text:
    Cecil PETETT, Appellant, v. BOARD OF EDUCATION OF MONROE COUNTY, Kentucky, A Body Politic, James Graves, Superintendent of the Board of Education, and K.R. Crabtree, J.R. Comer, and Larry T. Ross, Members of the Board of Education, Appellees. BOARD OF EDUCATION OF MONROE COUNTY, Kentucky; James Graves, Individually and as Superintendent of the Board of Education; K.R. Crabtree, J.R. Comer, and Larry T. Ross, Individually and as Members of the Board of Education, Cross-Appellants, v. Cecil PETETT, Cross-Appellee.
    Court of Appeals of Kentucky.
    July 6, 1984.
    Rehearing Denied Sept. 7, 1984.
    Discretionary Review Denied Feb. 21, 1985.

      Philip I. Huddleston, Huddleston, Brothers & Duncan, Bowling Green, for appellant/cross-appellee.
    F.C. Bryan, Bryan & Fogle, Mount Sterling, for appellees/cross-appellants.
    Before COMBS, HOWARD and MCDONALD, JJ.
   McDONALD, Judge:

This appeal and cross-appeal involve the legality of a demotion given to a health coordinator, allegedly an administrative position. The demotion was obtained through the abolition of the previous position, and the appellant was demoted to the position of classroom teacher.

Findings of fact and conclusions of law with judgment were entered by the trial court. There was no subsequent motion made to alter or amend the court’s findings or judgment.

Cecil Petett served as health coordinator of the Monroe County Board of Education. As such he oversaw the correct record keeping of physical examinations and immunizations of the students, inspected the high school and four elementary schools for safety, advised the principals regarding health hazards, and filed frequent reports to the superintendent. Before the 1981-82 school year Petett, in addition to holding the position of coordinator of health, also served as director of transportation.

Prior to the school year in question Pet-ett was persuaded by superintendent James Graves to relinquish the director of transportation position. At the time Petett was receiving a salary of $20,800 for both positions. His salary remained the same after he relinquished the position, while the new director of transportation was hired at a salary of $28,000.

Petett asserts that his problems began when James Graves became superintendent of the Monroe County board on July 1, 1981. Graves began a campaign to demote Petett under the guise of financial restrictions of the school board budget. This financial tightening required the abolition of his position as health coordinator. Pet-ett maintains he could not be demoted without “cause” under K.R.S. 161.765. However, if his position was eliminated for fiscal reasons, and there were no other administrative positions available, then he would be required to fall back to his certified teaching position if he wanted to be employed at all.

While there was no direct proof of a personal vendetta by Graves against Pet-ett, Petett demonstrates by implication that there was a conspiracy against him by the following facts: (1) Graves ordered a base budget forecast, never before ordered in the history of the school system, which showed a financial strain upon the revenues of the school system for the upcoming school year. This forecast formed the basis of abolishing the position of health coordinator, outwardly for the sole purpose of saving money.

(2) During this time of tight money the real budget reflected $36,000 of interest earnings on an investment of $300,000 of idle cash, with $96,900 available for contingencies; a director of transportation was salaried at $28,000 and his previous position as elementary principal had to be filled for his replacement at a matching salary; $4,000 was spent for lights for a baseball field for the school which was not used at night; $6,000 was spent for a new computer; two additional teachers were hired for the board over the previous year and five principals’ salaries were raised $1,500, with teachers’ salaries increasing 5 percent across the board.

The tight money squeeze which caused the appellant’s demotion, thereby reducing his salary from $20,870 to $16,260, resulted in a savings to the district of $4,610. On the other hand, during this tight fiscal squeeze money was lavishly spread among the other employees. It was obvious to the appellant what was going on.

The trial court made these findings: (1) In the interest of a tight budget the superintendent assumed the title and some of the duties of health coordinator at no extra pay for the school system. (2) He delegated the remaining duties of that position to the principals of the various schools for performance without additional pay. (3) Because Petett did not have an administrative certificate, he could not be employed in an administrative position. (4) Petett’s certificate was for teaching, and the position that he held as health coordinator and director of transportation required no certificate. (5) There was no evidence of political retaliation against Petett. (6) The superintendent and board made other reassignments and refused to renew several limited contract teachers for economic reasons. (7) The Monroe County Public School System was in fact overstaffed, and local school funds were insufficient to pay the expense of the overstaffing. (8) The most significant expense item of the school system was the salary of the employees.

The trial court dismissed Petett’s complaint and concluded that the transfer of Petett to classroom teacher conformed with all the requirements of law and that the board was justified in its action.

Appellant’s first assignment of error is that the abolition of his administrative position and his demotion were without adequate notice or specification of charges and were therefore fundamentally illegal.

Snapp v. Deskins, Ky., 450 S.W.2d 246 (1970), impresses upon us that arbitrariness is the keystone to whether a work assignment transfer is valid. Superintendents and boards may not demote and transfer persons without a valid reason; to do so without justification amounts to arbitrary action. However, the appearance of no legitimate reason for transfer is not sufficient to invalidate the action where there is absent an inference of arbitrariness. Of most comfort to the appellant is Hartman v. Board of Education of Jefferson County, Ky.App., 562 S.W.2d 674 (1978), which involved the demotion of counselors for alleged budgetary reasons. This court found in that case that the notice of such demotions was without reasons whatsoever, which amounted to arbitrary action. We comment, however, in the present case, that Hartman was fully complied with by the Monroe County Board of Education.

What clearly strikes us is that our review is limited to a determination of whether the findings of fact are clearly erroneous. See Hart County Board of Education v. Broady, Ky.App., 577 S.W.2d 423 (1979). Because there existed evidence and inferences from evidence to support the trial court’s findings, we cannot, on appeal, disturb the findings. We will comment, though, that there was evidence on behalf of the appellant’s cause.

Next, the appellant contends that the abolition of his position and his demotion solely because of predictions made by the board and the superintendent based on an unreliable forecast were arbitrary and illegal.

Petett argues that the requirement of “cause” for demotion and due process necessitates that the charges be definite and certain. In this instance when one compares the cause of the demotion, i.e. a tight budget, with the amount of money spent by the school system, it is indicative that appellant’s demotion was arbitrary and without cause. Further, because appellant's work performance was not questioned, he should have been given notice and an opportunity at the hearing of the budget to pose alternatives to his demotion as possible cures for the tight budget.

The appellees argue that Petett has no standing to complain because he was not an administrator as that term is used and defined in K.R.S. 161.720(8). The only certification that Petett possessed was a teacher’s certificate. This issue is more pointedly addressed in appellees’ cross-appeal by the query: What is meant by “administrator”?

We get no help with this question from prior decisions; however, the overall statutory scheme of K.R.S. Chapter 161 will form the basis for our answer. It is agreed that a teacher must be certified before he is eligible to be an administrator. K.R.S. 161.720(8), which reads as follows, relates that an administrator is one whose position is so categorized by the statute:

The term “administrator” for the purpose of KRS 161.765 shall mean a certified employe, below the rank of superintendent, who devotes the majority of his employed time to service as a principal, assistant principal, supervisor, coordinator, director, assistant director, administrative assistant, finance officer, pupil personnel worker, guidance counselor, or school business administrator, or who holds a position in which he evaluates or supervises board employees or recommends personnel for employment or discharge. The term “administrator” shall also include those assistant, associate or deputy superintendents who do not fall within the definition of “superintendent” as set forth in subsection (7) of this section.

Therefore, being in a statutorily categorized administrative position is only one of the requirements: One must also be certified for that position by the State Board of Education.

First, let us discuss Petett’s argument, which runs contrary to o.ur current of thought. Petett argues that K.R.S. 161.-720(8) requires only that he be a “certified employe,” which he is as a teacher, and to hold a categorized position, which he did as health coordinator. These two requirements being satisfied, he argues, gives him the protection of K.R.S. 161.765, which provides for the procedure of demotion of administrative personnel. Petett asserts that as an administrator he was unlawfully denied the shield of the due process procedure afforded him under the statute.

In answer, we say that in Petett’s situation he would qualify in one requirement for holding an administrative position in that he was a certified teacher. The incidental requirements were also satisfied, such as the three-year on-job requirement, devoting full time to the position, and so forth.

We conclude Petett also qualifies in the next significant requirement, that being the categorization of the position he held as health coordinator. While the relevant statute, K.R.S. 161.720(8), describes “coordinator” without descriptive qualification, we are persuaded that “health coordinator” is a protected position within the statute because State Board of Education Administrative Regulation 704 KAR 8:010(17) specifically lists “school health coordinator” as a classroom position for administrative and special instructional services.

The last significant requirement for an administrative position, however, is not satisfied in Petett’s case. The one holding the described position is required to be certified by the State Board of Education. To us this requirement means that the “certified employe” under K.R.S. 161.720(8) must be certified as to the position held, i.e., a certified coordinator, not merely certified as a teacher and incidentally holding an administrative-type position. To express it in different terms, we believe the statute requires that the position itself be certificated and that the employee also be specifically certified for the position, before the due process provisions of K.R.S. 161.-765 are triggered.

