author: CRIST, Presiding Judge.

text:
    Jodie W. TOWNSON, Respondent, v. Issie L. TOWNSON, Appellant.
    No. 48033.
    Missouri Court of Appeals, Eastern District, Division Seven.
    Nov. 27, 1984.
    Gerritzen & Gerritzen, Ray A. Gerritzen, St. Louis, for appellant.
    Robert L. Officer, Clayton, for respondent.
   CRIST, Presiding Judge.

Dissolution of 38 year marriage. Parties’ two children are emancipated. We affirm as modified.

Wife complains about the inadequacy of maintenance award, division of marital property, and inadequacy of attorney’s fees. The judgment of the trial court as to the division of marital property and attorney’s fees is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An opinion with reference thereto would have no precedential value. Judgment relating thereto is affirmed in accordance with Rule 84.16(b).

The trial court awarded wife maintenance of $175.00 per month until husband retired from his job or reached the age of 65, whichever was later. At that point, the maintenance award was to be reduced to $100.00 per month. Wife was also awarded the sum of $6,500.00, denominated as marital property, payable at the rate of $50.00 per month. Husband is 55 years old and earned a net income of $333.75 per week.

It is premature to order a reduction of maintenance based on an event at least ten years in the future. There is no evidence wife’s financial situation is likely to improve. She has limited employment possibilities. The reduction of maintenance ten years in the future is based on speculation and is therefore improper. Turner v. Turner, 650 S.W.2d 662, 664 (Mo.App.1983); Vogt v. Ketzner, 634 S.W.2d 583, 583-84 (Mo.App.1982).

Accordingly, that part of the decree pertaining to maintenance is hereby amended as follows:

Petitioner is further ordered to pay respondent as and for her maintenance the sum of one hundred sevety five dollars ($175.00) per month.
The judgment as modified is affirmed.

BRUCE NORMILE, Sp.J., concurs and dissents in a separate opinion.

E. RICHARD WEBBER, Sp.J., concurs.

OPINION

I concur with the principal opinion except for that part which amends the decree to eliminate a reduction of maintenance when the husband retires or reaches the age of sixty-five, whichever is later.

In this respect, I believe that there was substantial evidence at trial to support the trial judges decree and cannot find “... that it is ‘against the weight of the evidence’ ... with a firm belief that the decree ... is wrong”. Murphy v. Carron, 536 S.W.2d 30 (MO banc 1976). I do not believe that the trial judges discretion has been abused. Pederson v. Pederson, 599 S.W.2d 51, 52 (MO App 1980).

The principal opinion relies on Turner v. Turner, 650 S.W.2d 662, 664 (MO App.1983) and Vogt v. Ketzner, 634 S.W.2d 583, 584 (MO App.1982), cases which involved termination of maintenance after a period of years rather than a reduction in maintenance after the time of retirement. Those cases were distinguished and not followed in Steinmeyer v. Steinmeyer, 669 S.W.2d 65 (MO App 1984) as follows:

“The facts in this case differ from those in Turner v. Turner, 650 S.W.2d 662, 664 (MO App.1983), ... where a two year restriction was reversed, there being no evidence to justify the courts finding that appellant would become self supporting within two years where, although motivated, due to arthritis it was questionable that she would be able to support herself even after completing her education; ... or Vogt v. Ketzner, 634 S.W.2d 583 (MO App.1982), in which a five year restriction was disapproved where the wife suffered from psychological problems.”

As to reduction of maintenance in this case, the trial judge obviously considered all of the statutory factors under Section 452.335.2 RSMo. 1978, and the trial intangibles of the appearance and demeanor of the parties as it related to their physical and mental conditions. The court may also have considered its view of the equity of its division of marital property. (In this respect it should be noted that the husbands McDonnell Douglas retirement program valued at $18,042.00, was set aside to him as his share of marital property. This was offset by other property and cash payments set aside to the wife as her share of marital property.)

More importantly the court could have considered that the husband’s income was over $1400.00 a month at the time of trial, but, upon retirement, his income would be reduced to $340.00 per month from the McDonnell Douglas plan. Thus the husband’s ability to meet his own needs while meeting those of the wife, under the sixth factor of Section 452.335.2, will be sharply and dramatically reduced upon his retirement. The court could also have considered that the husband had previously been charged with the retirement program in its allocation of the marital property. There is no evidence in this case that the husband will have any other income after retirement. To assume that he would, and thus could continue maintenance at the same level, is completely speculative and improper. In Re Marriage of Powers, 527 S.W.2d 949 (MO App.1975).

The trial court could further have considered that both parties would be entitled to Social Security benefits upon the husbands account at the time of his retirement in as much as they were married for a period of more than ten years prior to the dissolution. 42 U.S.C.A. Secs. 402(b)(1), 416(d)(1). Thus the wife’s ability to meet her needs independently under the first factor of Section 452.335.2 would also be increased at the time of the husband’s retirement. ■

Although awards of limited duration should not be based on speculation as to the future condition of the parties, awards of limited duration are entirely proper where the trial court has before it evidence of some impending change in the financial condition of the parties or at least some reasonable expectation of such changes. In Re Marriage of Powers, supra. In this case the trial court had before it evidence of a precise “impending change in the financial condition” of the parties at the time of the husbands retirement. Our Supreme Court, in Doerflinger v. Doerflinger, 646 S.W.2d 798 (MO Banc 1983), recognized the wide latitude granted the trial judge in decreeing maintenance and its duration. Doerflinger further ruled that limited maintenance depends not on an assessment of future events but upon whether there is substantial evidence at the time of the decree to justify the imposition of a limitation. I believe that the evidence here meets that requirement.

In effect the husband is currently required to pay 13% of his monthly income as maintenance ($1400.00 income: $175.00 maintenance). Under the trial court’s order, upon retirement the husband would have been paying 29% of his (separate marital property) income as maintenance ($340.00 income: $100.00 maintenance). Under the principal opinion, upon retirement, the husband will be paying 51% of his (separate marital property) retirement income as maintenance ($340.00 income: $175.00 maintenance). Although it may be arguable that the result of the principal opinion is a preferable one, that does not establish that the trial court’s order was not based on substantial evidence. As suggested in the concurring opinions in the Turner and Vogt cases:

“An appellate court should not tamper with a trial courts determination to limit the period of maintenance. If any reasonable rationale can be inferred from the record for a limitation we should affirm the trial courts order. See Sansone v. Sansone, 615 S.W.2d 670 (MO App.1981).”

I would affirm the trial judge’s decree in all respects.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert ADAM and Cheryl Adam, Respondents, v. Anthony TOBIN, Appellant.
    No. 48152.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 27, 1984.
    David R. Spitznagel, Clayton, for appellant.
    Keith W. Hazelwood, St. Charles, for respondents.
   ORDER

PER CURIAM.

Defendant appeals from a judgment entered upon a jury verdict for $1,000 in favor of plaintiff in a breach of contract action for the sale of real estate.

The judgment of the trial court is affirmed. Rule 84.16(b).


author: HOGAN, Presiding Judge.

text:
    VILLAGE OF CLIMAX SPRINGS, a Municipal Corporation, Plaintiff-Respondent, v. Jno. P. CAMP, Nancy E. Jackson, A.R. Jackson, a/k/a Alex R. Jackson, Helen M. Jackson, Roscoe A. Jackson, Imogene Jackson, Ray Ollison, Eileen Ollison, Milton C. Hockman and their unknown consorts, former consorts, heirs, devisees, donees, alienees and immediate mesne, and remote, voluntary and involuntary grantees, executors, administrators, successors and assigns and if any one of the above-named Defendants be dead, then their unknown consorts, former consorts, heirs, devisees, donees, alienees and immediate mesne, and remote, voluntary and involuntary grantees, executors, administrators, successors and assigns of said Defendants, Defendants-Appellants.
    No. 13126.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 28, 1984.

      Richard E. Duggan, Sunrise Beach, for defendants-appellants.
    William Icenogle, Icenogle & Icenogle, Camdenton, for plaintiff-respondent.
   HOGAN, Presiding Judge.

This is the second appeal in an action wherein the Village of Climax Springs (the city) sought to quiet the title to a small tract of realty particularly described as:

“All that parcel of land designated as ‘City Spring Park’ on the plat of Climax Springs, Missouri, filed in Plat Book 1, Page 14, Records of Camden County, Missouri.”

When the cause first came before the trial court, that court granted summary judgment against the plaintiff because the city collected taxes on the tract in question from 1965 through 1978. On appeal this court reversed and remanded, holding that the assessment and collection of taxes on the property did not estop the city from claiming title to it. Village of Climax Springs v. Camp, 609 S.W.2d 733, 734[1] (Mo.App.1980). On remand, the trial court entered judgment for the plaintiff. Defendants .Ollison now appeal.

The case was very informally tried, there are some inevitable loose ends, but the record is sufficient for us to resolve the appeal on its merits. The plaintiff offered and the trial court received a plat of the Village of Climax Springs. The plat recites on its face that it is a plat of the original town and the eastern and western additions thereto. The legends across the bottom of the plat suggest it may originally have been filed in 1895, but the writing in the lower right corner of the instrument reads: “Located in Sec. 30, Tp. 39 Rg. 19 Filed For Record Jan. 4, 1915 1. P.M. W.O. Estler Recorder, F.A. Henderson, Deputy.” The plat is not acknowledged as required by § 445.030, RSMo 1978. The plat was received without objection as to its authenticity. The plaintiff city also had evidence that the park had not been under fence during the past 42 years except for “maybe two years” preceding the filing of the action. Plaintiff then rested.

