text:
    Curtis BLANKENSHIP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Aug. 19, 1977.

      Thomas R. Lewis, Asst. Public Defender, Jack E. Farley, Public Defender, Frankfort, for appellant.
    David M. Whalin, Asst. Atty. Gen., Robert F. Stephens, Atty. Gen., Carl T. Miller Jr., Asst. Atty. Gen., Frankfort, for appel-lee.
    Before HOGGE, PARK and WINTER-SHEIMER, JJ.
   PARK, Judge.

The appellant, Curtis Blankenship, received a sentence of ten years for robbery by a judgment of the Pike Circuit Court entered May 16, 1975. A timely notice of appeal was filed on behalf of Blankenship, but his appeal was dismissed because the record on appeal was not filed timely as required by RCr 12.58. Blankenship now challenges his judgment of conviction by a motion under RCr 11.42. Blankenship claims that he was denied effective assistance of counsel because of his trial counsel’s failure (1) to perfect his original appeal and (2) to raise the issue of his competency to stand trial. Blankenship appeals from an order of the Pike Circuit Court overruling the motion to vacate judgment pursuant to RCr 11.42.

FAILURE TO PERFECT ORIGINAL APPEAL

Blankenship was represented by a court appointed attorney operating under the public defender plan established by Chapter 31 of the Kentucky Revised Statutes. Following the conviction, Blankenship requested that an appeal be taken on his behalf. At the hearing on the motion to vacate judgment, his trial attorney testified:

“Curtis and I discussed the matter of appeal and I informed him of his appellant rights. He expressed a desire to so appeal, I filed a notice of appeal. I filed a motion to allow him to proceed on appeal in forma pauperis and asked the clerk to prepare the record. There evidently was a misunderstanding between myself and the Public Defender Office in Frankfort as to who was to perfect that record on appeal with the Court of Appeals. * * *
“Let me add that the basis of the misunderstanding there was that I was under the impression at the time that the Frankfort office picked up the appeal after I had processed it to that point. We have now agreed on a different method proceeding, but that was the basis of that misunderstanding.”

When the trial counsel and the Frankfort office discovered the misunderstanding, efforts were made to salvage the appeal. However, the trial court was of the opinion that it had no jurisdiction to authorize the late filing of the record. The Supreme Court denied a motion to extend the time for filing the record, and the appeal was dismissed.

Under Section 115 of the Kentucky Constitution, every defendant in a criminal case is allowed one appeal as a matter of right. However, Section 115 did not become effective until January 1, 1976. When the judgment sentencing Blankenship was entered on May 16,1975, there was no constitutional right of appeal in criminal cases. McIntosh v. Commonwealth, Ky., 368 S.W.2d 331 at 335 (1963). Although he had no constitutional right of appeal from the judgment of May 16, 1975, Blankenship did have a right of appeal from that judgment under the provisions of KRS 21.140(1). When a statute authorizes an original appeal as a matter of right, the equal protection clause of the fourteenth amendment to the United States Constitution guarantees that an indigent defendant shall have the assistance of counsel in prosecuting the appeal. McIntosh v. Commonwealth, supra; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). When an indigent defendant is unconstitutionally deprived of his statutory right of appeal because of lack of counsel, the defendant is entitled to a belated appeal upon the filing of a motion to vacate judgment under RCr 11.42. Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883 (1966); Stinnett v. Commonwealth, Ky., 446 S.W.2d 292 (1969); Tipton v. Commonwealth, Ky., 456 S.W.2d 681 (1970); Prater v. Commonwealth, Ky., 476 S.W.2d 833 (1972).

Even though the attorney general concedes that Blankenship is entitled to a belated appeal under the rule laid down in the Hammershoy case, this court must give consideration to the opinion in Perkins v. Commonwealth, Ky., 516 S.W.2d 873 (1974), cert. den. 421 U.S. 971, 95 S.Ct. 1967, 44 L.Ed.2d 462. In that case, an indigent defendant’s court appointed counsel failed, to file a notice of appeal within the ten day period allowed by RCr 12.54. Approximately two months after a motion for a new trial had been overruled, the trial counsel filed a motion in the circuit court asking that the court reinstate the defendant’s right of appeal, alleging that the trial attorney had “neglected” to file a notice of appeal “through inadvertence and oversight.” In affirming the order of the trial court overruling the motion for a belated appeal, the court relied heavily upon the principle that appellate review in criminal cases was not a constitutional right. In light of the subsequent adoption of Section 115 of the Kentucky Constitution which does guarantee a criminal defendant one appeal as a matter of right, this basis for the Perkins decision would not apply to judgments entered after January 1, 1976. Because the judgment sentencing Blankenship was entered prior to the effective date of Section 115, the Perkins case is applicable to this appeal.

The opinion in Perkins does not indicate that the defendant ever requested that his attorney take an appeal. Almost two months elapsed before anyone indicated to the trial court that an appeal was being sought. In the present case, Blankenship requested that his case be appealed, and his trial counsel did file a timely notice of appeal. From the record, it is clear that Blankenship did everything within his power to take an appeal. The opinion in the Perkins case does not indicate that the defendant did anything to exercise his right of appeal. Compare Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), with Adams v. Commonwealth, Ky.App., 551 S.W.2d 249 (1977). However, the question to be decided is not whether Perkins can be distinguished on its facts. The important question is the application of the principles of the Perkins case to the facts of this case.

In Perkins, the public defender argued that an indigent defendant was entitled to “error free representation” by counsel on appeal. The public defender further argued that an indigent would be denied the equal protection of the law if his appeal was dismissed because of the “simple negligence” of his appointed counsel in failing to take a procedural step requisite for an appeal. The court in the Perkins case dismissed this argument on the ground that nonindigent and indigent defendants were subject to the same hazard of error by counsel in regard to appellate procedure. That being so, there could be no denial of the equal protection of the law. As the court stated:

But we find no denial of equal protection in the mere fact that appointed counsel is one who is susceptible to the commission of a procedural error.

Even though the court found that there was no denial of equal protection, the court did state:

Of course an indigent is entitled to reasonably competent counsel for appeal purposes * * *.

The question in this case is whether Blankenship received “reasonably competent counsel” to assist in his appeal.

In determining what constitutes “reasonably competent counsel,” reference can be made to the standards applicable to civil actions for malpractice against attorneys. In Humboldt Building Association v. Ducker’s Exr., 111 Ky. 759 at 763, 23 Ky.L.Rptr. 1073, 64 S.W. 671 at 672-73 (1901), the court stated:

* * * while the rule in England seems to have been that an attorney is liable to his client only in case of gross neglect or gross incompetence, yet in this country a juster rule for the client, and one which the profession can not reasonably find fault with, is that the attorney is liable for the want of such skill, care, and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment. Bank v. Ward, 100 U.S. 195-199, 25 L.Ed. 621. When one seeks and obtains admission to that profession dealing with so many important and involved affairs of men, and holds out his services to be engaged by those standing in need of such, he engages that he possesses to an ordinary extent the technical knowledge commonly possessed by those in the profession, and that he will give to the matters submitted to him such care and attention as is ordinarily given similar affairs by men of his profession. He does not agree, in the absence of special contract to that effect, that he will make no mistake of judgment. On the contrary, the law recognizes, in fixing this liability of the attorney, that human judgment is fallible. Courts, as well as lawyers, do disagree concerning the many matters about which each one may have a fairly fixed opinion. The law is a science, it is true, but an imperfect one, for the reason that it depends for exemplification and enforcement upon the imperfect judgments and consciences of men. Therefore when the attorney has used ordinary care in acquainting himself with the facts, his misjudgment as to the law thereon will not generally render him liable.

The time requirements of RCr 12.58 for the filing of the record on appeal do not call for the exercise of judgment.

There are cases in which an attorney has been held liable for negligence in failing to take the proper steps to protect his client’s right of appeal. See the cases collected in the annotation, 45 A.L.R.2d at 52. In upholding the right of a defendant to a delayed appeal, the Supreme Court of Oregon in Shipman v. Gladden, 253 Or. 192, 453 P.2d 921 at 925 (1969), held:

The failure to perform the simple procedure of timely filing a notice of appeal is not the ‘effective’ assistance of counsel required by Powell v. Alabama, nor the diligent advocacy required by Anders v. California. The failure of counsel to timely file a notice of appeal after he has been requested or agreed to do so is incompetence as a matter of law and a denial of due process. This is equally true whether the negligent counsel has been appointed or retained. The ‘invidious discrimination’ is not between the rich who can hire counsel and the poor for whom counsel must be appointed, but between those who are represented by competent counsel and those whose counsel prove to be grossly incompetent or culpably negligent.

A reasonably competent attorney can comply with the procedural requirements of RCr 12.58. When, without excuse, the attorney fails to comply with RCr 12.58 the defendant has not received the assistance of counsel on appeal required by Hammershoy v. Commonwealth, supra.

