author: RALEIGH BROWN, Justice.

text:
    Richard C. WILLIS, Appellant, v. SCOTTISH RITE HOSPITAL FOR CRIPPLED CHILDREN et al., Appellees.
    No. 5125.
    Court of Civil Appeals of Texas, Eastland.
    March 9, 1978.
    Rehearing Denied March 30, 1978.

      Cleatus M. Phelan, McKinney, for appellant.
    J. E. Abernathy, Stan McWilliams, Orr & McWilliams, McKinney, James H. Walker and Leonard E. Choate, Robert E. Burns, Burford, Ryburn & Ford, Dallas, John L. Hill, Atty. Gen., Katherine L. Chapman, Asst. Atty. Gen., Austin, for appellees.
   RALEIGH BROWN, Justice.

This is a summary judgment case. Richard C. Willis, as an heir at law, by suit filed on February 22, 1977, sought to vacate and set aside a County Court order, dated January 5,1953, admitting to probate the will of Charles Thomas Tatum. His suit is based on fraud, namely, the concealment of a later will of Charles Tatum by Nettie Edna Womble. Scottish Rite Hospital for Crippled Children and Buckner Orphans Home, beneficiaries under the Tatum will, O. E. Carlisle, Independent Executor named in the will and the Attorney General of Texas answered and filed motions for summary judgment contending, primarily, that Willis’ claim was barred by limitations. Willis also filed a motion for summary judgment. The Willis motion was denied; defendants’ were granted. Willis appeals. We affirm.

Charles Thomas Tatum died December 19, 1952. He left a formal will dated May 25, 1945, which was admitted to probate on January 5, 1953. The will left certain specific bequests; plus a specific devise of 150 acres of land, $10,000 and an automobile to Nettie Edna Womble who had been Mr. Tatum’s housekeeper for nineteen years. The remainder of the estate was left one-half to Buckner Orphans Home and one-half to the Scottish Rite Hospital for Crippled Children in Dallas, Texas. Lee Atkins and O. E. Carlisle were named as executors of the estate.

Mrs. Womble was dissatisfied and on August 17, 1953, she executed a settlement agreement and release whereby for additional cash and acreage she released all claims against the estate. Later, Mrs. Womble produced an instrument which she claimed was a holographic will of Charles Tatum dated December 9, 1952, ten days before his death, naming her as his sole beneficiary. June 1, 1954, she offered this instrument for probate. It is the fraudulent concealment of this will that Willis predicates the case at bar.

The litigation involving the Charles Thomas Tatum Estate, resulting from Mrs. Womble’s effort to probate the holographic will of Mr. Tatum, is presented in Atkins v. Womble, 300 S.W.2d 688 (Tex.Civ.App.—Dallas 1957, writ ref. n.r.e.); Womble v. Atkins, 314 S.W.2d 150 (Tex.Civ.App.—Dallas 1958), aff’d, 331 S.W.2d 294 (Tex.1960); and Buckner Orphans Home v. Berry, 332 S.W.2d 771 (Tex.Civ.App.—Dallas 1960, writ ref. n.r.e.).

Willis argues the trial court erred in granting appellees’ motion for summary judgment for the reason there were genuine issues as to the material facts because appellees did not negate the exception to the limitation statutes as set forth in Article 5535, T.R.C.S., and an issue of fact exists as to the time the alleged fraudulent concealment was or should have been discovered. We disagree.

The court in Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.1975) said:

“ . . . When summary judgment is sought on the basis that limitations have expired, it is the movant’s burden to conclusively establish the bar of limitations. Where the non-movant interposes a suspension statute, such as Article 5537, or pleads diligence in requesting issuance of citation, the limitation defense is not conclusively established until,, the movant meets his burden of negating the applicability of these issues. Oram v. General American Oil Co., 513 S.W.2d 533 (Tex.1974). The holding to the contrary in Mehaffey v. Barrett Mobile Home Transport, Inc., 473 S.W.2d 643 (Tex.Civ.App.1971, no writ) is disapproved.”

In Wixom v. Bowers, 152 S.W.2d 896 (Tex.Civ.App.— Galveston 1941, writ ref. want merit), the court said:

“It is the general rule in this state that when a defendant pleads limitation to a cause of action, it is incumbent upon the plaintiff to plead facts showing that he is within one of the exceptions to the statute. Lewis v. Saylors, Tex.Civ.App., 37 S.W.2d 760; Price v. Powell, Tex.Civ.App., 57 S.W.2d 1121; Smith v. Bradshaw, Tex.Civ.App., 93 S.W.2d 468; United States Royalty Association v. Stiles, Tex.Civ.App., 131 S.W.2d 1060; Note, 115 A.L.R. 755, 766; 28 Tex.Jur. 294 et seq.”

See also Morton v. Morton, 286 S.W.2d 702 (Tex.Civ.App. —Texarkana 1955, no writ); Dixon v. Henderson, 267 S.W.2d 869 (Tex.Civ.App.—Texarkana 1954, no writ).

The court in Womack v. Allstate Insurance Company, 296 S.W.2d 233 (Tex.1956) said:

“ . Under the provisions of Rule 166-A, Texas Rules of Civil Procedure, summary judgment may be rendered only if the pleadings, depositions, admissions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court will normally look to the pleadings to determine the issues that may exist in the case, but when the depositions, admissions or affidavits disclose facts which show that an amendment to the pleadings of the opposite party will render the position of the moving party insupportable under the substantive law, it cannot be said that the latter has established his right to judgment as a matter of law . . ."

Appellees specifically pled various statutes of limitation as a bar to recovery by Willis, the instant case having been filed February 22, 1977. Our examination of Willis’ pleadings reflect that no pleas nor any summary judgment evidence of disability of any kind tolling the statutes of limitation beyond the year 1961 were set up by him. Willis cannot now avail himself of these defenses.

The Willis challenge to the 1953 order admitting to probate the Tatum will dated May 25, 1945, was based on the fraud of Nettie Womble in concealing the Tatum will dated December 9, 1952, not fraud in the procurement of the execution of the 1945 will. Section 93, V.A.T.S., Probate Code, provides:

“Period for Contesting Probate
After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward. Provided, however, that persons non compos mentis and minors shall have two years after the removal of their respective disabilities within which to institute such contest. Acts 1955, 54th Leg., p. 88, ch. 55.”

As stated in Ladehoff v. Ladehoff, 436 S.W.2d 334 (Tex.1968):

“ . . . An attack upon a probate judgment under Section 93 is a method for making a direct attack which is in addition to the forms for direct attacks authorized by Sections 28 and 30, which are appellate in nature. City of Tyler v. First National Bank of Beaumont, 46 S.W.2d 454 (Tex.Civ.App.1932, writ ref.); see Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932 (1935).”

For fraud to be a ground for vacating a judgment, the rule in Texas is as stated in Alexander v. Hagedorn, 226 S.W.2d 996 (Tex.1950):

“Fraud in its relation to attacks on final judgments is either extrinsic or intrinsic. Only extrinsic fraud will entitle a complainant to relief because it is a wrongful act committed ‘by the other party to the suit which has prevented the losing party either from knowing about his rights or defenses, or from having a fair opportunity of presenting them upon the trial . . . ’ ”

Nettie Edna Womble concealed the 1952 will during the probate of the 1945 will and for a period of time afterwards. This concealment could have been extrinsic fraud, which would authorize the vacating of the January 5, 1953 order, only to those who had a claim or defense which was prevented from being presented by the concealment. Any beneficiary under the 1952 will would have been denied knowledge of his right as an interested person to contest the 1945 will by the concealment and thus the concealment would have amounted to extrinsic fraud.

Nettie Edna Womble was the sole beneficiary under the 1952 will. By her concealment of the will, no one else, including Willis, was prevented from asserting a claim or defense in the hearing on the 1945 will. Therefore, there was no extrinsic fraud which would support a suit to set aside the 1945 will pursuant to Section 93, V.A.T.S., Probate Code. The discovery by Willis of the alleged fraud is immaterial. His cause of action is barred.

The court in Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970) discussing the matter of rendering or affirming a summary judgment in favor of a defendant, said:

“ . . .In such cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. The last sentence of paragraph (c) of Rule 166-A, Texas Rules of Civil Procedure, governs. It provides:
‘The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’
The provisions of Rule 166-A are applicable alike to defendants and plaintiffs who move for summary judgment; the judgment sought should be granted, and if granted should be affirmed, only if the summary judgment record establishes a right thereto as a matter of law.”

We hold appellees were entitled to judgment as a matter of law. This holding makes it unnecessary to consider appellant’s other points of error.

The judgment is affirmed.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    Doris BOWIE, Appellant, v. RANGER INSURANCE COMPANY, Appellee.
    No. 5116.
    Court of Civil Appeals of Texas, Eastland.
    March 9, 1978.
    Rehearing Denied March 30, 1978.

      Harold J. Dollinger, Dallas, for appellant.
    Lewis R. Sifford, Anderson, Henley, Shields & Miller, Dallas, for appellee.
   McCLOUD, Chief Justice.

Doris Bowie, Individually and as Independent Executrix of the Estate of Loren Bowie, Deceased, sued Ranger Insurance Company on an insurance policy seeking recovery of $7,500 for damages to an aircraft. Plaintiffs husband, Loren Bowie, who was killed in the aircraft crash, was the named insured in the policy in question. Defendant answered that there was no coverage because at the time of the crash Loren Bowie, the pilot, did not have a “valid” medical certificate because he had fraudulently obtained his “medical certificate” from the Federal Aviation Administration. The facts were stipulated and following a nonjury trial, the trial court rendered judgment that plaintiff take nothing. Plaintiff has appealed. We reverse and render.

