text:
    Larry TOWNSEND, Appellant, v. Jack COLLARD and Guardian Title Company, Appellees.
    No. 18038.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 28, 1978.
    Lane, Ray & Getchell and Dan W. Lane, Fort Worth, for appellant.

      Law Offices of William C. Meier and Wallace T. Keller, Euless, for appellees.
   OPINION

SPURLOCK, Justice.

An employee appeals an award of attorney’s fees pursuant to a judgment enforcing a covenant not to compete in his employment contract. He claims the trial court erred as a matter of law in making the award pursuant to the attorney’s fee provision of the contract because the employer failed to prove the reasonableness of the terms of the covenant.

We affirm.

Larry Townsend prosecutes this appeal without a statement of facts. Appellees state in their brief that Townsend’s statements of the nature and facts of the case in his brief are incorrect and incomplete. It appears that Townsend was employed under an employment contract by Guardian Title Company. Although Townsend’s original petition states that a copy of the contract is attached as exhibit “A”, it does not appear there in the transcript. It does appear in the transcript apparently attached to Guardian’s counterclaim. There is no indication in the record this copy was admitted into evidence. In absence of a statement of facts or agreement of the parties, we cannot be certain this was the contract proved.

Both parties state that Townsend was employed by appellees in Johnson and Tar-rant counties of Texas. Townsend terminated his employment and accepted employment with a competitor of Guardian. Townsend brought this action seeking rescission of his contract with Guardian, or a declaration that it is unenforceable. Appel-lees counterclaimed for enforcement of the covenant not to compete. The trial court, based on the jury’s answers to special issues, rendered a judgment enjoining Townsend from competing with appellees and awarding appellees attorney’s fees. The jury’s answers to the special issues are recited in the judgment included in the record. We do not know what the special issues were because the court’s charge was not included in the transcript.

Townsend limits his appeal pursuant to Rule 353 to this point of error:

“The trial court erred as a matter of law in awarding attorneys’ fees to the employer pursuant to an employment contract containing a restrictive covenant not to compete where the employer failed to prove the reasonableness of the terms of the restrictive covenant in the employment contract.”

Appellees claim since this point of error was not raised in Townsend’s motion for new trial, he has waived his point of error and has failed to properly preserve it on appeal. Because this case was tried prior to the 1978 amendment to Rule 324 *, a motion for new trial may be required to raise this point on appeal. Townsend filed a motion for new trial which was overruled by operation of law. The only complaint therein relating to attorney’s fees is as follows:

“The Court erred in submitting Special Issue Number 23 over the objections of Plaintiff because Defendant did not plead any right of recovery for attorney’s fees, and as a matter of law is not entitled to recover any attorney’s fees.”

Appellees claim Townsend’s complaint in his motion for new trial is insufficient to predicate his point on appeal because the complaints differ. Since under our facts inclusion of the point in a motion for new trial is a prerequisite to appeal, it is our opinion that Townsend cannot raise his point of error for the first time on appeal. Also special issue number 23 is not before us because it was not included in the transcript.

The purpose of a motion for new trial is to give the trial judge the opportunity to cure any errors by granting a new trial. Rule 322 * requires that complaints in a motion for new trial be made with sufficient specificity to enable the trial judge to clearly understand what is alleged as error. He should not have to speculate, but should be directed to the matters upon which he is called to rule.

Townsend’s complaint directed the trial court to the pleadings and whether appel-lees were entitled to recover any fees as a matter of law. In the context of a complaint about the right to attorney’s fees, as far as we can determine it without a statement of facts, the complaint, in our opinion directed the judge to determine whether there was any pleading for recovery of attorney’s fees and whether any statutory or contractual provision authorized their recovery.

Upon careful consideration of Townsend’s point of error, we conclude it presents a no evidence question. He claims there is no evidence of reasonableness of the terms of the covenant not to compete and therefore the court erred as a matter of law in making the award. Had this been his complaint in his motion for new trial, it is our opinion that this would have directed the trial court to review the evidence on attorney’s fees. We do not believe Townsend’s complaint in his motion directed the trial court to review the evidence, since we have held it directed him only to review the pleadings. Therefore, he cannot raise his point of error for the first time on appeal.

Even if his point had been properly preserved, it would have been overruled. He appeals without a statement of facts. Ap-pellees state in their brief that the statement of the nature of the case and facts in Townsend’s brief is incorrect and incomplete. Neither party states that the only evidence on the agreement of the parties is the written contract, assuming it was admitted.

It is well settled that where there is no statement of facts, a reviewing court usually presumes there was evidence supporting the judgment. Thompson v. Republic Acceptance Corporation, 388 S.W.2d 404 (Tex.1965). Therefore, we must presume there is evidence supporting the award of attorney’s fees until the record reveals or the parties agree otherwise. We cannot presume a state of evidence exists which supports a contention of error. The record must reveal error, if any. Williamson v. Johnson, 492 S.W.2d 327 (Tex.Civ.App.—Tyler 1973, no writ).

Townsend’s position is that a statement of facts is unnecessary. He would have us compare the covenant not to compete with the judgment of the court. He claims because the covenant was not enforced as written, it therefore was unreasonable. We do not agree. The covenant not to compete in the copy of the contract attached to appellee’s counterclaim is as follows:

Employee covenants and agrees that if for any reason except the discharge of Employee without due cause, his employment with Employer terminates, he will not, within Two (2) years from the date of cessation or termination of employment, directly or indirectly, engage in or become associated with or employed by any individual, firm, corporation or other organization in competition with Employer in the business of insuring land titles in Tarrant or Johnson Counties, Texas, and further will not, directly or indirectly, for himself or on behalf of any person or business entity, solicit land title insurance business in Tarrant or Johnson Counties, Texas, of any type from any of Employer’s customers (determined as of the date of cessation in (sic) employment) for a period of Two (2) years from the date of cessation in (sic) employment. . . .
Employee covenants and agrees that upon termination of his employment with Employer for any reason, he will not in any way copy or otherwise depart with any information contained in Employer’s abstract and title record, title opinions, bookkeeping reports, customer lists and memoranda or materials and that he will not disclose any confidential information contained therein to any third parties whether such information came from Employer’s confidential records or from Employee’s personal memoranda or memory.

The judgment of the trial court provides in pertinent part:

It is therefore, ORDERED, ADJUDGED and DECREED that effective this date, LARRY TOWNSEND, for a period of two (2) years, from April 23, 1977, until and through April 23, 1979, be enjoined from:
A) With regard to Johnson County:
1. Engaging in direct or indirect competition with the Defendants and Cross-Plaintiffs in the solicitation and sale of title insurance policies in Johnson Gounty, Texas;
2. Contacting any of the customers of GUARDIAN TITLE COMPANY in Johnson County, Texas, concerning the land title insurance business and/or the business and financial affairs of GUARDIAN TITLE COMPANY:
3. Accepting employment from any other company or person engaged in the selling of title insurance policies or in the business in which Defendant and Cross-Plaintiff, GUARDIAN TITLE COMPANY, is engaged in Johnson County, Texas;
4. Having any contact with any agent, servant, or employee of Johnson County Title Company concerning the business or financial affairs of Johnson County Title Company;
5. Having any contact with any customer of GUARDIAN TITLE COMPANY and/or Johnson County Title Company concerning the business or financial affairs of GUARDIAN TITLE COMPANY and/or Johnson County Title Company;
6. Turning over to any person or company in competition with Defendant and Cross-Plaintiff, GUARDIAN TITLE COMPANY, any list of GUARDIAN TITLE COMPANY’S customers or information regarding the identity or location of GUARDIAN TITLE COMPANY’S customers obtained directly or indirectly from Plaintiff’s and Gross-Defendant’s, LARRY TOWNSEND, employment with GUARDIAN TITLE COMPANY, or from using any such information to solicit GUARDIAN TITLE COMPANY’S customers to discontinue buying title insurance from the GUARDIAN TITLE COMPANY:
7. Soliciting any of GUARDIAN TITLE COMPANY’S customers in Johnson County, Texas, to whom Plaintiff and Cross-Defendant, in his employment with GUARDIAN TITLE COMPANY, acquired knowledge of, to discontinue buying title insurance from GUARDIAN TITLE COMPANY:
8. Working in the law offices of Mike Rogers in Cleburne, Texas;
9. Working as an employee of Mike Rogers or any other person who is the owner of a title insurance business in Johnson County, in any capacity that would aid that person or that company in competing for title insurance business in that county;
10. Soliciting title' insurance in Johnson County for the benefit of any person or company.
B) With regard to Tarrant County:
1. Accepting any position of employment within the title insurance industry other than the position of real estate closer;
2. Conducting any closing on any real estate transaction other than those referred for closing to Townsend by Jack Rattikin, Jr., President of Rattikin Title Company, Charles Newman, Vice President of Rattikin Title Company, the Rattikin Title Company order department or other Rattikin Title Company closer, all of which closing orders having already been placed with Ratti-kin Title Company;
3. Being involved in any closing of real property for any individual or firm known to be a customer of Guardian Title Company or Johnson County Title Company by Larry Townsend, Jack Rattikin, Jr., President of Rattikin Title Company, or Charles Newman, Vice President of Rattikin Title Company;
4. Contacting any persons in Tarrant County for the purpose of soliciting title insurance business for any company writing title insurance business in Tarrant County, Texas;
5. Participating in or attending any industry function or related industry function in Tarrant County where purchasers of title insurance or prospective purchasers of title insurance are in attendance;
6. Placing his name in any public media as a person connected in any manner with the title insurance business in Tarrant County, Texas;
7. Discussing with any person the business of GUARDIAN TITLE COMPANY in Tarrant County, Texas;
8. Deal in any manner regarding title insurance on property located in Johnson County, Texas.

