manner?
(here followed a definition of “Good Workmanlike Manner”)
Answer: Yes,
You are instructed that the term “Quantum Meruit” means that Quantum Meruit is one of the common counts which lies for services rendered and materials furnished, the right resting on implied contract by the other party to pay for the benefits he has received, on the theory that it would be inequitable for him to refuse to pay for such benefits.
2) After making allowance for offsets and credits, if any, find * * * the amount of money, if any owed to Plaintiffs?
Answer: $2,251.60.
(Here followed a definition of the term “Substantial Compliance”)
3) Do you find * * * Plaintiffs failed to substantially comply with the terms of the contracts?
Answer: Yes.

The parties stipulated that if Plaintiffs recovered in quantum meruit a reasonable attorney’s fee would be $500.

The trial court rendered judgment for Plaintiffs for $2,251.60 plus $500. attorney’s fees.

Defendant-Appellant appeals on 20 points, pertinent of which contend:

1) The trial court erred in submitting Issue 2 as it is an attempt to submit a damage issue under a theory of quantum meruit without submitting the necessary issues pertaining to work done, acceptance of work, value of the work and enhancement, to support such legal theory.
2) Issues 1 and 2 together will not support a judgment.
3) There is no evidence to support the answer to Issue 2 under the theory of quantum meruit.

Defendant-Appellant’s points one through seventeen (except number seven hereinafter discussed) complain of the trial court’s charge to the jury, and are dependent upon Defendant’s objections and exceptions to the court’s charge. However, the Defendant’s objections and exceptions are not properly before us, and we are not authorized to consider them, because Rule 272, Texas Rules of Civil Procedure, has not been complied with.

Rule 272 contains the following language:

“ . . . The requirement that the objections to the court’s charge shall be in writing will be sufficiently complied with if such objections are dictated to the court reporter in the presence of and with the consent of the court and opposing counsel, before the reading of the court’s charge to the jury, and are subsequently transcribed and the court’s ruling and official signature endorsed thereon and filed with the clerk in time to be included in the transcript ...” (emphasis supplied.)

In the case at bar, the trial court’s judgment was signed and entered November 8, 1974, the original motion for new trial was filed November 18, 1974, the amended motion for new trial was filed December 4, 1974, and the order overruling the amended motion for new trial was entered December 9, 1974.

The Appellant had sixty days from December 9, 1974, in which to file the transcript, the last day of said sixty-day period being Friday, February 7, 1975. Rule 386, T.R.C.P. Appellant filed the original transcript on February 6, 1975, without including any objections and exceptions to the court’s charge, and without requesting the clerk to include any such document. See Rule 376, T.R.C.P.

On Plaintiffs’ Motion, a supplemental transcript was filed February 25, 1975, which likewise did not include any objections and exceptions to the court’s charge.

After Appellant filed its brief, the Appel-lees filed their brief in which it was pointed out that no objections and exceptions to the court’s charge were included in the transcript.

On June 4, 1975, Appellant filed a second supplemental transcript which shows an order of the trial court dated March 18, 1975, directing the inclusion of Appellant’s objections and exceptions to the court’s charge in a supplemental transcript, and the “Defendant’s Objections and Exceptions to the Court’s Charge” together with the trial court’s ruling thereupon, filed in the county clerk’s office on May 29, 1975.

Rule 272 fixes a definite time limit in which to have objections and exceptions to the court’s charge transcribed, the court’s ruling and signature endorsed thereon and then filed with the clerk, when such exceptions to the court’s charge are dictated to the court reporter under the rule. They must be transcribed, endorsed and “filed in time to be included in the transcript.” In the case at bar, the time for such filing in the trial court could not be more than sixty days from the order overruling the amended motion for new trial (December 9, 1974), which would be Friday, February 7, 1975. As stated, the Objections and Exceptions were not filed with the county clerk until May 29,1975. Under these facts such filing was over three and a half months late, and therefore cannot be considered by us. Cannon v. Canida (Tex.Civ.App., Texarkana C.A. 1959) 321 S.W.2d 631, NRE; Commercial Standard Ins. Co. v. Southern Farm Bureau Casualty Ins. Co. (Tex.Civ.App., Corpus Christi C.A. 1974) 509 S.W.2d 387, NRE; Rodriguez v. Garcia (Tex.Civ.App., Corpus Christi C.A. 1975) 519 S.W.2d 908, NRE.

Appellant contends that the trial court was authorized under Rule 428 to direct a supplemental transcript to include these objections and exceptions. This would be true if the objections and exceptions had been filed with the county clerk “in time to be included in the transcript.” This would be true if they had been filed by February 7, 1975. Instead they were not filed with the county clerk until May 29, 1975. Under these facts the trial court had no authority to order the inclusion of these objections and exceptions in a supplemental transcript, as this would be violative of Rule 272.

Under this state of the record, we overrule Appellant’s points one through seventeen, with the exception of Appellant’s point seven, wherein Appellant says there is no evidence to support the answer to Special Issue No. 2 under the theory of quantum meruit. Appellant preserved this point in its amended motion for new trial. See Rosas v. Shafer (Tex.Sup.Ct.1967) 415 S.W.2d 889.

Plaintiffs testified they painted Defendant’s apartments 1, 2 and 3 and were paid for this work; that they painted Defendant’s apartments 4 and 5 and were not paid; that they were to receive $1,125.80 for each unit; that Defendant refused to pay them for this work; that they painted, sanded, caulked and did everything they were supposed to do; that they did not water down their paint; that they used good paint; that they used the same type stain on buildings 4 and 5 as they used on buildings 1, 2 and 3; that they were paid $1,125.80 each for their work on buildings 1, 2 and 3; that they did the same work on all 5 buildings; that they purchased the paint from Sherwin-Williams Paint Company; that the 2 Plaintiffs and 3 other employees worked on Defendant’s apartments; that Plaintiffs paid for the painting materials and paid the employees; that approximately $300. worth of paint materials were used; that $400. or $500. was paid for labor exclusive of the work performed by Plaintiffs.

Williams Garrett, Vice President of Defendant testified by deposition, Defendant paid Plaintiffs 3 payments of $1,125.80 for paint work performed on units 1, 2 and 3.

Guy Jacobs manager of Sherwin-Williams Paint Company testified Sherwin-Williams sold Plaintiffs the paint materials and sold them the best.

Lovera Brooks, an architect, testified he examined the work performed by Plaintiffs and that it was of low quality; that some doors had no paint on them; and that there was caulking which had not been performed.

Marion Morris, property supervisor for Defendant testified that the paint was bad on some of the doors; and that Plaintiffs performed certain caulking only after being written to do so.

We believe the evidence is ample to support the jury’s finding in answer to Special Issue No. 2 under the theory of quantum meruit, and we therefore overrule Appellant’s “no evidence” point.

We hold that the verdict and the implied findings referable thereto, are sufficient to support the judgment under the theory of quantum meruit. Rules 277, 279, Texas Rules of Civil Procedure.

Rule 277 TRCP which was amended to its present form September 1, 1973 provides:

“In all jury cases the court may submit said cause upon special issues without request of either party * * *.
“It shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It shall not be objectionable that a question is general or includes a combination of elements or issues. * * *.
“In submitting the case, the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict and in such instances the charge shall not be subject to the objection that it is a general charge. * ⅜ V’

Rule 279 TRCP provides that omitted issue or issues shall be deemed as found by the court as to support the judgment.

Appellant’s three remaining points of error (eighteen through twenty) complain of the award of $500.00 attorney’s fees in the judgment. The parties stipulated in open court as follows: “_if the jury finds for the Plaintiffs on the issue of quantum meruit, the parties by and through their respective attorneys have stipulated that five hundred dollars would be a reasonable attorney’s fee.” Here the jury found for the Plaintiffs on the issue of quantum meruit; therefore Defendant-Appellant has stipulated that $500.00 is a reasonable attorney’s fee.

All of Appellant’s points of error are overruled, and the trial court’s judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Howard RANEY, d/b/a Raney Furniture & Carpets, Appellant, v. CENTRAL FREIGHT LINES, INC., Appellee.
    No. 5466.
    Court of Civil Appeals of Texas, Waco.
    July 31, 1975.
    Walter J. Woodman, Waxahachie, for appellant.
    Benjamin N. Hamilton, Waco, for appel-lee.
   HALL, Justice.

This is an action by a consignee, Howard Raney, against a common carrier, Central Freight Lines, Inc., for freight damage allegedly done to a “La-Z-Boy” chair by the carrier on an intrastate shipment. The plaintiff appeals from a take-nothing judgment rendered following a non-jury trial. We affirm.

The plaintiff recognizes in his brief that, to recover, it was his burden to secure findings that the chair was delivered to the defendant at the point of origin in an undamaged condition and was then delivered by the defendant to the plaintiff in a damaged condition. See Missouri Pacific Railroad Co. v. Elmore & Stahl (Tex.Sup., 1963), 368 S.W.2d 99, 101. It is the plaintiff’s contention that the failures of the court to make these findings are so against the great weight and preponderance of the evidence as to be manifestly unjust.

The plaintiff was the only witness on the trial. The proof was short. It shows that on December 4, 1972, the defendant delivered the chair in question, packaged and completely concealed in a carton, from a furniture distributor in Lufkin to the plaintiff’s place of business in Waxahachie. The defendant executed a bill of lading in which it stated that it received the carton “in apparent good order, except as noted (contents and condition of contents of packages unknown).” No exceptions were noted on the bill of lading. When the carton was delivered to the plaintiff, he noticed an indentation on it which the plaintiff said was “not abnormal on a carton received.” There is no evidence of anything unusual about the package upon delivery to the plaintiff, and no evidence that he brought the dent to the defendant’s attention. The carton was not opened upon delivery to the plaintiff, but was moved by him and an employee “from the receiving part of the store to the storage part of the store.” Nothing more is shown about the chair or the storage area until the carton was opened about a week after delivery. Upon opening the carton the plaintiff discovered that a wooden “wing” on one side of the back of the chair was broken loose from the chair. He said that the indentation on the carton was “next to the spot where the damage occurred.” The plaintiff has been in the furniture business 22 years. His loss as a result of the damage to the chair is $135.00.