In holding that Blankenship was denied his right of appeal, this court does not suggest that either trial counsel or appellate counsel are not competent attorneys. Nor does this court attempt to allocate the fault between trial counsel and appellate counsel. Without regard to the question of individual fault, the fact remains that the public defender system itself was guilty of gross neglect in the prosecution of Blankenship’s appeal. A firm of reasonably competent attorneys exercising ordinary care would not lose a case between the trial court and the appellate court. The failure to comply with requirements of RCr 12.58 in this case have rendered the process of appellate review of Blankenship’s case a farce and a mockery. Therefore, the judgment below must be reversed with directions that Blankenship be granted a belated appeal in accordance with the procedures set forth in the Hammershoy case.

This holding does not mean that appellate counsel for criminal defendants are free to ignore the requirements of the rules governing appellate practice. Sanctions exist to enforce compliance with the rules other than a denial of the defendant’s right of appeal.

FAILURE TO RAISE COMPETENCY ISSUE

During the course of interviewing Blankenship, doubt was raised in the mind of trial counsel with respect to Blankenship’s competency to stand trial. Trial counsel learned from Blankenship that he had been hospitalized several years previously at Eastern State Hospital in Lexington. He also learned that Blankenship had more recently been under the care of a doctor at the Mountain Medical Health Comprehensive Care Center. The trial counsel wrote to the center requesting an analysis of Blankenship’s condition. Although the report from the center was lost by the time of the hearing on the motion to vacate judgment under 11.42, trial counsel testified that there was no information contained in the psychiatric report upon which he could base an issue of insanity or competency to stand trial. As the report refuted the idea that Blankenship was incompetent, the trial counsel did not raise the issue with the trial court.

There is no medical or other expert testimony anywhere in the record that indicates that Blankenship was incompetent to stand trial. Other than Blankenship’s own testimony, there was no lay testimony respecting Blankenship’s mental condition at the time of trial. During his testimony on the motion pursuant to RCr 11.42, Blankenship demonstrated a clear recollection of the events which transpired prior to and during the trial of his case. In overruling Blankenship’s motion to vacate judgment, the trial court found that Blankenship had failed to establish “the ineffectiveness and incompetence” of trial counsel. The trial court further found that Blankenship was “well represented at the trial of his case.” There was no specific finding with respect to Blankenship’s competency to stand trial.

Under RCr 11.42(6) a trial court conducting a hearing to vacate sentence must make findings on all material issues of fact. Such findings are required if there is to be meaningful appellate review. The trial court should have made a specific finding with respect to Blankenship’s competency at the time of trial. However, the trial court’s failure to do so does not constitute reversible error. There was no specific request by Blankenship for a finding on that issue as required by CR 52.04, which we conclude is applicable to proceedings under RCr 11.42. See, RCr 13.04; Hord v. Commonwealth, Ky., 450 S.W.2d 530 (1970). Giving consideration to the record made at the hearing on the motion to vacate, this court concludes that the findings of the trial court with respect to the effectiveness of trial counsel are not clearly erroneous. The trial court did not err in refusing to vacate the judgment because of the failure of trial counsel to raise the question of Blankenship’s competency.

RULING

The judgment of the circuit court is reversed, and the case is remanded to the trial court with the following directions: within thirty days following the issuance of the mandate in this proceeding, the trial court shall appoint counsel to represent Blankenship on appeal; time for filing the record on appeal as required by RCr 12.58 shall run from the date of the appointment of appellate counsel.

All concur.


source: Caselaw Access Project

author: PARK, Judge.

license: Public Domain

text:
    SUPERX DRUGS OF KENTUCKY, INC., and Leslie Rowland, Appellants, v. Wanda RICE, Appellee.
    Court of Appeals of Kentucky.
    Aug. 19, 1977.

      Grant F. Knuckles, Pineville, William A. Watson, Watson & Watson, Middlesboro, for appellee.
    Glenn W. Denham, Denham, Ralston & Nagle, Middlesboro, 0. Grant Bruton, Jefferson Davis Stewart, III, Middleton, Reut-linger & Baird, Louisville, for appellants.
    W. Terry McBrayer, Greenup, amicus curiae Kentucky Retail Federation, Inc.
    Before PARK, REYNOLDS and WIL-HOIT, JJ.
   PARK, Judge.

This appeal arises out of an action for false imprisonment brought by the plaintiff-appellee, Wanda Rice, against the defendants-appellants, SuperX Drugs of Kentucky, Inc., and a clerk in its Middlesboro store, Leslie Rowland. On the first two trials of the case, the juries were unable to agree on a verdict. On the third trial of the case, the jury returned a verdict in favor of Mrs. Rice, awarding her $75,000 as compensatory damages and $75,000 as punitive damages. SuperX and Rowland appeal from the judgment entered on this verdict.

SuperX and Rowland assert that they were entitled to a directed verdict. According to their evidence, Rowland and an independent salesman, Robertson, observed Mrs. Rice place makeup, lipstick and cologne in a Rose’s Department Store sack. At the checkout counter, Mrs. Rice paid for certain other items by means of a social security check. However, according to Rowland and Robertson, Mrs. Rice did not remove the makeup, lipstick and cologne from the Rose’s sack or offer to pay for those items. As she was preparing to leave the store, Mrs. Rice was stopped by Rowland who escorted her back to a small room at the rear of the drugstore used as an employee’s lounge. When requested, Mrs. Rice emptied the contents of the Rose’s sack onto a table, including the three items from the drugstore. According to Rowland, Robertson and the store manager, Hurley, Mrs. Rice admitted taking the three items, and she offered to pay for them. This offer was refused, and the store employees took possession of the three items. At the request of the store manager, Rowland called the police and informed them that they had a shoplifter in “custody.” Rowland then went to the Middlesboro city police judge from whom he obtained a warrant for Mrs. Rice’s arrest. While the warrant was being obtained, a Middlesboro city policeman arrived at the store. The police officer took Mrs. Rice in the cruiser from the drugstore to the police station where she was subsequently served with the warrant of arrest.

A substantially different story was offered by Mrs. Rice and her daughter Debbie, who was twelve years old at the time of the incident. According to them, the makeup, lipstick and cologne as well as other items selected by Debbie were placed on top of the Rose’s sack, not in it. Mrs. Rice testified that she carried all of the items by holding the Rose’s sack against her body. She placed all of the items on the checkout counter and offered the cashier a social security check in payment. Debbie then separated the items she had selected from those that had been selected by her mother. According to Mrs. Rice and Debbie, the items selected by Debbie were placed in a SuperX sack with the sales receipt, and Mrs. Rice placed her items into the Rose’s sack for the first time. Mrs. Rice testified that she did not check her change because her sister was at the front door urging them to leave quickly because of the heat in the car which was parked in the sun outside of the store. According to Mrs. Rice, she thought she had paid for the makeup, lipstick and cologne and, in any event had no intent to steal. She denied admitting that she had taken the items, and she asserted that she asked Hurley and Rowland to verify the purchase with the cashier or the sales receipt.

According to the store’s theory of the case, Mrs. Rice placed the three items in the Rose’s sack and never made any offer to pay for them at the cashier’s station. According to Mrs. Rice’s theory of the case, she did not put them in the Rose’s sack until after she had placed them on the checkout counter and tendered the social security check as payment for all of the items which she and her daughter were purchasing.

In Kentucky, a private person may arrest only for a felony. A private person cannot make an arrest for a misdemeanor. KRS 431.005(2). Consequently, it has long been the law that it is no defense to an action for false imprisonment that a merchant had probable cause to believe that the plaintiff was committing a misdemeanor. Jefferson Dry Goods Co. v. Stoess, 304 Ky. 73, 199 S.W.2d 994 (1947). A number of states afforded a limited privilege of detention to a merchant having probable cause to believe that a person was shoplifting. See Collyer v. S. H. Kress & Co., 5 Cal.2d 175, 54 P.2d 20 (1936). This limited privilege finds recognition in the Restatement of Torts 2d § 120A. However, the Collyer case was expressly rejected by this state’s highest court in the Stoess case.

In an effort to give merchants some assistance in dealing with shoplifters, the legislature in 1958 enacted a statute providing merchants a limited defense to charges of false imprisonment. As amended, KRS 433.236(1) provides:

“A peace officer, security agent of a mercantile establishment, merchant or merchant’s employe who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person, and that he can recover same by taking the person into custody, may, for the purpose of attempting to effect recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time.” (Emphasis added)

As originally enacted, this statute had no specific provision with respect to the right of arrest. Because a peace officer has a right to arrest for a misdemeanor without a warrant only if the misdemeanor is committed in his presence, KRS 431.005(1), a definite problem was presented by shoplifters of items having a relatively small value. In 1968, the legislature amended the shoplifting statute to provide:

“Any peace officer may arrest without warrant any person he has probable cause for believing has committed larceny in retail or wholesale establishments.” KRS 433.236(2).