Comparing the covenant with the judgment we are of the opinion that the contract was enforced as written except the judgment allowed Townsend to be employed by another title company in Tarrant County only to conduct closings. Since this benefited Townsend he can hardly now allege that this sole variance between the covenant and its enforcement establishes that the covenant was unreasonable. Therefore, even if a statement of facts had revealed the only evidence of the employment contract was the proof of the copy in the transcript we still would have overruled his point of error.

Since appellant’s point of error was not properly raised we did not have to consider it. However, we have considered it and it is overruled.

The judgment of the trial court is affirmed.

       All references to Rules are to Tex.R.Civ.P.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    Houston F. WEAVER et ux., Appellants, v. The CITY OF WACO et al., Appellees.
    No. 5923.
    Court of Civil Appeals of Texas, Waco.
    Dec. 28, 1978.
    Rehearing Denied Jan. 18, 1979.

      John L. Bates, Waco, for appellants.
    Larry 0. Brady, Ñaman, Howell, Smith, Lee & Muldrow, Dan E. Mayfield, Sheehy, Lovelace & Mayfield, Waco, for appellees.
   OPINION

JAMES, Justice.

This is a suit for personal injuries and damages growing out of an automobile accident. Plaintiff-Appellants Houston F. Weaver and wife Linda Diane Weaver brought this suit on December 30, 1975, against Defendant-Appellee, the City of Waco (hereinafter called “the City”), seeking damages resulting from an automobile accident which occurred on January 2,1974, at approximately 12:30 A.M. At that time Houston F. Weaver was driving a motor vehicle owned by Plaintiffs in a northerly direction on South 21st Street in Waco, Texas, near a point where South 21st Street intersects Primrose Drive and dead-ends in a drainage ditch on the North side of Primrose Drive. This drainage ditch was at that time being deepened and widened and otherwise worked on by Cross-Defendant, Barton and Hillock, Inc., (hereinafter called “the Contractor”) under a contract with the City of Waco. Mr. Weaver drove his automobile into this drainage ditch thereby causing the injuries and damages sued for.

The Weavers alleged that the City was negligent in the following particulars:

(1) In failing to place warning signs along the edge of the drainage ditch in question and at the north line of Primrose Drive at the point where same is intercepted by South 21st Street;

(2) In failing to place a barricade at the points aforesaid;

(3) In failing to place sufficient lighting at the intersection aforesaid to reveal the unusual hazardous condition existing;

(4) In failing to place a sign or signs at the excavation on South 21st Street at the approach to Primrose Drive; and

(5) In failing to maintain surveillance of the area in question as an ordinary prudent person would have supervised under the same or similar circumstances, as to signs, lights, and warning devices.

The City filed a Third-Party Cross-Action against the Contractor seeking indemnity, and in the alternative, contribution from the Contractor with respect to any judgment which the Weavers might recover against the City, based upon the contract which City had with the Contractor. At the time of the accident, the Contractor was employed by the City as an independent contractor to perform the construction of drainage improvements in connection with the Lower Primrose Creek Drainage Improvement Project, and excavation and construction work was in progress by the Contractor pursuant to such contract adjacent to Primrose Drive at its intersection with South 21st Street. Said contract between the City and the Contractor was in full force and effect at the time of the Weaver accident in question.

This suit filed by the Weavers against the City on December 30, 1975, was in the 74th District Court of McLennan County, Texas, as Cause No. 75-2826-3.

Prior to the filing of the Weavers’ suit against the City, to wit, on April 25, 1974, the Weavers filed a suit against the Contractor, Barton & Hillock, Inc., in Cause No. 74-844-3, in the 74th District Court of McLennan County, Texas, seeking to recover personal injuries and property damage arising out of the same accident of January 2, 1974. This suit by the Weavers against the Contractor will be hereinafter referred to as “the first suit.” The City was not a party to the first suit.

In the first suit, the Weavers alleged that the Contractor was negligent in the same identical five grounds as the Weavers alleged against the City in the case at bar, as hereinabove set out. The Weavers’ suit against the Contractor was tried to a jury, which found (or failed to find, as the case may be) as follows:

(1) Failed to find that the Defendant Contractor failed to have in place warning signs along the edge of the drainage ditch at the time and on the occasion in question. (Issues 2 and 3 conditionally inquiring of negligence and proximate cause were not answered).

(4) Found that the Defendant Contractor failed to have a barricade in place along the edge of the drainage ditch on the occasion in question, but

(5) Failed to find that such failure to have a barricade in place was negligence. (Issue No. 6 conditionally inquiring of proximate cause was not answered).

(7) Failed to find that the Defendant Contractor failed to place sufficient lighting at the place and on the occasion in question, to reveal the existence of the drainage ditch. (Issues Nos. 8 and 9 conditionally inquiring of negligence and proximate cause were not answered).

There were no Issues Numbered 10, 11, and 12 submitted to the jury.

(13) Failed to find that the Defendant Contractor failed to maintain surveillance of the area in question as to warning devices, at the time and on the occasion in question. (Issues Nos. 14 and 15 conditionally inquiring of negligence and proximate cause were not answered).

(16) This was the personal injury damage issue concerning Houston F. Weaver, to which the jury answered “none” to all the elements submitted, including past and future pain and suffering, past lost earnings, loss of future earning capacity, past medical and hospital expenses, and future medical and hospital expenses.

Issues Nos. 17 and 18 deal with other plaintiffs, not material to our discussion.

(19) The jury found the market value of Weavers’ car immediately before the accident to be $2900.00, and

(20) The market value of the car immediately after the accident to be $250.00.

The trial court submitted special issues covering six separate grounds of contributory negligence on the part of Houston F. Weaver, all of which the jury answered against Mr. Weaver. The jury found that each of the six grounds of contributory negligence was a proximate cause of the accident. These six grounds were: failure to keep a proper lookout, driving at a greater rate of speed than a person using ordinary care would have driven, failure to timely apply his brakes, failure to turn to the right before the accident, failure to turn to the left before the accident, and driving his vehicle while under the influence of intoxicating liquor.

Finally, in answer to the comparative negligence issue, the jury found that Plaintiff Weaver was 100% to blame and that the Defendant Contractor was zero per cent to blame.

Pursuant to and in harmony with the jury verdict, the trial court on August 20, 1975, entered judgment that the Plaintiff Weavers take nothing against the Defendant Contractor. This judgment was not appealed, and is a final judgment.

As stated, it was after the judgment in the first suit had become final that the Weavers brought this suit against the City (on December 30,1975), which is the case at bar.

The case at bar (against the City) was submitted to the trial court upon an agreed statement of facts. As stated before, in the case at bar, the City filed a Third-Party Cross-Action against the Contractor seeking indemnity, or in the alternative, contribution from the Contractor in the event the Weavers should recover a judgment against the City.

The City then filed a plea in bar with respect to the Weavers’ suit against the City, and the Contractor filed pleas in bar with respect to the Weavers’ suit against the City as well as to the City’s Third-Party Cross-Action against the Contractor for indemnity or contribution. The trial court sustained the pleas in bar and entered judgment that the Weavers take nothing against the City and in turn that the City take nothing from the Contractor on the City’s Cross-Action for indemnity or contribution.

Plaintiff-Appellants the Weavers complain of the trial court’s sustaining of the pleas in bar of the City and the Contractor. As we understand Appellants’ contentions, Appellants argue that the doctrines of res judicata and estoppel by judgment do not apply in the instant case to bar the Weavers’ suit against the City because the action against the City involves “at least two negligence issues, if not more, which were not tried in the previous action” against the contractor; that the City as a municipality “owes a duty by law to provide safe streets — which is an area of negligence and/or responsibility totally different” from the Contractor; that the findings by the jury in the first case wherein the jury failed to find any primary negligence on the part of the Contractor “does not relieve the City of its responsibility, nor would the same evidence be necessary to either support or controvert similar issues with the City”; that the jury’s answer to Special Issue No. 16 in the first case wherein the jury answered “none” to all elements of Mr. Weaver’s personal injury claims is “so contrary to the evidence in the previous trial as to be a lack of due process”; that the jury’s answers in the first suit to the effect that Mr. Weaver was contributorily negligent upon six grounds, each of which was a proximate cause of the accident, “are not determinative of the area of negligence based upon different negligence issues as to the City, under the philosophy of comparative negligence”; and that the jury’s finding of 100% negligence on the part of Mr. Weaver in the first case is “not determinative of the percentage of negligence that may be found by a different jury with different negligence facts and allegations as to a different Defendant, i. e., the City.” We overrule all of Appellants’ contentions and affirm the trial court’s judgment.

As stated above, Appellants say that their action against the City involves “at least two negligence issues, if not more, which were not tried in the previous action.” We find it hard to agree with Appellants on this, because Appellants’ pleadings against the City in the case at bar contain the same identical five grounds of primary negligence against the City as were alleged against the Contractor in the first suit. Therefore the Plaintiff-Appellants had the opportunity to litigate the very same allegations of primary negligence against the Contractor as they are now undertaking to again litigate against the City, based upon the same accident and the same claims for personal injury and property damage.

Under the construction contract which the City had with the Contractor which was in effect and being carried out by the Contractor at the time of the accident in question, the Contractor was obligated to take and perform all safety precautions which were the basis of the Weavers’ allegations of primary negligence against the Contractor in the first suit, and against the City in the case at bar. In other words, the Contractor was obligated to the City under the construction contract to place warning signs, barricades, and lighting in, near, and along the drainage ditch, the violation of which safety precautions the Weavers alleged as negligence against the Contractor in the first suit and against the City in the case at bar. Moreover, under the contract the Contractor further agreed in effect to indemnify and hold harmless the City for any judgments which the City might suffer as the result of negligence on the part of the Contractor.

Factually, the accident which is the subject of the first suit and of the case at bar is one and the same, the damages claimed by the Weavers in the case at bar and in the first suit are the same, and the same acts of negligence previously asserted by the Weavers against the Contractor are the same negligence allegations asserted against the City in the case at bar. The distinction between the first suit and the case at bar are as follows:

(1) In the first suit the Weavers asserted their claims directly against the Contractor for damages allegedly resulting from the accident, resulting in judgment favorable to the Contractor, no appeal was taken therefrom, and said judgment became final. The City was not a party to the first suit.