The dent on the carton was not unusual. It did not arouse the concern of the plaintiff who had 22 years’ experience handling such packages. Surely, the carton appeared to be in “apparent good order” with the dent. There is a complete want of proof of whether, and how, the carton was handled while it was in the plaintiff’s storage area.

The credibility of witnesses and the weight of evidence in a case is, of course, for the trier of the facts. Mitchell’s, Inc. v. Nelms (Tex.Civ.App.—Dallas, 1970, writ ref., n. r. e.), 454 S.W.2d 809, 813. We cannot say the court’s failure to make either finding about which complaint is made is against the great weight and preponderance of the evidence.

The plaintiff’s remaining points and contentions become immaterial in the light of the above disposition, and need not be discussed.

The judgment is affirmed.

      . The single point of error dealing with the sufficiency of proof and the want of findings favorable to the plaintiff reads as follows: “That the trial court erred in rendering judgment for the appellee that appellant take nothing by his suit for the reason that the appellant made out a prima facie case against the appellee freight carrier when he introduced into evidence the bill of lading acknowledging receipt of the goods in apparent good order by appellee and then proved that the goods were in a damaged condition when delivered to appellant.” On oral argument in this court, the plaintiff stated that he intended for this point to be a “great weight and preponderance of the evidence” point.


author: DUNAGAN, Chief Justice.

text:
    Virgil L. KROPP, Appellant, v. Hugh E. PRATHER, Jr., et al., Appellees.
    No. 836.
    Court of Civil Appeals of Texas, Tyler.
    July 31, 1975.
    Rehearing Denied Aug. 28, 1975.

      Andress, Woodgate & Lodewick, Wm. Andress, Jr., Dallas, for appellant.
    Burford, Rybum & Ford, Logan Ford, David A. Witts, Dallas, for appellees.
   DUNAGAN, Chief Justice.

This is an appeal from a summary judgment, the second such judgment granted in this particular case. Appellees, Prather and Hanner, claiming to be stockholders in Sunshine Plant Foods, Inc., filed a stockholder’s derivative suit against Kropp in July, 1967, charging mismanagement of the corporate affairs and embezzlement of Sunshine funds by Kropp. Appellees alleged that Kropp had invested corporate funds in a fifty-one acre tract of land in Denton County and on August 10, 1967, they filed a lis pendens notice on the property claiming equitable title. Kropp answered by denying that appellees were stockholders in Sunshine and asserting therefore that they had no standing to maintain their suit and filed a cross-action contending that because of appellees’ false claim against the land, he had been unable to close outstanding contracts of sale for portions thereof, the proceeds of which would have enabled him to satisfy a delinquent mortgage upon the remainder. Kropp also alleged that he would have derived sufficient funds from the sale of the Denton County lands to protect another and separate forty acre tract from foreclosure, that such special damages were known to appellees and that as a result of the filing of the lis pendens notice, he lost both properties to his great damage.

In 1970, appellees took a nonsuit in their original action against Kropp, leaving pending only the cross-action by Kropp. A summary judgment in favor of appellees Prather and Hanner was then granted by the 14th Judicial District Court of Dallas County. That summary judgment was reversed by the Beaumont Court of Civil Appeals in an unpublished opinion in December, 1971, and the case was subsequently transferred to the 191st District Court where the parties were allowed to realign and replead, with the essential elements and allegations of the new pleadings being basically the same as the pleadings before the first summary judgment. In August, 1974, appel-lees’ second motion for summary judgment was granted by the 191st Court and it is from this judgment that appellant brings this appeal.

Appellant, in his single point of error, contends that the trial court erred in granting the second judgment and argues for an application of the doctrine of law of the case. It is appellant’s position that the pleadings involved in the two summary judgments are identical in their essential contentions and that there has been no change in the summary judgment evidence. Appellant therefore concludes that the Beaumont decision became the law of the case and that he is deserving of a trial on the merits.

The doctrine of law of the case is defined as that principle under which the determination of law questions will generally be held to govern the case throughout all of its subsequent stages where such determination has already been made on a prior appeal to a court of last resort. Transport Ins. Co. v. Employers Casualty Co., 470 S.W.2d 757 (Tex.Civ.App., Dallas, 1971, writ ref., n. r. e.), 4 Tex.Jur.2d, Sec. 1001, p. 734. As the definition indicates, the doctrine of law of the case is applied only to questions of law and does not apply to questions of fact. Missouri K & T R Co. v. Redus, 55 Tex.Civ.App. 205, 118 S.W. 208 (1909, ref.); Roberts v. Armstrong, 231 S.W. 371 (Comm. of App., 1921). Further, the doctrine does not necessarily apply where the issues presented at successive appeals are not identical and applies only if it appears on the second appeal that the facts are substantially the same as those involved on the first trial. Ralph Williams Gulf gate Chrysler Plymouth, Inc. v. State, 466 S.W.2d 639 (Tex.Civ.App., Houston, 14th Dist., 1971, writ ref., n. r. e.); Pearland v. Young, 452 S.W.2d 767 (Tex.Civ.App., Beaumont, 1970, writ ref., n. r. e.); Lebow v. Weiner, 454 S.W.2d 869 (Tex.Civ.App., Beaumont, 1970, writ ref., n. r. e.). The application of the doctrine is not completely rigid and inflexible but the court has considerable discretion in its application. Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066 (1896); Magnolia Park Co. v. Tinsley, 96 Tex. 364, 73 S.W. 5 (1903); Burrage v. Hunt Production Co., 114 S.W.2d 1228 (Tex.Civ.App., Dallas, 1938, dism’d.).

It is our opinion that the doctrine of law of the case is not applicable in this case. “The doctrine does not necessarily apply where the issues presented at the two different trials are not identical. This is especially true where, on the second trial, following the reversal and remand of the cause on appeal, the pleadings are amended by both parties. Under this situation, the doctrine is inapplicable.” Transport Ins. Co. v. Employers Casualty Co., supra; Rose v. Baker, 143 Tex. 202, 183 S.W.2d 438 (1944); Closner v. Gannaway, 55 S.W.2d 888 (Tex.Civ.App., Galveston, 1932, writ ref.); Seydler v. Keuper, 133 S.W.2d 189 (Tex.Civ.App., Austin, 1939, writ ref.).

In the instant case, upon remand by the Beaumont Court, each party filed amended pleadings. While it may be that the amended pleadings contain the same essential allegations as the pleadings in the first trial, there are some added allegations. For example, appellant adds in his amended petition an allegation of abandonment by ap-pellees due to the nonsuit of their claim of equitable title. Appellees, in their first amended original answer, deny the abandonment in certain specifics.

In addition, the summary judgment proof offered in support of the second motion for summary judgment differs from that offered to support the first motion. Four additional depositions are considered by the court in granting the second motion. The general rule in this regard is that the party who asserts that the evidence in the second trial differs from that of the first has the burden of proving such contention and in the absence of proof, it will be presumed that the evidence is substantially the same upon issues common to both trials. Gulf States Equipment Co. v. Toombs, 317 S.W.2d 554 (Tex.Civ.App., Texarkana, 1958, writ ref., n. r. e.). It is our opinion that appellee has sufficiently illustrated the consideration of additional summary judgment proof in the second motion for summary judgment to negate the application of law of the case.

For the above stated reasons, we find the doctrine of law of the case to be inapplicable here and are further of the opinion that the doctrine’s applicability is immaterial in this case.

Appellant relies on a cause of action in slander of title as the basis of his claim of special damages resulting from his alleged inability to close outstanding contracts of sale on the tracts involved because of the lis pendens filed by appellees. Ap-pellees contend that the recordation of a lis pendens notice is privileged and that therefore no cause of action for slanger of title is stated. Although an action for slander of title is different from that of an action for personal defamation, essentially the same privileges are recognized in relation to both torts. Prosser, Torts, 3rd Ed., 122, Rest. Torts, Sec. 585 et seq., 635 et seq. Any communication, oral or written, uttered or published in the due course of a judicial proceeding is absolutely privileged and cannot form the basis for a cause of action in libel or slander. Runge v. Franklin, 72 Tex. 585, 10 S.W. 721 (1889); Hott v. Yarbrough, 112 Tex. 179, 245 S.W. 676 (Comm. of App., 1922); Bloom v. A. H. Robins Co., 479 S.W.2d 780 (Tex.Civ.App., Waco, 1972, error dism.), cert. denied 410 U.S. 983, 93 S.Ct. 1504, 36 L.Ed.2d 179; McAfee v. Feller, 452 S.W.2d 56 (Tex.Civ.App., Houston, 14th Dist., 1970, n. w. h.). Therefore, the question presented is whether a notice of lis pendens recorded as authorized by Art. 6640, V.A.T.C.S., is a publication in the course of a judicial proceeding.

Article 6640, V.A.T.C.S. states:

“Upon the filing of the plaintiff’s statement or petition in any eminent domain proceeding, or during the pendency of any suit or action, involving the title to real estate, or seeking to establish any interest or right therein, or to enforce any lien, charge or encumbrance against the same, any party seeking affirmative relief therein, may file a notice of the pendency of such proceeding or suit with the county clerk of each county where such real estate, or any part thereof, is situated. Such notice shall be signed by the party filing the same, his agent or attorney, setting forth the number, if any, and style of the cause, the court in which pending, the names of the party thereto, the kind of proceeding or suit and description of the land affected.”

From the language of the statute, it can be seen that the filing of a lis pendens notice is predicated on the penden-cy of a suit or action involving real estate. Wortham v. Boyd, 66 Tex. 401, 1 S.W. 109 (1886); Humphrey v. Beaumont Irrig. Co., 41 Tex.Civ.App. 308, 93 S.W. 180 (1906, err. ref.); Neyland v. Brammer, 146 S.W.2d 261 (Tex.Civ.App., Galveston, 1940, dism., judg. corr.). At common law, the presence of a lis pendens notice acted as constructive notice to everyone of the pendency of the suit and its nature. Maes v. Thomas, 140 S.W. 846 (Tex.Civ.App., San Antonio, 1911, err. ref.); Benn v. Security Realty and Development Co., 54 S.W.2d 146 (Tex.Civ.App., Beaumont, 1932, err. ref.); Reeves v. Houston Oil Co., 230 S.W.2d 255 (Tex.Civ.App., Beaumont, 1950, n. r. e.). The effect of a statutory lis pendens notice, while depending somewhat upon the terms of the authorizing statute, is to put those interested in a particular tract of land on inquiry as to the facts and issues involved in the suit or action concerned. Art. 6643, V.A.T.C.S., Daugherty v. Garrett, 336 S.W.2d 642 (Tex.Civ.App., San Antonio, 1960, dism’d., w. o. j.). Lis pendens does not give constructive notice of matters not appearing on the face of the pleadings, i. e., matters not claimed by the plaintiff and not involved or in issue. Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131 (1917); Neyland v. Brammer, supra; Shearon v. Henderson, 38 Tex. 245 (1873).