Thus, a peace officer may arrest a shoplifter without a warrant solely on the information provided by the merchant. The misdemeanor need not have been committed in his presence.

Mrs. Rice asserts that KRS 433.236 can provide no defense to SuperX and Rowland. She points out that a merchant is permitted to take a suspected shoplifter into custody and to detain him pursuant to KRS 433.-236(1) only for the purpose of recovering the goods from the suspected shoplifter. According to this interpretation of the shoplifting statute, the suspected shoplifter must be released as soon as the goods are recovered. The merchant has no right to detain the person until the arrival of a police officer who can make an arrest. See Note “The Merchant, the Shoplifter and the Law,” 55 Minn.L.Rev. 825, 848-49 (1971).

On the other hand, SuperX and Rowland argue that the purpose of the shoplifting statute would be defeated if the merchant were required to release the shoplifter as soon as the goods were recovered. If the identity of the shoplifter were not known, the shoplifter might be able to escape prosecution. Under KRS 433.236(2), a police officer may arrest without a warrant for a misdemeanor not committed in his presence on the basis of probable cause to believe that the person has committed larceny in a retail or wholesale establishment. Probable cause would be supplied by information from the merchant. Therefore, it is argued that the merchant has a right to detain the suspected shoplifter until the arrival of the arresting police officer. A similar statute was so construed in Cooke v. J. J. Newberry & Co., 96 N.J.Super. 9, 232 A.2d 425 (1967). However, the New Jersey statute also provided that a merchant would not be liable for causing the arrest of a person for shoplifting when the merchant had probable cause for believing that the person arrested had committed the offense. No such provision exists in the Kentucky statute.

In Jacques v. Sears, Roebuck & Co., 30 N.Y.2d 466, 334 N.Y.S.2d 632, 285 N.E.2d 871 (1972), a store security officer stopped a suspected shoplifter as he was leaving the store. The suspect was detained in the store’s security office for approximately twenty minutes until the arrival of city police who took the suspect to police headquarters. The New York shoplifting statute provided that a merchant had a right to detain a person in a reasonable manner for a reasonable time for “the purpose of investigation or questioning as to the ownership of any merchandise.” In holding that the store was not liable for detaining the suspect until the arrival of the police, the New York Court of Appeals stated:

“Though not spelled out in section 218 of the General Business Law, the merchant’s defense for reasonable detention extends, as a matter of implementing the policy of the statute if not as a matter of logical necessity, to the turning over of the suspect to the police under reasonable circumstances and the execution of an information or complaint necessary for his initial arraignment.” 334 N.Y.S.2d at 640, 285 N.E.2d at 876.

The New York statute specifically authorizes detention for purposes of investigation. The Kentucky shoplifting statute does not.

However, if a merchant has the right to detain a person in order to recover his property, common sense dictates that the merchant should make some investigation of the facts during the period of detention. Certainly, the merchant will want to verify the person’s name and address. With this information, the merchant may find that the person has an extensive shoplifting record with the police. In other cases, the merchant may be able to ascertain that the person’s failure to pay for the goods was due to inadvertence rather than criminal intent. Even if the merchant decides to have the person arrested, the information received during the investigation may justify releasing the person rather than continuing to detain the person until the arrival of the police. If the person has substantial ties in the community, the merchant may determine to file a complaint under RCr 2.02 rather than having the person arrested without a warrant. On the other hand, the person’s refusal to state his or her name can justify the merchant’s continued detention of that person. Delp v. Zapp’s Drug and Variety Stores, 238 Or. 538, 395 P.2d 137 (1964). We conclude that a merchant’s limited privilege to recover goods believed to have been stolen also includes the privilege to detain the person for the time necessary to make a reasonable investigation of the facts. See section 120A of the Restatement of Torts (2d).

In this case, we do not need to decide whether the shoplifting statute authorizes the merchant to detain a suspect after the goods have been recovered and any investigation completed when the sole purpose of the continued detention of the suspect is to permit an arrest by the police. Assuming that there was no valid arrest without a warrant pursuant to KRS 433.-236(2) when Mrs. Rice was taken into custody at the drugstore by the city policemen, it is clear that there was a valid arrest of Mrs. Rice pursuant to a warrant at the police station. Taking into consideration the distinction between an action for false imprisonment and an action for malicious prosecution, we conclude that Mrs. Rice is entitled under the evidence to no more than nominal damages for the period of her detention after the goods were recovered and before she was arrested at the police station.

The distinction between actions for false imprisonment and actions for malicious prosecution was clearly set forth in Roberts v. Thomas, 135 Ky. 63, 121 S.W. 961, 21 Ann.Cas. 456 (1909):

“There is a well-marked distinction between an action for false imprisonment and an action for malicious prosecution. An action for false imprisonment may be maintained where the imprisonment is without legal authority. But, where there is a valid or apparently valid power to arrest, the remedy is by an action for malicious prosecution. The want of lawful authority is an essential element in an action for false imprisonment. Malice and want of probable cause are the essentials in an action for malicious prosecution.”

See also Prosser, Law of Torts § 12 at 49 (4th ed. 1971). From the point in time when Mrs. Rice was lawfully arrested pursuant to the warrant, her detention could no longer be considered unlawful. After her arrest pursuant to the warrant, Mrs. Rice had only one possible claim for relief, an action for malicious prosecution. F. S. Marshal Co. v. Brashear, 238 Ky. 157, 37 S.W.2d 15 (1931).

A wrongful detention giving rise to an action for false imprisonment could be followed by an arrest which could be the basis for an action for malicious prosecution. See Ira v. Columbia Food Co., 226 Or. 566, 360 P.2d 622, 86 A.L.R.2d 1378 (1961). However, in the present case, Mrs. Rice neither pled nor proved that the criminal charges against her had been finally terminated in her favor. In fact, there never has been a trial of her subsequent indictment. In the absence of a favorable final disposition of the charges, Mrs. Rice could not maintain an . action for malicious prosecution. Van Arsdale v. Caswell, Ky., 311 S.W.2d 404 (1958).

Under the instructions given by the trial court, the jury was directed to return a verdict for Mrs. Rice if they believed she was detained “without authority of law” after the goods had been recovered from her even though the jury believed from the evidence that Rowland had probable cause to believe that Mrs. Rice had unlawfully taken the goods. The jury was also instructed to return such sum in damages as they found would “fairly and reasonably compensate her for being deprived of her liberty, for any impairment of her health, for any suffering, and for any shame, humiliation and mortification resulting directly from the affair.” Trial counsel for Super X and Rowland objected to both instructions on the grounds that any recovery for false imprisonment should be limited to the period of time between the recovery of the goods and the lawful arrest of Mrs. Rice. The objection was valid; the instructions were prejudicially erroneous. It is likely that the astronomical verdict in this case is attributable in part to this error in the instructions.

Furthermore, we conclude that the evidence establishes that Mrs. Rice did not suffer any substantial damages from any false imprisonment. By her own estimate, she was detained at the drugstore prior to the arrival of the city police for no more than twenty-five to thirty minutes. According to Mrs. Rice, the trip to the police station took “some five to eight minutes.” She estimated that Mr. Rowland arrived at the station with the warrant some five to fifteen minutes afterwards. By her own estimate, the maximum period of her detention prior to being arrested pursuant to the warrant was less than one hour. According to all of the other witnesses, the period of detention was substantially less.

Mrs. Rice received no physical injuries during her detention. Mrs. Rice was touched only one time during her detention. She testified:

“A He put his hand on my shoulder and said, ‘Come back to the back with me, ma’am.’
Q57 Just put his hand on your shoulder? A Yes.”

No vile language or violent threats were made against Mrs. Rice. She was offered the use of a telephone to call any person she wished. She was permitted to go out through the back of the store to avoid the embarrassment of seeing any friends or acquaintances while in the custody of the police.

Mrs. Rice’s chief complaints are attributed to the newspaper publicity given to her arrest and the subsequent court proceedings. Mrs. Rice testified:

“It was in the paper several times. The paper is what destroyed me, because there are so many people that read the paper that want to believe everything they read.”

There was nothing in the newspaper articles concerning her detention at the store. The newspaper articles dealt only with the proceedings following her arrest and could be relevant only to an action for malicious prosecution. We also note that Mrs. Rice offered no evidence of any special damages suffered by her as a direct result of the detention prior to the arrest.