Defendant relies upon the following provisions of the policy:

“7. PILOT CLAUSE: Only the following pilot or pilots holding valid and effective pilot and medical certificates with rating as required by the Federal Aviation Administration for the flight involved will operate the aircraft in flight.
23. Fraud or Misrepresentation. This Policy shall be void if the Insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof or in case of any fraud, attempted fraud or false swearing by the Insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”

The parties stipulated that at the time of the crash Loren Bowie, the pilot, possessed a valid and effective pilot certificate and held a Class III medical certificate; the medical certificate was issued August 29, 1973, and secured from Dr. Beiser, a licensed medical examiner for the Federal Aviation Administration; Loren Bowie experienced a heart attack or myocardial infarction in 1962; he knew that he had experienced a heart attack and had heart trouble prior to the time he executed applications for airman medical certificates in 1971 and 1973; on September 17, 1971, and August 29,1973, Loren Bowie knowingly made a false representation to Dr. Beiser and the Federal Aviation Administration by and through written applications for an airman’s medical certificate that he had never had “heart trouble”; such false representation by Bowie was material to the issuance of the medical certificate; Dr. Beiser would not have issued the certificate if he had been truthfully advised of Bowie’s prior heart trouble; if Dr. Beiser received an affirmative answer regarding prior “heart trouble” he was required to forward the application to the Federal Aviation Administration’s Aero-Medical Center for further action; from the date of his heart attack in 1962 until his death on May 5, 1975, Loren Bowie regularly took prescribed medication for his heart; Loren Bowie represented to Ranger Insurance Company by and through the “pilot clause” of the insurance contract that the aircraft would only be operated by a pilot holding a valid and effective medical certificate with ratings as required by the Federal Aviation Administration; such representation by Bowie to Ranger Insurance Company was material to the risk assumed by defendant in the issuance of the insurance policy and actually contributed to the contingency whieh rendered the policy payable; such contingency being that at the time of damage to the aircraft, it would have been operated by a pilot holding a valid and effective medical certificate as required by the Federal Aviation Administration; the representation that the aircraft would only be operated by a pilot holding a valid and effective medical certificate as required by the Federal Aviation Administration was relied upon by defendant in the issuance of the policy; and, defendant would not have issued the policy on the aircraft in question if it had known of the false representation concerning prior “heart trouble” made by Loren Bowie to Dr. Beiser and the Federal Aviation Administration in order to obtain an airman’s medical certificate.

Plaintiff contends the representation made to Ranger Insurance Company that the aircraft would only be operated by a pilot holding a valid and effective medical certificate was not violated. Defendant argues that when Loren Bowie represented to it that only pilots holding “valid and effective” medical certificates would operate the aircraft, he necessarily represented that he had properly complied with all of the requirements for such certificate. Defendant urges that under paragraph 23, “Fraud or Misrepresentation”, copied above, the policy is void because the medical certificate was obtained by fraud. Defendant says the policy is void since there was fraud “touching” a very material matter relating to the policy-

At the time of the crash, Loren Bowie possessed a medical certificate issued by the Federal Aviation Administration. The certificate had not been amended, modified, suspended or canceled by the FAA. The evidence conclusively establishes that the aircraft was being operated by a pilot holding a “valid and effective” medical certificate.

Paragraph 23 of the policy entitled, “Fraud or Misrepresentation” is not as inclusive as defendant contends. The provision is limited by Tex.Ins.Code Ann. art. 21.16, which provides:

“Misrepresentation by Policyholder
Any provision in any contract or policy of insurance issued or contracted for in this State which provides that the answers or statements made in the application for such contract or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case. Acts 1951, 52nd Leg., ch. 491.”

It will be noted the statute refers only to false “answers or statements made in the application . . . or in the contract of insurance . . . ” The court in Vernon v. Aetna Insurance Company, 301 F.2d 86 (5th Cir. 1962) was concerned with a provision identical to paragraph 23 urged here by defendant, and after reviewing the public policy relating to forfeiture clauses contained in insurance contracts, stated: “False statements . . . though not specified in the statute are nonetheless included within the same prohibition.” The court added:

“The policy plainly revealed by these provisions is one flatly opposed to the use of forfeiture clauses to avoid the obligations of insurance contracts solely upon a showing that the insured has made, at any time, a false statement with respect to the insurance or the subject thereof. Under the statutory scheme, only those falsehoods which are material to the risk, if made before the loss occurs, . may be made the basis for voiding a policy pursuant to a forfeiture clause.”

It is clear the false representation must be material, Lane v. Travelers Indemnity Company, 391 S.W.2d 399 (Tex.1965), and a misrepresentation is not material to the risk unless it actually induces the insurance company to assume the risk. Westchester Fire Insurance Company v. English, 543 S.W.2d 407 (Tex.Civ.App.—Waco 1976, no writ). The court in Harrington v. Aetna Casualty and Surety Company, 489 S.W.2d 171 (Tex.Civ.App.—Waco 1972, writ ref. n. r. e.) said:

“Aetna says that, within the meaning of article 21.16 of the Ins. Code, a misrepresentation in an application for insurance is ‘material to the risk’ if, had the true facts been known, the insurer would have charged a higher premium for the policy issued. There is dicta in a number of cases which supports Aetna’s position; but we believe the rule to be that the misrepresentation is not ‘material to the risk/ as that phrase is used in the statute, unless it actually induced the insurance company to assume the risk . . .”

Ranger Insurance Company was not aware of the representation made by Loren Bowie to Dr. Beiser concerning Bowie’s heart condition when defendant issued the policy on September 5, 1974. Dr. Beiser examined Loren Bowie for the FAA. He did not examine Bowie for or on behalf of Ranger Insurance Company. The defendant at no time asked Loren Bowie any questions concerning his heart. There is no express language in the policy excluding coverage in the event the person piloting the aircraft made a false statement to the FAA to procure a pilot or medical certificate. The representations made to Dr. Beiser in 1971 and 1973 in connection with Loren Bowie’s obtaining a medical certificate from the Federal Aviation Administration is not evidence of a material misrepresentation made by Loren Bowie to defendant which induced defendant to assume the risk. The stipulation that the false representation was material to the issuance of the medical certificate is not evidence that the representation was material to the issuance of the policy by defendant.

The cases cited by defendant are distinguishable. None involve misrepresentations by an applicant seeking insurance coverage.

The evidence will not support the trial court’s judgment upon any theory. Judgment of the trial court is reversed and judgment is rendered for plaintiff for $7,500.

RALEIGH BROWN, J., not participating.


author: LUKOWSKY, Justice.

text:
    DEPARTMENT FOR NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION, Appellant, v. STEARNS COAL AND LUMBER COMPANY, Appellee. STEARNS COAL AND LUMBER COMPANY, Petitioner, v. DEPARTMENT FOR NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION, Respondent.
    Supreme Court of Kentucky.
    March 14, 1978.
    Alan L. Harrington, Robert Stephens, Atty. Gen., Frankfort, for Department for Natural Resources and Environmental Protection.
    Ben B. Fowler and William H. Gorin, Stites, McElwain & Fowler, Frankfort, for Stearns Coal Co.
   LUKOWSKY, Justice.

In 1937 Steams Coal and Lumber Company conveyed to the United States of America the surface estate in a tract of land located within the area designated as the Daniel Boone National Forest. On July 16, 1976, Stearns applied to the Department for Natural Resources and Environmental Protection for a strip mine permit to mine a nineteen acre tract, fifteen acres of which were subject to the 1937 conveyance. The Department denied the application relying on KRS 350.085(3) and (4), interpreting these provisions to prohibit the issuance of permits to strip mine on public property. Stearns appealed to the Franklin Circuit Court which ordered the Department to issue the permit. The Department appealed the judgment of the Circuit Court to the Court of Appeals and obtained a stay of that judgment pending appeal. Stearns filed with this court a motion to vacate the stay order and to transfer the Department’s appeal from the Court of Appeals to this court. We granted the transfer and consolidated the two cases for argument. We shall dispose of the case on the merits, therefore, it is unnecessary to address the motion to vacate.

Many issues have been raised by counsel, but we shall consider only those appropriate and necessary to a disposition of this case on its peculiar facts.

I

The Department, in its order denying the application for a permit, expressed one reason for its action. It determined that land held by the United States is public land under KRS 350.085(3) and (4) and that, consequently, no permit could be issued to strip mine the property described in the application. In its memorandum submitted to the Circuit Court and in its brief to this court the Department seeks to justify its action upon a ground not formulated and expressed in its original order. It claims that Stearns can not receive a permit because it has no legal right to strip mine the property described in the application. The Department asserts that the deed of conveyance did not reserve the equivalent of a broad form deed under Kentucky law and, therefore, it argues that Stearns does not have the right to strip mine. The Circuit Court also addressed this question but resolved it favorably to Stearns in the process of holding that the estate of the United States was not public property within the meaning of KRS 350.085.

The Department’s effort to support its action with a reason not relied upon in the original record is a form of bootstrapping which is at best questionable appellate practice. In any event, a consideration of the effect of the conveyance to the United States by Stearns has no place in this proceeding. The criteria for the denial of a permit have been clearly spelled out by the legislature in KRS 350.085. The language of the statute simply will not support the position that the Department is empowered to adjudicate the validity of the applicant’s claim of a right to strip mine the property described in the application. It is fundamental that administrative agencies are creatures of statute and must find within the statute warrant for the exercise of any authority which they claim. 1 Am. Jur.2d, Administrative Law, Sec. 70 (1962). The Department can neither add to the requirements established by the legislature for the issuance of a permit nor can it exercise authority not vested in it. See, Johnson v. Correll, Ky., 332 S.W.2d 843 (1960); Robertson v. Schein, 305 Ky. 528, 204 S.W.2d 954 (1947); Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387 (1940). Therefore, the interpretation of the 1937 deed is irrelevant to the determination of the real issue presented by this case, i. e., did the Department act properly in denying Stearns’ application because of the prohibition against strip mining on public property contained in KRS 350.085(3) and (4).

