author: SHANNON, Justice.

text:
    TRAVIS COUNTY CHILD WELFARE UNIT, Appellant, v. Robert Harold VANCE, Appellee.
    No. 12710.
    Court of Civil Appeals of Texas, Austin.
    May 3, 1978.
    Jacqueline Strashun, James D. Baskin, III, Travis County Juvenile Court, Austin, for appellant.
    Noel R. Cain, Bigham, Cain & Mahler, Belton, for appellee.
   SHANNON, Justice.

This appeal is from a judgment which granted a biological father’s petition for voluntary legitimation of his child. Tex. Family Code Ann. § 13.21, et seq. (Supp. 1978). We will reverse that judgment.

Appellant, Travis County Child Welfare Unit, filed suit in district court of Travis County to terminate the parent-child relationship between Cassius William Disbrow and his mother, Sheron Elaine Skiles. Appellant also sought termination of the parent-child relationship between Cassius and his “legal” father, Cassius Lea Disbrow, and his biological father, appellee Robert Harold Vance. Disbrow, although served, made no appearance. Mrs. Skiles filed a waiver of citation and an affidavit of relinquishment of parental rights. Vance filed an answer and a cross-action in the form of a petition for voluntary legitimation of the child. By his petition Vance sought an order judicially establishing Cassius as his legitimate child and appointing Vance as the child’s managing conservator.

Upon trial to the court judgment was entered terminating the parent-child relationship between the boy, his mother, and Disbrow. The judgment, however, granted Vance’s petition for voluntary legitimation and also appointed Vance managing conservator of the child.

Texas Family Code Ann. § 13.21 affords the biological father the opportunity to make his child legitimate and to become a “parent.” The court is required to enter a decree designating the child as the legitimate child of its father and the father as the parent if the court finds that:

(1) the parent-child relationship between the child and its original mother has not been terminated by a court decree;
(2) a statement of paternity has been executed by the biological father; and
(3) the mother or the managing conservator has consented to the decree. § 13.21(b).

If the entry of the decree is in the “best interest of the child,” the court may consent to the legitimation of the child even though the mother or the managing conservator do not consent. § 13.21(c).

In the case at bar the mother-child relationship had not been terminated and the statement of paternity had been executed, but the mother had not consented to the decree of legitimation. The district court, nevertheless, granted the petition for legitimation and conservatorship upon the basis that the entry of that order was in the “best interest of the child.” § 13.21(c).

Appellant’s point of error is that the district court erred by finding upon factually insufficient evidence that the “best interest” of the child would be served by granting the petition for voluntary legitimation. In reviewing a factual sufficiency point of error the court considers all of the evidence to determine whether the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Cassius was born in May of 1974 in South Dakota. At the time of Cassius’ birth his mother was living with, but not married to, Cassius Lea Disbrow. Disbrow did not father the child, but he permitted his name to be placed on the child’s birth certificate because “. . .he wanted the baby to have a name.”

Vance is the child’s biological father. Mrs. Skiles met Vance and moved in with him in Belton, Texas. About two months later Cassius was conceived. Mrs. Skiles testified by deposition that she left Vance about three weeks later because Vance became violent when drunk and he at times thrashed her during his drinking bouts. Mrs. Skiles testified that she saw Vance some time afterward and told him that she was pregnant by him. Vance did not offer to help her.

Mrs. Skiles testified that during her stay in South Dakota, she kept in communication with Vance’s sister, Darlene Gangloff, who lived in the trailer next to Vance. One of Mrs. Skiles’ children was living during this time with Mrs. Gangloff.

After Cassius’ birth his mother returned with him to Texas. She then married and separated from Danny Skiles. Mrs. Skiles and Cassius afterward lived in Austin. Mrs. Skiles requested in April of 1976 that Cassius be placed in adoption through the welfare agency. Appellant called Vance in November of 1976 concerning the relinquishment of his rights to Cassius, and for the first time since Cassius’ birth, Vance indicated an interest in the child.

Vance is thirty-eight and unmarried. He lives in a small trailer in Belton. He works as a “groundsman” in building electrical highlines. He commands a substantial wage, but his earnings depend upon favorable weather and construction demand.

By a previous marriage Vance has three teen-age daughters. Although Vance is required by the divorce decree to pay one-hundred dollars each month in child support, he has made no child support payments during the past two or three years.

Other than gifts of toys and clothes worth thirty to forty dollars, Vance never contributed anything for the support of Cassius. Vance testified that after he learned that Cassius was with the welfare agency he offered to make payments. The social worker, according to Vance, told him that his support was not necessary since “. . . it was a Federal Government thing. . . .” The social worker told him that she would call or write him. if support were needed. Vance testified that because the agency had not called him, he thought that his support was not necessary.

With respect to his plans for Cassius, Vance testified that he would employ a teen-age baby-sitter to stay with Cassius during the day in his sister’s trailer house. His sister would not be at home because she works. He planned also for Cassius to sleep at his sister’s trailer house. Upon investigation by a Bell County social worker it was learned that the prospective baby-sitter was also a prospective bride. The baby-sitter intends to keep Cassius at her parents’ trailer or perhaps at her future home, wherever that may be. Vance’s alternate plan was to place Cassius in a day care center.

From November of 1976 to trial time in May of 1977, Vance visited Cassius seven times. At one time there was a seven-week gap between visits.

Vance claimed that he had overcome his drinking problem, although he admitted that he was serving a probated sentence received for conviction for driving while intoxicated in the autumn of 1976.

Appellant called three social workers who had observed and worked with Cassius in his placement in foster care. Their testimony was that Cassius’ best interest would be served by a two-parent home which provided continuity, stability, security, and particularly a strong mother figure. It was their view that Vance or his projected plans did not meet Cassius’ needs in those respects.

Upon request the court filed findings of fact and conclusions of law. The court viewed the facts to be that Vance loves the child, is concerned for the child’s welfare, and desires to discharge his duties as father. The court found that Vance is able and will “amply” support the child. The court found that Vance had established a permanent residence in Bell County and “. can and will establish a good and stable home for the child.” Further, the court observed that Vance has made medical and child care plans for Cassius. The court found that Vance’s sister will provide “. . .a strong mother figure for the child,” and that the sister and her family will provide “. . .a close family unit for the child ... to identify with.” With respect to Vance’s past failure to support the child, the court determined that Mrs. Skiles was a transient whose whereabouts were unknown to Vance and that Mrs. Skiles made no attempts to seek support from Vance. Further, Vance was not ordered by a court to make support payments. The court found that Vance, upon learning of the child’s need for support, offered support.

The court concluded that Vance’s failure to support the child was excused, and that termination of Vance’s “parental rights” was not in the best interests of the child. The court concluded further that legitimation of the child and creation of the parent-child relationship between Vance and Cassius was “. . .in the best interest of the child.” It was also in the best interest of the child to appoint Vance as managing conservator.

It is the child’s best interest, and not the interest of the biological father, which must be served by legitimation. § 13.21(c). Vance’s love for the child was, at best, late in season. When he was told that he was to become a father, he did nothing to assist or aid the child’s mother. From his sister Vance knew the whereabouts of Mrs. Skiles and that she had given birth to the child. Still Vance made no offer to support the child. Vance did not even make an effort to see the child until he learned that the agency was initiating procedures to place the child in adoption. Although he was financially able to support the child, Vance excused himself from contributing because he was told one time that assistance was not necessary. Vance’s past disregard for the child’s welfare is convincing evidence that he has but faint devotion for the child.

The testimony was that Cassius needed continuity, stability, security, and particularly a strong mother figure. Vance is not married and the only “mother figure” which he can offer is his married sister. Even so, his sister could function as mother only part-time because she works. During the day Cassius would be cared for by a teen-age baby-sitter or by attendants in a day care center. In addition, Vance is required on occasion to be gone from home for days because of his work. Those absences, although unavoidable, would not contribute to Cassius’ need for continuity and stability.

Vance has suffered from a drinking problem. He becomes violent and abusive when he drinks. It could not be in the best interests of the child to be placed with a person of those habits. Although Vance testified that he has overcome his problem with drink, the fact that Vance was convicted recently of driving while intoxicated argues against his professed turnabout in behavior.

Vance has failed to support his legitimate children even though under court order. His reason for nonpayment was that he receives no tax benefit from making the support payments. His reason for nonpayment is, of course, no excuse. He appears heedless of his duty, apart from law, to support his children as best he can. Vance’s promise of future support of Cassius may be measured by his past indifference to the welfare of Cassius and his daughters. De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359 (1960); D_ F_ v. State, 525 S.W.2d 933 (Tex.Civ.App.1975, no writ).

We have considered all of the evidence. We have concluded that the court’s finding that it was in the best interest of the child to grant Vance’s petition for voluntary legitimation was so contrary to the great weight and preponderance of the evidence as to be clearly wrong. The judgment is reversed and the cause is remanded to district court for new trial.


source: Caselaw Access Project

author: ROBERTSON, Justice.

license: Public Domain

text:
    Maxine HAYS, Appellant, v. B. L. SPARKS, Appellee.
    No. 19501.
    Court of Civil Appeals of Texas, Dallas.
    May 3, 1978.

      Harold F. Curtis, Jr., Greenville, for appellant.
    Tom O’Connell, Plano, for appellee.
   ROBERTSON, Justice.

This is a venue case. B. L. Sparks, a resident of Collin County, Texas, sued Maxine Hays, a real estate agent residing in Rains County, Texas. Sparks sought damages arising from alleged fraudulent representations made by Hays, the broker in a real estate sale. Hays filed her plea of privilege, but Sparks controverted the plea, arguing that the case was one of fraud within the venue exception provided in Section 7 of Article 1995, Texas Revised Civil Statutes. After a hearing, the plea of privilege was overruled and Hays now appeals. We reverse and render.

The primary question on this appeal is whether there is sufficient evidence of fraud to support venue in Collin County under Section 7 of Article 1995. That section provides:

In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.

To sustain venue under this subdivision, a party must establish all elements of an actionable fraud, including a showing of damages. Hudson & Hudson Realtors v. Savage, 545 S.W.2d 863 (Tex.Civ.App.-Tyler 1977, no writ); Sanders v. Select Ins. Co., 406 S.W.2d 937 (Tex.Civ.App.-Dallas 1966, no writ).