Defendant Ray Ollison testified that he had lived at Climax Springs for 59 years. He had been familiar with the tract in issue “all of [his] life” because his parents lived on an adjoining plot. Mr. Ollison identified defendant’s Exhibit A, a copy of a quitclaim deed executed by J.P. Camp on May 27, 1904. This" instrument purports to convey the following tract to Nancy E. Jackson:

“South East quarter of the South West quarter of Section (19). East half of Northwest quarter all that half of the North East quarter (V4) of Section (30) not conveyed as town Lots also the Reservations shown on plat of the Town of Climax Springs as Parks is conveyed in this Deed, also North half of the North East quarter (¼) of the South East quarter (¼) of Sec. (30) and the S.W. qr. of the N.W. qr. and the N ½ of the N.W. qr. of the S.W. qr. of Sec. (29) all in Township 39 of Range 19, containing about 300 Acres More or Less, This conveyance is made in Lieu of a former deed to Same Party which has been Lost and no record of same. ” (Our emphasis.)

This deed was acknowledged in the city of St. Louis on September 1, 1904, and was filed for record on April 24, 1905, in Camden County.

Defendant Ollison also identified defendants’ Exhibit B, a Collector’s Deed executed September 28, 1961, which recites that Alex R. and Helen Jackson purchased Climax Springs Park in the city of Climax Springs, Missouri, on August 24, 1961, for $53.00, that amount being the taxes assessed but delinquent on the parcel described for the years 1954, 1955, 1956, 1957 and 1958. The deed also recites on its face that the taxes were assessed in the name of Lydia E. Vantoyl.

Mr. Ollison also identified defendants’ Exhibit C, a quitclaim deed executed June 19, 1964, from Alex R. Jackson and Helen Jackson, conveying the parcel in issue to defendant Ollison and Eileen Ollison, his wife. This deed was filed for record July 8, 1964, in Camden County.

Mr. Ollison further testified that at trial time, he had some horses running on the property in issue. Ollison fenced the property about 2 years before trial. When he bought the property in 1964, he drove posts around the property, but did not put up the fence and the posts rotted off. Six or seven years before trial time, Mr. Ollison moved a trailer house on the tract involved, installed a septic tank and lived on the property while he was building his parents a new home. According to Ollison, there was a stave mill on the property “back in the 30’s.”

On cross-examination, Mr. Ollison could recall no recent public activity or function in the park. “[T]hirty-five, forty years ago,” according to this defendant, some outdoor church meetings were held in the park “[f]or ... a week or a few days.” A concrete structure had been built around the spring in the park, but Mr. Ollison had the opinion this concrete structure was built before he was born.

In rebuttal, the city had the evidence of Mrs. Lannie Flippen, a resident of Climax Springs for 71 years. Mrs. Flippen was familiar with the city park. In the “50’s,” Mrs. Flippen and her husband had hauled water from the park; “ ... it was a dry time and [the] ponds went dry.” Mrs. Flip-pen also recalled revival meetings in the park, meetings “where you had preachin’ and singin’ and prayin’ and testifying and people got saved .... ” This witness also produced small photographs of the realty at issue when it was being used as a public park in 1936. She also recalled attending a carnival in the park about 1930 and further described the concrete structure around the spring. The plaintiff had other testimony that as late as “the early 50’s” the park was being used as such.

Apparently, the trial court examined an abstract and found Mr. Camp to be a stranger to defendants Ollisons’ title, except for the deed already noted. Further, the deposition of Mr. A.R. Jackson was read in evidence, but we do not have the deposition before us. Even so, as we have already noted, the record is sufficient to resolve the meritorious questions raised in this court.

The appellant defendants have briefed two assignments of error. They contend that the city park was never dedicated to public use, because a) the city failed to comply with the statute pertaining to dedications; b) there was never any common-law dedication nor any acceptance by the respondent city, and c) even if there were a dedication, that dedication was revoked by the dedicator prior to acceptance by the city. The respondent answers by saying that: a) there was a proper statutory dedication of the park; b) if the plat did not meet the requirements of the statute, there was a valid common-law dedication, and c) there was no evidence that the dedicator revoked the dedication before it was accepted, if acceptance is required.

It is not clear from the record when the plat was originally filed. There is some indication on the face of the plat that it was filed October 28, 1895; however, it is clearly shown by the face of the instrument that it was “filed for record” January 4, 1915. We are, at the outset, remitted to general principles, and the principle which controls here is that the intention of the owner to set apart the land for the use of the public is the foundation of every dedication; that intention may be manifested in a subdivision plat filed in attempted compliance with the statutes: State ex rel. State Highway Commission v. Public Water Supply District No. 2 of Jefferson County, 559 S.W.2d 538, 541[6] (Mo.App.1977); City of St. Charles v. De Sherlia, 308 S.W.2d 456, 465 (Mo.App.1957). The intent to dedicate is amply manifested by the owners in this case, whoever they were. The plat was filed not once, but twice. In view of the curative statute, § 445.060, it is now of no consequence that the plat was not fully made, certified or executed or that it was not properly or fully acknowledged according to law at the time it was made and executed. The lapse of time has operated to cure any defective execution present in this case.

Neither is it of dispositive significance that no immediate user by the public was shown. We know judicially that the Village of Climax Springs was not incorporated as such until 1931. Therefore, the county of Camden was vested with title to the ground platted as a public park at the time the land was dedicated, and when the Village of Climax Springs was incorporated, the public park became a part of Climax Springs in the absence of evidence that the park was rejected as part of the incorporated village. Further, user by the public after the village was incorporated constituted acceptance; a formal resolution accepting the dedication was unnecessary. Section 445.070.3; Weakley v. State Highway Commission, 364 S.W.2d 608, 612[5-7] (Mo.1963); Bates v. Mueller, 413 S.W.2d 853, 855[3][4] (Mo.App.1967). There was, if nothing else, an effective common-law dedication of the city park.

One of the appellant defendants’ two trial theories was that the dedicator revoked his dedication by the quitclaim deed of 1904, the substance of which has been set out. The fatal flaw and weakness in this argument is that a quitclaim deed does not import that the grantor has any interest at all. Reasor v. Marshall, 359 Mo. 130, 140, 221 S.W.2d 111, 115 (1949). Moreover, the quitclaim recites that it has been executed in lieu of a lost deed “and no record of same.” The defendants were therefore in the position of relying on a lost instrument to establish that Camp’s quitclaim was efficient to revoke the dedication before it became effective. Perhaps there are circumstances which, if shown, will raise a presumption of the execution of a lost deed, but the defendant in a quiet title action who relies on a lost instrument has the burden to establish its execution, and there are no facts in this record upon which to predicate such a presumption. See, generally, Brooks v. Roberts, 281 Mo. 551, 561-562, 220 S.W. 11, 14[8][9,10] (1920). Defendants’ proof of title through a chain of conveyances beginning with the quitclaim from Camp to Nancy E. Jackson fails to establish that they have any right, title or interest in the property as against the plaintiff city, and the trial court properly so determined. If what we have said does not answer defendants’ first point directly, it is sufficient to show that point to be without merit.

The defendants’ other point is that the evidence shows an abandonment of the city’s easement. They again insist that the city’s collection of taxes unequivocally points to such an abandonment, but upon examination it will be seen that this argument is inherently contradictory. If the dedication was so defective as to have no legal force or effect, as defendants now claim, an assessment of taxes against the land described according to the plat would have been invalid, as would the sale for delinquency. State ex rel. and to Use of Jennings v. Hamilton, 293 S.W. 378, 379[1][2] (Mo.1927).

But if the dedication was valid, as we have held, then the assessment and collection of taxes on the tract in issue does not of itself constitute an abandonment nor prohibit the plaintiff from claiming it. Village of Climax Springs v. Camp, 609 S.W.2d at 734. Otherwise, defendants’ proof of abandonment is not as impressive as their counsel maintains. Generally, land dedicated to a particular public use cannot be diverted to another use. Kirkwood v. City of St. Louis, 351 S.W.2d 781, 784 (Mo.1961). This case does not require consideration of the same factors as does a case involving a public way. Very little expense or improvement is involved in maintaining a public park to a degree sufficient to avoid abandonment of the city’s easement. If a tract of land is suitable as a pasture for horses, we daresay it is suitable for use as a public park. In the final analysis, the question of abandonment vel non was a question of fact for resolution by the trial court. The public would not lose its interest merely by neglect or failure to care for the park. City of Fairfield v. Jemison, 283 Ala. 462, 218 So.2d 273, 275[2] (1969); 23 Am.Jur.2d Dedication § 67, p. 57 (1983). When we review a bench-tried case, our authority to reverse upon the ground that the judgment or decree.is against the weight of the evidence is limited to those instances in which review of the whole record creates a firm belief that the judgment or decree is wrong. Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976). We entertain no such belief here.

While we cordially agree with the trial court’s conclusion that title to the city park is vested in the plaintiff, we find it necessary to reverse and remand the cause. It is well established that in a quiet title action all persons properly made parties are entitled to have their respective titles affirmatively adjudged and declared. Harrington v. Muzzy, 258 S.W.2d 637, 638[1] (Mo.1953); Hansen v. O‘Malley, 356 Mo. 908, 913, 204 S.W.2d 281, 283[4,5] (1947); McComas v. Umlauf 641 S.W.2d 809, 812 (Mo.App.1982). In this case, the trial court apparently adopted a form of decree prepared by the plaintiff city which purports to vest the plaintiff with the fee simple title to the park. The record shows that title to the realty in dispute vested in the city by dedication, not by grant, and plaintiff acquired only an easement for public purposes subject to reversion. Land Clearance for Redevelopment Authority of the City of St. Joseph v. City of St. Joseph, 560 S.W.2d 285, 287 (Mo.App.1977). Further, other defendants were apparently served, although no proof of service appears in our record. Moreover, there may be some degree of ambiguity in the description of the premises, inasmuch as the plat before us indicates there are two parks, both of which have or have had, springs in them. These minor difficulties with the decree can doubtless be easily resolved by the trial court, but we consider it to be our duty to reverse and remand the cause for revision and possible correction of the decree. See Rubinstein v. Rubinstein, 283 S.W.2d 603, 608-609[ll] (Mo.1955). Accordingly, the decree is reversed and the cause is remanded.