Mrs. Rice’s claim for damages is based upon her mental suffering and embarrassment resulting from her detention. However, in an action for false imprisonment, she can recover damages only for that mental suffering and embarrassment endured during the period of less than one hour prior to her arrest. As stated by the Supreme Court of Wisconsin in Geldon v. Finnegan, 213 Wis. 539, 252 N.W. 369, 373 (1934):

“It is considered that, where one falsely imprisoned is subsequently properly charged with the commission of a felony, the time and degree of his humiliation, mental anguish, and sense of disgrace due to his false imprisonment which would naturally and probably result is shortened and modified by the humiliation, mental anguish, and sense of disgrace due to his lawful arrest, and so operates to mitigate the damages, both compensatory and punitive. Comisky v. Norfolk & Western R. Co., 79 W.Va. 148, 90 S.E. 385, L.R.A. 1917D, 220. While we find no case which goes that far, it is considered under the facts of this case that the damages on account of humiliation, mental anguish, and sense of disgrace were in fact terminated by plaintiff's lawful arrest. How can one continue to suffer on account of an unlawful arrest and confinement after he has been lawfully arrested and confined for a felony it is difficult to see.”

Considering all of the evidence, we are of the opinion that Mrs. Rice was entitled to no more than nominal damages for the period of her detention after the goods were recovered until she was arrested, together with her costs in the trial court. See Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949).

If the jury believed from the evidence that Mrs. Rice placed the three items on the checkout counter and made an effort to pay for them, then the jury could also find that Rowland did not have probable cause to believe that Mrs. Rice had taken the items unlawfully. If a reasonably prudent person would not have believed Mrs. Rice was shoplifting, then the original detention was unlawful. In such case, Mrs. Rice might be entitled to more than nominal damages. However, it is evident that her damages were not substantial, and the jury’s award of $75,000 compensatory damages was clearly excessive.

One further issue must be considered. Even if Rowland did not have probable cause to believe Mrs. Rice was shoplifting, the record shows that he did, in fact, believe she was taking items from the store unlawfully without paying for them. Before Mrs. Rice ever approached the checkout counter, Rowland reported to Robertson that she was placing items in the Rose’s sack. The fact is uncontradicted that Rowland did find the makeup, lipstick and cologne in the Rose’s sack after Mrs. Rice left the checkout counter and that she had no sales receipt for those items. There being no evidence suggesting that Rowland did not in good faith suspect that Mrs. Rice had concealed some items in the Rose’s sack, we find nothing in the record to indicate that Rowland or any other SuperX employee acted in bad faith or that the treatment of Mrs. Rice was grossly in excess of what the circumstances reasonably required, as perceived by Rowland and the other store employees. Under the circumstances, Mrs. Rice was not entitled to an award of punitive damages. It was error for the trial court to submit that issue to the jury. Consolidated Sales Co. v. Malone, Ky., 530 S.W.2d 680 (1975); Jefferson Dry Goods Co. v. Stoess, supra.

The judgment of the circuit court is reversed with directions to grant a new trial. If on a retrial of the case the evidence is substantially the same, the trial court shall submit to the jury the following issues: (1) Whether there was probable cause to detain Mrs. Rice for the purpose of investigation and recovering any goods of the store; and (2) if there was not probable cause, the amount of any compensatory damages limited to the period of any unlawful detention. If probable cause to detain Mrs. Rice did exist, then she shall be awarded only nominal damages and her costs.

All concur.

      . “One who reasonably believes that another has tortiously taken a chattel upon his premises, or has failed to make due cash payment for a chattel purchased or services rendered there, is privileged, without arresting the other, to detain him on the premises for the time necessary for a reasonable investigation of the facts.”


author: HOWERTON, Judge.

text:
    EDWARDS AND WEBB CONSTRUCTION COMPANY, INC. and Williams-Crabtree Construction Company, Inc., Appellants, v. Mahala DUFF, Jean D. Rezek, Donald Duff and Janet Duff, Appellees.
    Court of Appeals of Kentucky.
    Aug. 19, 1977.

      Robert L. Milby, Hamm, Taylor, Milby & Farmer, London, for appellants.
    A. E. Cornett, Hyden, for appellees.
    Before HOWERTON, COOPER and REYNOLDS, JJ.
   HOWERTON, Judge.

This case involves the issue of damages due to blasting. A unanimous jury verdict awarded appellees, store owners, $80,000.00 against the appellants.

Appellants’ major arguments are that there existed only hearsay evidence as to the identity of the alleged tort-feasor, that the verdict was based upon vague, uncertain evidence of damage, and that the judgment was grossly excessive based upon the market value of the building.

Upon a review of the record, we find that there was sufficient evidence in Mahala Duff’s testimony to allow the determination that the appellants herein were the tort-feasors in this case. It is of interest to note that appellants’ attorney, in his closing argument (p. 57), concedes that his clients set off the blast. A complete review of the record reveals that at the trial the real dispute between the parties was damages. It should also be noted that appellants presented no direct evidence in the case, but simply relied upon cross-examination of ap-pellees’ witnesses and their motion for a directed verdict at the close of appellees’ case. We see no need to recount the evidence of the numerous other witnesses who testified to the shock wave which followed the discharge of a blast by appellants as they were engaged in a street improvement project in the city of Hyden.

Appellants attempted to have the testimony of Mr. R. R. Davidson stricken from the record. We believe that the court correctly overruled said motion, and therefore, appellants would not have been entitled later to a directed verdict. Davidson is a builder with over nineteen years experience in the construction business. He testified that it would cost $90,154.00 to repair the building in question. We believe that the evidence was of sufficient probative value and was admissible. Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 308 (1972). Appellants argue strenuously that the expert testimony of Davidson was vague in that he would not state unquestionably that each and every aspect of his estimate was necessary. A reading of the record shows that any uncertainty he did express was necessary because the extent of the damage could not be completely known until actual repair work was underway. It should be noted that the jury brought back a verdict of several thousand dollars less than Davidson’s estimate. The verdict was rendered after the jury viewed the building upon appellants’ motion.

Appellants claim that the judgment for $80,000.00 for repair was grossly excessive. Appellants buttress this argument by claiming that the market value of the building before being damaged was only $37,500.00. This was the amount of the tax assessment on the property. While appellees did not object to the admission of such evidence on cross-examination at the trial, it was pointed out that the owners of the building did not list this value themselves. Also, there was no evidence in the record of when the property was last evaluated for tax assessment purposes. Additionally, appellants argue that appellees’ testimony that the yearly rental income from the property was $3,000.00 is indicative of the building value.

Appellants’ real complaint regarding this latter issue appears to be with the instructions to the jury:

The court instructs the jury that if you believe from the evidence that at the time and place referred to in the evidence, the defendants, their agents, servants and employees, caused to be exploded, or discharged, explosives near the building of the plaintiffs as described in the evidence which caused and produced heavy and unusual concussions and vibrations of the earth and air around said building, and thereby unreasonably subjecting the plaintiffs’ property to substantial damage, then you will find for the plaintiffs such sum in damages as you may believe, from the evidence, as will enable them to restore said building to substantially as good condition as it was before the injury complained of, not to exceed the sum of $90,534.00, the amount demanded in the amended complaint. Unless you so believe, you will find for the defendants.

The appellants offered an instruction which would have limited recovery to the total value of the building. The court refused to give the instruction, and therein we find reversible error. The instruction given by the trial court permitted recovery for whatever amount would be required to repair the building. Certainly, if one has a $400.00 automobile and sustains damages that would cost $1,000.00 to repair, the vehicle is a total loss and an insurer, or tort-feasor, must pay only the total value.

Kentucky Stone Company v. Gaddie, Ky., 396 S.W.2d 337, 340 (1965) reads, “. . . (T)he measure of damages in this type case [blasting] is the cost of repair, if repair may be readily accomplished — or, if not, then the difference in market value before and after the alleged damage.”

In a case such as this, (1) if the property can be reasonably repaired, the measure of damages is the reasonable cost of repairs, or (2) if repairs cannot be reasonably made, the measure of damages is the difference in market value of the property before and after the injury. A test of whether or not property may be reasonably repaired is whether or not the cost of repair exceeds the difference in market value before and after the injury. If the cost of repairs (or rebuilding) exceeds the difference in the market value of the property before and after the injury, then such cost is manifestly unreasonable and the building may not be reasonably repaired at the expense of the tort-feasor, although repair is technically possible. See also, Kentucky Traction and Terminal Co. v. Bain, 161 Ky. 44, 170 S.W. 499 (1914); Kentucky & West Virginia Power Co., Inc. v. Kilburn, 304 Ky. 635, 201 S.W.2d 896 (1947); Baker Pool Company, Inc. v. Bennett, Ky., 411 S.W.2d 335 (1967); and, State Property and Buildings Commission v. Miller Construction Company, Ky., 385 S.W.2d 211 (1964).

Evidence of market value was weak and somewhat inconclusive, but so was the evidence of repair cost. The evidence presented on cross-examination did have some probative value of total worth, even if not of a difference between the before and after value. We cannot say that this case was presented without any evidence of value. To limit recovery to what the jury might determine to be total value, which was all the appellants attempted to prove, would have been a greater amount than would have been the difference in values before and after the blast. The court should have instructed the jury to at least limit recovery to total fair market value, if the cost of repair would exceed the value.