II

Stearns contends that the prohibition against strip mining is an abuse of the police power because there is no rational relationship between the purpose of the law and the prohibition. Stearns asserts that the prohibition constitutes a taking of property without just compensation in violation of the 5th and 14th amendments of the federal constitution and section 13 of the Kentucky constitution.

The state may in the valid exercise of its police power incidentally restrict the property rights of individuals for the common good without payment. Yet the state is limited in the proper use of its power. The crux of that limitation is the notion that the action taken must bear a real and substantial relationship to the public health, safety, morality or some other phase of the general welfare. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Department for Natural Resources and Environmental Protection v. No. 8 Limited of Virginia, Ky., 528 S.W.2d 684 (1975). To address this issue the purpose of the legislation and the policy behind it must be examined. These considerations were clearly expressed by the General Assembly in KRS 350.020. The legislature determined that unregulated strip mining conducted with no regard for its effect upon the land constitutes a litany of hazards to the environment, resources and the people of the Commonwealth. In response to this situation it established a set of rules governing mining activity to minimize these adverse effects and entrusted to the Department the task of enforcement. Therefore any action taken pursuant to the strip mining legislation must stand as an environmental conservation measure. Department for Natural Resources and Environmental Protection v. No. 8 Limited of Virginia, supra.

The legal imagination may not be stretched to say that the environmental impact of strip mining is substantially related to the identity of the parties owning the surface estate. The fact that the federal government holds an interest in this parcel of land has nothing to do with the purpose of the act or the public health, safety, morality or general welfare. The denial of Stearns’ application for this reason is arbitrary and can not stand as a valid exercise of the police power. To this extent the denial of the permit takes the property of Stearns without compensation and it is a violation of both the federal and state constitutions. Commonwealth ex rel. D. N. R. and E. P. v. Stephens, Ky., 539 S.W.2d 303 (1976); Department for Natural Resources and Environmental Protection v. No. 8 Limited of Virginia, supra; Pennsylvania Coal Co. v. Mahon, supra.

The judgment is affirmed.

All concur.

      . The order reads in part:
      “This denial is issued upon the following reasons:
      1. Fourteen to fifteen acres of the nineteen acre tract proposed to be mined by applicant is owned by the United States Government and as such is public property within the meaning of KRS 350.085(3) and KRS 350.085(4).
      2. KRS 350.085(3) and KRS 350.085(4) prohibits [sic] the issuance of this permit.
      3. The judgment and Opinion of the Franklin Circuit Court in Greenwood Land and Mining Company v. Department for Natural Resources and Environmental Protection. Civil Action No. 86298 (attached hereto and incorporated herein by reference as Exhibit “A”), prohibits the issuance of a strip mine permit on this public property.
      4. The Department is without power to issue a strip mine permit on publicly owned property which, in the present matter, is located in the Daniel Boone National Forest, and title to which is held by the United States of America.
      WHEREFORE, the application for a strip mine permit is hereby denied.”

      . The Department reasoned that because it could not issue a permit to mine if the activity constituted a hazard to public property, KRS 350.085(3), and that because it could not issue a permit to mine within 100 feet of public property, KRS 350.085(4), then by implication it could issue no permit to mine on public property.

      . “. . .If it is public property at all it must be clothed with that mantle by the deed of conveyance between Stearns and the United States. That deed, effective December 13, 1937, conveys the surface to the Grantee subject to the exceptions and reservations set forth therein.
      In this Commonwealth it has long been settled that the mineral estate is dominant and the surface estate subservient. The mineral owner may make such use of the surface as is necessary to extract the minerals. The mineral estate is a limitation on the right of the surface owner. In fact, the surface owner has no right except that which would not be inconsistent with mineral owner’s right to extract the minerals.
      Here the rights acquired by the United States extend only to that degree which does not interfere with Stearns’ right to remove minerals. The use of the surface in extracting minerals is not an invasion of property right, because that right has been reserved and never relinquished by the Grantor. It follows that the surface estate owned by the United States is not public property within the meaning of KRS 350.085(3) and (4).”

      . The United States is not without remedy. If it doubts that Stearns reserved the right to strip mine in its deed, its courts and ours are open to adjudicate that question between them. See 28 U.S.C., Sec. 1345; Commerce Union Bank v. Kinkade, Ky., 540 S.W.2d 861 (1976).


author: HOWERTON, Judge.

text:
    Donald L. DEXTER, Appellant and Cross-Appellee, v. Ginger Debra (Dexter) SPAINHOWARD et al., Appellees and Cross-Appellant.
    Court of Appeals of Kentucky.
    Feb. 3, 1978.
    Rehearing Denied March 24, 1978.

      Daniel N. Thomas, Hardin, Hardin & Thomas, Hopkinsville, for appellant and cross-appellee.
    John P. Kirkham, Michael A. Richardson, Hopkinsville, for appellees and cross-appellants.
    Before HOWERTON, LESTER and REYNOLDS, JJ.
   HOWERTON, Judge.

The circuit court denied appellant’s request for a change in custody of the appellant’s/appellee’s infant child. On this appeal, the appellant argues that error was committed when the custody question was determined totally by depositions without an oral evidentiary hearing. Additionally, he argues that the findings of fact and conclusions of law were erroneous. The appellee, as cross-appellant, argues that the trial court incorrectly failed to exercise its discretion in the awarding to her of attorney’s fees.

The appellant in this case has made a strong argument in support of a rule that all custody cases require an oral evidentiary hearing. It is pointed out that KRS 403.310 means that custody proceedings shall receive priority in being set for “hearing”. We think that in most custody determinations the trial judge would prefer an oral evidentiary hearing. However, we are not prepared to say that in his discretion the trial judge cannot determine that such a hearing is unnecessary. The extensive amount of evidence presented to the trial jildge in this case causes us to conclude that the trial judge did not abuse his discretion by not holding an oral evidentiary hearing. CR 43.04 is clear in its language. A trial judge has discretion to allow the taking of evidence to be totally by deposition. We find no law requiring an exception to this rule. A “hearing” may be conducted orally or by deposition. Review of transcribed testimony by a trial judge does not constitute a denial of due process.

We have reviewed the record and find no merit to appellant’s argument concerning the findings of fact and conclusions of law. KRS 403.340(2), in effect, directs the trial court to continue the status quo in a custody arrangement unless certain proven facts indicate a need for change. See Wilcher v. Wilcher, Ky., 566 S.W.2d 173, rendered today. We believe that the professional evidence of the wife’s suitability as custodian of the infant child was sufficient in itself to allow, if not necessitate, the conclusion of the court. There was certainly no substantial proof that the child’s physical, mental, moral and emotional health has been or will be seriously endangered by the child’s present home.

The cross-appellant argues that she should have been awarded attorney’s fees. KRS 403.340(3) establishes guidelines under which attorney’s fees must be awarded in a custody case. An award of attorney’s fees is mandatory if the trial court finds the action for modification to be vexatious and to constitute harassment. We do not believe that this section establishes the exclusive means by which a trial court may grant fees. Additionally, the trial court has discretionary power to grant fees under KRS 403.220. See also, Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512 (1975). Our review of the record indicates that the trial judge may have failed to determine if fees should be granted under his discretionary authority granted in KRS 403.220, after he determined that fees were not mandatory under 403.340(3). Admittedly, the record is not explicit on this point. We have determined that the case should be remanded to the trial judge to allow him to make a discretionary decision concerning attorney fees, as provided for in KRS 403.220.

The judgment of the trial court, as to custody, is affirmed, and the case is remanded for a determination concerning attorney fees as discussed above.

All concur.


author: WHITE, Judge.

text:
    FIRST SECURITY NATIONAL BANK AND TRUST COMPANY OF LEXINGTON, Appellant, v. Russell des COGNETS, Jr., Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.
    Gladney Harville, Lexington, for appellant.
    Buford A. Short, Rose & Short, Beatty-ville, for appellee.
    Before MARTIN, C. J., and PARK and WHITE, JJ.
   WHITE, Judge.

The appellant-plaintiff, First Security National Bank and Trust Company of Lexington, appeals from a declaratory judgment of the Fayette Circuit Court entered in favor of the appellee-defendant, Russell des Cognets, Jr., a beneficiary of a trust administered by the bank. The right of the bank to take annual commissions on trust corpus is the sole issue on appeal. The opinion of the circuit court contains a correct statement of the case and the law applicable to this appeal. We adopt the opinion of the circuit court as the opinion of this court.