We conclude that there is insufficient evidence of damages to support venue under subdivision 7 of article 1995. Fraud in real estate transactions is governed by Section 27.01 of the Business and Commerce Code. Section 27.01(b) provides that the measure of actual damages is “the difference between the value of the real estate or stock as represented or promised, and the actual value in the condition in which it is delivered at the time of the contract.” There is no evidence in this case that the property is worth less with forty feet of water frontage than it would be with the represented sixty-five feet. While it is true that proof of the specific amount of damages is unnecessary at the venue hearing, Brooks v. Parr, 507 S.W.2d 818 (Tex.Civ.App.-Amarillo 1974, no writ), Sparks was obligated to show, at a minimum, that he had suffered some damage under the measure of damages set forth in Section 27.01(b). The only evidence of damages in this case is that Sparks is unable to use the tract as he originally intended; however, this statement, standing alone, is insufficient to show that any recoverable damages have been sustained. Remote or speculative damages which are too uncertain for ascertainment cannot be recovered in a suit for fraud. See Hudson & Hudson Realtors v. Savage, supra, at 868; Success Motivation Institute, Inc. v. Lawlis, 503 S.W.2d 864 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n. r. e.). The measure of damages for fraud is objective, namely value differential, not subjective, as in deprivation of a use which is purely personal in nature. Since there is no showing that Spark’s inability to use the property as he intended resulted in a reduction in the objective value of the property, we conclude that there is insufficient evidence of damages to support venue in Collin County.

Accordingly, the judgment of the trial court is reversed, and judgment is rendered that this cause be transferred to Rains County, Texas.


author: COULSON, Justice.

text:
    JOHNSON RADIOLOGICAL GROUP et al., Appellants, v. Robert MEDINA et ux., Appellees.
    No. 1807.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 3, 1978.
    Rehearing Denied May 24, 1978.
    Preston Shirley, Russell Serafín, Mills, Shirley, McMicken & Eckel, Galveston, Nicholas Zito, Jack R. Martin, Derral K. Sperry, Martin & Sperry, Houston, for appellants.
    Gerald J. Goodwin, Brock, Williams & Boyd, Houston, for appellees.
   COULSON, Justice.

Johnson Radiological Group, Danforth Memorial Hospital, Inc., and Jesse B. Johnson appeal from an order reinstating a case filed against them by Robert and Elisa Medina after the case had been dismissed for want of prosecution. Although we believe the reinstatement order is void since it was entered after the trial court had lost subject matter jurisdiction, we hold that we do not have jurisdiction to entertain an attack on it. We accordingly dismiss the appeal.

On July 5, 1977 the Tenth District Court of Galveston County dismissed the Medinas’ suit for want of prosecution. On July 8th, the clerk of the court sent a postcard to the Medinas’ counsel stating that the case had been dismissed. That postcard was received “on or about July 11th or 12th.” On August 4th, the Medinas filed a motion to reinstate. On that same day, the trial court set a show cause hearing on reinstatement for August 18th. That hearing was held and on September 6th, the court entered a notation on its docket sheet that the Medi-nas’ motion for reinstatement was granted. On October 18th, a formal order of reinstatement was signed.

Since the Medinas had notice of the order of dismissal within twenty days after its signing, the trial court had jurisdiction to order reinstatement only during the thirty days which followed July 5th, which is to say, only until August 4th. N-S-W Corporation v. Snell, 561 S.W.2d 798 (Tex.Sup.1977); Calaway v. Gardner, 525 S.W.2d 262 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); Tex.R.Civ.P. 165a. Reinstatement was not granted within that period, and as a result the court’s power over its dismissal judgment was lost. Since it was entered without authority the reinstatement order of September 6th is void. The fact that the motion for reinstatement was filed and an order to show cause was entered within thirty days from the date of dismissal for want of prosecution is immaterial; reinstatement itself must have been ordered within the thirty day period. N-S-W Corporation v. Snell, 561 S.W.2d 798 (Tex.Sup.1977); Baughtman v. Electric Ins. Co., 553 S.W.2d 5 (Tex.Civ.App.-Waco 1977, writ ref’d n. r. e.).

Despite our conclusion that the order is void, we nevertheless find that we must dismiss this appeal. An order reinstating a case after its dismissal is inherently, and beyond question, interlocutory. This court has no jurisdiction to act on appeals from interlocutory orders save in the three situations provided for by statute, i. e., pleas of privilege (art. 2008), appointments of receivers or trustees or orders overruling motions to vacate such appointments (art. 2250), and temporary injunctions (art. 2251). Henderson v. Shell Oil Co., 182 S.W.2d 994 (Tex.Sup.1944).

We are aware that there is authority for the proposition that a court has the power to hear appeals from void interlocutory orders for the limited purpose of declaring their invalidity and setting them aside. Caddell v. Gray, 544 S.W.2d 481, 483 (Tex.Civ.App.-Waco 1976, no writ); Matlock v. Williams, 281 S.W.2d 229, 230 (Tex.Civ.App.-Beaumont 1955, no writ); see Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961). We deem such a rule ill considered since it opens the appellate courts to a potentially unlimited number of interlocutory appeals, with a concomitant frustration of the orderly and swift presentation of cases in the trial courts. Moreover, we believe that this rule is not the law of Texas, a belief reinforced by the supreme court’s recent treatment of the matter of N-S-W Corporation v. Snell, 561 S.W.2d 798 (1977). In that case, the court heard a mandamus action seeking to compel a judge to set aside a reinstatement order entered after the court had lost jurisdiction of the case. The fact that the supreme court accepted jurisdiction to hear this matter is significant since that court will not hear mandamus actions if the controversy can be resolved by appeal. State ex rel. Pettit v. Thurmond, 516 S.W.2d 119 (Tex.Sup.1974); Pope v. Ferguson, 445 S.W.2d 950 (Tex.Sup.1969). We view the court’s exercise of jurisdiction in the N-S-W case as impliedly holding that no appeal lies from a void order of reinstatement. We consequently dismiss this appeal.


author: J. CURTISS BROWN, Chief Justice.

text:
    MINI-TAPE, INC., Appellant, v. Leonard A. FIELDS et al., Appellees.
    No. 1793.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 17, 1978.

      Sheldon E. Richie, Philip P. Sudan, Jr., Richie, Greenberg & Brackman, Houston, for appellant.
    Dan H. Hennigan, Ray J. Keller, Houston, for appellees.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order temporarily enjoining the appellees from representing that they are the owners or licensees of an exclusive license to manufacture, distribute, license or sell a patented product known as a “mini-tape.”

Mini-Tape, Inc. (Mini-Tape or appellant) is the owner of patent rights to a miniature 8-track tape cartridge known as a mini-tape. In 1976, Roger Findley, who was then the president and a director of Mini-Tape, proposed to the members of the Board of Directors of Mini-Tape that he and Leonard A. Fields be authorized to negotiate a license agreement for the manufacture and distribution of mini-tapes and mini-tape accessories. Findley and Fields were successful in negotiating a license agreement, and, on February 15, 1977, Dr. Ronald P. Sibson was granted the exclusive world-wide license to manufacture, sell and distribute mini-tapes and mini-tape accessories. In return, Dr. Sibson paid $52,000 to Mini-Tape and agreed to pay the additional sum of $48,000 by April 30, 1977. On the day following the execution of the license agreement, Dr. Sibson assigned the exclusive license to Trinity International Corporation (Trinity). Leonard Fields is the president of Trinity. Trinity failed to pay the $48,000 which was due on April 30,1977 and continues to refuse to do so. Trinity contends that its obligation to pay the $48,000 terminated because Mini-Tape breached the license agreement in two respects: (1) the trade name “Mini-Tape,” which Mini-Tape sold to Trinity, allegedly had been registered previously to another company; and (2) the mini-tapes allegedly failed to function properly. Following Trinity’s failure to pay the $48,000, Mini-Tape instituted this lawsuit against Trinity, Fields and Findley, asserting that they conspired to negotiate the exclusive license agreement at an excessively low price and that Trinity breached the agreement by failing to pay the $48,000, by failing to submit quarterly accountings to Mini-Tape, and by failing to make quarterly royalty payments to Mini-Tape. On October 31,1977, the trial court temporarily enjoined Trinity and Fields (the appellees) from directly or indirectly holding themselves out as being the owners or licensees of an exclusive license for the mini-tape system and from any further licensing of the mini-tape system during the pendency of this litigation, from which order the appellant brings this appeal.

The appellant contends, in his two points of error, that the trial court erred in failing to enjoin the appellees from exercising a nonexclusive license to manufacture, distribute or sell mini-tapes and mini-tape accessories. The function of a temporary injunction is to preserve the status quo pending final litigation of a controversy. Story v. Story, 142 Tex. 212, 176 S.W.2d 925, 927 (1944). In order to establish his right to the issuance of a temporary injunction, the claimant need only establish a “probable right” and “probable injury”; he need not show that he will ultimately prevail in the litigation. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). The trial court is endowed with broad discretion in determining whether to grant a temporary injunction, and its decision will be reversed only if the court clearly abused its discretion. Id.

The trial court did not abuse its discretion by failing to enjoin the appellees from exercising a nonexclusive license to manufacture, distribute or sell mini-tapes. The exclusive license agreement between the appellant and the appellees provides, in pertinent part:

If Licensee shall violate this agreement in any fashion, including but not limited to the failure to pay royalties as herein prescribed or failure to comply with production standards as herein set out, then in such event, Licensor shall have the option to cancel the exclusive provisions of this agreement, provided however that Licensee may continue to manufacture and distribute Mini-Tape products to those customers it serves at time of default, under [the] terms hereof and all of the contractual terms hereunder shall remain in full force and effect except for those parts of the contract concerned with exclusivity of rights of Licensee. If desired, Licensee, after being deemed to be in default, may choose to cancel all of the terms of this contract and thereafter, shall not, directly or indirectly involve itself in the manufacturing or distributing of Mini-Tape products unless same shall be under a new contract executed as between Licensor and Licensee.