We cannot say that an award of $80,-000.00 is so shocking as to be clearly excessive, but if a jury had been given an opportunity to consider the total value rather than only the repair cost, the award might have been substantially different. The proof and contention of the appellants was obviously that the building was a total loss under the circumstances. They sought no consideration or credit for salvage and land value less clean-up costs. The jury was permitted to view the premises, and could have considered value as well as repair costs. It was reversible error for the trial court to refuse to include a limit of value in its instruction, as was requested by the appellants.

The parties to this appeal are in agreement that a technical error exists in the judgment rendered. The trial court is therefore directed to modify its award of interest to a limit of 6% per annum.

The judgment is reversed and the case is remanded to the circuit court for a determination of damages consistent with this opinion.

All concur.


text:
    Mrs. Anthony J. A. BRYAN, Mr. and Mrs. John W. Greathouse, Sidney N. Remmele, D. V. M., Mr. Ben P. Walden, Parrish-Walden Corporation, and William W. Lockridge, D. V. M., Appellants, v. SALMON CORPORATION, White, Range & Range, Inc., Owen L. Range, Agent for White, Range & Range, Inc., and Salmon Corporation, Woodford County Fiscal Court, Woodford County, Kentucky, Matt T. Blackard, Woodford County Judge, Harold Carmickle, James L. Moore, Jr., Carl Whalen, Richard Devers, Vernon T. Howard, Charles F. Smith, Lewis H. McDannold, as Members of the Woodford County Fiscal Court, Appellees.
    Court of Appeals of Kentucky.
    Aug. 12, 1977.

      Taft A. McKinstry, Thomas E. Harris, Fowler, Rouse, Measle & Bell, Lexington, for appellants.
    C. Richard Doyle, Gess, Mattingly, Saunier & Atchison, Lexington, Mark E. Gorm-ley, Versailles, for appellees.
    Before HOWERTON, GANT and HOGGE, JJ.
   HOWERTON, Judge.

This is an appeal from a judgment of the Woodford Circuit Court requiring the Woodford County Fiscal Court to grant a zone map change. The appellants are property owners who object to the zone change and who were intervening defendants in the circuit court. The fiscal court and its members are named as appellees, along with the property owners who had originally requested the amendment. However, it appears that Clay Waite has been omitted by the appellants as an appellee. Mr. Waite is also a member of the fiscal court, chairman of the court’s planning and zoning committee, and the individual who testified by deposition for the circuit court proceeding regarding the manner by which the fiscal court made its own findings. Mr. Waite was a defendant in the action in the circuit court.

The property in question consists of 28.3 acres located at the northern boundary of the corporate limits of the city of Versailles, Kentucky, and adjacent to Merewood Subdivision. The property is bounded on the northwest by U.S. Highway 62, where it fronts 602 feet across from the Pin Oak Farm. The Pin Oak Farm is zoned and used for agricultural purposes and is the only property owned by any appellant in the vicinity of the property to be rezoned. The property is bounded on the southwest by Unit 3-D of Merewood Subdivision, which is zoned for single family residential uses and which is completely developed with streets and homes. The 28.3 acres is bounded on the northeast and southeast by Mereworth Farm, which is owned by the appellee Salmon Corporation and which is zoned and used for agricultural purposes. It has been proposed that the subject property be developed as a residential subdivision as an extension to the existing Mere-wood Subdivision.

The 28.3 acres was zoned for agricultural uses (A-l) at the time the zone change application was filed. A 500 ft. strip of the property adjacent to U.S. 62 was also classified as “Old and Historic Residential-1” (OHR-1). Furthermore, approximately 10 acres of the southeastern portion of the subject property is within an area which was proposed for residential development in the Comprehensive Plan for Woodford County. It is only the center section of the 28.3 acres that was originally conceived to remain in an agricultural use. Since the comprehensive plan was prepared, the residential growth in the county has occurred in the general area of the property involved in this litigation. In 1973, Unit 3 of Mere-wood Subdivision was rezoned and then developed as a residential subdivision. When Unit 3 was added to the subdivision, drainage facilities within the area were sized to accommodate storm water from the adjoining property and water and sanitary sewers were also extended to the property in question. Contrary to the original land use plan for the county, the pressure for residential growth has been to the northern side of Versailles, rather than to the south and southwest of Versailles.

The planning and zoning commission conducted a trial type public hearing on April 10, 1975 and complied in full with the requirements for due process. The commission found that there had been major changes of an economic, social or physical nature within the area involved which were not anticipated in the community’s comprehensive plan and which have substantially altered the basic character of the area. That finding was based in part upon the facts heretofore set out. The commission also found that the application for a zone change from A-l to “Low Density, Single Family Residential” (R-l) was in agreement with the comprehensive plan because urban services and utilities could be feasibly extended to serve the property; because the proposed development would assist in satisfying the anticipated requirements for 344 acres of additional residential land; and, because the comprehensive plan, and particularly the land use map, indicate that approximately 50 percent of the land in question was already designated for residential use. The planning and zoning commission therefore recommended approval of the zoning change to the Woodford County Fiscal Court.

On July 26, 1975, a resolution was presented to the Woodford County Fiscal Court to approve the recommendation of the planning and zoning commission. The resolution was defeated by a vote of 5 to 3. Pursuant to a request to reconsider, the fiscal court again declined to adopt the recommended change and adopted its own findings of fact without an additional hearing or submission of evidence. The property owners seeking the zone change appealed to the Woodford Circuit Court.

The circuit court reviewed the entire record, as compiled by the planning commission and the fiscal court, together with the deposition of a member of the fiscal court regarding the manner of review and the consideration, or lack of it, given to the recommended zone change. The circuit court found that the requested rezoning was in substantial compliance with the comprehensive plan of Woodford County; that the existing zoning classification was no longer appropriate because of growth trends in the area; that the growth in the area of the subject property was not anticipated by the comprehensive plan which anticipated more residential growth in other parts of Woodford County, and that the availability of urban services and roads in and around the property reinforced the conclusion that there was a compelling need for the rezoning. The circuit court therefore declared that the action of the Wood-ford County Fiscal Court, in denying the requested zone change, was arbitrary, and ordered that the fiscal court amend the official zoning map accordingly. The order and judgment were entered on September 20, 1976.

The order of the circuit court did not specify a particular zone for reclassification, but on November 13, 1976, the fiscal court rezoned the property in question to R-l, which is the most restrictive classification available for change, and which was the classification requested by the applicants. The Notice of Appeal was filed on November 24,1976. The action taken by the fiscal court on November 13,1976, is not a part of the official record and file in this case, but it is a given fact in the briefs of the appellants and the appellees.

The issues presented to us in this case are basically the same as those recently decided by this Court in McKinstry v. Wells, Ky.App., 548 S.W.2d 169 (1977). The questions are whether or not the circuit court was correct in holding that the fiscal court acted arbitrarily when it rejected the recommendations of the planning and zoning commission, and whether or not the circuit court was correct in directing the fiscal court to approve a zone map amendment.

In McKinstry, supra, this Court held that the circuit court correctly found that the fiscal court acted arbitrarily in rejecting the recommendations of the planning commission, but reversed the circuit court for going too far by ordering the fiscal court to change 100 acres of A—1 zoned property to a combination of R-1, R-4, CO-1 and B-1 zoning. This Court instructed the circuit court to direct the fiscal court to comply with one of the following alternatives: (1) To follow the recommendation of the planning and zoning commission; (2) To review the record made before the planning and zoning commission and make its own findings of adjudicative facts from that record; or, (3) To hold a trial type hearing and make a finding of adjudicative facts. The opinion in McKinstry provides an excellent summary of the Kentucky law as it relates to zone map amendments, and it provides an interpretation of such significant statutes and cases, as KRS 100.213; City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971); and, City of Louisville v. Kavanaugh, Ky., 495 S.W.2d 502 (1973), which are dispositive also of the issues in this action.

We are presented with some factual differences, however, and these must be considered. The zoning change recommendations in McKinstry not only came from the same planning and zoning commission, as did the recommendations in this action, but also, they were rejected by the same fiscal court on the same day. There are two major differences that distinguish this case from the McKinstry case. First, the fiscal court did make its own findings of fact during a reconsideration of this proposal at the request of the attorney for the applicants. The second basic difference is that the requested zone change in this action was for a single change and from an agricultural zone to the most restrictive “Low Density, Single Family Residential” zone. Also, for various reasons, the proposed change was found by the planning commission and the circuit court to be in compliance with the comprehensive plan.

In McDonald, supra, the Court indicated that procedural due process required a legislative body to do one of the three things which were ordered in the McKinstry case as hereinbefore described. The Woodford County Fiscal Court had not complied with any of the procedural requirements in the McKinstry ease, and this Court had no problem in determining that its action was arbitrary, as had been found by the circuit court. In this case, the fiscal court did, ultimately, make its own findings of fact, and we must consider these findings before agreeing or disagreeing with the conclusion of the circuit court that the fiscal court had acted arbitrarily.