Because the recording of a lis pen-dens is specifically authorized by statute and has no existence separate and apart from the litigation of which it gives notice, we hold that the filing of a notice of lis pendens in this action is a part of the “judicial proceeding.”

In 51 Am.Jur.2d, Lis Pendens, Sec. 22, it is stated that: “A notice of lis pendens, filed under the authority of a statute, is, it has been held, as much entitled to the benefit of privilege, within contemplation of libel laws, as are the pleadings in the action to which the notice relates.”

Further, several other jurisdictions have recognized a privilege associated with lis pendens. Stewart v. Fahey, 14 Ariz.App. 149, 481 P.2d 519 (1971); Houska v. Frederick, 447 S.W.2d 514 (Sup.Ct. of Missouri, 1969); Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405 (1956): Zamarello v. Yale, 514 P.2d 228 (Sup.Ct. of Alaska, 1973).

In the Albertson case, the California court was considering a statute very similar to Article 6640, V.A.T.C.S. There the court stated:

“It is our opinion that the privilege applies to any publication, such as the recordation of a notice of lis pendens, that is required * * * or permitted * * * by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is invoked. See 53 C.J.S. Libel and Slander § 104, p. 168. Thus, it is not limited to the pleadings, the oral or written evidence, to publications in open court or in briefs or affidavits. If the publication has a reasonable relation to the action and is permitted by law, the absolute privilege attaches. * * * It therefore attaches to the recordation of a notice of lis pendens, for such a publication is permitted by law, and like other documents that may be filed in an action, it has a reasonable relation thereto and it is immaterial that it is recorded with the County Recorder instead of being filed with the County Clerk.”

It is our opinion that the rationale employed by the California court is applicable here and therefore attaches a privilege to the filing of a lis pendens notice.

Appellant, in his single point of error, argues only for an application of the doctrine of law of the case. There are however, contained in this argument, some references to the existence of certain fact issues which appellant asserts precludes the granting of a summary judgment.

These references made to alleged fact questions, however, do not contain proper references to the record where the matters complained of may be found. The record concerning those possible issues consists of 800 plus pages of deposition testimony and exhibits. The burden is on appellant to show that the record supports his contentions and to point out the place in the record where the matters complained of are shown. Sims v. McKnight, 420 S.W.2d 173, 178-79 (Tex.Civ.App., Houston, 14th Dist., 1967, writ ref., n. r. e.); Novita Oil Co. v. Smith, 247 S.W.2d 151 (Tex.Civ.App., Eastland, 1952, n. w. h.); Little Rock Furniture Mfg. Co. v. Dunn, 218 S.W.2d 527, 534 (Tex.Civ.App., Ft. Worth, 1949), affirmed 148 Tex. 197, 222 S.W.2d 985; Balque v. Green, 193 S.W.2d 705 (Tex.Civ.App., 1946, err. ref., n. r. e.); May v. Consolidated Underwriters, 170 S.W.2d 295 (Tex.Civ.App., Ft. Worth, 1943, ref., w. m.); Rule 418, Texas Rules of Civil Procedure. We do not feel that the rules require us to search through the entire record to determine whether appellant’s allegations have any validity. Appellant has failed to meet his burden.

Finding no reversible error, the judgment of the trial court is affirmed.

Judgment affirmed.


author: McKAY, Justice.

text:
    R. G. LLAST, Appellant, v. John EMMETT, Appellee.
    No. 841.
    Court of Civil Appeals of Texas, Tyler.
    July 31, 1975.
    Rehearing Denied Aug. 28, 1975.

      Robert O’Donnell, Andress, Woodgate & Lodewick, Wm. Andress, Jr., Dallas, for appellant.
    John L. Burke, John Emmett, Dallas, for appellee.
   McKAY, Justice.

John Emmett, an attorney brought suit against R. G. Llast for recovery of attorneys’ fee for legal services performed by Emmett for Llast. Llast filed an answer but neither Llast nor his attorney appeared for trial, and the trial court, without a jury, proceeded to trial, heard evidence, and rendered judgment for Emmett for $2,853.50 plus $600 attorneys’ fee.

The appeal is before this Court on Petition for Writ of Error by Llast. We affirm.

The trial was had on June 12, 1974. The judgment was signed by the court on July 8, 1974. Before the judgment was signed, to-wit, June 27, 1974, Petitioner Llast filed a Motion to Vacate Judgment Nihil Dicit alleging the court erred in proceeding to trial in the absence of his attorney. The motion to vacate was not acted upon by the court, and judgment was signed as noted above.

Petitioner brings five points of error. In his first point he complains that the trial court erred in signing the judgment with the motion to vacate pending. We overrule this point. Petitioner’s motion, which he titled “Motion to Vacate Judgment Nihil Dicit” contained this prayer: “WHEREFORE, Premises Considered, Defendant prays that the Court vacate its verdict and that the matter be set for trial and that the Defendant be permitted his day in Court.” In determining the nature of an instrument we must look at its substance and not its caption. Mercer v. Band, 454 S.W.2d 833 (Tex.Civ.App.—Houston 14th, 1970, no writ). It is without question that the instrument was in its nature a motion for new trial seeking to vacate or set aside a judgment or verdict and to have a new trial. Since it was filed before the judgment was signed and entered it was “deemed to have been filed on the date of but subsequent to the rendition of the judgment the motion assails * * Rule 306c, Texas Rules of Civil Procedure. The record does not disclose any action by the trial court on the motion, and under Rule 329b, T.R.C.P., such motion was overruled by operation of law 45 days after the date of rendition of judgment. Arana v. Gallegos, 279 S.W.2d 491 (Tex.Civ.App. — San Antonio, 1955, no writ); Rule 329b, sec. 4, T.R.C.P. If nothing else transpires other than the filing of an original motion for new trial, such motion will be overruled by operation of law 45 days after the same is filed. Argonaut Southwest, Ins. Co. v. Morris, 420 S.W.2d 760 (Tex.Civ.App.—Austin, 1967, writ ref’d, n. r. e.).

Petitioner’s second point maintains that the trial court erred in entering a judgment presented by respondent Emmett rather than his attorney and doing so without notice to all counsel. Although they should not be included there are copies of three letters between the attorneys and one from the trial judge in the transcript, and petitioner challenges these instruments as not being a part of the record in this case. We sustain the challenge. Even though copies of these letters were filed by the clerk and made a part of the file, they were not offered in evidence during the trial nor included in any bill of exception. Therefore, copies of the letters are not competent evidence and cannot be considered on appeal, even if designated and included in the transcript. Beasley v. Reiger, 441 S.W.2d 957, 959 (Tex.Civ.App.—Waco, 1969, no writ); Rosenfeld v. Steelman, 405 S.W.2d 301 (Tex.1966); Rotello v. State, 492 S.W.2d 347 (Tex.Civ.App.—Houston 1st, 1973, writ ref’d, n. r. e.); Rule 376, T.R.C.P. There is no competent evidence in the record to support Petitioner’s second point and it is overruled. Even though petitioner’s second point had been shown by competent evidence it would not be error.

By his point three petitioner says the trial court erred in trying the case and rendering judgment in the absence of his counsel and without proper showing of setting and notice. Petitioner’s attorney in his “Motion to Vacate Judgment Nihil Dicit,” acknowledges “That the above styled and numbered case was set for trial to the Court for Wednesday, June 12,1974, at 9:00 a. m.” It is apparent petitioner’s counsel knew of the setting, and there is nothing in the record to show such setting was changed or postponed. Petitioner cannot complain that the Court tried the case on the day it was set even though his counsel did not appear. No notice is required other than the setting of the case on the docket. See Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 (Tex.1974). Point three is overruled.

In his fourth point petitioner complains of the trial court entering a judgment nihil dicit when there was a verified answer and denial on file, and in his point five petitioner says the trial court erred in rendering judgment for respondent on his uncorroborated, indefinite and uncertain testimony. At the close of the testimony the court announced he was granting a nihil dicit judgment; however, the judgment rendered and signed by the court is not designated as a nihil dicit judgment nor is it such in substance. The judgment recites that petitioner had answered but had failed to appear in person or by counsel, and that “the Court proceeded to hear and try all matters in controversy, in law as well as fact, and after considering the pleadings, evidence, and arguments of counsel, finds that plaintiff should have and recover judgment against the Defendant * * The judgment was not a true nihil dicit judgment, and the general denial filed by petitioner was sufficient to put in issue the matters pleaded in the answer. Rule 92, T.R.C.P., Frymire Engineering Co. v. Graham, 18 S.Ct. Journal, p. 371 (1975); Bredeson v. Merrill Lynch, Pierce, Fenner & Smith, 513 S.W.2d 110 (Tex.Civ.App.—Dallas, 1974, no writ). Therefore, respondent was required to prove by evidence the elements of his pleaded cause of action. This he did, as shown by the statement of facts, and we hold such evidence to be factually sufficient to support the judgment. Points four and five are overruled.

Judgment of the trial court is affirmed.

      . Annotation under Rule 376, p. 48, 1975 pocket part shows writ refused, n. r. e., while Texas Writs of Error Table cites 497 S.W.2d 282, 290 for further action; page 282 is an error; at page 290 the Supreme Court refused the application for Writ of Error, no reversible error.


author: ROBINSON, Justice.

text:
    Gertrude TEAGUE et al., Appellants, v. Bill ROPER et ux., Appellees.
    No. 8517.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 4, 1975.
    Rehearing Denied Aug. 29, 1975.