MAUS, PREWITT and CROW, JJ„ concur.

      . The transcript shows that the trial court read the date of the second filing, or “refiling” as January 4th 1950 at 1 a.m. We are convinced this recital constitutes either inadvertence or transcriptional error.

      . References to statutes and rules are to RSMo 1978 and Missouri Rules of Court (13th ed. 1982), except where otherwise noted.


author: CROW, Presiding Judge.

text:
    In re the MARRIAGE OF Elizabeth Cheryl ALLEN and Harold Dean Allen. Elizabeth Cheryl ALLEN, Respondent, v. Harold Dean ALLEN, Appellant.
    No. 13398.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 28, 1984.

      Thomas K. O’Loughlin, II, O’Loughlin, O’Loughlin & McManaman, Cape Girar-deau, for appellant.
    John Wm. Ringer, Powell & Ringer, Dexter, for respondent.
   CROW, Presiding Judge.

Harold Dean Allen (“Harold”) appeals from a judgment (a) denying his motion to quash a garnishment against his wages, and (b) denying his motion for modification of the child support provisions in a decree of dissolution of marriage.

Harold and Elizabeth Cheryl Allen (“Cheryl”) married each other April 1, 1967, and became parents of two daughters, born February 1, 1970, and September 4, 1973, respectively.

On December 26, 1980, Cheryl and Harold, having ceased living together as wife and husband, signed a separation agreement which provided, among other things, that Cheryl would have primary custody of the daughters, and that Harold would pay Cheryl child support of $200 per month per child. The agreement went on to say:

“It is understood that the Husband is presently employed by Southwestern Bell Telephone Company, and that his salary is subject to annual increases in August of each year. The child supports [sic] payments above set forth shall be automatically increased in August of 1981 and in August of each year thereafter by the same percent of increase as the Husband receives in his salary with Southwestern Bell. No Motion for Modification shall be necessary for said increase.”

The agreement further provided that Harold would pay maintenance to Cheryl of $10 per month until her remarriage.

On December 29, 1980, Cheryl filed a petition to dissolve the marriage, praying, among other things, that the court approve the separation agreement, incorporate its provisions into the decree, and order the parties to perform the terms thereof.

On February 5, 1981, the trial court entered a decree of dissolution of marriage containing a finding that the separation agreement was “reasonable and not unconscionable.” As to child support, the decree ordered Harold to pay Cheryl $200 per month per child. It further provided that “said child support payments shall be automatically increased in August of 1981 and in August of each year thereafter by the same percentage of increase as the Respondent [Harold] receives in his salary with Southwestern Bell Telephone Company.” The decree also ordered Harold to pay Cheryl maintenance of $10 per month.

On October 22, 1982, Cheryl filed a “Motion to Determine Delinquency and for Issuance of Execution,” alleging that in August, 1981, Harold received a 10.645 per cent salary increase, and that in August, 1982, he received a 7.78 per cent increase. By reason thereof, Cheryl asserted that Harold’s child support payments should have gone up to $221.29 per month per child as of August 1, 1981, and to $238.51 per month per child as of August 1, 1982. Cheryl pleaded that Harold was paying only $200 per month per child, and was therefore $742.02 delinquent as of the date of the motion. She added that Harold had paid nothing on his maintenance obligation, and was thus $200 in arrears on that. Cheryl prayed the court to determine the aggregate amount owed, and to issue an execution therefor.

Several weeks later, Cheryl amended her motion, adding a request that Harold be ordered to make an “assignment of earnings” per § 452.350, RSMo 1978, as amended by Laws 1982, pp. 640-41.

In response to Cheryl’s motion, Harold filed an answer denying Cheryl’s allegations and stating affirmatively that no authority existed for the increase of any amounts in child support, or for any other amounts allegedly owed Cheryl.

On April 1, 1983, the trial court conducted a hearing on Cheryl’s motion. Cheryl and Harold appeared in person and with their respective attorneys. Both parties testified as to payments by Harold to Cheryl on the child support, and Harold admitted he had paid none of the maintenance.

On April 8,1983, the trial court entered a judgment finding that as of April 1, 1983, Harold owed Cheryl an unpaid balance of $1,686.64 for child support. In so finding, the trial court apparently accepted Cheryl’s theory that by reason of Harold’s salary increases, his child support obligation had automatically risen to $221.29 per month per child on August 1, 1981, and to $238.51 per month per child on August 1, 1982. The trial court also noted that Harold had paid nothing against the maintenance award since entry of the decree, and thus owed Cheryl $280 maintenance as of April 1, 1983. The trial court ordered execution issued for $1,966.64 (the sum of the $1,686.64 delinquent child support and the $280 delinquent maintenance). The court also ordered Harold to pay Cheryl an attorney fee of $300. Additionally, the judgment commanded Harold to assign Cheryl $487.02 per month from his earnings for the child support ($238.51 per month per child) and maintenance ($10 per month).

On April 20, 1983, a writ of execution was issued to collect the $1,966.64 delinquent child support and maintenance, and also the $300 attorney fee. In aid thereof, a summons to garnishee was served on Southwestern Bell Telephone Company, attaching Harold’s wages. The execution and garnishment were returnable July 20, 1983.

On May 2, 1983, the attorney who had represented Harold up to that time withdrew, and the attorney who now represents Harold entered an appearance. That same day, Harold, through his new attorney, filed a motion to set aside the judgment of April 8, 1983. Harold’s motion itemized certain “important, relevant and material evidence” which Harold’s prior counsel failed to present. Additionally, the motion asserted that the trial court “incorrectly interpreted the decree in that it is only reasonable that the overall wage increase of the Respondent [Harold] should be considered when support is increased.” According to the motion, evidence regarding Cheryl’s expenses and income, and Harold’s expenses, were necessary “to make a reasonable interpretation of the decree of dissolution.” The motion prayed for an order setting aside the judgment of April 8, 1983, and for a rehearing. We hereafter refer to Harold’s motion of May 2, 1983, as the “motion for rehearing.”

On May 13, 1983, Harold filed a motion to quash the garnishment against his wages. This motion, hereafter referred to as the “motion to quash,” alleged the judgment of April 8 was not final because the motion for rehearing was pending. Thus, according to the motion to quash, “no final judgment or determination of arrearage presently exists upon which garnishment can be issued.”

Simultaneously with the motion to quash, Harold filed a motion seeking, among other relief, an order “striking the provisions for automatic increases of child support from the decree of dissolution, or, alternatively, an order clarifying the ambiguities of the clause.” This motion, referred to hereafter as the “motion for modification,” also sought “a redetermination of the child support to be set at a reasonable level based upon all the facts and circumstances.”

The motion for modification alleged the provision regarding child support in the decree was unreasonable because (a) the formula was ambiguous and had been the subject of litigation, (b) Harold’s overall wage level had stayed constant or decreased since the decree, (c) Harold’s expenses had increased since the decree, (d) Cheryl’s income had increased since the decree, and (e) Cheryl’s expenses had “changed” since the decree. Nowhere in the motion for modification was there a contention that the provision for automatic increase in child support was invalid.

On May 31,1983, Cheryl filed a motion to strike Harold’s motion for rehearing and Harold’s motion to quash. Cheryl asserted that inasmuch as the motion for rehearing was filed May 2, 1983, and the motion to quash was filed May 13, 1983, each came later than 15 days after entry of the judgment on April 8, and therefore neither extended the 30-day period during which the trial court retained control over the judgment. Consequently, said Cheryl, the trial court was without jurisdiction to reopen the judgment, it having become final May 8, 1983. We hereafter refer to Cheryl’s motion of May 31 as the “motion to strike.”

On June 3, 1983, Cheryl filed an answer to Harold’s motion for modification, and she also filed a “cross-motion” seeking an increase in the maintenance from $10 per month to $90 per month.

On June 7, 1983, the trial court conducted a hearing on Harold’s motion for rehearing, Harold’s motion to quash and Harold’s motion for modification, together with Cheryl’s motion to strike and Cheryl’s cross-motion to increase maintenance. Both parties appeared in person and by counsel, and both parties testified.

Harold explained that his gross wages for the two-week pay period ending May 7, 1983, were $1,043.73. Amounts withheld were $223.87 for federal income tax, $69.93 for social security and $27.12 for state income tax. Harold added, however, that because of the garnishment and a “wage assignment” (presumably the one ordered in the judgment of April 8, 1983), he received only $9.38 in “take home” pay. For the pay period ending May 21, 1983, his gross wages were $1,261.83. After withholding for federal income tax ($302.65), social security ($84.54), and state income tax ($33.26), and additional withholdings for union dues, the garnishment and the wage assignment, he took home $26.05.

On June 30, 1983, the trial court entered a judgment disposing of all motions heard June 7. The judgment concluded that Harold’s motion for rehearing (filed May 2, 1983) was not timely, in that the judgment on Cheryl’s motion to determine the arrear-ages had been entered April 8, 1983. The June 30 judgment added, however, that the trial court had nonetheless considered the motion for rehearing, and had found that the judgment of April 8 was proper.