We reach this conclusion because we believe uniformity requires it. K.R.S. Chapter 161 applies throughout the state, but we must also deal with 120 local school boards, all of which are autonomous to a degree. One such local board may create and designate a position as scheduling coordinator, another may have a curricula coordinator, and yet another may have some other type coordinator. The local boards may have intended to create an administrative position; nevertheless, in the overall scheme of things, it is provided through K.R.S. 161.030: “(1) The certification of all teachers and other school personnel is vested in the [State Board of Education].” (Emphasis ours.)

In conjunction therewith, K.R.S. 161.020 provides: “(1) No person shall be eligible to hold the position of superintendent, principal, teacher ... or other public school position for which certificates may be issued ... unless he holds a certificate of legal qualification for such position.” This review leaves us with the inescapable conclusion that while Petett held an administrative position, he was not certified as such by the State Board of Education, and was therefore not technically qualified for such position. Because he was not certified, his transfer from the position of health coordinator to teacher was made according to law, and his due process rights were not offended. We do not find appellees’ citation of Crawley v. Bd. of Ed. of Marion County, Ky., 658 F.2d 450 (6th Cir.1981), to be on point. That case dealt with a supervisor of transportation, a non-certified position, whereas in this case the position of health coordinator is a certified position. See 704 KAR 3:010(17).

Therefore, in answer to the question, “Who is an administrator?” we conclude that an administrator is one who (1) holds a position categorized as an administrative position pursuant to K.R.S. 161.720(8), or pursuant to approval by the State Board of Education of the position as a certified administrative position; and (2) is duly certified by the State Board of Education as an administrator.

For the reasons stated in this opinion, the judgment of the trial court is affirmed on direct appeal and the cross-appeal is dismissed.

All concur.


source: Caselaw Access Project

author: HOWARD, Judge.

license: Public Domain

text:
    Lesia BOWLING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 20, 1984.
    Discretionary Review Denied Feb. 21, 1985.

      Eleanore M. Garber, Appellate Public Advocate, Allison, Soreff & Garber, P.S.C., Louisville, for appellant.
    David L. Armstrong, Atty. Gen., Virgil W. Webb III, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, C.J., and HOWARD and HOWERTON, JJ.
   HOWARD, Judge.

Lesia Bowling appeals from a judgment of the Shelby Circuit Court entered on her plea of guilty to facilitation of escape, five years; facilitation of murder, five years; and promoting contraband, five years. The judgment ordered the sentences to run consecutively. Bowling contends that the trial judge should have ordered the sentences to run concurrently.

The Shelby County grand jury indicated Bowling on one count of complicity to murder, one count of complicity to first-degree escape, and one count of promoting contraband in the first degree. Prior to trial, the public defender and the assistant Commonwealth’s attorney engaged in plea bargaining negotiation by which it was agreed that if Bowling would plead guilty to facilitation of murder and escape and promoting contraband, plus testify against other individuals, the Commonwealth would recommend five years for each count, said sentences to run concurrently. The record indicates that, due to a later disagreement by counsel over the sentences running concurrently or consecutively, the trial court advised the public defender that the Commonwealth would abide by its promise to recommend concurrent sentences, but made it clear that the court was not bound to accept the recommendations.

Bowling entered guilty pleas to the three counts. At sentencing, the court imposed sentences of five years on each count to run consecutively. Bowling immediately moved to withdraw her plea of guilty, and the court sustained the motion. However, after further consultation with her counsel, Bowling withdrew her motion to withdraw her guilty plea, and accepted the fifteen-year total sentence. Bowling now brings this appeal. We affirm.

Bowling contends that the trial court erred by ordering the Commonwealth to perform according to its' agreement and then imposing a sentence in contravention of the Commonwealth’s recommendations. For support, Bowling relies on a portion of the court’s order of July 5, 1983, which accepted the guilty pleas, stating:

It appearing that there was a disagreement between the Commonwealth’s Attorney and the attorney for the defendant, as to the recommended sentence for the defendant, and the Court, being advised, and under the authority of Commonwealth vs. Workman, orders that the record reflect, in accordance with the bargaining of the parties, that the sentences herein run concurrently.

Bowling interprets this portion of the order as accepting the Commonwealth’s recommendation for concurrent sentences. As such, Bowling urges that the trial court could not later, at the July 26, 1983 sentencing proceedings, impose consecutive sentences.

However, the transcript of the sentencing proceeding clearly discloses the intent of the trial court in including this paragraph within the acceptance of the pleas. The court below was merely placing the plea bargain correctly on the record, in effect forcing the Commonwealth to make the recommendations as agreed. Thus, the court had not accepted any recommendation before the sentencing proceedings. Further, the trial court could not have accepted a sentence recommendation without consideration of a presentence report, pursuant to K.R.S. 532.050. The court below apparently had not given consideration to any such report at the time of the guilty plea, but relied heavily upon it at the time of sentencing. As stated in Misker v. Commonwealth, Ky.App., 576 S.W.2d 238 (1978):

The sentencing function of our courts on pleas of guilty is carried out by the judge. While the prosecutor and defense counsel, along with the defendant, may discuss and negotiate, they cannot impose sentence by agreement. Upon pleas of guilty, the purpose of this section [KRS 532.050] is clearly to furnish the court with an adequate background from which an evaluation of the defendant may be made, together with an assessment of the recommendation made by the prosecutor concerning the crimes with which the defendant is charged, and the sentence therefor.

The trial court, before accepting the guilty pleas, twice advised Bowling that the court was not bound by any recommendations. Bowling acknowledged this but still chose to plead guilty. After the sentencing did not go in step with Bowling’s expectations, the court allowed Bowling to withdraw her plea. Bowling then chose to reinstate the plea.

We cannot find any error in the procedure and thoroughness of the court below. It was made clear at every step of the proceeding that the recommendation of the Commonwealth was not binding on the court. As such, the judgment of the Shelby Circuit Court is affirmed.

All concur.


author: MILLER, Judge.

text:
    Charles Frederick GREEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Aug. 10, 1984.
    Discretionary Review Denied by Supreme Court Feb. 21, 1985.

      William M. Radigan, Asst. Public Advocate, Frankfort, for appellant.
    David Armstrong, Atty. Gen., and Joseph R. Johnson, Asst. Atty. Gen., Frankfort, for appellee.
    Before CLAYTON, McDONALD and MILLER, JJ.
   MILLER, Judge.

Appellant brings this appeal from a Schedule II controlled substance (dilaudid) conviction in the Fayette Circuit Court. KRS 218A.140 and .990. Sentence was enhanced under the provision of the first-degree persistent felony (PFO) statute. KRS 532.080. He complains of four errors in his trial which lasted from February 28 through March 2, 1983. Appellant complains: (1) that the evidentiary integrity of a “portion” of a pill admitted against him was lacking; (2) that evidence of “other crimes” was improperly admitted when some marijuana (not connected with the prosecution of this case) was inadvertently sent into the jury room, along with other exhibits; (3) that it was error for the court not to require a defense witness to take the stand, when the witness informed the court of his intention to invoke his self-incrimination privilege; and (4) that the results of the State Police lab’s testing of the “portion” of pill supposedly taken from appellant should have been suppressed, for reason the state testing lab unnecessarily, though innocently, consumed the entire sample in the testing process, thereby not giving the appellant an opportunity to perform his own analysis. The facts are these:

Just before noon on November 5, 1982, officers of the Lexington Police Department, aided by other officials, conducted a drug raid upon 435 Hawkins Avenue in that city. These premises were owned by William (Skinner) Clay and were known as a place for the sale of illicit drugs. The raid was based upon a warrant obtained with information furnished by an informant upon whom the police had secreted a recording device. The informant made a purchase an hour or so before the raid. At that time, the informant approached the premises and purchased one pill of dilaudid from a person named Gary Shanks. The purchase was made by the informant through a side window in the house. No other persons were involved in this purchase. The informant paid for the pill with “marked” currency. There were five one-dollar bills, two five-dollar bills and one twenty-dollar bill. It is estimated in the record that approximately thirteen officials took part in the raid. When officers approached the front door of the “shotgun”type house, persons began to exit through the rear door. The evidence is conflicting as to how many persons exited the rear door and, for that matter, how many persons were actually on the premises when the raid commenced. The occupancy was variously stated to be between four and seven persons. It is certain that the appellant/Charles Frederick Green and Gary Shanks exited the rear and commenced climbing over a six to eight-foot chain-link fence. They were placed under arrest by officers posted at the rear. Patrolman Bill Neeley arrested appellant. He took appellant to the front yard of the premises and conducted a search of his person, removing personal items, $1,081.00 in cash, and a “small, pink, round tablet.” Among the cash was the “marked” twenty-dollar bill. Patrolman Bill Neeley was assisted by Detective Pat Taylor. Upon arresting appellant, Patrolman Neeley handcuffed him, searched his person, and kept him in the front yard under surveillance. Patrolman Neeley handed directly to Detective Taylor the items removed from appellant’s person, including the “small, pink, round tablet.” Detective Taylor stated that she placed the items in the left pocket of her jacket. She then went into the house, passing through the front room, middle room and into the kitchen. She proceeded to clear away a place on the kitchen table where she could spread the items removed from appellant, and inventory same by notation upon the back of the search warrant. When she reached into her left pocket, she discovered that the “small, pink, round tablet” was missing. Thinking that she had dropped it during the transfer from Patrolman Nee-ley, she immediately returned to the front yard where appellant was still in custody and under the surveillance of Patrolman Neeley. Other persons were also in the area. Upon examining the ground and walkway, Detective Taylor found a portion of a small pink pill which appeared “smudged.” She retrieved this particle of a pill and retained it for “testing,” on the assumption that it was the pill actually removed by Patrolman Neeley during the search of appellant’s body. It was assumed that the appellant or someone else had stepped upon the pill either intentionally or inadvertently. This particle of pill, tested by the state crime lab and determined to be dilaudid, was totally consumed in testing. During the search of the premises, sixty-four other dilaudid tablets were found in the back yard. At no time did any of the arresting officials see the appellant in possession of, or in the process of disposing of, dilaudid tablets. The only tablet of which he was alleged to possess was the single “small, pink, round tablet” removed from his person by Patrolman Neeley. The sixty-four tablets from the back yard, identified by the state crime lab as being dilau-did, were admitted into evidence over appellant’s objection. Likewise over appellant’s objection, the results of the lab tests upon the single “portion” of tablet found in the front yard by Detective Taylor were admitted into evidence.

