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https://www.courtlistener.com/api/rest/v3/opinions/5283747/ | ORDER
PER CURIAM
Loretta Scott (Plaintiff) appeals the Circuit Court of St. Louis County’s order and final judgment dismissing, with prejudice, her claims against Hartford Life and Annuity Insurance Company (Defendant). On appeal, Plaintiff asserts that the circuit court erred by granting Defendant’s motion to dismiss for failure to state a claim upon which relief can be granted because: (1) Plaintiff pleaded that § 376.590(2) establishes a principal-agent relationship between Defendant and the brokers and (2) Plaintiff pleaded adequate facts to support her claims for declaratory judgment and money had and received. Plaintiff also asserts that the circuit court abused its discretion by denying her leave to amend the pleadings. We affirm.
We have reviewed the briefs of the parties and the record on appeal and have determined that an extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reason's for our decision. We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283748/ | ORDER
PER CURIAM
William Huntley (Movant) appeals from the motion court’s “Conclusions of Law and Order” denying Movant’s Rule 29.15 motion for post-conviction relief and request for evidentiary hearing. We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential or precedential purpose. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283749/ | ORDER
PER CURIAM.
Family Center of Farmington, Inc. (“Employer”) appeals from the decision of the Labor and Industrial Relations Com*389mission (“the Commission”) granting Constance Basler’s (“Employee”) petition for unemployment benefits. Employer argues the Commission erred in awarding unemployment benefits to Employee because Employee possessed a culpable mental state to commit misconduct.
We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3092367/ | IN THE
TENTH COURT OF APPEALS
No. 10-10-00272-CV
STACY ROSS,
Appellant
v.
CYNTHIA AND VINCENT HENDRIX,
Appellees
From the 19th District Court
McLennan County, Texas
Trial Court No. 2010-728-1
MEMORANDUM OPINION
Pursuant to a mediated settlement agreement, the trial court entered an order
terminating the parental rights of Stacy Marie Ross1 to her child V.R. Stacy filed a
motion for judgment nunc pro tunc to correct a clerical error in the order of termination.
The trial court denied the motion. Stacy also filed a petition for bill of review asking the
trial court to set aside its May 16 order of termination, and in the alternative, to provide
1 Stacy Marie Ross is also referred to as Stacy Marie Lawrence.
for all of the terms of the mediated settlement agreement to be incorporated into the
final order. The trial court denied the petition.
Stacy filed a petition for writ of mandamus with this Court on November 16,
2010 requesting this Court to direct the trial court to grant the judgment nunc pro tunc.
Because the case was transferred to a new district court after the petition was filed, this
Court abated the proceeding to give the new trial court judge an opportunity to
consider the motion for judgment nunc pro tunc. The trial court then granted the
motion and signed an order correcting the final order of termination. On April 6, 2011,
this Court granted Stacy’s motion to dismiss her petition for writ of mandamus in
Cause No. 10-10-00414-CV.
The appeal from the trial court’s denial of Stacy’s petition for bill of review was
still pending before this Court. The new trial court ordered the parties to mediation to
formalize an agreement clarifying the rights and obligations of the parties. This Court
granted Stacy’s motion to abate the appeal in this case while the parties pursued
mediation. Mediation was not successful.
Stacy filed a motion to continue the abatement until September 15, 2011. In the
motion, Stacy states that she has filed a motion to enforce visitation and a hearing on
that motion is set in the trial court. Stacy contends that if visitation is enforced, this
appeal will become moot. However, the appeal in this cause number is from the trial
court’s denial of Stacy’s bill of review. The bill of review sought to have the trial court
set aside the final judgment that did not allow for post termination visitation, or in the
alternative, to provide for all of the terms of the mediated settlement agreement to be
Ross v. Hendrix Page 2
incorporated into the final order of termination. The trial court granted the motion for
judgment nunc pro tunc, corrected the final judgment, and allowed for visitation. The
trial court’s order on the pending motion for enforcement is not a part of the appeal on
the denial of the petition for bill of review. Therefore, the appeal from the denial of the
petition for bill of review is moot. We dismiss the appeal as moot and deny the motion
to continue the abatement.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Dismissed
Opinion delivered and filed August 31, 2011
[CV06]
Ross v. Hendrix Page 3 | 01-04-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/5283750/ | OPINION
CLIFFORD H. AHRENS, Judge
J.S. (Mother) appeals the trial court’s judgment denying her motion to modify physical and legal custody of the son she shares with R.S. (Father). We affirm in part and reverse and remand in part.
Background
Mother and Father married in 1999, had a son (Son) in 2002, separated in 2006, and divorced in January 2009. The trial court awarded them joint physical custody of Son, and Father was designated as the residential parent for educational purposes. The custody schedule provided that Mother had custody on alternating weekends and every Wednesday night. Father was awarded sole legal custody. The court’s custody determinations were influenced by its concerns about Mother’s mental health and history of substance abuse as well as the parties’ inability to communicate effectively. Since that time, however, Mother has participated in therapy and maintained sobriety, and the parties have succeeded in communicating and cooperating as parents. In light of these developments, in late 2012 Mother filed the present motion to modify, seeking joint legal custody and an increase in residential custodial time. In support of her motion, Mother cited the following changed circumstances: Mother had remarried and Son now has two half-siblings; Son was diagnosed with learning disabilities; Mother had reduced her work schedule to accommodate parenting responsibilities; and *391the parties had achieved a collaborative parenting partnership.
After a three-day hearing during which voluminous evidence was adduced, the trial court denied Mother’s motion, reasoning that the foregoing circumstances did not necessitate modification in order to serve Son’s best interests. Mother asserts three points on appeal: (1) that the trial court misapplied the modification statute by scrutinizing the necessity of modification, (2) that modification of the residential schedule is in Son’s best interests, and (3) that, on this record and the court’s own findings, Missouri law prescribes joint legal custody.
Standard of Review
On appeal, the trial court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Jansen v. Westrich, 95 S.W.3d 214, 217-18 (Mo.App.2003), citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Additional principles are set forth below as relevant to the issues.
Discussion
Section 452.410.1 governs custody modifications and states that the court shall not modify a prior custody decree unless “a change has occurred in the circumstances of the child or his custodian and ... modification is necessary to serve the best interests of the child.”
Physical Custody (Points I & II)
For her first point, Mother contends that the trial court misapplied § 452.410.1 by requiring that circumstances render modification necessary to serve Son’s best interests. Mother impugns the court’s emphasis on necessity and cites myriad appellate cases omitting the term from the articulated standard and instead requiring only that modification is in the child’s best interests.1 Mother argues simultaneously that necessity is too high a standard, as applied by the trial court, but also that it is superfluous, because any modification in the child’s best interests is by definition necessary to serve those interests. But this court cannot entertain Mother’s exercise in statutory interpretation. Where legislative intent is evident by giving the language employed in the statute its plain and ordinary meaning, we are without authority to read into the statute a contrary intent. Baxley v. Jarred, 91 S.W.3d 192, 196 (Mo.App.W.D.2002). Only when a statute is ambiguous can this court engage in statutory interpretation. Id. The language of § 452.410.1 is not ambiguous. Moreover, even accepting Mother’s contention that “necessary” is redundant, her argument still rests on the underlying premise that modification of the residential schedule is in Son’s best interest (as more directly asserted in her second point), but the trial court did not agree.
On the issue of Son’s best interests, though neither Son’s therapist nor the guardian ad litem objected to a minor adjustment in the residential schedule, they also testified that Son was thriving under the existing parenting plan. The court assigned considerable value to continued stability, with adolescence and high school approaching, and therefore concluded that modification was imprudent. The record supports the court’s determination, *392and consequently our standard of review defeats Mother’s second point. We give great deference to the trial court in determining a child’s best interests. Noland-Vance v. Vance, 321 S.W.3d 398, 403 (Mo.App.S.D.2010) (observing that greater deference is given in custody determinations than in other cases). Our role is to determine whether the record contains sufficient evidence to support the trial court’s assessment, accepting all evidence and inferences favorable to the judgment. H.J.I. by J.M.I. v. M.E.C., 961 S.W.2d 108, 115 (Mo.App.W.D.1998). Where there is conflicting evidence, we defer to the trial court and will affirm the trial court’s judgment even if there is evidence to support a different conclusion. In re C.H., 412 S.W.3d 375, 382 (Mo.App.E.D.2013). We will not reverse the trial court’s judgment unless we are left with the firm belief that the trial court was wrong. H.J.I. by J.M.I., 961 S.W.2d at 116. Thus, while the record confirms that Mother is a capable and loving parent, it also precludes reversal by this court.
The trial court did not err or abuse its discretion in denying Mother’s motion to modify physical custody. Points I and II are denied.
Legal Custody (Point III)
Mother also challenges the trial court’s judgment denying modification of Father’s sole legal custody. Missouri public policy encourages parents to share decisions affecting the health, education, and welfare of their children. § 452.375.4. In furtherance of that policy, courts “shall determine the custody arrangement which will best assure both parents participate in such decisions ... so long as it is in the best interests of the child.” Id. “To the extent that there is a preference in favor of joint legal custody, it only applies when both parents are willing and able to share the rights and responsibilities related to raising their children.” Dunkle v. Dunkle, 158 S.W.3d 823, 839 (Mo.App.E.D.2005). “There is no preference for joint custody unless, in the given circumstances, it is in the best interests of the child.” “[I]n deciding whether joint legal custody is in the children’s best interests, two particularly important considerations for the trial court are whether the parents share ‘a commonality of beliefs concerning parental decisions’ and whether they have the ‘ability to function as a parental unit in making those decisions.’ ” Id. quoting In re Marriage of M.A., 149 S.W.3d 562, 569 (Mo.App.E.D.2004). The trial court’s judgment on these questions states as follows:
The evidence in this modification proceeding clearly established that the ability of the parents to function effectively in making legal custody decisions for the benefit of their child has improved dramatically since the time of the original dissolution hearing.... The law of the State of Missouri prefers joint legal custody as the best way to ensure that both parents are actively involved in the upbringing of their child. Since the time of the original judgment, there has been a change of circumstances as to the child in that he can now benefit by his parents ability to communicate effectively so as to being coequal custodians of his best interests. The full participation of both of his parents in making future legal custody decisions about such issues as his treatment and his future education is necessary to his well-being.
(emphasis added) The foregoing language leaves no doubt that the trial court found the parents’ joint decision-making capacity necessary to advance Son’s best interests. Yet, in the court’s subsequent and final statement on the matter, it deviates:
It is important that the parents not focus on the labels of “joint” or “sole” but that they continue to focus on their *393shared love for their son despite whatever differences they may have between them.
By dismissing the matter in this fashion, the trial court departs from Missouri law and the court’s own findings, subjugates the paramount concern of Son’s best interests, and diminishes Mother’s standing as an equal parent. Mother’s point III is granted.
Conclusion
On the question of physical custody, the trial court did not err in its application of § 452.410 and did not abuse its discretion in finding that modification was not necessary to serve Son’s best interests. The court’s judgment denying Mother’s motion to modify the residential schedule is affirmed.
On the question of legal custody, however, the trial court’s judgment does not comport with Missouri law or the court’s own findings as to Son’s best interests. Therefore, the trial court’s judgment as to legal custody is reversed, and the case is remanded for entry of a judgment consistent with the trial court’s findings and this opinion.
Lawrence E. Mooney, P.J., concurs.
Lisa Van Amburg, J., concurs.
. See for example, Beshers v. Beshers, 433 S.W.3d 498, 505 (Mo.App.S.D.2014); Querry v. Querry, 382 S.W.3d 922, 927 (Mo.App.W.D.2012); Aubuchon v. Hale, 384 S.W.3d 217, 220 (Mo.App.E.D.2012); Hendry v. Osia, 337 S.W.3d 759, 763 (Mo.App.E.D.2011); and Hall v. Hall, 345 S.W.3d 291, 295 (Mo.App.S.D.2011). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283751/ | ORDER
PER CURIAM.
Moses Biggs appeals from the motion court’s Findings of Fact, Conclusions of Law and Judgment denying, without an evidentiary hearing, his amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 24.035.1 We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We *394affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).
. All rule references are to Mo. R. Crim. P. 2013, unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283772/ | Case: 20-11199 Document: 00516156663 Page: 1 Date Filed: 01/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 6, 2022
No. 20-11199 Lyle W. Cayce
Summary Calendar Clerk
Carol M. Kam,
Plaintiff—Appellant,
versus
Dallas County; State of Texas,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-378
Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.
Per Curiam:*
Kam challenges the district court’s denial of her Federal Rule of Civil
Procedure 60 motion to “vacate” a two-year old district court order
dismissing her claim pursuant to the Rooker–Feldman doctrine. We
AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-11199 Document: 00516156663 Page: 2 Date Filed: 01/06/2022
No. 20-11199
I
The factual and procedural history of this case is circuitous, to put it
mildly, and a thorough discussion is not helpful for the disposition of this
current appeal—Kam’s third before this court. In brief, nearly a decade ago,
a Texas state court ruled against Kam in a dispute concerning her late
brother’s trust. Kam exhausted her state court appeals and then turned to
the federal courts seeking, in various lawsuits, relief against the judge who
ruled against her, Dallas County, and the State of Texas. In 2018, the district
court below entered a final judgment dismissing Kam’s claims against Dallas
County and the State of Texas based on the Rooker–Feldman doctrine. This
court affirmed, agreeing with the district court that her claims were
prohibited under Rooker–Feldman as “a thinly-veiled collateral attack on the
state courts’ final judgment.” 1 After the Supreme Court denied certiorari,
Kam returned to the district court and filed the FRCP 60 motion at issue in
the current appeal. She filed her motion in 2020—over two years after the
district court issued its final judgment. Kam seeks relief from the judgment
of the district court under FRCP 60(b)(1), (b)(2), (b)(3), (b)(6), and (d).
II
Before turning to the FRCP 60 arguments, we must first address
Kam’s governmental liability arguments, waiver, and her status as a pro se
appellant. This court typically will not consider arguments that were not first
presented to the district court. 2 In her brief before this court, Kam raises the
issue of governmental liability under 42 U.S.C. §§ 1983 and 1985. Kam
1
Kam v. Peyton, 773 F. App’x 784, 785 (5th Cir. 2019) (per curiam) (unpublished);
see also D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Tr. Co., 263
U.S. 413 (1923); Phinizy v. Alabama, 847 F.2d 282, 284 (5th Cir. 1988).
2
Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017).
2
Case: 20-11199 Document: 00516156663 Page: 3 Date Filed: 01/06/2022
No. 20-11199
submitted almost identical briefing to the district court in support of her
motion except for the section discussing governmental liability. In her briefing
before the district court, that section is completely absent. We are “a court
of review, not of first view.” 3 Because Kam did not raise §§ 1983 and 1985
in her motion to the district court, she has forfeited those arguments on
appeal. 4
Dallas County argues not only that Kam has forfeited her §§ 1983 and
1985 claims, but also that she has waived—on a theory of insufficient
briefing—all of her FRCP 60 claims. We disagree in part, however, because
in contrast to her §§ 1983 and 1985 arguments, Kam did at least raise the
issue of FRCP 60 both in her brief below and in this court. Additionally,
while her briefing is sparse, she is proceeding pro se and we construe her brief
liberally. 5 However, that does not mean that Kam preserved all of her
arguments. Even construed liberally, the brief must make some argument. 6
Although Kam mentions FRCP 60(d), we agree with Dallas County that
Kam has waived any argument based on FRCP 60(d) because Kam does
nothing more than make a passing mention of the rule without further
argument. Unlike her FRCP 60(b) argument, Kam does not elaborate on
the potential bases for relief under 60(d) at all. Failure to brief an issue
adequately on appeal can constitute waiver of that issue and does so here. 7
3
Montano v. Texas, 867 F.3d 540, 546 (5th Cir. 2017) (quoting United States v.
Vicencio, 647 F. App’x 170, 177 (4th Cir. 2016) (per curiam) (unpublished)).
4
See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021).
5
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
6
See id. (quoting Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1990)) (holding that
a pro se party’s argument that did not “contain the reasons he deserves the requested
relief” was waived).
7
See Monteon-Camargo v. Barr, 918 F.3d 423, 428 (5th Cir. 2019) (noting the rule).
3
Case: 20-11199 Document: 00516156663 Page: 4 Date Filed: 01/06/2022
No. 20-11199
III
All that remains of Kam’s appeal are her arguments drawn from
FRCP 60(b)(1)-(3) and (6). We review denials of FRCP 60(b) motions for
abuse of discretion. 8 A party can seek relief under FRCP 60(b)(1)-(3) for,
among other things: mistake, newly discovered evidence, or fraud. 9 Rule
60(c)(1) requires movants to seek relief “within a reasonable time—and for
[relief under (b)(1)-(3)] no more than one year after the entry of the judgment
or order or the date of the proceeding.” 10 It is not an abuse of discretion to
deny a FRCP 60(b)(1)-(3) motion on untimeliness grounds. 11 Because Kam
filed her FRCP 60(b)(1)-(3) motion more than one year after the 2018 final
judgment from which she sought relief, the district court did not abuse its
discretion in denying her motion as to those three sections.
Kam’s argument drawn from FRCP 60(b)(6) fares no better. Relief
under Rule 60(b)(6) is available for “any other reason that justifies relief,”12
but it is available only in “extraordinary circumstances.” 13 Even construing
the brief liberally, it is difficult to tell what extraordinary circumstances Kam
relies on other than that she alleges the Texas court decision against her
nearly a decade ago is void. But the motion currently on appeal seeks relief
from the federal judgment dismissing her claim on Rooker–Feldman
8
In re Deepwater Horizon, 988 F.3d 192, 200 n.23 (5th Cir. 2021) (citing Silvercreek
Mgmt., Inc. v. Banc of Am. Sec., LLC, 534 F.3d 469, 471 (5th Cir. 2008)).
9
Fed. R. Civ. P. 60(b)(1)-(3).
10
Fed. R. Civ. P. 60(c)(1).
11
See Tollett v. City of Kemah, 285 F.3d 357, 369 (5th Cir. 2002) (denying an
untimely FRCP 60(b)(1)-(3) motion).
12
Fed. R. Civ. P. 60(b)(6).
13
Priester v. JP Morgan Chase Bank, N.A., 927 F.3d 912, 913 (5th Cir. 2019) (quoting
United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334, 337 (5th Cir. 2005)).
4
Case: 20-11199 Document: 00516156663 Page: 5 Date Filed: 01/06/2022
No. 20-11199
grounds—not the Texas court decision, and Kam never claims that the
federal judgment is void. 14 Kam does contend that Rooker–Feldman is
inapplicable to her claim precisely because, she argues, the underlying state
court decision is void, but this court has already addressed whether the
doctrine applies to her claim and held that it does. 15 This panel may not
overrule the decision of a prior panel “absent an intervening decision to the
contrary by the Supreme Court or this court en banc.” 16
In the end, the only potentially extraordinary circumstance Kam’s
argument identifies is the alleged invalidity of a state court decision not at
issue in the motion—an argument this court has already rejected. It was not
an abuse of discretion for the district court to reject such a threadbare and
inapposite argument, especially considering Kam did not offer any new
evidence of invalidity. 17
IV
Carried with this appeal is a motion by Kam to supplement the record.
The supplementary materials pertain to a complaint of judicial misconduct
that Kam’s brother filed against the Supreme Court of Texas. “Generally,
we will not enlarge the record on appeal with evidence not before the district
14
It is for this same reason that, even liberally construed, Kam’s briefing does not
raise an FRCP 60(b)(4) voidness argument.
15
Kam v. Peyton, 773 F. App’x 784, 785 (5th Cir. 2019) (per curiam) (unpublished).
16
In re Henry, 944 F.3d 587, 591 (5th Cir. 2019) (quoting United States v. Simkanin,
420 F.3d 397, 420 n.25 (5th Cir. 2005)).
17
Cf. Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747-48 (5th Cir. 1995) (holding
that even a change in decisional law was not an extraordinary circumstance); see also Thomas
v. Stafflink, Inc., 855 F. App’x 983, 984 (5th Cir. 2021) (per curiam) (unpublished) (holding
that it was not an abuse of discretion to deny an FRCP 60(b)(6) motion that repeated
arguments from earlier in the proceedings and otherwise failed to provide evidence in
support).
5
Case: 20-11199 Document: 00516156663 Page: 6 Date Filed: 01/06/2022
No. 20-11199
court.” 18 Because the district court did not review these materials, and there
are no extenuating circumstances, we will not consider them.
* * *
For the foregoing reasons, the order of the district court is
AFFIRMED. Kam’s motion to supplement the record is DENIED.
18
Trinity Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992).
6 | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/577962/ | 956 F.2d 1164
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES, Plaintiff-Appellee,v.Ulysses Simpson BRANCH, Defendant-Appellant.
No. 91-1164.
United States Court of Appeals, Sixth Circuit.
March 10, 1992.
Before KEITH, BOYCE F. MARTIN, Jr. and KRUPANSKY, Circuit Judges.
PER CURIAM.
1
Defendant-appellant, Ulysses Simpson Branch, a.k.a. "Mick" (Branch), appealed the district court judgment convicting him of one count of a felon in possession of a firearm, 18 U.S.C. § 922(g), and one count of possession of an unregistered firearm, 26 U.S.C. § 5861(d). On appeal, Branch charged that the evidence presented at trial was insufficient to support his conviction. He further asserted that statements made during a telephone conversation between Agent Joseph Secrete (Secrete) and a self-identified individual named "Mick," identified by Secrete at trial as the appellant, constituted hearsay because Secrete was without adequate basis to recognize the appellant's voice and such conversation was, accordingly, inadmissible into evidence.
2
On September 18, 1990, Branch and co-defendant, John Richardson, were charged with felons in possession of a firearm and possession of an unregistered firearm. During Branch's jury trial, the government presented two witnesses from the Bureau of Alcohol, Tobacco and Firearms: Agent Joseph Secrete (Secrete), the undercover agent to whom appellant sold the firearm, and Agent Emmett Baylor (Baylor) who observed the transaction from a distance.
3
In his first assignment of error, appellant charged that the evidence was insufficient to support his conviction for possession of a firearm. This first assignment of error is without merit. A jury conviction must be sustained if there is substantial evidence on the record to support it. United States v. Tilton, 714 F.2d 642, 645 (6th Cir.1983). If there is sufficient competent evidence of record to justify a rational juror's conclusion that every element of the offense has been proved beyond a reasonable doubt, the conviction must be affirmed. Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 2792-93 (1979).
4
Evidence that appellant had actual or constructive possession of the firearm is sufficient to sustain the verdict. United States v. Hayes, 884 F.2d 1393 (6th Cir.1989); United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866 (1973). In the case at bar, the government clearly proved with the testimony of Secrete and Baylor that the appellant had actual possession of the firearm. Any factual discrepancy in testimony constituted credibility evaluations that had been resolved by the jury. It is not the role of the appellate court to reconsider the credibility of the witnesses or retry the case by balancing the evidence. United States v. Conti, 339 F.2d 10 (6th Cir.1964).
5
Appellant's second assignment of error is equally without merit. He argued that the trial court abused its discretion by admitting into evidence hearsay testimony concerning statements made during a telephone conversation between Secrete and an individual who identified himself as "Mick". He argued that Secrete was not qualified to testify that the phone conversant, "Mick", was the appellant. In considering this assignment of error, this court is mindful of the district court's broad discretion in determining the relevancy and admissibility of evidence, and its rulings on evidentiary matters will be reversed only upon a clear showing that it abused its discretion. Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1218 (6th Cir.), cert. denied, 489 U.S. 820, 108 S.Ct. 77 (1987). Furthermore, the "standard for the admissibility of an opinion as to the identity of a speaker is merely that the identifier has heard the voice of the alleged speaker at any time." United States v. Cooke, 795 F.2d 527, 530 (6th Cir.1986) (emphasis added) (citing United States v. Rizzo, 492 F.2d 443, 448 (2d Cir.1974), cert. denied sub nom. Dilorenzo v. United States, 417 U.S. 944, 94 S.Ct. 3069 (1979)). Any question regarding the minimal contact or exposure to a voice goes to the weight, not the admissibility of the evidence. Rizzo, 492 F.2d at 448. In the instant case, Agent Secrete spoke with appellant on three separate occasions. He, therefore, had more than an adequate basis for identifying appellant's voice. Consequently, Secrete's testimony concerning statements made during a telephone conversation between himself and the appellant did not constitute hearsay and was admissible.
6
Accordingly, upon the record in its entirety, the briefs and arguments of counsel, the appellant's conviction is hereby AFFIRMED. | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283752/ | ORDER
PER CURIAM.
Cordell Bass appeals from the judgment of the motion court denying his Rule 29.151 motion for post-conviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k); Burston v. State, 343 S.W.3d 691, 693 (Mo.App.E.D.2011). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).
. All rule references are to Mo. R. Crim. P. 2011, unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283754/ | ORDER
PER CURIAM:
Blanche L. Johnson appeals from the Circuit Court of Jackson County’s denial of her Rule 29.15 motion for post-conviction relief following an evidentiary hearing. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. No jurisprudential purpose would be served by a formal, published opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.
Judgment affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283755/ | *396ORDER
Per curiam:
Justin Witt appeals the motion court’s denial of his Rule 29.15 motion. Witt argues on appeal that the motion court clearly erred in denying his motion because he established that trial counsel provided ineffective assistance of counsel by failing to object to the alleged hearsay statements of a witness. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283756/ | Order
Per Curiam
Brenda Mays appeals from the default judgment and award of costs and attorney’s fees entered against her on her petition for damages against Tuscany Bistro, LLC, d/b/a Cafe at Briarcliff Village (“the Cafe”); its management company, Key Companies & Associates, L.L.C., d/b/a/ Key Company & Associates, LLC (“Key Company”); and Thomas J. Belisle, the head chef at the Cafe. After a thorough review of the briefs and the record, we find no error and affirm the judgment. A formal, published opinion would serve no jurisprudential purpose; however a memorandum explaining the reasons for our decision has been provided to the parties.
AFFIRMED. Rule 84.16(b) | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283757/ | Order
Per Curiam:
Appellant David Burke appeals his conviction for first-degree tampering with a motor vehicle, a class C felony under section 569.080.1(2), RSMo 2000. Burke’s claims of. error are not preserved because he failed to object when the challenged evidence was introduced at trial. Nevertheless, Burke contends that the trial court plainly erred in allowing testimony about uncharged prior bad acts in violation of his Fifth, Sixth, and Fourteenth Amendment rights. Because we find no manifest injustice or miscarriage of justice, we affirm the judgment of the trial court. Rule 80.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283765/ | Case: 20-40569 Document: 00516156967 Page: 1 Date Filed: 01/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 6, 2022
No. 20-40569 Lyle W. Cayce
Clerk
Andrew PJ Whitaker,
Plaintiff—Appellant,
versus
Austin McDonald; Derrick Stinson; Frank Rudisill;
Albert Patterson,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:19-CV-173
Before Jones, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Andrew Whitaker, Texas prisoner # 1984096, proceeding pro se and in
forma pauperis, sued four officers employed by the Nacogdoches County
Sheriff’s Office and Police Department under 42 U.S.C. § 1983. He alleged
that, on June 6, 2014, two of the officers—Austin McDonald and Derrick
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-40569 Document: 00516156967 Page: 2 Date Filed: 01/06/2022
No. 20-40569
Stinson—repeatedly beat him with nightsticks when Whitaker was
attempting to flee in a stolen car. He claimed his injuries from the beating—
“uncontrollable muscle spasms and uncontrollable drooling and speech
impairment”—manifested “at a later time,” specifically more than five
years later. It was not until September 24, 2019, that he sued the two officers,
as well as two others (Frank Rudisill and Albert Patterson), alleging violations
of the Eighth Amendment.
A magistrate judge sua sponte recommended dismissing Whitaker’s
claims under 28 U.S.C. § 1915A(b)(1) for failure to state a claim. The
magistrate reasoned that Whitaker’s claim, which accrued on June 6, 2014,
was filed over three years after expiration of the applicable two-year statute
of limitations. See Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1993); Tex.
Civ. Prac. & Rem. Code § 16.003(a). The magistrate also noted that
Whitaker’s complaint contained no allegations against Rudisill or Patterson.
Whitaker objected. He argued that under Texas’s “discovery rule”
limitations started running only when he “beg[a]n to notice symptoms” of
his injuries in September 2019. He also appeared to argue that Rudisill and
Patterson were among “numerous officers” present when he was beaten,
that his complaint failed to name them, and that in any event they belonged
to the “same municipality” as the named officers. Finally, Whitaker argued
he had the right to amend his complaint under Federal Rule of Civil
Procedure 15(a) but was not allowed to do so.
The district court overruled Whitaker’s objections, accepted the
magistrate’s recommendation, and dismissed Whitaker’s complaint for
failure to state a claim. Specifically, the court reasoned that federal law
governed the accrual date of Whitaker’s § 1983 claim. See Walker v. Epps, 550
F.3d 407, 414 (5th Cir. 2008). That accrual date was June 6, 2014, when
Whitaker alleges he was beaten. The court also explained that accrual was not
2
Case: 20-40569 Document: 00516156967 Page: 3 Date Filed: 01/06/2022
No. 20-40569
“delay[ed]” until Whitaker realized “the full extent of his injuries.” See
Wallace v. Kato, 549 U.S. 384, 391–92 (2007). The court did not address
Whitaker’s arguments contesting the dismissal of his claims against Rudisill
and Patterson, nor his argument that he should have been allowed to amend
his complaint. Because the judgment did not specify whether dismissal was
with or without prejudice, Whitaker’s complaint is presumed to have been
dismissed with prejudice. Mandawala v. Northeast Baptist Hosp., 16 F.4th
1144, 1155 (5th Cir. 2021) (citation omitted).
Whitaker timely appealed. We review dismissals under § 1915A(b) de
novo. Carlucci v. Chapa, 884 F.3d 534, 537 (5th Cir. 2018). That statute
directs courts to dismiss a prisoner’s in forma pauperis complaint if, inter alia,
it “is frivolous, malicious, or fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(b)(1). We review a denial of leave to amend
under Federal Rule of Civil Procedure 15(a) for abuse of discretion. Legate v.
Livingston, 822 F.3d 207, 211 (5th Cir. 2016) (citation omitted). Whitaker’s
pro se complaint and appellate brief are afforded a liberal construction. Melot
v. Bergami, 970 F.3d 596, 599 (5th Cir. 2020); Woodard v. Andrus, 419 F.3d
348, 351 (5th Cir. 2005) (citations omitted).
Whitaker devotes most of his appellate brief to arguments that are, to
the extent we grasp them, frivolous. 1 Generously construing his brief, we
discern two coherent arguments. First, Whitaker contends that Texas’s
discovery rule should have delayed accrual of his § 1983 claim until the time
in 2019 when he realized the extent of his injuries. Second, Whitaker
contends the district court committed reversible error by denying him the
1
Whitaker complains at length about the performance of the attorney evidently
appointed to defend him in his underlying criminal case for evading arrest. Those
arguments have no discernable relevance to his § 1983 suit.
3
Case: 20-40569 Document: 00516156967 Page: 4 Date Filed: 01/06/2022
No. 20-40569
right to amend his complaint to add allegations about Rudisill and Patterson.
Both arguments lack merit.
First, the district court correctly ruled that federal, not state, law sets
the accrual date of Whitaker’s § 1983 claim. See Walker, 550 F.3d at 414
(“We determine the accrual date of a § 1983 action by reference to federal
law.”) (citing Wallace, 549 U.S. at 388); see also Frame v. City of Arlington,
657 F.3d 215, 238 (5th Cir. 2011) (en banc) (same). The claim accrued “the
moment [Whitaker] . . . ha[d] sufficient information to know that he [was]
injured.” Walker, 550 F.3d at 414. According to Whitaker’s own complaint
and objections, he was beaten with nightsticks by officers on June 6, 2014. At
that point, he could have “file[d] suit and obtain[ed] relief” if he proved his
case. Ibid. Further, as the district court correctly pointed out, Whitaker is
mistaken that accrual of his claim was delayed until he began to suspect the
extent of his injuries years later. See Wallace, 549 U.S. at 391 (for a § 1983
claim, “[t]he cause of action accrues even though the full extent of the injury
is not then known or predictable” (citation omitted)).
Second, even assuming arguendo that Whitaker had a right to amend
his complaint concerning Rudisill and Patterson, see Fed. R. Civ. P. 15(a),
“a district court need not grant a futile motion to amend.” Legate, 822 F.3d
at 211 (citation omitted); see also Davis v. United States, 961 F.2d 53, 57 (5th
Cir. 1991) (explaining “leave to amend” under Rule 15(a) “is by no means
automatic” and may be denied given the “futility of the amendment”). As
he explained in his objections, Whitaker wanted to add allegations about
Rudisill and Patterson because he believed they were present when he was
beaten. But these new allegations could not have changed the conclusion that
the underlying excessive force claim was time-barred. The district court
therefore did not abuse its discretion in constructively denying Whitaker
leave to amend. See Legate, 822 F.3d at 211 (explaining “an amendment is
considered futile if it would fail to state a claim upon which relief could be
4
Case: 20-40569 Document: 00516156967 Page: 5 Date Filed: 01/06/2022
No. 20-40569
granted”) (citing Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir.
2000)); see also Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (in forma
pauperis claims are “properly dismissed pursuant to § [1915A(b)]” when
“the face of [the] complaint” shows they “are barred by the applicable
statute of limitations”).
We recognize that before sua sponte dismissing an in forma pauperis
claim, a court must give the plaintiff notice of the perceived inadequacy of his
complaint and an opportunity to respond. Day v. McDonough, 547 U.S. 198,
210 (2006); Brown v. Taylor, 829 F.3d 365, 370 (5th Cir. 2016). This usually
occurs through a hearing under Spears v. McCotter, 766 F.2d 179, 181–82 (5th
Cir. 1985), or a questionnaire allowing the prisoner to sharpen his claims,
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Neither option was afforded
Whitaker, but that was not reversible error for two reasons.
First, Whitaker received notice from the magistrate’s report of the
defects in his complaint, and he was able to present written objections to the
district court. See, e.g., Day, 547 U.S. at 210 (observing that, “before acting
on its own initiative, a court must accord the parties fair notice and an
opportunity to present their positions”) (citations omitted). Second, the
legal theory on which Whitaker relied was “indisputably meritless.” Eason,
14 F.3d at 9 n.5 (citation omitted). He argued Texas’s discovery rule
suspended accrual of his claim until his injuries fully manifested. But federal,
not state, law governs accrual of § 1983 claims and, as explained, no authority
supports Whitaker’s contention that his claims remained suspended until the
extent of his injuries allegedly emerged years later. No “further factual
development” could have changed the fact that his claims were years
overdue. Id. at 10; cf., e.g., Barnes v. Givens, 746 F. App’x 401, 402 (5th Cir.
2018) (per curiam) (concluding prisoner might have been able to state a
5
Case: 20-40569 Document: 00516156967 Page: 6 Date Filed: 01/06/2022
No. 20-40569
plausible claim “had [he] been given the opportunity to properly develop his
claims [through a questionnaire or Spears hearing]”). 2
AFFIRMED
2
Having found no reversible error, we need not consider whether the sua sponte
dismissal here was justified under the “best case” rule. See, e.g., Carver v. Atwood, 18 F.4th
494, 498 n.* (5th Cir. 2021) (explaining “[p]re-dismissal notice and opportunity to respond
are not needed ‘if the plaintiff has [already] alleged his best case,’” meaning he has
“(1) repeatedly declared the adequacy of his complaint in . . . response to [the] defendant’s
motion to dismiss and (2) refused to file a supplemental complaint even in the face of a
motion to dismiss” (quoting Brown, 829 F.3d at 370) (internal quotation marks omitted)).
6 | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283766/ | Case: 21-50653 Document: 00516156774 Page: 1 Date Filed: 01/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 6, 2022
No. 21-50653
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Lucas Victorino-Tista,
Defendant—Appellant,
consolidated with
_____________
No. 21-50671
_____________
United States of America,
Plaintiff—Appellee,
versus
Lucas Vidorino Tista-Sis,
Defendant—Appellant.
Case: 21-50653 Document: 00516156774 Page: 2 Date Filed: 01/06/2022
No. 21-50653
c/w No. 21-50671
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-199-1
USDC No. 4:21-CR-61-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Lucas Victorino-Tista appeals his conviction and sentence for entry
after deportation under 8 U.S.C. § 1326(a) and (b)(1), along with the
revocation of the term of supervised release he was serving at the time of the
offense. Because his appellate brief does not address the validity of the
revocation or the revocation sentence, he abandons any challenge to that
judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
For the first time on appeal, Victorino-Tista contends that it violates
the Constitution to treat a prior conviction that increases the statutory
maximum under § 1326(b) as a sentencing factor, rather than as an element
of the offense. He correctly concedes that the argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to
preserve it for further review. The Government has moved without
opposition for summary affirmance or, alternatively, for an extension of time
to file its brief.
As the Government asserts and as Victorino-Tista concedes, the sole
issue raised on appeal is foreclosed by Almendarez-Torres. See United States
v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-
Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Because the Government’s
position “is clearly right as a matter of law so that there can be no substantial
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
2
Case: 21-50653 Document: 00516156774 Page: 3 Date Filed: 01/06/2022
No. 21-50653
c/w No. 21-50671
question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper.
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment of the district court is AFFIRMED. The Government’s
alternative motion for an extension of time is DENIED.
3 | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283767/ | Case: 19-41018 Document: 00516156620 Page: 1 Date Filed: 01/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 6, 2022
No. 19-41018 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Adolfo Huerta,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CR-1151-1
Before Jones, Higginson, and Duncan, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
After Adolfo Huerta pleaded guilty to one count of being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), the district court imposed a 71-month sentence,
followed by three years of supervised release. As conditions of supervised
release, the district court ordered that Huerta “must participate in an
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-41018 Document: 00516156620 Page: 2 Date Filed: 01/06/2022
No. 19-41018
inpatient or outpatient substance-abuse treatment program” and “an
inpatient or outpatient alcohol-abuse treatment program.” The district court
further ordered that Huerta’s “probation officer will supervise your
participation in the program[s], including the provider, location, modality,
duration, and intensity.”
Huerta argues that giving the probation officer the discretion to
determine whether he would be required to participate in an inpatient
treatment program as part of his supervised release is “an improper
delegation of the district court’s authority to the probation office.” Huerta
concedes that plain error review applies because he did not raise his objection
at sentencing when he had an opportunity to do so. See United States v.
Diggles, 957 F.3d 551, 559-60 (5th Cir.) (en banc), cert. denied, 141 S. Ct. 825
(2020). When plain error review applies, we will only reverse the district
court if the appellant can show that: “(1) there was an error; (2) the error was
clear or obvious; (3) the error affected his or her substantial rights; and
(4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings such that we should exercise our discretion to reverse.”
United States v. Oti, 872 F.3d 678, 690 (5th Cir. 2017).
“[A] district court may properly delegate to a probation officer
decisions as to the details of a condition of supervised release.” Sealed
Appellee v. Sealed Appellant, 937 F.3d 392, 400 (5th Cir. 2019) (citation
omitted). However, “[t]he imposition of a sentence, including the terms and
conditions of supervised release, is a core judicial function that cannot be
delegated.” Id. (citation omitted). Thus, district courts may not delegate to
probation officers “authority to decide whether a defendant will participate
in a treatment program.” Id. (citation omitted).
We recently issued a pair of decisions that address whether a district
court may delegate the power to require inpatient treatment to a probation
2
Case: 19-41018 Document: 00516156620 Page: 3 Date Filed: 01/06/2022
No. 19-41018
officer. We held in United States v. Martinez, 987 F.3d 432, 435-36 (5th Cir.
2021), that given both “the significant liberty interests at stake in
confinement during inpatient treatment” and the defendant’s “short
ten-month sentence,” the district court “should not have delegated to the
probation officer the decision to require inpatient, rather than outpatient,
treatment” as a condition of the defendant’s supervised release. Conversely,
in United States v. Medel-Guadalupe, 987 F.3d 424, 430-31 (5th Cir.), cert.
denied, 141 S. Ct. 2545 (2021), we allowed such a delegation following a
10-year sentence, explaining that “[d]ue to the length of Medel-Guadalupe’s
term, a court cannot predict what the need for substance abuse treatment
during supervised release will be.” However, in making that holding, we
emphasized that the district court “did not affirmatively disclaim ultimate
authority over the condition of supervised release,” which meant that if,
“upon his release nearly a decade from now, Medel-Guadalupe disagrees
with the inpatient/outpatient determination, the district court will have the
final say over the decision.” Id. at 430-31 (cleaned up).
As we subsequently explained in United States v. Yurika Huerta, 994
F.3d 711, 716 (5th Cir. 2021), these two “companion cases” are reconcilable.
“Citing each other, Martinez concluded that the delegation was
impermissible following a relatively short 10-month sentence and
Medel-Guadalupe concluded that the delegation was permissible following a
relatively long 10-year sentence where it was clear that the district court
continued to maintain a final say over the decision.” Id. (citing Martinez, 987
F.3d at 436; Medel-Guadalupe, 987 F.3d at 431). The permissibility of a
district court’s delegation of the inpatient/outpatient decision thus depends,
at least in part, on the length of the underlying prison sentence. Yurika
Huerta further explains that, when read together, Martinez and
Medel-Guadalupe establish two complementary principles:
3
Case: 19-41018 Document: 00516156620 Page: 4 Date Filed: 01/06/2022
No. 19-41018
First, the district court will have the final say on whether to
impose a condition. Second, although a probation officer’s
authority extends to the modality, intensity, and duration of a
treatment condition, it ends when the condition involves a
significant deprivation of liberty. Both principles spring from
solicitude for the liberty interests of the defendant.
Id. at 716-17 (internal quotation marks and citations omitted). Although
Yurika Huerta did not involve a district court’s delegation of the
inpatient/outpatient decision, we nonetheless noted that empowering a
probation officer “to lock Huerta up for inpatient treatment . . . would be a
significant deprivation of liberty following Huerta’s relatively short
[52-month] sentence.” Id. at 717 (citing Martinez, 987 F.3d at 435); see also
id. at 714. 1
Given this caselaw, the question of whether the district court
improperly delegated the inpatient/outpatient decision to Huerta’s
1
Several other circuits have also addressed this issue. The Second, Ninth, and
Tenth Circuits have held that district courts may not delegate the inpatient/outpatient
decision to probation officers. See United States v. Matta, 777 F.3d 116, 122-23 (2d Cir.
2015); United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009); United States v. Mike,
632 F.3d 686, 695-96 (10th Cir. 2011). In contrast, the Eighth Circuit has upheld a release
condition that allowed the probation officer to make the inpatient/outpatient decision,
explaining that “as long as the district court does not indicate affirmatively that it has
disclaimed ultimate authority over the condition of supervised release, limited delegation
to a probation officer is permissible.” United States v. Demery, 674 F.3d 776, 783 (8th Cir.
2011). Additionally, in earlier, non-precedential dispositions, the Seventh and Eleventh
Circuits suggested that delegation of the inpatient/outpatient decision might be
permissible. See United States v. Cutler, 259 F. App’x 883, 884, 886-87 (7th Cir. 2008) (per
curiam) (rejecting the argument that the district court should have required the probation
officer to place the appellant in inpatient, rather than outpatient, treatment on the ground
that the inpatient/outpatient decision is a delegable “treatment detail”); United States v.
Calnan, 194 F. App’x 868, 870-71 (11th Cir. 2006) (per curiam) (concluding that because
allowing a probation officer to make the inpatient/outpatient decision “merely delegates to
the Probation Office ‘how, when, and where’ the drug treatment will take place,” the
district court “did not plainly err” by making such a delegation (citation omitted)).
4
Case: 19-41018 Document: 00516156620 Page: 5 Date Filed: 01/06/2022
No. 19-41018
probation officer is subject to reasonable debate. However, as explained
above, we are reviewing this case for plain error. “An error is not plain
‘unless the error is clear under current law.’” United States v. Bishop, 603
F.3d 279, 281 (5th Cir. 2010) (quoting United States v. Olano, 507 U.S. 725,
734 (1993)); see also Puckett v. United States, 556 U.S. 129, 135 (2009)
(explaining that, under the second prong of plain error review, “the legal
error must be clear or obvious, rather than subject to reasonable dispute”).
Huerta was sentenced to a 71-month term of imprisonment, a shorter term
than the 120-month sentence in Medel-Guadalupe (where delegation of the
inpatient/outpatient decision was allowed) but a longer term than both the
10-month sentence in Martinez (where such a delegation was not allowed)
and the 52-month sentence in Yurika Huerta (where the court implied that
such a delegation would be improper). Because our precedent does not
clearly resolve this case, Huerta cannot show that the district court plainly
erred. See Bishop, 603 F.3d at 282 (affirming the district court under the
second prong of plain error review where “[o]ur precedents do not plainly
require the result [the appellant] urges”); United States v. Vega, 332 F.3d 849,
852 n.3 (5th Cir. 2003) (concluding “that any error by the district court . . .
was not plain or obvious, as we have not previously addressed this issue”).
Accordingly, the district court’s judgment is AFFIRMED. 2
2
We note that if, upon his release, Huerta “disagrees with the [probation officer’s]
inpatient/outpatient determination, the district court will have the final say over the
decision.” Medel-Guadalupe, 987 F.3d at 431; see also Yurika Huerta, 994 F.3d at 716-17
(explaining that, in cases involving “delegation to probation officers,” “‘the district court
will have the final say’ on whether to impose a condition” (quoting Medel-Guadalupe, 987
F.3d at 431)); Sealed Appellee, 937 F.3d at 402 (“[A] district court may modify special
conditions at any time.” (citing 18 U.S.C. § 3583(e)(2))). The Government correctly
acknowledges as much in its brief.
5 | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283759/ | ORDER
Per Curiam:
Mr. Damon Simpson appeals the motion court’s judgment denying a Rule 29.15 post-conviction motion. He claims that trial counsel was ineffective for failing to permit him to testify at trial.
For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283761/ | OPINION
ANN CRAWFORD McCLURE, Chief Justice.
Pecos County, the City of Fort Stockton, Pecos County Water Control and Improvement District No. 1, Middle Pecos Groundwater Conservation District and its Directors, and Brewster County Groundwater Conservation District (collectively referred to as Appellants) have brought this interlocutory appeal to challenge an order denying their pleas to the jurisdiction.1 See Tex. Civ.Prac. & Re'm.Code Ann. § 51.014(8) (West Supp.2013). We affirm.
FACTUAL SUMMARY
Fort Stockton Holdings, L.P. (FSH) filed a permit application with the Middle Pecos Groundwater Conservation District (the District). The City of Fort Stockton, Pecos County, Brewster County Groundwater Conservation District, and the Pecos County Water Control and Improvement District No. 1 were admitted as parties to the hearing. On July 8, 2011, the District denied FSH’s permit application after an evidentiary hearing. At FSH’s request, the District issued findings of fact and conclusions of law. FSH subsequently filed a timely motion for rehearing but it was denied by operation of law.
To pursue an administrative appeal of the District’s decision, FSH was required to file an original petition with the Pecos County District Clerk no later than the 60th day after the motion for rehearing was denied by operation of law. See Tex. WateR Code Ann. § 36.413(b) (West 2008). It is undisputed that the due date fell on December 25, 2011, a Sunday. On December 21, 2011, FSH sent the original petition to the Pecos County District Clerk via Federal Express, but the District Clerk’s Office was closed for official holidays on December 22 (Thursday), December 23 (Friday), and December 26 (Monday). Consequently, Federal Express did not deliver the petition until December 27, 2011. In an apparent effort to timely-file the petition pursuant to Tex.R.Civ.P. 5 (the Mailbox Rule), FSH deposited a duplicate original petition in the U.S. mail to the District Clerk on December 22, 2011, but it was not received and filed until December 27, 2011.
*453The District filed a plea to the jurisdiction asserting that FSH did not timely file the petition, and therefore, the trial court lacked jurisdiction to hear the case. Pecos County, the City of Fort Stockton, Pecos County Water Control and Improvement District No. 1, and Brewster County Groundwater Conservation District intervened in the suit and filed pleas to the jurisdiction raising the same issues as the District and/or adopting the District’s plea to the jurisdiction. Following a hearing, the trial court denied the pleas to the jurisdiction.
JURISDICTION
In their sole issue, Appellants contend that the trial court erred by denying their pleas to the jurisdiction because FSH did not timely file its petition such that the District’s immunity from suit is not waived.
Standard of Review
A plea to the jurisdiction is a dilatory plea by which a party challenges the court’s authority to determine the subject matter of the action. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); City of El Paso v. Collins, 440 S.W.3d 879, 883 (Tex.App.-El Paso 2013, no pet. h.). The plaintiff shoulders the burden of alleging facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); Collins, 440 S.W.3d at 883. Whether a party has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction and whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction are ques-tiohs of law which we review de novo. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Collins, 440 S.W.3d at 883. Here, the jurisdictional facts are undisputed.
Governmental Immunity
The District is a political subdivision of the State of Texas created under Article XVT, Section 59 of the Texas Constitution. See Tex. Const, art. XVI, § 59; Tex.Water Code Ann. §§ 36.001(1), 36.001(15), 36.011(a) (West 2008 and Supp. 2013); Act of May 28, 1999, 76th Leg., R.S., ch. 1331, 1999 Tex.Gen.Laws 4536 (codified in Tex.Spec.Dist.Loc.Laws Code Chapter 8851 (West Pamph.2013)). Sovereign immunity protects the State from lawsuits for money damages. Reata Construction Corporation v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006); Texas Natural Resource Conservation Commission v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002). Political subdivisions of the state, such as the District, are entitled to this same immunity — referred to as governmental immunity — unless it has been waived.2 Reata, 197 S.W.3d at 374.
A statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. Tex.Gov’t Code Ann. § 311.034 (West 2013). Statutory prerequisites to a suit are jurisdictional requirements. Id. A suit against a governmental entity can be brought only in the manner indicated by the applicable statute. Texas *454Department of Transportation v. York, 284 S.W.3d 844, 846 (Tex.2009). When construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by retaining immunity. York, 284 S.W.3d at 846.
The Administrative Appeal Process
An applicant may administratively appeal a decision of the board3 on a permit or permit amendment application by requesting written findings and conclusions or a rehearing before the board not later than the 20th day after the date of the board’s decision. TexWateR Code Ann. § 36.412(a). When, the board receives a timely written request, it is required to make written findings and conclusions regarding its decision. Tex.Wa.teR Code Ann. § 36.412(b). The board must provide certified copies of the findings and conclusions to the person who requested them, and to each person who provided comments or each designated party, not later than the 35th day after the date the board receives the request. Id. A person who receives a certified copy of the findings and conclusions from the board may request a rehearing not later than the 20th day after the date the board issues the findings and conclusions. Id. The rehearing must be filed in the district office and state the grounds for the request. TexWateR Code Ann. § 36.412(c). The failure of the board to rule on the request for a rehearing before the 91st day after the date the request for a rehearing is submitted constitutes a denial of the request. TexWateR Code Ann. § 36.412(e). It is undisputed that FSH timely filed its request for findings and conclusions as well as its request for rehearing.
A decision by the board on a permit or permit amendment application is final if the board denies the request for rehearing. TexWateR Code Ann. § 36.413(a)(2). An applicant or a party to a contested hearing may file suit against the district under Section 36.251 to appeal a decision on a permit or permit amendment application not later than the 60th day after the date on which the decision becomes final. TexWateR Code Ann. § 36.413(b). FSH filed its request for a rehearing on July 28, 2011 and the District did not grant or deny the request before the 91st day after the request was filed. The request for rehearing was denied by operation of law pursuant to Section 36.412(e) on October 26, 2011. Consequently, the District’s decision became final on that same date and FSH’s suit was due to be filed “not later than the 60th day” after October 26, 2011. The parties agree that the due date for filing the suit was December 25, 2011, but disagree whether the time for filing the suit was extended to December 27, 2011 pursuant to Section 311.014 of the Texas Government Code and Rule 4 of the Texas Rules of Civil Procedure.
Section 811.01b and Rule b
Section 311.014 of the Government Code, titled “Computation of Time” provides:
(a) In computing a period of days, the first day is excluded and the last day is included.
(b) If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day that is not a Saturday, Sunday, or legal holiday.
Tex.Gov’t Code Ann. § 311.014(a), (b). Rule 4 of the Texas Rules of Civil Procedure provides:
*455In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, Or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays shall not be counted for any purpose in any time period of five days or less in these rules, except that Saturdays, Sundays, and legal holidays shall be counted for purpose of the three-day periods in Rules 21 and 21a, extending other periods by three days when service is made by mail.
If either Section 311.014 or Rule 4 applies, the due date for the filing of FSH’s petition against the District was extended to Tuesday, December 27, 2011. Appellants contend that Section 311.014 and Rule 4 do not apply. We begin our analysis by considering whether Section 311.014 of the Code Construction Act applies to the Texas Water Code.
Applicability of the Code Construction Act
Appellants first argue that its immunity from judicial review of its decisions on permit applications is waived only if FSH strictly complies with the judicial review requirements set forth in the Texas Water Code. Section 36.413(b) authorizes judicial review of the District’s decision and establishes the requirements:
(b) Except as provided by Subsection (c), an applicant or a party -to a contested hearing may file a suit against the district under Section 36.2514 to appeal a decision on a permit or permit amendment application not later than the 60th day after the date on which the decision becomes final.5
Chapter 36 of the Water Code does not contain any provisions for extending the due date of the petition seeking judicial review if the deadline falls on a weekend or holiday.
Chapter 311 of Government Code applies to each code enacted by the 60th or a subsequent legislature as part of the state’s continuing statutory revision program and to each amendment, repeal, revision, and reenactment of a code or code provisions by the 60th or a subsequent legislature. TexGov’t Code Ann. § 311.002(1), (2). The Texas Water Code was enacted by the 62nd Legislature. See TexWateR Code Ann. § 1.001(a)(West 2008). Section 36.413 was added by an amendment enacted by the 79th Legislature. Acts 2005, 79th Leg., R.S., ch. 970, § 17, 2005 Tex.Gen.Laws 3259, 3262. Section 1.002 of the Water Code, entitled “Construction of Code,” expressly states: “The Code Construction Act (Chapter 311, Government Code) applies to the construction of each provision in this code, except as otherwise expressly provided by this code.” Tex.Water Code Ann. *456§ 1.002(a)(West 2008). As noted by FSH, the Water Code does not expressly provide that Section 311.014 is inapplicable.
Appellants contend that Section 311.014 of the Government Code does not apply when determining whether FSH timely filed its suit against the District because it conflicts with or is inconsistent with Section .36.413(b). Section 36.052(a) of the Water Code provides:
Other laws governing the administration or operations of districts created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, shall not apply to any district governed by this chapter. This chapter prevails over any other law in conflict or inconsistent with this chapter, except any special law governing a specific district shall prevail over this chapter.
TexWater Code Ann. § 36.052(a). The Code Construction Act expressly provides that its rules are not exclusive but are meant to describe and clarify common situations to guide the preparation and construction of codes. Tex.Gov’t Code Ann. § 311.003. Section 311.014 is neither in conflict with nor inconsistent with Section 36.413(b) because it merely clarifies how the time parameters are computed when the last day of a period falls on a weekend or legal holiday.
Appellants next rely on Section 311.034 in support of their argument that Section 311.014 does not apply.
In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. ... Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.
Tex.Gov’t Code Ann. § 311.034. Appellants contend the requirement that the suit be filed not later than the 60th day after the decision becomes final is a statutory prerequisite to a suit under Section 311.034. The Texas Supreme Court held in Prairie View A & M University v. Chatha, 381 S.W.3d 500, 511-12 (Tex.2012) that the term “statutory prerequisite” to suit has three components: (1) the prerequisite must be found in the relevant statutory language; (2) the prerequisite must be a requirement; and (3) the term “pre” indicates the requirement must be met before the lawsuit is filed. In this case, the statutory deadline for filing suit in district court is not a prerequisite because it is not something which must be done before suit is filed.
Appellants cite several cases in support of their argument that Section 311.014 and Rule 4 do not apply to judicial review of administrative matters. See Rayburn v. State, 163 Tex. 450, 356 S.W.2d 774 (1962), Superior Oil Company v. Railroad Commission of Texas, 519 S.W.2d 479, 484 (Tex.Civ.App.-El Paso 1975, writ ref'd n.r.e.), Brown v. Texas Education Agency, 2002 WL 1377857 (Tex.App.-Austin 2002, pet. denied), Texas Alcoholic Beverage Commission v. Sfair, 786 S.W.2d 26 (Tex.App.-San Antonio 1990, writ denied), and Texas State Board of Dental Examiners v. Blankfield, 433 S.W.2d 179 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ ref'd n.r.e.). In Rayburn, a one-paragraph opinion, the Supreme Court considered the Texarkana Court of Civil Appeals’ holding that the period for filing objections to the award of the commissioners in a condemnation proceeding is not enlarged by Rule 4. Rayburn, 163 Tex. 450, 356 S.W.2d at 774. “[T]he Rules of Civil Procedure do not operate to extend the time provided by statute within which an appeal may be taken to the courts in a proceeding originally administrative in nature.” Id. The *457Eighth Court of Appeals followed Rayburn in Superior Oil, holding that the Rules of Civil Procedure do not operate to extend the time provided by statute within which an appeal may be taken to the courts in a proceeding originally administrative in nature. Superior Oil, 519 S.W.2d at 484. These cases only address whether the Rules of Civil Procedure are applicable and do not address whether Section 311.014 or its predecessor could be applied to the particular statutes in question. Consequently, they are neither helpful nor dispositive when determining whether Section 311.014 applies to Section 36.413(b) of the Water Code.
In Brown, the Houston Independent School District placed Brown on medical leave in 1989 and she did not file a petition to review the decision until 1995. Brown, 2002 WL 1377857 at *1. The Commissioner dismissed Brown’s petition as untimely and Brown filed a motion for rehearing. Id. The Commissioner took no action on the motion and the decision became ap-pealable forty-five days from Brown’s receipt of the decision. Id. Her petition for review was due to be filed in district court on November 26, 1997, Thanksgiving, but Brown did not file the petition until the following Monday, December 1, 1997. Id. The Austin Court of Appeals, citing Ray-bum and Superior Oil, stated that the Rules of Civil Procedure did not operate to extend the time provided by statute within which an appeal may be taken to a court from an administrative proceeding. Id. Brown’s failure to file her petition for judicial review within the statutory time period allowed the agency decision to become final and deprived the trial court of jurisdiction. Id. at *2. While the opinion holds that the Rules of Civil Procedure do not apply, it does not address the applicability of Section 311.014.
In Sfair, the TABC entered an order imposing penalties on October 22,1987 and the Sfairs timely filed their motion for rehearing. Sfair, 786 S.W.2d at 27. The Commission overruled the motion for rehearing on November 10,1987 which started the timetable for the Sfairs to file a petition for review in the district court. Id. That petition was due to be filed within thirty days. Id. Two weeks later, the TABC entered a written order on its own motion granting a rehearing of the case. Id. Several months later, after another hearing, the TABC entered a new order and the Sfairs filed a motion for rehearing. Id. The Sfairs subsequently filed a petition in district court. Id. The trial court reversed the TABC’s order and TABC appealed asserting for the first time that the trial court did not have jurisdiction. Id. at 27-28. The San Antonio Court of Appeals determined that the Sfairs’ petition for review was due to be filed in the district court thirty days after the first order entered by TABC denying the motion for rehearing because TABC erred by granting a rehearing on its own motion. Id. at 27-28. Sfair is distinguishable factually and it does not address the applicability of Section 311.014.
Finally, in Texas State Board of Dental Examiners v. Blankfield, the Board of Dental Examiners entered an order on January 22, 1966 suspending the license of a dentist for one year. Blankfield, 433 S.W.2d at 181. To appeal the order to district court, Blankfield was required to file his petition in district court by February 21,1966, thirty days of the entry of the order. Id. Blankfield did not file a petition by the due date. Id. On March 14, 1966, Blankfield sent a telegram to the Board of Dental Examiners requesting that it extend the effective date of the suspension order to May 1, 1966. Id. The Board sent a letter to Blankfield on March 15, 1966 informing him that the original suspension *458date of March Í5, 1966 was postponed to April 15,1966, but it did not enter a formal order to this effect. Id. Blankfield did not file his petition in district court until April 13,1966. Id. at 181-82. The district court denied the Board’s plea to the jurisdiction and motion to dismiss. Id. at 182. The Fourteenth Court of Civil Appeals concluded that the suspension order became final on February 21, 1966 because Blankfield did not file his petition in district court and the Board lacked authority to effectively extend or enlarge the time for Blankfield to appeal. Id. This case is factually and procedurally distinguishable from the instant case because it does not involve a due date which fell on a holiday or weekend.
We conclude that Section 311.014 of the Code Construction Act applies when computing whether a petition was timely filed in the district court under Section 36.413(b) of the Water Code. Because the last day for filing suit fell on a Sunday and the following day was a legal holiday, the period was extended to the next day, Tuesday, December 27, 2011. Consequently, FSH timely filed its suit against the District. It is unnecessary to address whether Tex.R.Civ.P. 4 applies to the filing of a suit Section 36.413(b). We overrule the sole issue on appeal and affirm the interlocutory order of the trial court denying the Appellants’ pleas to the jurisdiction.
. The Middle Pecos Groundwater Conservation District and its directors are' represented by different counsel than Pecos County, the / City of Fort Stockton, Brewster County Groundwater Conservation District, and the Pecos County Water Control and Improvement District No. 1. The second group of appellants adopted the initial brief and the reply brief filed by the District and its directors, but their reply brief raises an additional argument as well. The factual summary, where necessary, refers to the some of the appellants individually when setting forth the background of the case, but the opinion will refer to the Appellants collectively when addressing their arguments presented on appeal.
. The other appellants are also political subdivisions entitled to governmental immunity, but the focus of their pleas to the jurisdiction is FSH's failure to comply with the jurisdictional requirements of Section 36.413 of the Water Code and the alleged inapplicability of Section 311.014 of the Government Code and Rules 4 and 5 of the Texas Rules of Civil Procedure. Consequently, the opinion will not discuss governmental immunity as it applies to Pecos County, the City of Fort Stockton, the Brewster County Groundwater Conservation District, or the Pecos County Water Control and Improvement District No. 1.
. The reference to "board" means the board of directors which is the governing body of the groundwater conservation district. See Tex.Water Code Ann. § 36.051.
. Section 36.251 provides: "A person, firm, corporation, or association of persons affected by and dissatisfied with any provision or with any rule or order made by a district is entitled to file a suit against the district or its directors to challenge the validity of the law, rule, or order. The suit shall be filed in a court of competent jurisdiction in any county in which the district or any part of the district ■ is located. The suit may only be filed after all administrative appeals to the district are final.” Tex.Water Code Ann. § 36.251.
. Subsection (c) prohibits judicial review if the applicant or party to a contested hearing did not timely file a request for rehearing. TexWater Code Ann. § 36.413(c). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283762/ | OPINION'
ANN CRAWFORD McCLURE, Chief Justice.
In this accelerated interlocutory appeal, we must balance a couple’s right to home school their children against the rights of a school district to investigate the curriculum utilized. Michael and Laura McIntyre, individually and on behalf of five of their minor children, filed this lawsuit for damages and declaratory and injunctive relief after Class C misdemeanor truancy complaints were filed in a justice court against three of the children.1 Originally, the McIntyres filed suit against three family members, the El Paso Independent School District (EPISD), and five of the District’s employees. The claims against the family members and three of the five District employees were later dismissed, leaving the District, former superintendent Dr. Lorenzo Garcia, and attendance officer Mark Mendoza as the only remaining defendants.
FACTUAL SUMMARY
The McIntyres have nine children, including the five minor children who are parties to the law suit. After completion of the Fall 2004 semester, the McIntyres withdrew their children from private school to begin home schooling them. Initially, the children were taught out of empty space in a motorcycle dealership owned by Michael and his twin brother, Tracy. Tracy testified in his deposition that during the time home schooling operated out of the dealership, he never observed the children pursuing traditional schoolwork. While the children would sing or play instruments, he never saw them reading books or doing arithmetic, nor did he observe any computers or other school equipment. Tracy , overhead one of the McIntyre children tell a cousin that they did not need to do schoolwork because they were going to be raptured. Tracy discussed the situation with his parents, Gene and Shi-rene. In August 2005, due to a family dispute, the home school was moved from the motorcycle dealership to a rental house owned by the McIntyres.
Complaint To The District and Mendoza’s Investigation
In January 2006, the District received an anonymous complaint that the McIntyre children were not being educated. In November, Gene and Shirene met with Mark Mendoza, the District’s designated attendance officer, and expressed concerns that their grandchildren were not attending school or otherwise receiving a proper *481education. After the meeting, Mendoza confirmed that the oldest of the McIntyre children, Tori, had run away from home at age seventeen so she could “attend school.” He discovered that when Tori enrolled at Coronado High School, she was unable to provide any information regarding the level of her education or the curriculum provided as part of her home school education. The McIntyres refused to provide any information to the District on Tori’s behalf. As a result, Tori was placed as a second semester freshman, a year and a half behind her age group.
In December 2006, Mendoza asked a representative from Hornedo Middle School to visit the McIntyre home and inquire about the curriculum used to teach their children. The McIntyres answered the door, but Laura said only that she was tired of being harassed and would call her attorney. Lynda Sanders of Polk Elementary School was also asked to go to the McIntyre home and obtain a signed home school verification form. The McIntyres refused to sign the form or provide any other information regarding their home school curriculum. Following her visit, Sanders faxed the home school verification form to a Home School Legal Defense Association (HLSDA) attorney in Washington. Sanders also reported to the campus principal that the McIntyres were uncooperative and had refused to sign the form. Sanders later received a letter from the HSLDA attorney. The letter claimed that the McIntyres were “in full compliance” but that they declined to “submit any additional information.” The letter did not reflect that the attorney was licensed in Texas, or had any personal knowledge of the educational studies occurring in the McIntyre home. In January 2007, following their refusal to provide information to campus personnel, various notices and warnings were given to the McIntyres notifying them of their children’s failure to attend school, and requesting conferences. The McIntyres did not cooperate with any of the requests for information or meetings.
Truancy Complaints Are Filed
Relying on information provided by the children’s grandparents, his confirmation of information regarding Tori’s inability to describe her home school education, and the refusal of the McIntyres to provide the District with any written assurance regarding the curriculum they were using “from somebody who had firsthand knowledge of the homeschooling education that was happening in the home,” Mendoza filed truancy complaints. In the blanks that would normally have listed the dates of absence on the truancy complaint, Mendoza wrote, “Has not met home school verification requirements.” According to Mendoza, he did not believe that the McIn-tyres had provided sufficient evidence of a bona fide home school.2
After the complaints were filed, HSLDA sent a second letter to Sanders, with copies to other District personnel. The letter was essentially identical to the first letter, but it also included a threat to file suit.
Communications After Truancy Complaints Are Filed
After receiving the citations, Laura called Mendoza. She recorded the conver*482sation and a transcript of the recording is contained in the record. Janet Flores, the Juvenile Case Manager for the Justice of the Peace Court where the truancy complaints were filed, testified that she mailed notices of the truancy charges to the McIntyres. The notices advised them of their; plea options and their rights, including rights to a jury trial, to retain counsel, and to subpoena witnesses. Laura called Flores after receiving notice and told her that she and her husband were home schooling their children. Flores informed Laura that she could submit documentation showing that she was, in fact, providing an education at home to her children, but Laura responded that she did not feel that it would be “right” to do so.3
PROCEDURAL HISTORY
In July 2007, the McIntyres initiated the instant suit. They sought declaratory and injunctive relief and damages based on alleged violations of the Texas Education Code, the Texas Religious Freedom Restoration Act (TRFRA), the Texas Constitution, and the United States Constitution.
Truancy Complaints Investigated and Ultimately Dismissed
Once this suit was filed, the District informed Matthew Moore, an assistant district attorney, about the case and its history. Moore was asked to use his independent judgment in pursuing the truancy complaints. The McIntyres later entered pleas of not guilty in all of the truancy cases, and requested a separate jury trial for each. On September 7, 2007, Moore wrote a letter to the McIntyres advising that if they would provide a signed statesment that they were meeting state requirements, he would dismiss the truancy charges. The McIntyres refused to do so. In October 2007, Moore contacted Tori and asked if she would vouch for the fact that her parents were using a curriculum, but Tori declined to get involved. Moore testified in his deposition that he believed Tori and her grandparents would have testified that the children were not being educated or “learning anything,” but they did not want to testify. Ultimately, Moore decided to dismiss the truancy complaints.
Motions in the Trial Court
The District defendants filed pleas to the jurisdiction and a motion for summary judgment based on the McIntyres’ failure to exhaust administrative remedies; a plea to the jurisdiction as to the McIntyres’ TRFRA claim; motions to dismiss based on the election of remedies provision in Section 101.106 of the Texas Civil Practice & Remedies Code; and a motion for summary judgment based on the Education Code, official immunities as to the McIn-tyres’ state law claims, and absolute and qualified immunities as to the McIntyres’ Section 1983 federal claims.
Issues For Review
Appellants bring nine issues for review. In Issue One, the District complains that the trial court erred in denying its plea to the jurisdiction with respect to the McIn-tyres’ failure to provide the required pre-suit notice of their TRFRA claims. The McIntyres have conceded this point. In Issue Two, EPISD argues that the trial court erred in denying its plea to the jurisdiction based on the McIntyres’ failure to exhaust administrative remedies *483prior to filing suit. In Issues Five, Six, Seven, and Eight, Appellants present various arguments in support of their claim that the trial court erred in refusing to dismiss the state law claims against the District employees. In Issue Five, they argue that based on the election of remedies provision in Texas Civil Practice and Remedies Code 101.106, the trial court erred in allowing the McIntyres to pursue state law claims against both the District and its employees, despite the District’s motion to dismiss. In Issue Six, Appellants allege an exhaustion of administrative remedies claim closely related to that in. Issue Two. Specifically, in Issue Six, Appellants allege that the trial court erred in denying the District employees’ plea to the jurisdiction and (first) motion for summary judgment, and in ruling that the McIntyres were not required to exhaust administrative remedies despite Section 22.0514 of the Texas Education Code. In Issues Seven and Eight, Appellants contend that the McIntyres’ state law claims against the District employees were barred by professional and governmental immunity, and therefore the trial court erred in denying Mendoza’s second amended motion for summary judgment on immunity grounds.
Turning to the McIntyres’ federal law claims, Appellants complain in Issues Three and Four that the trial court erred in refusing to grant summary judgment. Specifically, Issue Three posits that the employees were entitled to absolute immunity from the federal claims while Issue Four posits that the employees were entitled to qualified immunity with respect to the same claims.
Finally, in Issue Nine, Appellants allege that the trial court erred in overruling their objections to the McIntyres’ summary judgment evidence. Specifically, they argue that the trial court should have sustained their objections with respect to Laura’s February 2010 and March 2011 affidavits.
In sum, Appellants ask that we: (1) reverse all three disputed orders of the trial court; (2) render judgment dismissing all of the McIntyres’ state law claims against the District; (3) dismissing all claims of any nature against Dr. Garcia and Mendoza with prejudice; (4) awarding Appellants their costs and fees incurred herein and any such further relief to which they may be entitled; and (5) remanding this case to the trial court for further proceedings regarding the claims and counterclaims that remain pending there, consistent with our opinion and judgment.
THE LEEPER DECISION
Both parties rely heavily on the Texas Supreme Court’s decision in Texas Education Agency v. Leeper, 898 S.W.2d 432 (Tex.1994). Therefore, we begin our discussion with an overview of home school law in Texas.
In Leeper, home school parents and home school curriculum providers (the plaintiffs) brought a class action suit against state officials (the defendants), challenging construction of compulsory attendance laws. Leeper, 893 S.W.2d at 432. The plaintiffs sought a declaratory judgment that the defendants had misinterpreted the private school exemption under Section 25.086(a) of the Texas Education Code. Id. at 438. The plaintiffs also claimed that the defendants “enforcement of the compulsory attendance law infringed upon their constitutional rights, in -violation of the Civil Rights Act, 42 U.S.C. § 1983.” Id. As a result, the plaintiffs sought an injunction prohibiting all school districts and attendance officers from enforcing the compulsory attendance law against bona, fide home schools. Id.
*484The Texas Supreme Court began its analysis by setting the historical backdrop of the Texas school system. Id. at 433-34. It looked to the first compulsory attendance law enacted in 1916 and traced 'the development of the Education Code and compulsory attendance laws forward. Id. The court then addressed the issue of whether a home school could fall within the private or parochial school exemption from the compulsory attendance requirements. Id. The court concluded that a home school can be a private school within the meaning of the statutory exemption found in Section 25.086(a)(1).
Leeper does not hold, or even imply, that every alleged “home school” automatically fits within the exemption. Rather, the case simply allows certain home schools meeting specific requirements to qualify as “private or parochial schools” for purposes of exemption. In fact, the plaintiffs did not argue that every home school falls within the exemption, but only, “homes in which children are taught in a bona fide manner from a curriculum designed to meet basic education goals.” Leeper, 893 S.W.2d at 443. The central issue was not whether the school district had the authority to investigate truancy claims or to request information from parents of home school children regarding their curriculum. Instead, the question was whether any home school could fit within the private school exemption and whether or not the use or non-use of standardized achievement tests by home school parents could be outcome determinative of the home school status under the applicable exemption. Indeed the plaintiffs recognized that the use of standard achievement tests could be considered in ascertaining whether a home school curriculum was being taught in a bona fide manner, but maintained that test scores could not be the determining factor. The court agreed. But nothing in Leeper suggests that an attendance officer does not have the right to investigate truancy claims, or that home school parents need not prove they are teaching their children in a bona fide manner from an appropriate curriculum. Leeper merely provides the possibility for a home school to qualify for exemption from compulsory attendance laws and prevents the determination as to whether or not an individual home school qualifies from turning on whether the home school provides standardized achievement test scores.
TEXAS RELIGIOUS FREEDOM RESTORATION ACT
In Issue One, Appellants argue that the trial court erred in denying the District’s plea to the jurisdiction as to the McIn-tyres’ claims under the TRFRA because they failed to meet the pre-suit notice requirements under Chapter 110 of the Texas Civil Practice and Remedies Code. As we have noted, the McIntyres concede the issue. We sustain Issue One. We reverse and render judgment in the District’s favor on this claim.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
In Issue Two, Appellants argue that the trial court erred by denying the District’s plea to the jurisdiction and special exceptions because the McIntyres failed to exhaust their available administrative remedies as to their remaining state law claims.
Standard of Review
A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims have merit. Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A plea to the jurisdiction contests the trial court’s au*485thority to determine the subject matter of the cause of action. State v. Holland, 221 S.W.3d 689, 642 (Tex.2007). The existence or absence of subject matter jurisdiction is a question of law which we review de novo. Texas Department of Parks and Wildlife v. Miranda, 138 S.W.3d 217, 226 (Tex.2004). We look to the plaintiffs’ petition to determine whether the facts as pled affirmatively demonstrate that jurisdiction exists. Holland, 221 S.W.3d at 642-43. We must accept the allegations in the petition as true, construe them in favor of the pleading parties, and examine the pleaders’ intent. Miranda, 133 S.W.3d at 227. We also consider any evidence relevant to jurisdiction without considering the merits of the claim beyond the extent necessary to determine jurisdiction. Id. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdiction issue, the trial court rules on the plea as a matter of law. Id. at 228.
The Exhaustion of Remedies Doctrine
Under Texas law, an aggrieved party whose claim concerns the administration of school laws and involves disputed fact issues is required to exhaust all administrative remedies prior to filing suit. Naim v. Killeen Independent School Dist., 366 S.W.3d 229, 240 (Tex.App.-El Paso 2012, no pet.), citing Mission Indep. Sch. Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 570 (1945); Ysleta Indep. Sch. Dist. v. Griego, 170 S.W.3d 792, 795 (Tex.App.-El Paso 2005, pet. denied); see also Tex.Educ. Code Ann. § 7.057 (West 2012). “Requiring exhaustion of administrative remedies is not meant to deprive an aggrieved party of any legal rights. It is meant, rather, to provide an orderly procedure by which aggrieved parties may enforce those rights.” Ysleta Independent School District v. Griego, 170 S.W.3d 792, 795 (Tex.App.-El Paso 2005, pet. denied), citing Hinojosa v. San Isidro Indep. Sch. Dist., 273 S.W.2d 656, 657-58 (Tex.Civ.App.-San Antonio 1954, no writ). The requirement applies to grievances arising under school laws whether it is against a professional employee of a school district or a school district itself. See Grimes v. Stringer, 957 S.W.2d 865, 869 (Tex.App.-Tyler 1997, pet. denied) (holding that regardless of whether a grievance is against a professional employee of a school district, or a school district itself, a complainant must exhaust his administrative remedies in order to facilitate settlement before resorting to judiciary for resolution). This requirement is consistent with long standing public policy favoring keeping school controversies, as far as possible, out of the courts. See Palmer Pub. Co. v. Smith, 130 Tex. 346, 109 S.W.2d 158, 160 (Tex.Com.App.1937) (also stating, “Proper procedure for settlement of such controversies has been, we think, plainly provided by appeal to school authorities, and should be followed and exhausted before resort to legal proceedings in the courts.”).
Exceptions to the Doctrine
Despite these general rules, there are several recognized exceptions. Exhaustion of administrative remedies for claimants seeking relief from the administration of school laws is not necessary if: (1) the aggrieved party will suffer irreparable harm and the administrative agency is unable to provide relief; (2) the claims are for a violation of a constitutional or federal statutory right; (3) the cause of action involves pure questions of law and the facts are not disputed; (4) the Commissioner of Education lacks jurisdiction over the claims; (5) the administrative agency acts without authority; or (6) the claims involve parties acting outside the scope of their employment. Dotson v. Grand Prairie Independent School Dist., 161 S.W.3d 289, 291-92 (Tex.App.-Dallas *4862005, no pet.), citing Gutierrez v. Laredo Independent School District, 139 S.W.3d 363, 366 (Tex.App.-San Antonio 2004, no pet.), Jones v. Dallas Independent School District, 872 S.W.2d 294, 296 (Tex.App.-Dallas 1994, writ denied), and Mitchison v. Houston Independent School District, 803 S.W.2d 769, 773-74 (Tex.App.-Houston [14th Dist.] 1991, writ denied).
In addition to the administrative scheme set forth as part of the Education Code, the District maintains policies regarding the filing of complaints by parents or members of the public. The District’s policy provides for three different “levels” of administrative review. Specifically, complaints are categorized in relevant part as follows:
LEVEL ONE An individual who has a complaint or concern shall request a conference with the appropriate administrator within 15 days of the event or action that is the subject of the complaint. The administrator shall hold a conference with the individual within seven days of the request. The administrator shall have seven days following the conference within which to respond in writing to the complainant.
LEVEL TWO If the outcome of the conference with the administrator is not to the complainant’s satisfaction or the time for a response has expired, the complainant may request a conference with the superintendent or desig-nee. The request must be filed within seven days following receipt of a response or, if no response is received, within seven days of the response deadline. The superintendent or des-ignee shall hold the conference within seven days after receiving the request.
Prior to or at the time of the conference the complainant shall submit a written complaint that includes his or her signed statement of the complaint, any evidence in its support, the solution sought, and the date of the conference with the administrator. The superintendent or designee shall have seven days following the conference within which to respond in writing to the complainant.
LEVEL THREE If the outcome of a conference with the superintendent or designee is not to the complainant’s satisfaction or if the time for a response has expired, the complainant may submit to the superintendent or designee a request to place the matter on the agenda of a future Board meeting. The request shall be in writing and must be filed within seven days of the response or, if no response is received, within seven days of the response deadline.
The Superintendent shall inform the complainant of the date, time, and place of the meeting, in writing.
The policies apply to complaints against the District or a District employee acting within the scope of employment. Nothing in the policy limits the application to complaints filed by a parent of a District student.
The McIntyres claims involve the “school laws of the State” and it is clear that .they did not pursue administrative remedies prior to filing suit. Unless an exception to the general rule applies, the trial court lacked subject matter jurisdiction. See Hitchcock v. Board of Trustees Cypress-Fairbanks Independent School District, 232 S.W.3d 208, 213 (Tex.App.Houston [1st Dist.] 2007, no pet.) (until all administrative remedies have been exhausted, a trial court lacks subject matter jurisdiction). However, before we address whether the causes of action fall within an exception to the exhaustion requirement, *487we first address the McIntyres contentions that: (1) based on Section 1.001(a) of the Texas Education Code, no administrative scheme set forth in either Title 1 or Title 2 of the Code applies to their children because their children never attended public school; and (2) that the filing of the truancy complaint in justice court eliminated any exhaustion of administrative remedies requirement.
The “school laws of this state” include Titles 1 and 2 of the Texas Education Code “and rules adopted under those titles.” See Tex.Educ.Code Ann. § 7.057(f)(2). The McIntyres assert that because their children never attended public school, they are essentially exempt. This argument rests on the introductory language in Section 1.001(a) which provides: “This code applies to all educational institutions supported in whole or in part by state tax funds unless specifically excluded by this code.” Tex.Educ.Code Ann. § 1.001(a). Appellants argue that _ while Section 1.001(a) indicates that institutions which receive state tax funds are subject to the Education Code, it does not expressly indicate that all other institutions are not subject to the Code. See Institute for Creation Research Graduate School v. Texas Higher Education Coordinating Board, No. A-09-CA-382-SS, 2010 WL 2522529, at *6 (W.D.Tex. June 18, 2010, no pet.) (finding that Section 1.001(a) “does not limit the applicability of the Education Code only to institutions supported by state tax funds.”). We agree.
Next, we address the McIntyres claim that they were exempt from the exhaustion of administrative remedies requirement based on the fact that the District filed truancy charges before they filed their lawsuit. According to the McIntyres, the District sought judicial intervention such that the McIntyres were not required to pursue administrative remedies. However, the truancy complaints were filed in the name of the State of Texas; the District was not a party to the justice court proceedings. Accordingly, the filing of truancy charges did not negate the McIn-tyres’ duty to exhaust administrative remedies prior to filing suit.
Having established the existence of an applicable administrative scheme and the McIntyres’ failure to exhaust their administrative remedies theréunder, we next address whether some exception to the general rule applies such that the McIntyres were excused from any obligation to first exhaust their administrative remedies.
Questions of Fact or Law?
Appellants argue that the dispute involves questions of fact rather than pure questions of law, thereby requiring the McIntyres to exhaust their administrative remedies before filing suit. The McIn-tyres counter that their claims do not involve questions of fact, and since their claims involve only issues that are purely questions of law, they were not required to exhaust their administrative remedies. Although the McIntyres acknowledge the existence of many disputed facts, they claim that none affects the issue on which the District contends exhaustion of administrative remedies was required. The McIntyres frame the issue thusly:
[D]oes the District have the authority to demand to review (and, by implication, approve or disapprove) a home school’s curriculum and obtain progress reports for its students (or require compliance with TEA-mandated curriculum as an alternative), and file criminal charges as a consequence for failure to capitulate to this demand?
We agree with Appellants that a fact issue exists. The type of factual dispute found here is exactly the type of claim that should be reviewed through the *488administrative process before the court accepts jurisdiction. See Hicks v. Lamar Consolidated Independent School District, 948 S.W.2d 540, 543 (Tex.App.-Eastland 1997, no writ); Muckelroy v. Richardson Independent School District, 884 S.W.2d 825, 830 (Tex.App.-Dallas 1994, writ denied). The allegations in the McIntyres pleadings support our conclusion. They seek “a declaration that [the McIntyres] are innocent as to all charges filed by EPISD.” The determination of a party’s guilt is by definition a question of fact. See Black’s Law DictionaRY 1260 (7th ed. 1999) (providing an example of a “question of fact” as “whether a particular criminal defendant is guilty of an offense.”). The McIntyres also sought a declaration that they could continue to direct the' “education of their children and/or pursue their education free from fabricated civil/criminal charges.” If this particular claim does not include a factual determination, then it also does not provide a justiciable request for declaratory relief. In other words, if the request seeks only a judicial declaration that Appellants are not permitted to violate state law, it is not justiciable because there is no controversy with respect to whether Appellants must abide by Texas law. See Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.1993) (holding that a declaratory judgment is appropriate only if a justicia-ble controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought). “To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute.” Bexar-Medina-Atascosa Counties Water Control and Improvement Dist. No. 1 v. Medina Lake Protection Ass’n, 640 S.W.2d 778, 779-80 (Tex.App.-San Antonio 1982, writ ref'd n.r.e.); Chapman v. Marathon Mfg. Co., 590 S.W.2d 549, 552 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ); Davis v. Dairyland County Mutual Insurance Company of Texas, 582 S.W.2d 591, 593 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.); Sub-Surface Constr. Co. v. Bryant-Curington, Inc., 533 S.W.2d 452, 456 (Tex.Civ.App.-Austin 1976, writ ref'd n.r.e.); Littlejohn v. Johnson, 332 S.W.2d 439, 441 (Tex.Civ.App.-Waco 1960, no writ).
Finally, the determination of whether the McIntyres meet the requirements of a bona fide curriculum under Leeper and therefore qualify as exempt from the compulsory school attendance requirements involves a fact issue. This determination would require the McIntyres to submit the same information Mendoza requested but they refused to provide. Therefore, to the extent the trial court’s conclusion was based on a finding that the controversy involves only questions of law, it was erroneous.
Excused by Constitutional Allegations?
Next, we address Appellants’ contention that the presence of constitutional allegations did not excuse the McIntyres from the requirement to exhaust administrative remedies. There is no direct administrative remedy for claims that a school board took action that violated the constitutional rights of the complaining party, because those are not part of the school laws of the state. Jones v. Clarksville Independent School Dist., 46 S.W.3d 467, 474 (Tex.App.-Texarkana 2001, no writ). However, where the constitutional claims “are only ancillary to and supportive of’ a complaint about the school district’s application of school law, the complainant must first exhaust the administrative process. Dotson, 161 S.W.3d at 292. In addition, a party who alleges a constitutional claim must first *489exhaust available administrative remedies that may moot the constitutional claim.
Appellants contend that the constitutional issues presented here “do not stand alone as an attack on the actions ... of the District,” but instead are “inextricably intertwined with, and in fact subject to, their claim that they are in compliance with the compulsory school attendance provisions of the Education Code.” In addition, Appellants assert that because the McIntyres constitutional claims can be decided on non-constitutional grounds, i.e. whether they fall within the Leeper exception, a court should not address their constitutional claims.
Several courts have recognized that exhaustion is required when a constitutional issue involves the administration of school laws and turns on fact issues. See Poole v. West Hardin County Consolidated Independent School District, 385 S.W.3d 52 (Tex.App.-Beaumont 2011), rev’d on other grounds, 384 S.W.3d 816 (Tex.2012); Janile v. Lamar Consolidated Independent School District, 961 S.W.2d 322, 323 (Tex. App.-Houston [1st Dist.] 1997, pet. denied). The McIntyres’ claims all relate to the administration and applicability of school laws, specifically to the laws requiring attendance officers to investigate complaints of truancy and filed criminal charges based on the outcome of those investigations. Therefore, because' all of the McIntyres’ claims relate directly to school laws and the scope of their application, and the outcome of such dispute renders their constitutional claims moot, they were not excused of their duty to exhaust simply by asserting such constitutional claims.
Irreparable Harm?
The next exception to the exhaustion of administrative remedies is irreparable harm. No exhaustion is required where irreparable harm will be suffered and the agency cannot provide relief. See Houston Federation of Teachers, Local 2415 v. Houston Independent School District, 730 S.W.2d 644, 645 (Tex. 1987). Appellants argue that the McIn-tyres were never at risk of irreparable harm. More specifically, Appellants assert that the McIntyres’ claims that they were “under continuing threat” and that they “faced the prospect of additional criminal complaints,” are nothing more than unsupported speculation. According to Appellants, the filing of misdemeanor truancy complaints cannot be considered to cause “irreparable injury.”
As Appellants correctly point out, we must presume that public officials will discharge their duties lawfully and in good faith. See Vandygriff v. First Savings and Loan Ass’n, 617 S.W.2d 669, 673 (Tex.1981); Kimbrough v. Walling, 371 S.W.2d 691, 692 (Tex.1963); Eldorado Independent School District v. Becker, 120 S.W.2d 476, 477 (Tex.Civ.App.-Austin 1938, writ dism’d). Here, Mendoza’s deposition testimony supports this presumption. He specifically stated that the District “has no intention of filing this same case against this particular set of parents.” The McIntyres’ attorney then asked Mendoza, “If this conduct was criminal in '07, why wouldn’t it be in '10?” Mendoza responded:
Sir, one of the internal procedures is to review the case with the assistant district attorney. The assistant district attorney has dismissed these charges, and so therefore, filing the same type of charge unless there is some credible evidence that something has changed dramatically in the household, would be moot.
In addition, written warnings were provided to McIntyres before any truancy complaints were filed. Therefore, the McIntyres could have initiated the administrative process before the truancy *490complaints were even filed. Had the McIntyres pursued their administrative remedies, it must be presumed that the school administrators, the Superintendent, the Board of Trustees, and the Commissioner of Education would have all acted in accordance with the law. Similarly, should the District or its employees be presented with “credible evidence that something has changed dramatically in the household” in the future triggering another investigation, we must presume officials will act in accordance with applicable laws. Had the truancy charges proceeded in the justice court, the McIntyres could have defended the claims in court, and it must likewise be presumed that the justice court would have afforded them a fair trial, and ruled in accordance with the law.
. Any relief the McIntyres sought with respect to injunctive relief from further litigation was inappropriate as to the District or the District employees because once the truancy complaints were filed, the District Attorney had the authority to dismiss the case. We thus conclude that the trial court erred in finding that the McIn-tyres were not required to exhaust administrative remedies before filing suit. Because the remaining state law claims against the District should have been dismissed, we sustain Issue Two and reverse and render judgment in the District’s favor.
DISMISSAL OF STATE LAW CLAIMS AGAINST DISTRICT EMPLOYEES: ELECTION OF REMEDIES
In Issues Five, Six, Seven, and Eight, Appellants present various issues all in support of the argument that the trial court erred by refusing to dismiss. the Mclntyres’ state law claims against the District employees. In Issue Five, Appellants argue that the trial court erred in denying their motion to dismiss, special exceptions and plea to the jurisdiction based on the election of remedies provision contained in Texas Civil Practice and Remedies Code Section 101.106. In Issue Six, Appellants complain that the trial court erred because the McIntyres failed to exhaust their administrative remedies.4 Finally, in Issues Seven and Eight, Appellants contend that the trial court erred because the McIntyres’ state law claims against District employees are barred by professional immunity and qualified immunity. Issue Five is dispositive on this subject.
A plea to the jurisdiction based on sovereign or governmental immunity challenges a trial court’s jurisdiction, See Miranda, 133 S.W.3d at 226. We review the trial court’s ruling de novo. See id. As originally enacted, Section 101.106 was entitled “Employees Not Liable After Settlement or Judgment,” and stated:
A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex.Gen.Laws 3242, 3305 (current version at Tex.Civ.Prac. & Rem. Code Ann. § 101.106). Thus, the statute provided some protection for employees when claims against the governmental unit were reduced to judgment or were settled. See Mission Consolidated Independent School District v. Garcia, 253 S.W.3d 653, 656 (Tex.2008). Under the original ver*491sion, nothing prevented a plaintiff from pursuing alternative theories against both employees and the governmental unit through trial or other final resolution. See id. In 2003, as part of tort reform efforts, the Legislature amended Section 101.106. Id. at 656-67. Today, the relevant subsections read as follows:
(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
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(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.5
Tex.Civ.PRAc. & Rem.Code Ann. § 101.106(a), (e), (f) (West 2011). Under the current election-of-remedies provision, a plaintiff is required to decide at the time of filing suit whether an employee acted independently and is solely liable, or whether the employee acted within the general scope of his or her employment, thereby making the governmental unit vicariously liable for the employee’s acts.6 See Garcia, 253 S.W.3d at 657. In doing so, the election of remedies provision is designed to reduce the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery. See id. “By requiring a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit under the Tort Claims Act or proceeding against the employee alone, section 101.106 narrows the issues for trial and reduces delay and duplicative litigation costs.” See id. In sum,
[ujnder the [TTCAj’s election scheme, recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only; (2) when suit is filed against both the governmental unit and its employee; or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit. When suit is filed against the employee, recovery against the governmental unit regarding the same subject matter is barred unless the governmental unit *492consents to suit. Because the decision regarding whom to sue has irrevocable consequences, a plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually. [Internal cites omitted].
Id.
The District filed a motion to dismiss based on Section 101.106(e). The McIntyres counter that they can maintain their duplicative claims against both the District and the employees because they “do not seek damages from Mr. Mendoza for any state-law claim.” This assertion is inconsistent with their pleadings. Their original petition alleged claims for malicious prosecution and violations of the due process and equal protection clauses of the Texas Constitution, and sought recovery of both actual and exemplary damages. In their first amended petition, they once again asserted claims for malicious prosecution: They also pursued claims for due process and religious liberty violations under the Texas Constitution and once again prayed for recovery of actual and exemplary damages. Finally, in the third amended petition, they pled state law claims for malicious prosecution, equal protection, due process, privacy, and religious liberty, and they sought an award of actual damages in the amount of $800,000, plus any exemplary damages. All of the petitions included claims for malicious prosecution and sought damages. Therefore, the pleadings do not support the argument that they only seek declaratory and injunc-tive relief for their state common law tort claims.
Accordingly, we conclude the trial court should have granted the motion to dismiss under the election of remedies provision articulated in Texas Civil Practice and Remedies Code 101.106. We sustain Issue Five and reverse and render judgment in the District employees’ favor. Because Issue Five is dispositive as to the McIntyres’ state law claims, we need not address Issues Six, Seven, or Eight.
DISMISSAL OF FEDERAL LAW CLAIMS AGAINST MENDOZA: QUALIFIED IMMUNITY
In Issues Three and Four, Appellants complain that the trial court erred in denying summary judgment with respect to the federal law claims asserted against Mendoza. Because the qualified immunity argument in Issue Four is dispositive, we begin by addressing that issue.
Standard of Review
We review a trial court’s summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). Our review is limited to consideration of the evidence presented to the trial court. Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 52 (Tex.App.-Houston [14th Dist.] 2007, no pet.). When a summary judgment does not state or specify the grounds upon which it relies, we may affirm the judgment if any of the grounds presented in the summary judgment motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Prize Energy Resources, L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 556 (Tex.App.-San Antonio 2011, no pet.).
A party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). To determine if the non-movant raises a fact issue, we review the evidence in the light most favorable to the non-movant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 *493S.W.3d at 848, citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). A defendant who conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment on that claim. Frost National Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010).
Statutory Inquiry
Section 1983 provides in relevant part: “[e]very person who, under color of any statute ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ....” 42 U.S.C. § 1983 (1994). “The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ” Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979).
Initially we note that the deprivation of a right must be caused by the conduct of a person acting under the color of state law. Here, Mendoza acted pursuant to Section 25.091(b) of the Texas Education Code which authorized him “to investigate each case of a violation of the compulsory school attendance requirements referred to [him].” See Tex.Educ.Code Ann. § 25.091(b)(1). There is no dispute that Mendoza initiated his investigation based on a report that the McIntyres and their children were in violation of the compulsory attendance laws. Nor is there any dispute that the McIntyres reside within the District. Therefore, the question is whether Mendoza is shielded from liability.
Qualified immunity is a judge-made doctrine. The justification for the doctrine is that public officials performing discretionary functions should be free to act without fear of retributive suits for damages except when they should have understood that particular conduct was unlawful. Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). That awareness depends, in large part, on the extent to which legal rules were clearly established when the official acted. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). It follows that an inquiry into the reasonableness of a public official’s conduct must focus both on what the official did (or failed to do) and on the state of the law at the time of the alleged act or omission. Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir.2003) (en banc), cert. denied, 540 U.S. 1109, 124 S.Ct. 1074, 157 L.Ed.2d 895 (2004); Iacobucci v. Boulter, 193 F.3d 14, 21 (1st Cir.1999). In the end, the qualified immunity defense should prevail unless the unlawfulness of the challenged conduct was “apparent” when undertaken. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
The test for qualified immunity requires the court to engage in a two part inquiry: (1) whether a public official’s conduct violated a constitutional or statutory right; and (2) whether the right was “clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011); see also Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir.2011) (en banc). In determining whether a right was clearly established, courts look to whether the public official’s actions were objectively reasonable in light of the law at the time of the challenged conduct. See Morgan, 659 F.3d at 370. The purpose of the qualified immunity doctrine is to shield government officials not only from personal liability, but from suit as well, “when their actions could reasonably have been believed to be legal.” Morgan, 659 F.3d at *494370; see also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (“The entitlement is an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial.”).
Courts have discretion to decide which of the two prongs to address first, in the light of the particular circumstances. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).' Reviewing the second prong (objectively unreasonable conduct vel non) first is often preferable, as it “comports with [the] usual reluctance to decide constitutional questions unnecessarily.” [Citation omitted]. Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012). To satisfy the second prong, the McIntyres had the burden of pointing to “controlling authority — or a robust consensus of persuasive authority— that defines the contours of the right in question with a high degree of particularity.” [Internal quotation marks and citations omitted]. Morgan, 659 F.3d at 371-72. “Where no controlling authority specifically prohibits a defendant’s conduct, ... the law cannot be said to be clearly established. ... [Generalizations and abstract propositions are not capable of clearly establishing the law.” Id. at 372. While there need not be a decision directly on point, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, - U.S. -, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011).
Finally, even where the qualified immunity defense is raised in response to a Section 1983 claim in state court, it must still be evaluated under federal, and not state, law. See Rohinett v. Carlisle, 928 S.W.2d 623, 625 (Tex.App.-Fort Worth 1996, writ denied), cert. denied, 522 U.S. 820, 118 S.Ct. 74, 139 L.Ed.2d 33 (1997). Although the test for qualified immunity under state law is whether the officer was acting in good faith, the test under federal law is one of objective reasonableness:
Although the cases sometimes refer to the doctrine of qualified ‘good faith’ immunity, the test is one of objective legal reasonableness, without regard to whether the government official involved acted with subjective good faith.
We look to whether a reasonable official could have believed his or her conduct to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred. Thus, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’
[Citations omitted]. Swint v. City of Wadley, Ala., 5 F.3d 1435, 1441-42 (11th Cir. 1993), cert. denied, 514 U.S. 1003, 115 S.Ct. 1312, 131 L.Ed.2d 194 (1995); see City of Lancaster v. Chambers, 883 S.W.2d 650, 655-56 (Tex.1994).
“Shock the Conscience” Theory
We now look to whether the McIntyres raised a fact issue regarding Mendoza’s purported violation of a clearly established federal constitutional right. We begin by addressing Appellants’ assertion-that the McIntyres failed to create a fact issue with respect to their substantive due process claim. The McIntyres rely on a “shock the conscience” theory, claiming that Mendoza “committed perjury” by filing criminal charges that “he knew to be untrue,” and by making up a non-existent criminal offense.