(Emphasis added). The license agreement clearly gives the appellees an exclusive license to manufacture and distribute mini-tapes to the customers it had at the time of default. Whether the appellant and the appellees share the nonexclusive right to manufacture and distribute mini-tapes to all other customers is a question more appropriately addressed in a trial on the merits. ■ The appellant’s points of error are overruled.

The appellees argue, by way of cross points, that the trial court abused its discretion in granting the temporary injunction because the appellant has an adequate remedy at law in the form of money damages for the appellees’ alleged breach of the license agreement. We reject that argument. The trial court does not abuse its discretion when it grants a temporary injunction if the petition alleges a cause of action and there is some evidence that “tends to sustain it.” Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). Although conflicting evidence was presented in the hearing on the temporary injunction, there was some evidence tending to show that the appellees breached the license agreement. The mini-tape concept is new and its introduction on the market has met with some resistance and skepticism from record and tape companies. If Trinity represents itself as having the exclusive license to manufacture, sell and distribute mini-tapes when, in fact, it may not, Mini-Tape’s chances of marketing the tapes in the music recording industry in the future might be irreparably damaged. The trial court did not abuse its discretion in granting the temporary injunction.

We note, in conclusion, that this appeal appears to have been unnecessary. As Chief Justice Guittard observed in Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684 (Tex.Civ.App.-Dallas 1976, writ ref’d n. r. e.),

[w]e see no reason why the case could not have been prosecuted to final judgment in less time than that required by this interlocutory appeal, which decides nothing except whether the status quo should be preserved pending trial on the merits. A hearing on an application for temporary injunction does not serve the same purpose as the hearing on the merits, nor should an appeal from a preliminary order be used to obtain an advance ruling on the merits. The most expeditious way of obviating the hardship of an unfavorable preliminary order is to try the case on the merits and thus secure a hearing in which both facts and law may be fully developed, and then both trial and appellate courts can render judgment finally disposing of the controversy.

544 S.W.2d at 689.

The appellant’s points of error and the appellees’ cross points having been fully considered and overruled, the order of the trial court granting the temporary injunction is affirmed.

Affirmed.


author: COULSON, Justice."

text:
    George W. KIRK, Appellant, v. Glenda BARNETT et al., Appellees.
    No. 1774.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 17, 1978.
    David L. Walker, W. H. Jordon Jr., Houston, for appellant.
    John Robert King, McAllen, for appellees.
   COULSON, Justice."

In 1970 Geneva Worsham and her husband purchased, by executory contract for conveyance or “contract for deed,” a house in Pasadena, Texas from George Kirk and his wife. Both marriages subsequently failed and under the terms of the respective property division agreements Geneva Wors-ham and George Kirk came to own their former spouses’ interests in the property. In 1976 Kirk filed a suit claiming that Worsham was delinquent in her payments under the contract, and therefore in default, and praying that he be awarded money damages and recovery of possession of the property. Following a nonjury trial, the court entered a take-nothing judgment. We affirm.

Forfeitures of interests in realty resulting from defaults under contracts for deed are viewed with disfavor by the law. One evidence of this is the notice requirement created by article 1301b. Under that statute a forfeiture of the interest of a purchaser in default under an executory contract for conveyance of realty, used or to be used as the purchaser’s residence, may be enforced only after the statutorily mandated form of notice of the seller’s intention to enforce forfeiture has been given to the purchaser. Tex.Rev.Civ.Stat.Ann. art. 1301b (Supp.1978). Both sides in this appeal agree that the specific form of notice required by article 1301b was not given to Worsham, but it is Kirk’s assertion that, since Worsham has leased the property to Glenda Barnett, it is not “the purchaser’s residence” and, therefore, the statute does not apply.

Worsham testified that she had resided on the property and considered it her home, that she had left it only to join her husband and attempt a reconciliation with him, that he had been the one who negotiated the lease, and that letters and actions by Kirk had made her uncertain about her ability to keep the property, thereby causing her to permit Barnett to remain as a month to month tenant, but that if the forfeiture were avoided she intended to return and use the property as her residence. We believe that this testimony was sufficient to bring Worsham within the language of the statute (“used or to be used as the purchaser’s residence”) and to afford her its protection. Consequently, Kirk’s failure to give the proper form of notice precludes him from enforcing a forfeiture of Worsham’s interest.

It follows from this that the trial court properly denied his claim for recovery of the fair rental value of the property during the period following Worsham’s alleged default. Since he cannot enforce a forfeiture of her interest, his claim for money damages can only be for the balance due on the purchase price, not the rental value. See Tom v. Wollhoefer, 61 Tex. 277, 281 (1884).

Affirmed.


text:
    Ex parte Dewey Wayne CARPENTER.
    No. 1876.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 17, 1978.
    Bob Chrane, Houston, for appellant.
    Charles G. Schaeffer, Vandervoort & Schaeffer, Houston, for appellee.
   COULSON, Justice.

Relator, Dewey Wayne Carpenter, filed a petition for writ of habeas corpus seeking review of an order of the 311th District Court of Harris County holding him in contempt for failing to comply with certain provisions of a divorce decree entered by that court. We find that one of the provisions relator was held in contempt of court for disobeying is vague and indefinite. Incarceration based on disobedience of such a provision is illegal, and, since but a single penalty was assessed against relator for his disobedience of the several provisions of the court’s decree, the entire penalty must fall and the relator be released from custody.

Relator and his wife, Thelma Jean Carpenter, were divorced on March 20, 1975. The divorce decree awarded custody of their minor child to the wife and ordered relator to pay fifty dollars each month as child support and additionally provided:

IT IS FURTHER ORDERED AND DECREED that Respondent, DEWEY WAYNE CARPENTER, timely pay for any medical, dental, and hospital charges with respect to the child to the extent such charges and expenses exceed in-force insurance coverage on such child.

Following relator’s alleged failure to comply with these provisions of the decree, his wife filed a motion to have him held in contempt. The court sustained this motion and ordered relator imprisoned for ten days and until he purged himself of contempt by paying:

(1) $650.00 arrearage in child support;
(2) $390.75 arrearage in medical expenses;
(3) Court costs of contempt proceeding.

Relator urges that the medical expenses provision of the divorce decree is vague and indefinite. We agree. The word “timely” is imprecise and subjective; it does not readily inform the person of the duty imposed upon him. Such an order is unenforceable and cannot support a contempt judgment. Ex parte Slavin, 412 S.W.2d 43 (Tex.Sup.1967).

The court affixed a single penalty for all of relator’s contemptuous acts. When one penalty is affixed for more than one act of contempt, and it is found that the relator could not be held in contempt for one of the acts, the whole judgment is tainted and void, and a person held under it is illegally restrained of his liberty. Ex parte Stanford, 557 S.W.2d 346 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ); Ex parte Werner, 496 S.W.2d 121 (Tex.Civ.App.-San Antonio 1973, no writ). But see Ex parte Lazaro, 482 S.W.2d 12 (Tex.Civ.App.-San Antonio 1972, writ dism’d) (void portion of contempt order stricken, remainder enforced).

Relator is ordered discharged.


author: PER CURIAM.

text:
    Wanda WELLS, Appellant, v. James WELLS, Appellee.
    No. 1881.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 17, 1978.

      John V. Elick, Elick & Elick, Bellville, for appellant.
    C. E. Clover, Jr., Conner, Odom & Clover, Sealy, for appellee.
   PER CURIAM.

Wanda Wells appeals from a divorce decree which was entered on January 24, 1978. In lieu of filing a cost bond or making a deposit pursuant to Texas Rule of Civil Procedure 356, appellant filed an affidavit of inability to pay costs of appeal pursuant to Texas Rule of Civil Procedure 355 on February 13, 1978. The pauper’s oath was contested, and, on March 29,1978, the trial court sustained the contest. On March 31, 1978, appellant filed a cash deposit in lieu of an appeal bond. Such filing occurred sixty-six days after the rendition of final judgment, thirty-six days too late. Tex.R.Civ.P. 356.

The filing of a pauper’s oath does not toll the appellate time table if the contest is sustained. See Johnson v. Barge, 552 S.W.2d 508 (Tex.Civ.App.-Dallas 1977, writ ref’d n. r. e.). The cash deposit was not timely filed, and, under Texas Rule of Civil Procedure 363, the appeal was never perfected. We are therefore compelled to dismiss this suit for lack of jurisdiction. Glidden Company v. Aetna Casualty & Surety Company, 155 Tex. 591, 291 S.W.2d 315 (1956); Washington v. Golden State Mutual Life Insurance Co., 405 S.W.2d 856 (Tex.Civ.App.-Houston), writ ref’d per curiam, 408 S.W.2d 227 (Tex.Sup.1966); see Lowry v. Lowry, 481 S.W.2d 462 (Tex.Civ.App.-Austin 1972, writ dism’d); Lucches v. Specia, 281 S.W.2d 725 (Tex.Civ.App.-San Antonio 1955, writ ref’d).

Rule 363 requires a careful eye. A cursory reading of the rule might lead one to believe that the mere filing of the affidavit in lieu of the bond would perfect the appeal, but this is so only when no contest is filed or when the contest is overruled. If the contest is sustained, then the appealing party is required to file a cost bond, and it must still be filed within the time frame prescribed by Rule 356. Johnson v. Barge, supra.

Therefore, a person seeking to appeal on a pauper’s oath puts all his chips on the line. The affidavit must be filed within twenty days after rendition of judgment or order overruling the motion for new trial, but the opposing party has ten days after the giving of notice of such affidavit to file a contest. The court then sets the contest for hearing. So in most every instance, by the time there is a ruling on the contest, the time for filing a cost bond has expired, and, if the contest is sustained, the party attempting the appeal is out of court.

Appellant tendered the transcript to this court on April 13, 1978, seventy-nine days after the rendition of final judgment. Texas Rule of Civil Procedure 386 requires that the transcript be filed within sixty days of the rendition of final judgment. This is another reason why this court does not have jurisdiction over this appeal. Cinemas Southwest, Inc. v. Jeffries, 550 S.W.2d 747 (Tex.Civ.App.-Corpus Christi 1977, no writ); Perez v. Los Fresnos State Bank, 512 S.W.2d 796 (Tex.Civ.App.-Corpus Christi 1974, no writ); Lamb v. Lamb, 459 S.W.2d 689 (Tex.Civ.App.-Texarkana 1970, no writ); see Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.Sup.1977).