We think the question of lab test results on the single “small, pink, round tablet” found in the front yard by Detective Taylor and thought to be the same one taken by Patrolman Neeley from the defendant is dispositive of this appeal. Certainly, the integrity of this evidence is open to much doubt (Cf. Harrod v. Commonwealth, Ky. App., 552 S.W.2d 682 [1977]), but the more serious problem is the argument that the state crime lab, after the defendant was charged, unnecessarily (though unintentionally) consumed the entire substance in testing. The trial judge sustained appellant’s motion to make an independent test of the single pill. However, when it was learned that the entire pill had been consumed by the Commonwealth in testing, the judge refused appellant’s motion for a production of the laboratory notes made incidental to the testing. Over appellant’s objection, John Harris, forensic chemist for the Commonwealth, testified as to the test results. He essentially conceded that it was not necessary to consume the entire portion of the pink pill in testing. He indicated that the entire consumption of the pill was caused by the failure of anyone to advise him otherwise. This issue presented the trial judge with a question of first impression. The single question is whether, after a defendant is charged, the unnecessary consumption of the entire incriminatory drug sample may render the test results inadmissible in a drug prosecution. On the following authority, we are compelled to conclude that, under some circumstances, it may, as rights under the Fourteenth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution may be infringed.

In People v. Garries, Colo., 645 P.2d 1306 (1982), the unnecessary destruction of a blood sample in testing was held to render the test results inadmissible. The destruction occurred before the defendant was charged. The court stated:

We reject the state’s suggestion that the present suppression order reflects a technical and unreasonable application of the law in frustration of legitimate law enforcement objectives. The testing procedures employed have deprived the defendant of important methods of checking the accuracy of test results on crucial evidence. Id. at 1310.

In Stipp v. State, Fla.Dist.Ct.App., 371 So.2d 712 (1979), the unnecessary destruction of a cocaine sample rendered the test results inadmissible. The court stated:

It is wrong for the state to unnecessarily destroy the most critical inculpatory evidence in its case against an accused and then be allowed to introduce essentially irrefutable testimony of the most damaging nature against the accused. It is wrong because it violates a most fundamental right of due process, .... Id. at 713.
... if the state has a suspected illegal drug or other evidentiary item it expects to destroy by testing then the better rule is to notify the accused and allow him to have some minimal participation in the testing process_ Id. at 714.

In People v. Taylor, 54 Ill.App.3d 454, 12 Ill.Dec. 76, 369 N.E.2d 573 (1977), the unnecessary destruction of a heroin sample rendered the test results inadmissible. The destruction was before charges were placed against defendant. The court stated:

We are not suggesting that the State has a duty to disclose at the investigatory stage, simply that it has a duty to preserve some part of the substance so that an independent chemical analysis may be made by the putative law violator in the event criminal prosecution is later instituted. We believe that the scientific expertise exists that allows for identification of narcotics and dangerous drugs without the necessity for destructive testing where relative small amounts of the offending substance are involved. This procedure would not unduly hamper effective law enforcement. Id. 12 Ill. Dec. at 78, 369 N.E.2d at 575.

Undoubtedly, some states have procedural rules concerning the preservation of testing materials and the right of a defendant in a criminal prosecution to perform his own testing. We do not. Nevertheless, we think the right to testing is implicit under RCr 7.24. Further, the case of James v. Commonwealth, Ky., 482 S.W.2d 92 (1972), recognizes this right. We hold the unnecessary (though unintentional) destruction of the total drug sample, after the defendant stands charged, renders the test results inadmissible, unless the defendant is provided a reasonable opportunity to participate in the testing, or is provided with the notes and other information incidental to the testing, sufficient to enable him to obtain his own expert evaluation. Therefore, the trial court, having refused production of the lab’s notes, the test results (as testified to by forensic chemist, John Harris) regarding the portion of the “small, pink, round tablet,” should have been suppressed.

We have reviewed other complaints of error, and deem any errors to have been harmless, insubstantial or not likely to recur upon retrial. RCr 9.24.

For the foregoing reasons, the judgment of the Fayette Circuit Court is reversed and this cause is remanded for proceedings consistent with this opinion.

All concur.

      . Other denominations of the "marked” money were found upon other occupants of the house who were also arrested. The money had been dusted with an invisible powder which revealed itself under ultra-violet light. Several of the persons possessed the “marked” bills and evidence of powder residue on their persons. Some of the "marked” bills were never found. This fact was not explained.


author: DUNN, Judge.

text:
    WICKLIFFE FARMS, INC., Appellant, v. OWENSBORO GRAIN COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Aug. 24, 1984.
    As Modified Oct. 19, 1984.
    Discretionary Review Denied by Supreme Court Feb. 21, 1985.
    Flem Gordon, Gordon & Gordon, Owens-boro, for appellant.
    Ronald M. Sullivan, Holbrook, Gary, Wi-ble & Sullivan, P.S.C., Owensboro, for ap-pellee.
    Before COOPER, REYNOLDS and DUNN, JJ.
   DUNN, Judge.

This is an appeal from a summary judgment in favor of appellee, Owensboro Grain Company, entered in the Daviess Circuit Court September 9, 1982, as amended September 29,1982. The action arises out of a contract to sell No. 2 white corn and the defense of impossibility of performance resulting from a drought.

The appellant, Wickliffe Farms, Inc., in business since 1971, farms several contiguous farms in Muhlenberg County. Of the approximate 1980 acres it farms, the corporation owns about 250 acres, Reynolds Wickliffe, its president and principal shareholder, owns about 1000 acres, and Reynolds’ father’s estate, the J.W. Wickliffe Estate, owns 730 acres.

The Corporation had done business with the appellee, Owensboro Grain, since 1975, primarily thru Reynolds Wickliffe, representing the corporation, and Julian G. “Sonny” Hayden, employed by Owensboro Grain as a grain merchandiser.

In February, 1980, Wickliffe contacted Hayden by telephone and they orally agreed that the corporation would deliver 35,000 bushels of No. 2 white corn at $3.70 per bushel to Owensboro Grain between December 15, 1980, and January 31, 1981. The agreement was confirmed in a writing executed by Owensboro Grain and signed by Wickliffe on behalf of the corporation. The agreement, prepared by Owensboro Grain, was on its standard “fill in the blanks” form as to quantity, the grain commodity, the price, the routing, and shipment date. It was dated February 29, 1980, and identified the corporation as the accepting party. It contained no additional language of any significance other than the following part of a small print “force maj-eure” clause unilaterally favoring Owens-boro Grain:

All agreements, undertakings, obligations or liabilities hereunder, made or to be kept and performed by Owensboro Grain Company, are made and shall be kept and performed subject to and contingent upon strikes, embargoes, fires, accidents, war restrictions, acts of God, or other conditions over which Owens-boro Grain Company has no control and any inability on its part to keep, perform or satisfy the agreements, undertakings, obligations or liabilities hereunder caused or brought about by reason of any of the foregoing conditions shall, at the option of Owensboro Grain Company, render this contract null and void and the parties hereto shall have no further rights or obligations hereunder...

Owensboro Grain’s principal business is dealing in the Chicago Board of Trade market area by purchasing grain for future delivery and by arranging an immediate sale of it to consumers or exporters at a margin of profit the market will competitively allow. In reference to his employer’s business generally and to the instant transaction specifically, Hayden testified: “... my orders from the stockholders are to buy it, sell it, or hedge it. In this case you have to sell it because you can’t hedge it.”