The June 30 judgment denied Harold’s motion to quash and denied Harold’s motion for modification. Regarding the latter, the judgment found there had been no changed circumstances so substantial and continuing as to make the terms of the decree unreasonable.

The June 30 judgment recited that the above rulings effectively disposed of the matters raised by Cheryl’s motion to strike. Lastly, the June 30 judgment denied Cheryl’s cross-motion to increase maintenance, but awarded her an attorney fee of $300.

On July 22, 1983, Harold filed a notice of appeal to this court. The notice identified the judgment appealed from as the one entered June 30, 1983. The judgment of April 8, 1983, was not mentioned.

Harold states his first point thusly:

“The trial court failed to grant appellant’s motion to quash a garnishment and assignment of wages and in doing so acted improperly in that:
1. The garnishment and assignment of wages took more than that allowed by the Federal Garnishment Act, 15 U.S.C. § 1671 et seq. (1970).”

The point is misleading. It indicates Harold’s motion to quash was directed against both the garnishment and the wage assignment. That, of course, is not so. The motion to quash attacked only the garnishment; it did not challenge the wage assignment.

Additionally, the motion to quash asserted only one ground for quashing the garnishment, i.e., that the judgment of April 8, 1983, was not final. The motion said nothing about the restrictions on garnishments under the federal Consumer Credit Protection Act, Subchapter II, 15 U.S.C.A. §§ 1671-77.

Moreover, we find nothing in the record showing that Harold, either before or during the hearing on June 7,1983, cited the federal garnishment restrictions to the trial court as a ground for quashing the garnishment or the wage assignment. Given the general rule that an appellate court will not, on review, convict a trial court of error on an issue which was not put before it to decide, Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36[12] (Mo. banc 1982); Young v. Smith by Burke, 648 S.W.2d 916, 919[6] (Mo.App.1983), Harold’s complaint that the amount withheld by his employer from his earnings exceeded the amount allowed by the federal garnishment restrictions could be denied on that ground alone.

However, even had the issue been properly presented to the trial court, Harold would not have been entitled to an order quashing the garnishment. The federal garnishment restrictions specify certain maximum percentages of an individual’s disposable earnings that may be garnished by a judgment creditor. When the debt is for the support of any person, the amount subject to garnishment ranges from 50 to 65 per cent of disposable earnings, depending on the circumstances. 15 U.S.C.A. § 1673(b)(2). If the amount of Harold's disposable earnings withheld by his employer because of the garnishment exceeded the amount allowed by the federal restrictions, Harold could have obtained relief by a motion asking the trial court to determine the amount of his wages protected from the garnishment. See Brown v. Brewington, 513 S.W.2d 768 (Mo.App.1974); Goforth v. Goforth, 301 S.W.2d 877 (Mo.App.1957). The trial court could have thereupon held a hearing and entered an order specifying the amount of Harold’s disposable earnings that should be paid to the sheriff pursuant to the garnishment, and the amount immune therefrom.

Harold failed to request that relief, seeking only to have the garnishment quashed. The garnishment, so far as we can determine, was properly issued and served, and Harold has not directed our attention to any defect therein. Harold cites no case, and we find none, holding that a garnishment must be quashed in toto merely because an employer withholds, for the benefit of the judgment creditor, a greater percentage of an employee’s disposable earnings than the law allows.

By analogy, if a judgment creditor seeks an execution and garnishment in aid thereof in an amount in excess of the amount actually due, the debtor may move to quash and the court should quash only so much thereof as is in excess of the amount actually due. Hardin v. Hardin, 512 S.W.2d 851, 855[4] (Mo.App.1974). In such circumstances, it is incumbent on the court to judicially determine, as near as may be, the amount due, and to quash the execution only so far as the amount seized 'thereunder exceeds such sum. Id.

We are persuaded that the same procedure should apply where the garnishee, in an attempt to comply with the writ, withholds a greater percentage of the employee’s disposable earnings than the law permits. In asking the trial court to quash the garnishment in its entirety, Harold sought relief to which he was not entitled.

It must also be pointed out that we cannot determine, on the record before us, whether the sums withheld by Harold’s employer from Harold’s disposable earnings for the two pay periods in issue were attributable solely to the garnishment, or whether a portion of each sum withheld was attributable to the wage assignment. It may be that the employer scrupulously followed the federal garnishment restrictions in regard to the garnishment, and that the employer assumed that additional amounts should be withheld under the wage assignment. If that is what occurred, Harold would obviously have been entitled to no relief regarding the garnishment.

Moving to the wage assignment, we understand Harold to say that the trial court should also have quashed it because it, in combination with the garnishment, resulted in his employer’s withholding a greater percentage of his disposable earnings than permitted by the federal garnishment restrictions.

As already observed, the record does not reveal how much, if any, of the withhold-ings from Harold’s disposable earnings by his employer were attributable to the wage assignment. Indeed, the record does not reveal how much was paid into court by Harold’s employer pursuant to the garnishment or the wage assignment. The hearing was held June 7, 1983, and the execution and garnishment were not returnable until July 20, 1983.

Assuming, however, that a portion of each sum withheld from Harold’s disposable earnings for the two pay periods in May, 1983, were attributable to the wage assignment, we fail to see how that would justify quashing the assignment in its entirety. Certainly, Cheryl was entitled to the benefit of the wage assignment so long as the amount of Harold’s disposable earnings withheld thereunder did not exceed the amount protected by federal or Missouri law. Assuming, without deciding, that the amount of Harold’s disposable earnings withheld by his employer pursuant to the wage assignment and the garnishment together should not have exceeded the federal garnishment restrictions, Harold’s remedy, as observed earlier, was to seek a determination of the proper amount by the trial court.

Harold, however, sought no such relief, and we will not convict a trial court of error for failing to take action which was never requested. Gambrell v. Kansas City Chiefs Football Club, 621 S.W.2d 382, 385[5] (Mo.App.1981). Harold's first point is, accordingly, denied.

Harold’s second point reads as follows:

“The trial court failed to modify the decree of dissolution because of substantial and continuing changed circumstances or incorrectly interpreted it, and in doing so acted improperly because:

1. The appellant’s disposable earnings had gone down or not increased from the date of the decree of dissolution.
2. The court incorrectly interpreted the terms of the decree by increasing support and determining arrearage where there were [sic] no increase in the appellant’s disposable income.
3. A decree provision for increased child support payments based only on increased hourly rates is unconscionable, unfair and unenforceable.
4. Automatic increases do not follow requirements for modification set out in 452.370 (Mo.Rev.Stat.).
5. The decree provisions requiring an automatic support increase is [sic] vague, unfair, not reasonably certain and void.
6. The child support provision cannot be executed upon by the court or court clerk without resorting to external proof and is thus void.”

In studying this point, we note that Harold offered no evidence to support reason “1” at the hearing on April 1, 1983. The only evidence before the trial court at that hearing was that Harold (as alleged by Cheryl) had received an increase of 10.645 per cent in his basic wage rate effective August 9, 1981, and an additional increase of 7.78 per cent effective August 8, 1982. The judgment of April 8, 1983, was therefore based on uncontradicted evidence that supported Cheryl’s position.

Harold’s present attorney obviously realized this when he filed the motion for rehearing on May 2, 1983, as that motion alleged Harold’s previous attorney failed to present evidence showing a reduction in Harold’s overall income and an increase in his expenses. That motion, of course, was untimely, and the trial court so found. More importantly, however, there was no appeal by Harold from the April 8 judgment. If that judgment was separately appealable (which we need not decide), the time for appeal therefrom had expired when Harold filed his notice of appeal on July 22, 1983. Rules 73.01(a)(3), 81.04(a) and 81.05(a), Missouri Rules of Civil Procedure (14th ed. 1983); Kirtz v. Advanced Instruments, Inc., 581 S.W.2d 868, 869-70[1] (Mo.App.1979). But even if an appeal could have been taken from the April 8 judgment on July 22, such was not done, as the notice of appeal makes no reference to the April 8 judgment. Consequently, Harold cannot in this appeal assign any error regarding that judgment. In re Marriage of E.A.W., 573 S.W.2d 689, 692[7] (Mo.App.1978).

Therefore, as Harold cannot now complain of error in the April 8, 1983, judgment (which was based on the evidence heard April 1) and as he does not allege any change in circumstances between April 8, 1983, and the hearing on June 7, 1983 (which hearing was the basis of the June 30, 1983, judgment whence came this appeal), there is nothing in reason “1” that provides any basis for reversal of the June 30 judgment.

The same is true of reasons “2” and “4.” If the trial court erred in ruling that Harold’s child support obligation had gone up because of his salary increases in August, 1981, and August, 1982, that error was made in the April 8, 1983, judgment, not the one entered June 30, 1983. Accordingly, it cannot be rectified in this appeal.

We thus turn our attention to reasons “3,” “5” and “6,” to determine whether they require reversal of that portion of the judgment of June 30 which denied Harold’s motion for modification. All three reasons challenge the validity of the provision that automatically raisés Harold’s child support obligation each time he receives an annual salary increase.

The trial court, of course, had concluded in the judgment of April 8, 1983, that the provision was valid, and that Harold’s child support obligation had automatically gone up when his salary increased in August, 1981, and again a year later. The arrear-ages determined by the trial court in the judgment of April 8 were the same as those calculated by Cheryl when she applied the provision to Harold’s annual raises.

As noted supra, Harold’s motion for modification nowhere asserted that the automatic increase provision was invalid, and we find nothing in the record indicating that Harold ever voiced that contention to the trial court. It is therefore doubtful that Harold has preserved the point for review. Germann v. City of Kansas City, 577 S.W.2d 54, 55[1] (Mo.App.1978); Ahlgren v. Colvin-Weber Realty & Investment Co., Inc., 507 S.W.2d 686, 688[3] (Mo.App.1974).