Appellant has filed a motion to extend the time to file the transcript in this case. Such motion was filed on April 27, 1978, approximately thirty-three days after the last prescribed day for filing. Texas Rule of Civil Procedure 21c allows for the granting of extensions of time but the motion must be filed within fifteen days of the last day for filing. Appellant’s motion is eighteen days too late and cannot be considered. See Meshwert v. Meshwert, supra; Cinemas Southwest, Inc. v. Jeffries, supra; Seaway Pipeline, Inc. v. Schwebel, 547 S.W.2d 313 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ).

Appellee has filed with this court a motion to affirm on certificate pursuant to Texas Rule of Civil Procedure 387. However, since appellant’s cash deposit was not filed within the thirty-day period allowed by Texas Rule of Civil Procedure 356, no appeal was perfected. Tex.R.Civ.P. 363; see Carroll v. Petro-Chemical Transport, Inc., 502 S.W.2d 871 (Tex.Civ.App.-Beaumont 1973), modified and affirmed on other grounds, 514 S.W.2d 240 (Tex.Sup.1974); Kearney v. Braley, 470 S.W.2d 309 (Tex.Civ.App.-Houston [1st Dist.] 1971, no writ); Lurches v. Specia, supra; Tex.R.Civ.P. 387.

The attempted appeal is dismissed for lack of jurisdiction.


text:
    William Jacob RELFORD, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    May 23, 1978.
    Edward C. Monahan, Asst. Public Defender, Frankfort, for movant.
    Robert F. Stephens, Atty. Gen., Robert W. Hensley, Mark F. Armstrong, Asst. At-tys. Gen., Frankfort, for respondent.
   OPINION AND ORDER

We are of the opinion that discretionary review of this case, 558 S.W.2d 175 (Ky.App.), was improvidently granted.

The order granting discretionary review is vacated and the case is remanded to the Court of Appeals for the issuance of the mandate.

All concur.


author: WHITE, Judge:

text:
    FORD MOTOR CREDIT COMPANY, Appellant, v. Jesse L. GIBSON, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1977.
    Rehearing Denied May 5, 1977.
    Discretionary Review Denied Sept. 13, 1977.

      Frank G. Dickey, Jr., Landrum, Patterson & Dickey, Lexington, for appellant.
    Larry D. Raikes, Hodgenville, for appel-lee.
    Before WHITE, HOGGE and LESTER, JJ.
   WHITE, Judge:

This appeal is from a judgment for appel-lee in the amount of $1,000.00 compensatory damages and $1,000.00 punitive damages on a claim of false imprisonment. Appellee was also awarded $450.00 on his claim of breach of contract on the theory that he had been damaged in that amount by appellant’s failure to give him notice of its termination of a secured interest in appellee’s car. The appellant had moved for a directed verdict and judgment n.o.v., both' of which were denied. The appellant appeals on both issues, viz: the alleged false imprisonment and the contract claim.

Our consideration of the false imprisonment claim is confined to whether or not there was sufficient evidence to submit this issue to the jury; and, it is obligatory for us to examine the testimony in the light most favorable to the appellee. The facts are as follows:

In the summer and fall of 1972, a dispute arose between appellee Gibson and Ford Motor Credit Company, hereinafter FMCC, over the amount of the monthly payment that Gibson was to make on a car he had recently purchased. In order to encourage Gibson to pay the amount FMCC was demanding, several visits were made by FMCC agents to see him.

On January 17, 1973, Richard Kesselring went to Gibson’s home, located 12 miles from Hodgenville, Kentucky, in an attempt to persuade Gibson to turn over the automobile or make his payments current. Gibson informed him that the matter was being handled by his attorney in Hodgenville and agreed to go with Kesselring to see the attorney. Upon their arrival at Hodgen-ville, they discovered that Gibson’s attorney was not at home. Kesselring then called his superior from a public phone, and the superior asked to talk to Gibson. During this phone conversation, Kesselring’s superi- or told Gibson that unless Gibson either signed certain papers or turned over the keys to his car, Gibson would have to walk home. This same threat was repeated by Kesselring in a rough voice, but no physical force or threat of force was involved in either instance. Kesselring then relented and returned Gibson to his home.

The case law in this jurisdiction defines false imprisonment as being any deprivation of the liberty of one person by another or detention for however short a time without such person’s consent and against his will, whether done by actual violence, threats or otherwise. Grayson Variety Store, Inc. v. Shaffer, Ky., 402 S.W.2d 424 (1966); Great Atlantic & Pacific Tea Co. v. Billups, 253 Ky. 126, 69 S.W.2d 5 (1934).

In order to constitute a case of false imprisonment, it is essential that there be some direct restraint present. Restraint constituting a false imprisonment may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if the plaintiff does not submit. Great Atlantic & Pacific Tea Co. v. Billups, supra.

On the other hand, “submission to the mere verbal direction of another unaccompanied by force, or threats of any character, does not constitute false imprisonment . . . Bare words are insufficient to effect an imprisonment if the person to whom they are spoken is not deprived of freedom of action.” Grayson Variety Store, Inc. v. Shaffer, supra.

Reviewing the evidence in this case, it is obvious there was no force or threat of force against the appellee. Furthermore, we do not believe that appellee considered himself to be in reasonable apprehension of force if he failed to submit to appellant’s demands. In fact, quite to the contrary, there is evidence that appellee, far from being in apprehension of force, actually undertook physical action to force the appellant’s agent to return him to his home.

As authority for his position, appellee relies on the liberal statement of the rule in Great Atlantic & Pacific Tea Co. v. Billups, supra. That case, however, held that there was no false imprisonment.

There the facts were that a grocer accosted a customer outside his store and accused her in a rough voice of not paying for some candy. He blocked her path and insisted she return to the store, but she refused and even paid him again for the candy rather than return to the store. The court said of the grocer’s actions that “What he said and did was not sufficient to induce a reasonable apprehension that force would be used if Mrs. Billups did not submit.” We find this case to be controlling.

Since appellee failed to make a case based upon the requisite elements of false imprisonment, the court below erred in denying the appellant’s motion for a directed verdict.

We turn now to the second issue, relating to recovery for damages of an alleged breach of contract. Appellee was permitted recovery of damages on a claim for breach of an implied duty of notification of termination of a security interest. It appears from the evidence that on January 21, 1973, just four days following the confrontation set out in issue one above, the automobile in controversy was wrecked. Since FMCC was the loss payee the insurance policy, no notice was given to Gibson that the loss had been paid or that FMCC terminated its lien on the car subsequently on April 13, 1973.

Appellee strenuously argues in his brief that Appellant had an implied duty to personally notify Appellee when it terminated the security interest. We disagree. Ky. Rev.Stat. § 355.9 — 404 does not provide for such notification to the debtor, unless a written demand has been made on creditor. The notice of termination which Appellee contends he should have been given is on public record in the County Court Clerk’s office and is constructive notice to all persons including the Appellee. This breach of contract claim likewise should not have been submitted to the jury.

The judgment is reversed.

All concur.


author: HOWERTON, Judge.

text:
    Millard SMITH, suing as adoptive father and grandfather of Larry Bennett Hill, Appellant, v. DIXIE FUEL COMPANY and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    March 11, 1977.
    Rehearing Denied June 10, 1977.
    Discretionary Review Denied Oct. 3, 1977.

      J. Leonard Davis, Harlan, for appellant.
    James S. Greene, J., Harlan, William L. Huffman, Director, Workmen’s Compensation Bd., Dept, of Labor, Frankfort, for appellees.
    Before HOWERTON, GANT and WHITE, JJ.
   HOWERTON, Judge.

In 1964, Larry Bennett Hill was legally adopted by his grandfather, Millard Smith. Larry resided thereafter with his adoptive father and not with his natural father. It is uncontested that the natural father, Woodrow Stanley Hill, visited Larry frequently, purchased most or all of his clothing, and gave the adoptive father money over the years for the support of his natural son.

On March 27, 1974, Woodrow was killed instantly while working in the mines of the Dixie Fuel Company.

It was stipulated by the parties before the Workmen’s Compensation Board that all requirements for maximum death compensation benefits existed except for the determination “whether or not Larry Bennett Hill was dependent in any degree upon Woodrow Stanley Hill at the time of his death within the meaning of ‘dependency’ under the Kentucky Workmen’s Compensation Act.”

The Board found, and the circuit court affirmed, that since the minor child did not live in the deceased’s household, the resolution of the question rested on whether or not the minor was in the relationship of “child” to the employee under KRS 342.-075(3). The Board concluded that the adoption of Larry terminated his legal relationship of child to his natural parent, citing KRS 199.520(2), and that therefore, Larry was not the “child” of the employee under the Workmen’s Compensation Act.

We are in agreement. While this decision may appear to work a hardship, we believe the language and intent of the legislature is clear under KRS 342.075(3):

No person shall be considered a dependent in any degree unless he is living in the household of the employee at the time of the accident, or unless such person bears to the employee the relationship of father, mother, husband, or wife, father-in-law or mother-in-law, grandfather or grandmother, child or grandchild, or brother or sister of the whole or half blood. (Emphasis ours.)

This subsection (3) is a limitation on subsection (2) which allows the determination of dependency in accordance with the facts of each ease existing at the time of the accident. The limitation is that the person to be a dependent must either live in the household of the employee or be of a certain relationship to the employee, to wit, “child”.

Only the latter consideration is in issue here. Was Larry Bennett Hill the “child” of Woodrow Stanley Hill on the date of Woodrow’s death? Appellant has cited us several cases which he contends show exceptions to KRS 342.075(3). We find upon review of these cases that in each situation the dependent had either the required relationship or lived in the household of the employee.

In the out-of-state cases which Appellant cites from Iowa and Oklahoma where an adopted child was still held to be his natural father’s child under Workmen’s Compensation Acts, it must be considered that in those states the entire scheme of adoption is different from the Commonwealth of Kentucky. In each of those, the adopted child does not even lose his right of inheritance from his natural parent. Even the Social Security Administration found Larry Hill to be the “child” of Woodrow Hill and awarded benefits. But, the Administrative Law Judge did not have to apply Kentucky law which will require more change than this court can accomplish by “interpretation”. If a change is needed, the legislature will have to provide it.