In keeping with this practice, immediately after the contract was executed for Wickliffe to deliver the No. 2 white corn in the future, Owensboro Grain sold the 35,-000 bushels, along with white corn similarly purchased from other farmers, to C.B. Fox, an exporter, at a price that guaranteed a 20 to 25 cent profit.

Unfortunately, in the summer of 1980, Muehlenburg County, together with the rest of western Kentucky, suffered a severe drought. Wickliffe’s No. 2 white corn crop was severely damaged as were the crops of the other farmers in the area. Consequently, Wickliffe was unable to produce sufficient No. 2 white corn to fulfill its contract. In January, 1981, it delivered its entire crop, 18,718.57 bushels, to Owens-boro Grain and was paid the agreed amount of $3.70 per bushel.

As a result of the short delivery, Owens-boro Grain was required to purchase the amount of the shortage at $5.54 per bushel, the then market price, to satisfy its obligation to C.B. Fox entered into as a result of its futures contract with Wickliffe. The total amount spent to make up the bushels’ deficit was $29,306.57. This amount was not withheld as a “set off” when it paid Wickliffe for the corn it managed to deliver, but $19,157.07 was withheld from amounts owed Wickliffe for purchase of corn and soybeans in January and February, 1982, by Owensboro Grain.

Wickliffe sued Owensboro Grain in the Daviess Circuit Court for the amount of the sale of the corn and soybeans. Owens-boro Grain counterclaimed for its loss resulting from the partial non-delivery of No. 2 white corn in 1981. The trial court entered summary judgment in favor of Ow-ensboro Grain on its counterclaim, later amended to include interest.

On appeal, as well as in the trial court, Wickliffe primarily relies on the defense of impossibility of performance caused by the severe drought, a “force majeure.” We agree with the trial court that this defense is not applicable since the contract did not specify the land on which the corn was to be grown. Hence, we affirm.

There is no disagreement that the provisions of § 2-615 of the Uniform Commercial Code (U.C.C.) (1978), adopted as KRS 355.2-615, address the issue before us; also, there is no disagreement that there is no Kentucky law interpreting KRS 355.2-615, particularly with reference to U.C.C. § 2-615 comment 9 (1978), which in pertinent part is as follows:

The case of a farmer who has contracted to sell crops to be grown on designated land may be regarded as falling within ... this section, and he may be excused, when there is a failure of the specific crop....

We have carefully considered Wick-liffe’s argument that the contract was one-sided or unconscionable because it contained no specific “force majeure” clause in its favor as it did in favor of Owensboro Grain and conclude the argument is without merit. We reach a like conclusion on Wickliffe’s position that an “adhesion contract” resulted from the “fill in the blanks” form of the contract.

Wickliffe’s principal argument is that the defense of impossibility provided by KRS 355.2-615 should be available to it due to the fact that it was contemplated by both parties that the No. 2 white corn was to be grown on its 2000 contiguous acres in Muh-lenburg County and, that the adverse weather of the 1980 summer was a condition that was unforeseen and unforeseeable by the parties, and which rendered Wickliffe’s performance impossible, and, pursuant to the statute, thereby excused his obligation to fully perform.

Nowhere, in the contract, however, is there any reference to any specific acreage upon which the crop was to be grown. Wickliffe urges that KRS 355.2-202 permits contradiction of the written terms of the parties’ intention by admission of proof of a contemporaneous oral agreement. This statute provides:

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
(a) by course of dealing or usage of trade (KRS 355.1-205) or by course of performance (KRS 355.2-208); and
(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

This argument ignores the fact that to be admissible, the proof must come within the provisions of subparagraph (b) of the statute that requires the parol evidence be of additional terms consistent with the written contract. Here there is no consistency between Wiekliffe’s claim that the corn was to be produced off a particular part of a 2000 acre farm and a contract providing for nothing other than buying and selling 35,-000 bushels of No. 2 white corn. There was no proof before the trial court, parol or otherwise, offered or proffered by Wick-liffe, to establish that both parties contemplated and agreed upon a contract to sell the corn from any particularly designated acreage.

The undisputed admissible material facts before the trial court prove the ordinary “futures contract” of an agreement to buy and sell a quantity of grain at a given price per bushel, to be delivered at a future date, the purchaser thereafter arranging a “back to back” sale of the commodity. The sellers in such a transaction gamble the market price will not be greater at the time of delivery and the buyers gamble that it will not be lower. All Owensboro Grain was interested in was buying 35,000 bushels of No. 2 white corn from Wickliffe at $3.70 per bushel and nothing more. Its business was not to speculate either in the weather, crop yield or fluctuation of market price. It guaranteed its profit by selling immediately. Wickliffe’s only interest was to sell it. It chose to contract to deliver the corn at a given price at a given future date and failed to do so.

Since there exists no issue of material fact and Owensboro Grain is entitled to judgment as a matter of law, the trial court committed no error in granting summary judgment on Owensboro Grain’s counterclaims. Shah v. American Synthetic Rubber Corp., Ky., 655 S.W.2d 489 (1983).

The Daviess Circuit Court summary judgment and amended summary judgment are AFFIRMED.

All concur.


author: WILHOIT, Judge.

text:
    Jerry WOOLUM, doing business as J & J Trucking Company; and Plastics Universal Corporation, Appellants, v. Don WOOLUM; Thelma L. Stovall, Commissioner of Labor (Special Fund); and Workers’ Compensation Board, Appellees.
    No. 84-CA-758-MR.
    Court of Appeals of Kentucky.
    Sept. 14, 1984.
    As Modified Sept. 21, 1984.
    Rehearing Denied Nov. 9, 1984.
    Discretionary Review Denied Feb. 21, 1985.

      Gayle G. Huff, Rice, Huff & Hendrick-son, Harlan, for appellants.
    John E. Anderson, Cole, Cole & Anderson, P.S.C., Barbourville, for appellee Don Woolum.
    Douglas A. U’Sellis, Labor Cabinet, Louisville, for appellee Thelma L. Stovall.
    Before REYNOLDS, WHITE, and WIL-HOIT, JJ.
   WILHOIT, Judge.

The appellants, an individual operating a trucking enterprise and a company for which that enterprise was hauling materials under contract, appeal from a judgment of the Knox Circuit Court affirming an award to the appellee claimant, Don Woo-lum. The Board had found the claimant was totally occupationally disabled and apportioned fifty percent of the liability for compensation against the appellants and fifty percent against the Special Fund.

The sole question raised by the appellants is whether the Board’s finding of fifty percent occupational disability attributable to the claimant’s injury of May 5, 1981, alone is erroneous and not supported by reliable, probative, and substantive evidence of record.

It is elemental compensation law of long standing that a finding for the claimant by the Board will not be disturbed on appeal to either the circuit court or an appellate court if there is any substantive evidence of probative value to support it. See, e.g., Hush v. Abrams, Ky., 584 S.W.2d 48 (1979); Holman Enterprise Tobacco Warehouse v. Carter, Ky., 536 S.W.2d 461 (1976); International Harvester Co. v. Poff, Ky., 331 S.W.2d 712 (1959); Rex Coal Co. v. Campbell, 213 Ky. 636, 281 S.W. 1039 (1926). In the present case, the Board’s findings include the following provisions:

4. On May 5, 1981 the plaintiff began experiencing pain in his left leg as he depressed the clutch in the truck that he was operating. The pain later spread into his back, hip, and leg. Plaintiff has been unable to work since the date of injury and although he has undergone a course of conservative treatment, he continues to experience pain in his hip, leg and back.
6. There was some question as to the work-relatedness of plaintiff’s injury; however, the medical testimony has led this Board to believe that plaintiff’s back problems are the result of his work as a truck driver. Dr. T.R. Miller was the only physician who could not say that plaintiff’s injury was work-related.
8. Apportionment in this case is somewhat difficult. Dr. Bushey believes that 25 percent of plaintiff’s disability is due to the arousal of a pre-existing condition with the remainder being due to the injury itself. Dr. Matheny is of the opinion that 20% is due to the injury and 80% due to arousal. Dr. Robert P. Goodman, who examined the plaintiff pursuant to KRS 342.121, reported that plaintiff’s disability should be apportioned equally between the injury and the arousal of a pre-exist-ing disease or condition. The credentials of Dr. Goodman and his extensive report lead this Board to believe that an apportionment should be based upon his recommendation. Consequently, following the dictates of Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971) the Board makes the following apportionment:
(b) The extent of occupational disability attributable to the injury of May 5, 1981, alone is 50%. The employer owes this.
9. The plaintiff sustained an injury of appreciable proportions as a result of the incident of May 5, 1981, and his future earning capacity and occupational opportunities have been reduced and impaired to the extent found herein.

We have examined the record before the Board and found that the medical testimony, particularly that of Dr. Bushey and Dr. Woolum, provides substantive evidence of probative value for its findings and award. Under the authorities cited above, we affirm. The appellants misapprehend the law when they maintain that the “injury episode of May 5, 1981” was insufficient to support an award for permanent disability; a traumatic injury is no longer required under our compensation act. See Yocom v. Pierce, Ky., 534 S.W.2d 796 (1976). The Board found, and the evidence substantiates, that the claimant’s “back problems are the result of his work as a truck driver.” This is clearly an injury as KRS 342.-620(1) defines it, i.e., a “work related harmful change in the human organism, arising out of and in the course of employment.”