According to the McIntyres, there are “historical examples of this claimed liberty protection.” As their first “historical example,” of their shock the conscience theory, they rely on Morris v. Dearborne, 181 *495F.3d 657 (5th Cir.1999). In Morris, a teacher deliberately fabricated sexual abuse charges against a four-year-old student’s father. Morris, 181 F.3d at 671. The false charges resulted in a suit by the Texas Department of Protective and Regulatory Services to permanently terminate the father’s parental rights.7 Id. The court found that the teacher caused the “destruction of a family based on fabricated evidence.” Id. at 668. Noting the existence of a “well established constitutional right to family integrity,” the court concluded that the contours of that right left no doubt that a teacher was not “free to fabricate sexual abuse allegations against her student’s parents.” Id. at 671-72. The court also found that no teacher could have believed'that such conduct was objectively reasonable. Id. at 675. Therefore, the court denied summary judgment on qualified immunity grounds and left it to the fact-finder to resolve the causation issue at trial, by determining the extent to which state officials relied on the teacher’s misrepresentations in deciding to remove the child from her parents’ custody. Id. at 672-73; see also Roe v. Texas Dept, of Protective and Regulatory Services, 299 F.3d 395, 412 (5th Cir.2002) (restating the findings in Morris as in other words, an actual violation of the constitutional right to family integrity, resulting in a tangible loss, constituted a substantive due process violation, and noting that a key element of Morris and similar cases was that the government actor “had removed the child from its family home.”).
Similarly, in Cummings v. McIntire, 271 F.3d 341, 346 (1st Cir.2001), the First Circuit Court of Appeals held that a police officer’s unprovoked and angry shove of a person who asked for directions while the officer was directing traffic, resulting in severe spinal injury, did not shock the conscience because, even if the officer unnecessarily used physical force, he did not do so maliciously and sadistically for the purpose of causing harm. Cummings, 271 F.3d at 345. In conducting their analysis, the court looked at -the facts underlying other substantive due process claims: Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1076 (11th Cir.2000) (a student was blinded in one eye when a coach intentionally struck him in the head with a metal weight); Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir.1998) (rape by a police officer in connection with a car stop); Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir.1998)(a fifty-seven day unlawful detention in the face of repeated requests for release); Hemphill v. Schott, 141 F.3d 412, 419 (2d Cir.1998) (police officers aiding a third-party in shooting the plaintiff); Johnson v. Glick, 481 F.2d 1028, 1029-30 (2d Cir.1973) (an intentional assault by a police officer who struck a pretrial detainee twice in the head and threatened 'to kill him); and Webb v. McCullough, 828 F.2d 1151, 1159 (6th Cir.1987) (a principal forcing his way into a room where a student was hiding, grabbing her from the floor, throwing her against the wall, and slapping her). See Cummings, 271 F.3d at 346 (stating, “A look at the facts underlying other substantive due process claims helps place this case into perspective and reinforces our conclusion that [the defendant’s] conduct was not of constitutional dimension,” and then listing the above summaries and case citations).
Here, the McIntyres failed to meet their burden as none of the alleged conduct shocks the conscience. The truancy complaints filed by Mendoza alleged violations of specific sections of the Education Code. *496The assistant district attorney in charge of truancy cases testified that the complaints were sufficient to state criminal offenses. He also testified that the complaints did not contain any false information.
There is no evidence of any tangible loss or injury to the McIntyres, nor is there any evidence that Mendoza intended to cause them harm or acted deliberately to injure them. Rather, the evidence demonstrates that Mendoza possessed at least a good faith belief that he was complying with his statutory duty to ensure that every child within his jurisdiction attends school and receives an education. Kinzie v. Dallas County Hospital District, 289 F.Supp.2d 618, 630 (N.D.Tex.2003) (noting the requirement to prevail on a shock the conscience theory that “the conduct evince an intent to cause harm, or show a deliberate act to bring about the specific injury to the plaintiff’).
Fundamental Liberty Interests
Next, we address the McIntyres assertion that Mendoza violated their fundamental liberty interests by inquiring about the curriculum they were using in the home, and then by filing the truancy complaints when they refused to provide him with such information. In Leeper, the Supreme Court specifically authorized inquiries into the curriculum of home schools. See Leeper, 893 S.W.2d at 440. Specifically, the Court affirmed a portion of the trial court’s judgment which stated in relevant part:
This judgment does not preclude the Texas Education Agency, the Commissioner of Education or the State Board of Education from suggesting to the public school attendance officers lawful methods, including but not limited to inquiry concerning curricula and standardized test scores, in order to ascertain if there is compliance with the declaration contained in this' judgment. However, this judgment is not to be interpreted as requiring standardized tests in order for there to be compliance with the interpretation made by the court of [§ 21.033(a)(1) ]. The lawful powers of investigation by public school attendance officers and the constitutional rights of persons subject to such investigations are not affected by this judgment.
Id.
Section 25.091(b) of the Education Code vests certain authority in school district attendance officers. Included is the authority to: (1) investigate each case of a violation of the compulsory school attendance requirements referred to the attendance officer; (2) monitor school attendance compliance by each student investigated; (3) make a home visit or otherwise contact the parent of a student who is believed to be in violation of compulsory school attendance requirements; and (4) enforce compulsory school attendance requirements by filing truancy complaints. Tex. Educ.Code Ann. § 25.091(b). The McIn-tyres do not challenge the authority given to school attendance officers under Section 25.091(b). Instead, they appear to claim a fundamental right to be free of any state supervision or regulation concerning whatever education they choose to provide to their children in their home. They provide no support for such a right, much less sufficient support to show such a right is clearly established.8 Therefore, no genu*497ine issue of material fact exists to defeat Mendoza’s qualified immunity defense based on a violation of the McIntyres’ fundamental liberty interests.
“Class of One” Theory
In the McIntyres’ third amended petition, they allege an equal protection violation based on discrimination against them “as a Class of One.” A “class of one” theory is limited to cases where the evidence demonstrates “the existence of a clear standard against which departures, even for a single plaintiff ... could be readily assessed,” as opposed to those situations in which a government official is “exercising discretionary authority based on subjective, individualized determinations.” Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 602, 128 S.Ct. 2146, 2153, 170 L.Ed.2d 975 (2008).
Some forms of state action by their very nature involve discretionary decision-making based on a vast array of subjective, individualized assessments. In such cases the rule that people should be treated alike, under like circumstances and conditions is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.
Here, the evidence does not suggest that the McIntyres were singled out and treated differently than other, similarly situated, parents. The Juvenile Case Manager for the Justice of the Peace Court where the truancy complaints were filed testified that since 2006, she had seen four or five other cases involving home school situations. According to her, some of the parents responded to the filing of complaints by providing supplemental information to the court. This information was then provided to the District Attorney’s Office. All but one of the other home school cases were dismissed prior to trial. As to the one case that went to trial, the judge allowed the parents more time to produce documentation demonstrating the validity of their home school. The parents in that case produced the documentation and the case was dismissed.
The record also demonstrates that Mendoza was acting within his discretionary, subjective, decision-making authority. Section 25.091(b) of the Texas Education Code authorized him “to investigate each case of a violation of the compulsory school attendance requirements referred to” him. See Tex.Educ.Code Ann. § 25.091(b). The method and scope of investigation are are not specified in the Code, nor does the Code specify what specific evidence is necessary to sufficiently demonstrate compliance with the compulsory school attendance requirements, or an applicable exemption to such requirements. Consequently, the investigation and ultimate decision to file truancy complaints were within Mendoza’s discretion.
It is in this respect that Leeper provides guidance. While Leeper precludes using standardized test scores as a determining factor in deciding whether the McIntyres’ home school fell within the private or parochial school exemption, nothing in Leep*498er — or the Education Code for that matter — precludes an attendance officer from requiring the McIntyres to produce evidence regarding their chosen curriculum. Mendoza’s actions fell within his discretion and there is no evidence that he exceeded his authority or that the McIntyres were isolated as a “class of one.” Thus, the McIntyres’ equal protection claims against Mendoza are subject to qualified immunity-
“Free Exercise of Religion”
Lastly, we address the portion of the McIntyres’ petition seeking relief in connection with their “free exercise of religion” under the First Amendment. In Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Old Order Amish and the Conservative Amish Mennonite Church challenged a Wisconsin compulsory school attendance statute which required children to attend school until the age of sixteen.9 Yoder, 406 U.S. at 207, 92 S.Ct. 1526. The plaintiffs argued that they had a First Amendment right to withhold their children from any type of institutional school beyond- the eighth grade. Yoder, 406 U.S. at 213, 92 S.Ct. 1526. The Supreme Court reiterated that there “is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education.” Id. The court conducted a balancing test and ultimately concluded that, based on the unique facts of the case, the statute impermissibly infringed on the free exercise of religion without a compelling state interest. Id. at 234. Yoder is distinguishable because of the unique freedom of religion issues presented. In fact, the situation was so exceptional that the same treatment has never been extended to any other individual or religious group. See Combs v. Homer-Center School District, 540 F.3d 231, 249-52 (3rd Cir.2008); Mozert v. Hawkins County Board of Education, 827 F.2d 1058, 1067 (6th Cir.1987) (noting that “Yoder rested on such a singular set of facts that we do not believe it can be held to announce a general rule”).
No parents have ever prevailed in any reported case on a theory that they have an absolute constitutional right to educate their children in the home, completely free of any state supervision, regulation, or requirements. In post-Foder opinions, the Supreme Court has held that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 2226, 124 L.Ed.2d 472 (1993); Employment Division, Department of Human Resources of Oregon v. *499Smith, 494 U.S. 872, 879, 890, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).
The McIntyres have produced no evidence that they are similarly situated to the Old Order Amish in Yoder. They have failed to raise a fact issue that a sincerely held religious belief was substantially burdened.
They do not have an “absolute constitutional right to home school.” See Jonathan L. v. Superior Court, 165 Cal.App.4th 1074, .81 Cal.Rptr.3d 571, 592 (Cal.App.2008). Instead, they have a right to home school their children, but a home school will only meet the private or parochial exemption from the compulsory school attendance laws if it meets the criteria set out in Leeper.
Based on the foregoing analysis, we conclude that the McIntyres failed to raise a fact issue with respect to the violation of a clearly established constitutional right. Because Mendoza is entitled to qualified immunity, the trial court erred in denying his motion for summary judgment.10 We sustain Issue Four and reverse and render judgment in favor of Mendoza on this issue. Having determined that the McIn-tyres’ federal claims against Mendoza should have been dismissed based on qualified immunity, we need not address the’ absolute immunity claims in Issue Three.
OBJECTIONS TO THE MCINTYRES’ SUMMARY JUDGMENT EVIDENCE
Finally, in Issue Nine, Appellants maintain that the trial court erred in overruling several objections to the affidavits of Laura McIntyre. Because we have found in favor of Appellants on the issues above, we need not address their arguments in Issue Nine. Having sustained Issues One, Two, Four, and Five, we reverse and render judgment accordingly. The cause is remanded to the trial court for consideration of the claims remaining consistent with our opinion and judgment.
. Because we will mention many members of the McIntyre family, we will refer to them by their given names.
. The truancy complaints were filed without any screening or review by the District Attorney’s Office, as was customary at the time. As attendance officer, Mendoza had the authority to file a truancy complaint, but after filing, an Assistant District Attorney would ultimately decide whether to try or dismiss the case. However, per subsequent agreement of the EPISD and the District Attorney’s Office, the DA now screens truancy reports involving alleged home school situations prior to filing, and cases will not be filed without its approval.
. In an affidavit submitted over two years after filing this lawsuit, Laura identified the curriculum that they had purchased as the A Beka curriculum, the same curriculum that had been used at the children’s private school. When Mendoza was attempting to ascertain whether they were conducting a bona fide home school, however, they refused to identify any curriculum that they were using.
. Section 22.0514 of the Texas Education Code requires the exhaustion of remedies before filing suit against a professional employee of a school district. See Tex.Educ.Code Ann. § 22.0514 (West 2012).
. The District is a "governmental unit” as defined by Section 101.001(3) of the Texas Civil Practice and Remedies Code. Likewise, Dr. Lorenzo Garcia and Mark Mendoza are "employees” of the District. See Tex.Civ.Prac. & Rem.Code Ann. §§ 101.001(2), (3).
. Under Texas Civil Practice and Remedies Code Sections 104.001 and 104.002, State agencies are required to indemnify their employees for litigation expenses if the employee's actions were within the course and scope of his or her employment. See Tex.Civ.Prac. & Rem.Code Ann. §§ 104.001, 104.002.
. The fabricated complaint also led to the father’s loss of employment and the placement of the child into foster care. Morris, 181 F.3d at 668.
. The United States has long recognized that states have the power to regulate non-public schools:
No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require *497that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).
. While the Amish did not object to elementary education because their children must have basic skills to read the Bible, to be good farmers and citizens, and to deal with non-Amish people, they did object to formal high school education:
[N]ot only because it places Amish children in an environment hostile to Amish beliefs with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has learned basic reading, writing, and elementary mathematics, these traits, skills, and attitudes admittedly fall within the category of those best learned through example and ‘doing’ rather than in a classroom.
Yoder, 406 U.S. at 211, 92 S.Ct. at 1531.
. We also note, that with respect to the McIntyres’ malicious prosecution claim under Section 1983, they have failed to state a cause of action. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283763/ | OPINION
BRIAN HOYLE, Justice
This is an appeal of a dispute involving ad valorem taxation of certain equipment used to facilitate the production and processing of natural gas. Faced with dueling motions for summary judgment, the trial court granted each motion in part, holding that the taxable situs of the equipment at issue is Gregg County and that Texas Tax Code Sections 23.1241 and 23.1242 are applicable but unconstitutional as applied. Each side, Valeras Compression Services, a Texas Limited Liability Partnership, and Valeras Compression Services Management, LLC, General Parther, (collectively Valeras) and Gregg County Appraisal District (GCAD) appeals part of the judg*523ment. The issues presented on appeal concern the constitutionality of Sections 28.1241 and 23.1242, the taxable situs, and whether the equipment at issue meets the statutory definition required to make Sections 23.1241 and 23.1242 applicable. We affirm the portion of the trial court’s judgment holding that the taxable situs is Gregg County and reverse the portion of the trial court’s judgment holding that Val-erus met its burden to prove that Sections 23.1241 and 23.1242 are applicable. We remand the case to the trial court for further consideration.
Background
Valerus filed a notice of protest with the Gregg County Appraisal District’s Review Board regarding the 2012 appraisal rolls. Valerus contested the determination that the equipment at issue, natural gas compressor packages offered for lease, should be on Gregg County’s appraisal rolls, and it contested the valuations placed on the equipment. The review board ruled against Valerus, and Valerus appealed that order to the trial court.
In its petition, Valerus asserted that since its principal place of business is in Harris County, its equipment should be taxed in Harris County. It also alleged that the equipment at issue meets the definition of “heavy equipment inventory” as that term is used in Tax Code Section 23.1241, and, because GCAD did not determine value based on the requirements of Section 23.1241, the valuations placed on the equipment are excessive. GCAD denied the allegations and asserted that Section 23.1241 is unconstitutional.
Valerus filed a motion for summary judgment claiming that it is entitled to judgment as a matter of law on all of its claims against GCAD. It argued that Section 23.1241(b), which provides the formula for determining market value of a dealer’s heavy equipment inventory, applies to its leased natural gas compressor packages as a matter of law. It asserted that, because the compressor packages and coolers meet the definition of “heavy equipment” as defined by Section 23.1241(a)(6) and Valerus is a “dealer,” the compressor packages and coolers are equipment, taxable as personal property, as a matter of law. Valerus also argued that Section 23.1241 does not violate the Texas Constitution. Finally, Vale-rus asserted that all taxes it owes pursuant to Section 23.1241 are payable in Harris County, the home of Valerus’s principal place of business.
Two days after Valerus filed its motion for summary judgment, GCAD filed a motion for summary judgment. GCAD claimed entitlement to judgment as a matter of law on the issue of taxable situs and also claimed that Sections 23.1241 and 23.1242are unconstitutional facially and as applied.
The trial court granted Valerus’s motion in part, holding that the compressor packages at issue are self-powered, that they are intended for use for industrial purposes, and that Valerus is a heavy equipment dealer as defined by Section 23.1241(a)(1). Therefore, the court held, Sections 23.1241 and 23.1242 of the Texas Tax Code are applicable to the compressor packages at issue. The court denied all other requests in Valerus’s motion for summary judgment. The trial court also granted GCAD’s motion for summary judgment in part, holding that Sections 23.1241 and 23.1242 of the Texas Tax Code are unconstitutional as applied to Valerus’s compressor packages because they create a valuation that is not based on a reasonable market value. The court further granted GCAD’s motion, holding that the compressor packages at issue had situs in' Gregg County as of January 1, 2012. Both sides appealed, and each complains of the *524portions of the judgment that are adverse to it.
Standard of Review
We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). The party moving for traditional summary judgment bears the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex.2014). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. Amedisys, 437 S.W.3d at 511. We review the evidence in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).
Applicable Law
Statutory construction is a legal question, which we review de novo. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010); City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). In construing statutes, our primary objective is to give effect to the legislature’s intent. Tex. Lottery Comm’n, 325 S.W.3d at 635. Where language in a statute is unambiguous, this court must seek the intent of the legislature as found in the plain and common meaning of the words and terms used. Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex.1993). If the legislature has failed to define a word or term, we will apply its ordinary meaning. Id.
Taxable Situs
In its second issue, Valerus contends that the trial court erred in determining that the taxable situs of the equipment at issue is Gregg County. Relying on Tax Code Section 23.124(f), Valerus argues that it should pay taxes on its heavy equipment to Harris County because that is the location of its principal place of business.
Analysis
In its motion for summary judgment, Valerus argued that application of the general tax situs statute, Tax Code Section 21.02(a), is problematic. See Tex. Tax Code Ann. § 21.02(a) (West Supp. 2014). Valerus explains, as though making a policy argument, that application of the traditional tax situs statute could lead to taxation at any of the locations outlined in Section 21.02(a), resulting in confusion and administrative difficulties. Valerus asserts that Section 23.1241(f) constitutes a specific situs provision that should be applied instead of Section 21.02(a) and, pursuant to Section 23.1241(f), the dealer’s principal place of business is the sole tax situs.
Specifically, Valerus relies on Section 23.1241(f)’s directive to the state comptroller to adopt a dealer’s heavy equipment inventory declaration form listing the address of each location where the declarant conducts business. See Tex. Tax Code Ann. § 23.1241(f) (West Supp.2014). Val-erus construes this provision together with the comptroller’s Form 50-265, which instructs dealers to file a declaration that calls this location “the business location of the inventory.” Valerus concludes that the statute and the comptroller’s form indicate that the “business location” is the appropriate tax situs for a dealer’s heavy equipment inventory, and “business location” could include a dealer’s principal *525place of business or principal yard location. Valerus argues that the equipment’s physical location and its business location may not be the same location. It argues that “[tjethering the heavy equipment inventory’s situs to the declarant’s principal place of business is consistent with the Legislature’s intent to comprehensively value heavy equipment inventory as a whole.”
In essence, Valerus uses Form 50-265 to interpret Section 23.1241, contending that Section 28.1241 specifically addresses situs and therefore trumps the general taxable situs statute, Section 21.02(a). In the case of an irreconcilable conflict between a general provision and a special provision, the special provision prevails. Tex. Gov’t Code Ann. § 311.026 (West 2013). However, this rule of construction applies only when statutes are in pari materia,, meaning they share a common purpose or object. Howlett v. Tar-rant Cnty., 301 S.W.3d 840, 846 (Tex.App.Fort Worth 2009, pet.' denied) (op. on reh’g). To determine whether two statutes share a common purpose, justifying their construction in pari materia, courts consider whether the two statutes were clearly written to achieve the same objective. Tex. State Bd. of Chiropractic Examiners v. Abbott, 391 S.W.3d 343, 348^19 (Tex.App.-Austin 2013, no pet.).
Chapter 21 of the tax code is entitled “Taxable Situs.” Section 21.02, entitled “Tangible Personal Property Generally,” specifies situations in which tangible personal property is taxable by a taxing unit. Tex. Tax Code Ann. § 21.02. There seems to be no dispute that Section 21.02 is the general statute governing the question of where tangible personal property is taxed. Determining taxable situs is the purpose of Section 21.02.
Section 23.1241 is entitled “Dealer’s Heavy Equipment Inventory; Value.” It provides definitions, an explanation of how to determine market value of heavy equipment, and other provisions regarding appraisal, inventory ownership, and authorization for the chief appraiser to examine the dealer’s records. Additionally, Section 23.1241(f) provides that dealers must file an inventory declaration form. Section 23.1241(i) and (j) set out the repercussions for failure to file the declaration. Tex. Tax Code Ann. § 23.1241. Nothing in Section 23.1241 refers to taxable situs.
In making its argument that Section 23.1241(f) is a specific situs statute that prevails over the general situs statute, Valerus relies on the state comptroller’s Form 50-265, “Dealer’s Heavy Equipment Inventory Declaration.” This document, which is to be sent to the appraisal district and the county tax office, requires the dealer’s name, mailing address, and the “name and physical business address of the business location of the inventory.” The form also instructs dealers to attach a list with the name and business address of each location at which it conducts business. Finally, the form instructs dealers to provide the number of units for the business location and a breakdown of sales, leases, and rental amounts for the previous twelve month period. At the bottom of the first page is the statement, “The Property Tax Assistance Division at the Texas Comptroller of Public Accounts provides property tax information and resources for taxpayers, local taxing entities, appraisal districts and appraisal review boards.” Dealer’s Heavy Equipment Inventory Declaration, http://www.window.state.tx.us/taxinfo/ taxforms/50-265.pdf. Simply put, Form 50-265 is nothing more than a form. It does not present rules, regulations, or policy that could be looked to in determining an agency’s interpretation of a statute. Form 50265 cannot be considered the comptroller’s construction of Section 23.1241(f).
*526Section 28.1241(f) does not purport to distinguish between a business’s principal place of business and other business locations. It does not provide instruction for a business to determine where, among different counties, it must pay taxes. This statute merely names reporting requirements for the benefit of the taxing authorities. We conclude that the legislature did not intend for Section 28.1241(f) to function as a situs statute. See Tex. Lottery Comm’n, 325 S.W.3d at 635. Accordingly, Section 21.02 and Section 23.1241(f) do not have the same objective and the doctrine of in pari materia does not apply. See Howlett, 301 S.W.3d at 846. Valerus did not show as a matter of law that Section 21.02 does not apply and that it should pay taxes in Harris County on heavy equipment that is located in Gregg County. See Tex. R. Civ. P. 166a(c).
In its motion for summary judgment, GCAD asserted that it was entitled to judgment on the issue of taxable situs. It argued that taxable situs of the equipment at issue is in Gregg County because the equipment was located in Gregg County’s taxing units on the January 1 assessment date and had been in Gregg County for more than a temporary period. Because both sides moved for summary judgment on this issue and the trial court granted one motion and denied the other, we review summary judgment evidence presented by both sides and determine all questions presented regarding this issue. .Fielding, 289 S.W.3d at 848. Pertinent to this issue, evidence in support of GCAD’s response to Valerus’s motion includes the affidavit of John Rutledge, an appraiser, and evidence in support of GCAD’s motion for summary judgment includes the spreadsheets listing each compressor and cooler and its location.
As a general rule, the jurisdiction to tax exists based on the length of time property is located in the taxing unit within Texas. Fairchild Aircraft, Inc. v. Bexar Appraisal Dist., 47 S.W.3d 577, 580 (Tex.App.-San Antonio 2001, pet. denied). Except for certain inapplicable exceptions, tangible personal property is taxable by a taxing unit if it is located in the unit on January 1 for more than a temporary period. Tex. Tax Code Ann. § 21.02(a)(1). The tax code does not define what constitutes “more than a temporary period.” Therefore, we must first determine the meaning of the term “temporary.” Black’s Law Dictionary defines “temporary” as “lasting for a time only; existing or continuing for a limited (usu. short) time; transitory.” Black’s Law DictionaRY 1693 (10th ed. 2014). Thus, Section 21.02(a)(1) can be interpreted to mean that property is taxable by a taxing unit if it is located in the unit on January 1 for more than a limited time. Patterson-UTI Drilling Co. LP, LLLP v. Webb Cnty. Appraisal Dist., 182 S.W.3d 14, 18 (Tex.App.-San Antonio 2005, no pet.). The situs of tangible personal property is determined by looking back in time to the location of the property in the year preceeding January 1 of the applicable tax year. Id.
In its petition, Valerus stated that on January 1, 2012, it owned compressors and related equipment that were in Gregg County. Valerus attached an exhibit listing those compressors and coolers by property identification number and a brief property description. Thus, Valerus judicially admitted the location of the equipment. See H20 Solutions, Ltd. v. PM Realty Group, LP, 438 S.W.3d 606, 617 (TexApp.-Houston [1st Dist.] 2014, pet. filed). In support of its motion for summary judgment, Valerus presented the September 17, 2013 affidavit of Allen Stults, Vice President for Strategic Alliances for Valerus. In his affidavit, Stults stated that on January 1, 2012, Valerus *527held legal title to twenty-eight compressor packages and thirty-two cooler units in Gregg County. Thus, the summary judgment evidence supports a determination that the equipment was in Gregg County on January 1. Although Valerus mentioned the requirement that the equipment must be in Gregg County for more than a temporary period, or can be outside Gregg County only temporarily, it did so in the context of its policy argument in favor of using the principal place of business as the taxable situs. Valerus did not argue that the equipment was not located in Gregg County for a sufficient amount of time to comply with the requirements of Section 21.02(a).
The summary judgment evidence shows, and Valerus admits, that all equipment at issue was in Gregg County on January 1, 2012. The time in Gregg County varied, with arrival dates ranging from September 23, 2005, to October 18, 2011. While the record does not contain specific arrival dates for thirteen coolers, GCAD produced other evidence that established all of the equipment had been in Gregg County for more than a temporary period. Stults, in his affidavit, stated that, prior to 2012, Valerus paid taxes to the Gregg County taxing authorities for “the units physically located in Gregg County on January 1 of each year.” Rutledge, the appraiser, stated in his affidavit that “[f]or prior years where the properties were located in Gregg County, the subject properties have been appraised and taxed in Gregg County. For the years preceding 2012, the subject properties and similar compressor properties were rendered in Gregg County.” We conclude that, because all of the equipment at issue was in Gregg County on January 1, 2012, and has been in Gregg County for more than a temporary period, the evidence shows, as a matter of law, that the 2012 taxable situs for the equipment at issue is Gregg County. See Tex. Tax Code Ann. § 21.02(a); Pattersovr-UTl Drilling Co. LP, LLLP, 182 S.W.3d at 18. Accordingly, the trial court did not err in granting GCAD’s motion for summary judgment, or in denying Valerus’s motion for summary judgment, on the issue of taxable situs. See Fielding, 289 S.W.3d at 848. We overrule Valerus’s second issue.
Heavy Equipment
In its sole issue as cross-appellant, GCAD asserts that the trial court erred in determining that Valerus’s compressor packages and cooler units at issue in this case are “heavy equipment” as that term is used in Section 23.1241(a)(6). GCAD concedes that the compressor packages and cooler units at issue weigh at least 1,500 pounds and are intended to be used for industrial or mining uses. However, GCAD contends that the compressor packages and cooler units at issue do not possess the characteristics of “self-propelled,” “self-powered,” or “pull-type” equipment.
Valerus argues that the equipment qualifies as both “self-powered” and “pull-type” equipment. It contends that both the compressor packages and the cooler units at issue have internal combustion engines that, by themselves, power the equipment. Further, they are self-contained and do not depend on any electrical power or other external power source, apart from the natural gas they use to fuel their internal combustion engines. Valerus also asserts that resolution of this issue involves statutory construction, which is determined as a matter of law, and therefore GCAD’s expert testimony is irrelevant.
Applicable Law
Section 23.1241 provides instruction for the computation of property tax for a “dealer’s heavy equipment inventory.” The statute defines “dealer’s heavy equipment inventory” as all items of heavy *528equipment that a dealer holds for sale, lease, or rent in Texas during the applicable tax year. Tex. Tax Code Ann. § 23.1241(a)(2) (West Supp. 2014). In the context of determining value for purposes of taxation, the tax code defines “heavy equipment” as “self-propelled, self-powered, or pull-type equipment, including farm equipment or a diesel engine, that weighs at least 1,500 pounds and is intended to be used for agricultural, construction, industrial, maritime, mining, or forestry uses.” Tex. Tax Code Ann. § 28.1241(a)(6) (West Supp. 2014). Determining whether a compressor fits within the statutory definition of the term “heavy equipment” is a question of statutory construction, and statutory construction involves a question of law. See State v. Shmnake, 199 S.W.3d 279, 284 (Tex.2006). However, whether a particular compressor will satisfy the statutory definition of heavy equipment will turn on characteristics specific to that compressor. In re Heavy Equip. Appraisal Litig., No. 12-0185, 2013 Tex. LEXIS 1079, at *6 (Tex. M.D.L. Panel Feb. 14, 2013) (not designated for publication); In re Ad Valorem Tax Litig., 216 S.W.3d 83, 85 (Tex.M.D.L.Panel 2006).
Valerus, as movant on this issue, had the burden to present summary judgment evidence that provided sufficient facts to support its contention that its equipment met the tax code definition as a matter of law. See Tex. R. Civ. P. 166a(c). Affidavits in support of summary judgment must show that they are based on personal knowledge, must set forth the facts, not conclusions, and must show that the facts are “admissible in evidence” at a conventional trial. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). If an affidavit contains information that is a unilateral or subjective determination of the facts or an opinion as to such facts, that information does not constitute summary judgment evidence. See Armstrong v. Harris Cnty., 669 S.W.2d 323, 328 (Tex.App.-Houston [1st Dist.] 1983, writ ref'd n.r.e.).
Analysis
In support of its argument, Valerus relies on Stults’s affidavit. Stults explained that “Valerus is in the business of leasing compressor packages that are used to extract oil and gas by reducing well-head pressures, which facilitates the lifting and gathering of oil and gas, and also to pressurize natural gas so that it can be processed and transported through natural gas pipelines.” He further explained that “[d]uring the compression process, coolers that are part of the compression packages reduce the temperature of the gas after each stage of the compression process; without coolers, the gas would become too hot for the compressors or pipelines to handle.” Stults described the equipment as follows:
8. The compressor packages depend upon motorized vehicles for transportation. All compressor packages, including the units located in Gregg County, are mounted on steel skids and equipped with to[w] or draw bars and/or lifting lugs, which are located at the front of the compressor packages. These features are an integral part of each compressor package’s design and are not removable. When it is necessary to move a compressor package over relatively short distances — such as from position at a well site to another — a large truck will pull the compressor package by attaching a cable to the compressor package’s tow bar or pull hook. When longer transport is necessary, for example, from one well site to another well site, the compressor package is lifted onto a large trailer, attached to a truck. The tow bars and/or pull hooks play an essential role in this transportation ef*529fort as well, as the units are lifted onto trailers by fixing a cable to the tow bar and/or pull hooks and pulling the unit onto the trader.
9. While the compressor packages and coolers are present at the well site, they are self-powered. All units in Gregg County, when in operation, are powered solely by the natural gas that they pressurize and process. They do not depend on any electrical power or other external power source. The natural gas supplied by the compressor package allows it to perform all necessary functions (other than transportation to another site, as described above).
10. None of the compressor packages or coolers in Gregg County are permanently affixed to the ground or to any real property. Instead, they are intended to be mobile, so that they can be moved by Valerus from one location to another, as needs dictate. Additionally, the compressor packages are connected to pipelines, but these connections are of a temporary nature.
11. All compressor packages and coolers owned by Valerus weigh more than 1,500 pounds, including all compressor packages located in Gregg County.
12. All compressor packages owned by Valerus are fabricated in Bay City in Matagorda County, Texas or in Victoria County, Texas. If maintenance is necessary that cannot be conducted at the well-site, the compressor packages are moved to Valerus’ [sic] yard locations; in addition to the Kilgore facility, Vale-rus maintains yards in Midland County, Victoria County, and Oklahoma where some of the compressor packages currently in Gregg County have been moved for maintenance.
As additional summary judgment evidence, Valerus presented the Rule 11 Agreement that included a table listing the twenty-eight compressors and thirty-two coolers by unit number. Each compressor is also identified by horsepower and year built. For each item, the table listed the parties’ agreed 2012 value if appraised pursuant to Section 28.1241 and the 2012 value if appraised pursuant to Section 21.02(a). The parties’ Rule 11 Agreement placed the taxable value of twenty-two of the compressor packages and thirty-one of the cooler units, as determined under Section 23.1241, at zero, implying that these units were not rented during the year. Further, from our review of the record, we found no evidence that these specific units were held by Valerus for lease during 2012. See Tex. Tax Code Ann. § 28.1241(a)(2). We express no opinion as to whether these units meet the statutory definition of “dealer’s heavy equipment inventory.”
We conclude that Valerus did not thoroughly develop and bring forward sufficient facts in evidence to meet its burden to prove that its equipment is “heavy equipment.” We will first address Vale-rus’s contention that the equipment is “pull-type” under the definition. In essence, Stults explained, generally, what the equipment does and that it does not transport itself. The evidence shows that the equipment can be pulled to move it to the place it needs to be in order to do its job. However, the equipment does not operate while being pulled. The tow bar is used for transport; it is not part of the compression process. Therefore, pulling is not part of the compression process, which is the equipment’s job.
The other categories in the statutory definition, “self-powered” and “self-propelled,” refer to the power or energy source. These categories refer to how the equipment converts fuel to energy to get the work done that the equipment is de*530signed to do. However, “pull-type” equipment may not convert fuel to energy, but it is through the pulling process that the work is done. For instance, agricultural equipment pulled behind a tractor constitutes “pull-type” equipment. See Hay & Forage Indus. v. New Holland N. Am., Inc., 60 F.Supp.2d 1099, 1104-05 (D.Kan.1998); Chisholm-Ryder Co. v. Paulson Bros. Indus., Inc., 187 F.Supp. 489, 490 (W.D.Wis.1960). If pulling the equipment onto a truck for transport was enough to qualify as “pull-type” equipment, then logically the categories would be based on how the equipment was placed on a truck, in which case there would also be a category for “lifted-by-crane-type.” Because the legislature did not create categories based on how the equipment was placed on a truck for transport, we conclude that the legislature intended the phrase “pull-type” equipment to refer to equipment that performs its job while being pulled. See Monsanto Co., 865 S.W.2d at 939. Valerus has not shown that its equipment falls in the category of “pull-type” as a matter of law.
Stults also said the equipment is self-powered. This is a conclusory statement as it does not provide the underlying facts to support the conclusion. Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex.App.-Dallas 2008, no pet.) Concluso-ry statements in affidavits are not competent evidence to support summary judgment because they are not credible or susceptible to being readily controverted. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996) (per curiam). Valerus had the burden to submit testimony describing conduct or circumstances that equate to the legal definition of “heavy equipment.” See Knetsch v. Gaitonde, 898 S.W.2d 386, 389 (Tex.App.-San Antonio 1995, no writ). A witness cannot prove that equipment is self-powered by merely saying it is self-powered. See Armstrong, 669 S.W.2d at 328. Additionally, Stults stated that the equipment is powered by natural gas. Identifying the fuel required to operate the equipment does not explain how the equipment can be categorized as self-powered.
Finally, Valerus’s evidence shows that each compressor has a certain amount of horsepower. Horsepower is a unit of power. See Merriam-Webster’s Collegiate Dictionary 600 (11th ed. 2003). However, an indication of the equipment’s horsepower is not evidence that the equipment is self-powered. Even if, based on the indication that compressors have “horsepower,” we take as true that the compressors have engines, that does not prove the equipment is self-powered. Moreover, there is no indication of “horsepower” for the coolers. If we are to infer that the compressors have engines, we would have to infer that the coolers do not.
We note also that Valerus argues in its brief that “the compressor packages and the cooler units at issue in this suit have internal combustion engines that, by themselves, power the equipment. CR.85, 223.” Clerk’s record page 85 is the fourth page of Stults’s affidavit. The phrase “internal combustion engine” does not appear on that page or anywhere in Stults’s affidavit. Likewise, that phrase does not appear on page 223, which is the second page of the affidavit of Dr. Meherwan Boyce, GCAD’s expert. This affidavit is part of GCAD’s evidence offered with its response to Vale-rus’s motion. Our review of Valerus’s summary judgment evidence reveals no evidence proving that either the compressor packages or cooler units have internal combustion engines.
In short, Valerus provided no evidence explaining how its equipment functions. It is impossible to know if the equipment is “self-powered” in the absence of such an *531explanation. Further, while the evidence shows it can be pulled, the intent is to pull it a short distance to place it in the location it needs to be in or on a truck for transport. We conclude that the equipment at issue does not fall in the category of “pull-type” as contemplated by Section 23.1241(a)(6). Accordingly, Valerus did not meet its burden to prove as a matter of law that its equipment meets Section 23.1241(a)(6)’s definition of heavy equipment. See Tex. R. Civ. P. 166a(c). If the movant does not satisfy its initial burden, the burden does not shift and the nonmov-ant need not respond or present any evidence. Amedisys, Inc., 437 S.W.3d at 511. Accordingly, we need not consider GCAD’s evidence on this issue. We sustain GCAD’s sole issue as cross-appellant. Due to our disposition of this issue, we need not reach Valerus’s first and third issues. See Tex. R. App. P. 47.1.
Conclusion
The trial court properly determined that the appropriate taxable situs of the equipment at issue in this case is Gregg County. We affirm that portion of the trial court’s judgment granting GCAD’s motion for summary judgment on the issue of taxable situs. Because Valerus did not fulfill its burden to prove that its equipment meets Section 23.1241(a)(6)’s definition of “heavy equipment,” we reverse that portion of the trial court’s judgment granting Valerus’s motion for summary judgment on this issue. We remand this case to the trial court for further proceedings. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283768/ | Case: 20-60449 Document: 00516156835 Page: 1 Date Filed: 01/06/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 6, 2022
No. 20-60449 Lyle W. Cayce
Clerk
Doris Griselda Soriano-Salinas; Richardson Estiven
Ramos-Soriano,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A212 975 778
BIA No. A212 975 777
Before Jones, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Petitioner Doris Griselda Soriano-Salinas is an immigrant from
Honduras seeking asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Her child, Richardson Estiven Ramos-
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60449 Document: 00516156835 Page: 2 Date Filed: 01/06/2022
No. 20-60449
Soriano, seeks derivative asylum. Both the Immigration Judge (IJ) and the
Board of Immigration Appeals (BIA) denied their claims. We DENY their
petition for review of the BIA decision.
I.
Doris Griselda Soriano-Salinas and her older son, Richardson, natives
and citizens of Honduras, entered the United States without being admitted
or paroled. They were served with notices to appear charging them with
removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Through counsel, the
petitioners admitted the factual allegations and conceded that they were
removable as charged. They then filed applications for asylum, withholding
of removal, and protection under the CAT.
Soriano-Salinas claimed membership in a particular social group
defined as “women in a domestic relationship in Honduras who are unable
to leave the relationship,” and her son claimed membership in a particular
social group consisting of “family members in a relationship who are unable
to leave the relationship.” Soriano-Salinas testified that she feared returning
to Honduras because her former partner had psychologically and physically
abused her and Richardson. At one point, her partner was arrested, but she
withdrew the report within twenty-four hours so that he would be able to
leave police custody and return home. The physical abuse continued, but
Soriano-Salinas did not file another police report or leave the relationship
because she stated she loved him. Eventually she decided to leave and fled
to the United States with Richardson. Since fleeing, she has received
threatening messages from her former partner.
The IJ denied the applications. The IJ determined that the petitioners
were not entitled to asylum or withholding of removal because they had failed
to demonstrate that they were subjected to past persecution or that they faced
a clear probability of future persecution on account of a protected ground.
2
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No. 20-60449
After determining that the proposed social group consisting of “Honduran
women unable to leave domestic relationships” might be cognizable, the IJ
determined that Soriano-Salinas failed to demonstrate that she was a member
of that particular social group. The IJ further found that her fear of future
persecution was not objectively reasonable because her partner had left the
relationship and the police encouraged her to proceed with criminal charges
against her partner. Finally, the IJ concluded that the petitioners were not
entitled to protection under the CAT because they did not demonstrate that
it was more likely than not that they would be tortured with government
acquiescence if forced to return to Honduras.
The petitioners appealed, arguing that: (1) the IJ failed to determine
whether the proposed social group was cognizable; (2) the IJ erred in
determining that Soriano-Salinas was not a member of her proposed social
group; (3) the IJ failed to address the request for humanitarian asylum; (4)
the IJ applied the wrong standard in determining that they were not entitled
to protection under the CAT; and (5) the IJ should have terminated the
removal proceedings because the notice to appear was defective.
The BIA affirmed the IJ’s decision and dismissed the appeal. Initially,
the BIA determined that jurisdiction properly vested with the IJ and that
termination of the proceedings on jurisdictional grounds was not warranted.
The BIA then concluded that the proposed social group was not cognizable
because it was amorphous and did not exist independently of the harm
asserted. Additionally, the BIA held that the IJ did not err in failing to address
the petitioners’ humanitarian asylum claim because they failed to
demonstrate that they were subjected to past persecution on account of a
protected ground. Finally, the BIA held that the IJ applied the correct
standard in determining that the petitioners were not entitled to protection
under the CAT because they had failed to demonstrate that it was more likely
3
Case: 20-60449 Document: 00516156835 Page: 4 Date Filed: 01/06/2022
No. 20-60449
that not that they would be tortured with government acquiescence if forced
to return to Honduras.
The petitioners filed a timely petition for review. See 8 U.S.C. §
1252(b)(1).
II.
This court reviews the BIA’s decision, considering the IJ’s decision
only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d 220, 224
(5th Cir. 2018). Factual findings are reviewed for substantial evidence and
legal determinations are reviewed de novo. Lopez-Gomez v. Ashcroft, 263 F.3d
442, 444 (5th Cir. 2001). Under the substantial evidence standard, this court
may not overturn a factual finding unless the evidence compels a contrary
result. Martinez-Lopez v. Barr, 943 F.3d 766, 769 (5th Cir. 2019).
III.
To establish eligibility for asylum or withholding of removal, an
applicant must prove that she is unwilling or unable to return to her home
country because of persecution on account of her race, religion, nationality,
membership in a particular social group, or political opinion. Cantarero-
Lagos v. Barr, 924 F.3d 145, 149-50 (5th Cir. 2019) (withholding); Sharma v.
Holder, 729 F.3d 407, 411 (5th Cir. 2013) (asylum). “[A] particular social
group must: (1) consist of persons who share a common immutable
characteristic; (2) be defined with particularity; and (3) be socially visible or
distinct within the society in question.” Gonzales-Veliz v. Barr, 938 F.3d 219,
229 (5th Cir. 2019) (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA
2014)).
This court had previously determined that petitioner Soriano-Salinas’
group is not cognizable as a particular social group because it is defined by
the persecution of its members. Gonzales-Veliz, 938 F.3d at 232
4
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No. 20-60449
(“‘Honduran women unable to leave their relationship’ is impermissibly
defined in a circular manner. The group is defined by, and does not exist
independently of, the harm—i.e., the inability to leave.”). However, that
decision relied on Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018) (A-
B- I), which was recently vacated by the Attorney General’s decision in
Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021) (“A-B- III”).
Nevertheless, several months ago we reaffirmed that the group
“Honduran women who are unable to leave their domestic relationships” is
not cognizable as a particular social group. See Jaco v. Garland, 16 F.4th 1169,
1176, 1181 (5th Cir. 2021). In that case, the court held that Gonzales-Veliz
“remains the law” of the Fifth Circuit following A-B- III. Jaco, 16 F.4th at
1176. The Jaco decision further states that “even if Gonzales-Veliz were not
good law,” “multiple factors” counsel against recognizing that petitioner
Soriano-Salinas’ proposed group as a particular social group. See Jaco, 16
F.4th at 1179. Accordingly, under both Jaco and Gonzales-Veliz, Soriano-
Salinas’ group of “Honduran women unable to leave their domestic
relationship” is not a cognizable particular social group. Id. at 1181; Gonzales-
Veliz, 938 F.3d at 232. Her son’s derivative claim similarly must fail.
Because the petitioners fail to present a cognizable particular social group,
the BIA correctly concluded that they are not eligible for asylum or
withholding of removal.
IV.
To establish entitlement to relief under the CAT, a petitioner must
prove that it is more likely than not they will be tortured with the consent or
acquiescence of public officials if they return to the country in question. 8
C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
Although the petitioners claim that Honduran law enforcement
officials fail to intervene to protect women from domestic violence, the
5
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No. 20-60449
record reflects that Soriano-Salinas only called the police on one occasion,
that she voluntarily dismissed her criminal complaint, and that the police
encouraged her to press charges. The petitioners have introduced evidence
addressing the effects of domestic violence, the severe risk of emotional and
psychological harm that Soriano-Salinas would suffer if forced to return to
Honduras, and the unwillingness of Honduran police to protect women and
children who experience domestic violence. This evidence tests the BIA’s
finding that the petitioners failed to demonstrate that it was more likely that
not that they would be tortured with government acquiescence if forced to
return to Honduras, but it does not compel a contrary result. See Martinez-
Lopez, 943 F.3d at 769.
V.
Because the petitioners have not presented a cognizable social group,
and because the BIA’s denial of CAT relief is supported by substantial
evidence, the petition for review is DENIED.