The opinion of the circuit court states:

The only issue in this case involves the proper construction to be placed upon a provision found in KRS 386.180(1). The facts are not in dispute.
On December 6, 1922, Russell des Cog-nets and Security Trust Company entered into an inter vivos trust agreement wherein certain assets were placed in trust with Security Trust Company. The trust created by this instrument is still in existence. Security Trust Company and First National Bank and Trust Company merged on March 1, 1961. The merged entity, First Security National Bank and Trust Company, is now the trustee under said trust agreement. The defendant, Russell des Cognets, Jr., is one of two beneficiaries of the trust estate; the other beneficiary being Estelle des Cognets, a sister of the defendant. The trust agreement contains no provision regarding commissions to be paid to the trustee and it contains nothing regarding the time and manner of payment.
That portion of KRS 386.180(1) which is in dispute is the sentence providing for a trustee’s right to a commission on principal. That sentence reads as follows:
“They shall also receive an annual commission of one-fifth of one percent (.02%) of the fair value of the real and personal estate in the care of the fiduciary or, at the option of the fiduciary and in lieu of the annual commission on principal, a commission which shall not exceed five percent (5%) of the fair value of the principal distributed, payable at the time the principal is distributed.”
The trust was created on December 6, 1922. There was no statute in effect at that time regarding any commission of a trustee. In 1938 KRS 386.180(1) was enacted and it has not been changed since that time.
Prior to the consolidation of the two banks, Security Trust had historically followed a practice of not paying itself an annual commission on principal in trusts administered by it; whereas, First National had consistently followed the opposite practice in most long-term trusts administered by it. Sometime after the consolidation, an examination was made of the trust administered by the combined bank and a decision was made to commence the payment of an annual commission on principal in several of the trust accounts that were anticipated to be of long duration. From 1938 to 1971 the plaintiff charged only a fee of five percent of income. The first annual commission on principal was paid in this trust account on November 1, 1971.
The defendant contends that the continued failure of a trustee to pay itself an annual commission on principal, over an extended period of time, constitutes the exercise by that trustee of its statutory option to accept the commission on principal on termination of the trust only. The plaintiff argues that this is a continuing option that is available to a trustee at anytime during the life of a trust and that the right of a trustee to elect either mode of compensation is not lost until the trustee, by an affirmative or overt act, elects one route or the other.
In an attempt to construe the statutory provision in issue, it becomes necessary to determine whether or not an election was made or whether the option was exercised during the years prior to 1971, since the trustee took no affirmative or overt action with respect to a commission on principal; or, stated another way, did the trustee indicate its intention to collect the statutory five percent of premium at termination of the trust by failing to exercise the statutory option to charge an annual fee of one-fifth of one percent of principal for over thirty-three years?
The plaintiff concedes that a payment by the trustee of a single annual commission on principal at anytime during the life of the trust would constitute an election by the trustee and it would thereafter be bound to follow that option.
This is a case of first impression. There is no similar statute in any other state. There are no Kentucky cases interpreting this statute.
It is the Court’s conclusion that the trustee exercised its statutory option to collect its fee upon termination of the trust. Although the statute in this case does not fix a time for the exercise of the trustee’s option, it would appear that it must be exercised within a reasonable time. Oliver v. Wyatt, (Ky.1967) 418 S.W.2d 403. As argued by the defendant, the statute granted to the plaintiff the alternative to collect its fee annually from the principal or to wait and collect its fee from principal upon termination. This made it necessary that the plaintiff make such a decision within a reasonable period of time. Here the plaintiff did not collect the annual fee from principal for a period in excess of thirty-three years, which indicates to this Court that it had exercised its option to collect the fee from principal upon termination of the trust.
The defendants have further argued that the plaintiff waived its right to charge an annual fee on principal since it waited so long to exercise its statutory option. The Court agrees with this contention and finds that the plaintiff, in failing to charge an annual fee on principal, was relinquishing a known right. This waiver can be gleaned from the statements made by the plaintiff to the family of the defendants wherein they assured the family of the beneficiaries that the trust would continue as in the past. The plaintiff, having intentionally waived a known right, cannot later charge an annual fee on principal.

During oral argument before this court, the appellant-plaintiff relied upon a New Jersey trial court opinion, In re Phipps Family Trusts, 147 N.J.Super. 331, 371 A.2d 316 (1976). This case is cited for the proposition that the right of a trustee to take an annual commission on corpus is not waived by the trustee’s failure to take the commission in the year in question. The Phipps Family Trusts case is distinguishable on a number of grounds. First, New Jersey did not have a statute comparable to KRS 386.-180(1). Second, New Jersey did have a statute which provided that the failure of a fiduciary to take commissions in any year as permitted by statute should not constitute a waiver of the right of the fiduciary to take the commissions in a subsequent year. Third, interim settlements filed by the New Jersey trustee reserved the right to take commissions on corpus in the future. In some cases, there was an express agreement with trust beneficiaries that the New Jersey trustee had not waived its right to claim a commission on corpus for the years in question. No such agreement or reservation is present in this case.

If the argument of the appellant-plaintiff were correct, the trustee could wait twenty-five years before being required to elect to receive an annual commission on corpus rather than the five percent commission payable at the time of final distribution. We find nothing in the language of KRS 386.180(1) which indicates that the legislature intended that a trustee be able to avoid the risk of early termination of a trust by declining to exercise the option afforded by the statute for such an extended period of years. We agree with the circuit court that the trustee was required to exercise its option to take annual commissions on corpus under KRS 386.180(1) within a reasonable time and that thirty-three years was not a reasonable time.

The judgment of the circuit court is affirmed.

All concur.


author: LESTER, Judge.

text:
    CHARLES WHITE CO., INC., Ideal Hardware Co., Lessenberry Building Centre, Inc., James Matthews, Old Planing Mill Co., Inc., West State Steel Co., Inc. and Glasgow Paving Co., Inc., Appellants, v. PERCY GALBREATH & SONS, INC., Charles A. Watkins and Elleanor J. Watkins, his wife, Watkins Investments, a general partnership composed of Charles A. Watkins, Carlos Marberry, Jerry Adams, Kenneth Watkins, Gary Cain and Bill McKnight, Geneva Construction Co., J. F. Pace Concrete Products, Inc., McMurtrey Ready-Mix, Bob Ross Plumbing and Heating, Johnson Electric Service, Inc., Southern Fence, Tri-State Construction Co., Rogers Sheet Metal, Jack C. Dodson, Southern Welding & Fabrication, South Central York Co., Bill Wheeler Painting, and Leonard Johnson, Appellees.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.

      E. P. Barlow Ropp, Travis, Ropp & Davis, Uhel 0. Barrickman, Richardson, Barrick-man & Dickinson, Wilson, Herbert, Garmon & Sparks, Glasgow, for appellants.
    Shelly T. Riherd, Riherd, Richardson & Patton, W. L. Gardner, Jr., Redford, Redford & Gardner, Robert M. Alexander, Walter A. Baker, Glasgow, Milliken & Milliken, English, Lucas, Priest & Owsley, Bowling Green, Richard L. Garnett, Glasgow, for appellees.
    Before HOWERTON, LESTER and REYNOLDS, JJ.
   LESTER, Judge.

Watkins Investments, a general partnership, obtained a construction loan from Percy Galbreath & Sons, Incorporated, which authorized advances of up to $180,000.00 with interest at 10% per annum. In connection with this loan, the partners, including Charles A. Watkins and Elleanor J. Watkins, in their capacity as individuals, signed a promissory note. As security, Percy Gal-breath took a mortgage on the premises under construction and received an assignment of rents from the lease on the building after completion that Tractor Supply Company had entered into with Watkins. When Watkins defaulted, Percy Galbreath, in accordance with the terms of the loan, finished the building to preserve the lease which resulted in a total advance of $158,-131.55 by Percy Galbreath for construction. Percy Galbreath brought a foreclosure action naming as defendants nineteen materi-almen having liens of record totaling in excess of $103,000.00.

Under the judgment, Charles White Company, Ideal Hardware Company, Lessenber-ry Building Centre, James Matthews, Old Planing Mill Company, West State Steel Company and Glasgow Paving Company will not take part in the prospective distribution of the sale of the property despite their mechanic’s liens. Hoping to improve their position through appeal, they challenge the court’s decision as it affects their relationship to both Percy Galbreath and the other materialmen. In order to satisfy appellants in regard to Percy Galbreath, we would have to hold that the court erred in setting aside a sale of the property for $201,000.00 and determining that upon sale Percy Galbreath would not have the right to rent for the satisfaction of its loan. Allowing appellants over this dual hurdle would make plausible their argument that Percy Galbreath had two funds from which to retire its superior lien and that it should, therefore, marshall assets. Secondly, the appellants complain of the establishment of priority among the materialmen according to the order that each furnished materials.

Watkins filed a voluntary petition in bankruptcy in the United States District Court for the Western District of Tennessee. The trustee, with leave of court, disclaimed any interest in the property on May 23, 1975. On June 11, 1975, Percy Gal-breath filed its complaint.

The special commissioner’s report of October 17, 1975, recommended that Percy Galbreath have a superior lien for the following:

Disbursements $158,131.55
Interest 11,179.02
Commitment Fee None
Legal Fees 500.00
Appraisal Fee 450.00
TOTAL $170,260.57

The sum total would take into account a credit of $45,000.00 for rentals collected after completion of the building. Interest was to accrue at ten per cent per annum on $159,081.55 from August 31, 1975 until the date of its judgment and thereafter at six per cent on that amount until paid.

The report indicated that the mechanic’s liens acquired priority in the order that the lienholder commenced labor or furnished materials. The report suggested a sale of the property to satisfy the claims. On October 31, 1975, the appellants excepted to the report of the special commissioner insofar as it concerned the priority of the mechanic’s liens. On November 6th, the court adopted most of the report of the special commissioner and ordered a judicial sale of the property subject to the lease. The court reserved its ruling on the priority of the mechanic’s liens.

The special commissioner conducted a judicial sale of the property. The notice of the sale published in the Glasgow Daily Times contained the information that:

[t]he property is being sold subject to the lease to Tractor Supply Company recorded in Mise. Book 26, page 673 in the Barren County Court Clerk’s Office. (A copy of the lease may also be inspected at the office of Bailey & Grissom, the auc-tioneering agents.)

Leonard Johnson made the high bid of $201,000.00 which the commissioner accepted. The commissioner reported the sale for approval of the court on December 15,1975. On December 30th, the appellants moved the court to compel the sale of the leasehold interest for first satisfaction of the debt of Percy Galbreath from the proceeds of this sale under the doctrine of marshalling of assets. On January 13, 1976, Johnson requested the court to set aside the sale and void his purchase money bond. The court, on February 13th, denied the equitable relief of marshalling of assets on the grounds that Percy Galbreath did not have two separate sources of security, that in any case appellants waived entitlement to such relief by not raising the question before judgment and order of sale, and that sale of the property subject to the lease transferred all the benefits and responsibilities of the lessor to the purchaser. On March 12th, the appellants appealed. On April 20th, the court entered a judgment which set aside the sale to Johnson for mistake, misunderstanding, and error not attributable to him, and directed the commissioner to establish the priority of the mechanic’s liens according to the order in which each lienholder first furnished labor or materials. On May 7th the appellants appealed from the judgment.

