author: CADENA, Chief Justice. MURRAY, Justice,

text:
    Ex parte Daniel R. RUTHERFORD and Michael Lynn Taft, Relators.
    No. 15929.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 27, 1977.
    John C. Laye, Jr., San Antonio, for rela-tors.
    Kirk Patterson, San Antonio, for appel-lee.
   CADENA, Chief Justice.

This is an original application for writ of habeas corpus to secure the release of rela-tors, Michael Lynn Taft and his attorney, Daniel R. Rutherford, Esq., who have been held in contempt and ordered incarcerated. The contempt proceedings grew out of an order entered by the 25th District Court of Guadalupe County on August 31, 1976, naming Rebecca Elizabeth Johnson, the former wife of Taft, managing conservator of a child born to them during the marriage.

The order of the trial court adjudging Rutherford in contempt recites that it is based on the fact that, during the contempt hearing, Rutherford stated in open court that he did not recognize the validity of the order of August 31, 1976, and had advised his client not to comply with such order.

Our authority to grant writs of ha-beas corpus is limited by Article 1824a, Tex.Rev.Civ.Stat.Ann. (Supp.1976), to cases where a person is being restrained of his liberty “. . .by virtue of any order, process, or commitment issued by any court or judge on account of the violation of any order, judgment, or decree theretofore made, rendered, or entered by such court or judge in a . . . child custody case.”

We do not construe the contempt order in this case as being based on a violation of the custody order by the attorney, Rutherford. As will more fully appear in the course of the discussion of Taft’s application for habeas corpus, Rutherford’s statement was based on the fact that the custody order of August 31, 1976 had been reversed by an appellate court. Since the record does not disclose the violation of any order by Rutherford, we lack jurisdiction of his application for habeas corpus. His request for relief must be directed to the Court of Criminal Appeals, the only Texas appellate court with the general power to issue writs of habeas corpus. See Ex parte Waters, 498 S.W.2d 144, 145 (Tex.1973). Relator, Taft, is clearly being restrained of his liberty because of the finding that he violated the custody order entered by the trial court on August 31, 1976. As already indicated, that order was reversed by the El Paso Court of Civil Appeals, which also ordered that Taft and his former wife be “. . . returned to the status and position which they held under the [trial] Court’s order entered on July 6, 1976, . .” Taft v. Johnson, 553 S.W.2d 408, 411 (Tex.Civ.App.—El Paso 1977, writ pending). The order of July 6, 1976 appointed Taft managing conservator of the child.

The alleged contumacious conduct by Taft took place after the order on which the adjudication is based had been reversed by the El Paso Court of Civil Appeals.

Paragraph (c) of § 11.19, Tex.Pamily Code Ann. (1975), provides that an appeal from an order, decree, or judgment affecting the parent-child relationship shall not have the effect of suspending the order, decree, or judgment “unless suspension is ordered by the court entering the order, decree, or judgment” or by the appellate court. In this case, both the trial court and the appellate court refused Taft’s request for suspension of the order pending the appeal from the order of August 31, 1976.

It is, therefore, clear that, while the appeal was pending, the order of August 31, 1976 remained in full effect and was enforceable by contempt proceedings. Ex parte Henderson, 512 S.W.2d 37 (Tex.Civ.App.—El Paso 1974, no writ).

While we do not here quarrel with the holding in Henderson, we do not consider that decision controlling in the case before us. In Henderson, the appellate court had taken no action affecting the validity of the trial court’s order. Here, the Court of Civil Appeals, after a hearing on the merits, had set aside the order of the trial court. Under these circumstances, the provisions of § 11.19(c) are irrelevant. The trial court’s order has been divested of its enforceable character not because of the fact that an appeal had been perfected challenging the validity of that order, but because the appeal succeeded and the order had been set aside. The statute contains no language which suggests that an order of a trial court in a custody case remains in effect after it has been reversed.

Suspension of an order pending appeal carries with it no implication concerning the validity of such order. The reversal of a judgment or order of a trial court, on the other hand, is a judicial pronouncement, by a court having power to make the determination, that the judgment or order shall not stand. No persuasive argument can be advanced in support of the contention that the reversal of a trial court’s judgment should not, at the very least, have the same effect as the suspension of such order pending appeal.

Neither Dignowity v. Fly, 110 Tex. 613, 210 S.W. 505 (1919), nor Fidelity Union Casualty Co. v. Hanson, 44 S.W.2d 985 (Tex.Com.App.1932), is controlling here. Fly merely held that an application for writ of error to the Supreme Court deprives the judgment of a Court of Civil Appeals of the degree of finality contemplated by the statute governing the issuance of mandates. Hanson did no more than apply the rule that a judgment which is in the process of being appealed cannot be given that conclusive effect required for the application of the doctrine of res judicata. Neither case supports the thesis that an application for writ of error, in some mysterious way, deprives of all vitality a judgment of a Court of Civil Appeals reversing the judgment of a trial court and, at the same time, breathing new life into, and reinstating, the judgment of the trial court.

The simple effect of upholding the incarceration of Taft in this case would be to hold that an order of a trial court which has been reversed by a judgment of a Court of Civil Appeals will be enforced while the judgment of the appellate court reversing such judgment will be ignored. No statute, decision, or rule supports a conclusion which imparts efficacious effect to a reversed judgment of a trial court and ignores the appellate judgment of reversal.

The application of Daniel R. Rutherford for writ of habeas corpus is dismissed for want of jurisdiction and he is remanded to the custody of the sheriff of Guadalupe County.

The application of Michael Lynn Taft for writ of habeas corpus is granted and he is ordered released from custody.

MURRAY, Justice,

dissenting.

I dissent. While I agree that this Court does not have jurisdiction of the application for writ of habeas corpus of Rutherford and his application must be dismissed, I do not agree that the opinion by the El Paso Court of Civil Appeals has the effect of suspending the judgment of the trial court until the appeal is final. Neither the trial court, nor the Court of Civil Appeals has entered an order suspending the judgment of August 31, 1976, although requested to do so. This case is now pending in the Supreme Court and it has power under the Code to suspend “on a proper showing.” The provisions of 11.19(c) provide an orderly and understandable method of suspending the effects of the trial court’s judgment pending an appeal. This Court is in effect suspending the trial court’s judgment pending an appeal, overruling the refusal to suspend of the trial court and the Court of Civil Appeals and depriving the Supreme Court of the opportunity to suspend “on a proper showing.”

It is not desirable to have the possession of a child changed each time an opinion of a court is handed down, or a new opinion is substituted, or a motion for rehearing is granted.

Fly and Hanson are, at least, some authority that the effect of an application for writ of error is that the appeal is still pending. Is the appeal still pending in this case? I would hold that it is.

      . Tex. Family Code Ann. § 11.19(c) (1975).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ROLOFF EVANGELISTIC ENTERPRISES, INC., et al., Appellants, v. The STATE of Texas, Appellee.
    No. 12589.
    Court of Civil Appeals of Texas, Austin.
    Oct. 5, 1977.
    Rehearing Denied Nov. 2, 1977.
    Clyde J. Jackson, Jr., Alsup & Alsup, Corpus Christi, Fred P. Benco and David C. Gibbs, Jr., Parma Heights, Ohio, for appellants.
    John L. Hill, Atty. Gen., M. Lynn Taylor, Asst. Atty. Gen., Austin, for appellee.
   PER CURIAM.

This appeal presents the question of whether child care homes operated by appellants, admittedly religious in nature, are subject to the provision of the Child Care Licensing Act, Article 695a-3, Vernon’s Civil Statutes, effective January 1, 1976.

At the outset of trial, the court granted the State’s motion for summary judgment ordering appellants to secure licenses to operate its three child care homes and to admit agents of the Texas State Department of Public Welfare for the purposes of inspection. The court’s order, in essence, requires permanent compliance with the Child Care Licensing Act.

This appeal presents, essentially, three questions. The first is whether or not there were any disputed fact situations that would have precluded the trial court from entering summary judgment; the second is whether appellants’ constitutional rights to the free exercise of religion are abrogated in any way by the Act; and the third is whether the trial court was correct in overruling the plea of privilege of appellant Roloff Evangelistic Enterprises wherein it asserted its right to be sued in one of the three counties in which a children’s home is located.

There is no dispute but that the State made a prima facie case under Article 695a-3, Section 23 of the Child Care Licensing Act. This Act requires three essential elements of a cause of action: “Any person . who operates a facility without a license or certification as required under this Act” is subject to certain enumerated penalties.

Thus, it became incumbent upon appellants to assert some affirmative defense against the enforcement of the Act which they attempted to do by alleging the Act to be unconstitutional as applied to them.