6 | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285676/ | M. MICHAEL KINARD, Judge | Appellants Tiffany Wafford and Freddie Miles appeal the termination of their parental rights to their three children, DJM, DM, and TM. They have filed separate briefs on appeal challenging the trial court’s findings that termination was in the children’s best interest and that statutory grounds for termination were proved. We affirm. The Department of Human Services (DHS) took custody of the children at different times, and the cases initially proceeded separately. TM was taken into custody after she was born on September 10, 2013, with drugs in her system. Waf-ford tested positive for amphetamines and barbiturates but denied drug use. Waf-ford was then incarcerated on a probation violation on September 18. DM, born August 30, 2012, was removed from Miles’s custody on September 23, 2013. Miles refused to take a drug test and acknowledged that he had stopped taking medication for his mental-health diagnosis. There was also | ^evidence of medical neglect. DM had been diagnosed with “failure to thrive” but had not returned to the doctor since he was eleven weeks old, had not received immunizátions since he was two months old, and had an untreated ear infection. DJM, born March 26, 2008, had been placed in the custody of Wafford’s mother, Belinda Brown, since 2009. DJM Wcjs removed from Brown’s custody in April 2014 after Brown failed drug tests and refused to cooperate with DHS in a protective-services case. All three children were adjudicated dependent-neglected. According to Wafford, she violated her probation for fraudulent use of a credit card by failing to report and make payments as ordered, and she was sentenced to. three years’, imprisonment. After her arrest in September 2013, she remained incarcerated until September 2014. Miles submitted to a psychological evaluation but otherwise failed to comply with the case plan while Wafford was incarcerated. After an initial mental-health evaluation, Miles was diagnosed with major depressive disorder, recurrent, in partial remission, and it was recommended that he undergo a psychiatric evaluation. At a December 2013 psychological evaluation, Miles reported that he was uncertain of his mental diagnosis for which he received disability benefits. He also reported a history of numerous drug and domestic-violence charges. This evaluation resulted in a diagnosis of personality disorder with passive/aggressive, dependent, and schizoid features. The examiner stated in his report that it was difficult to see how Miles could be an adequate caregiver. without intensive psychotherapy, and this would have to be in conjunction with maintaining sobriety. At an August 2014 permanency-planning hearing, Wafford testified that she would lasoon be released from prison to a halfway house. The trial court authorized a plan for custody of DM and TM to be placed with Wafford after her release from the halfway house. The court ordered her to obtain safe and appropriate housing and to obtain employment. Miles was still not in compliance with the case plan. The anticipated reunification with Waf-ford did not occur. Wafford- left the halfway house early, married Miles on October 1, 2014, and began living with Miles. A DHS court report dated October 31, 2014, noted that Wafford’s case plan ordered her to establish independent living arrangements separate from Miles. At. the November 5, 2014 review hearings, the court found that Wafford had failed to obtain a residence separate from Miles, had not provided proof of employment, and had missed her appointment for a psychological evaluation. The court ordered her to do these things and to complete counseling if recommended. Miles tested positive for methamphetamine twice in October and still failed to attend counseling. The court found .that although she was currently clean, Wafford was jeopardizing her sobriety by living with Miles. DHS filed a petition to terminate the parties’ rights to DM and TM in November 2014; the petition for termination of their rights to DJM was filed in February 2015. At the termination hearing, Wafford testified that she had used methamphetamine since she was “a kid” but claimed she had not used any drugs since her release irom prison. Wafford had tested positive once since her release, but she disputed the results, claiming that she had never used cocaine and that she had tested negative for her parole officer. Byron Woods, a DHS family service worker, testified that Wafford did not complete any programs |4at the halfway house. She did, however, complete outpatient drug counseling and aftercare.in-March 2015. Wafford admitted that she had not been to NA meetings in a while, but she,-intended to go again. Wafford acknowledged that, - like TM, DJM was born with drugs in her system and a case had been opened in California where they were living. Wafford said that she gave DJM to Brown when the child was nine months old because she was in trouble regarding probation in- California and at one point served a nine-month sentence. there. Wafford acknowledged that she never completed parenting classes or a psychological evaluation but claimed they had not been rescheduled by DHS. She said that she had made some job applications but had not been employed since being paroled. She planned to seek disability benefits for her asthma condition, which had caused several hospitalizations. She did not have a driver’s license or a vehicle. Woods agreed with Wafford that the home the parties were living in was suitable. Woods testified that Miles’s compliance was highly sporadic for more than a year. He had numerous positive drug tests and often evaded testing. Miles testified that he had used methamphetamine for ten or fifteen years but he had refused to enter drug treatment because he did not like the therapist and would not have been allowed to continue taking prescription pain medication for a knee condition. However, Miles said that he had attended aftercare and NA meetings with Wafford and.was no longer using drugs. His last positive test was on October 31, 2014. pMiles received disability benefits for mental disabilities and testified that he went to a mental-health clinic for medication management. He claimed that he did' not need coünseling. He never took parenting classes and failed to consistently visit the children while Wafford was incarcerated. He was on probation for forgery and had an upcoming probation-revocation hearing due to nonpayment. • He admitted that there had been domestic violence between him and Wafford, but he claimed that the last instance had occurred about two years earlier. The termination of parental rights is a two-step process. The trial court must find by clear and convincing evidence (1) the existence of one or more statutory grounds for termination and (2) that termination is in the best interest of the children. Chaffin v. Arkansas Department of Human Services, 2015 Ark. App. 522, 471 S.W.3d 251. On appeal, sufficiency of the evidence is determined by whether the trial court’s finding that the fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when the appellate court is, on the entire evidence, left with a definite and firm conviction that a mistake has been made. Id. In deciding whether a finding of the trial court is clearly erroneous, we give great deference to the superi- or opportunity of the trial court to observe the parties and to judge the credibility of witnesses. Id. Wafford contends that the evidence is insufficient to support any of the three statutory grounds for termination found by the trial court. Only one ground is necessary to terminate parental rights. Friend v. Arkansas Department of Human Services, 2009 Ark.App. 606, 344 S.W.3d 670. We affirm on the “subsequent factors” ground. This ground is proved when other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent. Ark.Code Ann. § 9-27-■341(b)(3)(B)(vii)(a) (Repl. 2015). Wafford argues that her marriage to Miles was not a subsequent factor warranting termination. She notes that she was not ordered to stay away from Miles and that his compliance with the case plan improved after their marriage. She further argues that although she left the halfway house, her- drug counselor’s report proved that her participation in intensive outpatient rehab was a viable option. .Subsequent to the filing of the petition in TM’s and DM’s cases, Wafford was sentenced to the Department of Correction for violating her probation. She was incarcerated for approximately one year. When Wafford was finally released from prison and could begin fully participating in' the case plan, she did not comply. She left the halfway house early instead of continuing with the recommended drug treatment. Although Wafford was not ordered to have no contact with Miles, she was ordered to have a separate residence in the case plan and court orders. Miles had completely failed to comply with the case plan while |7Wafford was incarcerated, and he continued to test positive for drugs even after her release and their marriage. Although he eventually began testing negative on drug tests; he still had not submitted to treatment or addressed his mental-health issues. The requirement for a separate residence was viewed as necessary for Wafford’s sobriety and ability to provide a stable home for the children. Her failure to obtain employment and complete the psychological evaluation and any recommendations left further doubt about her ability to provide for the children. We hold that the trial court’s finding was not clearly erroneous. The best-interest analysis includes consideration of the likelihood that the children will be adopted and of the potential harm caused by returning custody of the children to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). However, adoptability1 and potential harm are merely factors to be considered — they are not elements of the cause of action and need not be established by clear and convincing evidence. See Chaffin, supra. Rather, after considering all of the factors, the trial court must find by clear and convincing evidence that termination of parental rights is in the best interest of the children. Id. Wafford argues that the trial court erroneously found that her marriage and living arrangements would result in potential harm because there was insufficient evidence that she was likely to relapse or that the children would otherwise be subjected to harm. We cannot say that the trial court’s best-interest finding was clearly erroneous. Despite the court’s orders | sand the fact that the case was moving toward termination, Wafford' did not obtain separate living arrangements. Both parents admitted to being long-time drug abusers, and Miles did not submit to drug treatment. Two of their children were born with drugs in their systems, and the other child was medically neglected in his first year of life. Neither parent completed parenting classes or counseling, Wafford had no income, and Miles was facing incarceration. A parent’s lack of stable housing or employment can demonstrate potential harm to a child,'as can a parent’s continued illegal-drug usage. Jung v. Arkansas Department of Human Services, 2014 Ark. App. 523, 443 S.W.3d 555 (holding that while there was some evidence that Jung was recently employed and sober at the time of the hearing, there was insufficient proof that, given her history, she could maintain employment or sobriety). Miles also challenges each of the grounds for termination. He contends that although he did not comply with all of DHS’s orders, he had remedied all subsequent issues and reached the desired outcome. We disagree. As DHS notes, he made no. overtures toward compliance for a year and still tested positive for drugs after Wafford had been released and was living with him. A psychological evaluation recommended that Miles receive intensive psychotherapy and a drug assessment recommended treatment, but Miles submitted to neither. He also failed to consistently visit the children, failed to complete parenting classes, and was facing a probation-revocation hearing. The finding of the “subsequent factors” ground was not clearly erroneous. Miles contends that the bést-inter-est finding was erroneous because the children could [shave been returned to an appropriate, drug-free home at the time of the termination hearing. Again, we disagree. It is well established that evidence that a parent begins to. make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and to remedy, the situation that caused the children to be removed in the first place. McPherson v. Arkansas Department of Human Services, 2013 Ark. App. 525, 2013 WL 5371937. Miles did not begin: to address any of .th'e issues preventing reunification until more • than a year into the case,-and as noted above, significant issues remained. We affirm the trial court’s decision. Affirmed. Gladwin, C.J., and Gruber, J., agree. . An adoption specialist testified at the termination hearing that the children were adoptable, and neither parent challenges the evidence on this factor. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283779/ | ORDER
PER CURIAM.
Steven Haywood appeals from the judgment entered on his convictions after a *765jury trial for three counts of first degree assault on a law enforcement officer, three counts of armed criminal action, one count of sale of a controlled substance, one count of receiving stolen property, one count of resisting arrest and one count of unlawful possession of drug paraphernalia. There was sufficient evidence that Haywood knew or was aware he was shooting at law enforcement officers, sufficient evidence that he sold more than five grams of marijuana and no plain error in the submission of verdict forms referencing incorrect instruction numbers. We affirm.
An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished ■with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 80.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283781/ | ORDER
PER CURIAM.
Pamela Davis (Appellant) appeals from the trial court’s judgment entered upon a jury verdict finding in favor of Barnes-Jewish St. Peters and Dr. John Hartweger on Appellant’s wrongful death suit. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court committed no reversible error. An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283782/ | LAWRENCE E. MOONEY, JUDGE
The defendant, Demetrius A. Brown, appeals the judgment and sentence entered by the Circuit Court of St. Charles County following his conviction by a jury of two counts of second-degree burglary, in viola*776tion of section 569.170 RSMo. (2000), and two counts of class-C felony stealing, in violation of section 570.030.3 RSMo. (Supp. 2010).1 The trial court sentenced the defendant as a prior and persistent offender to a total of twenty years of imprisonment.
Because the State failed to make a sub-missible case on count six — second-degree burglary of the sacristy of St. Peter Catholic Church — we reverse the defendant’s conviction on that count. Because the State failed to prove a value of $500 or more at the time of the offense for the television that the State charged the defendant with stealing in count seven, we amend the defendant’s conviction on count seven to the lesser-included offense of class-A misdemeanor stealing pursuant to section 570.030.8 RSMo. (Supp.2010) and remand this count to the trial court for re-sentencing.
We affirm the defendant’s other two convictions: second-degree burglary of the rectory at St. Peter Catholic Church charged in count one, and stealing a credit card from St. Peter’s charged in count two.
Facts
Viewed in the light most favorable to the judgment, the facts are as follows. On June 11th, 2011, Don Moxley, the business manager for St. Peter Catholic Church in St. Charles, Missouri, reported to police that a television was missing from the chapel.2 The television was a 32-inch Samsung, model number LN32A450, donated by a parishioner who had bought it in June 2008 for $749.99. One day before Mr. Moxley reported the television stolen, the defendant sold that same Samsung television to a pawn shop in St. Louis for $140.
On Saturday, June 18th, 2011, at approximately 9:00 a.m., Jennifer Lanteigne, a teacher at St. Peter School and a member of St. Peter Catholic Church, was praying in the chapel at the church. She heard someone enter and pace back and forth, and then she heard a loud rattling noise. She turned and saw the defendant in the hall outside the chapel, near the prayer candles and the candle-donation box. She did not recognize the defendant, and became concerned when she heard further pacing and rattling. She deliberately jangled her keys to indicate that she was leaving, and she left through the chapel’s front door. Ms. Lanteigne saw a white car occupied by a younger man parked next to her green minivan. She noticed that the white car had damage to the side rear, and she did not recall seeing a license plate. Ms. Lanteigne saw the defendant walk out the front door of the main church, and get into the white car.
Ms. Lanteigne drove next door to St. Peter’s rectory, which housed the priests’ residence and the church business offices, and told Father Fred Meyer what she had seen. Ms. Lanteigne and Father Meyer walked to the chapel hallway where Ms. Lanteigne had seen the defendant. They found that the wooden donation box for the prayer candles had been forced open, and contained no money.
Father Meyer returned to the rectory while Ms. Lanteigne left St. Peter’s church complex. As she drove by St. Peter’s school, however, Ms. Lanteigne saw the same white car in the school parking lot located directly behind the rectory. She saw the defendant carrying a black case and walking quickly from the rectory toward the white car. Ms. Lanteigne imme*777diately returned to the rectory to check on the elderly Father Meyer. Father Meyer contacted Mr. Moxley, who called the police. Father Meyer discovered that a heavy outside door at the back of the rectory, normally kept locked and used only by the housekeeper, was partially open. Church personnel discovered that a laptop computer, a laptop case, a camera, cash, and a Lowe’s credit card had been taken from the rectory, and that, in addition to the candle-donation box having been emptied, a set of keys for both the church and the rectory were missing from the sacristy.
On June 21st, 2011, Carol Breckle, the director of religious education at St. Robert Bellarmine Catholic Church in St. Charles, was at the church when she received a call from the parish secretary saying that a man sought to enter the building, and that he matched the description of the man who had broken into St. Peter’s. Ms. Breckle saw the defendant try to open a set of locked side doors. He then got into a white car with body damage and no license plates and drove to another part of the budding. Ms. Breckle went to warn the maintenance man, Dave, what was happening, and heard the lid closing on the donation box in the hallway for the St. Vincent DePaul Society. She investigated, and saw the defendant standing near the donation box. The defendant told Ms. Breckle that Dave was right outside and had let him in, and the defendant then went into the church. Ms. Breckle followed the defendant, and watched him go quickly and directly to the front of the church and look in the candle-donation box. The defendant then went around the tabernacle, where the church keeps the communion host, and Ms. Breckle at that point insisted that the defendant leave immediately through the nearest doors.
On July 2nd, 2011, Officer Kenneth Mayer of the St. Charles Police Department noticed a white Ford Taurus with extensive body damage on its left rear side that matched the description of a car sought by police. Two men were inside the car. Officer Mayer followed the car, and pulled the car over when it entered a gas station. Officer Mayer spoke with the car’s driver, the defendant, and arrested him. In the white Taurus, police found among other items a white dress shirt and keys belonging to St. Peter’s, marked “rectory” and “church basement.”
Detective Sergeant David Kleinschmidt of the St. Charles Police Department investigated the burglary at St. Peter’s. During his investigation, Detective Kleinschmidt obtained surveillance video from St. Robert’s, which showed the white car that Ms. Breckle saw along with footage of the defendant. Detective Kleinsch-midt interviewed the defendant on July 2nd, 2011. At the time of his interview, the defendant wore a white dress shirt with the sleeves unbuttoned. The defendant told Detective Kleinschmidt that he was from St. Louis, and often went to a Baptist church. The defendant explained that sometimes, however, he would go to a church and put money in the donation box for prayer candles because he had recently received bad medical news. He said that it had been a month or so since he had been to St. Charles, and that he had been to two Catholic churches there. Detective Kleinschmidt told the defendant that a woman had seen him at St. Peter’s. The defendant acknowledged that he had seen the woman, that she saw him leave, that she herself left, and that she drove a green van. The defendant stated that he did not steal any candles or anything. He finally admitted that he had been inside St. Peter’s on June 18th, 2011 while his passenger stayed in the car. The defendant confirmed that he was in the surveil*778lance footage from St. Robert’s and that he was driving the white car.
Detective Kleinschmidt checked an internet database containing participating pawn-shop transactions nationwide. He determined that only one Samsung television of the same model as that reported stolen from St. Peter’s had been sold to a pawn shop in the metropolitan St. Louis area between June 9th and June 11th, 2011. The defendant was listed as the person who sold the television involved in that transaction. Detective Kleinschmidt noted that the signature on the pawn ticket looked similar to the defendant’s signature on his Miranda waiver form. Detective Kleinschmidt also obtained surveillance footage from two of the three Lowe’s stores where the credit card stolen from St. Peter’s was used. Detective Kleinschmidt identified the defendant as the man in the videos wearing a white dress shirt with the sleeves unbuttoned and using the stolen credit card.
The State ultimately charged the defendant by substitute information with two counts of burglary in the second degree— count one for St. Peter’s rectory and count six for St. Peter’s sacristy; three counts of felony stealing — count two for the credit card, count three for the laptop computer, and count seven for the television; and two counts of misdemeanor stealing— count four for the camera and count five for the cash. All counts related to incidents occurring at St. Peter Catholic Church,. and charged the defendant as “acting in concert with another.” The State did not charge the defendant with any offense related to St. Robert’s.
The defendant filed a motion in limine seeking to exclude, inter alia, evidence that he entered St. Robert’s and approached the church’s donation box. The trial court sustained the motion in part, and denied it in part. The court allowed the State to adduce evidence that the defendant allegedly tried to break into the donation box at St. Robert’s on June 21st, 2011.
A number of witnesses testified at trial, including Ms. Breckle from St. Robert’s, and the State entered numerous exhibits into evidence. Among these exhibits were surveillance videos from St. Robert’s and from Lowe’s showing footage of the defendant. At trial Detective Kleinschmidt testified that the man seen on the Lowe’s videos was the defendant. The defendant objected to this testimony. In its closing argument, the State told the jury, “Then about a week later he’s pulling the same stunt at St. Robert_ He goes at St. Peter’s from the candle box to the sacristy to the rectory without stopping anywhere in between and at St. Robert he goes from the poor box to the candle donation box.”
The jury convicted the defendant on count one (burglary of St. Peter’s rectory), count two (stealing the credit card), count six (burglary of St. Peter’s sacristy), and count seven (stealing the Samsung television). The jury acquitted the defendant on count four (stealing the camera) and count five (stealing cash from St. Peter’s). The trial court declared a mistrial on count three (stealing the laptop) when the jury could not reach a verdict. The trial court sentenced the defendant as a prior and persistent offender to terms of imprisonment of 15 years each for counts one, two, and six, all to run concurrently, and to a consecutive term of five years for count seven. The defendant appeals.
Discussion
In five points on appeal, the defendant challenges the sufficiency of the evidence to support his conviction for second-degree burglary of St. Peter’s sacristy; the sufficiency of the evidence to support his conviction for stealing property (the televi*779sion) valued at $500 or more; submission of the verdict-directing instruction for stealing property valued at $500 or more (the television); the trial court’s admission of evidence of conduct at St. Robert’s with which the defendant was not charged; and the trial court’s admission of Detective Kleinschmidt’s testimony identifying the defendant on the Lowe’s surveillance videotape.
Sufficiency of the Evidence to Support the Defendant’s Conviction For Burglary of the St. Peter Catholic Church Sacristy
The defendant claims the trial court erred in overruling his motion for judgment of acquittal and in entering judgment and sentence on count six — second-degree burglary of St. Peter’s sacristy— because the evidence was not sufficient to show that either the defendant or an accomplice knowingly entered the church sacristy unlawfully. Specifically, he argues that the State failed to prove any reason the defendant or an accomplice would have known that the sacristy of the church was not open to the public.
We review the denial of a motion for judgment of acquittal to determine if the State adduced sufficient evidence to make a submissible case. State v. Pullum, 281 S.W.3d 912, 915 (Mo.App.E.D.2009). Our role is to determine whether sufficient evidence was produced at trial so that a reasonable person could conclude that the defendant was guilty. Id. “In determining whether the evidence is sufficient to support a conviction, we view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict, and we disregard all contradictory evidence and inferences.” Id. We must consider the inferences favorable to the State unless the contrary inference is such that it would necessarily give rise to a reasonable doubt in the mind of a reasonable juror. State v. Grim, 854 S.W.2d 403, 413 (Mo. banc 1993). We may not supply missing evidence, or give the State the benefit of unreasonable, speculative, or forced inferences. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001).
A person commits the crime of second-degree burglary, a class-C felony “when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” Section 569.170. With respect to his conduct or to attendant circumstances, a person acts knowingly or with knowledge when he is aware of his conduct or that those circumstances exist. Section 562.016.3.
[A] person “enters unlawfully or remains unlawfully” in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his purpose, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or by other authorized person. A license or privilege to enter or remain in a budding which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public.
Section 569.010(8).
The central question here is whether the State adduced sufficient evidence to allow the jury to determine beyond a reasonable doubt that the defendant or an accomplice knowingly entered unlawfully — that is knowingly entered without a license or privilege to do so — a part of St. Peter Catholic Church that was not open to the public, namely the sacristy. As section 562.016.3 states, for the defendant or an accomplice to have knowingly entered the *780sacristy unlawfully, he must have been aware that his entry into the sacristy was unlawful because it was not open to the public. We conclude that the State failed to adduce sufficient evidence to support the defendant’s conviction of second-degree burglary charged in count six.
Father Meyer testified at trial that the sacristy is where the church keeps the priests’ vestments, the chalices, and the wine and host for mass. It is also where the collections from the masses are kept in a safe until retrieved by one of the priests for accounting. The prosecutor asked Father Meyer, “And in fact to get at it [the sacristy] from the church you have to go through the altar, right?” (Emphasis added.) In direct response, Father Meyer explained that to reach the sacristy one has to enter the sanctuary and walk to the front into the altar area. Father Meyer explained that the sacristy is generally not open to the public, but only to a few people who participate in the church service, such as the priests, the children who serve, the reader, and the singer. He added that a person may come to the sacristy, however, if he or she wishes to speak to a priest or one of the other service participants.
During Ms. Lanteigne’s testimony, the State introduced a series of five photographs as exhibits 22, 24, 25, 26, and 27. Ms. Lanteigne identified the photographs as depicting (1) the chapel, the church with its steeple, and the parking lot [Exhibit 22]; (2) “the sacristy or the back of the church,” the rectory, and the school principal’s parking space [Exhibit 24]; (3) the principal’s parking space [Exhibit 25]; (4) the entrance to the sacristy of the church [Exhibit 26]; and (5) the front of the rectory showing the front door and the area in which Ms. Lanteigne parked [Exhibit 27]. These five exhibits have been filed with this Court. The photographs in this series of exhibits all depict the exterior of the church complex, including an exterior door identified as the entrance to the sacristy. The photograph of the exterior door to the sacristy shows no sign indicating that it is a private entrance.
In addition, Father Meyer viewed Exhibit 24, an exterior photograph of the back of the church, and identified the sacristy for the jury. Soon thereafter on recross examination, defense counsel asked “[i]s the sacristy itself locked?” Father Meyer replied “[m]ost times, yes. Except this was a Saturday and Saturday most times the sacristy — the inside door is always open, the inside is always open, but on Saturdays, for weddings and things like that, it generally would be open, yeah.” (Emphasis added.) The evidence reveals that there were at least two doors to the sacristy — an interior door from the altar area and an exterior door from- a rear parking area. Father Meyer testified that “the inside door is always open.” The exterior door may have been closed, but the State adduced no evidence that it was locked on the Saturday in question. We cannot determine from the evidence in the record how the defendant or an accomplice achieved entry into the sacristy. We conclude the evidence is insufficient to establish that the defendant or an accomplice knowingly unlawfully entered the sacristy.
We have considered Exhibits 22 and 24 through 27, Ms. Lanteigne’s descriptive testimony of those exhibits, and Father Meyer’s testimony that the inside door to the sacristy is always open and that on Saturdays the sacristy generally would be open. This evidence creates a contrary inference unfavorable to the State that is such a natural and logical extension of the evidence that a reasonable juror could not disregard it: that the defendant or an accomplice could have entered the sacristy through an unlocked, unmarked, possibly open door, either interior or exterior, with*781out knowing that the door led to a private room in the church. Grim, 854 S.W.2d at 411.
The State contends that by walking into the altar area, as one must to reach the sacristy “from the church,” the defendant must have known that the sacristy was a room that was not open to the public. We reject the State’s argument. We conclude from the evidence that the defendant or an accomplice may have entered the sacristy either through an unlocked unmarked exterior door or through an unmarked open interior doorway between the sacristy and the sanctuary. Whichever the manner of entry, we cannot conclude that the defendant or an accomplice was on notice that such entry in and of itself would be illegal..
If the defendant or an accomplice entered the sacristy through the interior door, the evidence is insufficient to establish that the defendant or an accomplice “knowingly entered unlawfully” a private room. The State introduced no testimony or exhibits to explain the sanctuary layout; the layout of the altar area; the position of the interior sacristy door in relation to the altar; or the position of the altar in relation to the sanctuary, whether at the far front or ore centrally located. The State introduced no exhibits or testimony to explain whether the altar afea and the interi- or door to the sacristy were set off from the public sanctuary by a railing, steps, or similar boundary. It may indeed be disrespectful or even sacrilegious to walk through the altar area when one is not a service participant, but disrespect or sacrilege does not equate to a knowing unlawful entry from a public area into a private area under the Missouri criminal code. Furthermore, Father Meyer testified that the interior door was “always open.” He did not say “unlocked”; he said “open.” If the defendant or an accomplice entered the sacristy through the exterior door, the evidence is likewise insufficient to establish that the defendant or an accomplice “knowingly entered unlawfully” a private room. The State adduced no evidence that either the interior or exterior sacristy door had a sign that stated “private,” “no admittance,” “authorized personnel only,” or anything of that nature that would inform a person that the door led to a private area rather than to a public area, such as a prayer room or a hallway from the interior door or to a hallway or the sanctuary from the exterior door. We may not supply missing evidence, or give the State the benefit of unreasonable, speculative, or forced inferences. Whalen, 49 S.W.3d at 184. A reasonable juror who considered the evidence presented could not find beyond a reasonable doubt that the defendant or an accomplice entered a private room in a building open to the public, knowing that such entry in and of itself was unlawful.
The State acknowledges in its brief that a sacristy door was unmarked. Nonetheless, the State continues that no reasonable probability exists that “one might find restrooms or another public portion of the church behind the unmarked door where the clergy prepare for mass.” The State’s argument assumes that one knows before entering that the unmarked unlocked sacristy doors lead to a private room where the priests and other service participants prepare for mass.
In State v. Weide, the defendant was convicted of second-degree burglary for unlawfully entering the kitchen of a restaurant. 775 S.W.2d 255, 255-56 (Mo.App.W.D.1989). In that case, the Court rejected the State’s argument that it established the defendant unlawfully entered the kitchen because restaurant employees testified that only employees were allowed in the kitchen. Id. at 258. The Court observed that “no visible signs indicated that *782the restaurant prohibited public entry through the swinging door or even indicated what was behind the door.”3 Id. The Court held that proof that the defendant had an unlawful purpose to commit assault did not establish that he knew he would have to make an unlawful entry to achieve his purpose. Id.
Likewise here, proof that the defendant or an accomplice had the unlawful purpose to steal does not establish that he knew he would have to make an unlawful entry into the private sacristy to achieve that purpose. The theft of the church keys from the sacristy by the defendant or an accomplice, without more, does not establish beyond a reasonable doubt his knowledge that his entry beyond an unmarked unlocked sacristy door that may have been standing open, whether via the sanctuary or the parking lot, was in and of itself unlawful.
The State failed to establish, as a necessary element of second-degree burglary, that the defendant or an accomplice “knowingly entered unlawfully” the sacristy of St. Peter Catholic Church. For us to find there was sufficient evidence adduced that the defendant or an accomplice “knowingly entered unlawfully” St. Peter’s sacristy would require us to supply missing evidence or to give the State the benefit of unreasonable, speculative, or forced inferences. Therefore, the defendant’s conviction for this offense cannot stand, and ,we grant his claim of error. We reverse the trial court’s judgment on count six, second-degree burglary of St. Peter’s sacristy, and vacate the defendant’s conviction on that count.
Sufficiency of the Evidence to Support the Defendant’s Conviction For Stealing Property (a Television) Valued at $500 or More
The defendant claims that the trial court erred in overruling his motion for judgment of acquittal and entering judgment and sentence for the class-C felony of stealing the television charged in count seven. The defendant argues that the State presented evidence that the television was worth $749.99 in June 2008, but that the State failed to prove that it had a value of $500 or more at the time of the charged stealing in June 2011. The defendant points to the sale of the television to the pawn shop for $140 in June 2011.
We review the denial of a motion for judgment of acquittal to determine if the State adduced sufficient evidence to make a submissible case. Pullum, 281 S.W.3d at 915. Our role is to determine whether sufficient evidence was produced at trial so that a reasonable person could conclude that the defendant was guilty. Id. “In determining whether the evidence is sufficient to support a conviction, we view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict, and we disregard all contradictory evidence and inferences.” Id.
To convict a defendant of a criminal offense, the State must prove beyond a reasonable doubt each and every element of the charged offense. State v. Ecford, *783239 S.W.3d 125, 127 (Mo.App.E.D.2007). In count seven, the State charged the defendant with stealing property valued at $500 or more, namely a television belonging to St. Peter Catholic Church, in violation of section 570.030 RSMo. (Supp.2010).
“A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” Section 570.030.1 RSMo. (Supp. 2010). Any offense in which the value of the property is an element is a class-C felony if the value of the property appropriated is $500 or more but less than $25,000. Section 570.030.3(1) RSMo. (Supp.2010). The State bears the burden of proving the value of stolen property beyond a reasonable doubt. State v. Calicotte, 78 S.W.3d 790, 794 (Mo.App.S.D.2002). Absent substantial evidence of the property’s value, an essential element of the felony stealing charge goes unproved. Id.
Section 570.020(1) RSMo. (Supp.2013) provides in pertinent part that “[ejxcept as otherwise specified in this section, ‘value’ means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.” (Emphasis added). “When the value of property cannot be satisfactorily ascertained pursuant to the standards set forth in subdivisions (1) and (2) [pertaining to certain written instruments] of this section, its value shall be deemed to be an amount less than five hundred dollars.” Section 570.020(3) RSMo. (Supp.2013). Any violation of section 570.030 for which no other penalty is specified in this section constitutes a class-A misdemeanor. Section 570.030.8 RSMo. (Supp.2010).
At trial, the State adduced evidence that a parishioner purchased the Samsung television for $749.99 in June 2008, that it was in like-new condition when the parishioner donated it to St. Peter’s, that Mr. Moxley discovered it stolen in June 2011, and that the defendant sold the television to a pawn shop for $140.
The defendant acknowledges that the Missouri Supreme Court stated in State v. Napper that “[t]he rule seems to be that, where the property is secondhand, ..., proof as to its cost and its length of use may be put before the jury, and that constitutes evidence of value sufficient to support a finding.” 381 S.W.2d 789, 791 (Mo.l964)(quoting State v. Bresse, 326 Mo. 885, 33 S.W.2d 919, 921 (1930)). The defendant contends, however, that section 570.020, which went into effect in 1979 some 15 years after the Napper decision, abrogates that opinion. He acknowledges that appellate courts have applied the rule stated in Napper even after the enactment of section 570.020, but argues that none of the appellate opinions actually considered the effect that the definition of “value” contained in section 570.020(1) had on Napper’s holding.
Since becoming effective in 1979, section 570.020(1) has defined “value” in relevant part to mean “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.”4 Missouri law had no compa-*784rabie provision prior to enactment of this section. Mo. Ann. Stat. section 570.020 cmt. 1973 Proposed Code (West 1999).
Problems of valuation in the area of theft offenses [were] continuing and vexing. This section [570.020] sets out reasonably clear standards for ascertaining value. Generally, fair market value at the time and place of the crime is the standard. If fair market value cannot be satisfactorily determined, replacement cost within a reasonable period after the offense is to be used.
Id. In general, the comments that accompany a uniform code when adopted carry great weight in construing the code. Ecford, 239 S.W.3d at 128. We agree with the defendant that section 570.020 RSMo. (Supp.2013) abrogates the rule stated in Napper, which is an example of the “continuing and vexing” valuation problems that existed prior to enactment of section 570.020 and that the legislature intended section 570.020 to address.
The State cites State v. Slocum wherein this Court repeated the rule identified in Napper that “[e]vidence of the purchase price and age of a stolen item are sufficient to establish value under Section 570.020.” 420 S.W.3d 685, 687 (Mo.App.E.D.2014). After citing this proposition, however, the Court did not apply it in deciding Slocum. Id. Rather, the Slocum opinion proceeded to summarize the evidence of the value of the stolen property according to the testimony of the owner: that the stolen property was a handmade custom mandolin crafted by one of the best mandolin makers in the country, if not the world; that it was owned by a professional musician who played it on tour worldwide; that the value of this type of Eastern European mandolin appreciates over time; and that the owner believed the mandolin to be worth around $6,000 at the time of the theft. Id. The Slocum opinion indicates that the mandolin was about 13 years old at the time of its theft, but is silent as to its purchase price. Id. Ultimately, Slocum relied on a different rule — that the owner may testify to an item’s value at the time of the crime — to determine that the State adduced sufficient evidence of value. Id. at 687-88.
It is well-established that an owner’s opinion can constitute substantial evidence of an item’s worth. State v. Reilly, 674 S.W.2d 530, 533 (Mo. banc 1984); see also State v. Isgriggs, 300 S.W.3d 553, 556 (Mo.App.S.D.2009)(testimony of company co-owner established total value of stolen items in excess of $4,000); State v. Weekley, 92 S.W.3d 327, 333 (Mo.App.S.D.2002)(owner’s valuation of stolen property sufficient to submit issue to jury); State v. King, 988 S.W.2d 663, 666 (Mo.App.E.D.1999)(property owner may testify to property’s value, and jury determines weight and sufficiency of such testimony); State v. Roderick, 828 S.W.2d 729, 732 (Mo.App.E.D.1992)(owner’s opinion of value of stolen goods suffices to take issue to jury). We do not contend that Slocum reached an incorrect result. Given the owner’s testimony of the value of the property at the time of the crime presented in that case, it was decided correctly. However, Slocum should not be cited for its reference to an old proposition of law that has been abrogated by statute and that Slocum itself did not apply, namely that “[ejvidence of the purchase price and age of a stolen item are suffi*785cient to establish value under Section 570.020.”
Here, the only evidence of the television’s value was that it had been purchased new for $749.99 in June 2008, and that the defendant sold the television to a pawn shop for $140 in June 2011. The State adduced no evidence that the market value of the television at the time and place of the crime was $500 or more. The State did not adduce any evidence that the market value of the television could not be ascertained, nor did the State adduce evidence of the television’s replacement value near the time of the crime.
Absent substantial evidence of the property’s value, the State leaves an essential element of the felony stealing charge unproved. Calicotte, 78 S.W.3d at 794. Furthermore, “[w]hen the value of property cannot be satisfactorily ascertained pursuant to the standards set forth in subdivisions (1) and (2) [pertaining to certain written instruments] of this section, its value shall be deemed to be an amount less than five hundred dollars.” Section 570.020(3) RSMo. (Supp.2013). The State failed to adduce sufficient evidence of the television’s value to support the defendant’s conviction for class-C felony stealing of property valued at $500 or more pursuant to section 570.030.3(1) RSMo. (Supp. 2010).
However, the evidence that the defendant stole the television — aside from its value — was overwhelming. The defendant sold to a St. Louis pawn shop a television identical to the one stolen from St. Peter’s within a day of the theft. A police search of an internet database containing participating pawn-shop transactions nationwide revealed only one such sale of a Samsung television of the model in question in the St. Louis metropolitan area between June 9th and June 11th, 2011. The defendant was the seller in that transaction. And the signature on the pawn ticket substantially matched the defendant’s signature on his Miranda waiver form, according to a layperson’s opinion.
The record lacks sufficient evidence to sustain a conviction for felony stealing under section 570.030.3 RSMo. (Supp.2010) because the State failed to prove the market value of the television at the time of the theft. Accordingly, we must overturn the defendant’s conviction for felony stealing. Where the conviction, of a greater offense has been overturned for insufficient evidence, however, this Court may enter a conviction on the lesser-included offense if the evidence was sufficient for the jury to find each element of the lesser-included offense and the jury was required to find those elements in reaching the verdict on the greater offense. Ecford, 239 S.W.3d at 129.
Class-A misdemeanor stealing is a lesser-included offense of felony stealing. Id. Section 570.030.8 RSMo. (Supp.2010) provides that “[a]ny violation of this section for which no other penalty is specified in this section is a class A tnisdemeanor.” In reaching its verdict in this case, the jury found each element necessary to support a conviction for misdemeanor stealing: that the defendant appropriated the property of another without consent with the purpose of depriving the owner of that property. Section 570.030.1 RSMo. (Supp.2010). As we have already summarized, the State presented sufficient evidence to establish the elements of misdemeanor stealing.
We reverse the defendant’s conviction of class-C felony stealing on count seven, enter a conviction on the lesser-included offense of class-A misdemeanor stealing on that count, and remand for resentencing.
The Verdict Director for Count Seven, Stealing the Television
The defendant claims the trial court plainly erred in submitting to the jury *786instruction number 11, the verdict director for count seven, stealing the television. The defendant maintains that this instruction did not inform the jury that the term “value” as used in the instruction refers to the market value of the property at the time and place of the crime. He argues that the jury might have wrongly defined this term for itself as the value of the property at the time it was purchased, resulting in a manifest injustice.
Given our disposition of the defendant’s claim of error about his conviction for felony stealing charged in count seven, we deny as moot the defendant’s claim of plain error regarding the verdict director for that count.
Admission of Other Incidents of Misconduct
The defendant claims the trial court abused its discretion in admitting Ms. Breckle’s testimony and the surveillance photos from St. Robert’s and in allowing the State to refer to this evidence in its opening statement and closing argu-, ment. The defendant argues that this evidence of other bad acts constituted improper propensity evidence that the State presented only to suggest to the jury that if the defendant was the person who walked into St. Robert’s, then he must have been the person to steal from St. Peter Catholic Church.
“The “well-established general rule’ concerning the admission of evidence of prior criminal acts ‘is that proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial.’ ” State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008) (quoting State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (1954)). Evidence of other crimes or misconduct is not admissible for the purpose of showing the defendant’s criminal character or propensity to commit crimes. State v. Primm, 347 S.W.3d 66, 70 (Mo. banc 2011); State v. Young, 367 S.W.3d 641, 645 (Mo.App.E.D.2012). Courts that follow the common-law tradition almost unanimously disallow the prosecution’s resort to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Old Chief v. United States, 519 U.S. 172, 181, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).
An exception to the general rule exists, however, where the evidence of other crimes or misconduct is both logically and legally relevant. Young, 367 S.W.3d at 645. Evidence of other misconduct is logically relevant when it has some legitimate tendency to directly establish the defendant’s guilt of the charges for which he is on trial. Id. Evidence of other misconduct is legally relevant when its probative value outweighs its prejudicial effect. Id.
Evidence has a legitimate tendency to prove the specific crime charged when the State uses it to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing commission of two or more crimes so related to each other that proof of one tends to establish the other, or the identity of the person charged with commission of the crime on trial. Id. These exceptions are not exhaustive, and the trial court may admit evidence of other misconduct even if the evidence does not fall within an enumerated exception so long as it is both logically and legally relevant. Id. For example, the trial court may admit evidence of other crimes that helps present a complete and coherent picture of the events that transpired. Id.
A finding of logical and legal relevance, however, will never provide a *787basis for the admission of evidence of prior crimes for purposes of demonstrating a defendant’s propensity. State v. Moore, 352 S.W.3d 392, 402 (Mo.App.E.D.2011). The term “unfair prejudice,” as to a criminal defendant, speaks to the capacity of some admittedly relevant evidence to entice the factfinder to declare guilt on a ground apart from proof specific to the offense charged. Old Chief, 519 U.S. at 180, 117 S.Ct. 644. “Although ... ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.” Id. at 181, 117 S.Ct. 644 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)). Propensity evidence is unconstitutional because it “violates [the] defendant’s right to be tried for the offense for which he is indicted.” Vorhees, 248 S.W.3d at 591 (quoting State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992)).
The defendant contends that the State improperly introduced evidence of his actions at St. Robert’s when he was charged only with crimes relating to St. Peter’s, and when his visit to St. Robert’s occurred several days after his last alleged trip to St. Peter’s. Accordingly, he maintains, the two incidents constituted different acts that were not part of a common scheme. He further-argues that the St. Robert’s evidence was highly prejudicial because the State in its closing argument used this evidence to assert that if he was the person who went to St. Robert’s, he likewise must have been the person who unlawfully entered and stole from St. Peter’s.
The State counters that the defendant’s argument “is without merit because strictly speaking, no evidence of bad acts was admitted at trial.” The State argues that while perhaps suspicious under the circumstances, the acts at St. Robert’s “were not themselves bad acts and therefore should not have been barred as such.” This argument has no merit. The State essentially concedes as much when it proceeds to argue that, to the extent the jury could infer that the defendant engaged in bad acts at St. Robert’s, the evidence was admissible because it showed the defendant’s intent. The defendant’s intent was an issue, the State continues, because both St. Peter’s and St. Robert’s are public places where the defendant could have had a legitimate reason to -visit, but the evidence from St. Robert’s showed that the defendant did not act in a manner consistent with someone visiting the church for an honest reason.
The admission of Ms. Breckle’s testimony and the surveillance photos from St. Robert’s under these circumstances constitutes error. We agree with the defendant that the St. Robert’s evidence was unduly prejudicial because the State adduced it purely as propensity evidence to assert that if the defendant was the person who went to St. Robert’s, he likewise must have been the person who unlawfully entered and stole from St. Peter’s.
“Nevertheless, the trial court’s error in admitting the disputed evidence does not constitute reversible error unless the defendant can show that he was prejudiced, or that a reasonable probability exists that the verdict would have been different absent the court’s error.” Moore, 352 S.W.3d at 404. The test for prejudice in criminal cases involving improper admission of evidence is whether the improper admission was outcome-determinative. Id. A finding of outcome-determinative prejudice expresses a judicial conclusion that the erroneously admitted evidence so influenced the jury that, when considered with and balanced against all properly admitted evidence, a reasonable probability *788exists that the jury would have acquitted the defendant but for the erroneously admitted evidence. Id.
Here, the properly admitted evidence against the defendant for the burglary of St. Peter’s rectory and the stealing of the credit card and television was overwhelming.5 The defendant admitted that he was at St. Peter’s on the day of the second theft, and that he saw Ms. Lanteigne and her green minivan. Ms. Lanteigne testified that she heard the prayer-candle donation box being handled while the defendant was in its immediate area. A search of the church and rectory a short time after the defendant’s visit revealed that the prayer-candle donation box had been forcibly opened and was empty of cash. A set of keys for the rectory was missing, and police later found the keys in the white car the defendant was driving at the time of his arrest. In addition, surveillance videos showed a man identified as the defendant using the Lowe’s credit card stolen from St. Peter’s rectory. The back door to the rectory was normally locked, yet it was discovered partially open immediately after Ms. Lanteigne saw the defendant at that location carrying a black case from the rectory.
Furthermore, the evidence revealed that the defendant sold a Samsung 32-inch television that matched the model stolen from St. Peter’s within the time frame of the first stealing incident. And albeit adduced as a lay opinion, the signature on the pawn ticket substantially matched the signature the defendant provided to police when signing the waiver form for his Miranda rights. Although the trial court abused its discretion in admitting the evidence from St. Robert’s because it was adduced for no purpose other than to demonstrate the defendant’s propensity to enter and steal from churches, we conclude that the defendant was not prejudiced as a result, given the overwhelming evidence of the defendant’s guilt of the burglary of St. Peter’s rectory and the stealing of the Lowe’s credit card and the television.
At this juncture, we feel obliged to again admonish the State. In State v. Moore, we concluded that the improper admission of extensive and repeated propensity evidence concerning the defendant’s driving record — when the defendant had already conceded his guilt on the only count for which his driving record was even arguably relevant — warranted reversal and remand for a new trial on all counts because the evidence on the more serious counts was “far from overwhelming.” Id. at 403-04. In Moore, we admonished this very same assistant prosecutor about his brazen use of propensity evidence in arguing that “[i]t is time when we deal with this defendant to move beyond passing out traffic tickets because he’s moved beyond that[,]” and “[Y]ou need to find him guilty of everything else, too.... ” Id. We stated then that “we do not find that the prosecutor drifted a bit too close to the cliffs edge [the precipice of reversible error identified in State v. Perry ].6 Rather, we conclude that the prosecutor flung himself headfirst into the abyss.” Id. at 404. Ignoring our prior admonition, this same assistant prosecutor, Philip Groenweghe, has again flung himself headfirst into the abyss. It should not happen again.
Nonetheless, under the circumstances here, the evidence is overwhelming of the *789defendant’s burglary of St. Peter’s rectory as charged in count one, and his stealing of the credit card and the television from St. Peter’s as charged in counts two and seven, respectively. Given the properly admitted evidence, the defendant has failed to demonstrate that the outcome of the trial on these counts would have been different without the improper admission of evidence related to his entry into St. Robert’s. Thus, we deny the defendant’s claim of error as to the St. Robert’s evidence.
Admission of Testimony Identifying the Defendant On the Lowe’s Surveillance Tape
The defendant claims the trial court abused its discretion in allowing Detective Kleinschmidt to testify that the defendant was the person appearing on the Lowe’s surveillance videos. He argues that Detective Kleinschmidt’s testimony constituted improper opinion evidence on a matter in dispute, based on facts the jury was equally capable of evaluating, and thus invaded the province of the jury.
The State introduced into evidence two separate surveillance videos from Lowe’s accompanied by Detective Kleinschmidt’s testimony.7 The defendant preserved this claim of error when he objected to Detective Kleinschmidt’s identification of him from any of the Lowe’s surveillance videos.
A trial court has broad discretion to admit or exclude evidence. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). The court abuses its discretion when its ruling is clearly against the logic of the circumstances, and is so unreasonable as to indicate a lack of careful consideration. Id. We will reverse only when the error so prejudiced the defendant that it deprived him of a fair trial. Id. at 223-24. Trial-court error is prejudicial only if a reasonable probability exists that the error affected the outcome of the trial. Id. at 224.
In general, a lay witness may not give opinion testimony about a matter in dispute. State v. Bivines, 231 S.W.3d 889, 892-93 (Mo.App.W.D.2007). A lay witness is one who does not possess technical, scientific, or other specialized knowledge. Id. at 893. Ordinarily, a jury can form an accurate opinion on its own without the assistance of the lay witness. Id. When the lay witness’s opinion is based on knowledge not available to the jury and would be helpful to the jury in reaching its own opinion or determining a matter in dispute, however, the lay witness may provide an opinion. Id. A lay witness’s identification testimony is admissible if there is a basis for concluding that the witness had a specific opportunity to observe something that makes it more likely that the witness, rather than the jury, can correctly make an identification. Id.
Here, the only evidence that Detective Kleinschmidt’s opinion was based on knowledge not available to the jury was his testimony that he spent significant time talking to the defendant in person. *790Thus, Detective Kleinschmidt had the opportunity to observe the defendant’s mannerisms and how he wore his clothes, in particular his habit of wearing white dress shirts -with the sleeves unbuttoned. Assuming arguendo that this “special” knowledge did not render Detective Kleinschmidt’s identification testimony admissible, the defendant nonetheless must show that he suffered prejudice by admission of the identification testimony in order to warrant reversal.
The defendant asserts that the present situation is similar to that of State v. Presberry, 128 S.W.3d 80 (Mo.App.E.D.2003). In Presberry, this Court held that the admission of testimony from two police officers identifying the person in a surveillance video as the defendant constituted plain error where neither officer had prior familiarity with the defendant. Id. at 86-87. On that basis, the present case is similar to Presberry. We held, however, that the error was prejudicial in Presberry “given the limited other evidence used to convict Defendant.” Id. at 90. In that case, the police officers provided the only identification testimony, and no evidence linked the defendant to the charged offenses except that his jacket at the time of his arrest looked similar to the jacket the suspect wore in the surveillance video and photos. Id.
In contrast in this case, considerable evidence linked the defendant to the offenses., The defendant admitted he was at St. Peter’s on June 18th, 2011. Ms. Lant-eigne saw and identified him, and the prayer-candle donation box was found torn open within minutes of Ms. Lanteigne’s sighting of the defendant in that immediate area of the church. The defendant sold a television to a pawn shop identical to the one stolen from St. Peter’s within a day of the theft. He also had the keys taken from St. Peter’s sacristy in the car that he was driving when police arrested him, and that car matched Ms. Lanteigne’s description of the car she saw with the defendant at St. Peter’s. In addition, the jury saw the surveillance video clips, saw the defendant in person at trial, and could make its own decision. Consequently, the defendant did not suffer prejudice when the trial court permitted Detective Kleinschmidt’s testimony, and we deny this point.
Conclusion
Because the State failed to make a sub-missible case on count six, we reverse the trial court’s judgment on this count and vacate the defendant’s conviction for second-degree burglary of the sacristy of St. Peter Catholic Church.
Because the State failed to prove a value of $500 or more at the time of the offense for the television that the State charged the defendant with stealing in count seven, we amend the defendant’s conviction on count seven to the lesser-included offense of class-A misdemeanor stealing, in accordance with sections 570.020(3) RSMo. (Supp.2013) and 570.030.8 RSMo. (Supp. 2010). We remand this count to the trial court for re-sentencing consistent with this opinion.
Finally, we affirm the defendant’s other two convictions: second-degree burglary of the rectory at St. Peter Catholic Church charged in count one, and stealing a credit card from St. Peter’s charged in count two.
GLENN A. NORTON, J, concurs.
CLIFFORD H. AHRENS, P.J., concurring in part and dissenting in part in separate opinion.
. All statutory references are to RSMo. (2000) except as otherwise indicated.
. Although Mr. Moxley reported the theft of the television on June 11th, 2011, the television may have been stolen as early as June 9th, 2011 with the theft going unnoticed.
. The Western District reviewed the Weide case under the old circumstantial-evidence rule. "When the state relies on circumstantial evidence to secure a conviction, ‘the facts and circumstances on which the state relies must be consistent with guilt and inconsistent with any reasonable theory of innocence, and they must exclude every reasonable hypothesis of the defendant's innocence.’ ” Weide, 775 S.W.2d at 258 (quoting State v. Prier, 634 S.W.2d 197, 199 (Mo. banc 1982)). The Supreme Court rejected this rule, both' as a jury instruction and as an appellate standard of review, in State v. Grim, 854 S.W.2d at 408. "Under any interpretation of the quantum of evidence required by the circumstantial evidence rule, the rule is no longer valid. It should be, and is, rejected.” Id.
. This definition of value contained in section 570.020(1) has remained unchanged since its original enactment. In 2002, section 570.020(1) was amended to add language providing that if the victim is a merchant and the property is a type the merchant sells in the ordinary course of business, then the value shall be the price for which the merchant *784would normally sell the property. H.B. 2120, sec. A, 91st Gen. Assem., 2d Reg. Sess. (Mo.2002). That provision does not apply here. In addition, the major revisions made to the criminal code in 2014, and taking effect in 2017, have left unchanged the definition of "value” contained in section 570.020(1) as "the market value of the property at the time and place of the crime.” S.B. 491, 97th Gen. Assem., 2d Reg. Sess. (Mo.2014).
. As discussed previously, while the evidence of the then-current value of the television stolen from St. Peter’s was not sufficient to convict the defendant of felony stealing as opposed to misdemeanor stealing, the evidence was overwhelming that he did, in fact, steal the television from St. Peter’s.
. 689 S.W.2d 123, 126 (Mo.App.W.D.1985).
. The State argues that the defendant objected only to Detective Kleinschmidt’s identification in one of the two videos, and that the failure to object regarding the second video identification failed to preserve the claim of error, allowing us to review only for plain error. Our review of the transcript indicates that the defendant objected to Detective Kleinschmidt’s identification of him from any and all of the surveillance videos. While it might have been better practice to object to admission of any of the surveillance videos and then to object to Detective Kleinschmidt’s identification of the defendant in each one, we find it sufficiently clear that the defendant objected to Detective Kleinschmidt’s identification based solely on what the State claims are good videos that the jury could, and did, view. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283784/ | ORDER
PER CURIAM
Laron Crenshaw (“Defendant”) appeals from a trial court’s judgment, following a jury verdict, finding him guilty of two counts of first-degree assault of a law enforcement officer, in violation of Section 565.081.1, RSMo (2000); three counts of armed criminal action, in violation of Section 571.015; two counts of unlawful use of a weapon, in violation of Section 571.030; two counts of first-degree endangering the *793welfare of a child, in violation of Section 568.045; and one count of unlawful possession of a firearm, in violation of Section 571.070.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion.' However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283785/ | Gary M. Gaertner, Jr., Judge.
Introduction
Montez Ballard (Defendant) appeals his convictions of two counts of possession of a controlled substance with intent to distribute, one count of possession of drug paraphernalia, and one count of property damage. Defendant argues that the trial court ■erred in denying his motion to suppress evidence obtained during a warrantless search of his hotel room. Because we find under the circumstances that Defendant lacked a reasonable expectation of privacy in the hotel room, we affirm.