We conclude that under the Workmen’s Compensation Act we must still take notice of KRS 199.520(2) which defines the legal status of an adopted child:

Upon entry of the judgment of adoption, from and after the date of the filing of the petition, the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural, legitimate child of the parents adopting it the same as if born of their bodies. . . (Emphasis ours.)

In Arciero v. Hager, Ky., 397 S.W.2d 50, 52-53 (1965), this state’s highest court in reviewing the provisions of KRS 199.520(2) stated:

We consider it plain that the quoted statute has the effect of excising the adopted child from its ‘blood’ family tree.
We have recognized the principle that the present adoption law envisions a ‘complete breaking off of old ties.’ We have spoken of that approach as one demanded by public policy. Jouett v. Rhorer, Ky., 339 S.W.2d 865. In the just cited case, the question had to do with visitation rights of a natural grandfather of the adopted child — that was spoken of as a ‘personal’ tie that was severed. The opinion expressed the court’s view, however, that ‘ . . the adoption of a child necessarily brings to an end all connections, legal and personal, with any natural parent.’ We consider that view to be the sound one and apply it now as respects the ‘legal’ connection of inheritance.

We believe that this holding is internally consistent with the Workmen’s Compensation Statute itself. KRS 342.085 defines “child” as follows:

(1). ‘Child’ includes stepchildren, legally adopted children, posthumous children and recognized illegitimate children, but does not include married children unless actually dependent.

We believe that a proper result is reached under the statute when a child is considered the “child” of his adoptive father after adoption and not as the “child” of his natural father after adoption.

The judgment below is affirmed.

All concur.


author: GANT, Judge.

text:
    George R. WAGONER, Acting Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Walter T. MILLS, Island Creek Coal Company and Workmen’s Compensation Board, Appellees. ISLAND CREEK COAL COMPANY and George R. Wagoner, Acting Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Walter T. MILLS and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    July 8, 1977.
    Larry L. Johnson, William P. Swain, Thomas H. Watson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellant, Island Creek Coal Co.
    Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for Special Fund.
    William R. Thomas, Madisonville, for ap-pellee, Walter T. Mills.
    Before GANT, HOGGE and VANCE, JJ.
   GANT, Judge.

This is a Workmen’s Compensation action in which the sole issue was whether the Appellee, Walter T. Mills, was suffering from pneumoconiosis from exposure to coal dust within the period of time immediately next prior to his disability within the meaning of KRS 342.316(4). The Workmen’s Compensation Board herein denied the claim and an appeal was taken to the Hopkins Circuit Court. That court, in a “judgment,” remanded the case to the Workmen’s Compensation Board for the purpose of entering in its Findings of Fact and Opinion the date of the claimant’s last injurious exposure, as required by law.

It is from this judgment that the appellants appeal. In the opinion of the court, this is not a final judgment or order within the meaning of CR 54.01 in that it did not adjudicate the rights of any of the parties, requires no additional evidence to be taken, does not terminate the action or operate to divest any party of some right. See Green River Fuel Co. v. Sutton, 260 Ky. 288, 84 S.W.2d 79 (1935); North American Refractories Co. v. Day, 284 Ky. 458, 145 S.W.2d 75 (1940).


author: PARK, Judge.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. UNITED STATES STEEL CORPORATION, Richard Shepherd and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Sept. 23, 1977.
    William A. Rice, Rice & Huff, Eugene Goss, Harlan, for appellees.
    Cyril E. Shadowen, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellant.
    Before PARK, VANCE and WHITE, JJ.
   OPINION AND ORDER

PARK, Judge.

The Special Fund seeks to appeal as a matter of right from a judgment of the Harlan Circuit Court in an appeal to the circuit court from an award of the Workmen’s Compensation Board. In its coun-terstatement filed pursuant to RAP 1.095(b), the appellee-employer questions whether the Special Fund must proceed by a motion for discretionary review rather than by appeal as a matter of right. We elect to treat that portion of the counters-tatement as the equivalent as a motion to dismiss. RAP 1.172.

In questioning whether the Special Fund must proceed by a motion for discretionary review, the employer relies upon CR 73.-01(2), which provides in part:

A motion for review * * * by the Court of Appeals of an appellate decision of the circuit court, shall be made as provided in RAP 1.180. (Emphasis added)

RAP 1.180 relates to motions for discretionary review. The employer suggests that the judgment of the Harlan Circuit Court was “an appellate decision of the circuit court” inasmuch as the circuit court was exercising appellate jurisdiction under the provisions of KRS 342.285 rather than original jurisdiction.

The employer recognizes that RAP 1.180(a) provides:

A motion for discretionary review * * by the Court of Appeals of a judgment of the circuit court in a case appealed to it from another court, shall be prosecuted as provided by this rule * * *. Such review is a matter of sound judicial discretion and will be granted only [when] there are special reasons therefore. (Emphasis added)

The judgment of the Harlan Circuit Court in question was entered in a case appealed to the circuit court from an administrative body, the Workmen’s Compensation Board. The judgment was not entered in a case appealed to the circuit court from “another court.” The employer requests this court to resolve what it considers to be a conflict between the provisions of CR 73.01(2) and RAP 1.180(a).

This court notes that KRS 342.290 specifically authorizes an appeal to the Court of Appeals from a judgment of a circuit court on an appeal from an award of the Workmen’s Compensation Board. In addition, KRS 22A.020(1) provides:

Except as provided in section 110 of the constitution, an appeal may be taken as a matter of right to the Court of Appeals from any conviction, final judgment, order, or decree in any case in circuit court, unless such conviction, final judgment, order, or decree was rendered on an appeal from a court inferior to circuit court. (Emphasis added)

The rules and statutes referred to above are not in conflict.

The provisions of CR 73.01(2) apply only to an appellate decision of the circuit court in a case appealed to it from another court. A motion for discretionary review is not required when the appellate decision of the circuit court was rendered in a case appealed to the circuit court from an administrative body. In appealing from the order of the Harlan Circuit Court pursuant to KRS 342.290, the Special Fund was not required to comply with the provisions of RAP 1.180 relating to motions for discretionary review.

The motion to dismiss the appeal is denied. ALL CONCUR.


author: WINTERSHEIMER, Judge.

text:
    CODELL CONSTRUCTION COMPANY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.
    As Modified Oct. 28, 1977.
    Rehearing Denied Jan. 6, 1978.
    Discretionary Review Denied June 6, 1978.

      William D. Lambert, Ogden, Robertson & Marshall, Louisville, for appellant.
    Dandridge F. Walton, Asst. Atty. Gen., Charles D. Moore, Jr., Robert C. Fields, Dept, of Transp., Frankfort, for appellee.
    Before COOPER, REYNOLDS and WIN-TERSHEIMER, JJ.
   WINTERSHEIMER, Judge.

This is an appeal from a summary judgment which denied relief to a contractor who relied on information furnished by the Highway Department in connection with bids for the construction of grade, drainage and related work on Interstate 71 in Old-ham County. The Highway Department advertised on May 10, 1967, for the construction work and bids were due twenty-three calendar days thereafter. In addition to ninety-one other items of work, the project involved a bid item of 2,122,718 cubic yards of unclassified roadway excavation in the construction of approximately eight miles of interstate highway. Among the bid documents provided by the Highway Department to prospective bidders was a profile showing the line where rock would be encountered. Printed on the plans and contained in the contract documents were specific disclaimer statements to the effect that the information with respect to rock and earth, was solely for the Department’s information and not to be taken as an indication of classified excavation, or the quantity of either rock or earth or any other material involved. The appellant was the successful low bidder for the job. During the construction, appellant put the Department on notice by a letter dated February 28,1968, that it would claim additional compensation as soon as it had exact information as to the quantities and costs involved. The first time the appellant learned what the Highway Department was willing to pay under the contract was on February 17, 1972, the date appellant received the proposed “final estimate”. This estimate indicated that the Highway Department was unwilling to pay for the claimed overrun of rock actually excavated.

Thereafter, appellant made a claim for compensation for the additional work because of changed conditions. This claim was denied by the District Engineer and by the Commissioner of Highways. This suit was commenced in the Franklin Circuit Court on January 5, 1973. The Highway Department moved for summary judgment. The trial court, in a memorandum opinion dated November 8, 1974, held that the disclaimer was effective and that there was no justification for reliance on the furnished estimates. The court indicated that a summary judgment should be entered and thereafter, on January 28, 1975, a final order and judgment was entered dismissing appellant’s complaint. A notice of appeal was filed February 27, 1975. The Supreme Court transferred this case to the Court of Appeals on January 31,1977.

The questions presented are as follows:

1) Whether the trial court committed reversible error in granting a summary judgment.
2) Whether an express disclaimer as to the accuracy of information contained in construction drawings and related bid documents precludes recovery for extra compensation by a contractor who relies thereon.
3) Whether the Franklin Circuit Court had jurisdiction over the subject matter.

This Court affirms the judgment of the trial court. There exists no genuine issue of material fact and the appellee is entitled to judgment as a matter of law. The trial court had jurisdiction to hear the instant case pursuant to KRS Chapter 44 of the Contract Claims Statute.

The fundamental consideration which must be reviewed in this matter is whether the contractor unjustifiably relied on the information provided by the Highway Department.

Generally government agencies can provide bidders with estimates and other related information without incurring a risk of liability as to the accuracy of such information and estimates, only so long as their intent to do so is made clear by an express and unqualified disclaimer as to the accuracy of the information.

In this situation the appellant was awarded the construction project contract only after it was determined that they had submitted the lowest and best bid as a result of the competitive bidding process. The final contract that resulted from the acceptance of the bid is not ambiguous, and is therefore, not susceptible to any reformation or other rewriting by this Court. The record does not disclose any misrepresentation of facts or withholding of material information in connection with the drawings, plans, specifications or other data furnished by the Department. The Highway Department, for its own purposes, made tests of the soil conditions and published the results with an express and unqualified disclaimer as to any guarantee of their accuracy. Clearly, this put any bidder on notice as to its obligation to make its own private investigation to determine the classification and quantities of the materials to be excavated. The disclaimer clearly indicated that the parties should have realized that the estimates might well be inaccurate. Other bidders were also obliged to take the risk of inadequate estimates into account in presenting their bid. It is well settled in Kentucky that, in the absence of ambiguity, a contract will be enforced according to its terms.