(2) The case at bar was filed by the Weavers against the City after judgment in the first suit became final. This cause is based upon the same accident, damages, and allegations of negligence made in the first suit.

We agree with the Appellant and recognize that the City has a duty to protect the users of the streets, which is a non-delegable duty and cannot be contracted away by the City; however, where, as here, the Plain tiff-Appellant Weavers have already previously had their day in court in the first suit and have failed to establish any negligence on the part of the Contractor, and a final judgment is entered therein, and now the Weavers are endeavoring to litigate and establish these same grounds of negligence against the City growing out of the same accident and damages, we are of the opinion and hold that the City had no more than a derivative liability which could be invoked only had the Weavers’ injuries been due to the negligence of the Contractor. Where the liability of the Defendant (here, the City) is derivative, a judgment in favor of the party from whom the liability is derived (here, the Contractor) may be set up as a defense, even though the Defendant in the latter suit was not a party to the first action. See Siratt v. City of River Oaks (Tex.Civ.App. Fort Worth 1957) 305 S.W.2d 207, 209, writ refused.

“The rule of collateral estoppel, or as sometimes phrased as estoppel by judgment, bars relitigation in a subsequent action upon a different cause of action of fact issues actually litigated and essential to a prior judgment. It has been said that the rule rests upon equitable principles and upon the broad principles of justice, (citations). The rule is generally stated as binding a party and those in privity with him. * * * ‘Privity’ is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in that their interests are affected by the judgment with reference to interests involved in the action, (are treated in law) as if they were parties *' * *. The statement that a person is bound by a judgment as a privy is a short method of stating that under the circumstances and for the purpose of the case at hand he is bound by all * * * or some of the rules of res judicata by way of merger, bar or collateral estoppel.” Benson v. Wanda Petroleum Co. (Tex.1971) 468 S.W.2d 361 at p. 362; also see Hardy v. Fleming (Tex.Civ.App. El Paso 1977) 553 S.W.2d 790, 792, NRE.

Our Supreme Court in Hammonds v. Holmes (Tex.1977) 559 S.W.2d 345 at p. 346 declares the traditional doctrine of res judi-cata as follows:

“A question of fact or law, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris, is conclusively settled by the final judgment or decree therein, so that it cannot be further litigated in a subsequent suit between the same parties or their privies, whether the second suit be for the same or a different cause of action. State of Oklahoma v. State of Texas (U.S.Sup.Ct.1920) 256 U.S. 70, 86, 41 S.Ct. 420, 422, 65 L.Ed. 831.” Also see Marange v. Marshall (Tex.Civ.App. Corpus Christi 1966) 402 S.W.2d 236, NRE; Gottschald v. Reaves (Tex.Civ.App. Houston 14th 1971) 470 S.W.2d 149, NRE.

In the case at bar, we believe that Plaintiff-Appellants the Weavers are barred from litigating for a second time the same issues which were litigated by them in the first suit, under the doctrines of res judica-ta and collateral estoppel as hereinabove quoted and as declared by our Supreme Court. We are of the opinion and hold that the City, although not a party in the first suit, was in a privity relationship with the Contractor insofar as the first suit was concerned. We further believe that the jury findings in the first suit to the effect that Mr. Weaver was contributorily negligent proximately causing the accident, and that he was 100% to blame for the accident, are binding upon him in the case at bar. See Presser v. United States (D.C.Wisconsin 1963) 218 F.Supp. 108, 111.

Under our view of the case, the trial court properly sustained the pleas in bar of the City and of the Contractor, and we accordingly affirm the trial court’s judgment.

The Appellant has other points and contentions which we have carefully considered, and overrule same as being without merit.

AFFIRMED.


text:
    Frank HYNUM, Appellant, v. FIRST STATE BANK OF KEENE, Appellee.
    No. 5929.
    Court of Civil Appeals of Texas, Waco.
    Dec. 28, 1978.
    Rehearing Denied Jan. 18, 1979.
    Robert J. Wilson, Burleson, for appellant.
    Kenneth W. Boyd, Law Offices of Michael J. Rogers, Cleburne, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from a default judgment. Plaintiff-Appellee First State Bank of Keene sued Defendant-Appellant Frank Hynum on a promissory note which was in default. No answer was filed by Hynum within the time required by law and thereafter a default judgment was entered against him in favor of the Bank for $65,-918.67 plus $5,000 attorney’s fees. Hynum filed an original and an amended motion for new trial, whereupon the trial court heard evidence upon said amended motion and overruled same, from which action Defendant-Appellant Hynum appeals. We affirm.

Defendant-Appellant asserts but one point of error, to wit, that the trial court erred in overruling his amended motion for new trial because (Appellant says) the evidence conclusively established that Defendant-Appellant had good cause to believe that a default judgment would not be taken against him.

The case is before us on a partial statement of facts. The court reporter’s transcription of the testimony heard by the trial court on the amended motion for new trial is before us; however, there were five exhibits admitted into evidence which were not included in the record. The missing exhibits are referred to in the court reporter’s transcription as Plaintiff’s Exhibits 1,2, and 3, and Defendant’s Exhibits 1 and 2. From what we are able to ascertain from the court reporter’s transcription, these five exhibits are legal instruments which comprised part of the transactions between the Bank and Hynum, and without having these instruments before us we are unable to know the material facts as to what transpired between the parties.

In the absence of a statement of facts, or in the absence of a complete statement of facts, as here, which is the Appellant’s burden and duty to bring forward, it must be presumed on appeal that the evidence supports the judgment of the trial court. Ehrhardt v. Ehrhardt (Tex.Civ.App., Waco 1963) 368 S.W.2d 37, writ refused; Englander v. Kennedy (Tex.1968) 428 S.W.2d 806; Levitz Furniture Co. v. State of Texas (Tex.Civ.App., Waco 1971) 471 S.W.2d 452, NRE; Community Savings & Loan Assn. of Fredericksburg v. Citizen’s National Bank of Waco (Tex.Civ.App., Waco 1972) 484 S.W.2d 116, writ dismissed; Moore v. Iglesias (Tex.Civ.App., Waco 1975) 522 S.W.2d 607, no writ; Cress v. Jenkins (Tex.Civ.App., Waco 1978) 566 S.W.2d 706, no writ.

“The burden is upon a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal. When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact, or that the evidence conclusively refutes vital findings, this burden cannot be discharged in the absence of a complete or an agreed statement of facts.” Englander, supra.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: DODSON, Justice.

text:
    In the Matter of the MARRIAGE OF Olivia Susan HIGLEY and William Edward Higley.
    No. 8940.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 29, 1978.
    Rehearing Denied Jan. 15, 1979.

      Lovell, Lyle, Renfer, Minkley & Moore, P. C., Kyle R. Lewis, Dumas, for appellant.
    Sheehan & Dubuque, Inc., Steven M. Smoot, Dumas, for appellee.
   DODSON, Justice.

This is an appeal from a decree of the trial court granting William Edward Higley and Olivia Susan Higley a divorce and dividing their respective estates. Appellant Susan Higley challenges only the property division. Four points of error are assigned, each alleging that the trial court abused its discretion: (1) by refusing to grant appellant’s motions for continuance to allow discovery of evidence bearing on the property division; (2) by unfairly dividing the estates; (3) by charging appellant’s interest in the growing crops and feeder pigs with a lien for production expenses; and (4) by crediting the temporary support payments against the final property settlement. Finding no abuse of discretion from our review of the entire record, we affirm the decree of the trial court.

The circumstances of the action are set forth in the unchallenged findings of facts, which are enumerated as follows:

1. Petitioner, William Edward Higley, was married to Respondent, Olivia Susan Higley, on July 30, 1976.
2. No children were born as issue of this marriage, and Respondent was not pregnant on August 31, 1977.
3. The evidence was sufficient to grant a divorce to Petitioner from Respondent, and said divorce was granted after a hearing on August 31, 1977.
4. Petitioner and Respondent were married from July 30, 1976 to August 31, 1977.
• 5. Petitioner, prior to entering the marriage, owned twenty-four and one-half percent (24½%) interest in a farming and livestock partnership with his father, who owned fifty-one percent (51%), and his brother, who owned twenty-four and one-half percent (24½%).
6. Petitioner’s interest in the partnership consisted of part ownership of farm leases, farm equipment, machinery, hog barns, growing crops, and hogs.
7. Petitioner engaged in the partnership business throughout his marriage to Respondent.
8. Petitioner’s share of the profits and surplus of Higley Farms, a partnership, for the period July 31, 1976 to August 31, 1977 is a net deficit.
9. During the marriage of Petitioner and Respondent, Petitioner and Respondent spent $13,675.67 in excess of their joint income for the period of their marriage, July 31, 1976 to August 31, 1977.
10. The joint community indebtedness of the parties as of August 31 is $13,-675.67, which is unpaid.
11. There is no competent evidence of the value of the growing partnership crops as of August 31, 1977. There is no competent evidence of any enhancement and value of the real estate of Higley Farms.
12. As of August 31,1977 the partnership has live hogs not yet ready for market which were born during the existence of the marriage of Petitioner and Respondent.
13. The breeding stock of hogs on hand as of August 31,1977 is the separate property of Petitioner and the partnership.
14. Respondent does not have any interest in the Petitioner’s interest in the Higley Farms partnership.
15. Although no competent evidence was presented as to present monetary value of growing crops and live growing hogs; Respondent established a community interest in same.