Of the 2003 cases submitted for decision in calendar year 1983, 261 were workers’ compensation appeals — that is to say, last year some thirteen percent of the Court’s workload was in workers’ compensation cases. A significant number of these raised (if not as the sole issue, then as one of multiple issues) the propriety of a finding for the claimant by the Board, governed by the exacting standard of review that we have applied in this appeal. When, as in this case, there is clearly substantive evidence of probative value to support the Board’s findings for the claimant, an appeal on this point is an exercise in futility and a waste of judicial time and energy. Such appeals increase the cost of litigation to the parties, place an unnecessary burden on the finite resources of the Commonwealth’s judiciary, and ultimately result in an expense to the people of Kentucky through the use of tax revenues and in the increased costs of goods and services resulting from the need to pay for the appeals.

The 1984 General Assembly amended KRS 342.310 (effective July 13, 1984) to provide as follows:

If the board or any court before whom [sic] any proceedings are brought under this chapter determines that such proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings which shall include actual expenses but not be limited to the following: court costs, travel expenses, deposition costs, physician expenses for attendance fees at depositions, attorney fees, and all other out-of-pocket expenses upon the party who has brought, prosecuted or defended them.

1984 Ky.Acts ch. 78, § 1. Where an appeal is based on a challenge to a finding for the claimant by the Workers’ Compensation Board that is clearly supported by substantive evidence of probative value, there is no reasonable ground for the appeal.

In the interest of fairness, we have elected not to invoke the penalty provided by KRS 342.310 in the instant case although we believe that it could well be applied here; instead, we are directing this opinion to be published to serve notice on the Bar of this Commonwealth that in the future this Court will have no hesitancy in applying this particular statute or the soon-to-be-effective amendment to CR 73.02 in appeals where their use is warranted. Because this Court, except in original actions, is not a factfinding tribunal, we believe that the proper procedure under KRS 342.-310 would be to remand to the circuit court for determination of the expenses of the appeal. Cf. Smith v. Smith, Ky., 497 S.W.2d 418 (1973).

The judgment of the circuit court is affirmed.

All concur.

      , By Rule Order 84-2 of the Supreme Court, effective January 1, 1985, CR 73.02(4) is created to read:

        If an appellate court shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee. An appeal is frivolous if the court finds that the appeal is so totally lacking in merit that it appears to have been taken in bad faith.


author: LESTER, Judge.

text:
    CITY OF JEFFERSONTOWN, Kentucky, a Municipal Corporation, Appellant, v. CITY OF HURSTBOURNE, Kentucky, a Municipal Corporation, Appellee.
    Court of Appeals of Kentucky.
    Sept. 28, 1984.
    Discretionary Review Denied Feb. 20, 1985.

      Fred E. Fischer, Louisville, for appellant.
    Henry A. Triplett, Bennett, Bowman, Triplett, & Yittitow, Louisville, for appellee.
    Before COOPER, HOWARD and LESTER, JJ.
   LESTER, Judge.

This is an appeal from a summary judgment in which appellant claimed jurisdiction of certain territory by virtue of annexation while appellee did likewise through the incorporation process.

Pursuant to KRS 81.050, a petition was filed on February 1, 1982, in the Jefferson Circuit Court seeking to incorporate the City of Hurstbourne wherein certain territory was described. On June 28, 1982, an amended petition (deleting a part of the original land area) was filed along with a motion to docket the case. On July 1,1982, the publication required by KRS 81.050(2) was placed in the appropriate newspaper and we point out that no issue is raised as to the adequacy of the notice. During the foregoing time period, Jeffersontown, following the annexation procedures of KRS 81A.420, sought to annex the same geographical area that Hurstbourne wanted to incorporate. On March 30, 1982, the first reading of the annexation was read and the following day, it received its second reading and was adopted. There having been no petition in opposition, appellant adopted its ordinance finalizing the annexation on June 8, 1982, while the circuit court entered its order of incorporation on behalf of the Hurstbourne petitioners on August 12, 1982. In February of the following year, Jeffersontown brought this action seeking to enjoin appellee from exercising jurisdiction over the disputed land.

The litigants agree that the first municipality to take statutory steps towards acquiring territory outside its limits is entitled to proceed to completion or, put another way, where two or more bodies politic have concurrent jurisdiction over the same area, the one first acquiring jurisdiction should prevail. Rose v. City of Paris, Ky.App., 601 S.W.2d 610, 611 (1980). We do not perceive the rule as being applicable to only coextensive annexations or simultaneous incorporations but also as governing in an annexation-incorporation situation. See Pfeiffer v. City of Louisville, Ky., 240 S.W.2d 560 (1951) and Rose, supra. Thus, the controlling issue in this appeal is what constitutes the first procedural step so as to establish priority between two cities competing for the same area. To refine the question further, what is to be considered the first step in an incorporation proceeding because appellant does not contest the fact that appellee took some action in February, 1982.

Appellant takes the position that the filing of the petition without causing the notice to be published at the same time, or at least before it had adopted its first ordinance (March 30, 1982) was insufficient to constitute a first step. Research reveals, and counsel agree, that this is a novel question. We now examine the statute.

KRS 81.050(1) provides:

(1) Proceedings to incorporate a city shall be commenced by a petition being filed with the circuit clerk of the county in which the area to be incorporated is located.
[Subsections (a) through (f) set forth what the petition shall contain.]
(2) The petition shall be docketed for hearing not less than twenty (20) days from the date of filing the petition. Notice of the filing of the petition and of its objects shall be given by publication pursuant to KRS Chapter 424.

We need look no further than the language of the statute for it appears rather clear that proceedings to incorporate a city shall be commenced by the filing of the petition. Granted there must be a public notice, but the enactment does not require that it be filed concurrently with the petition but only demands that the notice be published as required by KRS Chapter 424. In this situation, that was done and appellant raises no issue in that regard. Nevertheless, giving subsection one of KRS 81.050 its plain and obvious meaning, we consider that there need be only a petition for incorporation filed with the circuit clerk which commences the action thereby constituting the first step. Therefore, under the principles cited to us by appellant, the appellee acquired first jurisdiction over the territory and for the reasons stated herein, we will affirm the trial court.

For the benefit of municipal officers, we wish to emphasize that some of the notices required by KRS Chapter 424 are a form of constructive service of process and unless the statutory form is strictly complied with the service is void. In the present case, Jeffersontown failed to provide in its publication of its ordinance proposing annexation the time and place where protest could be made which would nullify its attempt to obtain constructive service of process. See City of St. Matthews v. Beha, Ky.App., 549 S.W.2d 842 (1977), as to annexation and Cole v. Stephens, Ky.App., 582 S.W.2d 657 (1979), as to incorporation.

The judgment is affirmed.

All concur.


author: CLAYTON, Judge. GUDGEL, Judge,

text:
    PLACER COAL, INCORPORATED, Appellant, v. RHONDALE COAL SERVICES COMPANY, INC.; Ed Ratcliff & Floyd Sexton, a partnership, d/b/a Dennis Dean Coal Company; and Prichard Energy, Inc., Appellees.
    Court of Appeals of Kentucky.
    Nov. 9, 1984.
    Rehearing Denied Jan. 25, 1985.

      Kenneth Williams, Jr., Ashland, Jerry Vincent, Catlettsburg, for appellant.
    W. Jeffery Scott, Richard W. Martin, Ashland, for appellees.
    Before CLAYTON, GUDGEL and MCDONALD, JJ.
   CLAYTON, Judge.

Placer Coal, Incorporated (Placer) appeals from a judgment of the Boyd Circuit Court awarding Dennis Dean Coal Company (Dennis Dean) $31,310.02 and Prichard Energy, Inc. (Prichard) $19,177.41 as damages for coal wrongfully attached.

The major issue on appeal is whether the trial court erred in finding that title to the coal attached had reverted to Dennis Dean and Prichard prior to the time of attachment. Placer contends it did not and argues that the appellees’ failure to retake possession of the coal within ten days of its delivery to Placer, as provided under KRS 355.2-702, prevented them from regaining title. Dennis Dean and Prichard counter with KRS 355.2-401(4), arguing that the buyer of the coal, Rhondale Coal Services Company, Inc., elected not to retain the coal under KRS 355.2-401(4) by its refusal to make payment and its release of its interest in the coal. Such a refusal to retain the coal would by operation of law automatically revest title in Dennis Dean and Prichard as sellers so that Placer’s attachment to secure the debts of Rhondale Coal Services would be wrongful. After a thorough review of the parties’ arguments and authorities, we conclude that title did indeed return to the sellers prior to the time of attachment so as to render the attachment wrongful.