We need not, however, decide whether Harold may raise the point here because, in our view, the validity of the automatic increase provision is not in issue on this appeal. This appeal is from the June 30, 1983, judgment which denied Harold’s motion for modification. When that judgment was entered, the trial court had already, on April 8, 1983, upheld the validity of the automatic increase provision, and fixed the current amount of Harold’s child support obligation. The only child support question the trial court had to decide from the evidence it heard on June 7, 1983, was whether the amount of child support set by the April 8 judgment should be reduced. Nothing in the evidence on June 7 demonstrated a change in circumstances since April 8 that would justify a reduction in the child support fixed April 8.

It is consequently unnecessary for us to pass on the validity of the automatic increase provision, and we express no opinion thereon. If, in the future, Cheryl asserts that another increase in Harold’s salary has triggered another increase in child support, Harold can challenge that assertion by attacking the automatic increase provision in the trial court, and the issue will be before the trial court for adjudication. Or, should there hereafter be changes in circumstances which, in Harold’s opinion, justify a reduction in child support, he can file a motion to modify and thereby place the issue before the trial court.

At present, Harold’s child support obligation is fixed by the judgment of April 8, 1983, at $238.51 per month per child, and Harold’s second point affords no basis for reversing the judgment of June 30, 1983, which denied his motion for modification of that obligation. Harold’s second point is, accordingly, denied and the judgment of June 30, 1983, is affirmed.

HOGAN, TITUS and MAUS, JJ., concur.

PREWITT, C.J., not participating.

      . Harold’s brief also assigns error regarding a “Contempt Judgment” against him for failure to pay a debt on which he and his former wife were jointly liable, and which he had been ordered to pay in the decree of dissolution. The contempt judgment allowed Harold to purge himself of contempt by paying the debt in specified installments. During oral argument before us, the parties stipulated that this issue had become moot, in that Harold had paid the debt, thereby ensuring that no sanctions would be imposed against him under the contempt judgment. Accordingly, we confine our attention to the garnishment and child support issues.

      . We are not oblivious of Harold’s plight in receiving only $9.38 and $26.05, respectively, from two paychecks. That situation will evidently not recur, as Harold’s employer thereafter ceased withholding anything pursuant to the wage assignment, believing that the amount withheld pursuant to the garnishment equaled the maximum permitted by the federal garnishment restrictions, and that nothing additional could be withheld under the wage assignment. The employer indicated that once the garnishment was satisfied, the employer would honor the wage assignment in an amount that did not exceed 60 per cent of Harold’s disposable earnings.

      . The contempt issue (footnote 1, supra) was heard along with Cheryl's motion to determine the arrearages on April 1, 1983, but the contempt judgment was not entered until June 30, 1983. It could therefore be argued that because all issues heard on April 1, 1983, were not adjudicated until June 30, 1983, the judgment of April 8 was not final for purpose of appeal until June 30. We express no opinion on the merit of that hypothesis.

      . See Payne v. Payne, 635 S.W.2d 18 (Mo. banc 1982), and Bryson v. Bryson, 624 S.W.2d 92 (Mo.App.1981), which deal with dissolution decrees setting maintenance by means of a formula.


author: DROWOTA, Justice.

text:
    Larry J. POOL, Plaintiff-Appellee, v. METRIC CONSTRUCTORS, INC., Defendant-Appellant.
    Supreme Court of Tennessee, at Jackson.
    Dec. 10, 1984.
    Edwin E. Wallis, Jr., Moss, Benton & Wallis, Jackson, for defendant-appellant.
    T.J. Emison, Jr., Emison & Emison, P.C., Alamo, for plaintiff-appellee.
   OPINION

DROWOTA, Justice.

This action was brought to recover worker’s compensation benefits for injuries suffered in a one car accident following the employee’s work on a job in Columbus, Mississippi. The determinative issue in this case is whether the Plaintiff suffered injuries in the course of and within the scope of his employment. The trial judge awarded the employee benefits for temporary total disability and permanent partial disability and for medical expenses. The amount of injuries suffered are not disputed. Neither are the facts in dispute.

Plaintiff had been an employee of Defendant on a construction project in Jackson, Tennessee. When that project was completed, Plaintiff and several other workers were laid off. Plaintiff resided near Alamo, Tennessee and drove his own vehicle to Jackson. While working in Jackson, Plaintiff received an hourly wage but was not reimbursed for travel from Alamo to Jackson. Shortly after the layoff, Defendant contracted to do construction work in Columbus, Mississippi. Defendant contacted several carpenters who had worked on the Jackson project, including Plaintiff, and inquired whether they were interested in short-term work in Columbus, Mississippi. Plaintiff accepted Defendant’s offer of $10.50 per hour, $25.00 per diem per day for room and board, and $.20 per mile travel reimbursement. Plaintiff travelled to Mississippi on October 15, 1981, to begin work that was expected to last about 10 days. Plaintiff and the other workers worked approximately 14 hours per day and the work was completed in five days. After work was completed on October 19, 1981, Plaintiff waited until about 10:00 p.m. to receive his check. After checking out of the motel, Plaintiff and a co-worker went by the room of the foreman, Jack Watson. During this visit Plaintiff consumed at least one drink of whiskey. Mr. Watson advised both men to stay the night and not attempt to drive back to Alamo. Defendant agreed to pay for Plaintiff’s lodging that night. However, Plaintiff decided he wanted to go home that night and left around midnight. On the outskirts of Aberdeen, Mississippi, approximately one hour north of Columbus, Plaintiff apparently fell asleep at the wheel and was injured in a one car accident, sustaining leg and chest injuries.

The Chancellor determined that there was no proof that intoxication caused the accident. The Chancellor further held that the injury was compensable because the “journey was an inherent part of the service performed by Plaintiff for the Defendant.”

The general rule in Tennessee is that an injury received by an employee on his way to or from his place of employment does not arise out of employment and is not compensable. Smith v. Royal Globe Ins. Co., Inc., 551 S.W.2d 679 (Tenn.1977); Little v. Johnson City F. & M. Co., 158 Tenn. 102, 11 S.W.2d 690 (1928). However, we have recognized a number of exceptions to this general rule. In general, we have allowed coverage where the journey itself “is a substantial part of the services for which the workman was employed and compensated.” Smith v. Royal Globe Ins. Co., supra at 681, citing Douglas v. Lewis Bros. Bakeries, Inc., 477 S.W.2d 202 (Tenn.1972).

With this general rule in mind, the issue in this case is whether there is material evidence to support the trial judge’s finding that Plaintiff’s journey was an inherent part of the service performed by Plaintiff for the Defendant. We find that there is material evidence to support the finding of the Chancellor and therefore affirm the judgment below.

During the course of Plaintiff’s employment with Defendant in Jackson, Tennessee, he commuted daily and no reimbursement for travel was provided in the contract of employment. Conversely, on the job in Mississippi, a per diem and a twenty cents per mile travel reimbursement was part of the agreement. Defendant sent Plaintiff on a substantial journey, Columbus, Mississippi being a distance of 120 miles from Alamo, Tennessee. The employment agreement for the Mississippi job was quite different from that normally used by Defendant when local labor was utilized.

Plaintiff was employed as a carpenter which required him to carry his own tools. He testified that he carried his own tools in his truck and that that was one of the reasons that he took his own truck. We are convinced that this fact, in conjunction with the provision for transportation in the employment contract, is sufficient to remove this ease from the general rule of non-liability under the “going and coming” rule of Smith v. Royal Globe Ins. Co., supra.

We have repeatedly held that where an employer, as part of the contract of employment, furnishes transportation to the employee, an injury sustained while using that transportation is compensable. Eslinger v. F & B Frontier Construction Co., 618 S.W.2d 742 (Tenn.1981); Anderson v. Sam Monday Motors, 619 S.W.2d 382 (Tenn.1981); Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754 (1964). In the case at bar, the need of the employee to carry tools to the jobsite coupled with the provision by the employer of reimbursement of travel expenses, is sufficient to place the accident within the course of and in the scope of employment. T.C.A. § 50-6-102(a)(4).

We do not feel that the case at bar is controlled by Knox v. Batson, 271 Tenn. 620, 399 S.W.2d 765 (1965). In that case employees died of asphyxiation caused by the leakage of gas from a heater in a motel room where the employees were staying. The employees were given the option of commuting to the jobsite or finding accommodations nearer their work. The employees on their own volition decided to stay in the motel and therefore the lodging was not a direct incident to the employment. The lodging related “exclusively to the comfort and convenience of the employees, it being not so far removed from the fixed site of their daily work.” 399 S.W.2d at 775. In the case at bar, Plaintiff was required to travel to Mississippi to perform the work. In Knox v. Batson, this Court quoted with approval the test laid out in Free v. Indemnity Ins. Co., 177 Tenn. 287, 292, 145 S.W.2d 1026, 1028 (1941): “If the business of the master creates the necessity for the travel, the servant is in the course of his employment.”

We take notice of the fact that the majority of jurisdictions adhere to the rule that where the employer makes a deliberate and substantial payment for the expense of travel, or the provision of an automobile under the employee’s control, the journey is held to be in the course of employment. 1A. Larson, Workmen’s Compensation Law § 16.30, at 4-158 (1978). See, e.g., U.S. Fid. & Guar. Co. v. Donovan, 221 F.2d 515 (D.C.Cir.1954); United States Fire Ins. Co. v. Phillips, 124 Ga.App. 7, 183 S.E.2d 13 (1971). As noted previously, this Court has repeatedly held that the furnishing of a vehicle by the employer is sufficient to place travel within the scope of and in the course of employment. Anderson v. Sam Monday Motors, supra; Eslinger v. F & B Frontier Construction Co., supra. Analytically there is little difference in principle between furnishing an amount in cash equivalent to the value of the use of the employee’s own car and furnishing the car itself. Coupled with the need of the Plaintiff to carry his tools with him to the job site, the reimbursement for travel is sufficient to remove this case from the general rule of non-liability.