The trial court determined, divided and set aside the properties of the parties as follows:

a. Petitioner is awarded all community property in his possession.
b. Respondent is awarded all community property in her possession.
c. The Court finds that the 1975 Buick automobile is the separate property of Petitioner and it is set aside as his separate property to him, subject to the indebtedness on such automobile.
d. The Court further finds that Petitioner’s 24½ per cent interest in Higley Farms, a Partnership composed of Claude Higley, Tom Higley and William Edward Higley, is the separate property of Petitioner and such 24½ per cent interest in Highley (sic) Farms, a Partnership, is set aside to Petitioner as his separate property, subject only to the specific property set aside to Respondent, below, from the separate property of Petitioner and Higley Farms.
e. The Court finds with regard to Respondent’s interest in the separate property interest of Petitioner in Hig-ley Farms, the following:
1. Respondent is entitled to reimbursement of 12¼ per cent of the funds .expended on construction of the hog barns for Higley Farms during the marriage of the parties. This 12¼ per cent interest is impressed with a lien of 12¼ per cent of the indebtedness borrowed to errect (sic) the barns.
2. Respondent is entitled to 12¼ per cent of the net income from growing crops of Higley Farms upon harvest. A lien of 12¼ per cent for all costs of production, including harvest, is impressed upon Respondent’s 12¼ per cent of such growing crops.
3. Respondent is entitled to 12¼ per cent of the net income from the inventory of feeder pigs (not breeding stock) as of August 31, 1977, as and when such pigs have a market weight from 200 to 225 pounds. A lien for 12¼ per cent for the cost of production of such pigs is impressed upon the Respondent’s share.

Our analysis of Mrs. Higley’s points of error concerning the division of the estate is governed by the following recognized principles of law. Section 3.63 of the Texas Family Code provides that:

In a decree of divorce . . . the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party

This provision grants the trial court wide discretion in making the property division, and this discretion will not be disturbed on appeal unless it has been clearly abused, Bell v. Bell, 513 S.W.2d 20 (Tex.1974), and the property division is manifestly unjust and unfair. Bell v. Bell, 540 S.W.2d 432 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ). Furthermore, it is presumed that the trial court exercises proper discretion in making the division of the estates. Dickson v. Dickson, 544 S.W.2d 200 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.).

Mrs. Higley maintains that the trial court abused its discretion by unfairly dividing the estates of the parties because the undisputed evidence shows she is entitled to reimbursement for community funds used to benefit Mr. Higley’s separate estate. The evidence shows that the partnership expended $219,005.21 on its notes payable during the period of the parties’ marriage as follows:

DATE PAID TO AMOUNT
10/20/76 First State Bank, Dumas $ 81,412.28.
1/ 4/77 First State • Bank, Dumas $ 50,561.40
7/ 1/77 First State Bank, Dumas $ 61,185.03
11/29/76 John Deere $ 4,137.30
12/15/76 John Deere $ 9,814.80
1/ 1/77 John Deere $ 10,400.61
7/ 1/77 John Deere $ 1,493.78
TOTAL $219,005.21

Mrs. Higley specifically asserts that Mr. Higley owned a 24½ percent interest in the partnership, that his share of the note payments was $53,656.28 and that she is therefore entitled “to her community share of $26,828.14 as reimbursement.” This contention is grounded on the erroneous assertion that gross income receipts in the partnership, during the period of marriage, used to pay partnership indebtedness automatically becomes the community funds of Mr. Higley and Mrs. Higley to the extent of Mr. Higley’s interest in the partnership, notwithstanding other partnership liabilities incurred or discharged during the period of marriage.

Section 26 of article 6132b provides that “a partner’s interest in the partnership is his share of the profits and surplus.” It is undisputed that Mr. Higley owned the 24V2 percent interest in the partnership prior to marriage. The trial court found that Mr. Higley’s “share of the profits and surplus of Higley Farms, a partnership for the period July 31, 1976 to August 31 is a net deficit.” Although this finding is unchallenged, it is amply supported by the evidence in the record.

It is undisputed also that the indebtedness payments were made by the partnership from its bank accounts in the regular course of business and that Mr. Higley owned a minority interest in the partnership. Mrs. Higley also does not contend that Mr. Higley made any payment on the above enumerated indebtedness from moneys paid to him individually as his share of any profits or surplus from the partnership during the period of marriage. She likewise does not say that the indebtedness was paid by the partnership from any profits or surplus accumulated by the partnership during the period of marriage. The evidence also shows there was no accumulated profits or surplus in the partnership. Under these facts, we are persuaded that the trial court did not abuse its discretion.

Mrs. Higley also asserts that the district court abused its discretion in the property division by charging her interest in the growing crops and feeder pigs with a lien for all expenses of production when there was no evidence introduced to show the amount of expenses. We do not agree. The principle business activities of the partnership was producing agricultural crops and hogs. The record is replete with evidence of accounts payable and expenses of the partnership incurred for the 1977 crop year and in the production of the feeder pigs.

Mrs. Higley further maintains in her brief in connection with this point the judgment is indefinite because it fails to specify “what the costs of production were.” The trial court granted Mrs. Higley 12¼ percent of the net income from growing crops of the Higley Farms upon harvest and impressed a lien for 12¼ percent of all costs of production including harvesting on such interest. The trial court also granted Mrs. Higley 12V4 percent of the net income from the inventory of feeder pigs (not breeding stock) as of August 31, 1977, as and when such pigs have a market weight from 200 to 225 pounds. The court also impressed a lien for 12¼ percent interest for the cost of production of feeder pigs.

The 12¼ percent net income interests are capable of ascertainment from the partnership books and records under standard accounting practices and procedures. Mrs. Higley takes these interests in the legal posture of an assignee or purchaser of such interest from Mr. Higley with corresponding rights and privileges as prescribed by law. Tex.Rev.Civ.Stat.Ann. art. 6132b § 28-B(1)(A) (Vernon 1970). The court has authority to issue other and further orders necessary to enforce its judgment. See Bush v. Bush, 265 S.W.2d 676, 679 (Tex.Civ.App.—El Paso 1954, writ dism’d). The court also has authority to impress Mrs. Higley’s interest with liens to secure payment for the costs of production. See Bell v. Bell, 540 S.W.2d 432 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ). Under these circumstances we conclude that the court did not abuse its discretion in impressing a lien for the cost of production with regard to the growing crops and feeder pigs.

Mrs. Higley next contends that the trial court abused its discretion by ordering that the temporary support payments of $100 per month, made by Mr. Higley during the pendency of this appeal, be credited against the final amount due Mrs. Higley under the decree. We note that the order granting the temporary support further provided:

[I]f the total payments made under this order should exceed the amount found to be due Respondent [Mrs. Higley] under the Decree of October 11, 1977, then such excess payments will be retained by Respondent as temporary alimony pending appeal of the Divorce Decree dated October 11, 1977.

This provision protects Mrs. Higley’s community estate from being taxed with a special charge. Under these circumstances and in light of the property division, we cannot conclude that this order is manifestly unjust or unfair. See Farrow v. Farrow, 238 S.W.2d 255 (Tex.Civ.App.—Austin 1951, no writ).

Mrs. Higley’s final point of error complains of the trial court’s refusal to grant further continuances in the case. The facts relevant to our disposition follow.

Mr. Higley filed for a divorce on May 26, 1977. A temporary support hearing was held on July 11, 1977, resulting in an order directing Mr. Higley to pay Mrs. Higley $650 a month. Trial was set for August 22, 1977.

On August 17,1977, Mrs. Higley filed her notice of intention to take the oral deposition of Mr. Higley on September 10, 1977. On the same day Mrs. Higley filed her motion for a continuance. A hearing on this motion was held on August 19, 1977, at which time arguments of counsel were entertained. The trial court granted a continuance until August 29, 1977.

Mrs. Higley filed her second motion for a continuance on August 26,1977. A hearing on this motion was conducted on August 29, 1977, after which the trial court denied the motion. Mrs. Higley maintains that the denial of this, and subsequent, motions for continuance constituted an abuse of discretion because of the complicated nature of the case.

Rule 251 of the Texas Rules of Civil Procedure provides, in part, that a continuance shall not be granted except for sufficient cause supported by affidavit. The ground for Mrs. Higley’s motions for continuance was to secure the testimony of Mr. Higley. Rule 252 states, with regard to an application for continuance, that:

If the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source; and, if it be for the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done .

Tex.R.Civ.P. 252. The granting or refusal of a motion for continuance lies in the sound discretion of the trial court. Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963). Absent an abuse of discretion, the trial court’s determination will not be reversed on appeal.

In the case at bar, the trial judge stated that he did not believe counsel for Mrs. Higley had acted diligently in seeking to depose Mr. Higley. Mr. Higley testified, and was cross examined extensively about his financial affairs, at the hearing for temporary support held on July 11,1977, and he subsequently testified at the trial. There is nothing in the record which indicates that he was unavailable for deposition during the approximately two months following the filing of the suit and preceding the trial date. The notice of intent to take Mr. Higley’s oral deposition was not given until August 17, 1977, just five days prior to the date of trial. In light of these facts, we cannot say the trial court clearly abused its discretion.

In summary, we conclude from our review of the entire record in this cause that the trial court did not abuse its discretion. Therefore, Mrs. Higley’s points of error are overruled. Accordingly, the judgment of the trial court is affirmed.

      . Tex.Rev.Civ.Stat.Ann. art. 6132b § 26 (Vernon 1970).


author: LUKOWSKY, Justice. JONES, Justice,

text:
    Wallace Lee BROWN, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Oct. 31, 1978.
    Rehearing Denied Jan. 16, 1979.
    Jack Emory Parley, Public Defender, William M. Radigan, Asst. Public Defender, Frankfort, for movant.
    Robert P. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for respondent.
   LUKOWSKY, Justice.

Brown was convicted of first-degree manslaughter in the Lincoln Circuit Court and sentenced to imprisonment for eighteen years. The trial judge instructed on murder (KRS 507.020(1)(a) and (b)), first-degree manslaughter (KRS 507.030(1)(a) and (b)), second-degree manslaughter (KRS 507.-040(1)) and reckless homicide (KRS 507.-050(1)), and refused to instruct on the defense of voluntary intoxication. The Court of Appeals affirmed on the ground that when instructions include offenses requiring intent and lesser degrees thereof which, do not require intent, the effect of voluntary intoxication is to negate the intent and thus reduce the offense to the lesser charge, and consequently, no instruction on intoxication is required. We granted discretionary review to examine this issue in the light of our new Penal Code. We now reverse and remand for a new trial.