I

To state appellants’ position here, we quote from their brief:

“It has been a consistent and unwavering position on the part of Appellants that the Child Care Licensing Act and the Minimum Standards promulgated thereunder violate their religious convictions. “Thus, Reverend Roloff has testified: ‘This is the very heart of the battle. The State Department of Public Welfare doesn’t have any leadership over my church, you see.’
* * * * * *
“Reverend Roloff has testified, for example, that he objects to State control over the children in his ministry:
‘We cannot comply with this standard since we are not responsible to the State in this matter of raising the children . but to God and the parents who have placed with us the sole responsibility to raise these children in a Godly manner. See, e. g., Exodus 20:12; Proverbs 1:8, 9; Proverbs 4:1-9; Mark 12:17.’
“Q: [By the State]: ‘Let me ask you this question right here. Now, I think I’ve heard you say in court, probably can find it here if we looked, that you operate the Enterprises solely based upon authority you find in the Bible, is that correct?’
“A: [By Rev. Roloff]: ‘That certainly would be the basis of the operation.’ ******
“Q: ‘It’s solely on the Bible?’
“A: ‘That’s my conviction.’
******
“Q: ‘And that’s the basis for your contention that you are not subject to the Child Care Licensing Act?’
“A: ‘That’s correct. There are conflicts that I cannot conscientiously go by and go by my Bible at the same time.’
******
“Preachers from around the country have testified that they themselves, along with thousands of Christian believers, share the conviction that the State cannot control the Christian upbringing of children in a ministry such as the Enterprises:
“Q: [By Attorney Gibbs]: ‘Do you share those same beliefs?’
“A: ‘Yes sir, I do.’
******
“Q: ‘Are those religious comvictions [sic ] to your knowledge shared by a substantial number of believers at large?’
“A: ‘[I] find that there are hundreds of thousands of people who share these religious convictions.’ (Testimony of Reverend Gary Coleman)
******
“In addition, preachers have testified under oath that they, too, would resist licensing by the State over legitimate Christian ministries dealing with children:
“Q: [By Attorney Gibbs]: ‘In regard to your beliefs which you share with Reverend Roloff, could you sanction or allow a licensing procedure to be placed upon you?’
“A: [By Rev. Clayton]: ‘No, I could not.’
******
“THE COURT: ‘Well, ask him — If that is your contention then ask him the question of whether or not it violates his Biblical belief for state officials to inspect the home.’
“THE WITNESS: ‘Yes, it would.’
“THE COURT: ‘You say it would?’
“THE WITNESS: ‘Yes, it would.’ (Testimony of Reverend Harold Clayton)
* * * ⅜ * *

At the hearing on summary judgment, the trial court, in an overabundance of caution, asked appellants to list the fact issues they considered to be questions for a jury. Appellants then stated the first issue, or fact question, was whether appellants’ enterprises are operated pursuant to legitimate biblical convictions of Lester Roloff; the second, whether the aforesaid convictions are legitimate and truly held and consistently practiced by Lester Roloff and those participating in the ministries of the enterprises; the third, whether the aforesaid convictions are consistently practiced and have been the life style and the basis of all actions at the homes and ministries of the enterprises; the fourth, whether the aforesaid convictions are totally based on biblical teachings and practices dating back to the historic record of the Old Testament, have been truly held and practiced by large numbers of Christian believers through the ages to the present; the fifth, whether the Child Care Licensing Act and the minimum standards promulgated thereunder violate the aforesaid convictions when applied; the sixth, whether all of the compelling interests of the State can be adequately carried into effect and duly protected through the reasonable implementation of other State laws.

The court correctly assessed numbers 5 and 6 to be questions of law and the remainder of the alleged questions of fact were there and then agreed to by the State. Consequently, there was nothing left for the court but to apply the applicable law to the undisputed facts. “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934 (Tex.1972); Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958); Torres v. Western Casualty & Surety Co., 457 S.W.2d 50 (Tex.1970).

II

Given the facts described above, the gist of appellants’ case then becomes whether the control over children’s homes vested in the State Department of Public Welfare as set forth in Article 695a-3 impinges on appellants’ free exercise of religion guaranteed by the first amendment of the Constitution of the United States.

Even though appellant Roloff and other witnesses for appellants earnestly and vehemently assert that such a conflict exists and further, that the facts of such conflict should be put to a jury, we hold that the testimony is nothing more than a bald conclusion entirely unsupported by any factual evidence from which a jury could draw a differing conclusion.

Thus we do not reach the cases cited by appellants where the Supreme Court of the United States strikes down laws that infringe upon religious beliefs and practices; nor do we reach those cases cited by the State where religious practices have been somewhat curbed where they conflict with State regulatory laws.

Section 1(b) describes the legislative intent underlying the Child Care Licensing Act as being . . to protect the health, safety, and well-being of the children of the state who reside in child care facilities.”

To accomplish this intent, the Act establishes statewide minimum standards for the safety of such children, ensures maintenance of these standards by inspection and interviews, and regulates conditions in the facilities through a program of licensing. The entire purpose of the Act is to protect the physical and mental well-being of children residing in such facilities.

Indeed, Section 1(b) expressly states: “It is the further legislative intent that the freedom of religion of all citizens shall be inviolate. Nothing in this Act shall give any governmental agency jurisdiction or authority to regulate, control, supervise, or in any way be involved in the form, manner, or content of any religious instruction or the curriculum of a school sponsored by a church or religious organization.”

The facts of this case disclose that there is no question as to the sincerity of appellants’ religious beliefs. The problem for this Court has been to ascertain wherein the exercise of these beliefs conflicts with the statute.

It then becomes apparent that in applying the statute to the undisputed facts, its provisions do not in any way conflict with appellants’ beliefs, nor do they restrict the exercise of those beliefs in any way.

Ill

Appellant Roloff Evangelistic Enterprises filed a plea of privilege under the provisions of Article 1995, V.C.S., wherein it attempted to remove the suit from Travis County to Nueces County or to either of the two other counties in which it maintains a children’s home.

Appellant Roloff Evangelistic Enterprises contends here that since the State has never filed an affidavit controverting such plea, as required by Rule 86, Tex.R.Civ.P., that the trial court erred in refusing to grant the plea and order the cause transferred.

The question then became whether the State had been served with a copy of appellant’s plea of privilege as required by Rule 86, Tex.R.Civ.P., this question was put in issue and, after hearing evidence, the trial court ruled that the State had not been so served.

Appellant now argues that even though the State was not served with a copy of the plea, the court still erred in failing to grant appellant’s plea of privilege. We cannot agree.

The law is well settled that when the language of a statute or rule is clear and unambiguous, its mandate must be followed precisely as written.

Rule 86 is as follows:

“. . .A copy of such plea of privilege shall be served on the adverse party or his attorney of record by actual delivery in person to him or by mailing a copy of such pleading to him by registered mail return receipt requested. If such adverse party desires to controvert the plea of privilege, he shall within ten days after he or his attorney of record received the copy of the plea of privilege file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.” (Emphasis added)

We hold that Rule 86 requires the moving party to serve the adverse party with a copy of the plea. Only if the adverse party was served with a copy must the plea be controverted.

The judgment of the trial court is in all things affirmed.

      . United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); People v. Woody, 61 Cal.2d 716, 394 P.2d 813 (1964); State of Ohio v. Whisner, 47 Ohio St.2d 181, 351 N.E.2d 750 (1976).

      . Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944).

      . Franklin v. Pietzsch, 334 S.W.2d 214 (Tex.Civ.App.1960, writ ref. n. r. e.).


author: O’QUINN, Justice.

text:
    Robert M. HUEY et ux., et al., Appellants, v. Tom H. DAVIS et ux., Appellees.
    No. 12664.
    Court of Civil Appeals of Texas, Austin.
    Oct. 5, 1977.
    Rehearing Denied Nov. 2, 1977.
    Doren R. Eskew, Eskew, Brady Womack & Muir, Austin, for Robert M. Huey, et ux.

      David L. Tisinger, Austin, for David B. Barrow and Austin Corp.
    Tomas H. Davis, Byrd, Davis, Eisenberg & Clark, Austin, for appellees.
   O’QUINN, Justice.

Appeal in this cause is from an order of the district court denying plaintiffs below an injunction to arrest construction of a dwelling in a residential subdivision in claimed violation of certain covenants and restrictions impressed upon all lots in Northwest Hills, Section 7, as approved by the City of Austin.

David B. Barrow, like plaintiffs, a resident of the subdivision, and also developer of the area, together with Austin Corporation, developer and holder of title to all lots when conveyed to lot owners, intervened below after the trial court denied plaintiffs an injunction. Plaintiffs are Robert M. Huey and wife, owners and residents of a lot adjoining the lot owned by Tom H. Davis and wife, the defendants, on which they undertook construction of the residence opposing parties contend was started and is under construction in contravention of the controlling covenants.

Appeal from the order denying injunction has been perfected by Huey and wife and by Barrow and Austin Corporation.

Paragraph 8 of the covenants and restrictions, discussed in more detail subsequently, provides in part, pertinent to this controversy, that “No building, wall or other structure shall be placed upon such lot until the plan therefor and the plot plan have been approved in writing by the Developers.” (Emphasis added). Davis and wife caused construction of their dwelling to begin and to proceed, despite the fact that approval of their house plans and plot plan had been denied by the developers.

Barrow, acting for the developers disapproved the plans and plot plan and indicated changes necessary to obtain approval. It was after the plans had been disapproved by Barrow and Davis began construction without approval that Huey and wife brought suit seeking an injunction to prevent Davis and wife from continuing with construction.

Decision in this case turns on construction and application of the covenants appellants say appellees have violated.

The restrictions and covenants were placed on record by the developers in the deed records of Travis County in 1965 and in their entirety consist of ten numbered paragraphs initiated by the statement that the developers intend to “ . . . impress all of the property included in Northwest Hills Section Seven Addition with the following restrictions, covenants, conditions and uses . . . ”

The first four paragraphs pertain to “Designation of Use” (single family residential purposes); “Retention of Easements” (as indicated on recorded plat); “Temporary Structures and Garage Apartments” (prohibited); and “Separate Garages, Guest Houses, Etc.” (permitted within limits when attached to main house “provided all other restrictions, covenants, conditions and uses herein are complied with”).

Under paragraph 5 (“Minimum Plat Size”) no structure may be placed on any lot or plat having “an average width of less than 70 feet.” The “Size and Construction of Dwellings” is controlled in paragraph 6:

“All dwellings shall be of recognized standard construction. The dwelling erected on any plot shall cover not less than 1,500 square feet of floor area of which not less than 1,300 square feet shall be in the house proper, exclusive of garage and porches. Ornamental structures, fences and walls are permitted subject to approval in writing by the Developers, or in the alternative by the Architectural Committee referred to under Paragraph No. 8.”

Minimum set-backs are prescribed under paragraph 7 titled “Set-Back, Front Line, Side Line and Rear Line” in this manner:

“No structure shall be located or erected on any lot nearer to the front plot line than twenty-five (25) feet, nor nearer than five (5) feet to any side plot line except that the total combined setback from both sides shall in no event be less than fifteen (15) feet, nor nearer than fifteen (15) feet to the rear plot line.”