Placer operates a coal processing plant, commonly referred to as a “tipple,” on the Big Sandy River in Boyd County, Kentucky. In August of 1981, Rhondale Coal Services Company, Inc. (Rhondale) entered into a contract with Placer whereby Rhon-dale, as coal buyer, would deliver coal purchased from local coal suppliers such as Dennis Dean and Prichard to the loading dock at Placer to be processed and loaded onto barges of the coal purchasers Rhon-dale located. In exchange for its services, Placer was to receive $2.00 per ton. During the month of August, 12,272.3 tons of coal were delivered to Placer’s dock on the Big Sandy pursuant to the terms of this contract. From September 1 through September 15 of that year, another 1,865.14 tons of coal was processed by Placer pursuant to Rhondale’s request. As a result of Placer’s loading and processing of this coal, Rhondale was indebted to Placer in the amount of $24,544.60 for the August shipments and $3,731.30 for the September shipments.

Placer was not, however, Rhondale’s only creditor at this time. Dennis Dean, a coal producer company organized as a partnership operating in Grayson, Kentucky, was owed $31,310.02. From August 24, 1981, through September 3, 1981, Dennis Dean delivered to Rhondale on credit forty-one loads of coal F.O.B. at the coal loading facility of Placer on the Big Sandy River for a stated delivery price of $24.50 per ton. Shortly after delivery Roger Griffith, president of Rhondale, telephoned Ed Rat-cliff, a partner in Dennis Dean, and informed him that due to nonpayment from one of Rhondale’s customers, Rhondale would be unable to pay Dennis Dean the $31,310.02 owed it for the forty-one truck loads. Griffith further advised Ratcliff that Rhondale was releasing its interest in the coal and that Dennis Dean could take possession of the coal at the tipple. Though the parties’ testimony regarding the exact date of this conversation is uncertain, it apparently took place within two weeks after September 3, the last delivery date for the Dennis Dean coal. Immediately after his conversation with Griffith, Rat-cliff visited Leonard Womble, mine manager for Placer, at Placer’s loading dock. During their meeting at the dock, Ratcliff told Womble of Rhondale’s release and requested permission to remove the coal after offering to pay Placer’s tippling fee. Womble refused to permit the removal of the coal.

During this same time period, Prichard, a Kentucky corporation engaged in mining and stripping coal, delivered 804.47 tons of coal in the name of Rhondale to Placer’s dock. Rhondale was to have paid Prichard $23.75 per ton on September 11, 1981. On September 12, Herb Prichard, part owner and an officer of Prichard Energy, was advised that Rhondale would be unable to pay for the 807.47 tons it had purchased on credit. A meeting between Herb Prichard and Roger Griffith was then held at a local restaurant on September 14. At that time Griffith released any interest Rhondale claimed in the coal and told Prichard to take it back if he wanted it. Two days later, on the 16th, Prichard went to the loading dock and spoke with Keith Pettit, Placer’s dock manager, about securing the return of the coal and paying the processing fee Rhondale owed Placer. Pettit informed him that a written release from Rhondale would be necessary before he could permit Prichard to take the coal. From the 16th through the 24th, Prichard unsuccessfully attempted to contact Womble by phone. On September 24, Prichard returned to the dock with a written release but was told that the coal was “tied up in court.” A writ of attachment had been issued earlier that day.

In Ashland, Kentucky, on September 18, 1981, a meeting between Griffith and Womble took place at the law offices of Van Antwerp, Hughes, Monge & Jones. Present at that meeting were Carl D. Edwards, Jr. and Greg Monge, local attorneys previously involved at different times in representing the interests of Rhondale, Dennis Dean and Placer. At the meeting Womble requested that Griffith assign Rhondale’s interest in the coal in order that Placer might attempt to sell it and thus recoup its losses. As Roger Griffith recalls their conversation, he informed Worn-ble that assignment was not possible as he had released his interest in the coal back to Prichard and Dennis Dean. As Womble recalls the discussion, Griffith refused to assign his company’s interest in the coal, but made no mention of the releases. Womble steadfastly denies any knowledge of the dealings of Rhondale and its sellers throughout this entire time period prior to issuance of the order of attachment on September 24, 1981. While he admits being contacted by Ratcliff concerning the release to Dennis Dean, he apparently did not consider himself thereby put on notice of such a release, nor obligated to inquire about it, absent direct contact from Rhon-dale.

On September 28, 1981, Placer filed a complaint against Rhondale in Boyd Circuit Court requesting judgment for $24,544.60 and a prejudgment attachment of the approximately 1,600 tons of coal in Placer’s possession. Later, on September 28, Dennis Dean filed its intervening complaint seeking damages of $31,310.02 against either Rhondale or Placer and in the alternative return of the coal in Placer’s possession.

Finally, Prichard Energy intervened on October 8 demanding damages of $20,-994.22 from either Rhondale or Placer. Trial was subsequently held on January 6, 1983, the court stating that the only issue to be tried was the ownership of the coal. At the time of trial, a full and final compromise and release was filed in open court by which Placer Coal released all claims for loading fees against Rhondale in exchange for $12,500, and release of all Rhondale’s claims to the coal stockpiled at the Placer dock. This compromise and release was immediately challenged by Placer’s counsel who moved that it be set aside. At the time the above-mentioned judgment was entered, no ruling on that motion had been rendered. However, on March 17, 1983, the trial court entered an order overruling the motion to set aside the compromise and release and further ordering that its order was to have no effect on the other parties to the action, Dennis Dean and Prichard.

Placer has asserted numerous factual and legal errors in the trial court’s judgment, all of which are argued to necessitate reversal of the judgment or, at the very least, retrial. The critical finding upon which this dispute hinges, however, is, in our view, the lower court’s determination that the intervening coal producers, Dennis Dean and Prichard, were owners of the coal in Placer’s possession at the time of attachment.

Under KRS 425.301, a plaintiff may, under certain enumerated conditions, have an attachment “against the property of the defendant” at or after the commencement of an action. KRS 425.301 (our emphasis). In its essence, an attachment as set forth in KRS 425.301 is

“a remedy for the collection of an ordinary debt, proceeding by a seizure under legal process, termed ‘a writ or warrant of attachment,’ of the property of the debtor. It is tantamount to an involuntary dispossession of the property of the defendant prior to any adjudication of the rights of the plaintiff — an execution so to speak, in advance of trial and judgment”
an attachment, being an ancillary proceeding, “can have no independent existence apart from a suit on a claim of the plaintiff against the defendant”....

Union Bank & Trust Co. v. Edwards, 281 Ky. 693, 137 S.W.2d 344 (1940) (our emphasis). Thus, it is fundamental to the creation of a lawful attachment that the property seized be that of the defendant debtor. Put in other terms, “it has been recognized that an attachment suit is wrongful if the defendant is not indebted to the plaintiff.” City Lumber Co. v. Barrett, Ky., 327 S.W.2d 402, 404 (1959). Thus, if the coal stored at Placer was owned by Dennis Dean and Prichard at the time of attachment, attachment would be wrongful as neither of the two coal producers was ever indebted to Placer.

In attempting to argue that ownership remained with Rhondale throughout the action, Placer relies upon the language of KRS 355.2-702(2) providing that

Where the seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within ten days after the receipt, but if misrepresentation of solvency has been made to the particular seller in writing within three months before delivery the ten day limitation does not apply. Except as provided in this • subsection the seller may not base a right to reclaim goods on the buyer’s fraudulent or innocent misrepresentation of solvency or of intent to pay.

In accordance with the language of the statute, there is little doubt but that Rhondale did receive the coal on credit from Dennis Dean and Prichard and did not have sufficient funds to make payment for it. The trial court’s findings to the contrary notwithstanding, it is also as clear that neither of the producers made demand upon Placer to reclaim the goods within ten days of receipt as required. Therefore, as Placer contends, both producers forfeited their remedy of possession as against the buyer by their untimely failure to demand possession. However, as to determination of ownership of the coal for purposes of attachment, failure to comply with KRS 355.2-702(2) is immaterial. Ownership turns upon title, which is a concept little relied upon by the code, and is controlled not by KRS 355.2-702(2), but by KRS 355.-2-401. See Meinhard-Commercial Corp. v. Hargo Woolen Mills, 112 N.H. 500, 300 A.2d 321 (1972) (recognizing that section 2-401 plays a “catch basin” role where for the lack of any other legal tool the courts are required to fall back on the question of legal title).

According to the provisions of section two of that statute, title passes “at the time and place at which the seller completes his performance with reference to the physical delivery of the goods” unless otherwise explicitly agreed. KRS 355.2-401(2). Under the terms of the agreements between Rhondale and the appellee coal producers, the coal in question was to be delivered F.O.B. Placer’s dock. Therefore, title to the coal vested in Rhondale at the moment it arrived at the dock. See Nationwide Mutual Insurance Co. v. Hayes, 276 N.C. 620, 174 S.E.2d 511 (1970) (title to goods passes from the seller to the buyer when goods are delivered to buyer). See also In re Chemtoy Corp., 33 U.C.C.Rep. 1655, 19 B.R. 475 (Bankr.Ct.N.D.Ill.1982); In re Bosson, 432 F.Supp. 1013 (D.C.D.Conn.1977).