      Crenshaw, Dupree & Milam and James H. Milam and Cecil Kuhne, Lubbock, Hall & Tollett and Thomas E. Tollett, Littlefield, for appellants.
    Brock, Waters & Galey and Harold H. Pigg, Lubbock, for appellees.
   ROBINSON, Justice.

Plaintiff tenants, Bill Roper and Eula Faye Roper, sued defendant landowner, Gertrude Teague, Trustee, to establish a parol lease on land for a five-year term beginning January 1, 1973. Defendant by counterclaim sought title and possession of the land. The trial court overruled defendants’ motion for directed verdict and motion for judgment n. o. v. and entered judgment on the verdict for plaintiff. Defendants appeal. Affirmed.

It is undisputed that plaintiffs had been in possession of the land in question for a number of years and were in possession of the land in January, 1973, under an oral year to year lease. During 1973, they remained in possession, adapted part of the land to sprinkler irrigation and installed underground pipe and a sprinkler system.

The jury found that in January of 1973, Mrs. Teague agreed that the Ropers could have possession of the land for five years for a term beginning January 1, 1973, on the same terms governing their previous tenancy. It further found that Mrs. Teag-ue permitted the Ropers to remain on the land in 1973 under that agreement; that the Ropers furnished underground pipe and a sprinkler system and adapted part of the land to sprinkler irrigation; that in placing the underground pipe and adapting the land, they made valuable improvements on the land; that they did so in reliance on the agreement to leave them in possession of the land; and that Mrs. Teague consented to the making of the improvements.

The statute of frauds provides that a sale of real estate or a lease of real estate for a term longer than one year is unenforceable unless it is in writing and signed by the person to be charged by the agreement or someone authorized to sign for him. Texas Business & Commerce Code Annotated, § 26.01, 1967; also Article 1288, Vernon’s Ann.Tex.Civ.St.

The Supreme Court enumerated in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921), the elements necessary to remove a parol sale from the operation of the statute. They are (1) payment of consideration whether it be in money or services, (2) possession by the vendee, and (3) the making by the vendee of valuable improvements upon the land with the consent of the vendor or the presence of facts that would make the transaction a fraud on the purchaser if it were not enforced. Each of these three elements must exist before a parol sale of land will be enforced. The same elements must be established to remove a parol lease for a term of more than a year from the operation of the statute. Ward v. Etier, 113 Tex. 83, 251 S.W. 1028 (Comm. of App. 1923, opinion adopted).

We first consider whether the evidence taken in the light most favorable to plaintiff supports the submission to the jury of the issue asking if Mrs. Teague allowed the Ropers to remain in possession under a five-year oral lease. Since it is undisputed that they remained in possession during 1973, the question for our determination is whether the evidence is legally sufficient to show that the Ropers’ possession is referable to the new five-year lease so as to remove the lease from the provisions of the statute of frauds and permit its enforcement.

The plaintiff in Hooks v. Bridgewater had never been in possession of the land. Hence, the court did not address the question of whether a plaintiff who was already in possession and who continued in possession under a new oral agreement within the statute had such possession as would remove the agreement from the operation of the statute.

In Francis v. Thomas, et al., 129 Tex. 579, 106 S.W.2d 257 (1937), the court held that acts of performance relied upon to take a parol contract out of the statute of frauds must be such as could have been done with no other design than to fulfill the particular agreement sought to be enforced, otherwise they do not tend to prove the existence of the parol agreement relied upon by plaintiff. Quoting Burns v. McCormick, 233 N.Y. 230, 135 N.E. 273, the court stated:

“ ‘There must be performance “unequivocally referable” to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing.
‘ “An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance.” Woolley v. Stewart, 222 N.Y. 347, 351, 118 N.E. 847, 848.
‘What is done must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done.’ ’’

We conclude that, if the grantee is already in possession when the contract is made, a continuance of possession will not ordinarily suffice, although under the circumstances of a particular case, a continuance of possession may be such as to be referable exclusively to a new oral contract. 37 C.J.S. Statute of Frauds § 252, p. 768.

Thus, it has been held that where tenants were already in possession of an apartment at the time of a verbal lease, continued to pay the same rental as before the lease, and made no improvements in reliance on the leas§ except for painting the walls, that they had failed to show possession under the verbal lease by the lessee. Urban v. Crawley, 206 S.W.2d 158 (Tex.Civ.App., Eastland 1947, writ ref’d n. r. e.).

On the other hand in Lehman v. Barry, 126 S.W.2d 499 (Tex.Civ.App., Waco 1939, writ dism’d judg. corr.), joint possession by Mrs. Barry, begun before a parol gift and continued after the gift, together with valuable improvements made by her and recognition of her interests by the donor, was found to be sufficient to relieve the conveyance from the requirements of the statute of frauds. See also Patterson v. Patterson, 27 S.W. 837 (Civ.App.1894, writ ref’d).

The evidence in the case before us is in conflict. Mrs. Teague testified that about the first of December, 1972, she became angry because of what she considered Roper’s excessive use of wheat pasture and told him that he would not be permitted to farm the land in 1974. She said that she did not have any conversation with him concerning a five-year lease and did not give him permission to install the sprinkler system. On the contrary, she said that about the first of February, 1973, Roper came to her house and mentioned a sprinkler system, that she told him she would think about it and did not give him an answer then, but that she told him “no” on about the 8th of February, 1973. She said that Roper became angry at her refusal and told her that he did not want to farm the land.

Roper testified that he discussed putting in the sprinkler system, at no cost to the trust, with Mrs. Teague early in January, 1973, telling her that he would need a five-year lease if he did so because he would be undertaking a large debt. He said that in January she agreed to the lease and consented to his putting in the sprinkler system. Shortly after she consented, he entered into a contract for the purchase and installation of the sprinkler system at a cost of approximately $22,000.00 for the entire installation.

In evidence is a contract between Roper and Gifford-Hill Co., Inc. for the purchase of a sprinkler system. The contract is dated January 17, 1973, and provides for payment in installments over a five-year period.

Mrs. Roper is Mrs. Teague’s daughter. One of Mrs. Teague’s other daughters, Mrs. Dunagin, testified that she and her husband were visiting the Ropers in January, 1973, when Mrs. Teague came to see them and that during the visit Roper told Mrs. Teag-ue that he needed an answer on the sprinkler system so that he could place the order. She said that Mrs. Teague said for him to go ahead and do what he thought was best. She also said that in the conversation Roper mentioned that it would take five years for the system to pay for itself. Mr. Dunagin testified, concerning the same conversation, that Roper said that “he figured in five years with using that hill top, they would pay for the sprinkler system, it would pay both parties concerned.”

Both Roper and Mrs. Teague testified that Mrs. Teague was on the land a number of times and observed the work being done in levelling the land and installing the system. She did not object at that time.

Doug Goen, who was employed by Gif-ford-Hill, testified that the cost of the underground pipe was about $4,000.00 and the cost of the sprinkler was about $18,000.00. He testified that the sprinkler itself could be removed but that if it was moved very far it would have to be dismantled at a cost of about $3,000.00.

Roper testified that in order to put in the system he did extensive dirt work levelling a 65-acre hill. He flat broke the sod and floated the land. He said that the maize crop which he planted was the first crop on the 65-acre hill in 15 years and that that hill alone produced between eight and nine thousand dollars gross income. He added that with the sprinkler system he could double crop the land. Following the maize harvest, he planted Tritieale, which was growing at the time of trial. He testified that the work he had done levelling the land and installing the underground pipe from the well had increased the land value $100.00 per acre.

On April 8, 1973, Mrs. Teague saw in the paper that a mortgage had been put on the land. The notice referred to a contractor’s lien contract and deed of trust on the land signed by Mr. and Mrs. Roper to secure the cost of the underground pipe. In May, 1973, the installation of the system was completed. In June, 1973, Mrs. Teague had her attorney write Mr. Roper a letter stating that he had placed a cloud on the title to the land and had turned the farming land into what amounted to a stock farm, and advising him that his lease would not be renewed for the calendar year beginning January 1, 1974.

Where testimony is in conflict the jury is entitled to accept all, part, or none of the testimony of any witness, or it may accept part of one witness’s testimony and part of another. Knight v. Hicks, 505 S.W.2d 638 (Tex.Civ.App., Amarillo 1974, writ ref’d n. r. e.); Reinke v. Thomas, 369 S.W.2d 692 (Tex.Civ.App., Waco 1963, writ ref’d n. r. e.).

The question here is whether facts testified to, other than the parol lease itself, show that possession by the plaintiffs in 1973 was under a new agreement as opposed to possession by virtue of their right as holdover tenants under a year to year rental. We find that there was such evidence.

After considering all of the evidence, we conclude that the jury’s finding that Mrs. Teague permitted the Ropers to remain on the land in 1973 under a five-year lease and the finding that the Ropers made permanent and valuable improvements in placing the underground pipe and adapting the land are supported by sufficient evidence.

We do not find in the other points of error asserted by appellant any error which amounted to such a denial of the rights of appellant as was reasonably calculated to cause or probably did cause the rendition of an improper judgment.

The undisputed evidence shows that four tracts of land involved in the lease had been rented together for a number of years and we overrule defendant’s contention that improvements made on one tract could not remove a lease of all of the land from the requirements of the statute of frauds.

We find that the definition of valuable improvements was not error, however, it would not in any event result in an improper judgment because the trial court specifically limited the inquiry concerning valuable improvements to the underground pipe and adaptation of the land itself.

We find that the evidence concerning the 1970 construction of cattle pens was relevant to the course of dealings between the parties which was testified to at length by both plaintiff and defendant. Further, in the manner in which the issues were submitted, the jury could not have considered the 1970 improvements as part of the valuable improvements made pursuant to the five-year lease.

An invoice pertaining to the portable sprinkler system was properly admitted. Although the sprinkler system is not a permanent improvement, the circumstances of its purchase are relevant to the question of possession under the five-year lease. In addition other evidence relating to the same matter, including the contract of purchase and the testimony of the Gifford-Hill employee, was admitted without objection.

We have considered each of appellant’s points of error and find no reversible error.

The judgment of the trial court is affirmed.


author: MeDONALD, Chief Justice.

text:
    Ray C. ADAMS and Pearl Adams, Appellants, v. J. D. HERD and June Herd, Appellees.
    No. 5471.
    Court of Civil Appeals of Texas, Waco.
    Aug. 7, 1975.