The parties join issue on the limitation, if any, paragraph 7 has on paragraph 8 titled “Architectural Control and Building Plans,” referred to also in paragraph 6 in relation to “ornamental structures, fences and walls.”

Paragraph 8, under which authority the developers acted in declining to approve the Davis plans, is quoted here in full:

“For the purpose of insuring the development of the subdivision as a residential area of high standards, the Developers, or in the alternative an Architectural committee appointed at intervals of not more than five years by the then owners of a majority of the lots in Northwest Hills Section Seven Addition, reserve the right to regulate and control the buildings or structures or other improvements placed on each lot. No building, wall or other structure shall be placed upon such lot until the plan therefor and the plot plan have been approved in writing by the Developers. Refusal of approval of plans and specifications by the Developers, or by the said Architectural Committee, may be based on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Developers or Architectural Committee shall seem sufficient. No alterations in the exterior appearance of any building or structure shall be made without like approval. No house or other structure shall remain unfinished for more than two years after the same has been commenced.”

Appellees contend that under paragraph 7, providing minimum distances from front, rear, and sides of a lot at which a dwelling may be placed, “ . . .a house may be located anywhere on the lot so long as it does not violate these specific restrictions.” Appellees argue, “There is nothing in these restrictions that would even suggest or put purchasers on notice that they must comply with any other restrictions concerning the proximity of the house to the rear plot line.” This argument derives from the fact that the Davis dwelling under construction is 25 feet from the rear of the lot and not in violation of the 15-foot set-back required by paragraph 7, whereas the developers suggested the dwelling be placed further toward the front of the lot but not encroaching upon the 25-foot front set-back.

Appellants contend that although paragraph 7 is binding, both on the lot owner and the developers, the distances there established are minimum only, and that on that portion of the lot within the set-back lines, the developers have “sole and uncontrolled discretion” to refuse approval of plans “based on any ground . . . the Developers . . . shall deem sufficient,” as covenanted for in paragraph 8. It follows that, with covenants binding on lot owners and developers alike, the developers under paragraph 8 would not have authority to require the lot owner to invade the set-back limits fixed by paragraph 7. See the well reasoned opinion of late Justice Norvell in Johnson v. Dick, 281 S.W.2d 171 (Tex.Civ.App. San Antonio 1955, no writ).

We agree with the contention of appellants. We will reverse the judgment of the trial court and remand the cause to the district court with instructions to enjoin further construction by appellees of the dwelling until the plans, including plot plans, are approved by the developers of the subdivision.

Paragraph 8, set out above, reserves to the developers, or an architectural committee, “For the purpose of insuring the development of the subdivision as a residential area of high standards ... the right to regulate and control the buildings or structures or other improvements placed on each lot.” Appellees do not challenge validity of this covenant, nor validity of any of the covenants and restrictions pertaining to the subdivision. In the main they contend only that paragraph 7, providing minimum set-back lines, proscribes action of the developers in approving or in refusing approval of house and plot plans, as to location on the lot, when acting under authority reserved to the developers by paragraph 8.

Appellants Huey and wife acquired their lot from the developers and, after obtaining approval of their plans, constructed their home on the lot adjoining the Davis lot on the east. Some time subsequently, Davis and wife acquired their lot from a prior purchaser and proceeded with construction of a dwelling on the lot without first obtaining approval of the plans from the developers. The covenants and restrictions as recorded in 1965 are uniformly applicable to all lots, and it is elementary that each purchaser is subject to the covenants, since every purchaser buys with actual or constructive notice of the covenants and restrictions.

It has long been the established rule in this state that when restrictive covenants are imposed pursuant to a general scheme or plan for development of a defined tract of land, there exists an inducement for each purchaser to buy, and the agreement becomes part of the consideration. It follows that where there is a general scheme or plan, adopted by the original owner of a tract, for development of the property, and the elements of the plan are secured by covenants embodying the restrictions, the covenants are valid and binding on the developer and all purchasers of lots. Curlee v. Walker, 112 Tex. 40, 244 S.W. 497 (1922).

In Curlee the Supreme Court announced the basic rule that: “The law recognizes the right of parties to contract with relation to property as they see fit, provided they do not contravene public policy and their contracts are not otherwise illegal.” (244 S.W. 498)

In stating the “correct rules” governing covenants in a restricted subdivision, the Supreme Court in Curlee quoted with approval from an earlier decision by the El Paso Court of Civil Appeals in Hooper v. Lottman, 171 S.W. 270, 272 (Tex.Civ.App. El Paso 1914, no writ). Where the general plan for a subdivision has been “ . designed to make it more attractive for residential purposes by reason of certain restrictions to be imposed on each of the separate lots sold . . . ” an inducement to each purchaser to buy is formed, and such agreement becomes part of the consideration. “The buyer submits,” the Court said, “to a burden upon his own land because of the fact that a like burden imposed on his neighbor’s lot will be beneficial to both lots.”

To this the Court, continuing to quote from Hooper, added, “The covenant or agreement between the original owner and each purchaser is therefore mutual. The equity in this particular class of action is dependent as much on the existence of the general scheme of improvement or development as on the covenant, and restrictions which contemplate a general building plan for the common benefit of purchasers of lots are recognized and enforced by courts of equity at the instance of the original grantor or subsequent purchasers.” (171 S.W. 272 and 244 S.W. 498)

The principle that covenants and restrictions pertaining to a subdivision may contain valid provisions for a committee or some other specified persons, having authority to pass on compliance with the covenants, has been recognized in Johnson v. Dick, supra; Johnson v. Linton, 491 S.W.2d 189 (Tex.Civ.App. Dallas 1973, no writ); and Lovelace v. Bandera Cemetery Ass’n, 545 S.W.2d 194 (Tex.Civ.App. San Antonio 1976, writ ref’d n. r. e.).

The requirement that consent of the developer, or architectural committee, be obtained prior to placement of any structure on a lot in the subdivision is clearly stated in paragraph 8. This is a recognized method “ . . - by which guaranties of value and of adherence to a general plan can be accomplished and maintained.” Perovich: Validity and Construction of Restrictive Covenant Requiring Consent to Construction on Lot, 40 A.L.R.3d 864, 870 (1971). A leading case in which this method was approved is Rhue v. Cheyenne Homes, Inc., 168 Colo. 6, 449 P.2d 361 (1969). There the court asserted that such covenants have as their purpose “ . protecting the present and future values of property located” in the subdivision. The covenant stated “ . . . no building shall be erected, placed or altered on any lot until the plans and specifications and a plan showing the location of the structure have been approved by an architectural committee.” (Emphasis added) In reaching the conclusion that the covenant guarantees to the homeowner his house will be protected against adjacent construction that will impair its value and that a general plan of development will be followed, the court upheld validity of the covenant and rejected the argument that the covenant was unenforceable for vagueness.

Similar application of the principle of such covenants has been approved in other jurisdictions. Levin v. Mountain Farms, Inc., 22 Conn.Sup. 14, 158 A.2d 493 (1959); Syrian Antiochian Orthodox Archdiocese v. Palisades Associates, 110 N.J.Super. 34, 264 A.2d 257 (1970); Snashall v. Jewell, 228 Or. 130, 363 P.2d 566 (1961).

The record shows that one of the matters of concern in the proposed location of the Davis dwelling is that if erected without relocation toward the front of the property as required by the developer, the house would substantially obliterate the view from the Huey lot of the common valley or wooded canyon upon the rim of which all lots in this subdivision are situated. In Snashall v. Jewell, supra, the court upheld an “approval covenant” which specifically mentioned that a consideration was to provide maximum view to surrounding property. Appellants contend that one of the inducements to buyers in the subdivision and one of the common advantages to be preserved by the covenants is the view and visual enjoyment of the scenery provided by the natural valley all lot owners share under the general plan. Snashall stands for the proposition that protection of the view is a valid consideration.

In general, where the common grantor of lots in a subdivision reserves to himself, or to another designated party, the power to consent to, or approve, a proposed construction, that restriction on free use is enforceable in court only if the exercise of such authority in a particular case is found to be reasonable and made in good faith. See 40 A.L.R.3d 864, 879. We conclude that in this case the developer exercised the power granted under paragraph 8 in a reasonable manner and acted in good faith. Paragraph 7, prescribing set-back distances for each lot, provided a specific framework within which the developer had the right to approve or disapprove plot plans, and in this instance the developer did not go beyond the confines of that framework.

A leading case under which this principle was applied is Hannula v. Hacienda Homes, 34 Cal.2d 442, 211 P.2d 302 (1949). The rule stated in that case is that when a restriction prohibits construction without prior approval of plans and issuance of a permit by the subdivider, the subdivider may deny permission on any reasonable ground where the provision in question was a separately numbered paragraph which did not contain any other specific restriction, and where no other specific restriction among the covenants provided the limitation. In the present case the developer did not, in exercising powers granted by paragraph 8, impose a more burdensome set-back requirement on the Davis dwelling than the framework provided by paragraph 7.

It is an established principle of law in Texas that parties may agree or covenant that an architect or an engineer may be the judge of proper performance of a contract, and neither party may avoid the arbiter’s conclusion on the subject without showing that the person so empowered was arbitrary, capricious, or unreasonable, or that in making the decision was guilty of fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise honest judgment. State v. Martin Bros., 138 Tex. 505, 160 S.W.2d 58 (1942); Austin Bridge Co. v. Teague, 137 Tex. 119, 152 S.W.2d 1091 (1941); City of San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989 (1941); Estey Corp. v. St. Mary’s University, 470 S.W.2d 138 (Tex.Civ.App. San Antonio 1971, no writ); Austin Bridge Company v. State, 427 S.W.2d 925 (Tex.Civ.App. Austin 1968, writ ref’d n. r. e.); 10 Tex.Jur.2d Building Contracts, sec. 20, p. 23 (1959).