We have reviewed the entire record and conclude that the circuit court correctly found the action of the fiscal court to be arbitrary. The judge had the record of the planning commission, the findings of the fiscal court and the deposition of Clay Waite, a member of the fiscal court. It is apparent from the testimony of Mr. Waite that the members of the fiscal court were unfamiliar with the record of the planning and zoning commission. The findings of the fiscal court could not have been based upon an actual review of such record. The evidence also indicated a question as to how and why the findings of fact were prepared for the fiscal court and subsequently made a part of the record.

The findings themselves fall into one of three categories, none of which would have justified rejecting the recommendation of the planning commission. A total of fifteen specific findings were incorporated by reference into the minutes of the fiscal court. We have reviewed all of them in relationship to the record and the applicable law as found in McDonald and Kavanaugh, supra, and KRS 100.213, as well as McKinstry, supra. We will not list each finding in detail, but will summarize the situation as follows: Findings # 1, 2, 3, and 13 are supported by the evidence, but none constitute reasons for denying the recommended change. Finding # 13, for example, concluded that the comprehensive plan was appropriate when adopted. Findings # 4-14 (except # 13) are either not supported by the evidence in the record, or they would have to be classified as legislative facts rather than adjudicative facts (see, McKinstry, 548 S.W.2d at p. 173), or they are otherwise irrelevant to a zoning change. The findings related to such items as traffic, surface water, a possible “green belt” some day, the incompatibility of children and dogs with agricultural uses, conserving values of surrounding property, pressure for future changes, and the error of a prior change. Finding # 11 concluded that the property to be rezoned was beyond the “logical cut-off point in the original comprehensive plan”. Does a “logical cutoff point” in a comprehensive plan remain applicable when one demonstrates that a specific parcel of property justifiably needs relief from the plan? We think not.

Finding # 15 contained the ultimate finding that there had been no changes in the area of an economic, social or physical nature which were not anticipated in the original comprehensive plan. This conclusion totally ignores the evidence in the record. The circuit judge was clearly justified in concluding that even though the fiscal court had attempted to comply with due process requirements by adopting findings of fact, that it had nevertheless acted arbitrarily and improperly. The circuit court was also justified in making its own findings and conclusions which reaffirmed the planning and zoning commission and added an additional finding that a compelling need existed for the rezoning. The opinion of the circuit court was supported by the record and was not clearly erroneous.

We now turn to the question of whether or not the circuit court properly disposed of the case by ordering the fiscal court to rezone the property.

Before a zone map may be amended, KRS 100.213 requires a planning commission or the legislative body having jurisdiction over the matter to make one of the following findings: (1) That the map amendment is in agreement with the community’s comprehensive plan; (2) That the original zoning classification given to the property was inappropriate or improper; or (3) That there have been major changes of an economic, physical or social nature within the area involved which were not anticipated in the community’s comprehensive plan and which have substantially altered the basic character of the area. The planning commission found items (1) and (3) of the aforesaid requirements to be appropriate.

The major changes which had not been anticipated when the plan was adopted were the amount of growth in the vicinity, the demand for additional single family housing, and the development of Unit 3 of Merewood Subdivision with the sizing and extension of storm and sanitary sewers to the property in question. Agreement with the plan was found in the fact that approximately 50% of the 28 acres was designated for residential uses. Other appropriate factors were that the concept of contiguous development and extension of urban services in urban areas would be consistent with the energy conservation requirements and objectives set forth in the comprehensive plan. Also, the plan indicated that additional housing would be required in the same general directions as housing had been developed in the past and that approximately 344 acres of additional housing would need to be developed.

The comprehensive plan is extremely important, and it must not be treated lightly or ignored in considering applications for zone changes. It is a plan for the orderly growth of an area, and property owners must be able to rely on it when making investments in real estate and for the protection of land values. But, a comprehensive plan is a “guide rather than a strait-jacket”. Ward v. Knippenberg, Ky., 416 S.W.2d 746 (1967).

KRS 100.213 provides for a change if one of the three situations is found to exist. In this case, two of the criteria appear to have been met. What is satisfactory to meet the requirements must be a value judgment based on the facts of each case within the framework of the statutes and the appropriate decisions and interpretations rendered by the court.

In Kavanaugh, supra, the Court affirmed an order of the circuit court requiring the Louisville Board of Aldermen to rezone property from R-5, single family, to R-6, multi-family. The requested change had been found to be in compliance with the comprehensive plan which called for the area to be used for multi-family residential purposes. Even though rezoning is a legislative matter rather than a judicial one, the order in Kavanaugh was not considered to be a de novo determination that the property must be rezoned in a particular manner. The circuit judge merely pronounced the result that the record required. (Supra at p. 506) The change was to the next and most restrictive multi-family classification. The circuit court had found a compelling need for the rezoning, as had been required in McDonald, supra.

We have the same general situation in this case. The circuit judge found a compelling need to rezone the property, and that the legislative body had arbitrarily refused to rezone the property according to the recommendation of the planning commission. The R — 1 zone was the next and most restrictive zone. There may be a question relating to the finding of agreement between the comprehensive plan and the new zone, especially since the land use portion of the plan shows only 50% of the tract as being designated for residential use. The other portions of the plan may be, and were, considered in determining the necessary agreement. The statute does not specify what must be or limit what may be considered.

In addition, however, both the planning commission and the circuit court found that there had been economic, physical and social changes which had not been anticipated when the comprehensive plan was prepared. The changes found by the court dictated the compelling need. What is a “compelling need” must also be determined by the circumstances of each case. McDonald, supra; Fiscal Court of Jefferson County v. Stallings, Ky., 515 S.W.2d 234 (1974); City of Bowling Green v. Hunt, Ky., 516 S.W.2d 647 (1974); and, Kavanaugh, supra. Here we have a housing shortage, a feasible way to extend urban services, and a demand for housing in the area.

We find the factual situation in this case to be distinguishable from the situation in McKinstry, supra. The circuit court had the authority to require a rezoning under the authority of Kavanaugh.

We find no reversible error and therefore affirm the opinion and order of the circuit court.

ALL CONCUR.


author: GREENHILL, Chief Justice.

text:
    POLK COUNTY et al., Petitioners, v. TENNECO, INC., Respondent.
    No. B-6278.
    Supreme Court of Texas.
    June 22, 1977.
    As Corrected On Denial of Rehearing July 20, 1977.
    E. L. McClendon, Jr., Livingston, Elvin E. Tackett, Bedford, for petitioners.
    Reynolds, White, Allen & Cook, Stanley B. Binion, Houston, for respondent.
   GREENHILL, Chief Justice.

This tax suit was filed by Tenneco, Inc., against petitioners Polk County, the County Tax Assessor-Collector, and the County Board of Equalization. Tenneco sought, among other things, an injunction and a writ of mandamus to compel the defendants to set aside the 1975 ad valorem tax assessment of Tenneco’s pipelines lying within Polk County. Trial was to the court, which rendered judgment that Tenneco take nothing. The court of civil appeals reversed that judgment and vacated the County’s assessment of Tenneco’s pipelines for the year 1975. 546 S.W.2d 63. We granted the writ of error because the court of civil appeals equated the net book value of the pipelines with the market value of the pipelines. It is our view that it erred in doing so; and accordingly, we reverse its judgment. The cause is remanded to that court for the consideration of points not heretofore ruled upon.

Tenneco, through its Tennessee Gas Pipeline Division, owns and operates an interstate natural gas transmission system. Underground gas pipelines make up a major part of this system; and portions of three of these pipelines are located in Polk County, Texas. These three pipelines run parallel through the county and total approximately 61.90 miles in length. Their size, age, location and original costs are undisputed, as is the fact that they comprise .198 percent of the value of Tenneco’s entire gas transmission system.

For the years 1970 through 1974, the county’s tax plan was to tax property in the county on the basis of 17 percent of market value. During those years, Tenneco rendered its pipelines to the county at a value of $534,830. The county accepted these renditions and taxed the pipelines on that value, and Tenneco paid the taxes so levied without protest.

In 1975, the County Commissioners’ Court decided to change the assessment ratio for the 1975 tax year. The court determined that property would be assessed at 25 percent, rather than 17 percent, of market value for county tax purposes. In order to increase the valuation of Tenneeo’s property to reflect the increased assessment ratio, the Commissioners’ Court, sitting as the County Board of Equalization [hereafter called the Board], multiplied Tenneco’s 1975 rendition of $534,830 by a factor of 1.47. The result was an assessment of Tenneco’s pipelines at $786,220 for the 1975 tax year.