However, under section four of the same statute title may revest in the seller by operation of law upon “[a] rejection or other refusal by the buyer to receive or retain the goods, whether or not justified....” KRS 355.2-401(4). Given the circumstances of the present appeal, we believe that Rhondale failed to retain the goods as provided within KRS 355.2-401(4). First, it should be noted that Rhondale is nothing more than a coal broker acting in this instance as a coal buyer. The corporation has no tangible assets for mining, loading, transporting, processing, or storing coal. Nor at the time this controversy arose, September of 1981, did Rhondale apparently have sufficient funds to make payment for further transportation of the coal located at the Placer dock. Thus, by its refusal to make payment to the producers, and release of all its interest in the coal to those same producers, Rhondale did everything within its power to refuse to retain the goods in Placer’s possession. Title, therefore, revested in Prichard and Dennis Dean by operation of law well before issuance of the order of attachment on September 24.

Furthermore, Placer through its mine manager, Leonard Womble, and its dock supervisor, Keith Pettit, was put on notice of the question of Dennis Dean’s and Prich-ard’s revestiture of ownership by the actions of Ratcliff and Herb Prichard in contacting the two employees at the Placer dock in mid-September. That Womble refuses to accept his knowledge of the release by Ratcliff is immaterial as under KRS 355.1-201(25) a person has notice when he has actual knowledge of a fact or has reason to know that a fact exists due to all the facts and circumstances known to him. Womble and his loading dock supervisor were directly informed of the releases by the producers involved, and thus Placer cannot be heard to deny notice of the releases simply because it had no contact with Prichard or Dennis Dean. The refusal of the trial court to permit Carl Edwards to testify is therefore immaterial and nonprejudicial, if indeed it was error, as Placer was already put on notice prior to the September 18 meeting. The lower court’s finding as to ownership of the coal is therefore affirmed as is its determination that Placer wrongfully attached same.

Furthermore, although the parties have not extensively argued the issue, Placer’s claim to the coal in its possession additionally fails due to its compromise and release of its claims against Rhondale. Attachment of a debtor’s property may only be had in satisfaction of the debt. Upon the extinction of the debt the attachment is extinguished because, as noted above, attachment is an ancillary proceeding having no independent viability apart from a suit on the claim of the plaintiff against the defendant. Therefore, apart from considerations of the Uniform Commercial Code, when Placer surrendered its claim against Rhondale for processing and loading fees, it forfeited its right to attachment. However, given the fact that at the time of judgment no ruling had been issued as to the validity of the release, a ruling being rendered some several months later, we confine the basis of our holding as to liability to our interpretation of KRS 355.2-401(4).

However, as to the' award of damages granted Prichard and Dennis Dean, we are forced to reverse and remand for retrial. By its award, the trial court appears simply to have granted the intervening producers the amount requested in their separate complaints. The sole evidence presented on the issue of damages includes testimony by Herb Prichard regarding his costs in mining and transporting the coal involved and Leonard Womble’s mention of a per ton price possibly recoverable from a potential buyer approximately a year prior to trial. Neither of these figures is a proper measure of recovery. The proper measure of damages for wrongful attachment is the amount of depreciation in sale value of the attached goods during their wrongful possession. The amount of the award is calculated from the difference in the value of the coal on the date of attachment and its remaining value on the date of release of the attachment. At retrial on the issues of damages, the circuit court should therefore determine the amount and depreciation in value in the coal remaining at Placer based upon expert testimony.

The judgment of the Boyd Circuit Court is affirmed as to that portion determining the liability of Placer Coal, and reversed and remanded for retrial as to that portion awarding damages.

McDONALD, J., concurs.

GUDGEL, J., dissents.

GUDGEL, Judge,

dissenting:

I respectfully dissent. In my opinion, KRS 355.2-401(4) does not apply to this case.

Title to the disputed coal passed to Rhon-dale upon delivery at Placer’s dock. The majority concludes, however, that because Rhondale could not pay for the coal, and orally attempted to disclaim ownership of it, title to it revested in Prichard and Dennis Dean by operation of law pursuant to KRS 355.2-401(4). I cannot agree with this conclusion.

As I perceive the matter KRS 355.2-401(4) is applicable to cases where a buyer of goods has rejected delivery of them, or has made a proper revocation of acceptance, because they are deficient in some respect. The statute was not intended to apply to cases where the buyer is merely unable to pay for the goods.

Here, Rhondale did not reject or revoke acceptance of the coal because it was deficient in any respect. It merely was unable to pay for the coal. Therefore, title to the coal never revested in Prichard and Dennis Dean by virtue of KRS 355.2-401(4). Thus, KRS 355.2-702(2) is the statute which governs the parties’ rights. Because appellees failed to make demand for return of the coal within ten days after its delivery, their claim to title to the coal must fail.

Accordingly, I would reverse the court’s judgment with directions that it enter a judgment in favor of Placer.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Larry HARRIS, Appellant.
    No. 48400.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 16, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1984.
    Application to Transfer Denied Feb. 26, 1985.
    Henry B. Robertson, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for respondent.
   ORDER

PER CURIAM.

Defendant was convicted, after a jury trial, of forgery. He was sentenced, as a persistent offender, to imprisonment for eight years. He appeals from that sentence. No jurisprudential purpose would be served by a written opinion. The judgment of the trial court is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Reginald L. TOWNSEND a/k/a Michael Summers, Appellant.
    No. WD 35082.
    Missouri Court of Appeals, Western District.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.
    Lee M. Nation, Sp. Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before CLARK, P.J., and NUGENT and LOWENSTEIN, JJ.
   ORDER

PER CURIAM.

Appeal from conviction of first degree robbery pursuant to § 569.020, RSMo 1978.

Judgment affirmed. Rule 30.25(b).

All concur.


author: PER CURIAM:

text:
    Jack SCHWINDLER and Schwindler Brokerage Co., Appellants, v. Jerry J. SCALI, Respondent.
    No. WD 35599.
    Missouri Court of Appeals, Western District.
    Nov. 6, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.
    Paul E. Vardeman and Mark J. Brede-meier of Polsinelli, White & Vardeman, Kansas City, and Robert K. Waldo of Chin-nery, Stover, Waldo, Huston & Bertram, Lee’s Summit, for appellants.
    Robert M. Modeer of Hoskins, King, McGannon, Hahn & Hurwitz, Kansas City, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   PER CURIAM:

ORDER

This is a civil action for damages upon alleged misrepresentation and fraud in the inducement to enter a contract and the execution of a promissory note.

The judgment is affirmed. Rule 84.16(b).


author: MANPORD, Judge.

text:
    RISS INTERNATIONAL CORPORATION, Plaintiff-Appellant, v. SULLIVAN LINES, INC., Defendant, and Reliance Insurance Company, Inc., Respondent.
    No. WD 35183.
    Missouri Court of Appeals, Western District.
    Nov. 6, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.

      Rodger J. Walsh, Kansas City, for plaintiff-appellant.
    Arthur C. Popham, Jr., Kansas City, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   MANPORD, Judge.

This civil proceeding originated as an action to recover upon an indemnity agreement. Judgment by default was entered upon the indemnity action. The judgment was for $25,213.81. Subsequently, a garnishment proceeding was filed, which resulted in a judgment for the garnishee. This appeal followed. Judgment affirmed.

Two points are presented, which in summary charge that the trial court erred in (1) entering judgment for the garnishee because the policy of insurance covered the appellant as lessor pursuant to the indemnity agreement, and (2) striking appellant’s prayer for damages for vexatious delay and attorney’s fees.

The record reveals the following facts.

On April 2, 1976, appellant Riss International Corporation (hereinafter Riss) entered into a contract with defendant Sullivan Lines Inc. (hereinafter Sullivan). This contract is identified and referred to as a Trip Lease and bore lease number 72101. This trip lease provided that Riss would lease a truck from Sullivan so in turn Riss could transport copper coils from New York to Oklahoma for the Phelps Dodge Company. The trip lease contained an indemnity agreement wherein Sullivan was to indemnify Riss for any claims or losses. The details surrounding the loss are not material to the appeal as it suffices to state that the cargo was lost. On or about April 3, 1976, Riss paid Phelps Dodge Company the sum of $25,213.81, the amount of the loss.

Subsequently, Riss filed suit against Sullivan for recovery of the $25,213.81 under the indemnity agreement. Sullivan defaulted and judgment for the $25,213.81 was entered for Riss.

Respondent, Reliance Insurance Company, Inc. (hereinafter Reliance), the insurance carrier for Sullivan, was summoned as garnishee. It was determined that Sullivan could and would not satisfy the judgment. On June 9, 1983, the trial court entered judgment for Reliance. This appeal followed.

The trial court had before it (as does this court) the indemnity agreement, the insurance policy, and supporting documents, along with the interrogatories and answers by the garnishee, Reliance. In addition, the record is replete with motions and suggestions to strike and for and in support of summary judgment. These documents have been given close scrutiny by this court.