The appellants sought to stay the sale of the property but failed to file a supersedeas bond. This court has ruled earlier during this appeal, by order, that the absence of a supersedeas bond prevented a stay of enforcement of the judgment, but did not bar the appeal. Walker Hall purchased the property for $196,000.00 with the understanding that he had the right to the rent under the lease. The circuit court approved the sale. Walker Hall paid the purchase price into the court pending our resolution of this case.

Considering that the appellants have requested equitable relief, the result they wish from application of the marshalling of assets principle strikes us as incongruous. It would not help appellants if we held that sale of the property and sale of the leasehold would constitute two funds from which Percy Galbreath could draw, if we also permitted the court’s setting aside of the sale to Johnson to stand. The property would bring little or nothing if the buyer knew that he had neither the right to rent nor the right of possession until the elimination of the sizeable debt to Percy Galbreath. Yet sticking Johnson with the purchase price of $201,000.00 for property he would receive no benefit from for so indefinite a period hardly seems equitable. Appellants have no trouble so burdening Johnson because he bought the property “subject to the lease” and Watkins had assigned the rents to Percy Galbreath. Appellants attach importance to the assignment which, they claim, when coupled with the phrase “subject to the lease,” put the buyer on notice that he could not collect rents. However, since a sale subject to a lease ordinarily means that the buyer becomes the landlord, appellants should have made their position known to the court prior to the sale. Francis Co. v. Lincoln Federal Building & Loan Ass’n, Ky., 445 S.W.2d 153 (1969).

As a practical matter, regardless of whether rents have been assigned, a leasehold as security cannot be separated from the property for the purposes of marshall-ing of assets. The property would not have much value apart from the rent for a term of the outstanding obligation. Division of the two would only decrease the value that the leasehold and the property would have as an entity; causing such a split to create two funds would run counter to the requirement that the use of the doctrine not prejudice the prior creditor. In addition, the parties asserting the doctrine would find a smaller fund from which to reduce their claims. The circumstances of this case do not permit an application of the principle. Calhoun v. Federal Land Bank of Louisville, 230 Ky. 460, 20 S.W.2d 72 (1929).

As we have pointed out, appellants’ theory of marshalling of assets would only remain desirable to them if Johnson must pay $201,000.00 for the property to which he will have a deferred right to rent. The court properly nullified the sale. P. A. Blackwell & Co. v. Canoe Creek Coal Co., 217 Ky. 778, 780, 290 S.W. 700, 701 (1927) explains the status of a judicial sale prior to court approval:

Until the chancellor acts upon the report of sale, and accepts the bid and approves and confirms the report of sale, the bidder is not a purchaser, but only a proposer, whose proposition may be accepted or rejected . . . His bid may be rejected at any time by the court for cause shown, but when confirmed he then acquires and assumes burdens for which he cannot be easily discharged.

The court here did not confirm the sale to Johnson. The information provided prior to the sale would have lead any buyer to assume that upon purchase he would have an immediate right to rents. A purchaser would realize that in buying subject to the lease he would not have possession for the term of the lease, but, in the absence of a clear indication of a contrary intention prior to the sale, he would expect that his purchase would allow him to collect rents without delay. The action by appellants placed in doubt whether Johnson could collect rent right away. This uncertainty created through no fault of Johnson’s was sufficient cause for the court to set the sale aside. In the second judicial sale, the court took steps to protect the purchaser if an adverse ruling should occur on appeal. The second sale should stand according to its terms.

We agree with appellants that the materialmen and laborers with perfected mechanic’s liens share equally and reverse the portion of the judgment that ranks priority from the date that each either began work or furnished materials. The commissioner believed this order of priority to be mandated by the plain wording of KRS 376.010(1) which reads,

[t]he lien on the land or improvements shall be superior to any mortgage or encumbrance created subsequent to the beginning of the labor or the furnishing of the materials, and the lien, if asserted as hereinafter provided, shall relate back and take effect from the time of the commencement of the labor or the furnishing of the materials.

The court adopted the commissioner’s recommendation. However, as Professor Richardson observed in his analysis of the question, so arranging the priority of material-men contradicts the purpose of the act and “could lead to a ridiculous race to the premises by materialmen seeking to be first to begin furnishing materials.” 4, Richardson, Kentucky Practice § 1130 at 86 (1974). Such an interpretation would also favor those segments of the construction industry which, because of the nature of the service or materials provided, must come early in the building process. It appears to us that the phrase “shall relate back and take effect from the time of the commencement of the labor or the furnishing of the materials” has reference to the priority that mate-rialmen and laborers will have in relation to creditors not in the class of materialmen and laborers. The last sentence of KRS 376.010(1) lends weight to this view. It states that:

[t]he lien shall not be for a greater amount in the aggregate than the contract price of the original contractor, and should the aggregate amount of the liens exceed the price agreed upon between the original contractor and the owner there shall be a pro rata distribution of the original contract price among the lien-holders.

Schnute Holtman & Co. v. Sweeney, 136 Ky. 773, 125 S.W. 180 (1910) also supports our holding that the materialmen and laborers with mechanics’ liens share equally after the satisfaction of Percy Galbreath’s claim.

The judgment is affirmed in part and reversed in part.

All concur.


author: HAYES, Judge.

text:
    Joseph P. BRUENIG and Mary S. Bruenig, his wife, Appellants, v. Gail L. SILVERMAN, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.

      Robert G. Stallings, Louisville, for appellants.
    Anthony H. Ambrose, Louisville, for ap-pellee.
    Before HAYES, REYNOLDS and VANCE, JJ.
   HAYES, Judge.

This is an appeal of an order of the Jefferson Circuit Court in which the circuit court ruled that it lacked jurisdiction to make a custody determination.

Appellant, Joseph P. Bruenig, a resident of Louisville, Kentucky, brought this action on March 10, 1976, against his former wife, appellee, Gail L. Silverman, a resident of El Cajon, California, in order to obtain the custody of his two daughters, Cheryl M. Bruenig, age 10 and Danette Bruenig, age 9.

Appellant, Joseph P. Bruenig, and appel-lee, Gail L. Silverman, formerly Gail L. Bruenig, were married on March 25, 1966, in Los Angeles, California. In September, 1969, Gail L. Bruenig initiated uncontested divorce proceedings against her husband, Joseph P. Bruenig, in the Superior Court of San Diego County, California.

A judgment was entered on March 19, 1970, by the San Diego County Superior Court dissolving this marriage and awarding custody of Cheryl M. Bruenig and Dan-ette Bruenig to their mother, Gail L. Silver-man.

Gail L. Silverman was married a second time on April 3,1970. This marriage lasted approximately three (3) months. Later in 1970, Joseph P. Bruenig married his second wife, Mary Sue Bruenig, and moved to Kentucky in June of 1971.

Appellee wrote the appellant, Joseph P. Bruenig, a letter on May 13, 1974, in which she proposed that both Cheryl and Danette should come to Louisville and live with their father for the summer of 1974. Ap-pellee wrote in part:

It’s been a long time since they’ve had a father and it really shows. They want to set Danette back a year cause she is so imature [sic] and Cheryl just plain needs a man, period. I’ve really had trouble with her minding and the school says she’s really a handfull, always wanting attention any way she can get it .
They both need attention from a man and the only one that can give them the correct attention is their father, oh, other men probably could but the love is not there and they know it, or should I say they can sence [sic] it. .

The children came to Louisville, Kentucky, in June of 1974. At the end of the summer, Joseph P. Bruenig refused to send the children back to California.

Appellee upon direct examination testified thus:

Q. 78 O.K. When did you next hear from Joseph Bruenig?
A. About a week before school was to start he called and said that he had asked the girls if they wanted to stay and they said yes or that the girls had said they wanted to stay and that if I wanted to I could contact an attorney but it wasn’t going to do me much good because they were going to stay and he said that he would call back in a week, that he would advise me to contact attorneys and see what could be done and that he would call in a week and get my answer.

Appellee then stated that she had contacted two private attorneys in El Cajon, California, who told her that there was not much that could be done since they did not know the laws of Kentucky and since appel-lee had little money with which she could pay her attorney fees. She also testified that the El Cajon District Attorney advised her that she had no case and that there was not much that she could do about it.

Appellee further testified on direct examination as follows:

Q. 87 O.K. Did you have an occasion to call Joseph back shortly after he had phoned you?
A. Well, he phoned back and asked if I had contacted an attorney and I said yes and he asked what was said and I told him what had happened, that there wasn’t too much I could do and he said, well, that he had already enrolled the girls in school and there wasn’t too much I could say about it because I couldn’t come back and get them so I agreed for them to stay the school year but I would like them returned that next summer. On cross-examination appellee responded thus:
Q. 278 You didn’t discuss the amount of necessities over and above what you could provide and what Mr. Bruenig would provide?
A. Yes. He told me that when he called and said he was keeping the children, he said that he felt he could provide a better home, that I was single and was going to want to be dating and that this would give me time to find a husband and get settled and he kept stressing that he could provide a better home.
Q. 279 What did you say?
A. Well, there wasn’t much I could say at that time, yes, he could.

Appellee then testified that the only action she took to get back her children in 1975, was to write a letter to an Assistant Jefferson County Attorney, who told her that whatever she decided to do, to do it peacefully.

Appellee married her third husband, Mark Silverman, on October 4, 1975. Ap-pellee then engaged an attorney who filed a petition on January 26, 1976, in the San Diego Superior Court to have appellee’s custody of her two daughters restored. A judgment of the Superior Court was entered on March 18, 1976, which ordered the appellant to surrender Cheryl and Danette Bruenig to the mother in California.

Appellant introduced the testimony of several witnesses, including the children’s teachers and next door neighbor, which established that the children were well taken care of and were happy in their new home in Kentucky.