      C. J. Humphrey, Amarillo, for appellants.
    Sanders, Miller & Baker, Oth 0. Miller, Amarillo, for appellees.
   OPINION

MeDONALD, Chief Justice.

This is an appeal by Ray C. Adams and Pearl Adams from judgment 1) declaring their grandson Shawn Jerome Herd a dependent child; 2) denying appellants’ petition to adopt such child; and 3) appointing the Child Welfare Department as managing conservator with authority to place such child temporarily in the home of a suitable family.

On December 29,1972 Kaye McCall, Child Welfare Worker of Hutchinson County filed petition alleging Shawn Jerome Herd “dependent on the public for support * * * living with a vicious and disreputable person, and whose home by reason of neglect, cruelty or depravity on the part of its parent is an unfit place for such child * * * that because of the conditions under which said child is living and the imminent danger and peril that now exists to his health, welfare and safety, that unless an immediate order giving their custody to a suitable person and removing him from his present environment, irreparable harm and injury will result.” The petition prayed the child be adjudged a dependent child.

The trial court fixed January 9, 1973 as date for hearing.

On January 9,1973, Kaye McCall filed an amended petition for “Finding of Dependency and Neglect” alleging substantially as above, and in addition praying that pending hearing custody be given to a suitable person under supervision of the court.

The trial court on January 9, 1973, entered an order for any peace officer to take custody of the child and transfer him to the temporary custody of the Hutchinson County Child Welfare Department and set hearing for January 23, 1973.

On January 15,1973, J. D. Herd and wife June Herd intervened alleging they were the paternal grandparents of the minor; alleged the minor dependent and neglected; and prayed the court to award them permanent or temporary custody.

On January 29, 1973, the trial court entered an order identical to the January 9, 1973, order setting hearing for February 13, 1973.

On February 20, 1973, the trial court entered an order identical to the January 9, and February 13, 1973, orders setting hearing for March 20, 1973.

On March 22,1973, the trial court entered an order identical to the January 9, February 13, and February 20, 1973 orders, setting hearing on April 17, 1973.

Similar orders were entered by the trial court, placing custody of the child in Hutchinson County Child Welfare Department and setting hearing on the petition for September 25, 1974; October 17, 1974; and November 19, 1974.

Citation was served on Doneta M. Herd, the mother of the child, for the November 19, 1974 hearing, on November 4, 1974.

On November 12, 1974, Ray C. and Pearl Adams, maternal grandparents of the child, filed petition to adopt the child alleging the child was born September 9,1971; that the child had been in their home since January 23,1973, Doneta M. Herd the child’s mother joined in such petition, and filed affidavit relinquishing parental rights; stating the child’s father was dead; stating she joined in the Adams’ petition to adopt her son; and designating the Adams as suitable persons to serve as managing conservator of the child if her parental rights were terminated.

Such petition for adoption was filed under the same number as the petition alleging the child to be dependent and neglected.

The trial court appointed Johnny Wright of the Department of Public Welfare in Amarillo to investigate, and set hearing for January 20, 1975.

Trial was before the court on January 20, 1975 which rendered judgment: 1) Adjudging Shawn Jerome Herd a dependent child; 2)Denying appellants petition for adoption; and 3) Appointing the Child Welfare Department Managing Conservator of the child with authority to place him temporarily in custody of a suitable family. Appellants and the Herd grandparents were given right of reasonable visitation.

The trial court filed Findings of Fact and Conclusions of Law, summarized as follows:

Findings of Fact
1) Stipulations received that the child is dependent and neglected.
2) Kaye McCall of County Child Welfare testified the child was dependent and neglected on December 29 [1972].
3) Ray and Pearl Adams are husband and wife and live in Borger, Hutchinson County.
4) The Adams have lived in Hutchinson County 36 years, are 55 and 47 years old, and are in good health.
5) Shawn Jerome Herd is the Adams’ grandson, being their daughter’s son, and was born September 19,1972, at Borger.
6) The child has been in the care of the Adams since he was 2 months old, and was so at time of filing petition and at time of trial.
7) The Adams had been caring for the child and furnishing his necessities.
8) Ray Adams is a 35-year employee of Phillips Petroleum, employed as a senior operator, and is owner of a drive-in located at 207 Cedar, in Bor-ger.
9) Pearl Adams does not work outside the home, except at the drive-in.
10) The child is a healthy 3-year old boy; with teeth chipping off due to calcium deficiency, and have been recapped by Dr. Longnecker.
11) The home situation is mutual love between the child and the Adams.
12) The Adams were cooperative with the investigator ordered by the court to make a social study which social study is made a part of the record.
13) The Adams asked the child’s name be changed to Adams.
14) The Adams experienced upset in the past 2 years with their daughter, the child’s mother, who in their opinion, is not a fit and proper person.
15) The Adams’ home is occupied by them, Shawn Jerome Herd, a 4-month old baby, and the 13-year old son of the Adams.
16) The Adams are not suitable adoptive parents.
17) Shawn Jerome Herd’s best interest is not reflected by the testimony by being in the custody of the Adams.
18) The Adams engaged in conspiracy to prevent service of court order, ordering immediate custody of the child, by secreting the child from the officers and Child Welfare Department.
19) Ray Adams has no memory of threatening and using abusive language toward a Child Welfare Worker, but remembers apologizing for same.
20) Pearl Adams remembers the threats and abusive language of Ray Adams.
21) The social study contains laudatory recommendation of the Adams by the references furnished by them.
22) The social study does not recommend the Adams as proper adoptive parents and granting the adoption would not be in the best interest of the child.
23) Intervenors Herd are paternal grandparents of the child and live in Skel-lytown.
24) J. D. Herd has worked for Skelly Oil for 24 years, and June Herd is employed by Cabot Corporation of Pam-pa.
25) Intervenors’ home is a 3-bedroom carpeted house, 1300 square feet, occupied by intervenors only.
26) J. D. Herd’s health is good except for gout and hearing difficulties.
Conclusions of Law
1) The parental rights of the child’s only living parent are terminated.
2) The court has jurisdiction.
3) The Adams are not proper adoptive parents.
4) The adoption of the child by the Adams would not be in the child’s best interest.
5) The petition for adoption should be denied.
6) Removal of the child from the Adams’ home is in the child’s best interest.
7) An order appointing managing conservator is necessary for the child’s welfare.

Appellants appeal on 30 points which we summarize into 3 basic contentions:

Contention 1. Points 1 thru 6 assert there is no evidence or insufficient evidence the child was dependent on January 20, 1975, or for any material period prior thereto; and that the trial court erred in accepting stipulations that the child was dependent and neglected.

The record conclusively shows that the child was not a dependent and neglected child on January 20,1975, or at any time during the previous 2 years. In fact the trial court found that the child had been in the care of appellants since he was 2-months old; that appellants had been caring for the child and furnishing his necessities; that the child is a healthy 3-year old boy; and that the home situation reflects mutual love between the child and appellants.

An adjudication that a child is dependent and neglected may not be based solely on conditions which existed in the distant past but no longer exists. Hendricks v. Curry, S.Ct., Tex., 401 S.W.2d 796; Hogan v. Roop, CCA, NWH, Tex.Civ.App., 500 S.W.2d 936.

But appellants stipulated that the child was a dependent and neglected child, which stipulation is totally contrary to the undisputed record.

Contention 2. Points 7 thru 19 are le-velled at that portion of the judgment appointing the Child Welfare Department as managing conservator of the child with authority to place the child in the home of a suitable family. Such points assert among other matters that Finding 17 that the child’s best interest is not being in custody of the Adams, and Conclusion 6 that removal of the child from the Adams’ home is to his best interest, are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

The Adams are the only persons at this time who seek to adopt the child. They are the maternal grandparents and have had custody of the 3-year old child since he was 2 months old. The child’s father is dead and the mother designated the Adams to be conservators and they were appointed temporary conservators by the trial court. The record disclosed that the Adams are good people; Mr. Adams has worked 35 years for Phillips Petroleum; the Adams’ neighbors give them laudatory recommendation; they are Church members. Mr. Adams became upset at the efforts of the Welfare Department to take his grandson and said and did things he should not have done. But he apologized almost immediately. The investigator’s report questioned their reputation, but there is insufficient evidence in the record to substantiate this. And the investigator’s report recommended placing the child outside the Adams’ home. There is insufficient evidence to sustain such recommendation.

Contention 3. Points 20 thru 30 are le-velled at that portion of the judgment denying the Adams’ petition for adoption. Such points assert among other matters that Finding 16 that the Adams are not suitable adoptive parents; and Conclusions 4 and 5 that the adoption of the child by the Adams would not be in the child’s best interest and should be denied, are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Our recitation under Contention 2 is applicable here. The record as a whole reflects that the Adams are stable citizens; are the only people disclosed by the record desiring to adopt the child; and are the child’s maternal grandparents.

We sustain Contentions 2 and 3 supra.

From the record as a whole we hold that the finding and conclusion that removal of the child from the Adams’ home is for his best interest; and the finding and con-elusions that the adoption of the child by the Adams is not in the child’s best interest; are so against the great weight and preponderance of the evidence as to be wrong and manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Moreover from the record as a whole we believe a remand is in the interest of justice. Scott v. Liebman, S.Ct., Tex., 404 S.W.2d 288.

Upon retrial appellants should have the right to withdraw their stipulation that the child is dependent and neglected, if they so desire.

Reversed and remanded.

      . The dependent and neglected child proceedings were filed prior to the Repeal of Articles 2330-2337 V.A.T.S.; while the adoption petition noticed later was filed after the adoption of the Family Code.


author: CATINNA, Commissioner.

text:
    Robert CARNAHAN, Appellant, v. James R. YOCOM, Commissioner, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 27, 1975.
    R. Cletus Maride, Manchester, for appellant.
    William Gadd, Dept, of Labor, Frankfort, for appellees.
   CATINNA, Commissioner.

The Workmen’s Compensation Board, upon a determination that Robert Carnahan was afflicted with pneumoconiosis, awarded him total and permanent disability benefits adjudging that such benefits be paid by the Special Fund. Upon the appeal of the Special Fund to the Clay Circuit Court, the trial judge, on motion of the Special Fund, entered a default judgment in conformity with the pleadings of the Fund and remanded the case to the Workmen’s Compensation Board for proceedings consistent with the Fund’s motion to reopen and the taking of proof.