Background
The State charged Defendant with two counts of possession of a controlled substance with intent to distribute, one count of possession of drug paraphernalia, and one count of property damage, all arising out of an incident on November 8, 2011, and supported by evidence seized after a search of Defendant’s hotel room and Defendant’s person. Defendant moved to suppress all evidence as the result of an illegal search. The evidence adduced at the hearing on the motion to suppress was as follows.
Defendant checked into the Renaissance Grand Hotel (Hotel) on November 6, 2011, and he paid for a one-night stay in room 1601, which had a check-out time of noon on November 7, 2011. Sometime on November 8, 2011, Gregory Holiday (Holiday), a loss prevention officer at the Hotel, received a notice that the guest occupying room 1601 had not paid for the night of November 7. Holiday also learned that there had been a complaint about an unfamiliar odor on the floor where room 1601 was located.
Holiday went to room 1601 and knocked on the door. After several minutes, Defendant opened the door, but the safety latch was engaged, so the door opened only two or three inches. Defendant was dressed in only a pair of shorts or underwear. Holiday could see some trash in the room, and he also confirmed the odor was coming from Defendant’s room. Holiday described the odor as very pungent and strong, unlike any smell he had been trained to recognize. Holiday informed Defendant that the Hotel did not allow smoking on the property. Holiday also told Defendant that his bill for the room was unpaid and that Defendant “needed to ... update the payment.” Defendant retrieved his copy of the bill he had paid, and Holiday showed him on that receipt that Defendant’s payment had not included the night of November 7, and it was now November 8. Defendant acknowledged this and closed the door.
Holiday decided to call for assistance because of the unpaid bill, the smell, and because he had observed Defendant to be acting in an erratic manner. In three or four minutes, Officer Devora Johnson (Officer Johnson) from Hotel security arrived. Shortly thereafter, Defendant came out of the room, fully clothed and holding a bottle of wine or champagne. Defendant tried to leave, but Holiday and Officer Johnson detained him. They called the Hotel security supervisor, Mike Kikas (Kikas), and Kikas came up to the room because they had told him that a person was trying to leave without paying his bill. Kikas ar*811rived and attempted to question Defendant about the room bill and the odor. Defendant became aggressive and told them that he “want[ed] to get out” and that they had no reason to hold him there. Kikas was concerned for their safety because of Defendant’s demeanor and the bottle he was holding. Holiday and Kikas then physically detained Defendant and called the police.
When the police arrived, they saw Defendant screaming and drenched in sweat. Kikas allowed the police to enter room 1601, and once inside, the police observed the room in complete disarray, including burn marks, ashes, vomit, and trash. One of the officers present, Officer Christopher Seger (Officer Seger), testified that he also saw plastic sandwich baggies strewn about the room, which in his experience were used for packaging narcotics. Officer Seger then notified Defendant he was under arrest for property damage and proceeded to search Defendant’s person. He found an electronic scale, $649.00 in cash, and a plastic baggie containing small white chunks, which Officer Seger believed to be crack cocaine and heroin. Officer Seger also found twenty-seven sleeping pills in Defendant’s pocket, which he stated are commonly used to package heroin. During a subsequent search of Defendant’s person at the police station, the police also found that Defendant was concealing an additional bottle containing white chunks that Officer Seger believed to be crack cocaine and heroin.1
Holiday testified at the suppression hearing that the Hotel’s policy when a guest overstayed without paying was to notify the guest that “the room is technically vacant,” and that the guest is supposed to check out. Holiday stated that if the guest had not let the Hotel know he or she was planning on staying, then the Hotel needed “another method of payment to make sure that he [or she] has substantial funds for the next night or for the next day’s stay.” When Kikas testified, he acknowledged that the Hotel does allow guests to make arrangements to pay their bills when they have stayed beyond their rental period. Based on Kikas’s understanding of the situation, he believed Defendant had already checked out, and based on Defendant’s statements that he was leaving the hotel, Kikas believed he had authority to allow police to enter the room.
The trial court denied Defendant’s motion to suppress. Defendant waived his right to a jury trial, and the trial court convicted Defendant of all charges. The court sentenced Defendant to a total often years in prison. This appeal follows.
Discussion
Defendant does not challenge the sufficiency of the evidence to support his convictions. He argues in his sole point on appeal that the trial court erred in denying his motion to suppress evidence found in his hotel room, and in the subsequent search of Defendant’s person, because such evidence was the fruit of an illegal search.
We will reverse a trial court’s ruling on a motion to suppress only if it is clearly erroneous. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). We “defer[ ] to the trial court’s factual findings ... and consider! ] all evidence and reasonable inferences in the light most favorable to the trial court’s ruling.” Id. “Whether conduct violates the Fourth Amendment is an issue of law that [we] review! ] de novo.” Id. (citing State v. *812Roman, 961 S.W.2d 831, 845 (Mo. banc 1998)).
Defendant argues the trial court erred in denying his motion to suppress evidence found after the search of room 1601. Defendant argues he had a reasonable expectation of privacy in the room, and thus the warrantless search of the room, and subsequently his person, all violated his Fourth Amendment rights. We disagree.
The Fourth Amendment to the United States Constitution protects individuals from warrantless searches and seizures, but only where an individual has “a legitimate expectation of privacy in the place or thing being searched.” State v. Mitchell, 20 S.W.3d 546, 557 (Mo. App.W.D. 2000) (burden is on individual to show legitimate expectation of privacy5); see also Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); U.S. v. Larson, 760 F.2d 852, 854 (8th Cir. 1985). The individual bears the burden to show that his or her subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable’ ”; or in other words, when “viewed objectively, [the expectation] is justifiable under the circumstances.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (internal citations and quotation omitted); see also State v. Woodrome, 407 S.W.3d 702, 706 (Mo. App. W.D. 2013) (proponent of motion to suppress has burden to show he or she had reasonable expectation of privacy).
Generally, a hotel guest has a reasonable expectation of privacy in a room that he or she has rented. Mitchell, 20 S.W.3d at 557 (citing Stoner v. State of Cal., 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964)). That expectation of privacy precludes hotel employees or management from consenting to warrantless police searches of the room. Id. However, once the rental period terminates, “the guest has completely lost his [or her] right to use the room and any privacy associated with it.” Id. at 558 (quoting Larson, 760 F.2d at 855) (emphasis omitted).
In applying these principles, courts have recognized exceptions where a hotel grants permission to stay after the rental period has expired or where a hotel has a prior pattern or practice of allowing guests to stay past check-out time and the guest knew of this practice. See Larson, 760 F.2d at 854 (hotel had given defendant permission to check out two hours past check-out time; expectation of privacy continued for those two hours, but not beyond); U.S. v. Kitchens, 114 F.3d 29, 32 (4th Cir. 1997) (citing cases) (noting guest may still have legitimate expectation of privacy after termination of rental period where guest has been allowed late payment of bill on several occasions); cf. U.S. v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998) (renter who still possessed ear four days after rental period expired retained reasonable expectation of privacy where rental company had not exercised right of repossession or reported car stolen, and rental company had been lenient throughout prior course of dealings with renter). The issue here is whether Defendant produced evidence of circumstances showing that he maintained a legitimate expectation of privacy in room 1601 despite the expiration of the rental period for which he had paid.
The evidence here, in the light most favorable to the trial court’s ruling, showed that the Hotel did have a policy of allowing guests to pay for their rooms past checkout time. There was no evidence that Defendant was aware of this policy or had been permitted to make late payments to the Hotel before. Holiday testified that under the policy, the room was “technically vacant” until the guest updated payment. The evidence was that Holiday went to *813room 1601 initially to ask Defendant to update payment. Both Holiday and Kikas testified that Defendant never expressed any intention of paying his bill. Rather, they testified that from Defendant’s actions, demeanor, and statements that he wanted to leave, they both got the impression that Defendant planned to leave the hotel without paying his bill. There was no evidence that Defendant had been given permission to stay any amount of time past his rental period absent payment.
In most other cases where courts have found the defendant lost the reasonable expectation of privacy in a hotel room when he or she overstayed the rental period, the hotel either repossessed the room for cause or the defendant abandoned the room. See, e.g. U.S. v. Allen, 106 F.3d 695, 697 (6th Cir. 1997) (defendant stated he would pay bill but never did; after finding room empty and drugs in room, hotel manager repossessed room); U.S. v. Rambo, 789 F.2d 1289, 1295-96 (8th Cir. 1986) (hotel asked defendant to leave because of disorderly conduct, at which time control over room reverted to hotel management); Mitchell, 20 S.W.3d at 559-60 (defendant left room without paying bill or returning for belongings; court rejected argument that expectation of privacy remained because defendant’s arrest prevented payment of bill). Neither happened here. Rather, Holiday gave Defendant an opportunity to pay without expressly evicting him, and Defendant never actually left the Hotel because he was detained.
Nevertheless, we find the particular circumstances here evidenced that Defendant no longer had a reasonable expectation of privacy in the hotel room. Specifically, the Hotel policy was that a room that had not been paid for was “technically vacant” until the guest tendered payment. While the Hotel extended Defendant an opportunity to pay his bill and remain in the room, he never expressed any intention of taking advantage of that opportunity, even when detained. If the Hotel could lawfully enter the room and repossess it had Defendant left without paying, it must follow that the Hotel likewise may lawfully repossess a room when it has detained the person before he or she has been able to leave without paying. Thus, because Defendant’s rental period had expired, he had not been granted permission to stay late without payment, and he attempted to leave without any indication that he wanted to pay for the room,2 we find that Defendant had no further reasonable expectation of privacy in room 1601.
Defendant points out that there was evidence showing that the hotel charged two separate payments on his debit card, which posted on November 9 and 10. Defendant argues these charges show that Defendant actually paid for the night of November 7 in addition to the night of November 6, and therefore the room was still rented to Defendant when police searched on November 8. However, there is no evidence specifically showing the services for which the Hotel charged Defendant’s debit card these two times. Also, even if Defendant’s rental period had renewed, there is no evidence of the time of the police search on November 8 and whether it would have been within any renewed rental period. The only evidence on the record came *814from Hotel personnel, who testified that Defendant had stayed past his paid rental period and attempted to leave without paying for the additional night. The fact that the Hotel could have charged the debit card on file to make up for Defendant’s nonpayment does not affect his reasonable expectation of privacy at the time of the search, when according to the evidence, Defendant still had not paid for the room.
In light'of this, the officers’ discovery of the damage to Defendant’s room and subsequent arrest of Defendant for property damage was lawful. The search of Defendant’s person was therefore a lawful search incident to arrest. See State v. Greene, 785 S.W.2d 574, 576-77 (Mo. App. W.D. 1990) (citing Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search incident to lawful arrest does not violate Fourth Amendment)). Thus, the trial court did not clearly err in admitting the drug evidence found on Defendant’s person as a result of this search. Point denied.
Conclusion
Because, under the circumstances here, Defendant failed to show that he had a reasonable expectation of privacy in room 1601, the trial court did not clearly err in denying Defendant’s motion to suppress evidence found in room 1601 and in the subsequent search of Defendant’s person. We affirm.
Kurt S. Odenwald, P.J., concurs.
Robert G. Dowd, Jr., J., concurs.
. Defendant later stipulated to the results of lab tests performed on the substances found on- Defendant’s person as being controlled substances.
. While we may not consider these as a basis for entering the room, facts discovered after the searches also indicated Defendant’s intention not to return to the room: Defendant left no belongings in the room, all drugs were found on his person rather than in the room, and he was wearing "several layers” of clothing. In contrast, the champagne bottle Defendant carried indicated that Defendant intended to leave at the time Hotel personnel saw him. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283789/ | ORDER
PER CURIAM.
M.H. (“Mother”) appeals the juvenile court’s judgment terminating her parental rights to her two minor children, B.J.M. and J.R.M.
We have reviewed the briefs and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.
We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283790/ | ORDER
PER CURIAM
Quincy Threats appeals the judgment of the Circuit Court of St. Louis County denying his Rule 24.035 motion for post-conviction relief. We affirm the motion court’s judgment.
*858No error of law appears. An extended opinion would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283791/ | GARY W. LYNCH, J.
Butterball, L.L.C., and its insurer, Ace American Insurance Company (collectively “Employer”), appeal the award of permanent total disability benefits to Eleazar Gonzales for an injury to his right hand on August 7, 2009. In a single point relied on, Employer claims the Labor and Industrial Relations Commission’s (“the Commission”) award is erroneous because it is not supported by sufficient and competent evidence in the record; Employer contends that the record established that Gonzales was only permanently partially disabled or, in the alternative, that Gonzales was permanently totally disabled but such permanent total disability was not the result of the August 7, 2009 injury. We *882disagree, and affirm the Commission’s award.
Factual and Procedural Background
Gonzales was born during May 1947 in Guatemala and currently resides in Joplin, Missouri. He reached the third grade in Guatemala and did not obtain a GED. Although Gonzales has lived in the United States for approximately twenty years and is a United States citizen, his native language is Spanish; he does not read or write English. Although he attempted to learn English in 2000, Gonzales was also working at the time and was too tired to complete the program.
Before his employment with Butterball, which began in January 2001, Gonzalez held several jobs in Guatemala, including as a shoe manufacturer and with a textile company, both of which were hand-intensive jobs. Gonzales also worked for the Guatemalan government police department, which was a physical job.
Gonzales also held numerous jobs in the United States before working for Butterball, including as a cement mixer for a construction company and as a manual laborer for plastic and metal companies. He also completed some training pertaining to soldering pieces used in electronics and worked as a laborer , in soldering electric parts. All of Gonzales’s positions while in the United States have been hand intensive.
On August 7, 2009, Gonzales was working in Butterball’s evisceration' department, controlling the only machine used in that department. The machine was used to sort and clean, turkey gizzards. Gonzales’s responsibilities included cleaning and separating the gizzards, both cut and uncut; hanging up the gizzards; and pushing the gizzards into the machine -with his right hand.
At the time of his injury, Gonzales, who is right-hand dominant, was wearing four gloves while working the machine, pursuant to Butterball’s rules and safety protocols. These gloves were made of steel mesh, plastic, and fabric. He was also wearing a security glove. While pushing the gizzards into the machine with his right hand, the machine’s roller grabbed the tip of Gonzales’s glove, and all four of Gonzales’s fingers on his right hand became stuck in the machine. Gonzales tried to remove his right hand from the machine but was unsuccessful. Another employee shut down the machine, but Gonzales still could not remove his hand. Even after Butterball mechanics turned off and disassembled the machine, a process which took some time, Gonzales was unable to remove his right hand.
Following the unsuccessful attempts to free Gonzales’s hand, a Butterball employee called paramedics. Upon the arrival of the paramedics, it took an additional 37 minutes before Gonzales’s hand was able to be removed from the machine. Gonzales was then taken by ambulance to Mc.Cune Brooks Hospital in Carthage, Missouri. The ambulance report showed that Gonzales’s fingers on his right hand were crushed and blue with little sensation and delayed capillary refill. Records from McCune Brooks indicate that Gonzales was diagnosed with a traumatic crush injury to his right hand, consisting of an avulsion injury with controlled bleeding and crepi-tus, crushed deformity dislocation, ecchy-mosis, and soft tissue swelling of his hand. Following his initial treatment, Gonzales was flown by helicopter to Freeman Hospital in Joplin. Records from Freeman Hospital indicate an obvious deformity of Gonzales’s right hand and partial amputation of the fifth digit, as well as lacerations on his right index, ring, and small fingers requiring sutures; the records also indicate Gonzales suffered tenderness with a *883limited range of motion and functional deficit. X-rays revealed Gonzales’s right fifth finger to be dislocated. A subsequent x-ray following treatment showed a reduction of the dislocation along with a small avulsion fracture at the base of the distal phalanx.
Gonzales underwent evaluation by Dr. Dennis Estep on August 10, 2009. Gonzales was unable to hold any tools in his right hand and complained of pain. Gonzales had significant discomfort when changing the dressings on his wounds, and Dr. Estep administered a regional block both median and ulnar at the' right wrist. At that time,' Dr. Estep diagnosed Gonzales with a crush injury of the right hand with a moderate amount of edema; a fifth-digit dislocation; a fifth-digit fracture, distal of the DIP joint; lacerations to the index, ring, and fifth digits; and a deglov-ing injury to the distal aspect of the third, fourth, and fifth digits, with the major damage being to the fourth and fifth digits. X-rays taken later that day found fractures in both the fourth and fifth digits, with a possible fracture of the third digit. Dr. Estep released Gonzales to work but restricted Gonzales such that he not use his right hand, not lift more than ten pounds, and not operate dangerous machinery. Gonzales was also referred to an orthopedic surgeon for evaluation.
The following day, Gonzales was evaluated by Dr. Paul Toma, an orthopedic surgeon. Dr. Toma determined that Gonzales suffered a crush injury to his right hand and a degloving injury of varying thickness to all of the fingers on his right hand. Dr. Toma released Gonzales to work but without the use of his right hand. After a follow-up visit one week later, Dr. Toma referred Gonzales to a hand therapist.
Gonzales attended twenty-three visits with IPT Physical Therapy, from August 20, 2009, through October 12, 2009. Throughout the entire course of therapy, Gonzales suffered from throbbing pain in all of the fingers on his right hand and had difficulty performing physical tasks because of that hand’s hypersensitivity.
Following Gonzales’s completion of physical therapy, he was again evaluated by Dr. Toma, on November 3, 2009. Dr. Toma found an area on Gonzales’s right ring finger that had not completely healed, as well as a reduced range of motion at the DIP joint. Dr. Toma found Gonzales not to be a candidate for surgery. Although Gonzales continued to complain of numbness in his right hand, Dr. Toma found Gonzales to be “fairly functional[.]”
Gonzales underwent a final evaluation by Dr. Toma on November 24, 2009. Dr. Toma noted that Gonzales still complained of pain in his right hand and was very sensitive along the finger pads of the middle and ring fingers; he also noted that Gonzales had had a difficult time regaining motion in his right hand and likely had an avulsion of the FDP on his right ring finger. In Dr. Toma’s opinion, Gonzales had achieved maximum medical improvement at that time, and he was released back to work full time..
At his final evaluation of Gonzales, Dr. Toma determined that Gonzales had suffered 10 percent impairment for scarring and sensory changes in his right middle finger, as well as 26 percent impairment for the loss of DIP motion. This combined for a 36 percent impairment of the right middle finger, which equates to 7 percent impairment of the right hand or 6 percent impairment of the upper extremity. Dr. Toma further found a 10 percent impairment of the right ring finger due to the scarring and sensory changes, along with 36 percent impairment due to loss of motion at the DIP joint. This combined for 46 percent impairment of the right ring finger, equating to a 4 percent impairment of the right hand or a 4 percent impair*884ment of the upper extremity. These combined for a 10 percent impairment of the upper extremity.
Following his release from medical treatment, Gonzales continued to experience pain in his right hand and fingers. Although Employer did not provide for any further medical treatment, Gonzales sought treatment on his own from Dr. Jeff Wool, who prescribed pain medication.
Upon returning to work full-time at Butterball, Gonzales was assigned to a different area with new job duties. Initially, his new duties consisted of plucking turkeys. He was limited in his ability to use his right hand effectively, however, and was only able to use his left hand to pluck the turkeys. After approximately two weeks, Gonzales was again moved to a new position, this time removing the innards, fries, and eggs from the turkeys. Though this position required the use of both hands, Gonzales was only able to use his left hand as he was still suffering from pain and lack of function in his right hand. Gonzales was repeatedly called into his supervisor’s office and told that he must use both hands, and Gonzales was written up on multiple occasions for failing to use both hands. According to Gonzales, he was unable to complete his new duties because of the continuing pain, loss of motion, and sensitivity in his right hand and, although he did all that he could to use his right hand at work and to accomplish his tasks using only his left hand, Gonzales was terminated by Butterball on December 30, 2009, for failing to use both hands as instructed.
Gonzales filed an unemployment claim on January 10, 2010, which Butterball disputed. A hearing was held March 23, 2010, to determine whether Gonzales was entitled to unemployment benefits. Although testimony was presented by Butterball at the hearing stating that its reason for requiring the use of two hands is to protect the employee from injury, Gonzales testified that Butterball was not satisfied with his production levels when he used only one hand. Gonzales was unable to find employment following his termination from Butterball due to the condition of his right hand. Ultimately, Gonzales was found ineligible for unemployment benefits because he failed to follow Butterball’s directive to use two hands instead of one, which was determined to constitute misconduct connected with work. Gonzales’s appeal of this decision was denied.
Gonzales was evaluated by Dr. Shane Bennoch on June 7, 2010, via a review of Gonzales’s medical records and a physical examination. Dr. Bennoch noted that Gonzales’s right hand was hypersensitive to pinpricks and pinwheel testing and that Gonzales’s right hand was visibly abnormal. He opined that Gonzales likely had muscle atrophy with tapering of the fourth and fifth fingers starting at the PIP joint and extending distally. Dr. Bennoch further noted that Gonzales’s fourth and fifth fingers appeared shiny and had very little hair when compared to the rest of the hand. The examination revealed that Gonzales lacked approximately 20 degrees of extension at the DIP joint of his fifth finger and 3 degrees of extension at the PIP joint; likewise, Gonzales lacked approximately 10 degrees of extension at the DIP joint of his fourth finger. Although Gonzales was shown to have a normal range of motion at the right wrist, he was unable to hold against resistance and could not oppose his fifth finger and thumb. In attempting to hold a dynamometer with his right hand, Gonzales used only his index and long finger, leaving his fourth and fifth fingers extended. Dr. Bennoch found that Gonzales likely suffered from complex regional pain syndrome of the right hand and that the injuries to his *885right hand were likely permanent, with Gonzales having reached maximum medical improvement. Finding that Gonzales’s accident on August 7, 2009, was the prevailing cause of the injury to his right hand and the resulting impairment, Dr. Bennoch initially rated Gonzales’s disability at 60 percent of the right hand; this rating took into account Gonzales’s significantly reduced function of the right hand as well as his hypersensitivity. Dr. Bennoch later changed that rating to 70 percent to reflect that Gonzales was previously right-hand dominant. Dr. Bennoch assigned numerous restrictions to Gonzales, including no lifting or carrying with his right hand; no pushing or pulling with his right hand; no repetitive work with his right hand; no climbing with his right hand; no balancing with his right hand; no handling, fingering, or feeling with his right hand; and only limited work with vibrations or hazards.
Dr. Bennoch found Gonzales to have been temporarily and totally disabled since the time of the accident, minus the approximately six weeks that Gonzales returned to Butterball before his termination; he found that temporary and total disability to continue to the time of the evaluation. Dr. Bennoch then found Gonzales to be permanently and totally disabled as a result of his poor prognosis.
At the request of Employer, Gonzales was evaluated by Dr. Allen Parmet on April 14, 2011. Dr. Parmet noted Gonzales’s shiny skin and scar at the DIP joints of his right hand. He further found Gonzales to have limited motion in his right shoulder and to guard his right hand. Gonzales was unable to fully extend the second, fourth, and fifth fingers of his right hand, and he had diminished grip strength due to pain. Gonzales complained of severe pain in all of the fingers on his right hand when touched. Dr. Par-met agreed with Dr. Toma’s rating of 10 percent in the right hand and finding that Gonzales had achieved maximum medical improvement as of November 2009, but determined that any atrophy was due to Gonzales’s guarding and lack of use of his right hand. Dr. Parmet found Gonzales to be 25 percent permanently and partially disabled; he opined that Gonzales’s right hand was still capable of being a “helper hand” and that even one-armed individuals are capable of regular employment.
Gonzales filed for, and was awarded, Social Security Disability benefits. He has been receiving those benefits since 2011.
On June 1, 2012, Gonzales saw Cory Carr, a licensed physical therapist in Springfield, for a Functional Capacity Evaluation. Gonzales complained of sharp, shooting pains in his right shoulder and hand, with pain in his hand and fingers when lightly touched. He continued to experience hypersensitivity in both his right shoulder and hand. Gonzales had pain in both his right shoulder and hand with every activity, along with limited grip strength in his right hand. He also had decreased flexion, abduction, and extension in the right shoulder, elbow, and fingers. Carr restricted Gonzales to lifting, pressing, carrying, pushing, or pulling no more than ten pounds. Carr found Gonzales unable to grab objects weighing less than ten pounds due to his hypersensitivity and unable to utilize his fine motor skills because of nerve damage to his right hand. Carr, like Dr. Bennoch, placed Gonzales at a less-than-sedentary work level.
Gonzales was examined by Phil Eldred, a vocational rehabilitation expert, on September 28, 2010; Eldred was deposed on June 2, 2011, and, after his deposition, reviewed the files of all doctors and experts who had examined Gonzales. Eldred also took an oral history from Gonzales and conducted vocational testing on Gon*886zales. He found Gonzales to be restricted from lifting, carrying, climbing, kneeling, reaching, handling, fingering, and feeling with his right hand or arm, as well as restricted from working in proximity to moving mechanical parts, in high exposed places, and with explosives. Gonzales’s performance with his right hand on the Purdue Pegboard Test, which measures dexterity, placed him below the first percentile; his performance with his left placed him at the first percentile. Gonzales further scored at the sixth percentile in math computation; he was not tested in reading or spelling because he does not read or write'English.
Following Eldred’s review of Gonzales’s previous examinations and Gonzales’s performance on the vocational testing, and considering Gonzales’s work history and training, education, intellect, age, transfer-rable skills, and current abilities, Eldred placed Gonzales at a less-than-sedentary work level as defined by the United States Department of Occupational Titles, consistent with both Carr and Dr. Bennoch. As there are no such jobs on the open labor market, Eldred found Gonzales to be permanently and totally disabled. Eldred further expressly found Gonzales to be precluded from performing any of his previous jobs as a result of the injury to his right hand and, based upon Gonzales’s pain, physical impairments, medical restrictions, use of narcotic pain medication, limited education, limited ability to understand English, advancing age, inability to perform hand-intensive tasks, and history of manual labor, found it unlikely that any employer would consider hiring Gonzales.
Gonzales was examined by Michelle Sprecker, a vocational rehabilitation counselor, at Employer’s request on August 16, 2011. Sprecker met with Gonzales and took an oral history, and she reviewed Gonzales’s medical records, but she did not perform any vocational testing. Sprecker’s report contained an incorrect date of injury and indicated that Gonzales is left-hand dominant, contrary to Gonzales and to all medical records. It was Sprecker’s opinion that, assuming no restrictions as assigned by Dr. Toma, Gonzales would be able to return to his pre-injury position at Butterball or be hired as a packer or producer. Sprecker did acknowledge that Gonzales would not be able to perform these duties under the restrictions placed by Drs. Parmet and Bennoch. Sprecker later added an addendum to her initial report in which she identified four additional positions that Gonzales should, in her opinion, be able to perform: laundry worker, light assembler, housekeeper, and dry-clean presser. By Sprecker’s own admission, all of these positions generally require the use of both hands. All four of these positions were discussed in detail by Eldred, who directly contradicted Sprecker’s finding that Gonzales could perform such positions.
Gonzales continues to experience pain in his right hand and fingers; that pain increases when his fingers are bent. Gonzales is unable to make a fist, grip, or write with his right hand and cannot fully extend his fourth and fifth fingers. His right hand is very sensitive and he is unable to lift anything with, push anything with, or otherwise use his right hand. Gonzales, who was previously right-hand dominant, now writes, drives, shaves, and performs other personal care tasks and domestic chores with his left hand.
Gonzales filed a claim for workers’ compensation benefits on August 8, 2009. A hearing was held before an Administrative Law Judge (“ALJ”) on April 2, 2013. The ALJ issued her award granting Gonzales workers’ compensation benefits on August 16, 2013. In her award, the ALJ found that Gonzales was permanently and totally *887disabled as a result of the injury to his right hand on August 7, 2009; that the Second Injury Fund had no liability; that Employer was entitled to a credit for the period of time Gonzales returned to work, from November 3, 2009, through December 30, 2009; that Gonzales violated Butterball’s safety rules when he sustained his injury and that his disability benefits should be accordingly reduced by 25 percent; and that, as Gonzales was found to be permanently and totally disabled, he is not entitled to further compensation for disfigurement. The ALJ expressly found credible the opinions of Eldred and Dr. Bennoch and found incredible the opinion of Sprecker and Dr. Parmet.
Employer filed for review with the Commission challenging whether Gonzales was permanently and totally disabled. On March 5, 2014, the Commission affirmed the ALJ’s award, incorporating it into its award of permanent and total disability benefits to Gonzales. This appeal followed.
Standard of Review
Our review on appeal is governed by section 287.495 and Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003), which state that a
court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
That the [Cjommission acted without or in excess of its powers;
That the award was procured by fraud;
That the facts found by the [Cjommission do not support the award;
That there was not sufficient competent evidence in the record to warrant the making of the award.
We review the Commission’s findings and award for such error, Clayton v. Langco Tool & Plastics, Inc., 221 S.W.3d 490, 491 (Mo.App.2007); however, where, as here, the Commission incorporates the findings and award of the ALJ into its own final award, we consider the ALJ’s findings and award as that of the Commission. Id. Our review is limited by the Missouri constitution, article V, section 18, to a determination of whether the award is “supported by competent and substantial evidence upon the whole record.” This “standard is not met if the award is contrary to the overwhelming weight of the evidence.” Wagner v. Harbert Yeargin Constr. Co., 145 S.W.3d 511, 513 (Mo.App.2004).
We do not re-weigh the evidence presented to the Commission; rather, we defer to the Commission’s findings as to the credibility of witnesses and the weight of a witness’s testimony. Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012). This includes the credibility of medical experts and conflicting medical theories. Armstrong v. Tetra Pak, Inc., 391 S.W.3d 466, 470-71 (Mo.App.2012). Accordingly, although we review questions of law de novo, we will not substitute our own judgment on issues of fact where the Commission has acted within its authority, even if we would have reached a different conclusion. Underwood v. High Road Indus., LLC, 369 S.W.3d 59, 66 (Mo.App.2012). ‘Whether a particular employee is permanently and totally disabled is a factual, not a legal, question.” Molder v. Missouri State Treasurer, 342 S.W.3d 406, 409 (Mo.App.2011).
Discussion
In a single point relied on, Employer contends that the Commission’s award was against the overwhelming weight of *888the evidence “in that the credible and persuasive testimony, medical records, and expert medical and vocational opinions established that” Gonzales was rendered only permanently partially disabled by his August 7, 2009 injury or, in the alternative, that the August 7, 2009 injury was not the primary cause of Gonzales’s permanent total disability. We disagree.
A successful against-the-weight-of-the-evidence challenge completes four steps:
1. Identify a factual proposition needed to sustain the result;
2. Marshal all record evidence supporting that proposition;
3. Marshal contrary evidence of record, subject to the factfinder’s credibility determinations, explicit or implicit; and
4. Prove, in light of the whole record, that the step 2 evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition.
Jordan v. USF Holland Motor Freight, Inc., 383 S.W.3d 93, 95 (Mo.App.2012) (citing Stewart v. Sidio, 358 S.W.3d 524, 527-28 (Mo.App.2012); Houston v. Crider, 317 S.W.3d 178, 187 (Mo.App.2012)). Employer completely fails to address the second step in their analysis,1 ignoring any evidence in the record supporting the Commission’s findings, and, in addressing the third step, ignores the Commission’s credibility determinations. These failures strip Employer’s argument of any persuasive or analytical value. Id. The absence of a cogent argument is sufficient reason alone to deny Employer’s point and to affirm the award. Id. Nevertheless, we address each of Employer’s individually flawed arguments and determine that none has any merit.
Section 287.020.6 defines the term “total disability” as the “inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.” “The approved legal standard for determining permanent total disability applies two tests: in general, whether the claimant is able to compete on the open job market; and, specifically, whether an employer would reasonably be expected to employ the claimant in his or her present physical condition.” Michael v. Treasurer, 334 S.W.3d 654, 663 (Mo.App.2011). The “ ‘inability to return to any employment’ means that the employee is unable to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment.” Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo.App.1982). In' making these determinations, the fact-finder “is not bound by the percentages of disability assigned to a claimant by the medical experts[,]” and can take into consideration a claimant’s age, education, and physical abilities, or the lack thereof. Baxi v. United Techs. Automotive, 956 S.W.2d 340, 343 (Mo.App.1997). Finally, the question of disability is not purely a medical one: “The testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, *889especially when taken in connection with, or where supported by, some medical evidence.” Grauberger v. Atlas Van Lines, Inc., 419 S.W.3d 795, 801 (Mo.App.2013) (internal quotation marks omitted).
In its award, the Commission found Gonzales to be “unable to communicate much in English” and to have “limited math skills.” It further found Gonzales to be right-hand dominant; to be unable to perform hand-intensive jobs; and to be physically incapable of performing the jobs identified by Sprecker, including that of a laundry worker, assembler, housekeeper, and dry clean presser. The Commission expressly relied upon the opinions of El-dred and Dr. Bennoch, specifically finding their testimony to be credible and persuasive and that of Sprecker to be incredible. Furthermore, the Commission implicitly relied upon Gonzales’s own testimony, as well as the ALJ’s observations of Gonzales, in reaching its decision. To that end, “[a] single expert’s opinion may be competent and substantial evidence in support of an award of benefits[,]” Kent v. Goodyear Tire and Rubber Co., 147 S.W.3d 865, 868 (Mo.App.2004), and a claimant’s own credible testimony can, independently, constitute substantial and competent evidence, Hampton, 121 S.W.3d at 223-24. Both were present here.
In contesting the Commission’s award, Employer relies primarily upon Gonzales’s attempt to return to work in November 2009, arguing that Gonzales’s inability to adequately perform both jobs assigned to him following his injury was the result of his “refusal to use both hands even though the doctor had released him to use the injured hand without restriction.” According to Employer, Gonzales “was terminated because he refused to give the full effort to which he had been released.” Employer’s contention, however, is misguided. Employer relies heavily on Dr. Toma’s failure to place any restrictions upon Gonzales’s use of his right hand, while at the same time ignoring Dr. Toma’s own observation that Gonzales still complained of severe pain, was hypersensitive to any touch, and had not regained full range of motion in his right hand; Employer likewise simply ignores the supporting testimony of Eldred and Dr. Bennoch. Employer further ignores Gonzales’s own testimony that he attempted to use both hands upon his return to work at Butterball but was simply unable to continue to do so because of the pain and sensitivity. Even Gonzales’s supervisor testified that Gonzales repeatedly told her his right hand hurt too much to continue to use it, regardless of Butterball policy. Employer completely discounts Gonzales’s own account of his pain and suffering, as well as Dr. Toma’s observation of such pain and suffering, simply because Dr. Toma placed no official restrictions upon Gonzales as a condition of his return to work. In addition, with nothing to support it, save conjecture, Employer asserts that Gonzales “refused” to do as he was told because he did not want to work. All of these arguments, claims, contentions and assertions are in direct contradiction to the Commission’s findings of credibility, both explicit and implicit. Moreover, credibility determinations notwithstanding, there is no “hard-and-fast rule that any post-injury employment, no matter how limited in scope or how substantially an employee is accommodated, necessarily precludes a finding of permanent total disability.” Molder, 342 S.W.3d at 414.
Employer further cites Gonzales’s attempt to receive unemployment benefits as proof that Gonzales is employable. However, Employer cites to no authority, and we are unable to find any, indicating that filing for unemployment benefits automatically disqualifies a claimant from be*890ing considered permanently and totally disabled. Indeed, in the case at bar, Gonzales filed for unemployment benefits immediately upon his termination from Butterball and prior to attempting to find work elsewhere. At the time, as Employer repeatedly points out, Gonzales was not under any express restrictions as to work, and he had just completed nearly two months of attempting to comply with his responsibilities at Butterball using one hand. It is not unreasonable that, at the time of his return to Butterball and his application for unemployment benefits, Gonzales wanted to work and felt he was able to work, albeit using only one hand. It was after both his return to Butterball and his filing for unemployment that Gonzales was denied employment with “several companies” and was re-evaluated and given severe work restrictions. Relatedly, Employer states that Gonzales has an undesirable- attitude toward work, relying upon both Gonzales’s agreement during cross-examination that he considers himself retired and Sprecker’s testimony that Gonzales was “not willing to go to work and jeopardize his Social Security disability benefits.” This reliance upon Sprecker flies in the face of the Commission’s express finding that her testimony was incredible.
The remainder of Employer’s argument attempts to convince this court to re-weigh the testimony of Sprecker and Drs. Toma and Parmet and judge anew their credibility. This we cannot do. See Hornbeck, 370 S.W.3d at 629; Armstrong, 391 S.W.3d at 470-71. The Commission expressly found the testimony of Eldred and Dr. Bennoch credible, and implicitly found Gonzales’s to be so; it found Sprecker’s and Dr. Parmet’s testimony incredible. To entertain Employer’s argument would disregard these findings and effectively re-try Gonzales’s claim de novo, and such is not the place of our court. Even assuming, arguendo, we would have reached a different result than the Commission, we cannot reverse its decision so long as the Commission acted within its authority. See Underwood, 369 S.W.3d at 66. In this case, the Commission relied upon the substantial and competent evidence of a medical expert, a vocational expert, and the claimant himself in reaching its decision, a decision thus reached within the purview of the Commission. Such a decision was not against the overwhelming weight of the evidence. Employer’s point is denied.
Decision
The Commission’s award is affirmed.
MARY W. SHEFFIELD, P.J., concurs
DON E. BURRELL, J., concurs
. Although Employer does make passing mention that "the Commission’s finding could have only been arguably supported by Gonzalez' [sic] own testimony, as well as the opinions of Dr. Bennoch and Phil Eldred[,]” this mention is the only reference to the step 2 evidence as they fail to further expound upon this statement in any way other than to highlight select statements contrary to the award. This cursory mention does not comply with the second-step requirement in this analysis. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283792/ | ORDER
Per curiam:
William Boling was found guilty of one count of the Class B felony of possession of a controlled substance with intent to distribute. § 195.211. Boling challenges on appeal the trial court’s denial of his motion to suppress the approximately thirty pounds of marijuana discovered in his vehicle. We affirm. A memorandum setting forth the reasons for this order has been provided to the parties. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283793/ | ORDER
Per curiam:
Lance Butler appeals from the trial court’s judgment convicting him of one count of robbery in the first degree and one count of armed criminal action. Butler argues on appeal that the trial court committed plain error in allowing the State to enter a firearm into evidence and in failing to reject the jury’s verdicts because they were inconsistent. We affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/579452/ | 958 F.2d 1285
UNITED STATES of America, Plaintiff-Appellant,v.Luz Estella SALAZAR, Defendant-Appellee.UNITED STATES of America, Plaintiff-Appellee,v.Jose Manuel RAMOS, Defendant-Appellant.
Nos. 91-2261, 91-2382.
United States Court of Appeals,Fifth Circuit.
April 10, 1992.
Kathlyn G. Snyder, Paula C. Offenhauser, Bertram A. Isaacs, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for U.S. in Nos. 91-2261 and 91-2382.
Nancy Cook, Asst. U.S. Atty., Houston, Tex., for U.S. in No. 91-2261.
Michael DeGeurin, Houston, Tex., for Luz Estella Salazar.
Mark Vela, John R. Donahue, Houston, Tex., for Jose Manuel Ramos.
Appeals from the United States District Court for the Southern District of Texas.
Before WILLIAMS and WIENER, Circuit Judges, and LITTLE,1 District Judge.
JERRE S. WILLIAMS, Circuit Judge:
1
Jose Manuel Ramos and Luz Estella Salazar were convicted of (count 1) conspiracy to possess over five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, (count 2) aiding and abetting in the possession of over five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2, and (count 3) aiding and abetting in an attempt to launder money obtained from unlawful activity in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2. Ramos contests the sufficiency of the evidence supporting his convictions. Finding no reversible error, we affirm the district court.2 As to Salazar, the district court granted Salazar's post-verdict motion of acquittal. Upon a review of the record and applicable law, we reverse the district court and reinstate the jury verdict against Salazar on all three counts.
I. FACTS AND PRIOR PROCEEDINGS
2
This appeal involves the culmination of a series of surveillances occurring between May 1 and May 8, 1990, as part of a narcotics investigation. On May 1, 1990, United States Customs Service Special Agents and the Houston Police Department Narcotics Group received information that a warehouse at 5950 Bingle, Houston, Texas, was being used by Colombian money launderers to receive, distribute, and transport cocaine and narcotics-related proceeds. Investigation determined that Ramos was present at two meetings around April 27, 1990, at which the lease for the warehouse at 5950 Bingle was negotiated and executed.
3
Surveillance was established at the warehouse. Special Agent Brooks and Narcotics Officer Patton observed a white Chevrolet Astro van parked in front of the building under surveillance; a vehicle registration check revealed that the van was registered to a known narcotic trafficker, Fabio Urrego. A black Chrysler with Maryland license plates subsequently arrived at 5950 Bingle and its driver removed a package from the white van and placed it in the trunk of the Chrysler. Agent Brooks and Officer Patton then followed the Chrysler to a residence at 14020 Schroeder. The driver parked, went inside, and came out carrying a different package which he then placed in the Chrysler. He next drove to the area of Highway 290 and Bingle where he pulled into a parking lot. Soon thereafter, Ramos appeared, driving a silver Corsica. The driver of the Chrysler removed from its trunk the package he had taken from the Schroeder address and got into the Corsica with Ramos. Ramos was then observed making heat runs--erratic driving maneuvers to detect if being followed--for about forty-five minutes.
4
Eventually, Ramos drove the Corsica back to the parking lot, and the driver of the Chrysler returned to his vehicle carrying a package smaller than the one taken from the Schroeder address. Both the Chrysler and the Corsica were next observed driving into a fenced area of the warehouse at 5950 Bingle. Subsequently, the surveillance unit observed Ramos continually looking out of the open bay door of the warehouse.
5
The Chrysler and the white van were then seen traveling in tandem, making heat runs, and ultimately entering the Nantucket Square Apartments. Agent Brooks later saw Ramos drive the Corsica into the rear of the Nantucket Square Apartments, exit the apartment complex, and park at a side street nearby. Agent Brooks and Officer Patton witnessed further furtive, erratic moves by the white van and the Chrysler before the automobiles returned to the apartment complex and parked inside a garage.
6
Surveillance next saw the white van pull into a parking lot next to Slick Willie's, a pool hall in the FM 1960 area. Late that evening, Officer Patton, while following the white van, observed Ramos driving a dark Buick. Officer Patton saw Ramos turn towards the vicinity of Slick Willie's. Soon thereafter, the white van was detained by the Baytown Police Department, 416 kilograms of cocaine were found inside, and the driver, Lazaro Fontecha, was placed in custody.3
7
Searches were then conducted in the warehouse at 5950 Bingle, in an apartment and its surrounding building at the Nantucket Square Apartments, and in an apartment at 14020 Schroeder. At the Bingle warehouse, items seized included a fuel tanker truck complete with false compartments, some containing cocaine, that had a North Carolina license plate on its rear, and a tractor rig having a Guatemalan license plate. Also seized were a generator, a Black & Decker saw with special carbide blades, a crowbar, metal boxes capable of being used as hidden compartments in vehicles, and other miscellaneous tools. Agents later found that the markings on some of the kilogram packages of cocaine found in the tanker were the same markings found on some of the kilogram packages seized from the white van.
8
At 14020 Schroeder, agents found a pickup truck in the garage with $900,000 in cash in a tool box in the truck's bed. The money was bundled in thousands and ten thousands and bound with colored and beige rubber bands. Similarly, inside the residence, two boxes of beige rubber bands and numerous colored rubber bands were found along with a torn piece of United States currency, and a series of photographs of Ramos at a shooting range.
9
The Nantucket Square apartment had no furnishings and the Chrysler was parked in the apartment's garage. The Chrysler's trunk had a 2-by-1 1/2 foot hidden compartment capable of holding several kilos of cocaine as well as currency.
10
Agents subsequently learned through confidential sources that Ramos and Salazar leased an apartment at the Timber Top Apartments. The evidence at trial showed that Apartment # 905 was leased to David and Maria Rodriguez, aliases for Ramos and Salazar. Agents obtained a search warrant for the premises and set up surveillance units. On May 8th, Officer Patton observed Salazar arriving at the apartment driving the same Buick that Ramos had been driving in the early morning hours of May 2, 1990, during the delivery of the 416 kilograms of cocaine to Fontecha. Salazar entered the apartment using a key. About 20 to 25 minutes later, she left carrying a black and white plastic shopping bag. After making heat runs, Salazar drove to an office complex in southwest Houston. There she entered Emily Investments carrying a large, bulky manila envelope, which she left there. She then drove to a strip center area of the Gulf Freeway and entered a business called Gonzales Insurance. Gonzales Insurance offered money wire transfers to Mexico and to all countries in Central and South America, as well as insurance, beeper, and cellular telephone sales, bail bonds, rental mailboxes.
11
A year earlier, Salazar had purchased a non-owner automobile liability insurance policy from Gonzales Insurance. In addition, Ramos and Salazar had purchased a beeper there about eight to ten days earlier. Salazar entered the business carrying her purse.4 Minutes later, she came back to the car and got the black and white plastic shopping bag. When Salazar re-entered the business she saw the agents approach her. She walked to the rear of the business with the bag. She was detained, and the bag, containing $77,000 in bundles of U.S. currency, was found at the rear of the store on top of a door ledge.
12
In the search of the Buick, agents found a California driver's license in the name of Jose Manuel Ramos, mobile phones, a six-page "drug ledger," photographs of Salazar, and a residential lease agreement in the names of David and Maria Rodriguez for the Timber Top apartment. The lease indicated that the Rodriguezes moved into the apartment on April 16, 1990, and a security guard testified that he had seen Salazar and Ramos move in with a small child.
13
Salazar's purse was found to contain a Colombian passport in the name of Luz Estella Salazar Munoz; a set of keys to the black Chrysler and to its false compartment; a key ring marked "'88 Astro white" containing four serialized plastic key punch-outs (the key later made from the punch-outs fit the white van from which the cocaine was recovered); two sets of keys for the Timber Top apartment; two address books; and a photograph of a small child.
14
Subsequently, a search of the Timber Top apartment was conducted. Cash totaling $1,200,000 was seized. The money was found in bundles inside a washing machine, a safe, and a dresser drawer. The agents also seized a residential lease agreement identical to the one recovered from the Buick; an insurance policy in the name of Luz Salazar; a boat registration receipt made out to Estella Salazar; a doctor's receipt in the name of Jose M. Ramos; and male and female clothing in the master bedroom.
15
Drug ledgers also found inside the apartment were seized. These drug ledgers, together with the ones found in the Buick, were analyzed for fingerprints. Three of Ramos' fingerprints were identified on the drug ledger sheets that were taken from the Buick; one of Salazar's fingerprints was also found on one of the sheets. Ramos' fingerprints were also identified on the drug ledgers that were recovered from the Timber Top apartment. According to an expert in illicit business records analysis, the drug ledgers reflected, among others, a transaction involving at least 301 kilograms of cocaine sold for over $5 million and included a list of expenses generally associated with the activities of an illicit drug business--costs for beepers and telephones. Correlations were also found between the account headings in the drug ledgers and some of the entries in the address books recovered from Salazar's purse at the time of her arrest.5
16
During the course of further investigation, another search warrant was executed at 100 Plantation in Houston. A passport seized there contained photographs of Ramos and Salazar under the aliases of David Navia Rodriguez and Rosa Maria Mia de Rodriguez. Upon Ramos' arrest, around August 1, 1990, another search warrant was executed at 3228 Canterbury and more documents and passports were seized. Those documents included a paper removed from Ramos' suitcase which contained the name Fabio Urrego, the same name on the title to the white van used to transport the cocaine. There were also Mexican passports bearing Ramos' photograph and the name Alejandro Salinas Sanchez as well as a visa permit for the Republica de Colombia.
II. DISCUSSION
A. JOSE MANUEL RAMOS
1. Standard of Review
17
Ramos asserts that there was insufficient evidence to support his convictions. We review his claim under the well established standard that the Court view the evidence, whether direct or circumstantial, and all the inferences reasonably drawn from it, in the light most favorable to the verdict. U.S. v. Pigrum, 922 F.2d 249, 253 (5th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 2064, 114 L. Ed. 2d 468 (1991); United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir.1989). The ultimate test for sufficiency of the evidence challenges is whether a reasonable jury could find that the evidence establishes guilt beyond a reasonable doubt. See United States v. Gonzales, 866 F.2d 781, 783 (5th Cir.), cert. denied, 490 U.S. 1093, 109 S. Ct. 2438, 104 L. Ed. 2d 994 (1989).
2. Count 1
18
Count 1 involves Ramos' conviction for conspiracy.6 In a conspiracy prosecution under 21 U.S.C. § 846, the government is required to prove: (1) that an agreement exists between two or more persons to violate the narcotics laws, (2) that each conspirator knew of the conspiracy and intended to join it, and (3) that each conspirator did voluntarily participate in the conspiracy. United States v. Juarez-Fierro, 935 F.2d 672, 677 (5th Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 402, 116 L. Ed. 2d 351 (1991). All elements may be inferred from circumstantial evidence. Id. Moreover, " '[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation ... be sufficient to constitute conclusive proof.' " United States v. Roberts, 913 F.2d 211, 218 (5th Cir.1990) (citation omitted), cert. denied, --- U.S. ----, 111 S. Ct. 2264, 114 L. Ed. 2d 716 (1991).