Our inquiry is restricted to whether there is any material evidence to support the finding of the Chancellor that the injury was compensable and that “the journey was an inherent part of the service performed by Plaintiff for the Defendant.” T.C.A. § 50-6-225(e). We find that there is material evidence to support the Chancellor’s ruling. The judgment is affirmed and costs of this appeal are taxed to the Defendant-Appellant.

COOPER, C.J., and FONES, BROCK and HARBISON, JJ., concur.


text:
    Rodney J. MOODY, Appellant, v. Rose M. MOODY, Appellee.
    Supreme Court of Tennessee, at Jackson.
    Dec. 10, 1984.

      Hughie Ragan, Jackson, for appellant.
    Patrick F. Martin, Jackson, for appellee.
   OPINION

PER CURIAM.

The issue in this divorce case is the availability of relief under T.R.C.P. 60.02 to a party, who did not personally receive notice of entry of the final decree until after the expiration of the time for appeal. The trial judge granted relief, set aside the decree, and immediately reinstated it. The Court of Appeals affirmed and on consideration of the merits of the appeal, modified the decree of the trial judge with respect to the disposition of real property.

The facts are not in material dispute. The parties, by complaint and cross-complaint, sought a decree of divorce. On July 20, 1984, after hearing evidence by oral testimony, the trial judge awarded an absolute divorce to Rose Moody and made, distribution of the real and personal property of the parties. Both parties were present at the time the trial judge announced his decision.

After consultation with the trial judge, counsel prepared and approved the decree for entry, as is shown by the signatures of counsel for both parties on the decree. The decree was entered on August 12, 1982.

On January 4, 1983, Mrs. Moody filed a Rule 60 motion seeking to have the decree of divorce set aside on the ground of “surprise or excusable neglect.” In support of her motion, Mrs. Moody alleged in substance that the distribution of property set forth in the decree was different from her understanding of the oral ruling by the trial judge, and that the failure to receive notice of these changes had deprived her of the opportunity to appeal.

After a hearing on the motion, the trial judge found that Mrs. Moody “did not receive notice of the final order in this cause, through excusable neglect or inadvertence,” vacated the decree of divorce and immediately reinstated it, without change.

In colloquy with counsel for Mr. Moody, the court had the following to say:

Here’s what I am going to do. I’m going to reaffirm the judgment as of this date, and that will give her the opportunity to appeal the case, you too if you want to, on the ground that she did not have notice.

In our opinion, the action of the trial judge was in error. It is undisputed that Mrs. Moody was represented by counsel, that her counsel knew of the property distribution announced by the court and set forth in the original decree of divorce, that he had approved the decree entered by the trial court and knew of its entry. Counsel’s knowledge must be attributed to his client, if the actions of the court are to have any efficacy. If it were otherwise, the limitation on time of filing a notice of appeal could be easily circumvented, and that is not the purpose of Rule 60.02.

Judgment of the Court of Appeals is reversed. The appeal in this cause is dismissed, leaving in force the decree of the Chancery Court of Madison County. Costs incident to the appeal are adjudged against Rose M. Moody and her surety.


author: HARBISON, Justice.

text:
    Paul E. NELMS and Nancy Nelms MacIntosh Wilson, Plaintiffs-Appellants, v. T.J. WEAVER, Jr. and Security Bank & Trust Company, Defendants-Appellees.
    Supreme Court of Tennessee, at Jackson.
    Dec. 10, 1984.
    H. Morris Denton, Bolivar, for plaintiffs-appellants.
    Fred N. McLean, Lee M. Greer, III, Paris, for defendants-appellees.
   OPINION

HARBISON, Justice.

Appellants brought this action seeking a declaratory judgment that stock certificates in Security Bank & Trust Company held by Mrs. Nancy Nelms Macintosh Wilson were validly and properly issued to her. Appellants sought to require that the stock certificates be executed by T.J. Weaver, Jr., Chairman of the Board of the corporation. Counterclaims were brought against appellants by Mr. Weaver individually and by the corporation to cancel the certificates and to obtain a declaration that they had been improperly issued in violation of both a stockholders’ resolution and a buy-sell agreement between Paul E. Nelms and Mr. Weaver. Mr. Nelms is the father of Mrs. Wilson. He and Mr. Weaver together held ninety-nine percent of the outstanding stock of the corporation at the time when the certificates in question were issued.

The Chancellor held against appellants, finding that the certificates in question were issued in violation both of the stockholders’ resolution and of the buy-sell agreement. He further found that appellants had failed to prove that Mr. Weaver had prior knowledge of the transfer of stock to Mrs. Wilson, and he found that other minority stockholders in the corporation were not consulted before the transfer was made. Mr. Nelms was president of the corporation as well as a major stockholder. The Chancellor found that the other shareholders of the bank were not precluded from enforcing the shareholders’ resolution by reason of estoppel, waiver, acquiescence or laches. He held that Mr. Nelms was the author of his own misfortune in not adhering to the written provisions of both the resolution and the buy-sell agreement.

The testimony at the trial was sharply conflicting, but there is no claim that the findings of the Chancellor lacked support in material evidence. Indeed, on appeal, there was no challenge to the findings of fact of the Chancellor, and these were concurred in by the Court of Appeals. Accordingly the ease comes before this Court on concurrent findings of fact, supported by material evidence, and as a result all factual issues in the case are foreclosed here. T.C.A. § 27-1-113.

In other findings the Chancellor held that Nelms was not guilty of actual fraud in having the certificates issued to his daughter and that his action in doing so had not been secret or concealed. The Chancellor concluded that the dispute in the case essentially involved the rights of Nelms and Weaver, despite the fact that there were other minority stockholders. He accordingly ordered the certificates issued to Mrs. Wilson to be rescinded but then held that Mr. Nelms would be given an option to purchase the shares issued to her. To the extent he failed to do so, the remainder would be reissued to the other shareholders in accordance with the shareholders’ resolution, upon return of the original purchase price to Mrs. Wilson.

The Court of Appeals reversed this portion of the holding of the Chancellor, finding that Nelms, as an officer and major stockholder of the corporation, had violated his fiduciary duties to the other stockholders in having the certificates issued to an outside third person in violation of the shareholders’ resolution. It accordingly affirmed the rescission of the sale of stock to Mrs. Wilson, upon refund being made to her by the corporation, and directed that the shares in dispute then be offered to the other stockholders to the exclusion of Nelms. It treated the actions of Nelms as tantamount to his rejecting or not asserting his pre-emptive rights since he did not exercise them in the manner required of all other stockholders.

We are of the opinion that the Court of Appeals reached the correct conclusion. The shares in question were part of a new stock issue authorized by the corporation. The stockholders’ resolution required that each stockholder be offered pre-emptive rights in the new issue, as required by statute, T.C.A. § 48-1-713, and that in the event any shareholder elected not to exercise his pre-emptive rights, the shares should be offered pro rata to the remaining stockholders.

Although owning only one percent of the outstanding shares, the minority stockholders exercised their pre-emptive rights and took all of the shares which they were entitled to receive under the resolution. One of them testified at trial that he was prepared to purchase a substantial block of the stock if he could obtain it, and that he had made this known to other stockholders on previous occasions. It thus appears that the contractual rights of the other stockholders were not academic, and it is clear that Mr. Nelms, as president of the corporation, ignored these in having the shares to which he was entitled issued to an outside person, without consultation with or waiver by the other stockholders.

Both courts below also found that Mr. Nelms violated the buy-sell agreement between him and Mr. Weaver, and, on counterclaim by Weaver, the Chancellor voided that agreement as to all future transactions. Both courts impliedly rejected Weaver’s insistence that the shares in question be offered to him under that agreement, finding that the terms and provisions of the shareholders’ resolution were controlling, and we affirm that decision. This does not preclude his purchase of a pro rata portion of the shares, however, when they are returned to the corporation and offered for reissue. Appellants have not sought any such relief against Weaver as a part of their action, nor have the minority stockholders made any such claim.

Although we granted the application of appellants for further review of the case, we are of the opinion that under the findings of fact made by the courts below the issues presented are without merit. It is the insistence of appellants that the Court of Appeals improperly substituted its judgment as to appropriate equitable relief for that fashioned by the Chancellor. The Court of Appeals, however, relied upon well-settled rules of corporate law, to the effect that officers and directors of the corporation occupy a fiduciary relationship to their shareholders, as, indeed, do majority stockholders toward minority stockholders. See generally Heylandt Sales Co. v. Welding Gas Products Co., 180 Tenn. 487, 175 S.W.2d 557 (1943); Johns v. Caldwell, 601 S.W.2d 37 (Tenn.App.1980).

The principal claims of appellants at the trial of this case were that Mr. Weaver was aware of the issuance of the shares to an outsider, Mrs. Wilson, and that he both expressly agreed to it and thereafter acquiesced in it. The Chancellor found these factual issues against appellants, and the Court of Appeals concurred in those findings. Had the facts been found otherwise, there might be a predicate for precluding Weaver from participating in the purchase of the disputed shares, but even then it is undisputed that the rights of the other minority stockholders in the case had been ignored and disregarded by the president of the corporation. Under these circumstances, in our opinion, the Court of Appeals correctly held that he was not entitled to seek relief in this case or to have the certificates validated.