The rule in construing contracts to which the government is a party is to resolve all ambiguities, presumptions and implications in its favor. Where the public interest is affected, an interpretation is preferred which favors the public. Louisville & Jefferson County Metropolitan Sewer District v. St. Matthews Sanitary Association, 307 Ky. 348, 208 S.W.2d 490 (1948). In the instant case there is a substantial public interest in providing the work at the least possible cost.

Ordinarily, a contractor or bidder is presumed, in the absence of an express provision to the contrary, to have examined the risk of unforeseen events occurring during the course of the work. O’Neill Construction Co. v. City of Philadelphia, 335 Pa. 359, 6 A.2d 525 (1939).

The express and unqualified disclaimer that was made a part of the contract documents, as found in Article 103.1.2 of the specifications and also in the plans by a special note, clearly put the bidders on notice of their obligation to make a private investigation. In a situation where the information and representations are intended to be suggestive of construction conditions, or the contract provides that they are to be taken as estimates only, then the governmental agency is not to be held accountable for variances which may be encountered on the job when there is no deliberate misrepresentation or fraud involved. See: Wunderlich v. State, Ex. Rel., 65 Cal.2d 777, 56 Cal.Rptr. 473, 423 P.2d 545 (1967) and J. A. Thompson & Son, Inc. v. State, 51 Haw. 529, 465 P.2d 148 (1970) and State Highway Department v. McDougald Construction Co., 102 Ga.App. 254, 115 S.E.2d 863 (1960).

The doctrine of unjust enrichment has no application in a situation where there is an explicit contract which has been performed. Ashton Contractors & Engineers, Inc. v. State of Arizona, 9 Ariz. App. 564, 454 P.2d 1004 (1969). In the instant situation the contractor bid and entered into a bad bargain in the final analysis, but this Court has no basis to salvage the operation. Unanticipated difficulties in completing the contract do not give rise to subsequent awards when the parties are in an equal position as to knowledge and information surrounding the contract. Miller v. Johns, 291 Ky. 126, 163 S.W.2d 9 (1942).

The appellant’s arguments that in Kentucky fraud is presumed and need not be pleaded in relation to a case involving land deficiencies, where the deficiency was 10% or more Maxwell v. Moorman, Ky., 522 S.W.2d 441 (1975), would require an extension of that doctrine to the construction and bidding area of the law. A careful review of this record does not support the application of such an extension in this situation. Moreover, this record does not support the appellant’s contention that a disclaimer is not effective where gross mistake occurred. Cincinnati Southern Railway v. Cummings, 6 K.L.R. 442, 13 Ky.Opin. 126 (1884).

The record does not disclose any evidence for the allegation that the superior bargaining position of the Commonwealth, and the absence of adequate time for the appellant to make an independent investigation relative to the accuracy of the Commonwealth’s information should be considered as a valid argument in this case. The appellant, or the other bidders, were not compelled to bid on this particular project. If their examination of the bid documents and the total project indicated that the time provided for bidding was not sufficient, then they could have refused to bid or have asked for more time. They did neither. Scherrer v. State Highway Commission, 148 Kan. 357, 80 P.2d 1105 (1938) and MacArthur Bros. Co. v. United States, 258 U.S. 6, 42 S.Ct. 225, 66 L.Ed. 433 (1922).

This claim was made in a timely fashion and the trial court was correct in not dismissing the matter because of the statute of limitations provision of KRS 44.-310. The cause of action did not arise until February 17, 1972, when the Commonwealth advised the appellant of what it was willing to pay. The claim was then made by the appellant on August 30, 1972.

The trial court was correct in granting the appellee’s motion for summary judgment because there was no genuine issue of a material fact and the appellee was entitled to a judgment as a matter of law.

All concur.


author: HOGGE, Judge.

text:
    William A. KELLY, Appellant, v. BOARD OF EDUCATION OF MONTICELLO INDEPENDENT SCHOOL DISTRICT, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1977.
    Rehearing Denied Feb. 10, 1978.
    Discretionary Review Denied June 6, 1978.

      Arthur L. Brooks, Brooks & Sullivan, Lexington, for appellant.
    R. B. Bertram, David C. Hull, Bertram & Bertram, Monticello, for appellee.
    Before HOGGE, HAYES and LESTER, JJ.
   HOGGE, Judge.

This is an appeal from a judgment of the Wayne Circuit Court upholding the action of the Board of Education of Monticello Independent School District in the dismissal of the appellant as a tenured teacher in the Monticello School System.

William A. Kelly was a certified classroom teacher employed by the Board of Education of Monticello, Kentucky under a “continuing service contract”, as that term is used and defined in KRS 161.720. By letter dated May 11, 1976, signed by the chairman and the secretary of the Board of Education, Kelly was given notice that the Board was terminating his teaching contract, and informed that the notice was being sent to him to apprise him that the charges, as grounds for the termination, pursuant to KRS 161.790, were as follows:

1. Insubordination, by refusing to obey the rules relating to punishment of students, in particular, the beating of Kenney Catron and David Hicks with a stick on November 6, 1975.
2. Physical and mental disability, due to your repeated confinement in psychiatric wards and your frequent absences from classes. This includes the fact that you are presently under psychiatric treatment after being released from the psychiatric ward in Lexington, Kentucky, after having been discharged since your requested leave of absence.
3. Conduct unbecoming a teacher in losing control of your temper, as set out in No. 1 above.
4. Repeated alcohol and drug problems causing absences and inefficiency.
5. Neglect of your teaching duties.

A hearing before the Board on these charges was set for June 10, 1976, and within ten days of the receipt of the notice, Kelly made a written response to the Board that he intended to appear at said hearing. At the hearing, Kelly was represented by counsel and objected that the charges against him were not in sufficient detail and objected to the hearing being prosecuted by the Board’s regular attorney. He conducted a voir dire examination of the individual members of the School Board to determine whether any of the members had formed an opinion as to the truth of the charges or an opinion otherwise against him. After this examination, Kelly, through counsel, asked each member of the Board to disqualify himself from considering the charges, since each member had stated that he believed Kelly to be guilty, in some degree, of the charges made against him. Each Board member refused to disqualify himself.

Evidence was presented to the Board by the attorney representing the Board, at the conclusion of which, counsel for Kelly moved to dismiss all charges for lack of substantial evidence. Kelly declined to testify or offer any additional evidence.

The proof on behalf of the Board at the hearing before the Board was a statement of Dr. John W. Simmons, which informed the Board that Kelly was unable to return to work until August 30, 1976, and then only on a part-time basis. Additionally, the superintendent testified as to a series of events that had transpired in which the appellant had been repeatedly absent from work. There was evidence that he had used some drugs, and that he had been under psychiatric care. The superintendent additionally testified that, on May 10, 1976, he telephoned the appellant’s residence in order to determine whether Mr. Kelly would be able to resume his teaching duties. At that time, he was advised by Mr. Kelly’s wife that Kelly was still a patient at the University of Kentucky Medical Center.

On June 15, 1976, the Board voted to terminate Kelly’s teaching contract, and made written findings of fact in support of its decision, and found that he was physically and mentally unable to perform the duties of a full-time teacher.

Subsequently, an appeal of this termination of his contract was taken to the Wayne Circuit Court. A transcript of the evidence taken before the Board was filed, and the case was heard by the circuit court on August 30, 1976.

At that hearing, Kelly stated that he did not wish to introduce any additional evidence, and that the hearing should be based upon the transcribed hearing before the Board. Counsel for the Board, at the circuit court hearing, requested an opportunity to obtain additional medical evidence, by way of deposition, to which, Kelly objected. The court allowed the Board to take the medical deposition as they requested, but deferred a ruling on whether he would or would not consider such proof. The trial judge stated that, if he did decide to use such deposition as evidence, counsel for Kelly would be given an opportunity to take evidence by deposition to rebut this testimony.

On September 15, 1976, the Board took the deposition of Dr. David C. Jacobs, who had assisted in the treatment of Kelly while Kelly was a volunteer patient at the Medical Center during the month of April, 1976. The counsel for Kelly was present at the taking of this deposition.

The evidence of Dr. Jacobs, was to the effect that he had no opinion as to whether Kelly could return to his teaching duties in the fall of 1976, but he diagnosed his condition as a depressive reaction. Dr. Jacobs had also taken the history of Kelly, which showed that he had used the drug darvon excessively and had taken a leave of absence for the school year of 1975-1976, after it developed, in November of 1975, that the severity of his illnesses prevented him from continuing that year as a teacher. Dr. Simmons had said that Kelly suffered from chronic depression.

The appellant did not offer any other proof, nor did he ask to take any depositions to rebut the testimony of Dr. Jacobs. On appeal, the circuit court affirmed the School Board’s determination that Kelly’s contract be terminated because of physical and mental disability.

On this appeal, the appellant, Kelly, argues that procedural due process required more than notice of the charges and an opportunity to be heard thereon. It is his contention that due process requires that he have the right to have those charges initially tried before an impartial tribunal or decision maker.

Appellant, in his argument for his right to an impartial tribunal, among other cases, relies on Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), which held that a defendant accused of a criminal traffic offense was entitled to a neutral and impartial hearing in the first instance. In that case, the mayor of a city in Ohio, was acting in a judicial capacity in the trial of traffic offenses. The court held that the defendant in such cases was entitled to a neutral and impartial trier of the fact, and that the mayor, in this instance, was not neutral nor impartial, because he had a pecuniary interest in the outcome of the case.

That case differs from the case at bar, in that, although Kelly certainly has a vested property right in his continuing contract, he is not accused of a crime. Furthermore, the initial decision maker, in Ward, supra, had an actual pecuniary interest in the outcome.

KRS 161.790(6) provides for a direct appeal to the circuit court by a teacher terminated as Kelly was. And a teacher so terminated is entitled to a trial de novo in circuit court. The above statute permits the holding of additional hearings and the consideration of additional evidence if the trial court considers it advisable.