KRS 501.080 provides, “Intoxication is a defense to a criminal charge only if such condition . . . (1) negatives the existence of an element of the offense . . . .” KRS 507.020(1)(a) makes intent to kill an element of murder, KRS 507.030(1)(a) and (b) makes either intent to cause serious physical injury or intent to kill an element of first-degree manslaughter. KRS 507.-020(1)(b) makes wantonness an element of murder. KRS 507.040(1) makes wantonness an element of second-degree manslaughter. KRS 507.050(1) makes recklessness an element of reckless homicide.

KRS 501.020(3) and (4) provides that voluntary intoxication does not negative either wantonness or recklessness. Consequently, voluntary intoxication constitutes a defense only to intentional and knowing offenses and does not provide a defense to unintentional offenses.

It is significant that the drafters of the Penal Code took the time, trouble and space to exclude voluntary intoxication as a defense to those offenses which may be committed only by wanton or reckless conduct. This indicates to us that the drafters intended that a voluntary intoxication instruction should be given in cases which involve intentional or knowing offenses and lesser included unintentional offenses. To reach any other conclusion would be to render their effort at exclusion superfluous. To put it another way, they were telling us to give the instruction but limit its applicability. Any of our post Penal Code cases which indicate a contrary conclusion do so only by way of obiter dictum and are not at variance with the result we reach here.

The instructions given by the trial judge were substantially in the form set forth in Section 2.01 of Palmore’s Kentucky Instructions to Juries to the numbering of which we shall make reference in our further discussion. The evidence of Brown’s state of intoxication adduced at trial was more than sufficient to require that the defense of voluntary intoxication be submitted to the jury. If it is to be submitted and the mass of evidence on the subject is to have any comprehensible meaning to the jury it must be accompanied by an instruction in substantially the following form.

Although you might otherwise find the defendant guilty of murder under Instruction l(b)(i) or first degree manslaughter under Instruction 2(b), if at the time he killed X (if he did so) he was so drunk that he did not have the intention of committing a crime, you shall find him not guilty under those instructions.

The decision of the Court of Appeals and the judgment of the trial court are reversed and the cause is remanded to the Lincoln Circuit Court for a new trial.

All concur except CLAYTON, JONES and STERNBERG, JJ., who dissent.

JONES, Justice,

dissenting.

The totality of the evidence presented in this case convinced me that Brown was not so intoxicated as to require the trial court to instruct on the defense of voluntary intoxication.

A neighbor, Eva Gooch, testified that in the early evening of September 20, 1975, Brown came to her home to call the rescue squad for Archie Boggs. She further testified that approximately ten minutes later Brown returned and requested her to call the sheriff since “He had shot and killed Clyde Sears.” The neighbor could not tell whether Brown had been drinking.

The neighbor was asked, “Did Wallace Lee Brown appear to be drinking at the time you saw him?” “You couldn’t tell it.” “Was he staggering around or was his speech slurred or anything of that nature?” “No, he was calm.”

The city fire chief testified that he could smell the odor of alcohol and that Brown had been drinking when he admitted shooting Sears. He testified that Brown was not staggering too much.

The sheriff testified that Brown was able to walk by himself and got around and that he needed no help to go down the steps.

A deputy sheriff testified that Brown told him he shot a man and that Brown walked “good” up the steps unassisted and was not belligerent. He testified also that he did not detect the smell of alcohol.

A detective who took Brown’s statement testified that Brown had been drinking and that he could smell it on him and his ability was somewhat impaired but not to the extent that he did not have control of his faculties.

The reversal of Brown’s conviction with directions that he be granted a new trial, in my view, is an exercise in futility. An instruction on the defense of voluntary intoxication, more than likely will enhance his penalty.

In my opinion, the Court of Appeals correctly adjudged that no instruction on intoxication in this case was required. It affirmed on the ground that the trial court’s instructions included offenses requiring intent and lesser included offenses which do not require intent. It also held that the effect of voluntary intoxication is to negate the intent and reduced the offense to the lesser included offenses.

For the reasons stated I respectfully dissent and conclude by saying that I would affirm the judgment of the Court of Appeals,

I am authorized to say that CLAYTON and STERNBERG, JJ., join in this dissent.

      . Brown was described by the arresting officer as “pretty drunk”, the Sheriff stated that he “was thick tongued, he repeated himself a right smart and was kinda wayward in his walk”, and several of Brown’s fellow, revelers testified that he was drunk and had been drinking constantly since the day prior to the shooting. The blood alcohol test given Brown three hours after the shooting indicated an alcohol level of 0.29%. He claimed that he suffered a total lack of recollection of the shooting. Mishler v. Commonwealth, Ky., 556 S.W.2d 676 (1977); Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (1977).


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Michael R. McMAHON, Respondent.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Rehearing Denied Jan. 16, 1979.
    Leslie G. Whitmer, Director, Michael Hooper, Asst. Director, Kentucky Bar Ass’n., Frankfort, for complainant.
    Michael R. McMahon, Henry A. Triplett, Louisville, for respondent.
   PER CURIAM.

This is a disciplinary proceeding in which the Kentucky Bar Association charged McMahon with three counts of unprofessional conduct calculated to bring the bench and bar into disrepute. McMahon was charged with: (1) falsely advising a client as to the status of litigation; (2) loaning a contingency fee client $200.00 on three occasions; and (3) paying the client money from an “attorney at law escrow account.”

Counsel for McMahon filed a response admitting the allegations contained in the charges except any allegations as to the falsity of representations made by him to his client.

A trial committee appointed by the Board of Governors of the association heard evidence on both sides and found: “Charge number one concerning the veracity of statements by [McMahon] to [his client] is not proven; charge number three regarding payment of monies from an escrow account is of no merit; charge number two concerning loans to a contingency fee client is specious.” The trial committee recommended that charges one and three “be taken for naught and that charge number two be subjected to a “private” reprimand for the sole reason that the rule is in existence.”

McMahon did not fare as well with the Board of Governors. The members discussed each charge separately and the evidence offered in support of and against the charges and found: (1) that McMahon entered into a contingency fee contract with the client in March 1974, “however, the contract was not signed until August 24, 1974.” The Board also found that McMahon loaned his client $200.00 on each of three occasions and that the client testified she “considered it a loan” to be paid back when the case was settled. The Board found also that in the latter part of 1974 and the early part of 1975, the client contacted McMahon concerning her case on several occasions and McMahon’s stock answer was “that he was working on the case.” In 1976, the client through a Mr. Huff learned that McMahon had failed to file a suit in her behalf. On October 23, 1976, McMahon presented the client a check in the amount of $4,321.50 drawn on his attorney at law escrow account. There was no evidence that a settlement had been made. McMahon told the client he had a conflict of interest and “that she should get her a lawyer.”

The Board of Governors found McMahon guilty of professional misconduct and recommended that he be suspended from the practice of law in the state of Kentucky for a period of one year.

McMahon, in his notice for review and brief, makes a feeble attempt to convince this court that the evidence fails to sustain the findings of the Board of Governors. He admits quite frankly, that if he is unable to prevail in that endeavor then the punishment recommended by the Board of Governors is too severe because a drinking problem was the cause of the neglect to properly handle his client’s business.

This court has read the evidence and is of the view that it was more than sufficient to sustain the Board’s finding. The Board considered McMahon’s drinking problem. It considered also that problem a mitigating factor, in that it brought about McMahon’s neglect to perform his duty to his client. In its conclusions the Board commended McMahon for the action he has taken to alleviate the drinking problem as “a step in the right direction and if such conduct continues should be considered if and when respondent [McMahon] files for reinstatement.”

The practice of law is an honorable profession. “Its first demand is a meet and lively sense of responsibility, without which it could not survive as a profession. If the respondent does not possess it he belongs in some other line of work.

In the past two years this court has reviewed a number of disciplinary proceedings in which lawyers failed to protect the interest of their respective clients. Without exception, each was suspended from the practice of law for a term commensurate with his degree of neglect.

The recommendation of the Kentucky State Bar Association is approved and McMahon is suspended from the practice of law in this state for a period of one year. The Kentucky State Bar Association shall recover its costs as provided by SCR 3.450.

All concur.

      .Counsel for McMahon before the trial committee is not the same attorney who represents him on review.

      . McMahon did not testify.

      . Kentucky Bar Association v. Booth, Ky., 444 S.W.2d 122 (1969).

      . Kentucky Bar Association v. Vincent, Ky., 538 S.W.2d 39 (1976); Kentucky Bar Association v. Dillman, Ky., 539 S.W.2d 294 (1976); Kentucky Bar Association v. Murphy, Ky., 549 S.W.2d 295 (1976); Kentucky Bar Association v. Clem, Ky., 554 S.W.2d 360 (1977); Kentucky Bar Association v. Dillman, Ky., 554 S.W.2d 362 (1977); Kentucky Bar Association v. Martin, Ky., 558 S.W.2d 173 (1977); Kentucky Bar Association v. Littleton, Ky., 560 S.W.2d 5 (1977); Kentucky Bar Association v. Dillman (disbarment), Ky., 562 S.W.2d 318 (1978); Kentucky Bar Association v. Littleton, Ky., 561 S.W.2d 88 (1978).


author:
CLAYTON, Justice.
      LUKOWSKY, Justice,

text:
    Joseph GILBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Rehearing Denied Feb. 6, 1979.

      Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAYTON, Justice.

The appellant, Joseph Gilbert, was convicted of murder (KRS 507.020) and sentenced to life imprisonment. We affirm.