Carnahan appeals from this default judgment, claiming that:

“I. The trial court erred in granting a default judgment in an appeal of an order of the Workmen’s Compensation Board;
II. In an appeal to circuit court from an order of the Workmen’s Compensation Board it is not necessary to file an answer under KRS 342.285(2);
III. It was an abuse of discretion to grant a default judgment where a motion to dismiss and an answer had been tendered shortly after the expiration of the fifteen day time period under KRS 342.285(2).”

The claim that the granting of a default judgment was not permitted under CR 55.01 in that the Special Fund, in prosecuting its appeal, did not seek affirmative relief is without merit. Common sense tells us that when a party, by appeal or otherwise, seeks relief from a judgment requiring it to pay money the relief sought is definitely affirmative.

The question regarding the necessity of an answer in workmen’s compensation appeals and the granting of a default where a motion to dismiss for failure to state a cause is pending requires that the proceedings before the Clay Circuit Court be detailed in chronological order.

On January 26, 1974, the Special Fund filed its “petition for review” asserting as one ground for reversal that the award had been procured by fraud on the part of the complainant. The petition for review asked that the court set aside the prior award to the claimant and the order of the Board denying its motion to reopen because of a mistake and/or fraud. Finally, the Special Fund asked that the court remand the action to the Board for proceedings consistent with its motion to reopen and the taking of proof. A summons was issued and the claimant properly served.

The petition for review, as filed by the Special Fund, complied with KRS 342.285 in all respects other than the fact that the clerk, in issuing the summons, made it returnable in twenty days instead of fifteen days. KRS 342.285(2) provides:

“The petition shall state fully the grounds upon which a review is sought, and assign all errors relied on. Summons shall issue upon the petition directing the adverse party to file answer within fifteen (15) days after service thereof and directing the board to send its entire original record, properly bound, * *
(Emphasis ours.)

This section of the statute specifically requires the issuance of a summons directing the adverse party to file an answer. No answer was tendered prior to the Special Fund’s motion for a default judgment. On February 21, 1974, Carnahan filed his motion to dismiss the petition for review on the ground that it did not state a claim upon which relief could be granted. Although there was a certificate of service on the motion, there was no notice concerning the date when the motion to dismiss would be brought on for hearing before the court.

On April 3, 1974, the Special Fund filed a motion that it be permitted to submit a brief, which brief was filed. Carnahan did not file a response or take any action on this motion, nor did he tender or offer to file a responsive brief. On May 27, 1974, the Special Fund filed a motion asking that a default judgment be entered. This motion was served on the claimant on May 22, 1974, and was noticed for a hearing before the court on May 29, 1974. On May 29, 1974, Carnahan filed a response to the motion. He asserted that the summons had been improperly issued, that the motion for default judgment had been improperly drawn, that it was not necessary that an answer be filed, and that a motion to dismiss had been filed on February 21, 1974. However, no effort was made to renew the motion to dismiss or seek a ruling on the part of the court.

On June 14, 1974, the Special Fund filed its memorandum of authorities on its motion. On June 17, 1974, Carnahan filed a memorandum of authorities in opposition to the Fund’s motion and at the same time tendered an answer. The tendered answer did not seek to renew the previously filed motion to dismiss for failure to state a claim, nor in any way seek a hearing upon the motion.

On August 1,1974, the Clay Circuit Court entered a default judgment “in conformity with the pleadings in this case and the case remanded to the Kentucky Workmen’s Compensation Board for proceedings consistent with the motion to reopen and the taking of proof.”

Carnahan seeks to avoid a default by asserting that it was not mandatory that he file an answer in the proceedings before the Clay Circuit Court. Reliance is placed upon our opinions in Muncy v. Muncy, 242 Ky. 190, 45 S.W.2d 1034 (1932); State Highway Commission v. Westerfield, 257 Ky. 274, 77 S.W.2d 951 (1934); Glogora Coal Company v. Boyd, 293 Ky. 610, 169 S.W.2d 816 (1943); and Frazier v. Kentucky Jellico Coal Company, 296 Ky. 777, 178 S.W.2d 601 (1944). In these cases, all of which were decided prior to the adoption of our present Rules of Civil Procedure, we held that an answer was not mandatory under certain particular circumstances. In Muncy we indicated that even though KRS 342.285(2) directed a party to file his answer the filing was not mandatory and the time limit did not apply except in cases where it was claimed that the order, decision, or award of the Board had been procured by fraud. It was further stated that unless the fraud or misconduct complained of was that of some person engaged in the administration of the act the case was to be heard on the record as certified, and no new or additional evidence might be introduced. See KRS 342.285(3).

In Frazier, it was erroneously stated that Muncy held that an answer was not required unless the petition for review alleged that the award had been obtained by the fraud or misconduct of some person engaged in the administration of the act.

State Highway Commission v. Wester-field, supra, held that an answer was not mandatory; however, this happened to be a case where there was no allegation of fraud in obtaining the award nor fraud on the part of any person charged with the administration of the act.

Glogora Coal Company merely reaffirmed the rule in State Highway Commission v. Westerfield.

The Rules of Civil Procedure which became effective on July 1, 1953, definitely require that an answer be filed. CR 7.01 states that there shall be a complaint and an answer, while CR 8.02 requires that a party shall state in short and plain terms his defenses to each claim asserted. Additionally, KRS 342.285(2) specifically requires that a summons shall issue upon the petition directing the adverse party to file an answer within fifteen days after service of the summons. There is no way to avoid the clear mandate of the Rules of Civil Procedure and of the statute. We now hold that a respondent named in a petition for review upon appeal from an order of the Workmen’s Compensation Board must file an answer within the time fixed by the statute.

So much of Muncy v. Muncy, 242 Ky. 190, 45 S.W.2d 1034 (1932); State Highway Commission v. Westerfield, 257 Ky. 274, 77 S.W.2d 951 (1934); Glogora Coal Company v. Boyd, 293 Ky. 610, 169 S.W.2d 816 (1943); and Frazier v. Kentucky Jellico Coal Company, 296 Ky. 777, 178 S.W.2d 601 (1944), as holds an answer not to be necessary upon an appeal in a workmen’s compensation proceeding is hereby overruled.

Carnahan asserts that even though it might be held that he was required to file an answer it was not due prior to a ruling on his motion to dismiss which tolled the running of the time within which he was required to file the answer. CR 12.01 and CR 12.02. While it may be true that the filing of a CR 12.02 motion tolls the running of time within which to file an answer, this court is of the opinion that the movant must exhibit his good faith by seeking to bring the motion on for an early hearing and ruling. The Carnahan motion did not assign a date for hearing before the court. The Rules of Civil Procedure are designed to provide for a speedy disposition of proceedings in court. For example, CR 6.04 provides in part:

“A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing, unless a specific period is fixed by these Rules or by order of the court. * *

Here, the filing of the motion and the notice of the hearing are so clearly intertwined that one can be led to but one conclusion—a proper motion would require that it be accompanied by a notice of hearing, or that such notice be given within a reasonable time after its service.

Clay, in his comments on CR 6.04, Comment 2, page 112, said:

“The apparent intent of the Rule is that a notice of hearing of motions required to be served should be given in all cases as a part of the motion procedure. Since one of the underlying purposes of the Rules is to expedite the disposition of cases, and motions for delay purposes should be condemned, a speedy hearing on all motions is imperative. Thus it might be argued that a party has not properly made a motion by simply serving and filing it without giving notice of some hearing date. The better uniform practice would be to serve such required notice with all motions.
Rule 78 and KRS 23.125 direct circuit courts to establish by rule a regular day or days certain for the hearing of motions. Notice of motions which attack a pleading or do not require immediate action by the court should, if the time is reasonable, designate by date the next motion or rule day which the courts are so required to establish.”

We doubt if there could be a hard and fast rule to the effect that a motion without a notice is no motion at all. However, in this case, Carnahan made no effort to obtain a hearing or ruling on his motion to dismiss for failure to state a cause of action prior to the Special Fund’s motion for a default judgment. Pleadings filed or tendered after the filing of a motion for default judgment are late, and this delinquent status will not be changed by the fact that the motion to dismiss is pending for, in fact, a motion of the character filed here is, in effect, “no motion at all.”

Carnahan argues that regardless of the present status of the rule governing the filing of an answer the granting of a default judgment was an abuse of discretion where there was no showing of fraud.

We have carefully examined the record and find throughout the entire proceeding substantial indications of possible fraud and collusion. Under these circumstances, we are unable to classify as arbitrary or as an abuse of discretion the action of the trial court in remanding the proceeding to the Board for reconsideration of the Special Fund’s motion to reopen on the ground of “mistake and/or fraud” and hear all evidence that may be introduced in support of or in opposition to the motion.

The judgment is affirmed.

All concur.


author: STERNBERG, Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, Appellant, v. David Dominic TUEMLER, Appellee.
    Court of Appeals of Kentucky.
    June 27, 1975.
    Mary Jo Arterberry, Frankfort, for appellant.
    R. Barry Wehrman, Wehrman & Wehr-man, Covington, for appellee.
   STERNBERG, Justice.

This is an appeal from a Kenton Circuit Court judgment which rescinded an order by the Department of Public Safety suspending the motor vehicle operator’s license of appellee for refusing to take a breathalyzer test. The appeal raises the question of whether the arresting police officer made a proper request for appellee to take the breathalyzer test, including an adequate warning of the effect of his refusal, as required by KRS 186.565.

The record reveals that on August 10, 1972, Police Officer Seifried observed a speeding vehicle and stopped it. Appellee, the driver of the vehicle, had bloodshot eyes and slurred speech, was unable to walk steadily, and had an odor of alcoholic beverages. Appellee was arrested on three charges, one of which was driving while under the influence of intoxicating liquor. KRS 189.520.