Upon learning of the Board’s action, Ten-neco instituted this direct attack by filing suit to set aside the increased assessment. The Board thereupon agreed to vacate its previous assessment and to reconvene and hear evidence on the market value of Ten-neco’s pipelines. The hearing was held, and both sides put on witnesses who gave their opinions of the pipelines’ market value. After hearing the evidence, the Board unanimously agreed to assess the pipelines at $786,220. Tenneco then continued with this suit, which had been postponed pending the outcome of the Board hearing.

Articles 7211 and 7212 are the statutory bases for the authority of boards of equalization to increase renditions and to equalize assessments. Article 7211 provides that when an assessor has increased a taxpayer’s rendition, and the taxpayer objects, the county commissioners’ court “shall hear evidence and determine the true value of such property. . . .” Article 7212(A) authorizes boards of equalization to increase or diminish property valuations if satisfied that those valuations are not in accordance with the laws of the state. The statute further provides:

[W]hen any assessor in this State shall have furnished the said Board with a rendition as provided for in the preceding Article it shall be the duty of such court to call before it such persons as in its judgment may know the market value or true value of such property as the case may be by proper process, who shall testify under oath the character, quality, quantity of such property as well as the value thereof. Said court after hearing the evidence shall fix the value of such property in accordance with the evidence so introduced and as provided in the preceding Article and their action in such case or cases shall be final [Emphasis added].

Because the statutory language is clear that valuations made by boards of equalization “shall be final,” and because decisions made by the boards are quasi-judicial in nature, Bernhardt v. Port Arthur Independent School District, 159 Tex. 488, 324 S.W.2d 163 (1959), State v. Houser, 138 Tex. 28, 156 S.W.2d 968 (1941), the courts of this state will not set aside board valuations absent compelling circumstances. On the other hand, the boards do not possess absolute discretion in valuing property; they must follow both constitutional and statutory directives. See, e. g., Article V, Sections 1 and 20 of the Texas Constitution, and Articles 7174 and 7212.

Perhaps the most quoted statement of these ideas is found in State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 (1954). This Court there stated:

It is now well settled that the assessment of property for tax purposes is a quasi-judicial function of boards of equalization and that no attack on valuations fixed by such boards can or will be sustained in the absence of proof of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation. [citing cases]. Moreover, when their official action is attacked it will be presumed that such boards discharged their duties as public agencies according to law and acted in good faith, [citing cases]. 265 S.W.2d at 572-73.

Tenneco, therefore, assumed a heavy burden in attempting to set aside the Board’s valuation of the pipelines.

The principal arguments made by Tenne-co in the trial court were that the Board’s assessment of the pipelines at $786,220 was grossly excessive and, alternatively, that the assessment was actually and substantially discriminatory because other property in the county was assessed at a lower percentage of market value. The basis of both of these arguments was Tenneco’s allegation that the market value of its pipelines in Polk County was $2,139,320. If that figure was accurate, then Tenneco’s 1975 rendition of $534,830 was 25 percent of market value; and it was argued that the Board’s assessment of $786,220 was therefore “grossly excessive.” Similarly, if Ten-neco’s market value figure was accurate, then the Board’s assessment of $786,220 was approximately equal to 37 percent of market value. Since it was undisputed that the county’s tax plan was to assess all taxable property in the county at 25 percent of market value, then Tenneco’s property was argued to be subject to an unequal and discriminatory assessment ratio. The defendants, on the other hand, contended that the market value of Tenneco’s pipelines was $3,144,880. If that was the true value, then the Board’s valuation was neither grossly excessive nor unequal and discriminatory.

It is therefore evident that the controversy between the parties centered on the question of the market value of Tenneco’s pipelines. When the question of market value is central to the taxpayer’s claim, as here, that question is one of fact for the fact finder. The questions of gross excessiveness and of substantial discrimination, however, are ones of law for the court. The court must decide as a matter of law whether the assessment by the taxing authority was so excessive or so discriminatory as to warrant the setting aside of that assessment. Cf. Whelan v. State, 155 Tex. 14, 25, 282 S.W.2d 378, 385 (1955).

In this case, the questions of substantial discrimination and gross excessiveness were not briefed by the parties. We therefore decline to decide whether Tenneco would have been entitled to the relief sought even had it been able to prove its allegation that the market value of its Polk County pipelines was $2,139,320. In’view of the disposition we make of this case, however, we believe it would be a pertinent inquiry by the court of civil appeals on remand. In considering the question, the court may find helpful those cases which have involved allegedly unequal and discriminatory assessments, e. g., Bernhardt v. Port Arthur Independent School District, 159 Tex. 488, 324 S.W.2d 163 (1959), Dallas County v. Dallas National Bank, 142 Tex. 439, 179 S.W.2d 288 (1944); and those cases which have decided whether assessments in excess of market value were grossly excessive. See City of Waco v. Conlee Seed Co., 449 S.W.2d (Tex.1969) and cases cited therein.

The market value of Tenneco’s pipelines was highly contested at trial, and it was not an easy question to resolve. Segments of natural gas pipelines, such as those which lie in Polk County, are rarely sold; and their market value therefore generally cannot be determined by comparing the prices brought by sales of similar properties. This fact makes the assessment of pipelines by the taxing authority a difficult task, because market value is defined as “the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it ..” City of Austin v. Cannizzo, 153 Tex. 324, 334, 267 S.W.2d 808, 815 (1954). See also Article 7174, and State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). Thus, the “comparable sales” method of appraising property is of little use in valuing pipelines; and two other methods of appraisal must be used in assessing those properties. These two methods are the cost approach to value and the income approach to value.

The cost approach to value assumes that an informed purchaser of the property would pay no more than the cost of constructing a like property with the same usefulness as the property to be valued. Real Estate Appraisal Terminology 53 (1975). In using this method, the appraiser first estimates the cost of reproducing or replacing the subject property; he then subtracts accumulated depreciation and adds estimated land value to arrive at his value estimate. The method is usually a secondary approach to valuation and tends to set the upper limit of true market value. E. Johnson, Cost Approach to Value, Encyclopedia of Real Estate Appraising 37 (1959).

The income approach to value, on the other hand, proceeds on the premise that a buyer of income-producing property is primarily interested in the income which his property will generate. In simple terms, the approach involves estimating the future income of the property and applying a capitalization rate to that income to determine market value. Comment, The Road to Uniformity in Real Estate Taxation: Valuation and Appeal, 124 U.Pa.L.Rev. 1418 (1976). The capitalization rate may be defined as the rate of interest investors would require as a return on their money before they would invest in the income-producing property, taking into account all the risks involved in that particular enterprise. Fisher, Capitalization Rates, 25 Nat’l Tax J. 263 (1972). See also Real Estate Appraisal Terminology 33, 34, 67 (1975). The income approach thus involves an estimate of two variables, future income and the capitalization rate, which are used to find the market value figure. The more precisely the variables are estimated, the more accurate the market value estimate will be. Conversely, if the variables used are inaccurate, then the resulting market value figure will also be incorrect.

At the trial, both Tenneco and the county put on witnesses who used the cost and income approaches to valuing the pipelines, and who testified in detail about the procedures and variables which have been discussed above. Tenneco’s expert witness used both the cost and income approaches to determine the value of Tenneco’s entire gas transmission system. The value he obtained by using the cost approach was $1,205,600,000. Under the income approach, the witness used a future income estimate of $116,105,000. By dividing this income figure by a capitalization rate of 11 percent, he arrived at a valuation of $1,055,500,000 for the entire system. Since he believed that the income approach was more accurate than the cost approach, he gave it greater weight and valued the entire system at $1,100,000,000. Because the Tenneco pipelines lying in Polk County constituted .198 percent of the entire system, the value of the system was then multiplied by an “allocation factor” of .00198. The Tenneco witness thus concluded that the market value of the pipelines in Polk County was $2,178,000.

Polk County put on two value witnesses at the trial. The witness who testified as to the cost approach gave his opinion that the pipelines’ value was $4,614,780. This opinion was based upon a schedule which he had prepared and which purported to give reconstruction costs for various sizes of pipelines. The witness had applied the schedule to each segment of Tenneco pipeline in the county and had then subtracted depreciation to arrive at his value estimate.

The county’s witness who used the income approach was Mr. Edward Pritchard. His opinion of value was $3,116,585. Pritchard’s estimate of the income to be capitalized was $119,626,522; and his opinion of the proper capitalization rate was 7.6 percent. Capitalization of the income therefore yielded a value for the entire system of $1,574,033,184. The portion of that value allocable to the pipelines lying in Polk County was .198 percent, or $3,116,585.

The trial court found as fact that the market value of Tenneco’s pipelines in Polk County on January 1, 1975, was $3,144,880. Given this finding of value, the Board’s assessment of the pipelines at $786,220 was neither excessive nor discriminatory; and the trial court rendered judgment that Ten-neco take nothing.