The issue before this court was stated in the Circuit Court’s Findings of Fact and Conclusions of Law thusly:

Whether or not under KRS 403-260(l)(b)(l. & 2.) the Court has jurisdiction of this subject matter of the two children who have been residing with the father, petitioner herein, under arrangement, since June, 1974; their custody being with the mother under a California decree.

The Circuit Court then held:

1. Kentucky is not the home state of the children and does not have jurisdiction of the issue of their custody. The issue of custody of the children herein is and remains with the state of California, under the Decree entered in the Superior Court of San Diego County, California.

This Court cannot agree with the trial court’s interpretation of KRS 403.-260(l)(b)(l & 2) which provides:

(1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: .• .
(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one (1) contestant, have a significant connection with this state; and
2. There is available in this state substantial evidence concerting the child’s present future care, protection, training, and personal relationships; or .

This court believes that there was enough substantial evidence presented to the trial court to support a finding that all the requirements of KRS 403.260(l)(b)(l & 2) have been met.

The evidence clearly established that the father had a “significant contact” with Kentucky in that he had been a lifelong resident, except for the three years he spent in California.

The children, unquestionably have a “significant contact” with Kentucky, in that they had resided in Kentucky for approximately eighteen (18) months before the ap-pellee even brought any legal action to regain custody of her daughters.

The evidence before the trial court established that the children had attended school here in Kentucky on a regular basis for well over a year, and that they were well established in a stable and happy environment. This court cannot find a more “significant contact” than these facts.

Appellee’s own testimony at best tends to establish that she made a few feeble attempts at regaining custody. Her testimony further supports the conclusion that she even acquiesced, although reluctantly, in the appellant’s custody of her two children.

The trial court cited a number of cases as the basis for its decision. Among them were Hawley v. Shaver, Ky., 528 S.W.2d 669 (1975), Turley v. Griffin, Ky., 508 S.W.2d 764 (1974) and Honigsberg v. Goad, Ky., 550 S.W.2d 471 (1976).

This court believes the facts in the above cited cases to be distinguishable from the facts in the present ease because in those cases the children were in Kentucky for only a very short time, a matter of a few months, before legal action was brought promptly to regain their custody. In this case, the appellee waited a long period of time before bringing any legal action. In the meantime, “significant contact” between her children and Kentucky had developed.

This court finds that “there must be a point in time when the circumstances of a situation dictate that jurisdiction of an interstate child pass to the place where the child presently resides”, Hook v. Hook, Ky. App., 551 S.W.2d 818 (1977). We feel that this point has been .reached in this case.

In Hook v. Hook, supra, an interstate child which had been domiciled with his mother in Texas was brought into Kentucky to live with the child’s natural father, to provide a change in environment for the child. Subsequently, the father made arrangements for medical care and enrolled the child in a school for retarded children. About five months later, the father brought an action to have legal custody of his son.

The trial court’s finding that it had jurisdiction under KRS 403.260 was affirmed by this court.

In this case, the evidence clearly established that the children were allowed to come into this state to live with their natural father in order to better their own emotional and material welfare at a time when their mother was having financial and other personal problems.

Therefore, this court cannot extend full faith and credit to the judgment of the San Diego Superior Court entered on March 18, 1976, since jurisdiction over these children has shifted to Kentucky. Thus, we find the judgment of the trial court to be clearly erroneous.

The judgment is reversed and the case is remanded for proceedings consistent with this opinion.

All concur.


author: PARK, Judge.

text:
    Roy Thomas JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1978.
    Jack Emory Farley, Public Defender, Linda K. West, Asst. Public Defender, Commonwealth of Kentucky, Frankfort, for appellant. u
    Robert F. Stephens, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, for appellee.
    Before LESTER, PARK and WHITE, JJ.
   PARK, Judge.

Roy Thomas Johnson was indicted and convicted of first degree robbery (KRS 515.-020). Johnson appeals from a judgment of the Fayette Circuit Court entered upon the jury’s verdict imposing a sentence of twelve years imprisonment. A single issue is presented by the appeal. The trial court permitted the Commonwealth to introduce evidence of a confession made by Johnson shortly after he was arrested and taken into custody by the police. Based upon the assumption that his arrest was unlawful, Johnson asserts that his confession was inadmissible as evidence at trial.

Prior to trial, Johnson moved the trial court for an order suppressing the confession on the grounds that the oral statements made by him at the time of his arrest were obtained in violation of his “Constitutional Rights under the fourth and fourteenth amendments.” The motion did not allege that Johnson’s arrest was illegal, nor did the motion state any factual basis for suppressing the confession. Following an evidentiary hearing, the trial judge overruled the motion to suppress Johnson’s confession. Johnson was arrested without a warrant. On this appeal, Johnson asserts that the evidence at the suppression hearing fails to establish that the police had probable cause to believe that he had committed the felony. Consequently, his arrest would have been illegal. KRS 431.005(1). Because his confession was obtained within three hours after he was taken into custody, Johnson asserts that his confession was the product of the allegedly illegal arrest’ and that his confession should, therefore, have been excluded under the authority of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Unfortunately, the record fails to reflect that the question of the legality of Johnson’s arrest was ever brought to the trial judge’s attention. The entire thrust of the suppression hearing was directed toward determining whether Johnson had received the Miranda warnings prior to his confession. Johnson’s arrest was based upon information obtained from Detective Vogel who was coordinating several robbery investigations. However, Detective Vogel was never questioned concerning the information obtained by him linking Johnson to the robbery.

But for the language of the suppression motion, we would hold that Johnson waived the question of the legality of his arrest. Although not specifically asserting that his arrest was illegal, the motion to suppress his confession cites the fourth and fourteenth amendments to the United States Constitution which are the basis for the decisions in the Brown and Wong Sun cases. The only reason for a fourth amendment argument would be the alleged illegality of Johnson’s arrest. The trial judge overruled the motion to suppress without making any findings of fact. Consequently, we do not know whether the trial judge ever considered the fourth amendment issue.

We conclude that Johnson did not waive his fourth amendment argument. Nevertheless, Johnson never informed the trial judge of the basis of his fourth amendment argument. The evidence at the suppression hearing was not directed to that issue. The trial judge has never had an opportunity to rule upon Johnson’s contention that his confession was the product of an illegal arrest. The record of the suppression hearing does not provide a satisfactory basis for this court to determine the legality of Johnson’s arrest.

When presented with a similar problem in Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969), the Supreme Court declined to determine whether Morales’ confession was the product of custodial questioning in the absence of probable cause for a full-fledged arrest. The evidentiary hearing on the motion to suppress Morales’s confession was directed to the voluntariness of his confession rather than the lawfulness of his detention by the police. The Supreme Court vacated the judgment of conviction and remanded the case for further proceedings, stating:

Given an opportunity to develop in an evidentiary hearing the circumstances leading to the detention of Morales and his confessions, the State may be able to show that there was probable cause for an arrest or that Morales’ confrontation with the police was voluntarily undertaken by him or that the confessions were not the product of illegal detention.

396 U.S. at 105, 90 S.Ct. at 293. Because the Commonwealth did not have a fair opportunity to meet the fourth amendment issue and because the trial judge never had an opportunity to pass upon that question, the judgment of the circuit court ought not be reversed. Under the authority of Morales v. New York, supra, and Francis v. Commonwealth, Ky., 468 S.W.2d 287 (1971), the case should be remanded to the trial court for a further evidentiary hearing on the fourth amendment issue. The trial court shall follow the procedures set out in RCr 9.78, effective January 1, 1978. See also Lee v. Commonwealth, Ky.App., 547 S.W.2d 792, 794 (1977). The trial judge shall make findings of facts sufficient to meet the test set forth in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 at 3052, 49 L.Ed.2d 1067 (1976) and Townsend v. Sain, 372 U.S. 293 at 313-15, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

The judgment of the circuit court is vacated and the case is remanded to the circuit court for a determination of the question whether Johnson’s confession was the product of an illegal arrest. If the circuit court finds that there was probable cause for Johnson’s arrest, the court shall reinstate the judgment of conviction. If the circuit court finds that there was not probable cause for his arrest, Johnson shall be granted a new trial.

All concur.


text:
    Wirt T. POWELL and Grace Powell, Appellants, v. CITY OF CAMPBELLSBURG, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1978.
    Dorothy G. Cox, Turner, Jones & Cox, New Castle, for appellants.
    John M. Berry, Jr., Berry, Floyd & High-field, New Castle, for appellee.
    Before HOWERTON, WILHOIT and WINTERSHEIMER, JJ.
   HOWERTON, Judge.

This is an appeal from an Order of the Henry Circuit Court dismissing without prejudice appellant’s remonstrance action protesting an annexation attempt by the appellee. On May 25, 1976, the Board of Trustees of the City of Campbellsburg proposed annexation:

of all that territory on both sides of U.S. Highway 421 running parallel with and 400 feet from the centerline of said highway, beginning with the west limits of the City of Campbellsburg, and extending to the point where the right-of-way of U.S. 421 intersects the right-of-way of Kentucky 1606.

Appellants timely filed the remonstrance action on July 16, 1976.

The issues were joined and appellants moved for a summary judgment on the basis of several technical grounds, including inadequate publication, inadequate description, failure to properly quote and record the ordinance proposing annexation in the minutes and journal of the City, and also on the ground that the territory to be annexed was either a strip or was not contiguous to the existing city boundary.

On January 25, 1977, the Trustees repealed the annexation ordinance of May 25, 1976. A pretrial hearing was held as scheduled on January 26,1977, at which time the trial court agreed to sustain appellee’s motion to dismiss the action without prejudice. The Order of dismissal was signed and entered on February 26, 1977, but on February 22, 1977, the Trustees enacted a new ordinance proposing to annex the same territory. A remonstrance has been filed against the new proposal, but appellants are presently appealing the dismissal of the first action. If a final adjudication against annexation could be obtained on the first proposal, the City of Campbellsburg would be barred from proposing annexation of the same territory for a period of two years following the final adjudication. KRS 81.-270.