Appellant shot and killed Harold Shorts on July 12,1977. He pleaded not guilty and gave notice, pursuant to KRS 504.050, of his intention to rely on the defense of mental disease or defect. Trial counsel for Gilbert then moved that a mental examination be conducted, and the trial court so ordered. Dr. Joel Haffner, who performed the examination, concluded that Gilbert was at that time incompetent to stand trial. Thereafter a hearing was held and on October 3, 1977, the trial court, pursuant to KRS 202A.070, ordered appellant committed to Western State Hospital for treatment. Three weeks later the court ordered that Gilbert be reexamined, at which time Dr. Ernest Monongdo and Dr. Calvin Turns each found him competent to stand trial. Apprised of these findings, the trial court set trial for November 29, 1977.

Appellant did not testify at trial. An affidavit containing Dr. Haffner’s report was read to the jury, and there was testimony that Gilbert had a history of mental illness and hospitalization. Dr. Monongdo and Dr. Turns testified for the Commonwealth in rebuttal. At no point during the trial did appellant’s counsel question Gilbert’s competency to stand trial, nor did he move for a hearing on that issue.

Gilbert appeals, asserting numerous assignments of error. The only issue that merits discussion is whether the failure of the trial court to conduct a hearing to determine appellant’s competency amounted to denial of due process of law.

The test for competency to stand trial is whether the accused has the capacity to appreciate the nature and consequences of the proceedings against him and to participate rationally in his defense. KRS 504.040(1). A criminal defendant may not be tried or convicted while legally incompetent, and the Supreme Court of the United States has held that due process requires an evidentiary hearing whenever there is sufficient doubt of competency as to require further inquiry on the question. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

Kentucky protects this right by requiring such a hearing if there are reasonable grounds to believe the defendant is incompetent. RCr 8.06; Hayden v. Commonwealth, Ky., 563 S.W.2d 720 (1978); Via v. Commonwealth, Ky., 522 S.W.2d 848 (1975). However, these reasonable grounds “must be called to the attention of the trial court by the defendant or must be so obvious that the trial court cannot fail to be aware of them.” Matthews v. Commonwealth, Ky., 468 S.W.2d 313, 314, cert. denied, 404 U.S. 966, 92 S.Ct. 341, 30 L.Ed.2d 285 (1971). The record shows that, unlike Drope and Hayden, the appellant did not raise the issue of competency before the trial court. And, unlike Pate and Via, the question of Gilbert’s mental competency was not so obvious that the trial court could not fail to be aware of it. Since no reasonable grounds for doubting appellant’s competency existed, no error occurred when the trial court failed to hold a hearing.

This court has carefully reviewed each of the other assignments of error and finds them to be without merit.

The judgment is affirmed.

All concur except LUKOWSKY, J., who dissents.

LUKOWSKY, Justice,

dissenting:

In 1881 Mr. Justice Holmes pointed out in his Lectures on the Common Law, “The life of the law has not been logic: it has been experience.” I do not fault the logic by which my brothers determine that a reasonable judge, situated as was the trial judge here, would not have been troubled by doubt with respect to Gilbert’s competency to stand trial. However, the juristic experience supplied by the history of United States v. Ives, C.A. 9th, 504 F.2d 935, 946-953 (1974), vacated and remanded, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), remanded 547 F.2d 1100 (1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977), reversed 574 F.2d 1002 (1978), convinces me that this determination will not withstand federal constitutional attack.

That ease like this was originally decided on the basis that the probative effects of a prior psychiatric report of incompetence to stand trial and a finding of such incompetence after a hearing were completely dissipated by the later certification of competency to stand trial made in a report from the psychiatric institution to which the defendant had been committed. Further extensive judicial mastication resulted in a new decision indicating that the first report and finding were sufficient to place the trial judge on notice that there was a reasonable question of the defendant’s competency to stand trial which could only be answered by an evidentiary hearing.

I would vacate the judgment and remand the case to the trial court with directions to hold an evidentiary hearing and determination of Gilbert’s mental competence to stand trial at the time trial was held. If he was mentally competent the judgment should be reentered. If he was not competent, an evidentiary hearing and determination of his present mental competency to stand trial should be had. If he is found competent he should be tried again. If he is found incompetent he should be dealt with as provided in KRS 504.040(2).

This disposition would do no violence to our decision in Hayden v. Commonwealth, Ky., 563 S.W.2d 720, 722-723 (1978), because in this case psychiatric evidence based upon examinations conducted close to the trial date would insure that the nunc pro tunc hearing would not be unduly speculative. Bowers v. Battles, C.A. 6th, 568 F.2d 1, 4-5 (1977); Harkins v. Wyrick, C.A. 8th, 552 F.2d 1308, 1311-1313 (1977); United States v. Makris, C.A. 5th, 535 F.2d 899, 904-905 (1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803, rehearing denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977).


author: JONES, Justice. LUKOWSKY, Justice,

text:
    Douglas Lee EVERSOLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Cecil Wayne PELFREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    Rehearing Denied Feb. 6, 1979.

      Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant Douglas Lee Ever-sole.
    Jack Emory Farley, Public Defender, Donna Boyce Proctor, Asst. Public Defender, Frankfort, for appellant Cecil Wayne Pelfrey.
    Robert F. Stephens, Atty. Gen., Rickie L. Pearson, Carl T. Miller, Jr., Asst. Attys. Gen., Frankfort, for appellee.
   JONES, Justice.

Douglas Lee Eversole and Cecil Wayne Pelfrey appeal from judgments of conviction imposing on each of them concurrent prison terms of 20 years on a charge of first-degree burglary and 5 years on a charge of theft by unlawful taking. KRS 511.020; KRS 514.030. Eversole and Pel-frey prosecute separate appeals which are consolidated for review.

There are other questions, but the principal issue presented for decision is whether the trial court prejudicially failed to instruct the jury on their tendered instruction of third-degree burglary. At the time the alleged offense was committed (October 29, 1976), KRS 511.020(l)(b) provided that:

“A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with the intent to commit a crime and when:
(b) the entering or remaining occurs at night.”

The home of William E. Heathman, located on North Main Street in the city of Nicholasville, was burglarized October 29, 1976. Heathman estimated the value of the property taken at $4500.00. Included in the items stolen from his home were a television, a stereo and a large quantity of valuable silverware. Heathman was out of town on the date of the burglary and did not know what time it occurred.

Heathman’s daughter, Billie Sue, left home at 7:45 A.M. on the day of the burglary. She returned home that night at 9:00 P.M. When she arrived home the glass in a side door was broken. Thereupon, she called the police.

Richard (Dickie) Jones and his friend, Chester Fultz, were drinking in the Zebra Bar in Lexington about 10:30 P.M., October 29, 1976, when Eversole and Pelfrey came into the bar and offered to sell Jones and Fultz “some stuff.” Thereafter, they accompanied Eversole and Pelfrey to Ever-sole’s house where they were shown a television, a quantity of silverware, and a stereo. Jones bought all of the items and later sold some of the silverware to Maude Booth. He testified that Eversole and Pel-frey told him the items were taken from the Heathman dwelling on Main Street in the city of Nicholasville. He, Fultz, Ever-sole and Pelfrey returned to Nicholasville “the same night they [Eversole and Pelfrey] had broken in it.” [Heathman’s home]. The purpose of that nocturnal foray was to get the stereo speakers from the Heathman dwelling. They did not stop because “the lights” were on. The burglary had been discovered. On being questioned, Jones was asked:

“Q. Did anybody get out to go in?
A. No sir nobody did.
Q. Why did they [Eversole and Pelfrey] not get out?
A. We was going by and they said, oh, the lights are on. Evidently they had discovered it.”

Detective David Williams testified that he recovered some of Heathman’s silverware from the residence of Maude Booth several months after the burglary.

State Police Detective Jerry Lovitt, in the course of his investigation, interviewed Ev-ersole at the Scott County Jail. After being advised of his constitutional rights, Ev-ersole made a written voluntary confession as follows:

“On October 29, 1976, at about 9:00 P.M., I went to Nicholasville for the purpose of breaking into a house on North Main Street. I broke the window pane in the side door to gain entry. The articles that I took that I can remember were a stereo, a portable TV, jewelry, coins, and silverware. I sold the TV and stereo to Chester Fultz and Dickie Jones. The silver was traded to Fultz and Jones for a car. I know the residence was the home of Mr. and Mrs. Edgar Heathman because I had rented an apartment from her. Signed Douglas Eversole.”

Although Pelfrey’s trial counsel insinuated that Pelfrey could not read or write or at least couldn’t perform either of these functions well, Detective Lovitt testified that he advised Pelfrey of his constitutional rights and that Pelfrey made the following voluntary confession in his own handwriting:

“I was in a bar in Lexington. I came to Nicholasville in a truck. It was about 9:30 or 10:00, it was after dark. I stopped at a house on Main Street just as we entered town. I parked the truck in a low lot and went into the house. I came back to the truck and pulled in beside the house. I had piled stuff from inside the house near where I pulled the truck. I loaded the stuff in the truck.”

Pelfrey’s handwritten confession was signed by him and witnessed by Jean Gol-dey.

Prior to the introduction in evidence of the statements made by Eversole and Pel-frey, an in-chambers hearing was conducted by the trial court to determine the admissibility of the statements in which they implicated each other in the charged offenses. The trial court concluded that the statements of both Eversole and Pelfrey in which they implicated each other could be read to the jury if any reference to a co-defendant was eliminated. The trial court overruled Pelfrey’s objection that his confession was involuntary and that the use of Eversole’s statement violated Pelfrey’s right of confrontation.

When the Commonwealth concluded its presentation of evidence', neither Eversole nor Pelfrey testified in their behalf, and no testimony was offered by either- of them.

Eversole and Pelfrey argue they were prejudiced because the trial court refused to give their tendered instruction on third-degree burglary. They each contend there was a reasonable inference that the crime in question may not have occurred at night.