The police officer requested appellee to take a breathalyzer test. He refused, saying he did not wish to put any unsanitary paraphernalia in his mouth. The officer claimed to have then explained that a new mouthpiece was inserted each time the test was given. Appellee denied that such an explanation was made. Officer Seifried again requested appellee to take the test, this time advising him “that upon another refusal (the officer) would be required to submit an affidavit to the Department of Public Safety.” The appellee again refused. The officer testified, on direct examination, that on the way to the police station he again asked appellee to take the test, warning him that his refusal would result in his being suspended from driving for a period of up to six months. On cross-examination, Officer Seifried testified that ap-pellee was not told that he would automatically lose his license but was warned that the chances were that he would. Appellee continued to refuse to take the test each time a request was made.

Appellee admitted that the officer requested several times that he take the test, but he denied that the officer ever mentioned the consequences of his refusal. He admitted that he refused all requests. Cf. Commonwealth, Department of Public Safety v. Hayden, Ky., 484 S.W.2d 97 (1972).

Following the administrative hearing pursuant to KRS 186.565(4), the commissioner concluded that a proper request and a warning were made. This conclusion is supported by substantial evidence and is neither arbitrary nor capricious. See KRS 186.565(5); Commonwealth, Department of Public Safety, v. Cheek, Ky., 451 S.W.2d 394 (1970).

Appellant raises the question of whether the warning of the consequences of refusing to take the test was sufficient to comply with requirements of KRS 186.565. This appears to be the first time that this particular issue has been raised before this court.

Officer Seifried warned appellee of the consequences saying that if he refused to take the test the officer would submit an affidavit and “chances are he (appellee) would lose his driver’s license.” Appellee argues that this warning was inadequate. Clearly, this statement substantially apprised appellee of the consequences of refusing to take the test. See Craig v. Commonwealth, Department of Public Safety, Ky., 471 S.W.2d 11 (1971).

Appellee argues the officer should have pointed out that the revocation by the Department of Public Safety is “automatic”. However, revocation is not necessarily “automatic”, but is subject to an administrative hearing such as the one given appel-lee.

Since the appellee refused to take a breathalyzer test, after being sufficiently warned of the consequences of his refusal, the department’s decision to revoke his operator’s license pursuant to KRS 186.565 should be upheld.

The judgment of the Kenton Circuit Court rescinding the revocation is reversed, and the case is remanded to the circuit court for the entry of a judgment upholding the action of the Department of Public Safety.

All concur.


author: PER CURIAM.

text:
    In re ADVISORY OPINION OF KENTUCKY BAR ASSOCIATION.
    Court of Appeals of Kentucky.
    Oct. 25, 1974.
    Joseph W. Justice, Fred B. Red wine, Pikeville, for appellant.
    Leslie Whitmer, Director, Ky. Bar Ass’n., Frankfort, for appellee.

      J. Bruce Miller, Louisville, John Paul Runyon, Commonwealth Atty., Pikeville, amicus curiae.
   PER CURIAM.

This is a request by Herbert Deskins, Jr., the duly elected county attorney of Pike County, for a review of an opinion, No. E-66, from the Kentucky Bar Association. That opinion declares that a conflict of interest exists when a county attorney practices before the Workmen’s Compensation board as a result of the possible duties imposed upon him by KRS 342.425. KRS 342.425 enables the Board to be represented by the Commonwealth or county attorney of the particular jurisdiction in an action against the Board if the Board so requests such representation. The Bar Association maintains that this potential conflict of interest requires that county attorneys be prohibited from practicing before the Board.

Amicus curiae briefs were filed by the Kentucky County Attorneys’ Association and the Kentucky Commonwealth Attorneys’ Association in support of Deskin’s position.

Canon 6 of the Canon of Professional Ethics of the American Bar Association describes the standards to be followed by attorneys to eliminate the possibility of a conflict arising. The court has defined a conflict of interest as being:

“Within the meaning of this canon, a lawyer represents conflicting interest when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.”

The statement above came from In re Advisory Opinion of Kentucky State Bar Association, Ky., 361 S.W.2d 111 (1962). In that case the Bar said it would be unethical for a firm to retain a client who had a claim against the city when one of the firm’s members was elected city prosecutor. We held in that case there was not a conflict of interest.

To have a conflict of interest there must be conflicting attorney-client relationships in existence at the time, 31 A.L. R.3d 725. As can be seen, the chance of such a relationship coming into existence is quite remote under KRS 342.425, which says:

“Upon the request of the board, the attorney general, or, under his direction, the commonwealth’s attorney or county attorney of any county, shall institute and prosecute the necessary actions or proceedings for the enforcement of any of the provisions of this chapter arising within his jurisdiction, and shall defend in like manner all actions or proceedings brought against the board or the members thereof in their official capacity.”

The statute creates the possibility that any of three people may be called upon to represent the Board in actions against it if it so desires. Above all else, KRS 342.425 is designed to afford a source of legal representation for the Board when the Board itself is the real party in interest. It does not contemplate or encompass the normal situation where counsel for a private party goes before the Board to seek an award for a work-related injury or disease.

Since the Board acts in a neutral capacity in adjudicating claims before it, surely the Board would not favor a county attorney’s client simply because of the remote possibility that that county attorney might some day be called upon to represent the Board.

We conclude that in the normal situation of presenting a claim before the Board, a county attorney is guilty of no conflict of interest simply because he might some day be called upon to represent the Board.

The opinion of the Board of Governors of the Kentucky Bar Association is set aside and this opinion is substituted therefore.

All concur except STEINFELD, J., who dissents.


author: VANCE, Commissioner. REED, Chief Justice

text:
    Bill SANDERSON et al., Appellants, v. Vernon Kelly HUGHES, Appellee.
    No. 74-674.
    Court of Appeals of Kentucky.
    June 27, 1975.
    Steven L. West, Hubbard, Null & West, Mayfield, for appellants.
    James B. Brien, Jr., Neely, Reed & Brien, Mayfield, for appellee.
   VANCE, Commissioner.

The appellants executed a release whereby Jesse Ray Council and the Ellis Trucking Company were released from all claims, demands, actions and causes of action growing out of bodily injuries and property damages resulting from a motor-vehicle accident. The release did not expressly reserve any right as to other possible tort-feasors. The release did not contain the broad language found in many such instruments which expressly releases the named tort-feasors, together with any and all other persons, from liability. The release contained a statement that it was in full and complete settlement of a liability claimed and denied for the purpose of avoiding litigation.

Subsequently the appellants instituted this action against the appellee for damages which arose out of the same motor-vehicle accident. The appellee’s answer set out the release to Council and the Ellis Trucking Company as a bar to the action, and appel-lee filed a motion for summary judgment which was sustained.

Appellants concede the general rule of law in Kentucky that a release of one joint or concurring tort-feasor serves to release them all unless on its face it can be fairly interpreted as reserving the claimant’s rights against other tort-feasors. Kingins v. Hurt, Ky., 344 S.W.2d 811 (1961).

It is contended however that Biven v. Charlie’s Hobby Shop, Ky., 500 S.W.2d 597 (1973), modified the rule announced in Kingins v. Hurt, supra.

Biven involved the settlement of a claim by means of the execution of a loan receipt which provided that the loan was repayable to the insurer only to the extent and in the event that the claimant should make a recovery from other persons causing or liable for the accident. We held that this instrument clearly, on its face, envisioned proceedings against other tort-feasors and reserved the right to do so.

Biven also contained this language:

“* * * Further, the recipients of the release are each specifically named in the loan receipt and it at no point contains the broad language found in so many releases to the effect that named tort-feasors, together with any and all other persons, etc., are released.”

The language above quoted was used in Biven as an additional factor to support the conclusion previously reached in the opinion that the release in question in that case preserved the claimant’s right against the other tort-feasors, and it is not authority for the position contended by the appellants that the absence of the broad language is evidence by implication of a reservation of rights. We do not consider the statement in the release that it is a settlement of a claim as opposed to all claims to reserve by implication the rights of claimants to proceed against other tort-feasors.

It is true, as appellants claim, that the release herein does not expressly release all other claims, but there is nothing contained in the instrument which can reasonably be interpreted to preserve a right of action against other tort-feasors.

The judgment is affirmed.

All concur except REED, C. J., who dissents.

REED, Chief Justice

(dissenting).

The majority opinion follows the present rule in Kentucky as it was evolved and stated in Kingins v. Hurt, Ky., 344 S.W.2d 811 (1961). I would prospectively change the rule announced in that case for two reasons: First, the result obtained by application of the rule is questionable, and, second, subsequent decisions concerning the relationship of joint tort-feasors have thrown the result more out of harmony in that area of tort law.

Where concurrent wrongdoers have caused the same loss and are regarded as “joint tort-feasors” for the sole reason that they can be joined, to regard the release of one for less than full satisfaction of the damage caused, to also release the other is harsh in the light of current realities. This rule compels the plaintiff either to forego any opportunity of obtaining what he can get from one defendant without suit or give up his entire claim against the other without full compensation. The fear of double recovery is meaningless since the amount paid under the release must be credited to the second tort-feasor in any case. The argument that the plaintiff should not be permitted to make piecemeal collections from different defendants is pointless when he is allowed to do precisely that after judgment. The Kingins rule has the virtue of eliminating swearing matches concerning what was understood in the face of a writing. Releases, however, are usually signed by plaintiffs ignorant of the law and without legal advice. See Prosser, Handbook of the Law of Torts, Sec. 49, 301-305.

Orr v. Coleman, Ky., 455 S.W.2d 59 (1970), as explicated in Cox v. Cooper, Ky., 510 S.W.2d 530 (1974), wherein the question of the settling joint tort-feasor was considered in the aspect of a trial concerning the liability of the nonsettling tort-feasor, appears to me to confirm the dubious status of the Kingins rule. Since it is a rule of contract, I would be willing to hold prospectively that henceforth, where the release contains no mention of the effect on the liability of another wrongdoer, such non-mentioned wrongdoer should have the burden of showing that the amount paid' for the release constituted satisfaction of the plaintiff’s damage before he would be deemed protected by the instrument of release.


author: LAURANCE M. HYDE, Special Commissioner.

text:
    McBRIDE & SON BUILDERS, INC., a corporation, Plaintiff-Appellant, v. UNION ELECTRIC COMPANY, Defendant-Respondent, and Missouri Public Service Commission, Intervenor-Respondent.
    No. 58506.
    Supreme Court of Missouri, Division No. 1.
    Aug. 5, 1975.