Both sides in this case have cited Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967). It should be pointed out that Osborne v. Bullitt County Board of Education, supra, differs from this case in that the members of that School Board refused to submit to a voir dire examination by the teacher. The court concluded, in Osborne, that a de novo hearing in circuit court, where the evidence presented before the Board, along with any other relevant proof offered in the circuit court, could be judicially reviewed in a de novo proceeding, satisfied the requirements of due process.

Additionally, in the case of Bell v. Board of Education of McCreary County, Ky., 450 S.W.2d 229 (1970), the court recognized that the prospect of a fair trial at the Board level is an “illusion.” However, the court once again held that the statutory provision for a trial de novo at the circuit court level was intended to cure any due process defects in the hearing before the Board.

Furthermore, the Supreme Court of the United States in Hortonville Joint School District No. 1 v. Hortonville Educational Association, 426 U.S. 482, 493, 96 S.Ct. 2308, 2314, 49 L.Ed.2d 1, 9 (1976) stated:

Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker . Nor is a decisionmaker disqualified simply because he has taken a position, even in public on a policy issue related to the dispute, in the absence of a showing that he is not capable of judging a particular controversy fairly on the basis of its own circumstances. .

Although we must agree with the appellant that the prospect of due process hearing at the Board level is more illusory than real, we adhere to the decision of the United States Supreme Court. We hold that the opportunity for a de novo hearing at the circuit court level with the right to offer additional evidence, if so desired, was intended by the legislature to cure any deficiencies in the due process hearing at the Board level. In law and in fact, the teacher whose contract has been terminated will receive an impartial and due process hearing at the circuit court level, and this is sufficient.

It is next contended by the appellant that the finding and the conclusion of the Board, as to his mental and physical disability, was not supported by substantial evidence. We disagree.

The Board had before it a record of Kelly’s absenteeism due to physical and/or mental disabilities. Many times he had been unable to attend classes because of his illnesses, and had, as a matter of fact, been granted a leave of absence to allow psychiatric care on at least one occasion prior to the 1976-1977 school year. In addition, it was the statement of Dr. Simmons, that Kelly would be unable to return to work at all until August 30,1976, and then only on a part-time basis. Mr. Kelly’s position as a teacher in that school system was as a full-time teacher. There was also evidence that, as late as May 10, 1976, Mr. Kelly was still a patient in the University of Kentucky Medical Center. The above evidence alone supports the Board’s decision.

The evidence most favorable to the appellant was a letter written by Dr. Simmons, dated June 3, 1976, which stated that Mr. Kelly was “under good control” and “able to return to his duties as a teacher.” However, as stated in the Bell case, supra, at page 233: “ . . courts will not choose between conflicting testimony on which the school board has the right to back its decision.”

We find that there was substantial evidence of probative value to support the decision by the Board, and that said decision was not arbitrary. Likewise, we cannot say that the findings of the trial court should be set aside as clearly erroneous. CR 52.01.

It is next contended, by the appellant, that it was error for the circuit court to permit the additional testimony of Dr. Jacobs to be taken at the circuit court level. Again, we disagree. The statute mentioned herein states that the circuit court may hold such additional hearings as it deems advisable, at which hearings, the court may consider evidence, in addition to the transcript and the record of the Board hearing. This makes it a discretionary matter with the court.

The appellant contends that the right to hear this evidence is limited only to the evidence which may be offered by the teacher. We cannot agree with this position. It would be manifestly unfair to grant the right to offer additional evidence, if the court deems it advisable, to one side and not to the other side. We hold that it was the manifest intention of the legislature that either side have an opportunity to present additional evidence at the de novo hearing, if the circuit court deems it advisable.

Judgment affirmed.

All Concur.


author: HOWARD, Judge.

text:
    William T. HICKS, Appellant, v. Wayne C. COLE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1977.
    Rehearing Denied and Ordered Published Feb. 17, 1978.
    Discretionary Review Denied June 6, 1978.
    Russell S. Armstrong, Evansville, Ind., George B. Baker, Jr., Rhoads & Baker, Henderson, for appellant.
    Tommy W. Chandler, Providence, for ap-pellee.
    Before HAYES, HOWARD and WIL-HOIT, JJ.
   HOWARD, Judge.

This is an appeal from the Webster Circuit Court wherein a jury trial was had and a verdict was returned in favor of defendant-appellee, Wayne C. Cole (hereinafter referred to as defendant).

Plaintiff-appellant, William T. Hicks (hereinafter referred to as plaintiff), raises only procedural errors on this appeal. Therefore, the merits of this case will not be discussed except as it pertains to these errors. Plaintiff raises more specifically: (1) Whether or not the defendant was required to timely and properly answer the interrogatories submitted to him by plaintiff before defendant took the deposition of Dr. Bryant A. Bloss, as an expert witness; and 2) Was it error for the trial court to admit into evidence the said deposition of Dr. Bryant A. Bloss over the objection of plaintiff?

This action was brought by plaintiff against defendant, a doctor, seeking damages because of defendant’s alleged negligence. On September 14, 1973, plaintiff served interrogatories upon defendant and on October 12, 1973, answers to these interrogatories were served by the defendant. A portion of the said interrogatories and answers reads as follows:

5. State the names, addresses and qualifications of any expert witnesses proposed to be used by the Defendant upon the trial of this action.
A. I have not at this time made arrangements to use expert witnesses in the trial of this action. If and when such witnesses are determined and if their testimony is to be given in person at the trial of this case, I will provide the information sought under this interrogatory.
6. Identify by name, address and qualifications, each person whom the Defendant expects to call as expert witnesses at the trial and state the subject matter and particularity on which the expert is expected to testify and a summary of the grounds for each such opinion.
A. I have not at this time made arrangements to use expert witnesses in the trial of this action. If and when such witnesses are determined and if their testimony is to be given in person at the trial of this case, I will provide the information sought under this interrogatory.
7. State the names and addresses of all witnesses who will testify for the Defendant upon the trial of this action.
A. With the exception of myself, the only other witness I anticipate at this time calling is my receptione st, Rose Glover.
8. State with particularity what each witness, other than the experts, will testify to upon the trial of this action.
A. You have already taken the deposition of Rose Glover, and are, therefore, already informed as to the nature of her testimony. This interrogatory shall be considered continuing, and supplemental answers shall be required if defendant, directly or indirectly obtains further information of the nature sought herein between the date answers are served and time of trial.

On October 19, 1973, defendant served upon plaintiff a notice to take the deposition of Bryant A. Bloss, M. D., with said deposition to be taken in Evansville, Indiana on November 6, 1973. No additional answers to the said interrogatories were served. On November 6, 1973, plaintiff objected to the taking of the deposition and over this objection, defendant proceeded to take the deposition of Dr. Bloss. Plaintiff cross-examined the doctor at this deposition.

On June 20, 1974, the trial court set the case to be tried before a jury on September 30, 1974. On August 6, 1974, defendant moved for and received a hearing held on August 9, 1974, about plaintiff’s objections to the use of Dr. Bloss’s deposition. Plaintiff’s attorney did not attend the hearing, and the trial court entered an order overruling plaintiff’s objection to the taking of the deposition and its use at trial. Plaintiff again objected at trial to the use of Dr. Bloss’s deposition. The objection was overruled and the deposition was read into evidence.

Under CR 26.02(4)(a)(i) a party may, through interrogatories, obtain from any other party a list of the expert witnesses expected to be called at trial and the subject matter which will be testified to. (Emphasis added). This is designed to give the opposing party a chance to prepare for the trial itself. Under CR 26.05(a)(ii) there is a duty to supplement the list of any expert witnesses expected to be called at trial. (Emphasis added).

Defendant gave notice to plaintiff, pursuant to CR 30.01, to take the deposition of Dr. Bloss. Pursuant to CR 32.01, the testimony of Dr. Bloss was read into evidence and included plaintiff’s cross-examination of the doctor. Also, plaintiff was granted a hearing on the propriety of using Dr. Bloss’s deposition at trial. Had plaintiff’s attorneys appeared at this hearing and convinced the trial court that the deposition should not be used at trial, defendant would still have been able to secure Dr. Bloss at trial or whatever other testimony was needed by defendant.

By following the notice of deposition procedure, defendant put plaintiff on notice that the deposition of Dr. Bloss might be used at trial. The interrogatories propounded by plaintiff were to give him notice of what experts defendant intended to have testify at trial. This is not such a case as Clark v. Johnston, Ky., 492 S.W.2d 447 (1973), where the court rejected the testimony of a witness who was not included in the list of witnesses furnished to the court and the opposing party at the pre-trial conference as those expected to testify. In the present case, the purpose and spirit of the Civil Rules have been complied with.

We feel that it was not error to admit Dr. Bloss’s deposition as testimony in the trial. Plaintiff had his day in court and presented evidence contradictory to the testimony of Dr. Bloss. The jury simply found for the defendant.

The judgment of the trial court is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Appellant, v. ALL POINTS CONSTRUCTION COMPANY and the Home Insurance Company, Appellee.
    Court of Appeals of Kentucky.
    Dec. 23, 1977.
    Rehearing Denied Feb. 10, 1978.
    Discretionary Review Denied June 6, 1978.

      Louis Kawaja and C. E. Skidmore, Lexington, for appellant.
    D. G. Lynn, Kincaid, Wilson, Schaeffer & Hembree, Lexington, for appellee.
    Before PARK, LESTER, and WHITE, JJ.
   PARK, Judge.

The appellees, All Points Construction Company and its insurer, the Home Insurance Company, seek indemnity or contribution from the Commonwealth for sums paid in settlement of personal injury and wrongful death claims arising out of an automobile accident. In the proceeding before the Board of Claims, the appellees asserted that the accident was caused by the primary or concurrent negligence of the Commonwealth. The only question on this appeal is whether the claim is barred by the one year statute of limitations applicable to claims against the Commonwealth. KRS 44.110. The circuit court held that the claim was not barred, and the Commonwealth, Department of Transportation, Bureau of Highways (DOT) appeals.