All of the stock certificates involved required the signatures of the cashier and of one of the chief executive officers of the corporation. The shares issued to Mrs. Wilson bore the signature only of the cashier, and the place for the signature of an executive officer was left blank. Nelms testified that it was his understanding that Weaver would execute the certificates to Mrs. Wilson, but Mr. Weaver denied this and, again, that factual issue is foreclosed here, as are the other factual claims of waiver, estoppel, acquiescence or laches.

Mr. Nelms testified at trial that it was his understanding that he would sign the certificates issued to Weaver, and that Weaver would sign the certificates issued to Nelms or his nominee. The record is to the contrary. Mr. Weaver is shown to have signed all certificates of stock which were issued by the corporation on the date in question, including those issued to him, and no stock certificate in the record bears the signature of Nelms. It may be that Nelms signed some debentures issued at the same time, but none of these are in the record. The credibility of Nelms and his witnesses on the issue of whether Weaver was supposed to execute the questioned certificates was sharply drawn in issue and has been resolved against appellants.

The stock issue in question occurred on June 29, 1979, following a resolution of the shareholders dated June 12. Formal demand that the shares issued to Mrs. Wilson be rescinded was not made until the latter part of 1980, nearly eighteen months later. In the meanwhile, however, the fact that the shares had been issued to her in violation of the shareholders’ resolution had been discovered.' There was considerable discussion thereafter of the issuance of additional shares to the other stockholders to rectify and to adjust this situation. The corporation was in need of still further capital, and there is testimony which, if credited by the Chancellor, would have shown that the entire matter was under consideration for a long period of time.

The recapitalization did not occur, but the Chancellor found as a fact that there was no laches, acquiescence or waiver on the part of Mr. Weaver or of the other stockholders in the improper action of Nelms in having the certificates issued to a third person, even though that person was his daughter. She was sui juris and paid for the shares with her own funds. She is not shown to have been a mere alter ego of Nelms, and the situation with respect to her is no different from that which would have occurred had Nelms refused to take the shares himself and directed that they be issued to a completely unrelated third person.

The corporation was closely held, and the shareholders’ resolution clearly required that if any shareholder did not purchase any or all of his proportionate share of the stock offered for sale, then the right to purchase the unsold stock should be prorated among the remaining shareholders. This effectively restricted the new issue to the existing shareholders unless and until they waived or declined to exercise their rights, and this did not occur.

Appellants have insisted that the new shares were issued in violation of T.C.A. § 48-l-713(e), requiring notice to shareholders entitled to exercise pre-emp-tive rights, such notice to be given at least thirty days prior to the expiration of the period during which the right may be exercised. The record contains no evidence of any violation of this statute. Although the actual issuance of the shares occurred within thirty days from the date of the resolution, insofar as the record reveals all shareholders had full notice of the proposed action, and none claims to have been deprived of an opportunity to exercise preemptive rights because of any lack of notice.

Appellants also insist that the action to rescind the certificates issued to Mrs. Wilson should have been brought by the individual stockholders themselves and not by the corporation. The record clearly shows, however, that demand was made upon the officers and directors of the corporation by the minority stockholders to take corrective action, and the suit by the corporation was expressly authorized by the Board of Directors.

We find no merit in the claim of appellants. No question was raised in the pleadings or at trial with respect to the standing of the corporation to maintain the counterclaim for rescission as required by Rule 9, T.R.C.P. Even had such an issue been raised, however, there is authority in this state for the corporation to act as a party in the bringing of a suit to rescind and to enjoin the illegal issuance of shares. Petre v. Bruce, 157 Tenn. 131, 7 S.W.2d 43 (1928). In that case the action was brought for and on behalf of the corporation as well as by a shareholder, an officer and a director. This Court affirmed the action of the Chancellor in granting relief. See also Deaderick v. Wilson, 67 Tenn. 108, 131 (1874); Bourne v. Williams, 633 S.W.2d 469, 471 (Tenn.App.1981); 18 Am.Jur.2d, Corporations § 253 (1965).

The judgment of the Court of Appeals, directing rescission of the shares issued to Mrs. Wilson upon repayment to her of the original purchase price, is affirmed. Its action in precluding Nelms from participating in the reissuance of the disputed shares is also affirmed. The cause is remanded to the chancery court for such further proceedings as may be necessary. All costs incident to the appeal are taxed to appellants.

COOPER, C.J., and FONES, BROCK and DROWOTA, JJ., concur.

      . The Chancellor found that there was "an apparent misunderstanding or failure to communicate between Nelms and Weaver as to the events that transpired relative to the issuance of the stock to Wilson.” Since he also found, however, that Weaver had no prior knowledge of the actions of Nelms, responsibility must rest upon Nelms for his failure to exercise properly his pre-emptive rights.

      . See 18 Am.Jur.2d, Corporations § 280 (1965).

      . Mrs. Wilson was present at the trial but did not testify. She has not claimed to be a bona fide purchaser without notice, nor has she asserted any other claims under the Investment Securities article of the Uniform Commercial Code, T.C.A. §§ 47-8-101 to 47-8-406.


text:
    In re BOARD OF LAW EXAMINERS.
    Supreme Court of Tennessee, at Nashville.
    Dec. 19, 1984.
   ORDER

On September 26, 1984 there was filed in this Court a statement of policy concerning the practice of law filed by the Tennessee Board of Law Examiners, together with an opinion dated September 25, 1984, in which the Board stated its rationale for the adoption of that policy.

The policy sets out criteria and standards by which the Board will determine whether or not an individual is engaged in the practice of law for purposes of licensure and admission to the Bar.

Prior to the filing of its opinion and Statement of Policy, the Board had extensive hearings during August 1984 on the subject and received applications from a number of individuals for licenses to practice law without examination. During October 1984 the Board issued orders certifying seven persons as being qualified for admission without examination, and during November 1984 it issued orders certifying five others persons as being so qualified.

The Board has requested this Court to consider its actions with respect to all of the foregoing, and the Court has done so. After consideration of the foregoing Opinion of the Board and its accompanying Statement of Policy, and of the individual orders issued by the Board during October and November 1984, the Court is of the opinion that the actions of the Board should be and the same hereby are in all respects approved, ratified and confirmed, and it is accordingly so ordered.

COOPER, C.J., and FONES, BROCK, HARBISON and DROWOTA, JJ., concur.


author: FRANKS, Judge.

text:
    Becky F. BREWER, et al., Plaintiffs-Appellants, and Counter-Defendants, v. Scott HAYNES, et ux., et al., Defendants-Appellees, and Counter-Plaintiffs, and Joseph P. Ridenour, et ux., Intervening Plaintiffs.
    Court of Appeals of Tennessee, Eastern Section.
    Aug. 14, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 17, 1984.

      Thomas Privette, Jr., Knoxville, for plaintiff s-appellants and counter-defendants.
    Jack W. Bowers, Knoxville, for defendants-appellees and counter-plaintiffs Haynes.
    Gerant J. Maitlen, Knoxville, for defendants-appellees and counter-plaintiffs Jordan.
   OPINION

FRANKS, Judge.

This action by plaintiffs-purchasers to set aside the purchase of a retail ceramics business in Knoxville on the theory defendants fraudulently misrepresented the profitability of the business to plaintiffs, was dismissed by the chancellor at the conclusion of plaintiffs’ proof.

On December 31, 1981, plaintiffs entered an agreement to purchase “all stock, inventory, merchandise, fixtures, equipment and accounts receivable at Debtors’ retail ceramics business located at 7122 Commercial Park Drive, Knoxville, Tennessee.” After operating the business for four months, they voluntarily closed the business and brought this action, asserting they were fraudulently induced by defendants to believe the business was profitable when, in fact, the operation of the business was determined to be unprofitable.

At the conclusion of plaintiffs’ proof, which consisted of the testimony of the two plaintiffs and defendants’ bookkeeper, who prepared defendants’ business records, the chancellor, responding to defendants’ motion to dismiss pursuant to T.R.C.P., Rule 41.02(2), observed:

While fraud in equity may not require an intent or knowledge on the part of the Haynes [defendants] to misrepresent, the plaintiffs must show a reliance on a misrepresentation, and without a showing that the statement relied upon was, in faqt, a misrepresentation, their case must fail.

A trial judge, when confronted with a motion to dismiss at conclusion of plaintiffs’ proof in a bench trial, is required to impartially weigh and evaluate the evidence in the same manner as the judge would in making findings of fact at the conclusion of all the evidence. If the plaintiff has not made out a case by a preponderance of the evidence, a judgment may be properly entered against the plaintiff on the merits without hearing further evidence. City of Columbia v. C.F.W. Const. Co., 557 S.W.2d 734 (Tenn.1977).

The chancellor’s judgment is accompanied by a presumption of correctness in this court, T.C.A., § 27-3-103, and our review of the evidence does not establish a misrepresentation of a material fact by defendants, which is required to establish fraud. Graham v. First American Nat. Bank, 594 S.W.2d 7-23 (Tenn.App.1979).

The basis of plaintiffs’ claim for fraud is that during negotiations defendants’ bookkeeper furnished plaintiffs with a statement of income and expenses covering the period of January 1 to September 30, 1981, reflecting a “net operating profit” of $8,743.92. The statement details inventories, purchases, gross profit and itemized operating expenses for the current month as well as the year to date. After purchasing the business, plaintiffs learned that defendants had in their possession monthly statements of income and expenses for the period in question showing a “net operating profit” of $1,195.43.