Ordinarily the term arbitrary is synonymous with bad faith or failure to exercise honest judgment. An arbitrary act would be one performed without adequate determination of principle, and one not founded in the nature of things. A fuller range of the arbitrary act, as determined by courts, finds summary in Goodrum v. State, 158 S.W.2d 81, 87 (Tex.Civ.App. Galveston 1948, writ ref’d w. o. m.).

In the present case we are unable to find that the developer acted in any manner suggesting unreasonable, irrational, arbitrary, or capricious treatment of the Davis application for approval of the dwelling and plot plan. On the contrary, it is clear that the developer sensibly sought to preserve the general plan for the benefit of all lot owners, pursuant to the broad powers vested in the developer under paragraph 8 of the covenants. The developer in no way sought to rewrite the set-back requirements of paragraph 7, which he would have no authority to do. To hold otherwise, we conclude, would be for this Court to attempt to rewrite the covenants by saying that the power under paragraph 8 is without meaning in view of the minimum setback prescription contained in paragraph 7.

The judgment of the trial court is reversed. We hold that it was error to refuse to enjoin Davis and wife from continuing with construction of the dwelling which had not been approved by the developer under paragraph 8. We render judgment that the cause be remanded to the district court, with instructions to enter judgment enjoining Appellees Davis and wife from continuing with construction until the house and plot plans have been approved by the developer.

Meanwhile, to protect the jurisdiction of this Court and the subject matter of the case, appellees are ordered to cease all construction work on the dwelling and not resume work so long as the cause remains within jurisdiction of this Court.

PHILLIPS, C. J., not participating.


author: MURRAY, Justice.

text:
    Kathryn KUTZER, Appellant, v. Rollie R. MOORE et ux., Appellees.
    No. 15860.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 12, 1977.
    Edward J. Mihalko, San Antonio, for appellant.

      Richard P. Corrigan, San Antonio, for appellees.
   MURRAY, Justice.

Appellees, Rollie R. Moore and wife, Nellie A. Moore, filed suit to terminate the paternal rights of Rudolph D. Kutzer and wife, Kathryn Kutzer, natural father and mother of two minor children. Based on jury findings, the court entered judgment terminating the parent-child relationship of the children and their mother, Kathryn. The judgment is silent as to Rudolph, the father, except that he appeared with his attorney and that no pleadings were filed on his behalf. Paragraph three of the judgment states “[a] jury was demanded by the parties to determine the question of termination of the parental rights between the children the subject matter of this suit and KATHERINE [sic] KUTZER, and to determine the question of Managing Conserva-torship of the children of this cause. All other matters in controversy, including all questions of fact and law, were submitted to the Court.”

The judgment further provides that:

IT IS, THEREFORE, DECREED that the parent-child relationship between KATHERINE [sic] KUTZER and the children the subject matter of this suit be, and is hereby terminated.
IT IS DECREED that ROLLIE R. MOORE and NELLIE A. MOORE be, and are hereby appointed Managing Conservators of the children the subject matter of this suit, the Court finding this appointment to be in the best interests of the children.

Appellant, Kathryn Kutzer, has perfected an appeal from such judgment to this Court.

The finality of a judgment for purposes of appealability is tested ordinarily by the requisite that it dispose of all issues and all parties. North East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966).

The pleadings of appellees ask for termination as to the father and mother and from the record before us it is clear that the action against the father is not disposed of by the judgment and is still pending. Therefore, judgment terminating the mother’s rights is interlocutory and not appealable until the action against the father is either severed or finally determined. The suit against the father is separate and independent of the suit against the mother. Dawn v. Amerada Petroleum Corp., 434 S.W.2d 451 (Tex.Civ.App.—Waco 1968, no writ).

Since the record discloses that there was no final or appealable judgment, this court is without jurisdiction and it is our duty to dismiss the appeal on our own motion. Kirkland v. Martin, 376 S.W.2d 819 (Tex.Civ.App.—Amarillo 1964, no writ).


author: BISSETT, Justice.

text:
    Mary Virginia Turner HANNA, Appellant, v. Charles Lynn TURNER, Appellee.
    No. 1250.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 13, 1977.

      Carl C. Chase, Chase & House, Corpus Christi, for appellant.
    Dave M. Coover, Jr., Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This action was brought by Charles Lynn Turner against Mary Turner Hanna to modify the provisions of a prior divorce decree so as to expand his rights of visitation with his children. The trial court, sitting without a jury, after having heard evidence, rendered judgment which changed the visitation rights previously granted Charles Lynn Turner. Mary Turner Hanna has appealed.

The parties to this appeal were divorced by decree of the District Court of Nueces County, Texas, on January 28, 1975. Appellant was appointed “Managing Conservator” of the three minor children born to the marriage of appellee and appellant, and appellee was appointed “Possessory Conservator” of the children. Visitation rights were granted to appellee by that portion of the decree which reads:

“It is further ORDERED that the Pos-sessory Conservator shall have visitation with the children and with the rights of such visitation limited to the following:
The Possessory Conservator shall have the rights of reasonable visitation with the children, but shall only exercise such rights in the presence of the Petitioner, Mary Virginia Turner, and some third person selected by Mary Virginia Turner, such third person not to be, however, any member of the family of George Jordan, Jr. or George Jordan, III, but may be any one else she chooses.”

On July 8, 1976, appellee filed a motion styled by him as a “Motion to Modify Decree of Divorce”, wherein he alleged that meaningful visitation with his minor children was being denied him by appellant; that a modification of the visitation provisions of the prior decree would be in the best interests of the children; and that it would in no way adversely affect the rights of either him or appellant. He requested that he be granted the privilege of visiting with the children away from the home of appellant at a location of his choosing on certain specified weekends, on certain Christmas and Easter holiday periods; and for the entire month of July of every year thereafter.

Appellant, in her answer, alleged that all relief sought by appellee should be denied. She further pled that due to a change of circumstances it would be in the best interests of the minor children and consistent with their emotional well-being to terminate all visitation rights of appellee with the children.

The trial court rendered judgment on April 25, 1977. The judgment recites that “there are adequate grounds upon which to grant Petitioner’s prayer for relief and that the Orders heretofore entered governing the visitation rights of the Petitioner, CHARLES LYNN TURNER, should be modified”. Whereupon, it was ordered by the trial court: 1) appellee shall have the right to visit the children on the first and third Sunday of each month from 1:00 p.m. to 5:00 p.m., beginning May 1, 1977, and at such other reasonable times as may be agreed upon by appellant and appellee; 2) during such visitations appellee “may remove the children from the home” of appellant; provided, however, he shall not remove them from Nueces County or from a county contiguous thereto without appellant’s written consent; and 3) appellee’s “right of visitation shall be absolute as to the youngest child”, but as to the two older children, “such rights of visitation shall not interfere with any organized activities in which these two older children may be involved”.

Appellant brings forward two points of error. First, she contends that there is no evidence to support a substantial and material change of conditions to justify the court’s modification of the divorce decree. Secondly, she asserts that the evidence is factually insufficient to show such a change of conditions.

In an action to change the rights of a parent to visit his minor children, or to modify existing orders relating to custody of the children, the best interest of the children is always the primary consideration. Tex. Family Code Ann. § 14.07(a) (1975); In Interest of Galliher, 546 S.W.2d 665 (Tex.Civ.App.—Beaumont 1977, no writ); Thompson v. Uzzell, 541 S.W.2d 499 (Tex.Civ.App.—Tyler 1976, no writ); Radtke v. Radtke, 521 S.W.2d 749 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ).

If the prior order with respect to visitation rights “is unworkable and inappropriate under existing circumstances, including the behavior of the parties, no further change need be shown to justify a new visitation order”. Boney v. Boney, 458 S.W.2d 907, 911 (Tex.Sup.1970).

The trial court’s judgment as to what is in the best interest of a child in an action such as the one here involved will not be disturbed by an appellate court unless there is a clear abuse of discretion. Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup. 1966); Tye v. Tye, 532 S.W.2d 124 (Tex.Civ.App.—Corpus Christi 1975, no writ); Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App.—Dallas 1974, writ ref’d n.r.e.).

In 1975, the 64th Legislature amended Tex. Family Code Ann. § 14.08. The amendment, which became effective on September 1, 1975, changed in a very substantial manner the proof required to modify or change the “visitation” portion of a decree which set out the visitation rights of a parent with respect to his or her children. Section (c) of the Code, as amended, and as in force at the time the judgment which is attacked in this appeal was rendered, reads, in part, as follows:

“(c) After a hearing, the court may modify an order or portion of a decree that:
* * * * * *
(2) provides for the support of a child, sets the terms and conditions for access to or possession of a child, or prescribes the relative rights, privileges, duties, and powers of conservators if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree. . . . ”

With the above statutes and rules of the cited cases in mind, we now discuss the evidence that bears on appellant’s points.

Dr. George Kramer, Jr., a clinical psychologist, administered psychological testing and evaluation to appellee, appellant and their three children. His report of such testing was admitted into evidence. He testified as follows: Appellee is beset with emotional problems, but in spite of this, there is little likelihood that he would repeat prior attempts to take the children from the appellant’s custody without court permission; that the appellee’s circumstances have changed since January 28, 1975, when the parties were divorced in that he is a more stable person; that appellee has remarried and holds a job as a painter; that appellant is a person who tends to see her problems as being inflicted upon her by outside forces; that both appellee and appellant tend to see things in absolute and neither are given to flexibility in dealing with each other or other people; that the parties’ attitudes and personalities resulted in confrontation and “uproars” at almost every contact between them, which necessarily included times when the appellee sought to visit with the children in the home and in the presence of appellant or her appointee under the provisions of the divorce decree; and that the emotional strain put on the children by the situation could result in harm to the children if conditions were not alleviated. He fully explained that the “uproars” not only affected the parties themselves, but extended to the children who felt a need to side with the mother due to her constant and protective influence over them and thus the present visitation scheme was unworkable since it was merely a meeting ground for confrontation. He further testified that the effect of appellee’s sporadic visitation with his children in the presence of appellant and third persons was undesirable in that it prevented the regeneration of a proper father-child relationship between appellee and the children; that increased visitation outside of the presence of appellant and a third person would benefit each of the children, as well as both parents; and that appellant’s influence on the children was so great that they could not be expected to express a true opinion on visitation with their father and that they would say they did not want to see their father whether they actually did or did not.