On this appeal, the appellants raise the issues which were presented to the trial court, but which were never decided. We need not decide these questions on this appeal. At most, we would remand the case to the trial court for a determination of such issues.

The primary question which must be decided on this appeal is whether the trial court could properly dismiss appellants’ remonstrance action without prejudice over appellants’ objection when the City’s legislative body repealed the annexation ordinance prior to any adjudication, but enacted a new ordinance proposing a similar annexation prior to the entry of the Order of dismissal? We conclude that the action of the trial court was proper.

In the case of City of Louisville v. Town of Crescent Hill, 21 K.L.R. 755, 52 S.W. 1054 (1899), the City of Louisville passed an ordinance proposing annexation, including a portion of the town of Crescent Hill. A remonstrance was filed. Before the date set for trial, the City of Louisville repealed the ordinance and moved the trial court for a dismissal to which the township objected. The trial court refused to dismiss the action, and proceeded to adjudicate against the annexation. The action of the trial court was reversed on appeal. The issues related to Louisville’s right to a dismissal and to again seek annexation of the territory within two years. The court concluded at the end of its opinion:

The repeal of the ordinance proposing the annexation left no proposition of annexation in force for the court to pass on. After the original ordinance had been repealed the court could not have given judgment for the annexation of the territory. The jurisdiction of the court depended upon there being a proposition to annex the territory, and, when its annexation was not proposed, there was nothing for the court to try. The motion of the city to dismiss the case at its cost should have been sustained. Judgment reversed, and cause remanded for a judgment in conformity to this opinion.

It should be noted that the City of Camp-bellsburg is a city of the 6th Class. KRS 81.010. Annexation procedures for a city of the 6th Class are governed by the same basic procedures as prescribed for cities of the 1st Class, such as Louisville. KRS 81.-240, 81.100 and 81.110.

The principle set forth in Crescent Hill, supra, continues to be the appropriate rule of law in Kentucky. The case was followed in the recent decision in Morrow v. City of Dixon, Ky., 493 S.W.2d 710 (1973). The City of Dixon repealed its ordinance proposing annexation, and the trial court sustained its motion to dismiss the remonstrance action on the basis that the repeal left no proposition of annexation in force for the court to pass upon.

Appellants contend that the actions of the appellee in this case constitute an obvious effort to thwart or circumvent the dominion of the circuit court over the proposal to annex a particular territory. It is true that the City has enacted a new ordinance proposing annexation of the same area. We observe, and must conclude, however, that this procedure was not only approved by the trial court as to the dismissal, but it is a lawful and acceptable way for correcting probable or acknowledged errors prior to a final adjudication of the issues.

In Overstreet v. City of Louisville, 310 Ky. 1, 219 S.W.2d 405 (1949), a proposal for annexation was permitted to proceed to an adverse judgment in 1946. The City of Louisville proposed annexation of a similar territory in 1947, which was approved by the trial court. The judgment was reversed on appeal because of the two-year prohibition. The court explained the Crescent Hill case, supra, and then concluded, “Had the City taken steps similar to those followed in the Crescent Hill Case, we would have a different situation before us.” Overstreet, supra, at 3, 219 S.W.2d at 406. It is clear that had the action on the first ordinance been dismissed before an adjudication, the City of Louisville would have been free to immediately begin anew its annexation efforts, and to use such a method to correct any suspected or self-acknowledged errors in its annexation procedure.

Appellants rely, primarily, on two cases. They are Garner v. City of Lexington, Ky., 306 S.W.2d 305 (1957) and Buchanan v. City of Dayton, Ky., 363 S.W.2d 92 (1962). Both cases are distinguishable from the circumstances of this appeal.

In Garner, supra, the City had proposed annexation of a large area. While the remonstrance was pending in the circuit court, the City proposed to annex a portion of the total territory belonging to IBM, which desired annexation. The attempt was not allowed, and the Court of Appeals concluded that the circuit court had exclusive jurisdiction to determine whether or not a part of the territory should be annexed. The effect of Garner, supra, has been nullified by the enactment of KRS 81.275 in 1966. Garner, supra, was not a case where a city was attempting to repeal a potentially invalid ordinance and to correct its errors before adjudication. It was attempting to bring in a part of an area to be annexed which was already the subject matter of a remonstrance suit and without any repeal of the original ordinance.

The Buchanan case, supra, involved annexation by a city of the 4th Class. The annexation procedure is different in that the City of Dayton was required to bring the action to obtain court approval. The City first proposed annexation in 1954, and it subsequently instituted annexation proceedings in 1957 concerning a portion of the same territory. The 1954 proceedings were laying dormant in the circuit court. The City sought leave of court to withdraw its 1954 proposal and suit, which was granted without prejudice by the circuit court. On appeal, the court distinguished Garner, supra, in that the procedure in Buchanan, supra, received prior court approval and there was no “attempt to circumvent or thwart the dominion of the circuit court . . ."

The cases recognize the right of a city to correct defects by dismissal of an action, if done by a leave of court and before a final adjudication. The procedure set forth in Buchanan, supra, is applicable for 4th Class cities, and the procedure outlined in Crescent Hill, supra, is applicable to all other classes of cities.

The technical procedural errors alleged against the ordinance of May 25, 1976, are now out of the way, and the new ordinance is subject to attack on its merits, or on the basis of any new procedural errors which might be raised.

The other issue raised by appellants, which must be considered, is whether or not it was error for the trial court to disallow appellants’ request for an award of attorney’s fees to be taxed as cost? With certain exceptions, Kentucky does not allow attorney’s fees in the absence of a statute or contract expressly providing therefor. No authority has been cited by appellants. This action does not present such an exception wherein the trial court has abused its discretion in disallowing attorney fees. See Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974) and Dulworth and Burress Tobacco Warehouse Co. v. Burress, Ky., 369 S.W.2d 129 (1963).

For the foregoing reasons, the judgment is affirmed.

All concur.


author: HOGGE, Judge.

text:
    Barbara THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. COMMONWEALTH of Kentucky, Appellant, v. Barbara THOMAS, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1978.
    John Tim McCall, Louisville, for Barbara Thomas.
    Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, for the Com.
    Before MARTIN, C. J., and GANT and HOGGE, JJ.
   HOGGE, Judge.

The consolidated appeals now before this court in this proceeding grow out of efforts to prosecute an employee of Trackside Limited, Barbara Thomas, under KRS 528.110 and City Ordinance No. 47 of the City of Louisville. A motion by the Commonwealth for interlocutory relief from the denial of a temporary injunction against Trackside Limited, Barbara Thomas, and others, is being adjudicated in an opinion by another panel of this court, and that opinion will be rendered this day.

At the times at which Barbara Thomas was charged with the offenses involved in these proceedings, she was carrying on the business of her employer, which consists of serving as an agent for its patrons by placing bets for them at authorized racetracks, within the racetrack enclosure. A service fee of ten percent of the total amount to be wagered is charged, and after the race Trackside Limited collects any winnings due its client. As the fee is based on the amount wagered, and not the winnings, Trackside Limited has no interest in the outcome of the race.

A complaint against Barbara Thomas under KRS 528.110 was dismissed in Louisville Police Court on March 22, 1977, on the grounds that the statute did not apply to the facts of the case. Section 1 of KRS 528.110 reads as follows:

(1) Any person who, either for himself or as agent or employe of another, wagers money or anything of value on a horse race run or about to be run or advertised, posted or reported as being run at any race track in or out of this state, or who engages in the occupation of receiving, making, transmitting or negotiating, either in person or by messenger, telephone or telegraph, wagers on horse races run or about to be run or advertised, posted or reported as being run or about to be run at any race track in or out of the state, shall, except in the case of wagers made within the enclosure of a race track licensed by the state racing commission during an authorized race meeting at that track, or an enclosure during regular meetings in which running, trotting or pacing races are being conducted by associations regularly organized for that purpose, be guilty of a Class A misdemeanor.

The police court judge’s decision dismissing was appealed to Jefferson Circuit Court, which dismissed the Commonwealth’s appeal. The grounds for dismissal were not indicated. The case of Commonwealth v. Thomas is an appeal from that judgment, and it raises the question of the applicability of KRS 528.110 to the acts of Barbara Thomas. On May 2, 1977, the Louisville Board of Aldermen passed City Ordinance No. 47, which states in part:

Section 1. No person, firm, corporation or partnership shall engage in the occupation, either for himself or as agent or employee of another, of receiving or accepting money, requests, messages or wagers from another, outside the enclosure of a race track licensed by the state racing commission of this state or another state, for the purpose of transmitting that money, request, message or wager into such enclosure to make a wager through the regular pari-mutual (sic) betting apparatus on a horse race run or about to be run or advertised, posted or reported as being run or about to be run at any race track in or out of the state.
Section 3. No person, firm, corporation or partnership shall transmit any money, request, message or wager to another for the purpose of their transmitting for payment of any consideration that money, request, message or wager into the enclosure of a race track licensed by the state racing commission of this state or another state to make a wager through the regular pari-mutual (sic) betting apparatus on a horse race run or about to be run or advertised, posted or reported as being run or almost to be run at any race track in or out of the state.
Section 5. Any person, firm, corporation or partnership violating any of the provisions of this ordinance shall be guilty of a misdemeanor and shall be fined not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) or imprisoned for not more than 50 days, or both such fine and imprisonment, for each offense.

On May 23, 1977, Barbara Thomas was found guilty of violation of Ordinance No. 47 in Louisville Police Court and was fined. The Jefferson Circuit Court affirmed the conviction. The appeal in Thomas v. Commonwealth followed, raising four issues related to the constitutionality of City Ordinance No. 47, and its validity under the Home Rule Act.