      David G. Dempsey, Shifrin, Treiman, Bamburg & Dempsey, Clayton, for plaintiff-appellant.
    Leland B. Curtis, Commission Counsel, David L. Smith, Asst. Commission Counsel, Jefferson City, for Missouri Public Service Commission.
   LAURANCE M. HYDE, Special Commissioner.

Action for declaratory judgment by plaintiff against the Union Electric Company to require it to pay certain allowances it had offered to make to plaintiff building all electric homes. The Missouri Public Service Commission intervened in the trial court and filed answer because it had prohibited Union Electric from making additional payments plaintiff claimed it had a right to receive. The court found “in favor of the defendants and against the plaintiff”; and plaintiff has appealed. We affirm.

Plaintiff, building homes in St. Louis County, alleged it had on January 7, 1971 entered into an agreement with defendant Union Electric Company by which Union Electric agreed to pay plaintiff certain promotional allowances for the construction of 258 homes and that Union Electric made the payments for 54 homes built in 1971 but refused to pay for any others on the ground that General Order No. 51 of the Public Service Commission prohibited such payments. Plaintiff sought a judgment declaring Union Electric was obligated to pay the stated allowances for 204 additional houses.

Plaintiff alleged that the Commission’s General Order No. 51 was illegal and void being contrary to the provisions of Art. I, § 10 U.S.Const. and Art. I, § 18 Mo. Const., V.A.M.S. and denying plaintiff due process of law in violation of the 14th Amendment to U.S.Const. and Art. I, § 10 Mo.Const. In the trial court, Union Electric admitted liability to plaintiff under its contract but stated as a defense that it was prohibited from making payments by General Order No. 51. Defendant, Union Electric, has filed no brief; but the Public Service Commission has filed a respondent’s brief. However, see Union Electric Go. v. Clark, 511 S.W.2d 822 (Mo.1974), holding a utility could not bring a declaratory judgment action for review of an order of the Commission as Union Electric attempted to do.

Plaintiff claims on both statutory and constitutional grounds that the Commission could not adopt General Order No. 51 without a hearing, saying its effect was to deprive both plaintiff and Union Electric of valuable property rights citing Blydenburg v. David, 413 S.W.2d 284 (Mo. banc 1967); State v. Goodbar, 297 S.W.2d 525, 528[5] (Mo.1957); Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938); Parker v. Lester, 227 F.2d 708, 716 (9th Cir.1955). Plaintiff also cites Art. V, § 22 Mo.Const. saying the right to judicial review of all final decisions of administrative agencies is a constitutional right. The Commission says plaintiff’s brief is not based on Exhibit C which later amended original General Order No. 51 and included a new Section 10 to conform to a stay order issued by the Circuit Court of Cole County. This amended order was adopted after Union Electric had filed an Application for Rehearing, Reconsideration or Amendment of the Original Order No. 51 and the Kansas City Power and Light Company had filed for a writ of review in Circuit Court of Cole County.

Exhibit C was adopted September 15, 1972 (the original order was adopted June 28, 1971). Union Electric and plaintiff herein had on November 5, 1971 filed with the Commission a joint application asking approval of the Commission to fulfill commitments for promotional practices under their contract made before the original 1971 order of the Commission. The Commission authorized such payments to plaintiff for the 54 homes plaintiff had built in 1971.

As a constitutional ground for reversal plaintiff also contends that it had vested rights under its contract with Union Electric which the State could not impair, citing Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1932). In that case it was held that the repeal of a state constitutional provision making corporate directors responsible for an officer’s defalcations did not affect the right of a creditor in respect to a claim arising before the repeal. The court said: “[Ujpon the facts here disclosed, a contractual obligation arose; and the right to enforce it, having become vested, comes within the protection of both the contract impairment clause in art. 1, § 10, and the due process of law clause in the Fourteenth Amendment, of the federal Constitution.” However, in that case the defalcations involved had occurred before the repeal of the constitutional provision relied on, the repeal being while the case was in the California Supreme Court on appeal. As we have noted, the Commission permitted plaintiff to be paid the agreed allowances on all the homes it had built in 1971, the year the original order prohibiting such practices was made.

Plaintiff’s main contentions are on statutory grounds, namely that General Order No. 51 was a nullity because it was adopted without a hearing which plaintiff claims was required by subsection 5 of § 393.140, RSMo 1969, Y.A.M.S. Plaintiff cites cases not involving the Public Service Commission such as Liechty v. Kansas City Bridge Co., 162 S.W.2d 275 (Mo.1942); Retirement Board v. Kansas City, 224 S.W.2d 623 (Mo.App.1949); Haake v. Union Bank & Trust Co., 54 S.W.2d 459 (Mo.App.1932); McCoy v. Briegel, 305 S.W.2d 29 (Mo.App.1957); State v. Goodbar, 297 S.W.2d 525 (Mo.1957); Walker v. Huddleston, 261 S.W.2d 502 (Mo.App.1953). Plaintiff cites these cases as holding a judgment is void if the court rendering it did not have jurisdiction of the subject matter. Plaintiff’s argument is as follows: “Subsection 11 does not require a notice or hearing because the rates, regulations and contracts of the various utilities are established thereunder by simply filing them with the Commission and publication thereof, subject to the power of the Commission under subsection 5 to declare such rates, regulations or contracts unjust, unreasonable or discriminatory. In other words, under subsection 11 the primary function of the Commission is administrative, i. e., to receive and file the tariffs prepared by the utility companies. The rule making power granted by subsection 11 is, therefore, necessarily limited to the adoption of such regulations as will assure the proper filing of tariffs by the utility companies in a form approved by the Commission, the timely and proper publication of notice thereof, and such other regulations that will assist the Commission in establishing whether any utility thereafter has failed to follow the tariffs so established. But if the Commission makes an initial determination that a proposed rate, regulation, or contract of a utility company is unjust, unreasonable or discriminatory, it must then assume the quasi-judicial powers granted it by subsection 5 of the statute by holding a public hearing, giving notice thereof to all parties concerned, and making a formal determination on a record which is subject to judicial review. Thus construed, subsections 5 and 11 are not repugnant or redundant but mutually complementary thereby giving full force and effect to both.” However, our conclusion for the reasons we state is that the Commission did have jurisdiction to make General Order No. 51 under which Union Electric on joint application with plaintiff got authority to make payments on the houses plaintiff had built in 1971.

Section 393.140(1) provides for the Commission to “[h]ave general supervision of all gas corporations, electrical corporations, water corporations and sewer corporations.” Subsections (2), (3) and (4) state powers of the Commission to investigate, fix standards and prescribe methods of keeping records. Subsection (5) provides for the Commission to “keep informed as to the methods, practices, regulations and property employed” by persons and corporations under its jurisdiction. It then provides if the Commission “shall be of the opinion, after a hearing had upon its own motion or upon complaint, that the rates or charges or the acts or regulations of any such persons or corporations are unjust, unreasonable, unjustly discriminatory or unduly preferential or in any wise in violation of any provision of law” then the Commission shall prescribe the rates, service and acts to be done.

Subsection (11) of § 393.140 requires all electrical corporations to file with the Commission its rates and charges, its forms of contract, its rules and regulations relating to rates and all general privileges and facilities, which shall not be changed without notice to the Commission. It also prohibits any corporation to “refund or remit in any manner or by any device any portion of the rates or charges” specified. It further gives the Commission “power to establish such rules and regulations, to carry into effect the provisions of this subdivision, as it may deem necessary, and to modify and amend such rules or regulations from time to time.” There is no requirement in subsection (11) for a hearing before adoption of such rules and regulations by the Commission. It would seem to be a reasonable interpretation of subsection (5) that it is primarily intended to authorize determination of improper conduct such as charging unjust, unreasonable or unlawful rates or engaging in discriminatory conduct, while subsection (11) is primarily concerned with rule making, and prohibiting any form of contract or agreement except such as are regularly and uniformly extended to all persons and corporations under like circumstances. The Commission has authority to make rules for that purpose. It is said: “Most general administrative procedure legislation avoids the requirement of hearings for rule making.” Davis, Administrative Law Treatise, § 6.04.

As previously noted, on joint application with Union Electric plaintiff received the agreed payments on all the homes it had built in 1971. Union Electric did not appeal from the order of the Commission adopting original General Order No. 51 in 1971, or from the order adopting modified General Order No. 51 in 1972 or the ruling of the Circuit Court of Cole County that the General Order “was lawfully and properly adopted and that said General Order No. 51 is not unlawful or arbitrary." Instead, as above stated, Union Electric brought a declaratory judgment action which as noted this court held it could not maintain. Plaintiff also by this action sought a declaratory judgment against Union Electric declaring Union Electric was obligated to make the agreed payments “as to the balance of two hundred four (204) homes to be constructed by plaintiff.” (Emphasis ours.)

The Commission makes the further contentions with which we agree: First, this declaratory judgment action (as did the one brought by Union Electric) constitutes a collateral attack on General Order No. 51, in violation of § 386.550, RSMo 1969, V.A.M.S., which states: “In all collateral actions or proceedings the orders and decisions of the commission which have become final shall be conclusive.” As noted there was no appeal from the Commission’s order adopting General Order No. 51. Instead Union Electric and plaintiff made a joint application for payments to be made, which was granted for all the houses built in 1971.

Second: General Order No. 51 was promulgated in total compliance with statutory requisites and plaintiff was not denied due process by its enactment. The Commission’s order of January 14, 1971 which first proposed adoption of General Order No. 51 authorized each gas and electric utility and all other interested parties to present written comments pertaining to said proposed rule within 90 days. Instead plaintiff as well as Union Electric have sought to nullify it by declaratory judgment actions.

Third: In State ex rel. Cirese v. Ridge, 138 S.W.2d 1012, 1015 (Mo. banc 1940), we said: “[W]e have consistently adhered to the rule that matters within the jurisdiction of the commission must first be determined by it, in every instance, before the courts will adjudge any phase of the controversy.” Plaintiff made no application to the Commission for a variance from General Order No. 51 but sought payments authorized by it.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by LAURANCE M. HYDE, Special Commissioner, is adopted as the opinion of the court.

HOLMAN, P. J., and SEILER and BARDGETT, JJ., concur.

DONNELLY, J., not a member of Division when cause was submitted.