Tenneco then appealed to the court of civil appeals on twenty-three points of error. Points nine and ten attacked the trial court’s finding of value on factual and legal sufficiency of the evidence. The no evidence argument was that the testimony at trial which tended to support the trial court’s finding of value was based upon an erroneous method of valuation, and that testimony therefore was legally insufficient to support the finding. The court of civil appeals agreed with Tenneco’s argument and rendered judgment vacating the Board’s assessment.

The court of civil appeals’ opinion does not discuss the evidence put on by the county relating to the cost approach to value. The opinion does, however, discuss the county’s evidence based on the income approach to value. The court noted that Pritchard, the county’s valuation witness who based his opinion of value on the income approach, had used a capitalization rate of 7.6 percent. In order to test the sufficiency of that capitalization rate, the court applied it to the net book value of Tenneco’s gas transmission system of $1,180,263,117. The court used this figure because it was undisputed at trial that net book value is the rate base on which the Federal Power Commission calculates the rates that interstate gas pipeline operators, such as Tennaco, may charge for their gas and services. If Tenneco were permitted a return of 7.6 percent on its net book value of $1,180,263,117, then it would have earned $89,699,997 in income. Because this income figure was insufficient to service Tenneco’s debt and preferred stock dividend obligations, the court concluded that the capitalization rate used by Pritchard was inadequate and that his use of the income approach was erroneous. It therefore sustained Tenneco’s no evidence point. Since there was no evidence to support the trial court finding of value, the court of civil appeals then apparently reasoned that Ten-neco’s evidence conclusively established the market value of the pipelines to be $2,178,-000. In reversing the trial court judgment and in vacating the Board’s assessment of $786,220, the court implicitly concluded that that assessment was grossly excessive or substantially discriminatory, or both.

The county and other defendants applied for a writ of error on the ground that the court of civil appeals erred in its test of the capitalization rate. They argue that by applying the capitalization rate of 7.6 percent to net book value in order to find income, the court implicitly assumed that net book value is equal to fair market value, and that the court of civil appeals’ holding was therefore erroneous. We agree.

Under the income approach to value, the future income of the property and the capitalization rate are estimated by the appraiser; and the value of the property is then determined by “capitalizing” the income estimate. In its test, the court of civil appeals estimated the value of the property and the capitalization rate to find income. Since the income figure thus produced was regarded as obviously inadequate, the court concluded that the capitalization rate was not valid. Logically, however, an equally reasonable explanation for the erroneous income figure produced by the test was that the value figure used by the court, that of net book value, was not accurate. By holding the capitalization rate to be invalid, however, the court implicitly held that the value estimate was accurate. Such a holding assumes the very question at issue in this case, that is, the market value of Ten-neco’s gas transmission system. The reasoning of the court of civil appeals, then, was erroneous unless the net book value of Tenneco’s gas transmission system is equal to its market value. For the reasons discussed below, we hold that it is not.

The net book value figure used by the court of civil appeals is the accounting figure representing the original cost of Tenne-co’s pipeline division utility plant plus the value of construction work in progress, less depreciation, amortization and depletion. It was undisputed at trial that this figure was not equal to market value. Tenneco’s expert testified a number of times that the net book figure was not necessarily equal to market value and that he did not contend that it was. The evidence showed that the net book value of the pipelines in Polk County was $842,798, but Tenneco contended the pipelines’ market value was $2,178,-000. Given these facts, and the definition of market value in City of Austin v. Cannizzo, supra, we hold that the court of civil appeals erred in equating net book value with market value.

Tenneco attempts to justify the use of net book value because the Federal Power Commission [FPC] regulates the rates that interstate gas pipeline operators may charge for their gas. The evidence at trial was that the FPC, in setting these gas rates, determines the income which the utility will be allowed to earn. The permitted income is found by multiplying a “rate base” by a “rate of return” figure. The rate base used by the FPC is the net book value of the utility’s gas transmission properties. The regulated utility’s income thus equals the product of its net book value and the FPC-allowed rate of return. See generally American Gas Association, Gas Rate Fundamentals 214r-226 (Rev.ed. 1969).

Tenneco argues that the court of civil appeals, therefore, properly multiplied Tenne-co’s net book value by Pritchard’s capitalization rate to find the hypothetical income figure. We disagree. There was, no showing at trial that the capitalization rate is equal to the rate of return allowed by the FPC; and such a showing is necessary in order for Tenneco’s argument to be valid. If the average investor would be willing to accept a rate of return lower than the FPC-allowed rate of return then he would be willing to pay more for the pipeline than its net book value. If the investor required a greater rate of return on his money than the FPC-allowed rate of return then he would offer less than net book value for the property. Only if the capitalization rate were equal to the FPC-allowed rate of return would the income approach estimate of market value be equal to the net book value of the property. Since there was no such showing below, we cannot equate the two.

For the reasons set forth above, we have concluded the court of civil appeals erred in holding that the method of determining value used by the county’s expert witness was inadequate as a matter of law. After reviewing the record, we have concluded that there was evidence tending to support the trial court’s factual determination of a market value of $3,144,880 for the pipelines. The county’s two expert valuation witnesses gave their opinions of values of $3,116,585 and $4,614,780 respectively. Both witnesses were cross-examined extensively by Tenneco’s counsel on the bases of their opinions, and it appears that the figures used by both witnesses were subject to question. For example, in applying the income approach, Pritchard’s estimate of future income was equal to Tenneco’s pipeline division’s net operating income for 1974. Also, his capitalization rate was equal to the five-year average of the return on total capital in the nation’s seven largest consolidated natural gas producers and pipeline operators. Further, the schedule used by the county’s cost approach witness did not differentiate between oil pipelines and gas pipelines, between intrastate pipelines and interstate pipelines, or among different soil characteristics. The county’s cost approach witness also declined to divulge the sources of information he used in compiling the schedule. These matters certainly reflect on the credibility of the county’s expert witnesses and the weight to be given their opinions by the fact finder. However, we decline to hold that the experts’ opinions were based upon methodologies or figures so inaccurate as to render those opinions legally insufficient evidence of value. The matters complained of by Tenneco go to the weight, rather than the propriety of, the evidence. See Texas Electric Service Co. v. Wheeler, 551 S.W.2d 341 (Tex.1977).

The judgment of the court of civil appeals therefore cannot stand on the basis of the previously discussed no evidence point. The court, however, did not consider the other points of error before it in reversing the trial court’s judgment. Of these unconsidered points of error, it appears that eight complain of the factual sufficiency of trial court findings and are thus within the exclusive jurisdiction of the court of civil appeals. We have therefore decided to remand the cause so that the court of civil appeals may review all of Tenneco’s points that were not disposed of on the earlier appeal.

The judgment of the court of civil appeals is reversed and the cause is remanded to that court for further proceedings.

      . See Tex.Rev.Civ.Stat.Ann. article 7206. All statutory references in this opinion are to Vernon’s Annotated Texas Civil Statutes unless otherwise indicated.

      . We do not have before us the question of whether the, use of fractional assessments by the county is consistent with Article 7174, which provides in relevant part: “In determining the true and full value of real and personal property the assessor shall not adopt a lower or different standard of value because the same is to serve as a basis of taxation.” See Yudof, The Property Tax in Texas Under State and Federal Law, 51-2 Texas L.Rev. 885, 898 (1973). Tenneco apparently chose not to make such an attack on the county’s tax plan. The argument is not made in Tenneco’s trial pleadings, nor was it briefed or presented to the court of civil appeals pr to this court by point of error, cross point, or counter point. It is, therefore, unnecessary for us to express an opinion on the propriety of the county’s use of fractional assessments; and this opinion should not be read as either approving or disapproving of the county’s plan in that regard.

      . For a critical examination of ad valorem tax suits in Texas and the sometimes insurmountable problems involved in those suits, see Yudof, The Property Tax in Texas Under State and Federal Law, 51-2 Texas L.Rev. 885-909 (1973). See also Comment, Remedies Available to a Victim of Wrongful Ad Valorem Property Tax Assessment, 33 Texas L.Rev. 1075 (1955).

      . Tenneco also alleged that the Board had adopted a fundamentally erroneous plan of assessment with no relation to market value by applying the 1.47 factor to Tenneco’s renditions, that it had been discriminated against by the Board’s intentional failure to revalue other properties in the county, and that it had been deprived of its asserted right to a hearing on the valuation question. Cf. Zavala County v. E. D. K. Ranches, Inc., 544 S.W.2d 484 (Tex.Civ.App.1976, no writ).

      . We do not mean to suggest that the rates the FPC allows an interstate gas pipeline to charge do not affect the market value of that company. The permitted gas rates affect the utility’s income, and income affects market value to the extent that an uncoerced purchaser considers income in deciding whether to purchase the company. We hold only that although a utility’s income may be dependant on net book value, that does not mean that net book value equals market value.