The disposition of this appeal, for the main part, rests upon the liability, if any, to Reliance by virtue of its insurance policy covering Sullivan. Riss bases its claim against Reliance upon the indemnity agreement. This court, however, is not asked to rule on the validity of the indemnity agreement. The entire appeal rests upon the determination of whether there is insurance coverage in light of the existence of the indemnity agreement.

A review of the Reliance policy does not discern that any contractual liability of Sullivan (such as the indemnity agreement) that Sullivan might undertake with other carriers to lease Sullivan vehicles are covered by the insurance policy. The mere fact that Sullivan was, at the time the “trip lease” was entered into, a common carrier does not mean that when Sullivan was acting as a lessor that the Reliance policy covering Sullivan’s acts as a common carrier would apply. The language of the Reliance policy must be given its ordinary meaning unless from all the circumstances good reason appears to do otherwise. Wellman v. Liberty Mutual Insurance Co., 496 F.2d 131, 138 (8th Cir.1974). This result must be achieved because insurance is a matter of contract, and it must be given effect according to the plain terms of the agreement. Transport Indemnity Co. v. Teter, 575 S.W.2d 780, 784 (Mo.App.1978). In a case similar to the instant proceedings, it has been said:

The district court noted that Schwartz’ liability ‘rested solely upon’ the Master Interchange Agreement and that ‘Continental’s obligation to indemnify Schwartz was limited to liabilities of Schwartz arising because of its status as a common carrier or because of its issuance of bills of lading or shipping receipts ... ’ The court concluded that ‘[i]t [could] not be supposed that simply because Schwartz was a common carrier it expected to obtain or Continental intended to provide indemnification against any contractual liability with respect to damaged goods which Schwartz saw fit to assume as an incident to its transportation services ... Schwartz’ claim against Continental was beyond the coverage of the policy.’ Aetna Insurance Co. v. Newton, 456 F.2d 655, 657-58 (3rd Cir.1972). (emphasis added)

The pertinent and thus controlling portion of the Reliance policy reads as follows: “3. This policy covers on shipments of lawful goods for which the insured may be legally liable as a carrier ...”

In spite of the foregoing clear, plain, and concise limitation of coverage, Riss asserts that because Sullivan at times operated as a carrier authorized by the Interstate Commerce Commission (hereinafter I.C.C.) and because Sullivan filed the Reliance policy to cover its carrier operations, Sullivan was covered in its capacity as lessor of its equipment as well. The I.C.C. has specifically addressed this question in Chapter X of its Rules and Regulations. The following is to be found:

“Question 6:
Answer: ... when a vehicle is so trip leased, it is not, for the duration of such lease, being used in the authorized service of the lessor.”

It may be readily observed that by the terms of the insurance policy, Reliance intended to provide coverage to Sullivan in the latter’s capacity as a carrier and not as a lessor. Reliance could, within the limits of public policy, enter into contractual agreements which limit or restrict insurance coverage. Teter, supra at 784.

There is no reason to expand or extend the coverage of insurance beyond the expressed limits of the policy issued by Reliance. Coverage must arise and vest from the terms of the insurance contract and cannot be invented or created through some imaginative suggestion of coverage. Reliance asserts, and this court agrees, that while the Sullivan equipment was leased for use to Riss under Riss’s carrier certificate, that equipment was not being used in the business of Sullivan as a lessor of that equipment. Thus, under the attending facts and circumstances, when a carrier is acting as a lessor and not as a carrier, insurance coverage relative to the liability as a carrier does not apply unless, because of the terms of the insurance contract, the insurer and the insured have otherwise contracted for coverage to the insured as a lessor and the terms of the insurance contract establish such an agreement. For a case which specifically ruled that a lessor who furnishes the driver to the lessee operating under the lessee’s bill of lading to a shipper is not liable to that shipper for a loss because the lessor was not acting as a common carrier, see Virginia Tobacco Co. v. Wilson, 169 F.2d 652 (4th Cir.1948).

.The further assertion by Riss that “trip leases” can only be made between two carriers, making Sullivan a carrier and thus establishing liability against Reliance under the latter’s policy, is disposed of by mere reference to the definition of a “trip lease” set forth in footnote one of this opinion. By the above definition, under the “trip lease”, Riss became and was the lessee and the authorized carrier, while Sullivan was cast in the role as lessor and owner. While it is true throughout this entire matter that Sullivan remained in the transportation business and thus would or could be referred to as a “carrier” concerning the particular relationship between Sullivan and Riss arising from the “trip lease”, Sullivan was not a carrier, either within the terms of the “trip lease” or the Reliance policy, but was, during and for the purposes of the “trip lease,” a lessor and owner.

From the above, it has been established that the Reliance policy afforded coverage to Sullivan only as to acts committed by Sullivan in Sullivan’s capacity as a carrier. Since both Riss and Sullivan were regulated by the I.C.C., did any of the regulations of the I.C.C. require a different result concerning coverage and thus render Reliance liable under the present set of facts?

In Wellman, the court acknowledged that I.C.C. regulations require that a motor carrier operating leased equipment be held liable to the public for the negligent operation of the leased equipment. In the instant case, the lessee, of course, was Riss. In Wellman, however, the court refused to read the I.C.C. regulations into an insurance policy so as to impose liability upon the insurer of the motor carrier (as lessor) in contravention of the precise and express terms of the insurance contract. In so holding, the court at 139 declared:

“We do not think that such broad coverage could reasonably have been contemplated by the parties when they formed their insurance contract. Nor should we make the unwarranted assumption that the insurer and the insured somehow intended the apparent and obvious meaning of the endorsement to be inoperative and to be controlled instead by an I.C.C. regulation which in no way relates to or binds insurance companies.”

One purpose, and perhaps it can be concluded the most important purpose, of extended regulation of motor carriage of freight in interstate commerce is to protect persons who are injured in roadway accidents, as well as to protect against loss or damage to other persons’ property. 49 C.F.R. § 1043.1 (1983). Motor carriers are obligated to secure the general public against injury arising or resulting from the negligent operation of motor vehicles used under an I.C.C. license. Such a purpose is fully served by insurance coverage which insures the carrier against claims of negligent injury or death. Johnson v. Pacific Intermountain Express Co., 662 S.W.2d 237, 243 (Mo.1983).

Even with the existence of rules and regulations imposed by the I.C.C., it has been noted that the federal policy of assuring compensation for loss by the public does not prevent courts from examining the manner in which private agreements or state laws would otherwise allocate the ultimate financial burden occasioned by the injury. Carolina Casualty Insurance Company v. Insurance Company of North America, 595 F.2d 128 (3rd Cir.1979). In addition, a court may give effect to otherwise existing allocations of financial responsibility where the goal of protecting the injured public has already been met. Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975), Great West Casualty Co. v. Mallinger Truck Line, Inc., 640 S.W.2d 479 (Mo.App.1982).

Under the facts of the instant case, it is shown that Reliance insured Sullivan for the acts of the latter as a carrier as required by the I.C.C. That is so found by this court. Such a finding does not violate the prevailing general rule that the lessee (Riss herein) of equipment is acting as the carrier in a trip lease agreement and the lessee is primarily liable to the public.

As was further held in Transamerican, an indemnity agreement in a contract between a lessee and lessor is not contrary to the regulations of the I.C.C. 49 C.F.R. § 1057.3(a) (1975).

The instant case was initiated by Riss as lessee and against Sullivan as lessor on the indemnity agreement, which resulted in judgment for Riss. As noted above, the validity of that agreement is not before this court, nor has this court been asked to rule upon the validity of the indemnity agreement.

The purpose of the I.C.C. regulations (payment of the loss) has been met because Phelps Dodge Company has already been compensated for its loss. Further, as noted above, the insurance contract between Reliance and Sullivan specifically did not provide coverage to Sullivan for contracts (the trip lease inclusive of the indemnity agreement) between Sullivan and other carriers. It might also be observed that if the Reliance policy provided automatic coverage (and it did not) for the contracts of Sullivan, then there would have been no need for the indemnity agreement between Riss and Sullivan. There is nothing to be found within the rules and regulations of the I.C.C. which, under the particular facts and circumstances of the instant case, would impose upon Reliance the coverage of Riss as to this loss, even by way of garnishment upon the Riss judgment gained against Sullivan. Stated another way, under the particular facts and circumstances herein, Riss is left to collect its judgment under the indemnity agreement as against Sullivan. Reliance was not properly summoned as a garnishee.

The trial court did not err in its entry of judgment for Reliance.

As noted above, because of the disposition of point (1), it is not necessary for this court to take up or to rule point (2) presented herein by Riss.

For the reasons set forth herein, the judgment is in all respects affirmed.

All concur.

      . It will be noted that due to the disposition under appellant’s point (1), point (2) is neither reached nor ruled.

      . A “trip lease” is defined as a lease in which an authorized carrier acquires the use of equipment, with or without a driver, from an owner for a period of time less than 30 days. 49 C.F.R. § 1057.2(g).