Dr. Kramer also testified that appellee, at the time of the hearing on the motion for a change in visitation rights, was more mature than he was at the time the decree of January 28, 1975 was rendered. He concluded that appellee is now better able to establish a proper father-child relationship with the children.

Appellant testified that from the time of the rendition of the decree of divorce on January 28, 1975 until the time appellee filed his motion wherein he sought a change in his visitation rights, appellee’s visits with the children were most infrequent, and that on such occasions he acted with vulgarity and allusiveness. She further stated that he attempted to contact the children outside the presence of her home; that he made numerous attempts to see or talk to the children without her permission; that he is abusive to her in the presence of the children; and that in her opinion he would abscond with the children if given the opportunity.

Appellee testified that the infrequent visitation was due to the fact that visitation periods almost always “ended up in a fight.” He explained that it was very difficult to talk with the children during these periods, since he was always made to feel uncomfortable. He further testified that he was now married, had a job, and that he would obey the orders of the court with respect to visitation rights.

In unchallenged findings of fact, the trial court found that the children need a parental relationship with appellee, and that the attempts to establish this relationship are being thwarted to some degree by the restrictive visitation provisions of the divorce decree. There is ample evidence of probative value that the change in visitation rights from those prescribed in the divorce decree of January 28, 1975 is in the best interest of the children. There is no showing of any abuse of discretion by the trial court in rendering the judgment which has been appealed.

After reviewing and considering all of the evidence in the record, we hold that all of the findings of fact made by the trial judge are supported by evidence. Accordingly, both of appellant’s points are overruled.

The judgment of the trial court is AFFIRMED.


author: NYE, Chief Justice.

text:
    Alfredo A. GARCIA, Appellant, v. Bennie E. RAY, Appellee.
    No. 1199.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 13, 1977.
    Rehearing Denied Nov. 3, 1977.
    Alfredo A. Garcia, pro se.
    Bennie E. Ray, Brownsville, for appellee.
   OPINION

NYE, Chief Justice.

This is a summary judgment case. The plaintiff, Alfredo A. Garcia, was convicted in the 197th Judicial District Court of Cameron County, Texas, of the offense of “a felon in possession of a firearm.” The appellant was sentenced under Section 12.-42(d) of Vernon’s Annotated Penal Code to life imprisonment as a habitual criminal. The defendant was the appellant’s attorney in the criminal case. The plaintiff brought suit to recover $750,000 in damages because, according to the appellant, the defendant held himself out to be a licensed attorney and had “ . . . falsely, wrongfully, wil-fully and intentionally” deprived plaintiff of money by fraudulent means while purporting to act as the attorney of record for the plaintiff in the criminal matter. The defendant filed a motion for summary judgment which was granted by the trial court.

The summary judgment facts show that plaintiff Garcia had been charged with six indictments, three resulting from a fatal shooting and three resulting from a separate murder by the use of a firearm. The defendant, Bennie E. Ray, a licensed attorney, represented the plaintiff in the first murder case which resulted in a hung jury. Thereafter, Garcia was tried on the felony possession of a firearm in which he was convicted and sentenced to life imprisonment. Defendant Ray was Garcia’s retained attorney and received compensation for the representation of Garcia. Ray was thereafter appointed by the State to represent the plaintiff in his appeal because the plaintiff was unable to afford counsel for this purpose. Even though Ray prosecuted the appeal as attorney for Garcia, Garcia filed his own pro-se brief in which he raised, among other grounds of error, ineffective counsel.

Attached to the defendant’s motion for summary judgment was a copy of the Court of Criminal Appeals opinion in which such opinion states:

“Appellant’s fourth ground of error charges his counsel was ineffective assistance.
Appellant was represented by retained counsel. The record before this Court does not reflect a breach of legal duty by counsel in the conduct of the trial. Ex parte Gallegos, 511 S.W.2d 510.”

Garcia also filed a complaint with the local district’s Grievance Committee of the State Bar of Texas, which dismissed the complaint because of the ruling of the Court of Criminal Appeals on the criminal case. Garcia, in addition to a sworn answer opposing the motion for summary judgment, also filed his affidavit which goes into detail complaining that Ray failed to call certain material witnesses during the course of the trial of the criminal case. The statement also raised questions concerning the amount of money charged him by Ray for representation in the criminal case.

The appellant’s points of error are as follows:

“QUESTIONS PRESENTED
1. Whether the District Court erred in its finding of facts to enter a Summary Judgment against Appellant who has been denied discovery to produce and proffer evidence to prove a set of facts or facts in support of his claim for relief, when said Summary Judgment relies so-ley [sic] on mere pleadings and and [sic] affidavits of the Appellee’s defense that he is not guilty of the allegations made in Appellant’s original complaint against him, without more.
2. Whether the district Court erred in its purported findings for Summary Judgment, and recline [sic] the same upon pleadings and affidavits of one side of the litigation to the manifest defeat of the other side, thus disavowing its judicial responsibility to acquire personal knowledge of the fact issues before the Court, as required by the Texas Rules of civil Procedure, Rule 166-A, Subparagraphs (e) (f).
3. Whether the District Court committed a substantial failure of justice in this case because she refused to appoint legal counsel for Plaintiff-Appellant notwithstanding his indigency and substantial lack of education.”

The trial court granted the motion for summary judgment based on “the Motions, Replies to Motions, Admissions, Affidavits and Counter Affidavits, Pleadings, Depositions, Interrogatories, and Answers to Interrogatories on file prior to the date set for said hearing.”

Appellant’s first two points, which complain of the summary judgment, do not state any specific error by the trial court which would entitle appellant to relief. These points of error are no more than disjunctive factual conclusions on the part of the appellant. Rule 418, T.R.C.P., requires the appellant to show the error of the trial court in such a way that an appellate court can determine the soundness of the point relied on. The appellant has failed to point out to us any fact questions which allegedly exist on issues that are material to this cause. The courts have held that such a point of error is too general and indefinite to require appellate consideration. This is especially true where there is no argument pointing out the basis for which the summary judgment should have been denied. Cotten v. Republic National Bank of Dallas, 395 S.W.2d 930 (Tex.Civ.App.—Dallas 1965, writ ref’d n.r.e.) and authorities cited therein. Jones v. Hunt Oil Company, 456 S.W.2d 506, 510 (Tex.Civ.App.—Dallas 1970, writ ref’d n.r.e.) and authorities cited therein. Snider v. Forrest Lumber Company, 448 S.W.2d 130 at 133 (Tex.Civ.App.—Tyler 1969, no writ) and authorities cited therein. See Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956) and compare Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex.Sup.1970); Daniels v. Shop Rite Foods, Inc., 502 S.W.2d 894 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n.r.e.).

The summary judgment was not based solely on the pleadings but on the affidavits, interrogatories and admissions in addition to the sworn pleadings. The question that was before the trial court as well as here on appeal is not whether the summary judgment proof raises fact issues with reference to the essential elements of plaintiff’s claim and cause of action, but whether the summary judgment proof establishes as a matter of law that there is no fact issue or fact as to one or more of the essential elements of plaintiff’s cause. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Rule 166(a), T.R.C.P. Although this rule requires that all doubts as to the existence of a material issue of fact must be resolved against the party moving for a summary judgment, the appellant on appeal has the obligation and must show that the proof of the trial court was insufficient to establish as a matter of law the absence of such an issue. Anderson v. Bormann, 489 S.W.2d 945 (Tex.Civ.App.—San Antonio 1973, writ ref’d n.r.e.). We are not required to search the record and analyze all the pleadings and other evidence on file in an effort to discover a possible fact issue. The only possible fact issue that we can see raised by the record is the question of the amount of the attorney’s fee. However, the appellant’s affidavit admits that the controversy over the amount of the fee is between attorney Ray and the appellant’s mother and not between the appellant and attorney Ray.

The appellant inferentially complains of ineffective counsel in the criminal case. At no time does he state that he was innocent. The appeal in the criminal case was to the highest Texas court in such matters. It tested the adequacy of counsel by the direct infusion of the point by the appellant himself in his pro se brief. The Court of Criminal Appeals held that there was no merit to this contention. Although we are not unmindful of the general rule that a judgment in a criminal prosecution is not a bar to a subsequent civil action arising from the same transaction (46 Am. Jur.2d § 614), we do not believe that there could be an opposite result maintained in a civil court where such action was based on the same adjudicated question. The standard of proof generally in a criminal case is usually different than in civil actions. However, on the other hand, how could you test the adequacy of counsel any better than by having the direct point determined by the highest court of our State in the related criminal case? Compare Walker v. Kruse, 484 F.2d 802 (7th Cir. 1973). Appellant’s points 1 and 2 are overruled.