19
Ramos argues that knowledge and acquiescence in the conspiracy are not to be lightly inferred. Ramos was never seen in possession of any cocaine and was never seen coming from or going into the Schroeder or Nantucket Square apartments. His fingerprints were not found in any of the packages or boxes containing cocaine or in the white van. Furthermore, the fact that his fingerprints were found on the drug ledgers is insufficient to support his conviction. No evidence exists that Ramos ever wrote or read the information contained in those papers.7
20
The elements of a conspiracy "may be inferred from the 'development and collocation of circumstances.' " United States v. Gallo, 927 F.2d 815, 820 (5th Cir.1991) (citation omitted). Although Ramos was never seen in the possession of cocaine or in the vicinity of the Schroeder or Nantucket Square apartments, we find that the evidence establishes a concert of action among Ramos, Salazar, Fontecha, and other unnamed conspirators. Ramos and Salazar used aliases to move into the Timber Top apartment, a residence later found to contain a money counting machine, a bullet proof vest, and approximately $1.2 million. Additionally, a drug ledger recovered from the vehicle Salazar was driving on May 8, 1990, a vehicle Ramos was seen driving earlier, bore both Ramos' and Salazar's fingerprints, and revealed that 170 kilograms of cocaine had been purchased at a price of $17,300 per kilogram and resold at a price of $18,500 per kilogram. Ramos was also present when the lease at the warehouse at 5950 Bingle was negotiated and later signed. Moreover, Ramos went with Salazar to Gonzales Insurance and purchased a beeper that later by inference was used to make contact with Fontecha. Seven hours before Fontecha took possession of the white van containing the 416 kilograms of cocaine, Ramos was actively involved with unnamed persons in exchanging packages with others and placing them in false compartments of cars, and was present when the white van entered the Bingle warehouse. Based upon these facts, the jury could reasonably determine that Ramos was actively involved in the conspiracy.
3. Count 2
21
The challenges to the sufficiency of the evidence to support Ramos' conviction for aiding and abetting in the possession of a controlled substance with intent to distribute also must fail. "The crime of aiding and abetting occurs when the defendant associates with a criminal venture, purposefully participates in it, and seeks by his actions to make it succeed." United States v. Vaden, 912 F.2d 780, 783 (5th Cir.1990). A conviction for aiding and abetting the possession of a controlled substance with intent to distribute does not require that Ramos have actual or constructive possession of the drugs. United States v. Pena, 949 F.2d 751, 755 (5th Cir.1991). It merely requires that Ramos' association and participation with the venture were in a way calculated to bring about that venture's success.
22
Ramos focuses primarily on the issue of possession. Ramos first contends that the mere fact that he may have been the person who rented the warehouse on Bingle is insufficient to infer knowing dominion and control over any items present at the warehouse. Second, the government has not shown that Ramos has exercised any dominion and control over the white van and its contents. As earlier stated, however, Ramos' conviction merely requires association and participation in the venture, not his actual or constructive possession of the drug. Nonetheless, even assuming possession were required, when the evidence is sufficient to establish the defendant's participation in a conspiracy to possess illegal narcotics, the defendant will be deemed to possess narcotics through his co-conspirator's possession. United States v. Medina, 887 F.2d 528, 532 (5th Cir.1989).
23
Since there is direct evidence that his alleged co-conspirator Fontecha possessed the cocaine in the white van, Ramos could properly be deemed to have possessed the cocaine through Fontecha's possession. We have recognized that "[t]ypically, the same evidence will support both a conspiracy and an aiding and abetting conviction." United States v. Singh, 922 F.2d 1169, 1173 (5th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 2066, 114 L. Ed. 2d 471, cert. denied, --- U.S. ----, 112 S. Ct. 260, 116 L. Ed. 2d 214 (1991). Thus, the same evidence that proved Ramos' participation in the conspiracy to possess cocaine with intent to distribute is sufficient to support his conviction for aiding and abetting in the possession of cocaine with intent to distribute.
4. Count 3
24
Finally, Ramos questions the sufficiency of the evidence to support his conviction for aiding and abetting an attempt to commit money laundering. His pivotal contention is that because the district judge granted Salazar's motion for judgment of acquittal on the money laundering count, he cannot be vicariously liable for her conduct. Because we hold that the district court's decision as to direct Salazar's acquittal must be reversed, this contention loses vitality.
25
We have stated a two-step test for finding criminal attempt. "To be guilty of an attempt, the defendant (1) 'must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting,' and (2) 'must have engaged in conduct which constitutes a substantial step toward commission of the crime.' " United States v. Briscoe, 742 F.2d 842, 846 (5th Cir.1984) (citation omitted). In order to establish a violation of 18 U.S.C. § 1956, the government must prove that the defendant (1) knowingly conducted a financial transaction,8 (2) which involved the proceeds of unlawful activity, and (3) with the intent to promote or further that unlawful activity.
26
Ramos argues that his conviction cannot stand because insufficient evidence was presented connecting him to Salazar's presence at Gonzales Insurance on May 8th when she took the $77,0009 into the business. In order for Ramos to be guilty of aiding and abetting in the attempted money laundering, the government must prove that Ramos shared Salazar's intent and that he engaged in conduct designed to aid the attempt. According to the government, Ramos' intent to transfer the proceeds from cocaine trafficking out of the country can be reasonably inferred from the evidence showing his involvement as a cocaine broker. Furthermore, he used a false name to lease the Timber Top apartment where large portions of the drug proceeds, including the $77,000, were kept. Further, the apartment contained the money counting machine. Finally, he used the drug ledgers to record his transactions. From all these facts, the government urges that the jury could reasonably infer conduct designed to aid Salazar's attempt to transfer drug money.
27
Our review of the record indicates that ample evidence exists to provide the requisite nexus between Salazar and Ramos to affirm the conviction of aiding and abetting in an attempt to money launder.
B. LUZ ESTELLA SALAZAR
1. Standard of Review
28
The crux of the government's argument as to Salazar is that the district court utilized the wrong standard in granting Salazar's motion for judgment of acquittal. According to the government, the district court's comments in ruling on the motion indicate that it held the government to a higher burden of proof than the law requires.
29
THE COURT: ... I suppose, where the question has to be put to me, as a question of law, what is it you have to exclude in order for the evidence to be sufficient for circumstantial evidence to constitute what a jury should consider?
30
It seems to me, and maybe I am in error in this, that under a circumstantial evidence case where all the evidence is circumstantial, when I say "all" I mean the conclusions to be reached have to be reached based upon some other points that don't necessarily link themselves together but which are separate individual pieces of evidence.
31
It seems to me you have to exclude some of those reasonable other alternatives that the jury could reach by direct evidence, by some evidence. When I say "direct evidence," I mean some actual evidence that is not a reasonable alternative.
32
In other words, I don't think that a jury can reach a verdict on a circumstantial evidence case by simply saying that, okay, this is one way it could have gone. It could have gone another way; it could have gone a third way or fourth way, but the way I think it really went is this way, and the reason I think that is because that's the way I feel. They have to have some evidence that guides and leads them in that direction more than simply a scintilla of evidence.
33
And what I'm suggesting is that the underlying basis, the underlying premises for the circumstantial evidence case is inadequate, in my opinion, in order for a jury to reach and come to that kind of conclusion. That's the problem I have.
34
The government urges that in United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S. Ct. 2398, 76 L. Ed. 2d 638 (1983), this Court specifically rejected the standard set out by the district court for judging the sufficiency of the evidence in a circumstantial evidence case. The test is not whether the evidence excludes every reasonable hypothesis of innocence or is wholly inconsistent with every conclusion except that of guilt, but whether a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. "Further, this [C]ourt accepts all credibility choices that tend to support the jury's verdict." Gallo, 927 F.2d at 820.
35
Salazar concedes that the government need not disprove all other reasonable hypotheses to sustain a conviction. But she asserts that the "outstanding reasonable hypothesis rule" (a term she leaves undefined) has vitality as an analytical tool even if it is not the test to determine the legal sufficiency of the evidence. She relies upon United States v. Espinoza-Seanez, 862 F.2d 526, 538 (5th Cir.1988). In Espinoza-Seanez, the entire government case against one of the defendants consisted of only four facts which this Court found insufficient to prove knowledge of the conspiracy. We found that though we do give the jury deference in questions of credibility of testimony, the case was not one where "competing explanations" were being offered. We observed that " '[t]oo many innocent scenarios jibe with the sparse record facts.' "
36
Salazar's attempt to utilize Espinoza-Seanez to differentiate a rule from a test is inventive, but unavailing. The cases are broadly distinguishable. In this case, a number of factors, taken together, support her conviction on the various counts. "As the United States Supreme Court remarked long ago, '[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.' " United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989) (quoting Coggeshall v. United States (The Slavers, Reindeer), 69 U.S. (2 Wall.) 383, 17 L. Ed. 911, 914-15 (1864)).
37
Salazar also asserts that while the district court's statements concerning the sufficiency of the evidence "may incorrectly state the legal test, it applied the correct legal test." But we can only consider the record. After a close scrutiny of the record, we find that the district court did apply a more stringent burden of proof than is required by the law. Using the proper standard of review, we address and evaluate the district court's determinations leading to its judgment of acquittal.
2. Count One
38
As to count one, the district court found that there was an insufficient link between Salazar and the 416 kilograms of cocaine seized from the white van. Although the court conceded that the cocaine seized from the van could have been a part of a larger shipment, it was not satisfied that it was sufficiently linked to the ledger on which Salazar's fingerprints had been found. Second, although it noted that Salazar's possession of the punch-outs for the keys to the van was some evidence linking her to the cocaine, the court concluded that, standing alone, it was insufficient. While the court did observe that the government proved that Salazar was involved in some criminal activity, it concluded that the government failed to prove that Salazar was involved in the conspiracy.
39
Salazar argues the insufficiency of the evidence by focusing upon the factors considered critical by the government: (1) she shared an apartment with Ramos; (2) she was driving Ramos' car and had keys to the other cars; (3) her fingerprints were on sheets of what the government proved as a drug ledger; (4) she possessed a Colombian passport; and (5) she took $77,000 to Gonzales Insurance.
40
Salazar acknowledges that based upon Ramos' involvement in the cocaine conspiracy, a reasonable jury could infer that due to her close relationship with him, Salazar knew of the existence of the conspiracy. This alone, she urges, does not constitute sufficient evidence to support a conspiracy conviction. Salazar relies primarily on United States v. Onick, 889 F.2d 1425, 1429 (5th Cir.1989). We find that case inapposite. There, only four unpersuasive items of evidence connected Onick to the case: (1) she was found on the premises in her nightgown when the house was searched; (2) a bedroom closet contained women's clothing; (3) the bedroom contained a photograph of Onick with Tolliver, the man convicted with her, and an unidentified man; and (4) several months before her arrest, Onick had showed a locksmith where to install a safe on the premises. We held that we would not lightly impute dominion or control to establish constructive possession to one found in another's house. Moreover, the jury must limit itself to reasonable constructions of the evidence, not mere speculations.
41
This case does not present a question of whether four undisputed casual circumstantial facts are sufficient to convict Salazar of conspiracy beyond a reasonable doubt. In contrast to Onick's situation, Salazar lived with Ramos in the apartment; she had moved in with him (under an alias) and had complete access to the residence; she also had possession of the keys, or their equivalent, to three vehicles used in the drug transactions. Moreover, while in the company of Ramos, some time between April 28th and 30th, she purchased a beeper; Fontecha, the driver of the white van, made contact with either Ramos or Salazar, or one of the unnamed co-conspirators, by beeper around April 30th. Also evidence indicates Salazar's involvement in the conspiracy because she had access to the million dollars in the apartment and the fact that she took the $77,000 to Gonzales Insurance. Evidence that an individual is "solely entrusted with a large portion of the proceeds of the drug trafficking enterprise establishes [her] familiarity with, or high level participation in, that enterprise." Gallo, 927 F.2d at 821. Additionally, one cannot escape criminal liability on the basis that one played a relatively minor role in the total scheme. United States v. Davis, 666 F.2d 195, 201 (5th Cir.1982). Finally, Salazar's knowledge of the contents of the drug ledgers could reasonably be inferred from the presence of her fingerprints on one of the ledgers, from her possession of address books bearing some of the same names that were used as account designations in the ledgers, and from the presence of other ledgers in her residence containing information that corresponded to the information contained in the ledgers found in the Buick. Viewed cumulatively, this evidence was sufficient to uphold a jury verdict of Salazar's participation in the conspiracy.
3. Count 2
42
In granting the motion for judgment of acquittal on count two, the district court found that there was no evidence presented showing that Salazar aided and abetted the particular transaction involving the shipment of 416 kilograms of cocaine. We disagree. Because the evidence is sufficient to support Salazar's conspiracy conviction, and she is deemed to have possessed cocaine through her co-conspirator's possession, the evidence is sufficient also to support her conviction for aiding and abetting the possession of cocaine with intent to distribute. As we stated in the discussion of Ramos' conviction, the same evidence often supports both a conspiracy and an aiding and abetting conviction. Singh, 922 F.2d at 1173.
4. Count 3
43
In granting the motion for judgment of acquittal on count three, aiding and abetting in an attempt to launder the money, the district court concluded that Salazar had not taken enough steps toward completion of a financial transaction to support a finding of criminal attempt. Section 18 U.S.C. § 1956(a)(1) prohibits knowing involvement in a financial transaction that uses the proceeds of some form of unlawful activity. In order to prove an attempt, the government must satisfy this Circuit's two requirements of proof that there was (1) an action involving the kind of culpability otherwise required for the commission of the crime upon which the charge of the attempt is based and (2) conduct constituting a substantial step toward commission of the crime. United States v. Contreras, 950 F.2d 232, 237 (5th Cir.1991).
44
Salazar concedes that a rational jury could find that she knew that the money in the apartment was the proceeds of illegal activity due to the large amount of cash. She also agrees that the evidence supports a jury finding that the money was in fact from drug-trafficking. Salazar asserts, however, that the government has failed to prove the remaining element: that she knowingly undertook to conduct a financial transaction with the intent to promote or further that unlawful activity. According to Salazar, the government is relying on inferences stacked upon inferences in order to justify a guilty verdict. Further, in applying the law of attempt, Salazar asserts that there are insufficient objective acts performed which are unique rather than commonplace to mark her conduct as criminal in nature as a violation of 18 U.S.C. § 1956. In essence, she asserts that questions exist whether she took a substantial step which is strongly corroborative of the firmness of criminal intent.
45
Our review of the record finds sufficient evidence demonstrating both Salazar's intent to carry out the money laundering and her commission of a substantial step toward that end. Proof of Salazar's intent to transfer drug proceeds out of the country in order to promote the drug activity is corroborated not only by her physical acts of removing the money from the Timber Top apartment and bringing it to a place where the transaction was to occur, but also by her involvement in the drug conspiracy. Taken in the aggregate and viewed in the light most favorable to the government, a reasonable jury could conclude sufficient evidence exists to convict her. Salazar had a Colombian passport in her possession when she arrived at Gonzales Insurance, a business which offered wire transfers to Colombia. Upon arrival, she first entered the business empty handed and then returned for the money. Upon re-entering the business and seeing agents approach her, Salazar walked to the rear of the business with the bag and placed it on top of a door ledge. Although it perhaps is possible that Salazar planned to do something else with the money, the amount involved and the services offered at the business make such an alternative overwhelmingly unlikely. No indication exists on the record that any other possible expenditure in that business could cost $77,000.
46
Salazar's objective acts are not consistent with innocent activity. Her actions, when taken as a whole, show that she moved beyond preparation. There is adequate evidence to establish the required culpability. We find that the jury was justified under the evidence in finding Salazar guilty of aiding and abetting an attempt to launder drug proceeds.
III. CONCLUSION
47
We conclude that sufficient evidence sustains Ramos' convictions. We also find that the district court erred in granting Salazar's motion for judgment of acquittal as to her conviction. The jury chose not to believe Salazar. Instead, it found her acts to be sufficiently unique and strongly corroborative of her criminal intent as to all counts. We hold the evidence sufficient to reverse the court's granting of the motions for acquittal and reinstate the jury's convictions against Salazar. We remand for the sentencing of Salazar.
48
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR SENTENCING.
1
District Judge of the Western District of Louisiana, sitting by designation
2
At oral argument, Ramos' counsel appeared to suggest that Ramos had failed to move for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a). The government did not allege such a failure in either its briefs or at oral argument. The record docket indicates that the district court denied a motion to acquit, although no formal motion to acquit is in the record
3
Fontecha entered into a plea agreement with the government. Some facts concerning this alleged co-conspirator, however, remain relevant. Fontecha was an independent truck driver living in Florida who was in the business of hauling loads on consignment. He had previously transported loads of cocaine and had arranged for transportation of this load of cocaine by calling a local beeper number after he arrived in Houston around April 30th--a beeper linked either to Ramos or Salazar, or one of the unnamed co-conspirators. The record indicates that Fontecha met his Houston contact at Slick Willie's the same evening Ramos was observed there
4
At trial, David Gonzales, the owner of Gonzales Insurance, who arrived at the business after Salazar was arrested, testified that Salazar wanted to return the beeper because it was not working properly
5
For instance, on the Buick ledger, about 170 kilograms was reflected as sold to "Perla," "Negro," and "Polo," among others. The address books contained telephone numbers and references to those and other names
6
At oral argument, Ramos appeared to argue for the first time on appeal that the evidence does not conform to a charge for this particular conspiracy, implying the potential for various conspiracies at work. Our review of the record and the briefs indicates that Ramos did not address prior to oral argument the notion of the government's failure to prove a single conspiracy. "[I]ssues raised for the first time on appeal 'are not reviewable by this Court unless they involve purely legal questions and failure to consider them would result in manifest injustice.' " United States v. Sherbak, 950 F.2d 1095 (5th Cir.1992) (per curiam) (citation omitted). Hence we find that review is not proper. A determination of the presence of a single conspiracy constitutes a fact question and failure to consider the issue does not result in manifest injustice
7
Salazar and Ramos address the fingerprint issue throughout their briefs and attempt to denigrate its significance by citing primarily to United States v. Lonsdale, 577 F.2d 923 (5th Cir.1978) and United States v. Stephenson, 474 F.2d 1353 (5th Cir.1973). First, these cases do not stand for the proposition that fingerprint evidence is irrelevant. Such cases address the issue of whether fingerprint evidence standing alone suffices to sustain a conviction where no evidence exists concerning when the fingerprint was implanted or other significant evidence connecting the accused to the crime. Consequently, they are clearly distinguishable from this case. We find that the fingerprint evidence is relevant and admissible as circumstantial evidence of Ramos' and Salazar's involvement, and together with other evidence, support their convictions. Second, as this Court recently noted in Gibson v. Collins, 947 F.2d 780, 782 (5th Cir.1991), Lonsdale and Stephenson treated circumstantial evidence as insufficient to support a conviction unless that evidence excluded every reasonable hypothesis of the defendant's innocence. This standard has been rejected by this Circuit in United States v. Bell, 678 F.2d 547 (5th Cir.1982), aff'd, 462 U.S. 356, 103 S. Ct. 2398, 76 L. Ed. 2d 638 (1983), and its progeny
8
"Financial transaction," in this context, means "the movement of funds by wire or other means ... which in any way or degree affects interstate or foreign commerce." 18 U.S.C. § 1956(c)(4)
9
According to the government, if the $77,000 that Salazar carried into the business were divided into eight convenient $9,000 transfers (to evade currency reporting requirements under the Currency Transaction Reportings Act, 31 U.S.C. § 5311, et seq.) and if a seven percent charge of $5,040 were added to that amount (what Gonzales Insurance would have charged for sending eight $9,000 transfers totalling $72,000 to Colombia), the total cost for the transfers would be $77,040, an amount remarkably close to $77,000 | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283796/ | Justice Guzman
delivered the opinion of the Court.
The dispute in this case arises in the context of a unique statutory scheme that confers expansive administrative authority and broadly prohibits judicial review. At issue is whether Houston Municipal Employees Pension System (HMEPS) board members violated HMEPS’s enabling statute by requiring the petitioners’ continued participation in the City of Houston’s defined-benefit pension plan. As provided by statute, the pension board has exclusive, final, and binding authority to interpret, construe, and supplement omissions in the statute and to determine all questions pertaining to eligibility for membership, services, and benefits. Tex. Rev. Civ. Stat. Ann. Art. 6243h, § 2(x)-(y). Consis*4tent with this legislative mandate, we have held that HMEPS’s enabling statute precludes judicial review of such matters. Houston Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 158-59 (Tex. 2007). To defeat the presumptive jurisdictional bar, the petitioners assert that subject-matter jurisdiction exists here because the pension-board members acted ultra vires and violated the Texas Constitution by augmenting the statute rather than interpreting it.
The underlying dispute arose when the City of Houston attempted to remove a division of employees from the pension system by forming quasi-governmental entities to perform the same governmental functions using the same employees. Contemporaneously with the City’s restructuring efforts, the pension board determined that those employees remained under the City’s effective control and payroll and therefore fell within the ambit of the statutory definition of “employee,” which defines an individual’s status as a HMEPS member. See Tex. Rev. Civ. Stat. Ann. Art. 6243h, §§ 1(11) (defining “employee”), (13) (defining “member”). The board’s decision resulted in otherwise eligible members being denied “retiree” status and further required affected employees to continue making contributions to the pension fund despite being under the immediate employ of a third-party entity. See id. §§ 1(22) (defining “retiree”), (24) (defining “separation from service”). The individual petitioners and the City assert that the pension board unlawfully redefined the term “employee” to capture these employees after they had ceased working for the City. Considering HMEPS and the board members’ plea to the jurisdiction, the trial court found jurisdiction to be lacking, and the court of appeals affirmed. 405 S.W.3d 204, 209 (Tex. App.—Houston [1st Dist.] 2013).
We conclude the trial court lacks subject-matter jurisdiction over the claims asserted because (1) the pension board acted within the scope of its broad statutory authority in construing the term “employee” and (2) the individual petitioners have not asserted viable constitutional claims. Accordingly, we affirm the court of appeals’ judgment.
I. Background
HMEPS is organized and operated under Article 6243h of the Texas Revised Civil Statutes, which requires cities with a population of more than 1.5 million to make contributions to an employee pension fund in an amount based in part on the combined salary of the pension system’s members.1 Tex. Rev. Civ. Stat. Ann. Art. 6243h, §§ 1-28; see also id. § 8(d). The statute defines a “member” of the pension fund as “each active employee included in the pension system,” except for statutorily ineligible employees. Id. § 1(13). An “employee” is “any [eligible] person ... who holds a municipal position[,] ... whose name appears on a regular full-time payroll of.a city[,] ... and who is paid a regular salary for services.” Id. § 1(11).
HMEPS is governed by a Board of Trustees imbued with broad authority to administer, manage, and operate the pension fund. See id. § 2(x). Among other powers, the pension board can (1) adopt written rules and guidelines for the administration of the pension fund; (2) interpret, and construe .the Act and any summary-plan documents and procedures, provided such construction is consistent with section 401 of the Internal Revenue Code of 1986, as amended (IRC); (3) “correct any defect,' supply any omission, and reconcile any *5inconsistency” in the statute in the manner and to the extent the board deems “for the greatest benefit of all members”; and (4) determine all legal and factual questions pertaining to the fund’s administration and eligibility for membership, services, and benefits. Id. So broad is the board’s authority that the statute expressly mandates that “[t]he determination of any fact by the pension board and the pension board’s interpretation of [the] Act are final and binding on any interested party, including members, deferred participants, retirees, ... and the city.” Id. § 2(y). But though the board’s authority under the statute is indisputably broad, the allegation in the underlying lawsuit is that the pension board crossed the line between interpreting the statute, which it is expressly authorized to do, and unlawfully altering it by supplementing the statutory definition of “employee” in a manner that encompasses personnel the City has outsourced to a third-party entity.
At the heart of the dispute is the City’s effort to reduce its pension-fund contributions by using outsourcing as part of a comprehensive cost-saving initiative. Historically, the City has employed more than 100 people in its Convention and Entertainment Facilities Department (convention department) to operate municipally-owned properties such as theaters, convention centers, and parking lots. In May 2011, however, the City announced plans to remove those employees from the municipal payroll — and thus the pension system — by outsourcing convention and entertainment municipal functions to Houston First Corporation, a City-controlled, tax-funded local government corporation. Among other indicia of control, Houston First’s budget is approved by the Houston City Council, and its board is appointed by the mayor and confirmed by the city council.
In response to the City’s transition plan, the pension board announced in August 2011 that the definition of “employee” in Article 6243h “includes a full-time employee of a Texas local government corporation ... controlled by the City, upon a determination by the External Affairs Committee of the Board of Trustees that such [local government corporation’s employees are Employees for purposes of the [HMEPS] Plan.” Thereafter, the board amended the pension-plan documents to incorporate this construction of the term “employee.”
Undeterred, the City formed a nonprofit entity named Houston First Foundation and notified the pension board that the newly formed entity would employ all the City employees who had been slated to join Houston First Corporation. Believing Houston First Foundation to be a wholly-owned and controlled subsidiary of Houston First Corporation — and by extension, the City — the pension board adopted a resolution in October 2011 that reiterated the previously adopted construction of the term “employee” and further announced that “employees of any entity controlled, directly or indirectly, by [the City] are considered Employees for purposes of membership in HMEPS, unless the External Affairs Committee expressly determines otherwise.”
Subsequently, the City abandoned Houston First Foundation and formed another nonprofit corporation called Convention and Cultural Services, Inc. (CCSI) to operate in conjunction with Houston First to provide convention and entertainment services to the City. Although Houston First would still provide those services to the City, it would not employ the service personnel directly. Instead, CCSI would employ and lease the workforce to Houston First, its only client. By agreement, Houston First was obligated to fully reimburse CCSI for “all internal and external *6costs and expenses associated with” the provision of personnel. CCSI purported to operate independently, but Houston First and CCSI had overlapping executives, some of whom had been City employees.
In a letter to the pension system’s executive director, the City Attorney expressly disavowed any right or ability of the City to control CCSI, stating “[n]either the City, the Mayor, nor City Council will have any appointment authority or control over the corporation or its board of directors.” Instead, CCSI was described as “a nongovernmental, non-profit corporation whose board will be self perpetuating.” The letter further explained that “[CCSI] will be contracting for its own employee benefits, including a [401 (k) ] plan, and will not participate in any City of Houston benefit programs.” The City thus took the position that following transition of convention department employees to CCSI, the employees would no longer be City employees or HMEPS members and, as a result, the City would not be obligated to make contributions to the pension fund based on those employees’ salaries.
Despite this maneuver, the pension board’s External Affairs Committee issued a resolution in November 2011 to the effect that the leased workers “would be in a control group and would remain as members of the plan.” Though directly employed by CCSI, the leased employees (1) performed substantially similar duties as they had when employed directly by the City; (2) operated in the same governmental facilities; (3) were subject to removal from their positions at the City’s request; and (4) were compensated using funds furnished by the publicly-funded local government corporation, which was contractually obligated to reimburse CCSI for the employees’ services on a dollar-for-dollar basis.
With the exception of a group of City employees who were within a few years of retiring, the City proceeded to transfer convention and entertainment services and employees in accordance with the transition plan. When the transfer of personnel had been consummated, three CCSI employees — John Klumb, Veronica McClel-land, and Vivian Montejano — sought full retirement benefits from HMEPS on the basis that their employment with the City had ended when they became CCSI employees and, at that time, they were otherwise eligible to retire. See id. §§ 1(22) (defining “retiree”), (1)(24) (defining “separation from service”), 10(b) (eligibility requirements for retirement benefits); July 2011 Amended & Restated Meet & Confer Agreement Between HMEPS and the City § 14 (July 2011 MCA) (eligibility for retirement pension). Three other CCSI employees — John Gonzalez, Anita Robles, and Charmaine Pilgrim — claimed that, although not yet eligible to retire, they were no longer employed by the City and were therefore entitled to defer retirement status and cease having HMEPS contributions of 5% deducted from their salaries. See Tex. Rev. Civ. Stat. Ann. ART. 6243h, §§ 8(a) (requiring employer to deduct pension-fund contributions from members’ salaries during employment), 12 (deferred-retirement option); July 2011 MCA § 8. Based on the pension board’s interpretation of the term “employee” in Article 6243h, as adopted in the revised pension-plan documents, the External Affairs Committee concluded that the transferred employees remained “employees,” and thus “members” of the pension system, and that no separation from municipal service had occurred.
Klumb, McClelland, Montejano, Gonzalez, Robles, and Pilgrim (collectively, the Petitioners) sued HMEPS, alleging violations of the Texas Constitution and breach *7of contract. The Petitioners sought monetary damages and a declaration that they were no longer City employees as that term is defined in Article 6243h. In a plea to the jurisdiction, HMEPS argued that the trial court lacked subject-matter jurisdiction because (1) Article 6243h precludes judicial review of the pension board’s decisions interpreting that statute and determining eligibility for membership and benefits and (2) sovereign immunity bars the Petitioners’ breach-of-contract and constitutional claims.
Petitioners responded by amending their petition to assert ultra vires, equal-protection, and due-course-of-law claims against the five pension-board members (Trustees) who voted to amend the HMEPS pension-plan documents to “illegally change the definition of ‘employee’ contained in Section 1(11) of Article 6243h.” The Petitioners requested declaratory relief and an injunction against the Trustees based on the following alleged ultra vires acts: (1) voting to approve a definition of the term “employee” that improperly alters the statutory definition of that term; (2) compounding that unauthorized act by adopting the October 2011 resolution, which did the same; (3) authorizing the External Affairs Committee to determine who qualifies as an “employee” in contravention of a written agreement with the City; (4) construing Article 6243h in a manner inconsistent with section 401 of the IRC; (5) refusing a non-discretionary duty to pay Klumb, McClelland, and Montejano their retirement benefits following separation of service from the City; and (6) refusing a non-discretionary duty to recognize Gonzalez, Robles, and Pilgrim’s separation from service with the City. According to the Petitioners, the pension board’s supplemental definition of the term “employee” effected an amendment of the statute, which was neither approved by the City nor adopted in accordance with statutorily mandated procedures and historical practice (what the parties refer to as “meet-and-confer agreements” between HMEPS and the City). See id. § 3(n) (authorizing the pension board, “[njotwithstanding any other law,” to “enter into a written agreement with the city regarding pension issues and benefits” that is binding on the City and HMEPS members if approved under procedures specified in the statute). The Petitioners further asserted the pension board had improperly delegated authority to the External Affairs Committee in violation of an existing meet-and-confer agreement, which states that, except for personnel decisions “no committee [of the pension fund] shall have authority to make final approvals, but shall only make recommendations to the full board.”
The City intervened, generally aligning itself with the Petitioners and seeking similar injunctive and declaratory relief.
HMEPS and the Trustees (collectively, HMEPS) filed an amended plea to the jurisdiction, arguing that both the pension board’s interpretation of the term “employee” and its application to the factual circumstances presented were “final and binding” with no right of judicial review. See id. § 2(x)-(y); Ferrell, 248 S.W.3d at 158-59. HMEPS further asserted sovereign immunity bars the Petitioners’ breach-of-contract and constitutional claims because (1) violation of a meet-and-confer agreement cannot serve as a basis for an ultra vires claim and (2) the constitutional claims are facially invalid. Following a hearing, the trial court granted the plea- to the jurisdiction and dismissed the suit for want of jurisdiction.
The court of appeals affirmed, holding that (1) Texas courts have jurisdiction to determine whether the pension board’s actions are ultra vires; (2) the pension board’s construction of the term “employee” was not an ultra vires act because it *8was consistent with the board’s exclusive authority to interpret — and supply any omission in — the statute; (3) violation of a meet-and-confer agreement does not support an ultra vires claim; (4) the trial court lacks subject-matter jurisdiction to determine whether the board’s supplemental definition of “employee” disqualifies the pension plan under the IRC; (5) the Petitioners’ equal-protection challenge is mer-itless because preservation of funding sources for the pension fund provides a rational basis for continuing to treat the transferred employees as employees of the City; (6) the petitioner’s due-course-of-law claim fails because the employees lack a vested property interest in the retirement benefits at issue and the funds deducted from their salaries as contributions to the pension fund; and (7) the trial court did not err in striking and refusing to consider an affidavit offered to establish the board’s intent to amend, rather than interpret, the statute and, in any event, the exclusion of the evidence was harmless. 405 S.W.3d at 215-27.
On appeal to this Court, the Petitioners and the City raise essentially the same grounds for denying HMEPS’s plea to the jurisdiction. In the alternative, they assert that the evidence raises a fact issue concerning the existence of jurisdiction that must be resolved by the trier of fact on remand to the trial court.2
II. Discussion
A. Standard of Review
Subject-matter jurisdiction is essential to the court’s power to decide a case. Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The existence of subject-matter jurisdiction is a question of law that can be challenged, as it was here, by a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review de novo the trial court’s disposition of HMEPS’s plea to the jurisdiction. Miranda, 133 S.W.3d at 226.
In doing so, we consider the pleadings and factual assertions, as well as any evidence in the record that is relevant to the jurisdictional issue. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). Construing the pleadings liberally in favor of the plaintiffs, we look to the pleaders’ intent and determine whether the pleaders have alleged facts affirmatively demonstrating the court’s jurisdiction to entertain the matter. Id. When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider whether evidence in the record raises a fact issue, and if it does, the jurisdictional issue must be resolved by the trier of fact. Miranda, 133 S.W.3d at 227-28. Conversely, the trial court must rule on the plea as a matter of law if the evidence is undisputed or fails to raise a fact question. Id. at 228.
The jurisdictional issue in this case has two aspects. The first is whether courts have authority to review the pension board’s actions under an ultra vires theory notwithstanding Article 6243h’s ban on judicial review. The second is whether sovereign immunity bars the Petitioners’ constitutional claims.
*9B. Ultra vires Claims
The pension board has broad authority to interpret and apply Article 6243h, to supplement omissions in its terms, to adopt written rules and guidelines for the fund’s administration, and to determine all questions of law and fact pertaining to the same. See Tex. Rev. Civ. Stat. Ann. Art. 6243h, § (2)(x). The board’s actions with respect to these matters are “final and binding,” id. § 2(y), and therefore not amenable to judicial review, see Ferrell, 248 S.W.3d at 158-59 (holding that Article 6243h’s “final and binding” language precludes judicial review of the pension board’s decision denying police officers service credit for time they spent training as cadets in the Houston Police Academy). Neither the Petitioners nor the City disputes the validity of the foregoing principles.
Rather, they assert those principles simply do not apply when the pension board fundamentally alters the terms- of the statute without the City’s consent. When viewed in this way, they contend the jurisdictional inquiry is not determined by reference to Ferrell, but instead is controlled by City of El Paso v. Heinrich, in which we held that sovereign immunity does not prohibit ultra vires suits seeking “to require state officials to comply with statutory or constitutional provisions.” 284 S.W.3d 366, 372 (Tex. 2009).
Sovereign immunity and the unavailability of judicial review are related, but conceptually distinct concepts. The former serves the pragmatic purpose of “shield[ing] the public from the costs and consequences of improvident actions of their governments.” Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). The latter effectuates a legislative prerogative to protect the inviolability of an administrative process while simultaneously recognizing that suits challenging an administrative action necessarily implicate sovereign immunity. Whatever functional differences might exist between these concepts, we will assume for purposes of our analysis that the ultra vires doctrine is an exception to Article 6243h’s ban on judicial review. See Ferrell, 248 S.W.3d at 160 (Brister, J., concurring) (acknowledging that Article 6243h forecloses judicial review of claims that the pension board misinterpreted the statute but observing that “[a] different case might be presented if the plaintiffs alleged the board was clearly violating some provision of the statute”).
As stated in Heinrich, the ultra vires doctrine applies when a government official’s conduct is “without legal or statutory authority.” 284 S.W.3d at 372. To trigger the ultra vires exception to sovereign immunity, “a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.” Id. In the present case, the Petitioners and the City allege both categories of ultra vires acts. The threshold issue, however, is whether the pension board acted without legal authority by expanding Article 6243h’s definition of “employee” without the City’s approval and in conflict with the plain language of the statute.3 With the exception *10of the allegation that the pension, board unlawfully delegated decision-making authority to a committee, the validity of the remaining ultra vires claims depends on the resolution of this issue. We thus begin our analysis there.
1. The Board’s Construction of the Term “Employee”
Article 6243h defines the term “employee” as “any [eligible] person ... (A) who holds a municipal position ...; (B) whose name appears on a regular full-time payroll of a city ...; and (C) who is paid a regular salary for services.” Tex. Rev. Civ. Stat. Ann. Art. 6243h, § 1(11). The constituent terms “municipal position,” “a regular full-time payroll of a city,” and “regular salary for services” are not defined. HMEPS therefore maintains that it has the authority to interpret these terms and fill in the interstices of the statute to address newly emerging circumstances affecting the administration of the statute “for the greatest benefit of all members.” See id. § 2(x)(2), (3). Moreover, because the statute expressly authorizes the pension board to adopt written rules and guidelines for the administration of the pension fund, HMEPS contends the board had discretion to adopt supplemental language adding contours to the statutory definition and to amend the pension-plan documents accordingly. See id. § 2(x)(1).
The Petitioners and the City’s contrary position is that no interpretation was required or permitted because, manifestly, personnel employed by CCSI are neither holding municipal positions nor being carried on the City’s payroll. Accordingly, they contend that to reach these employees, the Trustees effectively amended and expanded the statutory definition and did so without entering into a section 3(n) meet-and-confer agreement with the City. See id. § 3(n) (“Notwithstanding any other law, the pension board may enter into a written agreement with the city regarding pension issues and benefits. The agreement must be approved by the pension board and the governing body and signed by the mayor and by the pension board or the pension board’s designee.”).
The breadth of the pension board’s authority under Article 6243h is inescapable. As it pertains to the matter at hand, the statute expressly authorizes the pension board to construe the statute, add language it deems necessary for the administration of the pension fund, and determine all eligibility questions and all other legal and factual matters pertaining to the fund’s administration. Courts may not review the board’s actions in doing so absent a manifest conflict with express statutory terms. That is not the case here because (1) the definition of “employee” is composed of essential terms that are undefined and (2) the supplemental language the board adopted neither inherently nor patently conflicts with the terms of the statute.4 We therefore conclude that, as a *11matter of law, the pension board did not act without legal authority in interpreting the term “employee” to include “a full-time employee of a Texas local government corporation ... controlled by the City, upon a determination by the External Affairs Committee of the Board of Trustees that such [local government corporation's employees are Employees for purposes of the [HMEPS] Plan.” The board’s additional explication of the definition as including “employees of any entity controlled, directly or indirectly, by [the City]” is also well within the board’s discretionary authority. Absent a conspicuous and irreconcilable conflict, any further consideration of the matter would impermissibly encroach on the unreviewable, discretionary authority afforded to the board under Article 6243h.5 See Ferrell, 248 S.W.3d at 158-59 (holding that courts lack jurisdiction to require pension board to comply with a judicial interpretation of Article 6243h).
Furthermore, there is no requirement that the pension board obtain the City’s consent to exercise its discretionary powers. Section 3(n) of the statute authorizes, but does not require, the pension board to enter into a written agreement with the City regarding pension and benefit issues. See Tex. Rev. Civ. Stat. Ann. Art. 6243h, § 3(n) (“[T]he pension board may enter into a written agreement with the city regarding pension issues and benefits.” (emphasis added)). Section 3(n) does not purport to constrain the board’s authority under section 2(x); it merely provides an alternative mechanism for the board to resolve pension issues. When the pension board and the City agree on a pension issue, the statute allows them to execute an enforceable contract to that effect. When they cannot agree, the statute makes the board’s determinations of fact and statutory interpretations “final and binding.” See id. § 2(y).
Although the pension board has unquestionably broad discretionary authority under section 2(x), we caution that the board may not violate the statute. Though we need not consider the matter here, we do not foreclose the possibility that, in appropriate circumstances, a particular interpretation of the statute could be ultra vires. We observe only the absence of such circumstances here, leaving any further dispute regarding the matter to the Legislature, as it evidently intended.6 See Ferrell, 248 S.W.3d at 160 (Brister, J., *12concurring) (noting, “Our legislators [have] decided they wish to be the final (and frequent) arbiter of disputes about how these pension systems should be run”; consequently, the courts “must leave them to it, as the Texas Constitution expressly allows the Legislature to grant jurisdiction to administrative bodies rather than the courts”).
2. Delegation of Board Authority to a Committee
The Petitioners and the City also contend the pension board acted ultra vires by delegating decision-making authority to the External Affairs Committee in violation of the following provision in a July 2011 meet-and-confer agreement between HMEPS and the City:
Except for meet and confer decisions and personnel decisions, no committee shall have authority to make final approvals, but shall only make recommendations to the full board.
The pension board’s October 2011 resolution nevertheless states that “employees of an entity controlled, directly or indirectly, by the City are considered Employees for purposes of membership in. [the Pension Fund], unless the External Affairs Committee expressly determines otherwise; provided, however that nothing in this resolution would apply to ... any otherwise ineligible employee as determined by the External Affairs Committee.”
Article 6243h generally permits delegation. See Tex. Rev. Civ. Stat. Ann. Art. 6243h, § 3(k) (“The pension board may allocate among the trustees the responsibilities of the pension board under this Act and may designate any person who is not a trustee ... to carry out the responsibilities of the pension board”). Under section 3(k) of the statute, the pension board is permitted to delegate decision-making authority in the manner effectuated by the October 2011 resolution.
The Petitioners and the City contend, however, that the July 2011 meet-and-con.fer agreement amended the statute and divested the pension board of the power to delegate final decision-making authority to a committee, requiring instead that committees “shall only make recommendations to the full Board.” The Petitioners and the City allege that the October 2011 resolution thus violates the terms of the meet- and-confer agreement and is ultra vires. We disagree.
Meét-and-confer agreements are written contracts, and regardless of whether the parties deem the provisions of the contract to be an “amendment” of the statute, noncompliance with a contract does not give rise to an ultra vires claim. See City of Houston v. Williams, 353 S.W.3d 128, 149 (Tex. 2011); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855-57 (Tex. 2002). Therefore, any claim that the pension board violated the July 2011 meet-and-confer agreement is a breach-of-contract claim that cannot be maintained absent a waiver of sovereign immunity. As we have previously explained, “declaratory-judgment suits against state officials seeking to establish a contract’s validity, to enforce performance under a contract, or to impose contractual liabilities are suits against the State.... Consequently, such suits cannot be maintained without legislative permission.” IT-Davy, 74 S.W.3d at 855-56. No waiver of immunity is alleged or supported on the record before the Court.7
*13C. Equal Protection and Due Course of Law
In addition to asserting ultra vires claims as a basis for subject-matter jurisdiction, the Petitioners further contend that sovereign immunity does not bar relief on their claims under the Texas Constitution. See, e.g., Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (suits to require state officials to comply with constitutional provisions are not prohibited by sovereign immunity); see also Tex. Const. Art. I §§ 3 (equal-protection clause), 19 (due-course-of-law clause). While it is true that sovereign immunity does not bar a suit to vindicate constitutional rights, Heinrich, 284 S.W.3d at 372, immunity from suit is not waived if the constitutional claims are facially invalid, see Andrade v. NAACP of Austin, 345 S.W.3d 1,11 (Tex. 2011).
1. Equal Protection
The Petitioners allege the pension board treated them differently than former city employees who now work for separate legal entities due to municipal outsourcing. For example, the Petitioners argue the City employees working at the Houston Zoo became employees of Houston Zoo, Inc., and that the pension fund determined a separation of service occurred as a result. According to the Petitioners, the zoo employees were declassified as “employees” and pension-system “members” and some were thereafter permitted to collect their pension benefits while remaining employed in essentially the same jobs. The Petitioners contend they are similarly situated to the zoo employees but are being treated differently. They further assert — as they must to state a valid equal-protection claim — that the pension board’s disparate determination that CCSI employees remain members of the pension system is not rationally related to any legitimate governmental objective.
The Texas Constitution provides that all people “have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges.” Tex. Const. Art. 1 § 3. The Petitioners contend the pension board’s determination that they remain members of HMEPS violated their right to equal protection of the law. To state a viable equal-protection claim under the Texas Constitution, the Petitioners must show they have been “treated differently from others similarly situated.” Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 647 (Tex. 2004). Because neither a suspect classification nor a fundamental right is involved, the Petitioners must further demonstrate that the challenged decision is not rationally related to a legitimate governmental purpose. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 639 (Tex. 2008). In conducting a rational-basis review, we consider whether the challenged action has a rational basis and whether use of the challenged classification would reasonably promote that purpose. Id. These determinations are “not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).8
Even assuming the pension board has in fact treated similarly situated employees differently, we hold the Petitioners failed *14to plead a viable equal-protection claim because the board’s actions are rationally related to at least two legitimate government objectives which are promoted by the challenged classification. First, the pension board has a legitimate interest in preserving sources of pension funding that are adequate to meet the demands on the fund, which it may rationally accomplish by ensuring the City meets its contribution obligations to the pension system. See 405 S.W.3d at 225 (citing U.S.R.R. Ret Bd. v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980), which recognizes preservation of pension funds as a legitimate basis for distinguishing among pensioners). Continued depletion of the workforce through nominal privatization of municipal services would undoubtedly restrict or significantly impair the pension system’s funding sources. The preservation of funding sources is a legitimate and rational basis for concluding that, under the circumstances presented here, convention department workers performing municipal functions as CCSI employees remain members of the pension system.9 Given the long-term ramifications of concerted efforts to reduce the City’s contributions to the pension fund, any previous failure of the pension board to perceive or acknowledge a threat to pension-funding sources does not change the analysis of this issue. Cf. McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 808, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969) (“[A] legislature traditionally has been allowed to take reform ‘one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind[ ]’; and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.” (internal citation omitted)).
The pension board also has a legitimate interest in policies that lessen the risk of overpaying pensioners or allowing them to “double dip.” See, e.g., Connolly v. McCall, 254 F.3d 36, 43 (2d Cir. 2001) (per curiam) (recognizing “legitimate interest in saving money by barring pension practices that have the character of ‘double-dipping1 ”). In this case, the pension board has disallowed functional City employees from collecting government-funded HMEPS retirement benefits while also re* ceiving salaries and 401 (k) contributions originating in the dollar-for-dollar expense reimbursements CCSI collects from Houston First, the .City controlled and tax-funded local government corporation. The pension board’s decision to eliminate further demands on the public fisc is rationally related to its interest in preventing employment arrangements that permit forms of “double dipping.”
Because we conclude that any differentiation between employees is rationally related to legitimate governmental objectives, the Petitioners’ equal-protection claims fail as a matter of law.
2. Due Course of Law
In their remaining claims, the Petitioners contend they have been deprived *15of vested property rights without due process. See Tex. Const. ART I § 19; see also Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (no meaningful distinction exists between the terms “due process” and “due course of law”). Klumb, McClelland, and Montejano allege HMEPS unconstitutionally denied them retirement benefits they would otherwise have been eligible to collect after a separa-. tion of service from the City. Gonzalez, Robles, and Pilgrim were not eligible for retirement at the time they became CCSI employees, but they claim a vested property right in funds deducted from their salaries and contributed to the pension fund on their behalf. ⅝
The Texas Constitution provides that “[n]o citizen of this State shall be deprived of life, liberty, property, or privileges or immunities ... except by the due course of the law of the land.” Tex. Const. Art. I, § 19. Before any substantive or procedural due-process rights attach, however, the Petitioners must have a liberty or property interest that is entitled to constitutional protection. Than, 901 S.W.2d at 929. A constitutionally protected right must be a vested right, which is “ ‘something more than a mere expectancy based upon an anticipated continuance of an existing law.’ ” City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009, 1014 (1937) (quoting Dodge v. Bd. of Educ. of City of Chicago, 364 Ill. 547, 5 N.E.2d 84, 86 (1936)). The court of appeals held, and we agree, that the Petitioners’ due-course claims are facially invalid because the Petitioners have no vested property right to the pension-plan contributions and future retirement benefits at issue. 405 S.W.3d at 226-27.
Our decision in the City of Dallas v. Trammell is dispositive of the Petitioners’ claims to a vested property interest in retirement benefits as of the date they otherwise became eligible but for the pension board’s articulated and applied definition of the term “employee” in Article 6243h. In Trammell, we considered the constitutionality of a statutory amendment that effected a substantial reduction in the monthly pension benefits payable to a police-department retiree. Id. at 1009. The purpose of the contested enactment was to rectify inadequacies in pension-plan funding that threatened the plan’s long-term solvency. Id. at 1010, 1015-16. In challenging the statutory amendment, the retiree asserted that he had a vested property right in the amount of the monthly pension benefit that was granted to him on the date of his retirement and that any subsequent reduction of that amount was unconstitutional. Id. The question presented was whether, as of the date of retirement, a pensioner has a vested right in future installment payments that could not be altered by subsequent legislative action. Id. at 1011.
In analyzing the issue, we adopted the rule that the right of a pensioner to receive monthly payments from the pension fund after retirement from service, or after his right to participate in the fund has accrued, is predicated upon the anticipated continuance of existing laws, and is subordinate to the right of the Legislature to abolish the pension system, or diminish the accrued benefits of pensions thereunder....
Id. at 1013. Applying this rule, we said there is no vested interest in future pension installments that would preclude the Legislature from repealing or modifying the law on which the pension system is founded, even if doing so would adversely impact or even abolish the right to future payment of unaccrued benefits. Id. at 1012, 1014; see also id. 1013-15. Stated another way, the right to receive benefits under a pension fund “is made subject to *16the reserved power of the Legislature to amend, modify, or repeal the law upon which the pension system is erected, and this necessarily constitutes a qualification upon the anticipated pension and a reserved right to terminate or diminish it.” Id. at 1014. We concluded Trammell with “a direct holding that as to future installments of a pension the pensioner has no vested right,” id. at 1017, and we have since affirmed Trammell’s root analysis on several occasions. See Ex Parte Abell, 613 S.W.2d 255, 261-62 (Tex. 1981); Bd. of Managers of Harris Cnty. Hosp. Dist. v. Pension Bd., 449 S.W.2d 33, 37 (Tex. 1969); Woods v. Reilly, 147 Tex. 586, 218 S.W.2d 437, 441 (1949).