In this case the breaking into the dwelling was established through the testimony of an occupant. It was also proven that Eversole and Pelfrey had possession of and sold the items stolen from the dwelling. In addition the testimony of Richard Jones was strong substantive evidence, independent of the confessions of Eversole and Pelfrey, which was sufficient to support their convictions. There was not a shred of evidence to indicate that the burglary occurred during the day or other than at night. Thus, the trial court properly refused to give the tendered instruction on third-degree burglary. Parker v. Commonwealth, Ky., 279 S.W.2d 1 (1955).

Eversole and Pelfrey argue the trial court erroneously permitted the prosecutor to make improper and prejudicial comments in his summation to the jury. This court has reviewed the arguments made by counsel for Eversole and Pelfrey and by the Commonwealth’s Attorney. The court is of the view that such assertion by Eversole and Pelfrey is similar to the maxim, “the pot calling the kettle black.” The comments by the prosecutor in his opening statement, as well as his closing argument, were reasonable comments within the proper confines of the evidence. On the other hand, arguments by counsel for Eversole and Pelfrey were no more than pleas for mercy. This court views the arguments by trial counsel for Eversole and Pelfrey more detrimental to their cause than any statements made by the prosecutor. In his argument, Eversole’s attorney, in reference to the time of the burglary, told the jury:

“It was after dark and approximately 9:00, on the 28th [29th] of October 1976 . . We are not pleading and saying there is nothing to this case, because on the other hand there is something to it and I have gone through the same experience myself several times with robbery. It is a matter that is your decision and thoughts on the case. . . . ”

In closing Eversole’s attorney said:

“I’m not saying they haven’t been proven guilty . . . but I am saying that we feel that in all fairness and in all justice, that it is only fair that they be given every consideration. . . . ”

Pelfrey’s trial attorney apologized to the jury for not making an opening statement. He did allude to the time the offense was committed by saying to the jury:

“Could this burglary have been committed and I’m not saying that there wasn’t a burglary, they testified there was, but could this burglary have been committed in the daytime? The law says before you send my client to the penitentiary for 10 to 20 years for committing nighttime burglary, you have to believe beyond a reasonable doubt that he committed nighttime burglary.”

He then castigated Richard Jones for his testimony and referred to him as a thief. Pelfrey’s trial attorney concluded by saying to the jury:

“All I ask, is that you consider what was said from this witness stand before you decide to send Cecil Wayne Pelfrey to the penitentiary for 10 to 20 years on one charge and 1 to 5 on another one. I just ask that you give them consideration, the same as you have analyzed the evidence, and you would have no doubt (emphasis added) that they committed first-degree burglary and theft by unlawful taking. Thank you.”

The record reveals that the trial court, in overruling Eversole’s and Pelfrey’s motion for probation, considered a presen-tence investigation conducted by the probation officer. The Commonwealth contends that the trial judge substantially complied with KRS 532.050 and Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977). The record, however, does not reflect that the contents of such a report were disclosed either to Eversole or to Pelfrey; nor does it appear that they were given an opportunity to controvert the contents of the respective presentence reports. Perhaps the trial court before imposing sentence advised Ev-ersole and Pelfrey, or their respective counsel, of the factual contents and conclusions of the presentence investigation, but the record does not show it. The record fails to disclose also that Eversole and Pelfrey were afforded a fair opportunity and a reasonable period of time to controvert them. This court has stated many times that the pre-sentence procedure for felony convictions under KRS 532.050 is mandatory. The court has in many cases, and as recently as October 31, 1978, stated that compliance with the provisions of KRS 532.050 is a “must” and is in fact a prerequisite to the entry of a valid judgment. Arnold v. Commonwealth, Ky., 573 S.W.2d 344 (Decided October 31, 1978).

This codrt has reviewed the other assignments of error and find them to be without merit. The judgment of conviction is affirmed and this cause is remanded for re-sentencing in conformity with Brewer, supra, and KRS 532.050.

In Pelf rey ⅛ case the jury found him “guilty of first-degree burglary and theft and fixed his punishment at confinement . for a period of 20 and 5 years.” However, the judgment provides that “this sentence of 20 years shall run concurrently with the sentence of 20 years imposed under indictment No. 77C28 of this indictment.” Upon remand for resentencing the trial court is directed to correct the judgment so as to accurately reflect the verdict returned by the jury.

CLAYTON, JONES, STEPHENSON and STERNBERG, JJ., concur.

LUKOWSKY, J., files a dissenting opinion in which PALMORE, C. J., and REED, J., join.

LUKOWSKY, Justice,

dissenting.

In my view, the trial court erred when it refused to give the tendered instruction on the lesser included offense of third-degree burglary. This offense is the basic burglary crime. KRS 511.040. Under the circumstances of this case this is the offense of which Eversole and Pelfrey were guilty unless the jury unanimously believed beyond a reasonable doubt that the Commonwealth proved a critical element which differentiates first-degree burglary from third-degree burglary, to wit, that the offense occurred at night. KRS 511.020(l)(b). Night means the period between thirty minutes after sunset and thirty minutes before sunrise. KRS 511.010(3).

Sunset and sunrise are scientific terms which bear no real relationship to simplistic concepts such as light and dark. The astronomical definition of the time of setting or rising of a body, such as the sun, is the instant when the upper edge of the observable disk (upper limb) is exactly ninety degrees away from the observer’s zenith, on the astronomical horizon. No evidence was introduced to establish the time at which these natural phenomena occurred on the date of the burglary. The experience of everyday life provides no precise answer to so sophisticated a question. The trial court did not exercise its right to take judicial notice of these occurrences by making an immediate and accurate determination by resort to readily accessible and indisputable sources, such as meteorological reports in newspapers and astronomical tables in almanacs and advise the jury that on the date in question the time of sunset was 6:47 P.M. and of sunrise was 8:01 A.M. Lawson, Kentucky Evidence Law Handbook, Section 1.00 (A)(ii).

The testimony of the occupants of the dwelling established that the burglary occurred at sometime between 7:45 A.M., the time at which they left the dwelling unattended, and 9:00 P.M., the time at which they returned to the dwelling, and that they did not come into contact with the burglars. Eversole’s confession estimates the time of the offense at “about 9:00 P.M.” Pelfrey’s confession estimates the time of the offense at “about 9:30 or 10:00” P.M. A reasonable juror who believed the occupants could doubt that the burglary occurred at night, i. e. between 7:17 P.M. and 9:00 P.M. Under these circumstances the instruction on the lesser included offense must be given. Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977); Muse v. Commonwealth, Ky., 551 S.W.2d 564 (1977).

I would reverse the burglary convictions and remand the case for a new trial on those charges.

I am authorized to state that PALMORE, C. J., and REED, J., join in this dissent.

      . KRS 511.020(l)(b) was amended by the 1978 legislature by deleting the provision, “the entering or remaining occurs at night.” The amendment became effective June 17, 1978.


author: JONES, Justice. REED, Justice,

text:
    Virgil PEARMAN and Wilma Pearman, his wife, Movants, v. Virginia SCHLAAK et al., Respondents.
    Supreme Court of Kentucky.
    Nov. 21, 1978.
    D. Michael Coyle, Huddleston, Van Zant & Coyle, Elizabethtown, for movants.
    Nicholas L. Pearl, Pearl, Pearl & Pearl, Radcliff, for respondents.
   JONES, Justice.

This is a discretionary review of a decision of the Court of Appeals reversing a judgment of the Hardin Circuit Court which denied Virginia Schlaak, et al, the right to intervene nine days after judgment was entered in an action between the Pear-mans against City of Radcliff, Kentucky and Joint City-County Planning Commission of Hardin County, Kentucky.

The question presented is whether local property owners not a party to the action had a right to intervene nine days after judgment was entered in favor of the Pear-mans in their action against the City of Radcliff and the Joint City-County Planning Commission of Hardin County, Kentucky.

For a determination of the issue it is necessary to detail some pertinent facts.

The Pearmans owned certain property in the city of Radcliff known as Indian Hills Subdivision, Section 7, They desired to build an apartment house in Section 7 and sought a zoning change from R-2 (single-family residence) to R-5 (multi-family dwelling). The Joint City-County Planning Commission of Hardin County recommended to the city council of Radcliff that the proposed change be granted. After a public hearing the Radcliff City Council denied the requested change.

The Pearmans then filed a complaint in the circuit court in which they alleged that denial of the change by the Radcliff City Council was arbitrary and capricious. The Pearmans’ complaint was against the city of Radcliff and the Joint City-County Planning Commission. On August 24, 1976, the trial court entered a judgment setting aside the action of the Radcliff City Council. The judgment also directed the city council to rezone the Pearmans’ property from an R-2 classification to an R-5 classification. The Radcliff City Council took no appeal from that judgment.

On September 2, 1976, Virginia Schlaak, et al, local property owners, filed a motion to intervene as additional parties defendant “for the purpose of instituting an appeal.” The local property owners tendered a notice of appeal from the judgment of August 24, 1976. They also tendered a pleading styled “motion for judgment notwithstanding the verdict and in the alternative for a new trial.”

On September 17, 1976, the trial court overruled the motion of Schlaak, et al, to intervene. The circuit court held that the interests of Schlaak, et al, had been adequately protected by the defense made on behalf of the City of Radcliff and that the motion to intervene after judgment was not timely filed. Schlaak, et al, then appealed that decision to the Court of Appeals. On September 23, 1977, the Court of Appeals reversed the trial court and entered an order permitting Schlaak, et al, to prosecute an appeal of the trial court’s decision.

This court is of the view that the answer to the question is interwoven in CR 24.01 which provides:

“Upon timely application anyone shall be permitted to intervene in an action (a) when a statue confers an unconditional right to intervene, or (b) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” (Emphasis added).