In appellant’s final point of error, he complains that the trial court erred in failing to appoint counsel for him. This point is without merit in a summary judgment case. The question presented generally is whether or not an indigent person is entitled to appointed counsel in civil actions. Article 1917, Tex.Rev.Civ.Stat.Ann. (1964). We would think that this matter could only properly be brought forward in an actual trial on the merits after such indigent person was able to show that he could not afford any attorney and/or could not retain counsel on a contingent fee basis. We have previously held that this provision of the statute is not mandatory but would be left to the discretion of the trial court. Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n.r.e.) cert. denied, 385 U.S. 901, 87 S.Ct. 199, 17 L.Ed.2d 132 (1966). The policy of the Federal Courts of appointing counsel for indigent parties in civil suits arises only when necessary to meet the ends of justice. See United States v. Rogers, 534 F.2d 1134 (5th Cir. 1976); Hudson v. Hardy, 134 U.S.App.D.C. 44, 412 F.2d 1091 (1968); Ehrlich v. Van Epps, 428 F.2d 363 (7th Cir. 1970); Securities and Exchange Commission v. Alan F. Hughes, Inc., 481 F.2d 401 (2nd Cir. 1973) cert. denied, 414 U.S. 1 92, 94 S.Ct. 722, 38 L.Ed.2d 549. Probably the best statement of the current state of the law on this question was set out in Rhodes v. Houston, 258 F.Supp. 546 (D.Neb.1966) wherein the court stated that the mandatory requirement of counsel under the 6th Amendment concerned only defendants in criminal proceedings and has no reference to plaintiffs in civil actions bent on the procurement of a judgment for the payment of money in the way of damages as against some other person. See also Petition of Ramirez, 282 F.Supp. 663 (S.D.Tex.1968); Wilson v. Ellis, 193 F.Supp. 526 (S.D.Tex. 1961). There is absolutely no factual showing in the record before us that the trial court abused its discretion in failing to grant appellant’s motion to appoint counsel. Appellant’s third point of error is overruled.

Judgment of the trial court is AFFIRMED.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. David C. GRAVES, Jr., Respondent.
    Supreme Court of Kentucky.
    Aug. 19, 1977.
    As Modified Oct. 28, 1977.
    Leslie G. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, John T. Damron, Asst. Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    Michael E. Conover, Harrodsburg, for respondent.
   PER CURIAM.

In this disciplinary proceeding, David C. Graves, Jr., a Lexington attorney, is before this court by rule pursuant to RAP 3.410 to show cause why he should not be adjudged guilty of unprofessional conduct and disciplined therefor. Graves filed no response to the rule. However, he filed an answer to the inquiry tribunal’s charge and a brief with the Board of Governors of the Kentucky Bar Association.

On May 14, 1977, the Board of Governors considered the pleadings, briefs and exhibits. By a roll call vote, 12 of the 14 members of the board found Graves guilty of unethical and unprofessional conduct calculated to bring the bench and bar into disrepute. On the issue of punishment 12 of the members recommended that Graves be publicly reprimanded and required to pay the costs of this action. Other recommended punishments were a six-month’s suspension and a sixty-day suspension.

The conduct complained of concerns the nature and amount of certain charges by Graves against a client’s funds which he held in escrow. The pertinent facts are as follows: On January 11, 1975, Glen Church fell from a platform located in the Mans-bach Metal Company yard in Ashland, Kentucky. The platform was 60 ft. high, and the fall resulted in serious injuries to Church. These injuries were further complicated by possible negligent first aid rendered at the scene. Church and his wife, Verna Mae, contacted several Ashland attorneys. They were afraid of certain conflicts of interest on the part of Ashland attorneys and decided to employ out-of-town counsel. They contacted Graves and on December 29, 1975, met with him in his Lexington office. During that conference an employment contract was executed. That contract provided that Graves would prosecute a workmen’s compensation claim for Glen Church with the fee to be fixed by the Workmen’s Compensation Board. Graves was to prosecute other claims on a contingent fee basis by which he would receive 40% of the gross amount recovered, or 50% in the event of any appeal. Graves charged the Churches a retainer fee in the amount of $500.00 which was paid upon execution of the agreement. The contract further provided:

“ALL NECESSARY COSTS AND EXPENSES — of any and all litigations, claims or otherwise, including the necessary expenses involved in connection therewith, shall be borne and paid by the clients [Churches], with the clients depositing the sum of $1000.00 to be placed in an escrow account, with a monthly accounting being forwarded to said clients and same to be reimbursed monthly.”

That same day the Churches deposited $1000.00 in Graves’ escrow account. During the ensuing six months, until June 7, 1976, Graves charged to the escrow account various expenses. These included expenses for secretarial assistance, law clerks, copying, bookkeeping, dinner and travel. The total expenses charged against the escrow account during that six-month period amounted to $3,198.76 which did not include the $500.00 retainer fee. By deposits on February 2nd, February 23rd, and March 8th, the Churches actually deposited in the escrow account a total of $2,840.65 toward the charge of $3,198.76. The record reveals that during this period the Churches received no monetary benefits. Yet, when the escrow account was at low tide, urgent demands were made by Graves to keep the money flowing — to swell the tide.

By this time the Churches became suspicious that some of the charges to the escrow account were improper. On June 11, 1976, they filed a complaint with the Kentucky Bar Association. Through its inquiry tribunal, Graves was charged with unprofessional and unethical conduct. In its reply to Graves’ motion for a more definite statement, the Kentucky Bar Association listed the following as improper charges:

“1-8-76 Trip to Ashland — Graves, Capillo, Bouvier-Per diem $ 8.00
1-9-76 New Orleans House — Graves, Van Devier — Dinner 60.00
1-29-76 Secretary and bookkeeping expenses 121.00
1-31-76 Hours spent on Church case— Joe Bouvier 186.75
Hours spent of Church case — Jim Capillo 269.75
2-13-76 Secretarial expenses 279.50
2-27-76 James J. Capillo (clerking and research) $ 71.50
2-27-76 Secretarial expenses 65.00
2-27-76 Clerking and research expenses — Joe Bouvier 60.75
3-26-76 James J. Capillo, Clerking and research 13.00
secretarial expenses 32.50
Joseph Bouvier — clerking and research 45.00
4-7-76 James J. Capillo — Clerking and research 6.50
Joseph Bouvier — Clerking and research 13.00
secretarial services 19.50
5-28-76 Secretarial services 26.50
Joseph Bouvier, Clerking and research 97.50
6-1-76 Research re additional legal services of social security appeal 150.00
6-7-76 Joseph Bouvier, research and preparation of draft of appellate brief 78.00
Secretarial services 130.00.”

It is noted that the expense of law clerk investigation, research and travel time resulted in a total of $991.75. Secretarial and bookkeeping charges totaled $673.50. On January 9, 1976, Graves “wined and dined” Dr. Van Devier at the New Orleans House in Louisville, Kentucky, at a cost of $60.80. This was done, so Graves says, in order that Dr. Van Devier would give the Churches a referral to an orthopedic surgeon who was his personal friend. Graves also charged an additional $34.00 to the escrow account as travel expense to the New Orleans Restaurant.

The Kentucky Bar Association admits that the Code of Professional Responsibility mandatorily requires a lawyer to charge a client for the expense of litigation such as court costs, investigation, medical examination, obtaining and the presentation of evidence. However, the Kentucky Bar Association contends that Graves’ billing procedures relieves him the necessity of deducting the expense of maintaining his office from his contingent fee, and the charges to the escrow account by Graves constitutes a disguised fee.

In response, Graves argues that the Churches employed him shortly before the statute of limitations would have barred their claims. He insists that this “necessitated his representation of other clients, engaging of extraordinary secretarial help, investigators, engineers, etc., far, far beyond the usual, ordinary attorney-client agreement.” He states he “has no employees of his own and has his secretarial and legal research/investigatory work done by private contractors.” Graves also contends that he has strictly complied with the terms of the agreement. He has kept his billing to a minimum by eating in “greasy spoon” and fast food restaurants. He argues that he has violated no expressed prohibition of the Code of Professional Ethics. Therefore, to punish him for his conduct would be in violation of the prohibition against ex post facto laws and would deprive him of his constitutional right to due process. In support of his position Graves cites the 1971 Fee Manual promulgated by the Kentucky Bar Association, which states:

“In those instances when the urgency of a client’s matter requires the hiring of additional stenographic services or additional compensation of a lawyer’s staff, such expenses should be billed to the client.”

Graves’ argument is totally without merit. It borders on the frivolous. It is refuted by the record. Surely, Graves is aware that the minimum fee schedule was abolished by this court on September 25, 1973, as a result of Goldfarb v. Virginia State Bar et al., 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975).

This court concludes that Graves’ conduct in billing to the escrow account expenses of law clerks, secretarial assistance, a sumptuous meal and other exorbitant charges, especially in the absence of a specific agreement with respect to those particular expenses, are improper. He needed no disciplinary regulation to tell him right from wrong. It is difficult for this court to comprehend an attorney with a full-time practice to expect his clients to meet his overhead expenses. A law clerk may render valuable services in many areas of a lawyer’s practice. However, they should not be compensated from an escrow account as was done in this case. Opening a law office without a secretary is no more practical than to be without a library and furniture. It is doubtful if any member of the public who needed a lawyer would employ one who was to charge a standard fee for his legal services and then charge the costs of his secretaries and law clerks as expenses of litigation.

This court is mindful of the quips, gags and attacks on the integrity of the legal profession. Yet, it is still regarded as a highly responsible and noble profession. In his advice to young lawyers, Judge John F. Phillips of a U.S. District Court said:

“The profession you have chosen is the most exalted that ever engaged the ambition of intellectual men. Yours is the profession to which the present and posterity must look for the preservation of what is cohesive in our social organism.”

Many years ago in a treatise on legal ethics, G. Sharswood stated:

“No man can ever be a truly great lawyer who is not in every sense of the word, a good man. . . . There is no profession in which moral character is so soon fixed as that of the law; there is none in which it is subjected to severer scrutiny by the public. . . . From the very commencement of a lawyer’s career, let him cultivate above all things truth, simplicity and candor; they are the cardinal virtues of a lawyer.”

This court is of the opinion that Graves’ conduct in this matter violates every concept of ethical conduct required of an attorney. Such conduct adds fuel to the flame of those who attack the integrity of the legal profession. It is with reluctance that the court adopts the recommendation of the Board of Governors to publicly reprimand Graves. This action is prompted by unusual facts which have not previously been presented. However, should such a case with similar circumstances be presented to this court in the future, the punishment imposed upon a like offender will be more severe.

This court affirms the recommendation of public censure of Graves for his unethical conduct which is established by the writing and publication of this opinion.

All concur except REED, C. J., who did not sit or participate in the decision of this case.


author: JONES, Justice.

text:
    Walter Wray POTEET, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 7, 1977.