DOT’s sole contention is that the claim for indemnity or contribution accrued on September 14, 1974, the date on which the accident occurred. Since the action before the Board of Claims was filed on August 16, 1976, DOT argues that the claim was barred by the one year statute of limitations. We disagree. DOT’s confusion apparently rests upon a misreading of Automobile Insurance Co. v. Commonwealth, Ky., 414 S.W.2d 578 (1967), in which the court first recognized the right to maintain an action for contribution or indemnity against the Commonwealth before the Board of Claims. In holding that a subro-gor stands in the same position as its subro-gee, the court was concerned with the status of the plaintiff insurance company as subrogor to the rights of its tortfeasor-in-sured on whose behalf the company had settled a claim, not as subrogor to the rights of the injured party. That case cannot be interpreted as holding that an injured party’s claim for damages and a tort-feasor’s claim for contribution or indemnity are one and the same. DOT’s argument would have merit only in a true subrogation situation in which an insurance carrier is required to make payment to its insured for a loss caused by a third party. E. g. Employers Mutual Liability Ins. Co. v. Griffin Const. Co., Ky., 280 S.W.2d 179, 53 A.L.R.2d 967 (1955). In such case, the insurance carrier is bound by the limitations period applicable to the claim of the injured insured against the third party. See Employers Mut. Liability Ins. Co. v. Brown Wood Preserving Co., 298 Ky. 194, 182 S.W.2d 30 (1944), and the cases in the annotation, 41 A.L.R.2d 1044.

A tortfeasor settling with an injured party is “subrogated” to the rights of the injured party only in the sense that a claim for contribution or indemnity depends upon and is measured by the underlying claim of the injured party. However, a tortfeasor’s claim for contribution remains inchoate until payment is made to the injured party. Consolidated Coach Corp. v. Burge, 245 Ky. 631, 54 S.W.2d 16, 85 A.L.R. 1086 (1932). The claim for contribution accrues only upon payment. See City of Louisville v. O’Donaghue, 157 Ky. 243, 162 S.W. 1110 (1914). Statutes of limitation run against a claim for contribution or indemnity based on tort not from the time of the commission of the tort, but from the time of payment. See the cases collected in the annotation, 57 A.L.R.3d 867. As the court stated in Roehrig v. City of Louisville, Ky., 454 S.W.2d 703 (1970), the purpose of this rule is to prevent an injured party from foreclosing a tortfeasor’s right of contribution by waiting to bring his action until just before the statute of limitations ran on his claim, leaving the tortfeasor helpless to save his right of contribution. In an action for contribution or indemnity filed before the Board of Claims, the “claim” accrues on the date of payment for purposes of KRS 44.110. Far from doing violence to legislative design, this approach avoids imputing to the legislature the illogical intent to cut off a right of action before it accrues. See Keleket X-ray Corp. v. United States, 107 U.S.App.D.C. 138, 275 F.2d 167 (1960); The Chicago, Rock Island & Pacific Railway Co. v. United States, 220 F.2d 939 (7th Cir. 1955).

The appellees’ claim in this case accrued on March 1, 1976, the date on which the settlement payments were made. The claim for contribution was timely filed before the Board of Claims on August 16, 1976. The judgment of the Jessamine Circuit Court is affirmed.

All concur.

      . KRS 44.110 provides:
      A claim must be presented to the board within one (1) year from the time it has accrued.


text:
    Gerald M. WILCHER, Appellant, v. Rose WILCHER, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1978.
    Discretionary Review Denied June 6, 1978.

      James L. Dickinson, Lexington, for appellant.
    W. Earl Dean, Dean, Dean & Dean, Har-rodsburg, for appellee.
    Before LESTER, PARK and WHITE, JJ.
   PARK, Judge.

The petitioner-appellant, Gerald M. Wilcher, appeals from a judgment of the Boyle Circuit Court denying his motion to modify a prior custody decree. The circuit court had entered the prior decree on March 19, 1976, following hearings in which the issue of custody was bitterly contested. The respondent-appellee, Rose Wilcher, had been granted custody of the parties’ only child, Kyn Marvin Wilcher, who was born March 17, 1969. In a memorandum opinion per curiam rendered March 11, 1977, the Supreme Court affirmed the circuit court’s original award of custody to Mrs. Wilcher.

On September 7,1976, during the penden-cy of the original appeal, Mr. Wilcher filed a motion to modify the custody decree. This motion was overruled because the motion was not supported by an affidavit as required by KRS 403.350. See Robbins v. King, Ky., 519 S.W.2d 839 (1975). After Mr. Wilcher filed a second motion on September 9, 1976, which was supported by affidavit, the domestic relations trial commissioner recommended that Mr. Wilcher’s motion for a custody modification hearing should be sustained, and a hearing was scheduled for October 20, 1976. The record does not reflect that an order was entered by the circuit court approving the recommendations of the commissioner. Nevertheless, a full evidentiary hearing was conducted by the commissioner.

Mr. Wilcher’s motion to change the custody of Kyn was based upon the allegation that Mrs. Wilcher had engaged in an act of oral sex with a third party in the presence of Kyn. The commissioner heard extensive testimony and interviewed the child. The commissioner recommended that Mrs. Wilcher should retain custody of Kyn. In his written report, the commissioner outlined a number of reasons why he did not accept the evidence offered to support the allegations against Mrs. Wilcher. The circuit judge adopted the commissioner’s report and also made detailed findings of fact based upon his own examination of the record. The trial judge declined to accept Kyn’s testimony which was the only direct evidence of the act allegedly performed by Mrs. Wilcher.

On this appeal, Mr. Wilcher contends that the findings by the trial commissioner and by the trial judge were clearly erroneous within the meaning of CR 52.01. Mr. Wilcher asserts that the reasons given for not believing Kyn are not supported by the record. Arguing that Mrs. Wilcher had the burden of proof on his motion for change of custody, Mr. Wilcher claims that the commissioner and the trial judge were compelled to accept Kyn’s version of the incident in view of alleged inconsistencies in the testimony offered on behalf of Mrs. Wilcher.

In support of his argument that Mrs. Wilcher had the burden of proof, Mr. Wilcher relies upon the following provisions of KRS 403.350:

A party seeking . . . modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the . modification and shall give notice, together with a copy of his affidavit, to other parties to the proceedings who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested . modification should not be granted, (emphasis added)

An order to show cause was not entered in this case, but this fact is not material. We conclude that the entry of an order to show cause would not have placed the burden of proof on Mrs. Wilcher at the hearing on the motion to modify the custody decree.

As a general rule, a show-cause order does not shift the burden of proof. A show-cause order is no more than a summary method of giving notice of a hearing. Chambers v. Blickle Ford Sales, 313 F.2d 252, 257 (2d Cir. 1963); In re Gilhuly, 124 Conn. 271, 199 A. 436, 440-41 (1938); Stair v. Meissel, 207 Ind. 280, 192 N.E. 453, 455-56 (1934). See also 5 Wright and Miller, Federal Practice and Procedure: Civ. § 1195. The question of burden of proof must be decided without regard to the issuance of a show-cause order.

When a party seeks to modify a divorce decree respecting maintenance or support pursuant to KRS 403.250, the moving party has the burden of proving a change of circumstances so substantial and continuing as to make the terms of the decree unconscionable. Burnett v. Burnett, Ky., 516 S.W.2d 330 (1974); McKenzie v. McKenzie, Ky., 502 S.W.2d 657 (1973). We conclude that a party seeking modification of a custody decree pursuant to KRS 403.-340 must also bear the burden of proof. Under that statute, the court may not modify a prior custody decree except on “the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the entry of the prior decree.” In addition, the court may not modify the prior custody decree unless the child’s present environment “endanger[s] seriously his physical, mental, moral, or emotional health.” KRS 403.340 reflects a strong legislative policy to maximize the finality of custody decrees without jeopardizing the health and welfare of the child. The statute creates a presumption that the present custodian is entitled to continue as the child’s custodian. See the Commissioner’s Note to Section 409 of the Uniform Marriage and Divorce Act upon which KRS 403.340 is based.

KRS 403.350 should not be construed to place the burden of proof upon the custodial parent at a hearing of a motion to modify a prior custody decree. Such a construction would defeat the obvious purpose of KRS 403.340 and KRS 403.350 to encourage stability in the custodial relationship. KRS 403.350 is based upon Section 410 of the Uniform Marriage and Divorce Act. In explaining the purpose of that statute, the Commissioner’s Note states:

This section establishes a procedure for seeking temporary custody or a modification of a custody decree by motion supported with affidavits. The procedure is designed to result in denial of the motion without a hearing unless the court finds that the affidavits establish adequate cause for holding a hearing. The procedure will thus tend to discourage contests over temporary custody and prevent repeated or insubstantial motions for modification.

It is clear that the show-cause order entered pursuant to KRS 403.350 does no more than give the custodial parent notice of the court’s decision to have a hearing on the motion to modify the custody decree. The show-cause order does not place the burden of proof on the custodial parent.

We are not persuaded that the decision in Boyd v. Louisville & Jefferson County Planning and Zoning Commission, 313 Ky. 196, 230 S.W.2d 444 (1949), requires a different result. That case involved the statute authorizing appeals from decisions of planning and zoning commissions in counties containing a city of the first class. The statute provided that the appeal was to be heard de novo following the issuance of “an order to show cause” against the commission. The court held that the statute evidenced an intention to impose the burden of proof on the commission. The Boyd case was expressly overruled in American Beauty Corp. v. Louisville & Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450 (1964). Furthermore, the holding in Boyd that the show-cause order placed the burden of proof on the respondent commission was consistent with the statutory policy of granting the property owner a trial de novo in a circuit court. In the present case, shifting the burden of proof to the non-custodial parent would be inconsistent with the policy of the Marriage and Divorce Act to afford relative finality to custody decrees.

Taking into consideration that Mr. Wilcher had the burden of proof on his motion for a change of custody, it is apparent that the findings of fact by the trial commissioner and trial judge are not clearly erroneous within the meaning of CR 52.01. The trial judge necessarily must have a high degree of discretion in custody matters. The trial judge properly considered the fact that Mr. Wilcher had previously made various accusations against Mrs. Wilcher which he was unable to substantiate. Mr. Wilcher was also in substantial arrears in the payment of child support at the time he sought custody. Mr. Wilcher has failed to establish that manifest error was committed by the trial judge by denying the motion for change of custody. Dudgeon v. Dudgeon, Ky., 458 S.W.2d 159 (1970).

The judgment of the circuit court is affirmed.

All concur.