We will first take up the issue of the applicability of KRS 528.110 to the conduct of Barbara Thomas. We agree with the Commonwealth that Barbara Thomas comes within the definition of a person who “as agent ... of another, wagers money . . . on a horse race . or who engages in the occupation of . transmitting . . . wagers on horse races . . . .” The basic question which we must decide is whether the actions of Trackside Limited come within the exception created by KRS 528.110 for wagers made within the confines of an authorized racetrack. In order to decide this, we must determine at what point a wager is made: when the bet is placed at the pari-mutuel window, or when the money to be wagered is given to the representative of a messenger betting service.

The Supreme Court of Louisiana faced this same issue when interpreting a Louisiana pari-mutuel betting statute very similar to our own. Their opinion, holding that the activities of the messenger service, Countdown, Inc., did not constitute illegal off-track betting, contained the following reasoning:

Countdown did not bet or wager. It accepted money, carried to the track, placed the bet at pari-mutuel windows and returned the betting ticket to its office, to be retrieved by the bettor. It takes two to wager, and until Countdown reached the track with the bettor’s money and bought the ticket at the pari-mutuel window, no bet was made. State v. Countdown, 319 So.2d 924, 927 (La.1975).

We hold that where a messenger betting service, operating outside racetrack premises, accepts money to be wagered for a messenger fee based on the amount bet, and places the wager at a pari-mutuel window in an authorized racetrack enclosure, the wager is made at the track and the transaction is exempt from the prohibitions of KRS 528.110, by virtue of the exception contained therein. The legislature may have intended to make the operation of messenger betting services illegal, but it failed to accomplish this in drafting the statute. The language of KRS 528.110 quite clearly places conduct such as that of Barbara Thomas within the exception created by the statute. Where there is no ambiguity in a law, there is no occasion for this Court to look beyond the words of the statute itself to attempt to ascertain legislative intent. Duvall v. Garrett, Ky., 457 S.W.2d 263 (1970); Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247 (1962).

Having determined that the trial court acted properly in dismissing the complaint against Barbara Thomas under KRS 528.110, we now turn to the prosecution under the city ordinance. Barbara Thomas alleges that City Ordinance No. 47 violates the Home Rule Act, in view of the fact that under KRS 83.420(1) Louisville did not have the power to pass an ordinance in conflict with the Constitution or laws of Kentucky. It is argued that City Ordinance No. 47 is in conflict with KRS 528.110, because City Ordinance No. 47 makes it illegal to conduct a messenger service designed to convey patrons’ wagers to pari-mutuel windows in authorized race track enclosures, while KRS 528.110 exempts the same conduct from criminal penalty. In view of our decision in Commonwealth v. Thomas, CA—1814-MR, we are compelled to agree with this contention. We hold that Ordinance No. 47 of the City of Louisville is invalid under KRS 83.-420(1) and in view of our conclusion on this issue, it will be unnecessary for us to reach the other issues raised in this appeal.

The judgment in Commonwealth v. Barbara Thomas, CA-1814-MR, is affirmed. The judgment in Barbara Thomas v. Commonwealth, CA-1699-MR is reversed, and the ease is remanded to the Jefferson Circuit Court with directions to dismiss the charges against the appellant.

All concur.


author: COOPER, Judge.

text:
    Kevin E. SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1978.
    Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
    Before COOPER, HOWARD and PARK, JJ.
   COOPER, Judge.

This is an appeal from a judgment in the Jefferson Circuit Court wherein the appellant was found guilty and convicted on one count of armed robbery pursuant to indictment No. 152413. His punishment was fixed by the jury, and judgment was entered on June 18, 1976, imposing a seventeen (17) year sentence.

The appellant was arrested in Louisville in late June of 1974, and charged with two (2) counts of armed robbery. One count of armed robbery was subsequently dismissed. He was convicted of one count of armed robbery allegedly committed at the Kwik Shop Food Mart on Greenwood Road in Jefferson County, Kentucky.

Three witnesses testified for the prosecution. The first was Detective Charles W. Baker, the investigating officer. He testified that on June 9, 1974, at approximately eleven thirty (11:30) p. m., he responded to an armed robbery call at the above location. Upon his arrival, he obtained a brief description of the robber from Marion Vaughan, the cashier at the store. The subject was then described as a white male between the ages of sixteen (16) and twenty (20), having long dirty dishwater-blonde hair, and being “kind of dirty” in appearance. Money and cigarettes were strewn about on the ground. According to Baker, the Canine Unit arrived shortly thereafter, and he accompanied Officer Malcolm Deuser and a German Shepherd named “Genghis Khan” from the scene, around the side of the store, along a ditch and to the rear of the appellant’s yard.

As no one would answer the door at the appellant’s house, Baker returned to the store and again conversed with Marion Vaughan, the cashier. He showed her a book of photographs, from which she positively identified the appellant. Several other young men in the area are known to Detective Baker, but he was unable to state whether their pictures were in the photograph book. He did assert that Kary Kraemer had never been charged with this offense.

The second witness for the Commonwealth, Marion Vaughan, was the cashier at the store on the night in question. She testified that her assailant entered the store, asked for cigarettes, pointed a gun at her, took her money, backed up to the door, turned and ran. He had been in the store on different occasions before the incident and did not return after the robbery. At the time of the robbery, the assailant was dressed in blue jeans, a white t-shirt, a blue outer shirt, looked nervous, had bloodshot eyes with large tears in them, and long, dishwater brown-blonde hair. She picked the appellant’s photograph from a point slightly more than halfway into the photograph book. She observed the dog arrive, sniff the money on the floor and depart.

The final Commonwealth’s witness was Officer Malcolm Deuser of the Canine Unit. He testified that he could not recall being at the scene of the crime with his dog; that he had no records of such a run; and that he does not regularly patrol that district. In addition, Officer Deuser observed that his dog, the German Shepherd “Genghis Khan”, is registered with the American Kennel Club and was initially trained by another officer. Deuser noted that the dog undergoes occasional refresher training and is adept at crushed vegetation tracking, but he has his limitations and will follow a more recent track which crosses the desired track. In addition, Deuser stated that the police department has since returned to the exclusive use of bloodhounds in tracking suspects.

Six witnesses were called by the appellant. There appears to be a conflict between the testimony of James Kozora, who is the manager of the store, and Marion Vaughan, the cashier.

Detective Baker testified that the appellant was the only person involved '’or charged. It appears that Kary Kraemer had been arrested and the charge filed away, along with several other individuals. Marion Vaughan identified the appellant by photographs, but they could not be produced at the time of the trial by the Commonwealth.

The appellant raises several questions, some of which are as follows:

I.DID THE FAILURE OF THE COURT TO EXCLUDE INCOMPETENT DOG-TRACKING EVIDENCE CONSTITUTE PREJUDICIAL AND REVERSIBLE ERROR?
II.WAS CONSTITUTIONAL ERROR COMMITTED WHEN PHOTOGRAPHS WHICH HAD BEEN THE BASIS OF PRE-TRIAL IDENTIFICATION WERE NOT PRODUCED AND WERE THE SUBJECT OF DIRECT EXAMINATION?
III. DID THE BLATANTLY ERRONEOUS ASSERTION BY THE COMMONWEALTH’S WITNESS THAT NO OTHER JUVENILES HAD BEEN ARRESTED FOR THE SAME CRIME VIOLATE THE APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
IV. WAS THE EVIDENCE AGAINST THE APPELLANT INSUFFICIENT TO SUPPORT A CONVICTION?

Much of the Commonwealth’s case is based upon certain circumstantial evidence that a German Shepherd dog named “Genghis Khan” was used to track the appellant. It will be noted, however, that Officer Deuser, the dog’s manager, had neither records nor memory of the incident and the dog tracking evidence. With respect to bloodhounds, this Court has long imposed the requirement that an exacting foundation be laid before the evidence is admissible. Pedigo v. Commonwealth, 103 Ky. 141, 44 S.W. 143 (1898).

Marion Vaughan, the cashier at the food market, testified upon direct examination that she had picked the appellant’s photograph from about halfway through a book of photographs. Detective Charles Baker, the investigating officer, testified to the same effect; however, James Kozora, the manager of the food market, stated that he did not see a book of photographs on the night in question. Despite a pretrial motion to produce, despite a motion to suppress the • testimony regarding the photographs, and despite a motion for a mistrial on the ground that the testimony regarding the photographic identification was incompetent and prejudicial, the court allowed both Marion Vaughan and Detective Baker to testify that her in-court identification of the appellant was based partially on her pretrial photographic identification even though the photograph book was never introduced at the trial.

At the trial, Detective Baker testified that the appellant was the only one arrested for this crime, which was disputed by Kary Kraemer and others. The Commonwealth’s attorney repeatedly used this in his closing argument to the prejudice of the appellant.

In Davis v. Commonwealth, 290 Ky. 745, 162 S.W.2d 778, 780 (1942), the court reversed a conviction for uttering a forged check, despite the unqualified identification by a witness who did not harbor personal animosity against the defendant. The court chose to believe the defendant’s defense of alibi which was substantiated by certain neutral acquaintances. The opinion recited in part at page 746, 162 S.W.2d at page 780 is as follows:

Where the verdict is against the weight of the evidence, as where the jury disregarded a defense which was almost conclusively established, we have not hesitated to reverse ... An appellate court ought to be sensitive to the realities, and if it believes there may have been a miscarriage of justice it should use its extraordinary power and reverse a judgment that there be a fuller development of the facts so that the guilt of the accused, if he is guilty, may be more certainly determined. .

The jury verdict in this case was based upon too many unknowns, to-wit: the dog-tracking evidence; the loss of memory of the dog handler; the loss of the photograph book; and the fact that other juveniles were arrested for the same crime.

It appears that the Commonwealth’s case rests on the in-court identification of the defendant by Marion Vaughan.

The judgment is reversed and the case is remanded for a new trial.

All concur.