      Jack Emory Farley, Public Defender,, Linda K. West, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

On June 23, 1976, Walter Wray Poteet was indicted on eight counts of knowingly receiving stolen property. KRS 514.110(1). Each count charged that Poteet had received property stolen from a named individual and contained a listing of the property allegedly received. On August 23, 1976, Poteet was convicted of six counts of knowingly receiving property valued at more than $100.00. On the two remaining counts he was convicted of knowingly receiving stolen property valued at less than $100.00. The maximum penalty imposed by the jury on the six counts of knowingly receiving stolen property of the value of more than $100.00 was a total of 30 years. On each of the counts charging Poteet with knowingly receiving property valued at less than $100.00, the jury imposed a sentence of 12 months in jail and a fine of $500.00. Thereafter, the trial court sentenced Poteet to imprisonment for a term of 20 years pursuant to the provisions of KRS 532.080(4)(c).

Poteet was not satisfied with that result and prosecutes this appeal.

The indictments allege that Poteet knowingly received stolen property consisting of a fishing tackle box, lures, rods and reels, numerous guns, an electric welder, various tools and tool boxes, a chain saw and a chain hoist, another tool box and a quantity of tools and wrenches, an air compressor, welding materials, barbed wire, “chain hoist come along,” a Johnson 25-horsepower outboard motor, and various other items. Each of the owners except one testified on behalf of the Commonwealth, and identified each item which had been stolen from them. The Commonwealth also introduced the evidence of the witnesses who admitted stealing the property. They also identified the property as that stolen by them, and testified that they had transferred the stolen property to Poteet. These witnesses at the time they testified were under indictment for the theft of the various items of property. At trial Special Agent John Stocking testified that he went to the “Orange Bar” owned by Poteet for the purpose of conducting an undercover investigation as to Poteet’s activities. Stocking purchased from Poteet a number of items. On several occasions Poteet told Stocking that the items were “hot,” “safe to sell in the Evansville, Indiana area,” or “stolen.”

Stocking identified the items introduced at trial as those he had purchased from Poteet.

During his testimony Stocking mentioned the fact that some of the conversations with Poteet concerning the stolen property were recorded. The manner by which the conversations were recorded was through use of a microphone placed on his chest underneath his shirt.

Stocking delivered the tapes to Agent Neihaus. Because the tapes were inaudible, Neihaus sent them to a laboratory in Washington, D.C. by certified mail. When the tapes were returned to Neihaus the cassette recordings of the original tapes were audible. Neihaus testified that he played the tapes in the presence of Special Agent Stocking and delivered them to him. Stocking testified that when he listened to the tapes they represented accurately the conversations that took place between him and Poteet. There were four such tapes and all were introduced in evidence and played to the jury.

At the conclusion of all of the evidence presented by the Commonwealth, Poteet took the stand in his own defense. He testified that he dealt in used property. He admitted that on some occasions he would suggest to a customer that a particular item was “hot” in order to enhance its attraction. He denied that he had any actual knowledge that the property in question was stolen. However, he did admit to selling a number of guns and other items to Agent Stocking. Poteet testified that the property he sold Stocking was purchased from Vernon Willis. Poteet purchased numerous items from other individuals. He denied he had actual knowledge the property introduced in evidence was stolen. He referred to himself as a “trader.” He did admit that on one occasion he scratched the letters off certain articles he sold to Stocking. Po-teet’s testimony was supported by the testimony of several witnesses who had dealt with him in the past. They testified that Poteet had never offered to sell them “stolen property.”

Poteet’s first complaint of error is the admission of taped conversations between him and John Stocking, an undercover agent with the Bureau of Alcohol, Tobacco and Firearms. He contends this was error because the Commonwealth’s Attorney failed to lay a proper foundation for the admission of the recordings. The crux of his argument in this respect is that the tapes introduced in evidence were copies and not the original recordings. The real thrust of his argument is that the Commonwealth’s Attorney failed to show the chain of custody of the tapes during their transfer to and from Washington, D.C. for reproduction. He relies on this court’s opinion in Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974) for the proposition that each link in the chain of custody of evidence must be established. This court is of the opinion that counsel for Poteet is prowling in the dark. Apparently he doesn’t understand all he pretends to know about the matter. He misconstrues Henderson, supra. The evidence in Henderson consisted of blood samples and fingerprints, the integrity of which was not established. Blood samples are not readily identifiable and require strict accounting to insure their integrity and authenticity. Tape recordings, on the other hand, are unique and readily identifiable. In this case, Stocking recorded the conversations between him and Poteet. The tapes were delivered to Agent Neihaus. Neihaus sent them to a laboratory in Washington. They were returned. The cassettes introduced in evidence were audible. Where then was the broken link in the chain of evidence?

Counsel for Poteet raised no issue as to Stocking’s credibility, nor did he make any significant attack upon the authenticity of the copies of the cassettes. The real challenge raised by counsel for Poteet is that the one who made the copies for clarification in Washington, D.C. did not testify. Because of that, he contends he was denied the right to confront witnesses against him when the tapes were introduced in evidence and played to the jury. There is no more merit in Poteet’s contention that the trial court erred by admitting the tapes into evidence than there would have been had photographs of the cache of stolen property in the possession of Poteet been admitted in evidence. In such a case it would not have been necessary for the photographer to make verification of the photos if it could have been provided by anyone with sufficient knowledge to assure the trial court of the accuracy of the photographs. See King v. Ohio Valley Fire and Marine Ins. Co., 212 Ky. 770, 280 S.W. 127 (1926). When Stocking testified to the accuracy of the conversations in the recordings, their integrity was firmly established.

Poteet’s second contention is that the record contained no competent evidence as to the value of the stolen property of Robert Yerian. There is no merit to that argument. Furthermore, it is refuted by the record. Yerian testified that he was the owner of a solar carbon welding wrench, a welding helmet, an 18-ineh pipe wrench and a “chain hoist come along.” He testified these items were stolen from him and were either found in Poteet’s possession or sold by him.

Yerian was unable to place a value on the pipe wrench, but did value the welding wrench at $30.00, the helmet at $15.00, and an extension cord at $9.00. As to the value of the “chain hoist come along,” he fixed its replacement value at $130.00. He also listed on his insurance claim the value of $130.00 for that item. At no time was an objection made to Yeri-an’s testimony in this respect. Because the matter was not then and there brought to the attention of the trial court for a ruling, there was no error. This court notes however, that had the matter been presented to the trial court for proper ruling, there was sufficient evidence to show that Yerian’s stolen property knowingly received by Po-teet was of the value of more than $100.00.

Finally, Poteet complains that the trial court erred in denying his pre-trial motion for disclosure of any “deal” or “arrangement” made between the Commonwealth and anticipated witnesses who would testify for the Commonwealth. In other words, he was seeking to find out if any “deal” or “arrangement” had been made between the Commonwealth and the witnesses who had stolen the property, and who had indictments pending against them for the theft. The Commonwealth’s Attorney denied the existence of any immunity promises, “deals” or “arrangements.”

This situation reminds the author of the story of a fiery, young evangelist on the last night of a revival meeting calling sinners to repentance. With all the fervor in his being, the young evangelist said, “Brothers and sisters, in that awful, final day of judgment, there will be weeping, wailing, and gnashing of teeth.” One good sister in the rear of the church arose and said, “Brother, I ain’t got no teeth.” The evangelist said, “Sit down, sister, teeth will be provided.” Thus, the Commonwealth’s Attorney emphatically said, there are no promises of immunity — there are no deals— there are no arrangements. Poteet offered no evidence to the contrary. As far as this court is concerned, that ended the matter.

Accordingly, the judgment is affirmed.

All concur.

      . Stocking was a Special Agent with the Bureau of Alcohol, Tobacco and Firearms.


author: PALMORE, Justice.

text:
    Doris Ann BOYD, Appellant, v. Walter E. BADENHAUSEN, Jr., M.D., Appellee.
    Supreme Court of Kentucky.
    Oct. 7, 1977.

      Alan N. Leibson, Kathleen Ogden Davis, Louisville, for appellant.
    James G. Apple, Stites, McElwain & Fowler, Louisville, for appellee.
   PALMORE, Justice.

Doris Ann Boyd appeals from a summary judgment dismissing her suit against Dr. Walter E. Badenhausen for damages occasioned by a delay between the time when she contends he should have performed surgery on her and the time he finally did do it. It is our opinion that the record before the trial court did not sufficiently negate the existence of a genuine issue of material fact to justify summary judgment. Cf. CR 56.03.

It was established by the pleadings that Dr. Badenhausen is an orthopedic surgeon and that Mrs. Boyd became his patient in February of 1973. The remaining factual information in the record consists of an affidavit filed in support of the summary judgment and the discovery depositions of Mrs. Boyd and Dr. Badenhausen. The trial court did not render a written opinion, and the judgment does not indicate the basis for its implicit conclusion that the defendant was entitled to a judgment as a matter of law.

In February of 1973 Mrs. Boyd was suffering pain and numbness in her right arm and wrist. She secured an appointment to see Dr. Badenhausen on February 19, 1973, but actually was seen by a Dr. Lang, an employe of the professional service corporation of which Dr. Badenhausen and two other physicians were the members. After preliminary tests proved negative, at a second visit on February 22,1973, Dr. Lang tentatively diagnosed her condition as a carpal tunnel syndrome, which frequently necessitates surgery, and had his nurse make an appointment for Mrs. Boyd with Dr. Thomas Kelley for further testing of a nature designed either to confirm or eliminate his initial diagnosis. At the conclusion of Mrs. Boyd’s ensuing visit to Dr. Kelley’s office she was advised that the results would be reported to Dr. Badenhausen and that she should call his office within the next few days.