Although Trammell is directly adverse to the Petitioners’ claims, -they question Trammell’s continued vitality based on a subsequent amendment to the Texas Constitution, citing article XVI, section 67 of the Texas Constitution and City of Fort Worth v. Howerton, 149 Tex. 614, 236 S.W.2d 615, 619 (1951). According to the Petitioners, the cited authority negates legislative authority to abolish HMEPS because under section 67(c), if the Legislature were to abolish the pension system (as opposed to merely amending the statute), it would be required to pass a law authorizing the City to elect to establish a pension system for its municipal employees. See Tex. Const. Art. Xvi, .§ 67(c). Per Howerton, if the City so elected, any subsequently established pension fund would no longer be subject to legislative control. See Howerton, 236 S.W.2d at 619 (if city adopts a pension fund pursuant to constitutional authority, the Legislature is not authorized to change the plan without the city’s consent).
Obviously, certain contingencies must occur before an interest could be said to be fixed and unalterable by the Legislature as contemplated in Howerton-, the main ones being that the Legislature would have to abolish the pension system and the City would have to elect to establish a pension fund. Perhaps the City would elect to do so if given the opportunity, but even if the City were to establish its own pension system, the Petitioners cite no limit on the City’s authority to amend or abolish any such system. Thus, we are not persuaded the cited authority undermines Trammell’s core holding that no vested property right exists when a pension fund can be amended or abolished by the governing authority; it makes no difference whether the authority with the power to abolish the pension system is the Legislature or some other entity. The crux of Trammell’s analysis is that any right emanating from a mere expectancy is not vested, and the Petitioners have cited no authority elevating their interests in the pension fund beyond a mere expectancy to a constitutional guarantee. We therefore reject the distinction the Petitioners attempt to draw between Trammell and the circumstances presented here.10
Approaching the matter from a different angle, the Petitioners embrace Trammell to the extent it confirms that interests in pension benefits are fixed, and thus vested, when all contingencies to entitlement have occurred. The Petitioners contend that any contingencies to their entitlement to pension benefits were satisfied when they became eligible to retire, even though no *17separation from service occurred under Article 6243h, as interpreted by the pension board. Trammell, however, does not support the Petitioners’ contention that their retirement interests became fixed at the time of their eligibility for retirement. In fact, Trammell does the opposite, expressly holding that the plaintiff, who had already retired and had actually been receiving pension benefits, had no vested right in future installments of the same. Applying Trammell’s “direct holding,” we conclude that Klumb, McClelland, and Montejano have no vested property right in the retirement benefits at issue.
With regard to the remaining constitutional claims, we observed in Trammell that “[i]t is well settled that the mere circumstance that a part of a pension fund is made up by deductions from the agreed compensation of employees does not in itself give the pensioner a vested right in the fund, and does not make it any less a public fund subject to the control of the Legislature.” 101 S.W.2d at 1012-13. In Devon v. City of San Antonio, we relied on Trammell in declining to recognize an employee’s claimed interest in contributions to a municipal pension fund even though those contributions had been withheld from his wages. We explained there that
[t]he deductions withheld from [the employee’s] wages and paid into the pension fund never belonged to him, but remained public money used for a public purpose. They were not first segregated from the public funds so as to become [the employee’s] private property .and then paid into the pension fund; rather the deductions were “set aside from one public fund and turned over to another” and are no less public money after the payment into the pension fund than before.
443 S.W.2d 598, 600 (Tex. App.—Waco 1969, writ ref'd) (quoting Trammell, 101 S.W.2d at 1013); see also Jud v. City of San Antonio, 313 S.W.2d 903, 905 (Tex.Civ. App.—Eastland 1958, writ ref'd) (overruling “appellant’s contention that he has a vested right in contributions to the pension fund”). The same is true here. Accordingly, we conclude that Gonzalez, Robles, and Pilgrim lack a vested property right in their pension-fund contributions.
Because the Petitioners have no vested rights in the retirement benefits and pension-plan contributions at issue, we hold their pleadings conclusively negate the existence of subject-matter jurisdiction over their constitutional claims.
III. Conclusion
The Petitioners and the City failed to plead actionable ultra vires and constitutional claims against HMEPS and the Trustees. Subject-matter jurisdiction over those claims is therefore lacking as a matter of law. We therefore affirm the court of appeals’ judgment.
. Presently, only the City of Houston meets Article 6243h’s population threshold.
. Relatedly, the Petitioners and the City complain that the court -of appeals erroneously affirmed the exclusion of affidavit evidence pertaining to the Trustees' subjective intent to amend the definition of "employee.” With respect to the ultra vires claims, the threshold jurisdictional issue boils down to whether the pension board articulated an interpretation of a statutory term or altered it. This is a matter of statutory construction, which is determined as a matter of law considering the statute's plain language. See, e.g., State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Consequently, evidence of the Trustees’ subjective intent is irrelevant.
. The Petitioners and the City also allege that the pension board's definition of "employee” is ultra vires because it does not comply with section 401(a) of the Internal Revenue Code (IRC), as required by section 2(x)(2) of Article 6243h. See Tex. Rev. Civ. Stat Ann. Art. 6243h, § 2(x)(2). This argument, which derives support largely from their interpretation of a notice of "proposed rulemaking” the Internal Revenue Service (IRS) issued in November-2011, merits little analysis. See 76 FR 69172-01, 69173 & 69184-86 (2011) (stating that key components of the term "governmental plan” in section 414(d) of the IRC are *10undefined, observing that no regulations interpreting that provision exist, and proposing a "facts and circumstances" balancing test to define an entity’s status as an "agency or instrumentality of a State or political subdivision of a State" for purposes of that section). To date the proposed regulations and interpretive guidance have not been adopted by the IRS. Even assuming the Petitioners and the City have correctly interpreted the "proposed rulemaking,” an ultra vires claim cannot be premised on an alleged conflict with a regulatory scheme that has never been enacted.
. By way of example, the Petitioners complain about the board's definition of employee to the extent it includes "a full-time employee of a Texas local government corporation ... controlled by the City” and “employees of any entity controlled, directly or indirectly” by the City. That definition is not inherently incon*11sistent with the common understanding of the term "employee” as one who "works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.” Black’s Law Dictionary 639 (10th ed. 2014). Thus, reading the terms that comprise the statutory definition of “employee” through the control prism articulated by the board does not so clearly conflict with the statute as to be ultra vires.
. Although we are precluded from opining on the accuracy or reasonableness vel non of the pension board’s interpretation of the statute, we observe parenthetically that the statute provides a list of ineligible employees to whom the term "employee” might otherwise apply and, in doing so, suggests that the term is amenable to more precise articulation. See Tex. Rev. Civ Stat. Ann. Art. 6243h, § 4. The City has also acknowledged that terms used in the statute may be susceptible to more than one meaning and that the board has discretion to determine the meaning of those words. In multiple "meet and confer” agreements, the City agreed that all words used in those agreements, which included the word "employee,” would have the same meaning provided in Article 6243h "as determined by the Board” unless specially defined in the agreement.
. Another remedy available to aggrieved parties is using the elective process to alter HMEPS's governing body. See Tex. Rev. Civ. Stat. Ann. Art. 6243h, § 2(c)-(d); July 2011 MCA § 4.
. Although the Legislature has waived a local governmental entity’s sovereign immunity to suit for contracts for goods or services, the waiver does not apply here because the meet- and-confer agreement is not a contract for goods or services. See Zachy Constr. Corp. v. *13Port of Houston Auth. of Harris Cnty., 449 S.W.3d 98, 106 (Tex. 2014).
. Federal equal-protection cases are instructive with regard to equal-protection challenges under the Texas Constitution. See First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 638 (Tex. 2008).
. Petitioners contend that “the refusal to pay earned pensions to eligible former employees or insisting that former employees pay into a pension fund on which they cannot claim a pension cannot be rationally related to preserving a pension fund which has as its purpose to provide pensions for eligible former employees.” This argument presupposes eligibility and separation from service, which are matters reserved to the board’s exclusive determination. It is also based on a faulty premise. The pension fund does not have a singular purpose of paying benefits as each member becomes eligible; rather, its principal purpose is to administer the fund for the greatest benefit of all members. That purpose is imperiled if the work force becomes insufficient to subsidize the pension fund for current or future retirees.
. A different scenario might be presented if article XVI, section 66 of the Texas Constitution were applicable. That constitutional provision, which was added by amendment in 2003, expressly protects benefits under certain retirement systems from being reduced or otherwise impaired. See Tex. Const. Art. XVI, § 66. The guarantees afforded by section 66 are not implicated here because, by a three-to-one margin, City of Houston voters opted to exercise an exemption authorized by that amendment. See id. § 66(h). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283798/ | OPINION
ANN CRAWFORD McCLURE, Chief Justice.
D.W.H. appeals from a judgment denying his petition for expunction. For the ■ reasons that follow, we affirm.
FACTUAL SUMMARY
D.W.H. and the Tarrant County Criminal District Attorney’s Office submitted an agreed statement of facts to the trial court pursuant to Rule 263 of the Texas Rules of Civil Procedure. See Tex.R.Civ.P. 263. The agreed statement of facts is eighty-two pages in length and consists of a two-page statement of agreed facts and the following ten exhibits:
• Exhibit A — warrant. of arrest and search warrants
• Exhibit B — affidavit from Saginaw Officer Cupples — Arrest and Booking Report
• Exhibit C — Officer Robert Frost’s supplement and Sgt. Jim Ragles’ supplement
• Exhibit D — Officer Corey Burnett’s supplement/crime scene photo log
• Exhibit E — photos of weapons in safe
• Exhibit F — scene entry log and addi- • tional officers’ supplements
• Exhibit G — complaint and no bill
• Exhibit H — judgment
• Exhibit Í — order of surrender
• Exhibit J — pre-sentence report.
The parties agreed that this case began during the early morning hours of June 11, 2008 as a search for a missing female student, B.M. B.M.’s parents reported to the Saginaw Police Department at approximately 2:17 a.m. that their daughter was missing and her vehicle was parked in front of the residence of D.W.H., a high school teacher. The parents reported they had been suspicious of the nature of the relationship because B.M. communicated with D.W.H. frequently at'school, after school, and by phone and text messages. B.M.’s mother also told the police that she had seen her daughter inside D.W.H.’s residence through & rear window. B.M.’s parents went to the residence prior to calling the police and knocked on the door. D.W.H. answered the door while holding a rifle. Police officers went to the residence and spoke with D.W.H. but he denied that B.M. was there. He permitted the police to look for B.M. in some rooms in the house but he would not permit the police to search the bedrooms. The officers left the residence and parked down the street to maintain surveillance on the home. At approximately 6:00 a.m., B.M. exited the residence and the police officers immediately made contact with her. She initially denied having been in D.W.H.’s house. B.M. admitted during an interview later that same day she had been at the house the previous evening. She also admitted that she and D.W.H. had kissed and he had touched her breast. D.W.H., who was clothed, had an erection and rubbed against her in a simulation of sexual intercourse.
*102Based on their investigation conducted on June 11, 2008, the Saginaw Police Department obtained an arrest warrant for D.W.H. for the felony offense of improper relationship between educator and student.1 The Saginaw P.D. also obtained a search warrant for D.W.H.’s residence located in Saginaw. The police obtained additional search warrants for D.W.H.’s cell phone, laptop, and memory cards. The parties agreed that the same facts are stated in both the arrest and search warrants. The Saginaw P.D. executed the arrest and search warrants at 11:15 p.m. on June 11, 2008. While executing the search warrants at D.W.H.’s residence, the officers located two gun safes. D.W.H. permitted a search of one gun safe but not the other. On June 12, 2008, Saginaw P.D. contacted the manufacturer of the locked gun safe and obtained the pre-set combination to the safe. The officers opened the safe and found unregistered firearms, including a AR15/M16-type weapon with a shortened barrel of only twelve to fourteen inches. The Saginaw P.D. notified ATF and ATF agents were dispatched to the scene. ATF reviewed the photographs taken at D.W.H.’s home and determined that D.W.H. also possessed viable destructive device component parts and 40 mm anti-personnel projectiles which cannot be legally possessed by civilians. Based on this information, ATF obtained a search warrant for D.W.H.’s home to search for prohibited items. ATF executed the warrant on June 19, 2008 and seized additional items including 40 mm practice grenades, 40 mm anti-personnel rounds, 40 mm illumination rounds, military smoke grenades, and containers of smokeless and black powder.
The agreed statement of facts réflects that two criminal charges against D.W.H. arose out of these facts: (1) a state criminal case for the offense of improper relationship between educator and student with an offense date of June 11, 2008 (cause number 1140274 in the Criminal District Court No. 1 of Tarrant County); and (2) a federal criminal case for possession of an unregistered firearm with an offense date of June 12, 2008 (cause number 4:09-CR-022-Y in the United States District Court, Northern District of Texas, Fort Worth Division). A Tarrant County grand jury later no-billed D.W.H. on the improper relationship between educator and student charge. D.W.H. entered a plea of guilty to the federal charge and he was placed on probation.
The parties filed briefs on the issues presented by the case and requested that the trial court render judgment on the agreed statement of facts in accordance with Rule 263. The court denied the petition for expunction.
Standard of Review
Generally, an appellate court reviews a trial court’s ruling on a petition for expunction under the abuse of discretion standard. See In the Matter of the Expunction of A.G., 388 S.W.3d 759, 761 (Tex.App.-El Paso 2012, no pet.). The abuse of discretion standard of review does not apply because the parties asked the trial court to render judgment based on an agreed statement of facts pursuant to Rule 263.
Rule 263 provides:
Parties may submit matters in controversy to the court upon an agreed statement of facts filed with the clerk, upon *103which judgment shall be rendered as in other cases; and such agreed statement signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.
Tex.R.Civ.P. 263. A case tried on agreed facts is considered to have “the nature of a special verdict” and is a request by the litigants for judgment in accordance with the applicable law. Patton v. Porterfield, 411 S.W.3d 147, 153 (Tex.App.-Dallas 2013, pet. denied), citing Hutcherson v. Sovereign Camp, W.O.W., 112 Tex. 551, 251 S.W. 491 (1923); Unauthorized Practice of Law Committee v. Jansen, 816 S.W.2d 813, 814 (Tex.App.-Houston [14th Dist.] 1991, writ denied). An appellate court conclusively presumes that the parties have brought before the court all facts necessary for the presentation and adjudication of the case. Patton, 411 S.W.3d at 154, citing Cummins & Walker Oil Co. v. Smith, 814 S.W.2d 884, 886 (Tex.App.-San Antonio 1991, no writ).
The agreed facts are binding on the parties, the trial court, and the appellate court. Patton, 411 S.W.3d at 153-54; see Karam v. Brown, 407 S.W.3d 464, 475 (Tex.App.-El Paso 2013, no pet.); Markel Insurance Company v. Muzyka, 293 S.W.3d 380, 384 (Tex.App.-Fort Worth 2009, no pet.). This is in contrast with the deferential review of the facts employed under the abuse of discretion standard. The question on appeal is limited to the correctness of the trial court’s application of the law to the agreed facts. Patton, 411 S.W.3d at 154. Because this is a legal question, we review de novo whether the trial court properly applied the law to the agreed facts. Id.
FINDINGS OF FACT
D.W.H. asserts in his second issue that the trial court erred by failing to file written findings of fact and conclusions of law pursuant to Rules 296 and 297 of the Texas Rules of Civil Procedure. See Tex. R.Civ.P. 296, 297. Due to its potential impact on and relationship to the standard of review, this issue must be address before Issue One.
D.W.H. filed a request for findings and the trial court asked the parties to submit proposed findings. In its response to D.W.H.’s request for findings, the District Attorney’s Office took the position that findings of fact are inappropriate because the parties asked the court to decide the case upon an agreed statement of facts. The District Attorney’s response included several proposed conclusions of law. The trial court adopted the District Attorney’s proposed findings and conclusions. Generally, when a case is submitted to the trial court on agreed facts pursuant to Rule 263, as in this case, a trial court is not required to make written findings of fact. See Port Arthur Independent School District v. Port Arthur Teachers Association, 990 S.W.2d 955, 957 (Tex.App.-Beaumont 1999, pet. denied); Harris County Appraisal District v. Transamerica Container Leasing, Inc., 920 S.W.2d 678, 680 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Thus, the trial court did not err by refusing to make written findings of fact. Issue Two is overruled.
THE TWO OFFENSES AROSE OUT OF THE SAME TRANSACTION
In Issue One, D.W.H. contends that the trial court erred by denying his petition for expunction. The District Attorney’s Office responds that D.W.H. is not entitled to expunge the records of his arrest under Articles 55.01(a)(2) and 55.01(c) because the facts of the arrest he seeks to expunge are “bound up” with a federal offense to which he pled guilty. With respect to Article 55.01(a)(2), the District Attorney’s *104Office specifically argues that expunction is not available under the statute because Appellant pled guilty to an offense that arose from the same transaction as the no-billed offense.
Expunction is neither a constitutional nor common-law right; rather, it is a statutory privilege. In re A.G., 417 S.W.3d 652, 654 (Tex.App.-El Paso 2013, no pet.); Travis County District Attorney v. M.M., 354 S.W.3d 920, 923 (Tex.App.Austin 2011, no pet.). All provisions in a statutory cause of action are mandatory and exclusive and all conditions must be met before a person is entitled to expunction. In re A.G., 417 S.W.3d at 654. The cause of action created by the expunction statute is civil rather than criminal in nature and the burden of proving compliance with the statutory requirements is on the petitioner. Id.
The first question to be decided is which version of the expunction statute applies in this case. The parties appeared to argue in the trial court that a prior version of Article 55.01 applied, but the Legislature amended Article 55.01 in 2011 and the enabling legislation provided that the amended version of the statute “applies to an expunction of arrest records and files for any criminal offense: (1) that occurred before, on, or after the effective date [September 1, 2011] of this Act.” See Acts 2011, 82nd Leg., R.S., ch. 690, § 7, 2011 Tex.Gen.Laws 1651, 1655. Based on this language, the amended statute applies to expunction petitions filed on or after the effective date regardless of when the criminal offense occurred. See In re M.C., 412 S.W.3d 48, 54 (Tex.App.-El Paso 2013, pet. filed); Ex parte Mason, No. 05-11-00046-CV, 2013 WL 1456632, at *1 n. 1 (Tex.App.-Dallas Apr. 9, 2013, pet. denied). While D.W.H.’s arrest occurred on June 11, 2008, he filed his petition for expunction after the effective date of the 2011 amendments to Article 55.01. Thus, the 2011 version of Article 55.01 applies in this case. Article 55.01(a)(2) provides, in relevant part, that:
(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
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(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor, provided that:
(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:
(i) has not been presented against the person at any time following the arrest, and
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(c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested ....
Tex.Code Crim.Proc.Ann. art. 55.01(a)(2)(A) (West Supp.2014). D.W.H.’s burden of *105proof included a requirement that he prove an indictment or information charging him with the commission of any felony arising out of the same transaction for which he was arrested had not been presented against him at any time following the arrest. See Tex.Code Crim.Proc.Ann. art. 55.01(a)(2)(A)(i).
.Article 55.01 does not define the phrase “arising out of the same transaction.” Statutory construction is a legal question which is reviewed de novo. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 852 (Tex.2009); Montoya v. Nichirin-Flex, U.S.A., Inc., 417 S.W.3d 507, 512 (Tex.App.-El Paso 2013, no pet.). An appellate court’s primary objective in construing any statute is to determine the Legislature’s intent in enacting the particular provision, and to give that provision its intended effect. Tex.Gov’t Code Ann. § 312.005 (West 2013) (“In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the reme dy.”); McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003); Emeritus Corporation v. Blanco, 355 S.W.3d 270, 276 (Tex. App.-El Paso 2011, pet. denied). When construing a statute, a court must begin with its language. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Generally, we accept the ordinary meaning of words and phrases used in a statute unless the words and phrases have acquired a technical or particular meaning whether by legislative definition or otherwise. Tex.Gov’t Code Ann. §§ 311.011, 312.002 (West 2013); Cities of Austin, Dallas, Fort Worth & Hereford v. Southwestern Bell Telephone Company, 92 S.W.3d 434, 442 (Tex.2002). We may also consider the object to be attained by the statutes, the circumstances surrounding the statute’s enactment, legislative history, former statutory and common law, and the consequences of a particular construction. Tex.Gov’t Code Ann. § 311.023 (West 2013).
The phrase “same transaction” is used in the Penal Code’s definition of “criminal episode” which means “the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or (2) the offenses are the repeated commission of the same or similar offenses.” See Tex.Penal Code Ann. § 3.01 (West 2011). Thus, a single “criminal episode,” as defined in Section 3.01 includes the repeated commission of the same offense, any offenses committed according to a common scheme or plan, as well as all offenses that form a part of one criminal “transaction.” Cobb v. State, 85 S.W.3d 258, 266 (Tex.Crim.App.2002).
Article 55.01(c) expressly refers to the Penal Code’s definition of “criminal- episode.” See TexCode Crim.Proc.Ann. art. 55.01(c) (West Supp.2014) (“A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.”). Article 55.01(a)(2)(A) does not refer to “criminal episode.”
The Legislature used a similar phrase, “same criminal transaction,” in Section 19.03(a)(7) of the Penal Code which provides that a person commits capital murder if he murders more than one person *106during the same criminal transaction. TexPenal Code Ann. § 19.03(a)(7) (West Supp.2014). The Court of Criminal Appeals has defined the phrase “same criminal transaction” as used in Section 19.03(a)(7) as “a continuous and uninterrupted chain of conduct occurring over a very short period of time ... in a rapid sequence of unbroken events.” Williams v. State, 301 S.W.3d 675, 684 (Tex.Crim.App.2009), quoting Jackson v. State, 17 S.W.3d 664, 669 (Tex.Crim.App.2000). The phrases “criminal episode” and “same criminal transaction” as used in Section 19.03 are not synonymous. See Riemer v. State, Nos. 02-12-00613, 614, 615-CR, 2013 WL 6565057, at *3 (Tex.App.-Fort Worth 2013, no pet.).
The Legislature is presumptively aware of the statutory definition of “criminal episode” and the judicial definition of “same criminal transaction.” It chose to use neither of these phrases and instead included the phrase “arising out of the same transaction” in Article 55.01(a)(2)(A). Consequently, we conclude that the phrase used in the expunction statute must mean something different than either “criminal episode” or “same criminal transaction.”
We are required to construe the expunction statute as a whole based on its plain language. Several appellate courts have held that Chapter 55’s expunction scheme is arrest-based and expunction is not available for individual offenses arising from one arrest when the person is convicted of one offense arising out of the arrest. See S.J. v. State, 438 S.W.3d 838, 842-43 (Tex.App.-Fort Worth 2014, no pet.); Texas Department of Public Safety v. Dicken, 415 S.W.3d 476, 477-78 (Tex.App.-San Antonio 2013, no pet.); Travis County District Attorney v. M.M., 354 S.W.3d 920, 926-27 (Tex.App.-Austin 2011, no pet.).
In Dicken, the petitioner was arrested for and later charged with driving while intoxicated and felony possession of a controlled substance. Dicken, 415 S.W.3d at 478. Dicken pled guilty to DWI and the possession offense was dismissed as part of the plea bargain. Id. Dicken sought and obtained expunction of the records related to the possession 'offense. Id. The San Antonio Court of Appeals rejected Diek-eris argument that Article 55.01 is offense-based, and therefore, individual offenses are divisible for purposes of expunction. Dicken, 415 S.W.3d at 479. The court of appeals held that the plain language of Article 55.01(a)(2) requires a court to expunge all records and files relating to the arrest when there was no final conviction and no court-ordered community supervision, and it does not permit expunction of individual offenses stemming from the arrest. Id. at 479-80.
In M.M., the petitioner was pulled over for traffic violations but refused to perform the field sobriety tests and resisted arrest when the officer placed her under arrest. M.M., 354 S.W.3d at 921-22. She was charged by indictment with assault of a public servant, DWI, and resisting arrest. Id. at 922. M.M. entered a no contest plea to resisting arrest. Id. As part of the plea bargain, the State abandoned the DWI charge and the felony assault of a public servant was taken into consideration pursuant to Section 12.45 of the Penal Code. Id. M.M. subsequently obtained an ex-punction of the DWI and assault of a public servant charges arising from the same arrest. M.M., 354 S.W.3d at 922. The Austin Court of Appeals held that expunction was not available for the records related to these two charges. M.M., 354 S.W.3d at 923-24. It rejected M.M.’s argument that the unit of expunction is the criminal conduct that forms the basis for a criminal charge, not the criminal conduct that forms the basis for an arrest, which could include several separate criminal *107charges. Id. at 924. Additionally, the court was not persuaded by M.M.’s assertion that the Legislature’s use of the term “the arrest” refers to each charge arising from the arrest, and therefore, her DWI and assault charges could be divorced from the resisting arrest charge and individually expunged. M.M., 354 S.W.3d at 924. Based on the plain language of the expunction statute, the court concluded that the statute only speaks to expunging the records relating to an arrest, not to individual records relating to a charge arising from an arrest. Id.
The Fort Worth Court of Appeals likewise held in S.J. v. State, 438 S.W.3d at 843-44, that Article 55.01 is arrest-based, and therefore, individual charges arising from an arrest are not subject to expunction. Id. This decision is significant because we are required to decide this transfer case in accordance with the precedent of the Second Court of Appeals by Tex. R.App.P. 41.3. Under S.J. and the cases on which it relies, D.W.H. is not entitled to an expunction of any individual charges arising out of his arrest for improper relationship between an educator and student..
The agreed facts establish that the federal weapons charge arises directly out of Appellant’s arrest for improper relationship between an educator and student. The Saginaw P.D. received a report from B.M.’s parents that their daughter was missing and they had found her vehicle in front of D.W.H.’s residence. They had been suspicious of the relationship between D.W.H. and their daughter due to the frequency of their contact both during and after school. When B.M.’s parents went to D.W.H.’s home to locate B.M., D.W.H. opened the door while holding a rifle. He also refused to let police officers look in the bedrooms of his home for B.M. Despite D.W.H. repeatedly denying to the parents and police that B.M. was in his home, police officers observed her exit the residence at 6:00 a.m. on the morning of June 11, 2008, and she told them that she had been in the home that evening. She also admitted that D.W.H. had kissed her and touched her breast while engaging in other inappropriate physical contact with her. Based on the facts gathered during their investigation, the police officers obtained an arrest warrant for D.W.H. and search warrants for his home, a computer, and memory cards. Those warrants were executed at 11:15 p.m. that same evening, but the officers were not able to open one of the gun safes until the following day, June 12, 2008. They found prohibited weapons inside of that gun safe. At that point, ATF became involved in the case and D.W.H. was later convicted of possessing an unregistered weapon.
Under Article 55.01(a)(2)(A), it was D.W.H.’s burden to prove that the federal weapons charge did not arise out of his arrest on June 11, 2008 for improper relationship between an educator and student. The evidence demonstrates that the unregistered firearms were discovered in D.W.H.’s home as a direct result of the officers executing search warrants related to the state charge. We find that the agreed evidence demonstrates that D.W.H.’s charge and conviction of possessing illegal firearms arises out of the same transaction as his arrest for improper relationship between educator and student. Consequently, D.W.H. failed to establish that an indictment or information charging him with the commission of any felony arising out of the same transaction for which he was arrested has not been presented against him at any time following the June 11, 2008 arrest. This showing is an essential element of a cause of action for expunction. Because D.W.H. failed to carry his burden of proof under Article 55.01(a)(2)(A) and the agreed facts show *108that the two offenses arise out of the same transaction, we conclude that the trial court did not abuse its discretion by denying D.W.H.’s petition. Issue One is overruled. Having overruled both issues, the judgment of the trial court is affirmed.
RODRIGUEZ, J. (Dissenting).
. Tex.Penal Code Ann. § 21.12(a)(l)(West Supp.2014) ("An employee of a public or private primary or secondary school commits an offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works”). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283799/ | YVONNE T. RODRIGUEZ, Justice,
dissenting.
I respectfully dissent because D.W.H.’s arrest of the possession of the unregistered firearm did not directly arise from his arrest of an improper relationship between educator and student. The facts demonstrate D.W.H.’s arrests were not part of the same transaction, and I believe, are too attenuated to be related and thereby, cannot bar the expunetion.
FACTUAL AND PROCEDURAL BACKGROUND
This case began in the early morning hours of June 11, 2008 when the parents of B.M.1, a seventeen-year-old student, called the Saginaw Police Department to report B.M. was missing. The parents also informed the officers “they had made contact with [D.W.H.], who had opened the door while holding a rifle ... [and] told them [B.M:] was not there.”
That evening, police officers obtained and executed a warrant for D.W.H.’s arrest and a warrant to seize certain items from his home. While executing the search warrant, police officers encountered two safes in D.W.H.’s bedroom. The next day, police officers opened one of the safes and discovered, among other items, an inert hand grenade and a “short barrel, fully automatic” “AR15/M16 style weapon” “illegal to possess under federal law without federal registration or licensing.” Officers suspended their search and contacted the Bureau of Alcohol, Tobacco, and Firearms (hereinafter, “ATF”). During ATF’s investigation, agents seized the items in the safe and additional contraband from D.W.H.’s home.
D.W.H. was charged with two separate offenses under state and federal law stemming from these events. The Tarrant County Criminal District Attorney (hereinafter, “District Attorney”) charged D.W.H. with the offense of improper relationship between an educator and student. This complaint, however, was ultimately no-billed by the grand jury eight months later on February 12, 2009. The United States Attorney’s Office subsequently charged D.W.H. with the offense of possession of an unregistered firearm on February 23, 2009. D.W.H. pled guilty to the federal offense, and he was placed on probation.
Applicable Law
The right to an expunetion is a statutory right, and a petitioner is entitled to ex-punction only when all of the statutory conditions have been met. S.J. v. State, 438 S.W.3d 838, 841 (Tex.App.-Fort Worth 2014, no pet.); In re A.G., 388 S.W.3d 759, 761 (Tex.App.-El Paso 2012, no pet.). If the petitioner meets his evidentiary burden, the trial court must grant the expunction petition. In re A.G., 388 S.W.3d at 761.
D.W.H. sought expunetion under Article 55.01(a)(2) of the Texas Code of Criminal Procedure. This statute provides, in relevant part, that:
(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
*109[[Image here]]
(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense^ unless the offense is a Class C misdemeanor, provided that:
(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:
(i) has not been presented against the person at any time following the arrest, and:
[[Image here]]
(c) at least three ■ years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested .... [Emphasis added].
Tex.Code Crim.Proc.Ann. art. 55.01(a)(2)(A) (West Supp.2014).
Discussion
The question on appeal is whether D.W.H. proved the information charging him with possession of an unregistered firearm did not arise from the same transaction as his arrest for having an improper relationship with B.M. D.W.H. argues “the two offenses cannot be part of the same ‘transaction’ just because they were both connected with the same ‘investigation.’ ” I agree.
The phrase “same transaction” is not defined in Article 55.01 or, for that matter, in any other provision of Chapter 55 of the Code — the expunction statute. Where the legislature has not defined a term, it is within the province of the courts to construe its meaning, and in construing a statute, a court’s primary objective is to determine and give effect- to the legislature’s intent.2 S.J., 438 S.W.3d at 843. To discern that intent, we look at the statutory language first, interpreting words and phrases in accordance, with their ordinary or natural meaning in the context in which they arise and in the context of the whole statute rather than their isolated provisions. Id. This principle of statutory constitution has been adopted by the Code of Criminal Procedure. See Tex.Code Crim. Proc.Ann. art. 3.01 (West 2005) (“All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specifically defined.”). More importantly, the phrase “same transaction” used elsewhere in the Code — Article 28.061—has been judicially defined. See Kalish v. State, 662 S.W.2d 595 (Tex.Crim.App.1983).
“In construing a statutory word or phrase, the court may take into consideration the meaning of the same or similar language used elsewhere in the act or in another act of similar nature.” L & M-Surco Mfg., Inc. v. Winn Tile Co., 580 S.W.2d 920, 926 (Tex.Civ.App.-Tyler 1979, writ dism’d). “Where the same or a simi*110lar term is used in the same connection in different statutes, it will be given the same meaning in one that it has in another, unless there is something to indicate that a different meaning was intended.” Id. “This rule applies with particular force where the meaning of a word as used in one act is clear or has been judicially determined, and the same word is subsequently used in another act pertaining to the same subject.” Id.
In Kalish, the court considered whether the separate offenses of public intoxication and possession of cocaine “arose out of the same transaction” for purposes of the Speedy Trial Act. There, the defendant was charged with these offenses following a traffic stop but succeeded in having the intoxication charge dismissed. Kalish, 662 S.W.2d at 597. Invoking the version of Article 28.061 applicable then,3 the defendant moved to set aside the possession charge on the basis that his discharge from the intoxication charge barred the State from prosecuting him on the possession charge because that offense “arfóse] out of the same transaction.” Id. at 596 n. 1, 597. The trial court denied the motion, and the court of appeals affirmed the defendant’s conviction, concluding that the two offenses “were not of the same transaction.” Id. at 597.
The court disagreed:
We hold that when a person is ... taken into custody by a peace officer, all such chargeable voluntary conduct in which the person was then and there engaged, constituting an offense continuing in nature, arises out of the same transaction. Accordingly, given the facts and circumstances ... we find that offense of possession of cocaine and the offense of public intoxication, being committed contemporaneously by appellant, were of the same transaction.
Id. at 600. The court reached this result based on its conclusion that possession is similar to public intoxication in that each “becomes a criminal transaction when one is found in that condition.” Kalish, 662 S.W.2d at 600. The rationale underlying the court’s conclusion suggests a broad rule that not all criminal charges arise from an arrest if the offenses become criminal transactions at discrete moments in time not connected temporally:
All criminal offenses involve voluntarily engaging in conduct, including an act, an omission, or possession ... and acts are manifested by a bodily movement ... whereas a voluntary ‘act’ of possession is something distinct from both act and omission.... When one voluntarily engages in criminal conduct consisting of a bodily movement, generally it produces a ‘victim’ and thus becomes a transaction. That kind of criminal
*111transaction terminates with cessation of conduct — ordinarily in a relatively brief period of time. However, an ‘act’ of possession is usually ‘victimless,’ and is not considered a criminal transaction until it is discerned or discovered by another, ordinarily upon arrest, search or seizure ....
Id., internal citations and footnotes omitted.
Based on the principles of statutory construction articulated above and the rationale underlying the result in Kalish, I would conclude the federal offense of possession of an unregistered firearm did not “arise out of the same transaction” for which D.W.H. was arrested. It is clear that when B.M. visited with D.W.H. at his home overnight, this “act” became the criminal transaction involving the offense of an improper relationship between teacher and student. The transaction terminated shortly thereafter when D.W.H. ceased his conduct. Conversely, it is clear that when D.W.H. was arrested, the “act” of possessing an unregistered firearm had not yet ripened into criminal transaction because the firearm was not found in its unregistered state until it was seized the next day by ATF agents. Moreover, the agreed facts do not establish that the “rifle” D.W.H. displayed to B.M.’s parents was the unregistered weapon. Thus, given the differences in the nature of the voluntary conduct underlying each “act,” the two acts are distinct from each other and became criminal transactions at discrete moments in time not connected temporally. In other words, both offenses were not complete at the time of the arrest. Accordingly, the criminal charges stemming from D.W.H.’s arrest were not of the same transaction.
My conclusion comports with the plain, grammatical meaning of the term “transaction,” “a word of flexible meaning.” Moore v. New York Cotton Exch., 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750 (1926) (defining “transaction” in the context of a compulsory counterclaim). The dictionary defines “transaction” as “2 a: an act, process, or instance of transacting b: a communicative action or activity involving two parties or things that reciprocally affect or influence each other.” Mer-riamWebster’s Collegiate Dictionary 1327 (11th ed. 2003). “Transact,” in turn, is a transitive verb meaning “to carry to completion.” Id. Thus, in common acceptation, the term “transaction” in the phrase “a felony charge [or offense] arising out of the same transaction for which the person was arrested” must be understood to mean an act, process, or instance of carrying to completion a criminal offense at the time of arrest.
My conclusion likewise comports with the expunction statute’s salutary purpose, a factor we may consider in ascertaining the legislature’s intent. See Tex.Gov’t Code Ann. § 311.023 (West 2013). The traditional and primary purpose of the ex-punction statute is to allow persons to remove arrest records related to wrongful charges. S.J., 438 S.W.3d at 843. The statute’s salutary effect, like that of the statutory provision in issue in Kalish, depends on the nexus between the arrest and the offenses arising from it. Under Article 28.061, the failure to provide a speedy trial for one offense bars prosecution for all offenses arising out of the same transaction. Under Article 55.01(a)(2)(A), the presentment of a charging instrument for a felony offense arising out of the same transaction for which the person was arrested bars expunction of all records related to the arrest. Thus, in concluding that the criminal charges stemming from D.W.H.’s arrest were not of the same transaction because both offenses were not complete at the time of the arrest, I be*112lieve we would adhere to the expunction statute’s arrest-based scheme.4 S.J., 438 S.W.3d at 844-46 (concluding expunction statute’s scheme is arrest-based rather than offense-based and, consequently, does not permit expunction of individual offenses stemming from an arrest); Tex. Dep’t of Pub. Safety v. Dicken, 415 S.W.3d 476, 479-80 (Tex.App.-San Antonio 2013, no pet.) (same); Travis Cnty. Dist. Attorney v. M.M., 354 S.W.3d 920, 924, 927 (Tex.App.-Austin 2011, no pet.) (same).
The District Attorney asserts the two offenses arose out of the same transaction because they were the offspring of the same investigation. But the District Attorney cites no authority, and I have found none, for the proposition that criminal offenses arise out of the same transaction for which a person is arrested if the nexus between or among the offenses is evidence for each underlying offense discovered in the same investigation. By advancing this argument, the District Attorney, in essence, is urging us to adopt a multi-trans-action, offense-based approach. To adopt that approach in my view would render meaningless the arrest-based, same transaction construction of the expunction statute and lead to absurd results that the legislature could not possibly have intended. See Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex.2004) (noting that when statutory text is unambiguous, courts must adopt the interpretation supported by the statute’s plain language unless that interpretation would lead to absurd results).
The District Attorney also asserts D.W.H. failed to prove Article 55.01(c) did not bar an expunction under these circumstances. See Tex.Code CrimProcAnn. art. 55.01 (c)(West Supp.2014) (barring the ex-punction of records where a person is acquitted for an offense and still “remains subject to prosecution” for at least one other offense committed during the same “criminal episode,” as defined by Section 3.01 of the Texas Penal Code).
“A single ‘criminal episode,’ as defined in Penal Code section 3.01, includes the repeated commission of the same offense, any offenses committed according to a common scheme or plan, as well as all offenses that form a part of one criminal ‘transaction.’ ” Cobb v. State, 85 S.W.3d 258, 266 (Tex.Crim.App.2002), cert. denied, 537 U.S. 1195, 123 S.Ct. 1256, 154 L.Ed.2d 1032 (2003) (citing TexPenal Code Ann. § 3.01 (West Supp.2014)). A “criminal transaction,” on the other hand, is “a continuous and uninterrupted chain of conduct occurring over a very short period of time ... in a rapid sequence of unbroken events.” Smith v. State, 297 S.W.3d 260, 275 (Tex.Crim.App.2009), cert. denied, 559 U.S. 975, 130 S.Ct. 1689, 176 L.Ed.2d 186 (2010) (internal citations and quotation marks omitted). Clearly, the events in this case cannot be categorized as the same or similar offense or offenses committed to a common scheme or plan. Nor can they be rightfully considered as one continuous and uninterrupted chain of conduct occurring over a very short period of time in a rapid sequence of unbroken events. The two acts were of a different nature, were separated by more than 24 hours, and — if linked in any manner — were interrupted by D.W.H.’s arrest.
Nonetheless, the District attorney maintains “the offenses were part of one ‘connected’ ‘transaction’ as explained in [Section 3.01]” “[b]ecause of the interlaced nature of the investigation.” But the *113premise for this argument, ie., that offenses connected by a single investigation comprise a criminal transaction, is the same one the District Attorney, I believe, erroneously relied on in arguing that ex-punction was unavailable under Article 55.01(a)(2)(A). Accordingly, I would reject the State’s argument for the reasons identified above in my discussion of Article 55.01(a)(2)(A).
In an alternate argument, the District Attorney claims D.W.H. “wants nothing less than the purging of arrest records which resulted in, and were inextricably entwined with, a federal weapons conviction.” According to the District Attorney, “[t]he expunction statute simply does not contemplate the eradication of arrest records when those records are at the heart of a federal investigation,.federal criminal offense, and conviction in federal court.” I agree expunction is unavailable when “it is apparent' that the dismissed and pled-to charges relate to a single instance of criminal conduct .... ” S.J., 438 S.W.3d at 846. But the charges here do not relate to á single instance of criminal conduct. I would find that expunction is therefore not precluded under the facts of this case.
In light of the foregoing, I would sustain Appellant’s first issue and find D.W.H. has shown he is entitled to expunction under Article 55.01.
. B.M. is a pseudonym.
. Statutory construction is a question of law subject to de novo review. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.2009);' Mon- ■ toya v. Nichirin-Flex, U.S.A., Inc., 417 S.W.3d 507, 512 (Tex.App.-El Paso 2013, no pet.).
. At that time, Article 28.061 provided that:
If a motion to set aside an indictment information, or complaint for failure to provide a speedy trial as required by Article 32A.02 is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged or for any other offense arising out of the same transaction.
Act of June 16, 1977, 65th Leg., R.S., ch. 787, § 4, 1977 Tex.Gen.Laws 1970, 1972. In its current incarnation, Article 28.061 provides that:
If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute.
Tex.Code CrimProcAnn. art. 28.061 (West 2006).
. A person is arrested when he is “actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.” Tex.Code Crim.Proc.Ann. art. 15.22 (West 2005). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283800/ | OPINION OF THE COURT BY
CHIEF JUSTICE MINTON
Süd-Chemie discharged Joseph E. To-ler, a veteran managerial employee, after coworkers reported he made racist comments in the workplace. Toler then sued Süd-Chemie and the coworkers for defamation. After Toler presented his evidence at trial, the trial court directed a verdict for Süd-Chemie and one of the coworkers, citing a qualified privilege to defamation. As for Toler’s claims against the remaining coworkers, the jury ultimately returned a verdict in the coworkers’ favor because either the statements made about Toler were true or they were not made with malice.
Toler appealed the resulting judgment, alleging the trial court erred by granting the directed verdict and by instructing the jury improperly. The Court of Appeals affirmed the jury’s verdict, finding no error in the jury instructions, but reversed the directed verdict. Despite acknowledging that Süd-Chemie was entitled to the protection of a qualified privilege, the Court of Appeals, in essence, held that a plaintiff is only required to present a pri-ma facie defamation case to overcome the qualified privilege and survive a motion for directed verdict.
Both sides petitioned for discretionary review of the opinion of the Court of Appeals, which we granted in order to clarify how the qualified privilege applies under our defamation law. We now reverse the opinion of the Court of Appeals, in part, and affirm it, in part. In reversing, we hold that a plaintiff in a defamation action opposing a directed-verdiet motion made by a defendant claiming a qualified privilege must produce some evidence of the defendant’s actual malice to survive a directed verdict. In affirming, we hold that the present jury instructions, while perhaps deficient, sufficiently framed for the jury’s factual determination the law applicable to the case; and the jury’s verdict is sound.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Süd-Chemie1 manufactures catalysts used in various chemical operations. Toler began working for the company — then operating under a different name — in 1976 at its southern Louisville plant, one of two it operates in the area. After nearly 25 years of employment with the Company, Toler was promoted to a supervisorial role, managing the plant’s night shift from 6:30 p.m. to 3:30 a.m. By all accounts, Toler excelled at his role in management until the incidents that are the subject of this litigation.
The Company’s human resources director, Scott Hinrichs, received reports from some employees2 regarding Toler’s *281use of racist language in the workplace. Perhaps highlighting the obvious, Toler’s statements were rather offensive. And Hinrichs was duty-bound under Company policy to investigate any reports of racist language, because the Company had a zero-tolerance standard concerning the use of such language in the workplace.3 Accordingly, Hinrichs reviewed the written reports submitted by the employees and then sat down with each employee to discuss the allegations.
During this investigation, the employees all acknowledged and affirmed the written statement submitted to Hinrichs. Going further, the employees were unequivocal in confirming Toler had indeed uttered the offensive statements. Hinrichs, along with the Company’s plant manager, then met with Toler to receive his side of the story. At the meeting, Toler was provided with the names of the employees as well as the nature of the accusations levied against him. By Toler’s account, he was not provided with the employees’ actual written statements until the pretrial discovery process. Toler denied making such statements in the workplace4 and, in an attempt to explain the employees’ motive, alleged he was the target of a “union gang-up” as a result of his disagreement with another employee named Allen Trice.
The disagreement with Trice, an African-American5 employee working under Toler, stemmed from an incident in which Trice allegedly failed to follow Toler’s instruction. As a result, Toler, acting within the Company’s protocol, sent Trice home. In the end, the Company terminated Trice’s employment. A short time after Trice’s termination, Trice filed a racial-discrimination claim with the Equal Employment Opportunity Commission. As it happens, the Company learned of Trice’s EEOC complaint the day after it received the employees’ written statements about Toler.6 Members of the local workers’ union, according to Toler, became upset with him over his handling of Trice. For each of the complaining employees, Toler provided an account of a disagreement that, in his view, essentially prompted a vendetta aimed at ousting him as a supervisor. The Company terminated Toler’s employment the day after his meeting with Hinrichs and the Company’s plant manager. Toler then filed the present case, arguing the employees had fabricated the allegations resulting in his termination and, as a result, had defamed him.
II. ANALYSIS.
An outline of defamation law, especially the role of qualified privilege, is useful in providing context for our holding. The requisite elements for a defamation7 *282claim are: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication[8] to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.”9 As we have repeatedly stated, “words are said to be actionable per se when there is a conclusive presumption of both malice and damage.”10 One example of this per se classification is a communication involving false allegations of unfitness to perform a job, such as here. If a communication can be labeled per se defamatory, “recovery is permitted without proof of special damages because injury to reputation is presumed and the words are actionable on their face.” 11
In certain circumstances, however, otherwise defamatory-per-se communications are allowed because the societal interest in the unrestricted flow of communication is greater than the private interest.12 Specifically, we have recognized a privilege for individuals communicating “where the communication is one in which the party has an interest and it is made to another having a corresponding inter-*283est.” 13 Our case law has routinely applied this common-interest application of a qualified privilege to the employment context.14 There is no dispute here that the Company and the employees operate under our recognized qualified privilege; but more than that, there can be no dispute because our law is clear.15
What, then, is the impact of the qualified privilege on a plaintiffs claim of defamation per se? With defamation’s confusing jargon, we have spilled much ink attempting to gain a clearer understanding of the qualified privilege and its role, seemingly to no avail. Ordinarily, because the law does not presume an individual’s misconduct, the falsity of defamatory statements is presumed.16 In addition, malice is presumed in the defamatory-per-se context. The qualified privilege, however, negates this presumption. The result: “false and defamatory statements will not give rise to a cause of action unless maliciously uttered”17; or, perhaps better stated, despite the law’s presumption of malice “where publications are [defamatory] per se, yet where the publication is made under circumstance disclosing qualified privileges, it is relieved of that presumption and the burden is on the plaintiff to prove actual malice.”18
The qualified privilege is just that: qualified. Not an absolute defense, the privilege’s protection can be lost through unreasonable actions amounting to abuse. Indeed, the party asserting a qualified privilege may still be responsible for falsehoods if both actual malice and falsity are affirmatively shown.19 The qualified privilege operates to allow defendants the necessary latitude to communicate freely while maintaining accountability when the defendant operates outside of or contrary to the privilege. In this context, accordingly, actual malice refers to “malice in fact” — read: malevolence or ill will.20 A defendant who enjoys the quali*284fied privilege may make defamatory statements, “unless maliciously uttered.”21 Our case law and the relevant treatises— by focusing on the utterance of the defamatory statement rather than its veracity— evidence this distinction.22 With the qualified privilege, it is not so much what was said as it is how it was said. After all, the qualified privilege will provide protection despite a statement’s falsity, assuming, of course, the privilege is not abused.
Abuse of the qualified privilege may be shown in a several ways, some indicating ill will or maliciousness more directly than others. These include: (1) “the publisher’s knowledge or reckless disregard as to the falsity of the defamatory matter”; (2) the “publication of the defamatory matter for some improper purpose”; (3) “excessive publication”; or (4) “the publication of defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged.”23
The burden of showing such abuse of privilege is the plaintiffs.24 Indeed, “it [] falls upon plaintiff to defeat this defense by a showing that either there was no.privilege under the circumstances or that it had been abused.”25 Summary judgment and directed verdict remain viable options, of course. With regard to the former, “[i]f the plaintiff fails to adduce such evidence sufficient to create a genuine issue of fact, qualified privilege remains purely a question of law under the summary judgment standard.”26 As for the latter, a “directed verdict in [defendant’s] favor would be appropriate despite' [plaintiffs] prima facie case of defamation per se if the jury could not have reasonably found both that the statements in question were false and that [the deten*285dant] had [lost] any claim of privilege through abuse [or] malice.”27 To defeat a summary judgment or directed verdict motion, a party must, in essence, present the same amount of proof required if there was no privilege.