The bookkeeper explained at trial that the latter statement was prepared prior to the statement furnished plaintiffs for in house purposes and included no inventory figures and the statement furnished plaintiffs was prepared for the realtor to show the actual status of the business, including the inventory figure. The bookkeeper testified he advised plaintiffs that the inventory figure had been estimated and suggested a formal inventory be taken. In fact, the defendants took an inventory the last week of December, 1981, but plaintiffs chose not to participate.

While the practice of including inventory in the “net operating profit” may be confusing, an examination of the accounting furnished plaintiffs reveals the inventory item was included in the “net operating profit”. Plaintiff Sweat testified:

Q. ... Pick the figure out there and tell me which figure you thought was the inventory as it was as of September 30, 1981.
A. $8,820.00.
Q. Okay. Now when you take that figure and make all the additions and subtractions all the way down the page, that’s what you come up with as your net operating profit, isn’t it? You have to make adjustments to that as you come on down the page for operating expenses?
A. Yes.
Q. So the inventory is included in the net operating profit when you come right on down the page with the figures, including the figure that you picked out; isn’t that correct?
A. Yes.
Q. So as I understand what you’re saying, your complaint is, that based upon this particular statement and your experience in the four months that you operated the business, that the figures didn’t prove out?
A. Yes.
Q. In other words, your experience with the business over the four months didn’t meet the same figures that were shown on this statement? Is that basically what you’re telling me?
A. Basically, yes.
Q. Now while you were there, Mr. Jordan also showed you the October, 1981, statement, didn’t he?
A. Yes, he did.
Q. And went over that with you?
A. Yes.
Q. And you never asked for any other records other than what ... you were given and what was shown to you.
A. We asked Mr. Jordan if he had all the records to substantiate all the figures on here. He said, yes, he did.
Q. You didn’t ask for copies of them, did you?
A. He said that everything was on this statement of income and expenses. No, we did not ask for copies.
Q. So you got, in essence, what you asked for, didn’t you?
A. I suppose so, yes.

The evidence does not preponderate against the chancellor’s conclusion that the statement of income and expenses furnished to plaintiffs is not a false representation of the profitability of the business. Accordingly, the judgment of the chancellor is affirmed and the costs of appeal assessed to appellants.

PARROTT, P.J., and SANDERS, J., concur.


author: HIGHERS, Judge.

text:
    FELD TRUCK LEASING, DIVISION OF GELCO CORPORATION, for Itself and f.u.b. Home Insurance Company, Plaintiff, Appellant, Cross-Appellee, v. ABC TRANSNATIONAL TRANSPORT COMPANY, Defendant, Appellee, Cross-Appellant.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Aug. 22, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 17, 1984.
    Mimi Phillips White of The Winchester Law Firm, Memphis, for plaintiff, appellant, cross-appellee.
    Timothy A. Ryan, III, Holt, Batchelor, Spicer, Ryan & Flynn, Memphis, for defendant, appellee, cross-appellant.
   HIGHERS, Judge.

This dispute arises under an indemnity agreement between the parties.

Feld Truck Leasing (Feld), a division of the Gelco Corporation, leased a tractor trailer truck to ABC Transnational Transport, Inc. (ABC). As part of the contract, ABC agreed to “indemnify Feld and hold it harmless from any and all claims for injury to persons and damage to property and any and all expenses incurred in the defense of any such claims to the extent not paid by Customer’s [ABC’s] insurance carrier ...” On the day following the lease agreement, the truck, driven by an ABC employee, caused an accident involving five other vehicles. Feld’s insurer, Home Insurance Company (Home), on that day contacted all but one of the persons involved in the accident. The remaining party was contacted shortly thereafter. Home moved to settle quickly with the injured victims without regard to where liability would fall as between Feld and ABC. Home eventually issued checks totalling $27,361.60 to compensate the victims. These checks carried dates ranging from September 7, 1978 to December 10, 1979.

In the meantime, a disagreement had arisen between Feld and ABC as to the cause of the accident and the burden of liability. Representatives of both Feld and ABC met at the scene of the accident. ABC’s driver apparently stated at that time that the brakes on the truck had failed. Feld immediately sent a mechanic to the scene of the accident to check the brakes, and the mechanic reported that there were no defects. Feld’s representatives told ABC’s representatives that ABC would have to handle the insurance, but ABC informed Feld that it did not have insurance to cover the accident, contrary to the terms of the agreement, and that it was ABC’s policy to have the lessor (Feld) provide the insurance coverage.

William Knight, who handled the matter for Home, was advised of the status of the matter. He testified that under the terms of the lease, Home could have been responsible; and if the brakes had in fact failed, Home would definitely have been responsible. Not wishing to rely on the report of Feld’s mechanic, Knight commissioned an underwriter’s report. The report showed that the brakes had been in good operating condition. The report was made some thirty to forty-five days after the accident. By this time, Home had already issued settlement checks to some of the victims. Knight proceeded with the settlements because the truck prominently displayed Feld’s name and it was felt that Feld would become the target defendant for the claims of injured victims.

Feld settled with the remaining victims. No suit was ever filed against ABC for damages arising from the accident. When Feld requested payment for the settlements and for damages to the truck, ABC refused to pay and Feld thereafter brought an action against ABC to collect pursuant to the agreement between the parties.

ABC presented no proof at trial, but relied solely upon the examination of witnesses for the plaintiff. ABC argued that there was no evidence of any defect in the brakes, that Feld was not liable for the accident, and that all payments made by Feld in settlement of claims were volunteered by Feld and not recoverable from ABC under the indemnity agreement. The trial court, sitting without a jury, found that Home was subrogated to Feld’s rights against ABC, but “only to the extent of reasonable payment for Feld’s obligations.” The court awarded Feld $13,526.16 for damages to the tractor trailer, $5,700.00 in attorney’s fees, and “[i]n view of the fact that Feld had little or no liability in the case” the court awarded Feld $9,120.53 or one-third of the settlement payments made by Home.

Both parties have appealed. Feld contends that the trial court should have awarded the full amount of the settlement payments, and ABC argues that it owes nothing to Feld for the amounts paid.

ABC maintains that Feld is not entitled to indemnity because the payments were voluntary in that Feld was not liable to the victims and therefore not required to make the settlements. Liability, often vicarious liability, is generally required in situations of implied indemnity. Here, however, indemnification arises expressly and by contract. Contracts of indemnity under which the indemnitee makes payments in good faith to a third party have been held sufficient to require restitution from the indemnitor. In Massachusetts Bonding & Insurance Co. v. Gautieri, 69 R.I. 70, 30 A.2d 848 (1943), and in Fidelity & Dep. Co. of Maryland v. Bristol Steel, 722 F.2d 1160 (4th Cir.1983), claims by indemnitees for restitution were upheld under agreements which provided that the sureties had the right to reimbursement for payments made in good faith and under the belief that it was necessary or expedient to make such disbursements, whether or not such liability, necessity, or expediency existed. These cases dealt with particular contractual language which is not present here, but they do indicate that in certain circumstances there is a duty to reimburse the indemnitee even where liability does not exist or has not been established.

In the present case ABC elected under its contract to provide liability insurance to cover the truck. After the accident and after Feld began receiving calls from the accident victims, ABC’s representatives stated in conversations with Feld that they did not have insurance to cover the accident and that they “thought that [Feld’s] insurance should cover it.” This evidence is not contradicted. It establishes the fact that ABC left the victims’ claims to be handled by Feld and its insurer. As stated in 42 C.J.S. Indemnity, § 14(2):

[A] bond or contract of indemnity does not protect the indemnitee against loss through a payment which is entirely voluntary on his part, in the sense that there is no legal obligation on him to make it, unless such -payment is made with the knowledge and approval of the indemnitor. (Emphasis added).

There is no indication that ABC acquiesced in Feld’s handling of the claims because of belief that Feld was responsible for the accident, and there is nothing to suggest that ABC did not expect to be required to indemnify Feld simply because it agreed to Home’s handling of the claims. Under one paragraph of the contract, Feld would have provided insurance coverage, and under a different paragraph (which was elected by ABC) ABC was required to provide liability coverage. Under either paragraph, however, ABC expressly agreed to “indemnify Feld and hold it harmless from any and all claims for injury to persons or damage to property ...” We do not believe that ABC can now be heard to say, after violating its contract to provide insurance and allowing Feld’s insurer to make settlement of all claims, that the in-demnitee’s payments were voluntary and therefore not recoverable.

It should be further noted that the indemnity agreement in this case is broader than that which often appears. Feld was not indemnified simply for “liability,” but for “claims” for injury or damage. The distinction was discussed in Ford Motor Company v. W.F. Holt & Sons, Inc., 453 F.2d 116 (6th Cir.1971). In that case, where the more limited language was used, the Court stated:

As we construe the language of the agreement between Ford and Holt, the obligation which Holt undertook was not one to assume responsibility for any “claims” which might be filed against Ford, but only to relieve Ford from “liability” for claims arising from the work performed under the contract either by the general contractor or by any subcontractor. The general rule is that under a contract of indemnity against liability as distinguished from indemnity against loss or damage, “the indemnitee must allege and prove that the judgment could not have been avoided, and it is not enough to allege and prove that the injured person obtained judgment against the indemnitee.” 41 Am.Jur.2d p. 722, See. 31.

453 F.2d at 118.

Since ABC agreed to indemnify Feld “from any and all claims for injury to persons or damage to property,” regardless of which insurance paragraph of the contract applied, and since the trial court expressly found that the settlements made by Home were reasonable, we reverse in part the judgment of the trial court and remand for entry of judgment for the entire sum paid in settlement of claims and for the fixing of attorney fees incident to this appeal. Costs are adjudged against ABC.

NEARN, P.J. (W.S.), and MATHERNE, Special Judge, concur.