Dr. Kelley’s tests were conducted on May 29, 1973. Mrs. Boyd called Dr. Badenhau-sen’s office about a week later and was told by one of the employes in the office that the report had not yet arrived. Some three days later she called again, at which time, she says, “the girl in Dr. Badenhausen’s office told me to call Dr. Kelley’s office and find out if, indeed, the report had been sent . I called Dr. Kelley’s office and she said that it had gone out about a week before that and they should have gotten them . . After several telephone calls to Dr. Badenhausen’s office Mrs. Boyd was told that the report still had not arrived but that when it was received, and if it was “positive,” Dr. Badenhausen’s office would telephone her.

To summarize the rest of Mrs. Boyd’s version of the matter, she never did hear from Dr. Badenhausen’s office, but because she had already made numerous telephone calls on her own initiative and was not being treated very courteously by the office help, and also because her symptoms became less aggravating as the summer wore on, she simply gave up and quit calling the doctor’s office. All the while, however, it appears that the Badenhausen corporation did in fact have Dr. Kelley’s report, which confirmed Dr. Lang’s diagnosis, but had misplaced it in the files.

As cooler weather set in during the fall of 1973 Mrs. Boyd’s symptoms gradually returned and became more pronounced, to the point that in February of 1974 her employer called her in and told her that it was impairing her work and he would have to give her the sack if she didn’t get something done about it. These dismal tidings galvanized her into action again and she promptly reported to the emergency room of a local hospital. After examining Mrs. Boyd the physician on duty concluded that she should see another doctor, so on March 1,1974, she went to Dr. Richard Roth. The information given to Dr. Roth by Mrs. Boyd led him to telephone Dr. Kelley’s office and get the results of the report that had been sent to Dr. Badenhausen back in June of 1973. Dr. Roth then advised Mrs. Boyd to have surgery and to go back to Dr. Baden-hausen for that purpose, which she did.

Mrs. Boyd succeeded in getting an appointment to see Dr. Badenhausen on March 7, 1974, at which time, she says, “they couldn’t find my file, and finally after looking for it for a while they found it filed under the D’s.” Dr. Badenhausen then reviewed her record, put her arm in a “night splint,” and arranged for surgery, which he performed on March 20, 1974.

The operation was entirely successful. Presumably Mrs. Boyd’s damages consist mostly of the pain and suffering endured by her during the interval between June of 1973 and March of 1974, and from that standpoint the controversy may fall a trifle short of cataclysmic magnitude, but it does present one legal question of sufficient importance to justify this much discussion. The question is whether the veil of a professional service corporation protects its members from personal responsibility for the negligence of its corporate employes in doing or failing to do those things that are embraced in the duties owed by a physician to his patient. The answer is “No.”

KRS 274.055 provides in substance that the corporate existence shall not affect the relationship between the professional member and his client or patient. Just as a surgeon is responsible for the negligence of a nurse or surgical attendant employed by a hospital to assist him in cutting open and sewing up a patient, so is a physician responsible for the derelictions of persons employed by a corporation to carry out for him the clerical details that are necessary to the successful performance of his duty to render skillful care and attention to whomever he accepts as a patient.

If Dr. Badenhausen had been an old-fashioned country doctor without any office help and had mislaid his notes on this lady’s care and then put her off and forgotten her, there can be little doubt that he could have been held responsible had she died as a consequence of that neglect. Placing a layer of other people, by whomsoever they may be employed, between a physician and his patient does not alter the situation, because the physician’s professional duties are not susceptible of being delegated or diffused.

There was conflicting testimony about appointments made for Mrs. Boyd and not kept by her, from which it is argued that she was contributorily negligent. Demonstrably, we think, that question is for a jury to decide.

The judgment is reversed with directions for further proceedings consistent with this opinion.

All concur.


author: WINTERSHEIMER, Judge.

text:
    FISCAL COURT OF JEFFERSON COUNTY, Kentucky, et al., Appellants, v. Lynn OGDEN et al., Appellees.
    Court of Appeals of Kentucky.
    March 4, 1977.
    Rehearing Denied July 22, 1977.
    Discretionary Review Denied Nov. 14, 1977.

      Bert T. Combs, Richard W. Iler, Tarrant, Combs, Blackwell & Bullitt, Herman E. Frick, Frazee, Frick & Gates, Frank H. Thiemann, Jr., Alex F. Talbott, John G. Carroll, Louisville, for appellants.
    Bill V. Seiller, Louisville, for appellees.
    Gary Levy, Louisville, for amicus curiae.
    Before WINTERSHEIMER, LESTER and WILHOIT, JJ.
   WINTERSHEIMER, Judge.

This appeal was initiated by the Fiscal Court and the Louisville and Jefferson County Planning Commission from a judgment which set aside a rezoning decision of the Jefferson County Fiscal Court. The complaint was filed on January 10, 1973. The case was heard on the record below and a judgment was issued on November 29, 1973. Notice of appeal was filed December 17, 1973. On appeal, the amicus curiae brief was admitted on behalf of the Strategies for Environmental Control, Inc., Action for Clean Air, Inc., and Louisville Audubon Society. The Supreme Court transferred this case to the Court of Appeals on September 14, 1976. This Court reverses the judgment of the trial court.

The Appellant, Marshall Planning Mill, Inc., has owned since 1966 approximately ninety acres of land on the south side of Brownsboro Road at the intersection of Sin-coe Lane in Jefferson County. At the time of the hearing the property was farm land generally surrounded by other farm land or single family residences. The Marshall Planning Mill, Inc., was a commercial and residential developer for about twenty-five years in the Jefferson County area. The Appellant had been denied a zoning change on February 25,1969. Thereafter, on April 22, 1970, The Comprehensive Plan was adopted for the entire Jefferson County area. On June 6, 1972, Appellant Marshall filed an application with the Louisville and Jefferson County Planning Commission for a change in zoning which was identical to the request that had been denied in 1969. Pursuant to a staff report and following a full public hearing on the application on July 6, 1972, the Planning Commission recommended that the property be rezoned. The Jefferson County Fiscal Court held a second public hearing on September 26, 1972, and adopted a resolution, dated December 12, 1972, approving the requested zone change. The Appellees, Lynn Ogden and others, filed suit in the Jefferson Circuit Court challenging the rezoning. The Jefferson County Circuit Court set aside the rezoning because it was not in agreement with The Comprehensive Plan as a matter of law.

The questions presented are as follows:

1. Was the trial court correct in holding that the proposed rezoning was not in agreement with The Comprehensive Plan as a matter of law?
2. Was the trial court correct in holding that the standards for determining neighborhood shopping centers were so vague and uncertain as to be arbitrary?
3. Was the trial court correct in applying the doctrine of res judicata as a bar to a subsequent rezoning application?

A careful examination of the record and the judgment of the trial court fails to reveal any valid basis for the Chancellor to have found as a matter of law that the rezoning did not conform to The Comprehensive Plan. It would appear that the trial court substituted its own opinion in this regard for the opinion of the Urban Planners that the proposed rezoning was in fact in conformity with the Plan. It is well settled in Kentucky that the rezoning process is completely within the purview of the local authorities charged with that responsibility. A “de novo” hearing by any court is not permitted unless the rezoning result is arbitrary. The Appellees contended that procedural due process was not provided. This question is subject to considerable debate both in this state and throughout the country. The question of the right to cross-examination and the necessity of swearing witnesses has always been troublesome. In many zoning hearings a technically informal atmosphere is found. Considering that most such proceedings involve emotional responses to technical issues, the informal atmosphere is perhaps best. Those opposed to any rezoning may be intimidated by an awesome formalistic procedure. Clearly, zoning hearings should provide for procedural due process in a psychologically humane climate. Administrative hearings generally provide greater latitude for public expression. This is an important element in the hearing process. The crucial element is the weight that the hearing body gives to the presentations made before it. It has been held that if not specifically requested, the right of cross-examination is waived. Gibson v. Talbot County Board of Zoning Appeals, 250 Md. 292, 242 A.2d 137 (1968). 27 A.L.R.3d 1310. It appears from this record that all parties who appeared were given ample opportunity to express their opinions although the specific right of cross-examination was not mentioned. The record in this case indicates that the public had a substantial opportunity to protest the zoning change both before the Planning Commission and the Fiscal Court. The record indicates that a large number of people attended both hearings. The Fiscal Court Public Hearing was in the evening and a variety of people, including some local attorneys, attended. Public protest has a legitimate place in public deliberations. In this instance such a protest did not prevail. Rebuttal time was offered and a member of the Fiscal Court spoke in opposition of the rezoning.

In considering the adherence to The Comprehensive Plan, it must be understood that any plan is just that. All plans must be flexible and not rigid. It does not appear that the differences cited by the Appellees are so substantial or significant as to amount to a deviation from a comprehensive plan. If plans were not flexible there would be no need for applications for rezoning. It must be remembered that any such rezoning application must be available for complete and careful review, including judicial review.

It further appears that The Comprehensive Plan for Louisville did contain proper and adequate standards for determining a neighborhood shopping center. The definition of neighborhood shopping center is not too vague so as to permit an arbitrary result. The standards should be sufficiently broad to meet the varied and diverse plans that will come before the zoning and legislative bodies for approval.

The matter of res judicata in zoning matters is a serious and vexing problem. The textbook writers indicate that there is a division of authority in the application of res judicata to rezoning requests. Certainly, the people affected by repeated and harassing rezoning applications are entitled to protection. There should be some safety for the public at large. Certainly, the doctrine of res judicata is a valuable tool in litigation arising from zoning changes. It clearly has a place in the law of zoning.

However, in the instant ease an extended discussion of res judicata is not required. The second application by Marshall was more than two years after the original denial. In that two year period a comprehensive plan had been adopted. Further, the commission staff report had occurred since the original application. The Jefferson Freeway now intersects with Browns-boro Road east of the subject site. It is clear that the question of res judicata is not applicable since there was a substantial change of circumstances between the first and second application.

Therefore, the judgment of the trial court is reversed and this matter is remanded to the trial court for entry of a judgment in conformity with this opinion.

All concur.