Virginia Schlaak, et al, do not contend that a statute confers on them an unconditional right to intervene. They do contend, however, that they have “an interest relating to the property . . . which is the subject of the action . . and [are] so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest. . . ”

Virginia Schlaak and the other local property owners do not claim they did not have actual notice of the trial-type hearing by the Radcliff City Council. They were present at the hearing and were represented by the same attorney who represents them here. Furthermore, they have shown no reason why they waited until after the trial court’s decision before they sought to intervene.

This court has held that a party seeking intervention after judgment has a special burden of justifying the lack of timeliness. Monticello Electric Plant Board v. Board of Education, Ky., 310 S.W.2d 272 (1958). Here, it is obvious that Virginia Schlaak and the other local property owners have not overcome the special burden of justifying the lack of timeliness. They were content to sit under their own “vine” and let the Radcliff City Council carry the burden.

This court promulgated CR 24.01 as a guideline for intervention as a matter of right. The local property owners failed to abide by that rule. As late as 1971 the court had a similar factual situation involving the right of intervention under CR 24.-01. The court in explaining the reason for the rule held:

“We do not conceive that CR 24.01 intends that if a party who is representing the interests of a nonparty adequately represents those interests, but judgment nevertheless goes against those interests, the party must appeal else the nonparty may intervene as a matter of right. If that were the rule, a nonparty could simply lie back and await the result of the action in circuit court and then, if not satisfied with the judgment, compel a retrial by the device of intervening after judgment.” Murphy v. Lexington-Fayette County Airport Board, Ky., 472 S.W.2d 688 (1971).

The Court of Appeals attempted to distinguish Murphy, supra, from the facts here, by saying “the person seeking to intervene in Murphy had not participated in the trial of the case.” Virginia Schlaak and the other property owners did not participate in the trial of this case because they had not sought intervention prior to judgment. They were seeking a free ride on the train of the Radcliff City Council, and were left at the station when the city council failed to prosecute an appeal from the decision of the trial court.

The judgment of the Court of Appeals is reversed; the judgment of the trial court is affirmed.

PALMORE, C. J., and STEPHENSON and STERNBERG, JJ., concur.

REED, J., files a dissenting opinion in which CLAYTON and LUKOWSKY, JJ., join.

REED, Justice,

dissenting.

I dissent. The majority opinion posits the issue for decision as “whether local property owners not a party to the action had a right to intervene nine days after judgment was entered in favor of the Pearmans in their action against the City of Radcliff and the Joint City-County Planning Commission of Hardin County, Kentucky.”

The record reveals that the real issue for decision is whether adjacent property owners, whose interests have been protected by a public zoning authority in a proceeding of judicial review of its decision not to rezone a particular parcel of real estate, are entitled to intervene for the purpose of taking an appeal from a judgment adverse to the public zoning authority which declines to appeal.

The adjacent property owners are inter-venors as a matter of right. The majority opinion concedes as much when it undertakes to interpret the provisions of CR 24.01 rather than the “permissive” intervention provisions of CR 24.02.

The decisive inquiry is whether these in-tervenors as a matter of right acted “timely” as required by the procedural rule. The same requirement to act “timely” is made applicable to “permissive” intervenors whom the court, in the exercise of discretion, allows to participate in a pending action.

The intervenors in this case acted as promptly as possible under the circumstances. As soon as they learned that the public authority which had unsuccessfully litigated in the judicial review proceeding was not going to appeal the adverse judgment, they filed inter alia a proper motion to intervene and tendered a notice of appeal while the trial court still had authority to alter its judgment and long before the time to appeal had expired — they acted within nine days after judgment according to the majority opinion.

Kentucky’s CR 24 closely follows the federal rule FRCP 24. Therefore, federal cases and the decisions of other states which operate under substantially the same procedural rules are relevant authority.

The case of Wolpe v. Poretsky, 79 U.S.App.D.C. 141, 144 F.2d 505 (1944) squarely supports the decision of the Court of Appeals allowing intervention confined to the purpose of taking an appeal. Although in view of later developments subsequently discussed, I doubt the continued vitality of Murphy v. Lexington-Fayette County Airport Board, Ky., 472 S.W.2d 688 (1971), which is the sole case relied upon by the majority, even a casual reading of the Murphy opinion reveals that it did not question the validity of allowing property-owner intervention in the zoning dispute there presented for the purpose of taking an appeal. Regardless of the acceptability of other attempted distinctions in the Murphy opinion, the approval of the Wolpe result in the context presented in this case is at least implicit.

In Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457 (Kan.1973), the Supreme Court of Kansas construed a procedural rule of substantially similar provisions contained in our CR 24. The Kansas court held that in a proceeding by a landowner to rezone a tract to permit erection of a townhouse complex, when the city, which had refused to rezone, dismissed an appeal from an unfavorable decision of the trial court, neighboring landowners’ interests were inadequately represented by the city, and neighboring landowners were entitled to intervene for the purpose of prosecuting an appeal as a matter of right. The opinion states in part:

“From all the foregoing the conclusion is inescapable that appellant should have been allowed to intervene as a right. Its members owned property which would be affected by the rezoning and it made prompt application to intervene when representation of its interest ceased. Without intervention its right of appeal could not otherwise be protected. Application was made while the proceeding was still pending in the sense the court had not yet acted on the city’s motion to dismiss. The trial court erred in denying the second application to intervene. Review of the judgment on the rezoning action on the points raised by the city is consequently in order.”

Id. at 463.

The Supreme Court of Colorado considered the provisions of Colorado Rule of Civil Procedure 24 which is the same as our CR 24 and the Federal Rule of Civil Procedure 24 in Dillon Companies, Inc. v. City of Boulder, 515 P.2d 627 (Colo.1973). The court held that adjacent landowner parties who sought to intervene in a rezoning dispute should have been allowed to intervene as a matter of right for the purpose of appeal. The city had decided not to appeal an adverse court decision which directed that a parcel of real estate be rezoned. The intervenors there as here had no one to protect their interests through an appeal.

In my view, the majority is unfair in characterizing the adjacent landowners as “seeking a free ride on the train of the Radcliff City Council.” They participated actively in the only “trial type” proceeding before the zoning authorities. The action in the trial court was a review of the record made in the zoning proceedings. Their attempted intervention in the trial court prior to judgment would have been purely pro forma.

The trend of the modern decisions is against erecting the entry of judgment as an insurmountable obstacle to intervention for the purpose of taking an appeal. Where the intervenor seeks to reopen issues and relitigate before the trial court different considerations are presented and the policy of encouraging finality appears to favor the requirement of satisfaction of a “special burden” to justify a belated appearance.

“Thus although the cases ‘tend to involve unique situations’ and to require ‘a close examination of all the circumstances of the case,’ in a significant number of cases intervention has been allowed even after judgment. One reason for allowing this is so that the intervenor can prosecute an appeal that the existing party has determined not to take.” 7A C. Wright & A. Miller, Federal Practice and Procedure: Civil Section 1916, at 582-83 (1972).

If a doubt existed concerning when an application for intervention for the purpose of taking an appeal should be made to be considered “timely” under FRCP 24, it was resolved by the United States Supreme Court in United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). There, the Supreme Court held in an equal opportunity case that an application to intervene for an appeal to be taken was “timely” under FRCP 24 where it was filed within the 30-day period for an appeal to be taken.

Footnote 16 of the majority opinion is particularly applicable to the case before us. It states in part: “Post-judgment intervention for the purpose of appeal has been found to be timely even in litigation that is not representative in nature, and in which the intervenor might therefore be thought to have a less direct interest in participation in the appellate phase.” (citing cases) Id., 97 S.Ct. at 2470.

The majority opinion concludes:

“Our conclusion is consistent with several decisions of the federal courts permitting post-judgment intervention for the purpose of appeal.16 The critical inquiry in every such case is whether in view of all the circumstances the interve-nor acted promptly after the entry of final judgment. Cf. NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648. Here, the respondent filed her motion within the time period in which the named plaintiffs could have taken an appeal. We therefore conclude that the Court of Appeals was correct in ruling' that the respondent’s motion to intervene was timely filed and should have been granted.” Id., 97 S.Ct. at 2470-71.

Neither the federal government, the United States Supreme Court nor any national body undertook to impose upon us the Federal Rules of Civil Procedure. We adopted those rules of our own free volition. When a body of procedural rules is designed to encourage uniformity of practice, it is unfortunate when they are interpreted differently in the courts sitting in the same state. One reason for our adoption of the Federal Rules of Civil Procedure with few variations was to promote ease of practice in the federal and state courts in Kentucky. The United States Supreme Court has interpreted Federal Rule 24. There is no good reason for us to make a different interpretation. The movants suffer only the detriment they carried in any event. The named party could have appealed in the time provided. The Court of Appeals carefully limited the respondents to the record made by the named party, and confined the respondents to the prosecution of an appeal from the adverse judgment.

The majority have achieved nothing except the creation of a trap for the unwary lawyer who attempts to practice in both the state and federal courts in Kentucky. I would affirm the decision of the Court of Appeals.

I am authorized to state that LUKOW-SKY and CLAYTON, JJ., join in this dissent.


text:
    SECURITY TANK & TOWER CORPORATION and Liberty Mutual Insurance Company, Movants, v. Bill F. FIELDS et al., Respondents.
    Supreme Court of Kentucky.
    Dec. 19, 1978.
    Robert G. Hunt, King, Deep & Brana-man, Henderson, for movants.
    Paul E. Bugay, Owensboro, John Riehl, Jr., Dept, of Labor, Louisville, Donald Campbell, Director, Workmen’s Compensation Bd., Frankfort, for respondents.
   OPINION AND ORDER

The motion of Security Tank & Tower Corporation and Liberty Mutual Insurance Company for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered September 1, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, rendered September 19, 1978.

All concur.


text:
    Charles Dorian BRADEN, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Dec. 19, 1978.
    Jack Emory Farley, Public Defender, M. Gail Robinson, Asst. Public Defender, Frankfort, for movant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for respondent.
   OPINION AND ORDER

The motion of Charles Dorian Braden, for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered May 19,1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinions in Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978), and Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978).

All concur.