With that understanding firmly in place, we move to the specifics of the arguments presented.
A. Directed Verdict in Favor of the Company was Appropriate.
Our directed-verdict standard of review is well settled. First of all, when presented with a motion for directed verdict, a trial court “must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion.”28 As a reviewing court, we “must ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party.”29
It is the province of the jury, of course, to weigh the evidence, but a directed verdict is appropriate “where there is no evidence of probative value to support an opposite result” because “[t]he jury may not be permitted to reach a verdict upon speculation or conjecture.”30 The judgment of the trial court in such matters will only be substituted when clearly erroneous.31 In the end, a trial court should only grant a directed verdict when “there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ.”32
In sum, the Court of Appeals relied heavily on our Stringer decision to reach a conclusion where, for all intents and purposes, the plaintiffs mere assertion of falsity is sufficient to defeat a qualified-privilege defendant’s directed-verdict motion. Stringer does stand for the proposition that, generally speaking, the determination of whether a defendant abused its qualified privilege is a question of fact properly reserved for the jury. That said, Stringer in no way alters the proof required for a party opposing a' directed verdict motion — Toler in this case — to be .successful in that opposition. Not only is the analysis undertaken by the Court of Appeals incorrect, it is especially curious in light of a published decision of that court in another opinion rendered on the same day as its opinion in the present case. That other case, Harstad v. Whiteman,33 is a thorough, accurate review of our case law and the proper analytical approach to qualified-privilege defamation cases.
The Court of Appeals, in Harstad, made a number of important observations regarding the burden of proof carried by the plaintiff in a defamation case involving the qualified privilege. Unlike the instant action, Harstad involved a motion for summary judgment rather than directed verdict. Despite this slight factual distinction, the principles outlined in Harstad apply with equal force here. In the words of the Harstad Court:
“It was Harstad’s burden to present some evidence that would incline a reasonable person to believe that Lowe’s *286perception was not simply the product of mistaken observation, but the result of malice, i.e., some evidence that Lowe knew she was lying or making wholly unfounded statements without regard to their truth or falsity.”34
In the instant case, Toler simply has not presented any evidence indicating the Company’s malicious publication. To be sure, Toler weaves a dramatic narrative filled with collusion and rumor. But simply alleging union retaliation without any further proof cannot support a jury verdict against the Company, and, therefore, cannot defeat its directed-verdict motion. The majority of Toler’s allegations revolve around the retaliatory motivations of the employees in publishing the statements to the Company, rather than any maliciousness behind the Company’s publication during the meeting with Toler.
The Company, on the other hand, acted prudently within the scope of its qualified privilege by investigating the claims levied against Toler, meeting with Toler to discuss the claims, and simply enforcing a well-known, understood, and reasonable corporate policy of not permitting such offensive statements in the workplace. Toler presents no evidence that the Company excessively published the material or otherwise abused its privilege. Instead, this case presents a paradigmatic example of why the qualified privilege is recognized: society benefits when employers, or others who share common interests, are permitted to discuss matters freely, even if those discussions are found to be based on erroneous beliefs or misinformation.
Finally, Toler’s argument fails because merely alleging falsity is not enough to defeat a directed-verdict motion based on the qualified privilege. As the Harstad Court noted, “[e]ven were we to conclude that each of these inconsistencies was both material and indicative of a specific falsehood, we could not reasonably conclude from them falsity alone that they were malicious utterances as opposed to mistaken observations.”35 We are in much the same position with Toler’s claims. And Toler “was required to do more than assert that these statements were false; people are sometimes wrong without even suspecting it.”36 The qualified privilege, it should be remembered, requires evidence of malice in fact, i.e. actual malice, and “not every erroneous statement is expressed with malice.”37
Our law has long permitted an inference of malice from the mere falsity of the alleged defamatory statements. We, of course, made mention of this in Stringer, granted, that mention was merely a stray quotation from an antiquated case in the conclusion of our analysis.38 Given that the qualified privilege, “if applicable, protects one’s erroneous belief[,]”39 inferring malice from the mere falsity of the statement makes little sense. Repeatedly, it has been stated that the qualified privilege permits a defendant to “make a statement about another party even though it *287was defamatory, so long as he was making the statement to protect certain defined interests and he did not abuse the privilege.”40 We can acknowledge that this notion of inferring malice was prevalent in the initial development of our defamation law;41 but the concept seems outdated in light of the law’s departure from, practically speaking, strict liability and the burden of proof now associated with not only the qualified privilege, but defamation in general.42 To the extent that Stringer stands for a perpetuation of allowing the mere allegation of falsity to permit an inference of malice, it is overruled. Within its scope, the qualified privilege permits defamatory statements. After all, defame means “to make & false statement about someone to a third person in such a way as to harm the reputation of the person spoken of.”43 As a result, any statement in Stringer to the contrary notwithstanding, both malice and falsity must be shown for a plaintiff to overcome the qualified privilege. Here, even if we assume Toler proved the falsity of the statements — perhaps a large assumption — he failed to prove any degree of malice.
The crux of our decision today is consistent with our holding in Stringer. It is worth reiterating Stringer’s declaration that “a directed verdict in [the Company’s] favor would be appropriate despite [a] pri-ma facie case of defamation per se if the jury could not have reasonably found both that the statements in question were false and that ... any claim of privilege through abuse and/or malice” was lost.44 This is exactly the situation today. Toler presents a per se defamation case, but his claim wilts in the face of the Company’s qualified privilege because Toler has thus far been unable to present evidence to support a finding the Company acted maliciously toward him.
The abuse-of-privilege question typically is one for the jury, as are a great many determinations in tort law. But the submission of the question to the jury is not automatic. A jury is entitled to draw all reasonable inferences from the evidence, but when insufficient evidence is presented to enable a jury to infer an issue “in accordance with reason or sound thinking and within the bounds of common sense without regard to extremes or excess” a reasonable inference cannot be drawn.45 In other words, providing evidence permitting a jury to perform mere guesswork — “making a judgment without adequate information, or to conjecture, or to speculate[ ]”46 — does not defeat a directed-verdict motion.
The trial court’s directed verdict was appropriate. Any finding of malice on the Company’s part would have been nothing more than conjecture or speculation. The Company’s qualified privilege may not *288have raised the technical burden on Toler, but, certainly, like any plaintiff opposing directed verdict, Toler was required to put forth evidence sufficient to support a jury verdict founded on reason rather than emotion or prejudice. On appeal, furthermore, .we are obligated to “ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party[.]”47 Evidence of the Company’s malicious publication is simply nonexistent. The trial court was not clearly erroneous in granting the Company’s motion for a directed verdict.
B. The Jury Instructions Were an Acceptable Statement of the Law.
Toler’s ’ final argument seems to be hinged on a fundamental misunderstanding of malice in the context of defamation. Indeed, the vast majority of Toler’s briefing to this Court is spent on attempting to distinguish what he terms “actual malice” from — again his words — “constitutional actual malice.” This attempt not only rings hollow, but mischaracterizes the nature and purpose of our long-recognized qualified privilege for defamatory statements.
On appeal, we consider allegations of erroneous jury instructions as questions of law to be reviewed under a de novo standard. Instructions must, of course, “be based upon the evidence[,] and they must properly and intelligibly state the law.”48 Generally, the rule is “an erroneous instruction is presumed to be prejudicial to appellant, and the burden is on appellee to show affirmatively from the record that no prejudice resulted[.]”49 We only reverse if we “cannot determine from the record that the verdict was not influenced by the erroneous instruction.”50 That said, “[i]f the statements of law contained in the instructions are substantially correct, they will not be condemned, as prejudicial unless they are calculated to mislead the jury.”51
Long before the Supreme Court ruled in New York Times v. Sullivan52 that a claim for defamation involving a public figure required proof of actual malice, our case law was clear that the qualified privilege required actual malice. Even as early as 1883, we recognized it is “well settled” that a plaintiff must show the defendant acted maliciously to defeat a claim of privilege.53 And, as early as 1910, we approved of jury instructions defining, as the present jury instructions did, actual malice to include reckless disregard.54 We highlight this to point out that actual malice is not a new *289concept in the law and Sullivan did little to change its application outside of raising the standard of proof in public-figure eases to clear-and-eonvincing evidence.
If anything, the jury instructions were clumsily arranged.55 This clumsy arrangement did not, however, misstate the law in any substantial manner nor was it calculated to mislead the jury. The jury instructions required the jury to find actual malice, which as we detailed earlier is, in this context, simply malice in fact. The definition of actual malice in the instructions is entirely in line with this view:
To prove ‘actual malice,’ a Plaintiff must prove that the speaker either (1) knew the statement was false at the time it was made or (2) acted with ‘reckless disregard’ as to whether the statement was true or false. ‘Reckless disregard’ means the speaker either (1) entertained serious doubts as to the truth or falsity of the statements or (2) had a high degree of awareness as to whether the statement was probably false.
Based on what we have stated in this opinion, we are unable to find this instruction qualifies as a substantial misstatement of the applicable law. It is entirely accurate that Toler was required to show the employees, in publishing the statements to the Company, acted with actual malice toward Toler in order to overcome the qualified privilege. The instruction accurately defines actual malice for defamation purposes. In point of fact, the instruction essentially parrots the language of the Restatement (Second) of Torts § 600 Comment b, an invaluable resource that has been repeatedly cited and relied on throughout the development of our defamation case law.56
Of course, abuse of the qualified privilege can be shown in more ways than reckless disregard for the truth or falsity of the statement. Toler argues the instructions should have reflected all permutations of abuse.57 Perhaps “[a] proper instruction would reflect the relevant category of ‘abuse’ applicable in a given case[,]”58 but we are unable to find the instant instructions deficient such that we should overturn the jury’s verdict. More importantly, Toler did not argue the other areas of abuse, e.g. excessive publication or publication unnecessary for purpose of privilege.
Toler did, however, argue the employees acted with an improper motive; and the jury should have been instructed accordingly. The instructions, on their *290face, do seem to omit any mention of improper motive, which was present in To-ler’s proposed jury instructions. But the instructions do provide the jury with the ability to draw an improper-motive inference. The jury was asked to determine if the statements were false and if they were made with actual malice, defined in such a manner as to include knowing the statements were false or being aware of a high probability of falsity. If the jury believed the statements were false and the employees published the statements either knowing of the falsity or with a high probability they were false, the jury would have, in essence, found the employees operated with an improper motive. In that situation, the purpose behind the employees’ publishing the statements would not have been consistent with the common-interest qualified privilege, and the jury could have found liability. Rather than publishing the statements because of a common interest in a cohesive workplace, the employees would have operated with an apparent vendetta against Toler. The jury did not find this to be the case.
While not explicit, the instructions sufficiently include Toler’s requested improper motive. Even if we were to assume the omission of improper motive was erroneous, the error would undoubtedly be harmless because of the jury’s finding. In total, the instructions given to the jury provided a sufficient statement of the law, and we are unwilling to invade the province of the jury and overturn their finding.
III. CONCLUSION.
Simply put, Toler has failed to produce any evidence tending to show that the Company acted toward him with malice. Accordingly, in light of the Company’s qualified privilege, we reverse the opinion of the Court of Appeals and reinstate the trial court’s directed verdict in favor of the Company. The defamation claim against the employees, on the other hand, was properly submitted to the jury. The instructions provided to the jury sufficiently stated the law with regard to malice. We find no error with Toler’s trial. The Court of Appeals is reversed in part, affirmed in part, and the trial court’s judgment is reinstated.
All sitting. All concur.
. We refer to Süd-Chemie throughout this opinion as the "Company.”
. The identities of the employees who submitted reports regarding Toler are: Mike Watson, Bob Deweese, Don Votaw, and Glen Shull. Jude Ware was also a defendant but only for his role in transcribing Shull’s statement and submitting it to management, not for actually alleging Toler made racist statements. Bob Deweese died during the pen-dency of this litigation, and his estate was not substituted; consequently, the trial court dismissed him as a defendant.
Because their identities do not bear on our analysis, we refer to the group, except for Shull, as simply "the employees.” Shull's statement was unsigned, and the Company did not interview him at any point leading to Toler’s termination. In fact, according to the Company, Shull's identity was not known un*281til discovery was undertaken in this case. The Company did not rely on Shull’s statement in reaching its decision to terminate Toler, nor did it show the statement to Toler. Shull was dismissed from the suit along with the Company because the trial court granted a directed verdict for both, and Shull is not a party to this appeal.
. Toler admits he was aware of this policy and Hinrichs' duty to investigate the troubling reports.
. At trial, Toler did admit, however, that he had used racist language outside the workplace.
. We highlight Trice’s race only because it is relevant to the facts of this action. Toler is Caucasian. '
. Toler was informed of Trice’s EEOC claim during this meeting with Hinrichs and the Company’s plant manager.
. We use defamation throughout this Opinion to include slander and libel because the former is simply oral defamation and the latter is written defamation. Generally speaking, defamation is simply a claim for injury to one’s reputation.
8.Because the instant defamation arises in the routine practice of employees reporting something up the organization's chain of command, publication may not appear readily detectable. Publication is a "term of art, and defamatory language is 'published' when it is intentionally or negligently communicated to someone other than the party defamed.” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 794 (Ky.2004). Toler's claim represents a rather strict reading of "publication to a third-party.” Essentially, the Company published the allegedly defamatory material during the meeting with Toler, Hinrichs, and the plant manager. This technically satisfies defamatory publication because Hinrichs discussed the material with a third party present, i.e. the plant manager. Of course, if Hinrichs had discussed the material with only Toler, there would be no "third party” present and publication would be absent. On its face; this seems highly pedantic because at the time of the meeting, Toler, Hinrichs, and the plant manager were all employees of the Company discussing matters involving the proper operation of the Company. To say the least, it is seems strange to claim the Company published defamatory material to a third party when all parties involved were Company agents. As noted at oral argument, it appears more like the right hand talking to the left hand. All that said, to this point in the litigation, the existence of the publication element has not been strongly questioned. Nonetheless, with regard to the Company’s liability, there is support in the law for finding no publication in this situation. The concept is generally labeled "intracorporate nonpublication” and operates on the basis that "[a]gents and employees of [the same principal] are not third persons in their relations to the corporation, within the meaning of the laws pertaining to the publication of libels." Prins v. Holland-North America Mortgage Co., 107 Wash. 206, 181 P. 680, 680 (1919). Kentucky has seemingly rejected this rule, finding the qualified privilege to be sufficient. See, e.g., Dossett v. New York Min. & Mfg. Co., 451 S.W.2d 843, 845-46 (Ky.1970), Biber v. Duplicator Sales & Serv., Inc., 155 S.W.3d 732, 736-37 (Ky.App.2004), Stewart v. Pantry, Inc., 715 F.Supp. 1361, 1367-68 (W.D.Ky.1988). Whether we should chart a new course and adopt the concept of intracorporate nonpublication can wait for another day.
. Restatement (Second) of Torts § 558 (1977).
. Stringer, 151 S.W.3d at 794 (alterations omitted) (quoting Walker v. Tucker, 220 Ky. 363, 295 S.W. 138, 139 (1927)).
. Id. (internal quotations omitted).
. See A.G. Harmon, Defamation in Good Faith: an Argument for Restating the Defense of Qualified Privilege, 16 Barry L.Rev. 27, 43 (2011) ("The correct way to understand privileged occasions is to gather that they are merely conversational contexts, speech events that occur from time to time in a civilized society that, because of their beneficial purpose, are viewed with a more lenient eye when it comes to the accuracy of what is said within them.”).
. Stringer, 151 S.W.3d at 795 (quotation marks omitted).
. See, e.g., Dossett, 451 S.W.2d at 845-46.
. The determination of whether a defendant can avail itself of the qualified privilege is a question of law.
. David A. Elder, Kentucky Tort Law: Defamation and the Right of Privacy, § 1.07(A) at (1983).
. Stewart v. Williams, 309 Ky. 706, 218 S.W.2d 948, 950 (1949).
. Weinstein v. Rhorer, 240 Ky. 679, 42 S.W.2d 892, 895 (1931).
. See Stringer, 151 S.W.3d at 797. As is always the case with regard to defamation, truth remains an absolute defense even in the privilege context.
. Not only in the briefs before this Court, but also in treatises and other scholarly publications, much has been made of the ambiguity of the term malice. Unfortunately, judges and lawyers are somewhat to blame because the term "is often ambiguous because it has been diluted in legal writing.” Bryan A. Garner, Garner's Dictionary of Legal Usage (3d ed. 2011); see also Jonathan M. Purver, The Language of Murder, 14 U.C.L.A. L.Rev. 1306, 1306 (1967) ("Although when used in its nonlegal sense the word clearly denotes an evil or wicked state of mind, at law it does not necessarily have such a connotation; at law it simply means that the actor intentionally did something unlawful. Thus, the legal meaning of 'malice ' is confusing to a non-lawyer because an individual may act with good reason or from humanitarian motive but, as a matter of legal terminology, he has acted with ‘malice ' if his act is against the law.”). Without going into a great degree of detail, we agree that the various iterations of malice often breed confusion. Malice has been a pesky term in defamation nearly from the claim’s inception in the English ecclesiastical courts where the claim was largely a moral one and required "redress through confession." Harmon, supra note 11 at 33. The presumption of malice in our defamation law is particularly problematic because malice is not á requi*284site element of a defamation claim, per se or otherwise. Perhaps the presumption pertains to special damages, which do not require proof in a per se defamation claim. See Louisville Press Co. v. Tennelly, 105 Ky. 365, 49 S.W. 15 (1899) ("The word ‘malice,’ when used in a civil or criminal pleading in cases of this kind, does not imply, much less mean, ill will or personal malice. Its legal sense is the wrongful act done without just cause or excuse. Malice is the imputation of the law from the false and injurious nature of the charge, and differs from actual malice or ill will, which latter may be proved to enhance the damages. The legal malice need not be proven. The law imputes it to the publisher of the libel from the act of publication.”). We are not required to resolve today the many vagaries and anachronisms associated with the term malice because the operation of malice associated with the qualified privilege is clearer than a run-of-the-mill defamation claim.
. Stewart, 218 S.W.2d at 950.
. See, e.g., Columbia Sussex. Corp. v. Hay, 627 S.W.2d 270, 275 (Ky.App.1981) (noting that the qualified privilege is "qualified by the proviso that it not be abused, i.e., that whatever defamation may have been spoken related solely to the investigation, that the remarks not be over-publicized, and that they not be published with malice.”); Baker v. Clark, 186 Ky. 816, 218 S.W. 280, 285 (1920) ("That a defendant would lose his right of qualified privilege if he acted malicious or in excess of the privilege, or with knowledge of the falsity of the communication, is well settled.”).
. Restatement (Second) of Torts § 596 cmt. a (1977). Of note, the final example of abuse does seem, on its face, to relate to the statement’s content. Rather than illustrating abuse of the qualified privilege, a statement outside the scope of the privilege, i.e. not reasonably believed to be necessary for the purpose of the privilege, is better articulated as simply not entitled to the privilege in the first place. As such, the content of the statement may prove important.
. Weinstein, 42 S.W.2d at 895.
. Columbia Sussex, 627 S.W.2d at 276.
. Harstad v. Whiteman, 338 S.W.3d 804, 811 (Ky.App.2011) (citing Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63, 68 (Ky.App.2006)).
. Stringer, 151 S.W.3d at 798.
. Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky.1998).
. Id.
. Wiser Oil Co. v. Conley, 380 S.W.2d 217, 219 (Ky.1964).
. Bierman, 967 S.W.2d at 18.
. Id. at 18-19.
. 338 S.W.3d 804 (Ky.App.2011).
. Id. at 813.
. Id.
. Id.
. Id.
. "While actual malice 'requires a showing of knowledge of falsity of the defamatory statement or reckless disregard of its truth or falsity,’ '[m]alice can he inferred from the fact of ... falsity.' " Stringer, 151 S.W.3d at 799 (internal citation omitted) (emphasis added) (quoting Thompson v. Bridges, 209 Ky. 710, 273 S.W. 529, 531 (1925)).
. Calor v. Ashland Hosp. Corp., 2011 WL 4431143 at *11 (Nos. 2007-SC-000573-DG & 2008-SC-000317-DG Ky. Sept. 22, 2011).
. Restatement (Second) of Torts Special Note on Conditional Privileges and the Constitutional Requirement of Fault (1977).
. See, e.g., Vance v. Louisville Courier-Journal Co., 95 Ky. 41, 23 S.W. 591 (1893); Evening Post Co. v. Richardson, 113 Ky. 641, 68 S.W. 665, 667-69 (1902); Democrat Pub. Co. v. Harvey, 181 Ky. 730, 205 S.W. 908 (1918); Thompson, 273 S.W. at 531.
. See Restatement (Second) of Torts Special Note on Conditional Privileges and the Constitutional Requirement of Fault; Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
. Bryan A. Gamer, Gamer’s Dictionary of Modern Legal Usage (3d ed. 2011) (emphasis added).
. Stringer, 151 S.W.3d at 798.
. Martin v. Commonwealth, 13 S.W.3d 232, 236 (Ky.1999).
. Id.
. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 821 (Ky.1992).
. Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky.1981).
. Drury v. Spalding, 812 S.W.2d 713, 717 (Ky.1991) (quoting Prichard v. Kitchen, 242 S.W.2d 988, 992 (Ky.1951)).
. Id.
. Ballback’s Adm'r v. Boland-Maloney Lumber Co., 306 Ky. 647, 208 S.W.2d 940, 943 (1948).
. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There is no dispute that this case does not involve a public figure and does not implicate the First Amendment concerns articulated in Sullivan. Instead, this case is simply a private-plaintiff-versus-private-defendant defamation action.
. Nix v. Caldwell, 81 Ky. 293, 297 (1883) (“It is well settled, where the common protection and welfare of society requires that the communication should be made, that when made, if in the absence of actual malice, it must be regarded as privileged_”).
. Tanner v. Stevenson, 138 Ky. 578, 128 S.W. 878, 883 (1910) ("[T]he defendant was prompted by actual malice, that is, actual ill will or hatred on the part of the defendant toward plaintiff, or a reckless disregard of the plaintiff's rights by the defendant,....'').
.Truth is always a complete defense to defamation. The jury instructions in issue here, however, are arranged in such a manner that it is difficult to determine exactly why the jury found the employees not liable. The jury was asked simply to answer “yes” or "no” to whether the employees’ statements were false, made by the employees without exercising ordinary care to determine whether the statements were true or false, and made by the employees with actual malice. The jury answered “no.” Because the jury was not asked to answer separately regarding each aspect of liability, we cannot say with certainty that the jury found the employees’ statements true. As a result, we are unable to affirm the verdict on that ground.
. Restatement (Second) of Torts § 600 cmt. b (1977).
. We can dismiss out of hand Toler's argument that a jury should be allowed to find the qualified privilege defeated on an inference of malice from the falsity of the statements. Our discussion on the Company’s directed verdict and the nature of the qualified privilege puts this argument to rest.
. Calor v. Ashland Hosp. Corp., 2011 WL 4431143 (Nos. 2007-SC-000573-DG & 2008-SC-000317-DG Ky. Sept. 22, 2011). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283801/ | OPINION OF THE COURT BY
JUSTICE CUNNINGHAM
B. Todd Crutcher, individually, and as trustee of the B. Todd Crutcher Living Trust, and his brother, James Donald Crutcher (collectively “the Crutchers”), own and possess 36 acres of unimproved land in Franklin County. The Crutchers’ property borders a 500-acre tract of land owned by Harrod Concrete and Stone Co. (“Harrod”), which Harrod operates as an underground limestone quarry. In 2002, while mining its own property, Harrod trespassed and removed approximately 164,000 tons of limestone from 300 feet below the surface of the Crutchers’ land. In 2010, after many years of litigation, a Franklin Circuit Court jury unanimously awarded the Crutchers $36,000 in compensatory damages and $902,000 in punitive damages.
The trial court sustained the compensatory award but reduced the punitive damages to $144,000. A unanimous Court of Appeals panel partially reversed and vacated the circuit court’s decision, and remanded the case for further proceedings. We granted discretionary review. After reviewing the record and the law, we reverse the decision of the Court of Appeals.
Tendered Jury Instructions
The jury received separate instructions for compensatory and punitive damages. Upon finding a trespass, Instruction No. 3 required the jury to “determine the reduction in the fair market value of the Plaintiffs’ property caused by the trespass of the Defendant.” That instruction permitted the jurors to consider “the reduction in mineable limestone by applying a royalty value per ton of stone taken by the Defendant. ...” In addition to the compensatory damages authorized under Instruction No. 3, Instruction No. 4 authorized the jury to award punitive damages based on clear and convincing evidence that “the Defendant acted in reckless disregard for the property of others, including Plaintiffs....”
We agree with the Court of Appeals that an instruction authorizing a determination of recklessness was appropriate. However, the tendered instructions-contained errors of sequence and substance that irreparably tainted the jury’s actual finding of recklessness and, most importantly, the amount of damages awarded as a result. Accordingly, we cannot salvage the jury’s determination in whole or part and must remand for a new trial implementing jury instructions that comport with the following analysis.
*294
Mineral Trespass Actions
We begin by noting that this is not a pure trespass case; rather, it is a trespass/conversion hybrid that is analogous to cases involving the unauthorized removal of minerals. Our jurisprudence frames these types of controversies as trespass actions because the gravamen involves subsurface resources that were once in place. Unlike typical trespass cases, however, the damage sustained to the surface may be negligible or non-existent compared to the damage resulting from removal of the natural resources that lay beneath. Once the resources are removed from their native state, they become personal property and are sold at market by the trespasser.
While the trespass triggers the injury to the landowner, it is the conversion that creates the actual or enhanced value of the extracted resources. Therefore, our precedent seeks to strike a balance between the conversion and trespass measures of damages while incorporating one critical factor — the willfulness of the conduct. The following cases demonstrate the evolution of this unique component of tort law and instruct our decision in the present case.
Historical Background and Current Kentucky Rule
Early English and American cases involving the unauthorized removal of minerals applied the conversion standard of damages, thus allowing the injured landowner to recover the market value of the minerals converted without deduction for extraction expenses. E.g., Martin v. Porter, 151 Eng. Rep. 149 (1839); U.S. Blaen Avon Coal Co. v. McCullah, 59 Md. 403 (1883). By the early Twentieth Century, however, our predecessor Court had rejected the automatic application of this so called “penal rule.” In Sandy River Cannel Coal Co. v. White House Cannel Coal Co., the Court first articulated a more tempered approach that endures today. 72 S.W. 298 (Ky.1903). This newly established paradigm was summarized in North Jellico Coal Co. v. Helton:
we deem it proper to say that the measure of damages for coal taken from another’s land through an honest mistake is the value of the coal taken as it lay in the mine, or the usual, reasonable royalty paid for the right of mining. On the other hand, where the trespass is willful, and not the result of an honest mistake, the measure of damages is the value of the coal mined at the time and place of its severance, without deducting the expense of severing it.
187 Ky. 394, 219 S.W. 185, 186 (1920) (citations omitted).
This approach is now well-established. Thus, the amount of damages to which an injured property owner is entitled is dependent upon whether the trespass was innocent or willful. Damages provided under the latter category reflect the punitive conversion measure once embraced in all cases without exception. In contrast, damages resulting from an innocent trespass attempt to make the injured party whole without unjustly penalizing good-faith trespassers.
Accordingly, innocent trespass damages have been determined as the value of the minerals before they were extracted. In Kentucky, this is valued at the usual, reasonable royalty paid for the right of mining — that which is normally negotiated between the landowner and lessee/producer at the time of mining. E.g., North East Coal Co. v. Blevins, 277 S.W.2d 45 (Ky.1955). This royalty value of damages only applies to injured parties not in a position to mine the resources on their own. However, if the injured party was in a position to mine the converted resources itself, courts assess the value of the minerals *295before they were extracted at the market value of the minerals less the reasonable expenses incurred in mining. Hughett v. Caldwell County, 313 Ky. 85, 230 S.W.2d 92, 96 (1950). This modified royalty approach applies equally to trespass cases involving hard minerals such as coal, and fugacious minerals such as oil and gas. Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037, 1039 (1934) (awarding the net fair market value of oil in a suit between two lessees). To summarize, if the aggrieved party was in the position to mine, then that party is compensated for the entire profit. If not, the aggrieved party is awarded a mere royalty payment.
Our case law has not provided us with much guidance on the meaning of “ability to mine.” Blevins, 277 S.W.2d at 49. We can only assume that it means individuals or entities already engaged in the mining business, or readily capable of extracting the minerals themselves. As subsequently explained, we eliminate this consideration from our jurisdiction.
In contrast to the current Kentucky rule, the majority of mineral producing jurisdictions do not consider the injured party’s ability to mine for purposes of determining damages. In these jurisdictions, the proper measure of damages in innocent trespass cases is the value of the minerals after extraction, less the reasonable costs incurred by the trespasser in producing the minerals. See 21 A.L.R.2d 380, § 3(c) (2015); 58 C.J.S. Mines and Minerals § 179 (2015).1 Therefore, Kentucky’s modified royalty rule represents a minority approach.
Although this modified approach has been consistently applied in the Commonwealth, it is not without exception. See Rudy v. Ellis, 314 Ky. 524, 236 S.W.2d 466 (1951); Delta Drilling Co. v. Arnett, 186 F.2d 481 (6th Cir.1950); see also 21 A.L.R.2d 380, § 3(e) (2015) (noting that Rudy and Delta Drilling deviated from Swiss Oil Corp.). Citing Rudy, several recent oil and gas commentators have concluded that Kentucky follows the net value method for calculating damages in innocent trespass cases.2 Considering the collective discourse, we take this opportunity to re-examine the application and purpose of the modified royalty approach in order to bring harmony to our own discordant and dated decisions.
Re-examining the Kentucky Rule
In his primer on this issue, Kentucky Circuit Court Judge Kelly M. Easton notes the history and criticism of the Kentucky rule. The Measure of Damages for Mineral Trespass — A Kentucky Perspective, 4 J. Min. L. & Pol’y 137 (1988-1989) (Easton). He writes that the deplorable state of title in mineral producing regions and the immense societal value derived from mining may have guided early Kentucky decisions. Id. at 154. However, even some early Kentucky cases cast doubt on the propriety of the royalty approach.
For example, Hughett involved an innocent trespass where the Court awarded the net fair market value of the converted material to an injured landowner who was *296actively engaged in mining. In so holding, the Court refuted the royalty approach by reasoning that “[rjoyalty is a matter of contract — not of damages for a tort.” 230 S.W.2d at 96. “Why should not the innocent trespasser also pay the owner in full for his loss.... ” Id. at 97. Therefore, while limiting its holding to injured property owners in a position to mine, Hughett nevertheless challenges the general efficacy of the royalty approach. See also Swiss Oil Corp., 69 S.W.2d at 1046 (“In a court of conscience, the one party is not chargeable with more and the other is not entitled to less.”).
These sentiments are echoed in additional academic literature on the topic. Hughett v. Caldwell County—Measure of Damages for Innocent Conversion of Minerals, 39 Ky. L.J. 236, 238 (1950-51) (arguing for the application of Hughett to all innocent trespass cases, “regardless of whether or not the owner is in a position to mine the minerals himself.”). One early critic of the royalty approach similarly opined:
Where recovery is limited to the reasonable royalty value of the property converted, the wrong-doer, though innocent, is actually profiting by his wrong in that he not only deducts the expenses of production but has sufficient allowances remaining to realize a profit therefrom. This is a violation of all established legal principles and the arguments of the courts in sustaining such a legal monstrosity seem founded on reasons of expediency rather than principles of justice.
Easton, 4 J. Min. L. & Pol’y at 152 (quoting Damages for the Conversion of Minerals, 21 Notre Dame L.Rev. 201 (1945-46)).
Under the royalty rule, a trespasser retains the lion’s share of his ill-gotten profits by essentially forcing the injured property owner to engage in a post facto lease. Thus, the property owner has lost the freedom to contract as he chooses and must forego his ability to bargain for a better royalty in the future. Under the majority, net value approach, however, the trespasser is credited for his costs while the landowner receives the profit. As such, neither party is unjustly enriched nor subjected to undue disgorgement.
Adopting the Net Value Rule
Considering the evolution of our precedent and having no good cause to sustain the royalty rule or any modification thereof, we now join the majority of mineral producing jurisdictions. Whether the injured party is in a position to extract the resources shall no longer dictate damages. Accordingly, the proper measure of damages in all innocent trespass cases is the value of the mineral after extraction, less the reasonable expenses incurred by the trespasser in extracting the mineral. Permissible expenses are those “reasonably calculated to be beneficial and productive” in the mining operation. Joyce v. Zachary, 434 S.W.2d 659, 661 (Ky.1968). Whether to allow or disallow specific expenses is a determination for the trial court. Howard v. Kingmont Oil Co., 729 S.W.2d 183, 187 (Ky.App.1987).
Where the trespass has been determined to be willful, we continue to maintain that the measure of damages is the reasonable market value of the mineral at the mouth of the mine/well, without an allowance of the expense of removal. This approach has been consistently applied in Kentucky and serves as a sufficient financial penalty for the wrongdoing of the trespasser, thus obviating the need for additional punitive damages. It is also the rule embraced by the majority of jurisdictions that have addressed the issue. 21 A.L.R.2d 380, § 5 (2015); Woods & Smith, What Kinds of Punitive Damages May Be Awarded for Willful Trespass to Miner*297als?, supra, at 104-55. Our holding applies equally to fugacious and non-fuga-cious minerals.
Application of Mineral Trespass Cases
Much has been argued in this case about the propriety of applying the above referenced mineral cases in the context of limestone — an abundant sediment that fortifies most of Central Kentucky. We acknowledge the authority holding that “limestone is not legally cognizable as a mineral.” Little v. Carter, 408 S.W.2d 207, 209 (Ky.1966); see also Elkhorn City Land Co. v. Elkhorn City, 459 S.W.2d 762, 764 (Ky.1970). However, analogizing those contract determinations to the present tort action is misguided. Geology is not determinative here. See KRS 143.020. and KRS143A.020 (taxing the severance or processing of coal and natural resources such as limestone at the same statutory rate without regard for geological distinction).
In short, we see no cognizable legal distinction between the mineral trespass line of cases and the present case. See Hughett, 230 S.W.2d at 96 (applying oil and gas trespass cases- to unauthorized mining of fluorspar); Arkansas Power & Light Co. v. Decker, 179 Ark. 592, 17 S.W.2d 293 (1929) (applying mineral trespass cases to conversion of sand and gravel). Thus, it is unnecessary to craft an arbitrary exception to our mineral trespass paradigm, the proper application of which succeeds in making the injured party whole, while also providing a punitive mechanism for expressing society’s disdain for willful conduct.
Remand and Retrial
Upon remand, if the jury determines that an innocent trespass occurred, it shall award the value of the limestone in place— the reasonable market value of the limestone at the mouth of. the mine, less the reasonable costs incurred in mining. This equates to the value of the unprocessed “shot rock,” less mining operation expenses that were reasonably calculated to be beneficial and productive in producing the shot rock. In the alternative, if the jury determines that a willful trespass occurred, it shall award the reasonable market value of the shot rock without an allowance of the expense of removal.
To clarify, the Crutchers may recover damages under either the innocent trespass instruction or the willful trespass instruction, but not both. Furthermore, the willful trespass instruction shall not give rise to an instruction for punitive damages. Here, the gross fair market value of the mined material constitutes compensatory damages, albeit of a punitive nature. Due to the unique concerns involved in these types of cases, the fair market value standard awarded for willful trespasses negates an additional or separate recovery for punitive damages. Because we are remanding this case for a new trial, it is also necessary to elaborate on the applicability of a willful trespass jury instruction upon remand.
Innocent/Willful Dichotomy
Conduct that is inadvertent or “the result of an honest mistake” constitutes an innocent trespass. North Jellico Coal Co. 219 S.W. at 186. In contrast, willful conduct has been summarized as follows:
a willful trespasser is one who knowingly and willfully encroaches or enters upon the land of another and takes his mineral without color or claim of right, or one who dishonestly or in bad faith mines minerals of another and converts them to his own use....
Hughett, 230 S.W.2d at 94.
*298Reckless conduct also constitutes a willful trespass. Sandlin v. Webb, 240 S.W.2d 69 (Ky.1951); compare Kycoga Land Co. v. Kentucky River Coal Corp., 110 F.2d 894 (6th Cir.1940) (equating “mere negligence” with innocent trespass). For a thorough analysis of the distinctions between innocent and willful trespasses, see Easton, 4 J. Min. L. Policy at 146-54. See also 19 Am.Jur. Proof of Facts 2d 529 (2015). According to the proof developed at trial, we believe that the jury was properly instructed on a willful trespass theory.
Commercial organizations operating in either surface or subsurface environments must engage in diligent efforts to determine their boundary lines in order to ensure that the property to which they claim a right is, indeed, the correct property. Evidence demonstrating that a trespasser continued or perpetuated its encroachment despite cautionary indicators that property may have been misidentified is certainly relevant to the jury’s determination. This may be based, in part, upon the property itself or “evidence regarding the policies and procedures of the company.” See MV Transportation, Inc., v. Allgeier, 433 S.W.3d 324, 338 (Ky.2014) (citing Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 388 (Ky.1985)).
Evidence of Willfulness
The record in the present case demonstrates that Harrod failed to have a boundary survey performed between 1996 and 2002, even though Harrod’s President, David Harrod, testified that he knew that the mining activity was nearing the Crutchers’ property. Although underground maps called “plan sheets” were prepared annually for Harrod by engineers, they only depicted approximate and uncertified boundary lines. Nevertheless, even the plan sheets demonstrated a constant progression towards the Crutchers’ property. Although Harrod was aware of this progression, it did not secure a certified boundary survey until 2003; a year after the trespass occurred. See Jim Thompson Coal Co. v. Dentzell, 216 Ky. 160, 287 S.W. 548 (1926) (finding a willful trespass due to evidence of defendant’s failure to properly maintain maps and ascertain accurate boundary lines); Sandlin, 240 S.W.2d at 70 (determining that the jury should decide whether defendants knowingly trespassed, where evidence demonstrated that defendants knew that they were “only 200 feet from [plaintiffs’] property and working straight toward it.”).
Cecil Banta, Harrod’s quarry manager at the time of trial, testified that Harrod had no procedure in place for correlating the subsurface mining activity to the surface boundary lines prior to 2003. In fact, Harrod did not discover the trespass on its own. Harrod first learned of the potential encroachment upon being cited by the Kentucky mining authorities for mining outside the area authorized by its permit. Mr. Banta further testified that when he began his employment at Harrod in 2003, he implemented a grid map system that correlated surface coordinates to the subsurface activity. Banta stated that this type of grid map method had been available since the early 1990s and had been implemented by his previous employer pri- or to 2003.
Moreover, evidence was introduced that Harrod did not even attempt to apply the property description information included in its own deeds to the plan sheets or other materials in order to ascertain a more accurate subsurface location. Two of Har-rod’s employees testified that they were completely unaware of their underground location relative to the surface boundaries. Lastly, evidence was presented that around 1991, Harrod had encroached on another property bordering its operations. *299Considering the totality of the circumstances, there was certainly a jury question concerning a willful trespass. Such a jury instruction is appropriate upon remand.
Expert Testimony
Harrod further contends that the trial court erred by admitting the testimony of Steven Gardner, a licensed mine engineer who testified concerning royalty and market price calculations. . KRE 702 permits opinion testimony of “a witness qualified as an expert by knowledge, skill, experience, training, or education[,]” if that testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.... ” See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We review a trial court’s determination whether a witness is qualified to give expert testimony for an abuse of discretion. Brown v. Commonwealth, 416 S.W.3d 302, 309 (Ky.2013).
Gardner testified that he had an extensive history in the mining industry spanning several decades and that he had previously been involved in mine appraisals, valuations, and royalty calculations. Thus, he was sufficiently qualified as an expert of the subject matter about which he was testifying. Furthermore, the methods Gardner employed to gather royalty and market price data were sufficient to provide reliable information that would aid the jury in its determination.
Harrod takes specific issue with Gardner’s use of data gathered from a telephone survey of quarries concerning market prices. Harrod contends that the methods employed by Gardner and his staff in gathering and calculating this survey data were unscientific, and that the results were undocumented. Although the survey results may have been otherwise inadmissible, it is proper for experts to rely upon this type of information when forming their opinions. KRE 703(a); Brown v. Commonwealth, 934 S.W.2d 242, 247 (Ky.1996).
Gardner also based his calculations in part on other sources of data including information maintained by the Kentucky Transportation Department demonstrating limestone prices around the time the trespass occurred. That data specifically listed Harrod as offering $5.00 per ton for “shot rock” limestone in 2002. Moreover, Gardner testified that the information upon which he relied is of the type reasonably and typically relied upon by experts in his field. Accordingly, the trial court did not abuse its discretion in admitting Gardner’s testimony.
Remaining Issues
Harrod also argues that the trial court erroneously denied its directed verdict motion and disregarded the parties’ pre-trial stipulation of damages. In light of the foregoing analysis, these arguments are moot. The parties’ arguments concerning the trial court’s reduction in the jury’s punitive damage award is also moot. To the extent that the Due Process Clause is implicated here, its dictates are satisfied upon issuance of a jury verdict and damages that comport with the foregoing analysis.
Conclusion
In summary, when measuring damages in mineral trespass cases, we eliminate any distinction between those injured parties with the ability to mine and those who do not have the ability to mine. An innocent trespasser will be responsible for the value of the minerals after extraction, less the mining operation expenses that were reasonably calculated to be beneficial and productive in producing the minerals. In *300willful trespass cases, the landowner is entitled to an award equal to the fair market value of the minerals without any allowance for expenses. Thus, punitive damages are not afforded.
For the foregoing reasons, we reverse the Court of Appeals’ decision, vacate the jury verdict and damages, and remand this case to the trial court for further proceedings consistent with this opinion. .
All sitting. Minton, C.J.; Abramson, Barber, Keller, and Noble, JJ., concur. Venters, J., dissents by separate opinion.
. See also Jeff A. Woods & Helena R. Smith, What Kinds of Punitive Damages May Be Awarded for Willful Trespass to Minerals?, 29 E. MIN. L. FOUND. § 4.02 (2008) (Woods & Smith) (providing a state-by-state analysis of mineral trespass law).
. Owen L. Anderson, Lord Coke, The Restatement, and Modern Subsurface Trespass Law, 6 Tex. J. Oil Gas & Energy L. 203 (2010-2011); Brian J. Pulito, Nathaniel I. Holland, & Jon Beckman, A State of Mind: Determining Bad Faith in Trespasses to Oil and Gas [ ], 2 Tex. A & M L.Rev. 53 (2014); Owen L. Anderson, Subsurface "Trespass”: A Man’s Subsurface is Not His Castle, 49 Washburn L.J. 247 (2010). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283802/ | VENTERS, J.,
DISSENTING:
I respectfully dissent. Notwithstanding the fine research and analysis contained in the majority opinion, I would not abandon the traditional distinction reserved for limestone and other ubiquitous rock underlying vast regions of Kentucky. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283803/ | ORDER
Per Curiam:
Jerry Watson appeals the circuit court’s judgment granting summary judgment in favor of Claycorp, Inc., Concrete Strategies, LLC, and John Liss. We affirm. Rule 84.16. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283804/ | ORDER
PER CURIAM:
George Kniest appeals from the Circuit Court of Boone County’s dismissal of his Rule 24.035 motion for post-conviction relief. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. No jurisprudential purpose would be served by a formal, published opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.
Judgment affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283805/ | ORDER
Per Curiam:
The Office of Public Counsel and Missouri Industrial Energy Consumers appeal the decision of the Public Service Commission to issue an Accounting Authority Order to the Union Electric Company D/B/A Ameren Missouri (Ameren) for unexpected lost revenue. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283807/ | ORDER
Per Curiam:
Lee Collis appeals the judgment entered by the circuit court following a bench trial convicting him of the class A misdemeanor of animal abuse. We affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283850/ | *461Order
Per Curiam
Harry Campbell appeals his conviction for first degree robbery, following a bench trial. After a thorough review of the briefs and the record, we find no error and affirm the judgment of conviction. A formal published opinion would serve no jurisprudential purpose, however, a memorandum explaining the reasons for our decision has been provided to the parties.
AFFIRMED. Rule 30.25(b) | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283808/ | ORDER
PER CURIAM
Kathleen Turner appeals from the trial court’s grant of summary judgment in favor of Coverall Restoration in this breach-of-contract case. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. Additionally, we grant Coverall Restoration’s motion seeking attorney’s fees for the costs of defending this appeal. The contract at issue provides that if payment is not made, the customer, Ms. Turner, is liable for “all collection costs incurred and reasonable attorney’s fees.” Accordingly, we award Coverall Restoration attorney’s fees on appeal in *452the amount of $1,000. We affirm. Rule 84.16(b)(5). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2291729/ | 338 S.W.3d 709 (2011)
Cathy ANDERSON, Appellant,
v.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; American Federation of Government Employees, AFL-CIO, District 10; American Federation of Government Employees, AFL-CIO, Council 215; American Federation of Government Employees, AFL-CIO, Local 3506, Appellees.
No. 01-09-00994-CV.
Court of Appeals of Texas, Houston (1st Dist.).
April 7, 2011.
*711 Cathy A. Anderson, Pikesville, MD, pro se.
James Roddy Tanner, Tanner & Associates, P.C., Fort Worth, TX, for Appellees.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
OPINION
SHERRY RADACK, Chief Justice.
In this appeal, we decide whether a federal government employee's state law tort claims against a labor union are completely preempted by the Civil Service Reform Act of 1978. See 5 U.S.C. §§ 2301-2305 (West 1994 & Supp. 2010), 5 U.S.C. §§ 7101-7154 (West 1996 & Supp. 2010) (West 2010). Finding no complete preemption under the circumstances presented in this case, we reverse and remand.
BACKGROUND
Anderson was a group supervisor for the Social Security Administration Office of Disability Adjudication and Review ["ODAR"] in Houston, Texas. Scott Stier was a case intake assistant and reported to Anderson. On July 24, 2007, Anderson issued a proposed three-day suspension to Stier for failing to associate mail in a timely manner. On October 2, 2007, Stier sent a letter to the Agency's Office of Special Counsel, in which he asserted that Anderson had been confiscating and hoarding his mail, thereby violating his due process rights. Stier also sent a copy of this letter to Anderson, Melissa Huett, a hearing office manager for ODAR, and Mark Mephail, a hearing office administrative law judge for ODAR. On November 1, 2007, Huett placed Stier on a one-day suspension, rather than the three-day suspension recommended by Anderson.
*712 Stier appealed his suspension to the Merit Systems Protection Board, alleging that ODAR's suspension of him was in retaliation for his complaint about Anderson. On July 15, 2008, an administrative law judge ["ALJ"] upheld Stier's suspension. In his order, the ALJ stated, "I find, however that because Huett's decision to suspend [Stier] was issued . . . just four months after the disclosure of which she had knowledge, a reasonable person could conclude that the disclosure was a contributing factor in the agency's decision to suspend [Stier]." Nevertheless, the ALJ upheld Stier's suspension because he found that ODAR would have taken the personnel action against Stier even if there had been no whistleblowing involved.
According to allegations in her petition, Anderson discovered in February or early March of 2009 that Stier, who was also an Executive Vice-President of Local 3506 of the American Federation of Government Employees, AFL-CIO, had been sending emails to other union members in Anderson's office that contained a link to the Local 3506's website where they would find "disturbing" information about Anderson. Anderson accessed the website and found the following summary of Stier's personnel matter: ". . . the [ALJ] found that Stier's disclosure was based on a reasonable belief that Anderson was hoarding mail and that action constituted an abuse of her authority."
After seeing the information about her on the union's website, Anderson filed suit in state court against the American Federation of Government Employees, including the Local 3506, Council 215, and District 10 [hereafter, collectively "the union."], alleging libel, slander, and intentional infliction of emotional distress.[1]
The union filed a motion to dismiss based on lack of subject-matter jurisdiction. Specifically, the union claimed that Anderson's state tort claims were preempted by the Civil Service Reform Act of 1978 ["CSRA"], which is codified in Title 5 of the United States Code. The trial court granted to union's motion and dismissed Anderson's case. This appeal followed.
PREEMPTION UNDER THE CSRA
Standard of Review and Applicable Law on Preemption
In filing a plea to the jurisdiction, a litigant challenges the trial court's subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). In order to prevail, the party asserting the plea must show that, even if all the allegations in the plaintiff's pleadings *713 are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiff's petition to confer jurisdiction on the trial court. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.-Austin 2000, no pet.).
Because subject-matter jurisdiction is a question of law, we conduct a de novo review of the trial court's ruling on the plea. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Upon review, we consider the pleadings and the evidence pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). We do not consider the merits of the case; our jurisdiction is limited to reviewing the grant or denial of the plea to the jurisdiction that was filed. Id.; see also TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp. 2010); Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 61 (Tex.App.-Houston [14th Dist.] 2005, no pet.); City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686-87 (Tex.App.-Dallas 2003, pet. denied). We do not have jurisdiction to consider grounds outside those raised in the plea to the jurisdiction. First Trade Union Sav. Bank, 133 S.W.3d at 687; Davies, 158 S.W.3d at 61.
In its motion to dismiss, the union acknowledged that Anderson's petition alleged state court causes of action, see TEX. CIV. PRAC. & REM.CODE ANN. § 73.001 (2005) (libel); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993) (intentional infliction of emotional distress), but argued that Anderson's state court causes of action were completely preempted by the CSRA. To establish complete preemption, a defendant must show that:
(1) the federal statute contains a civil enforcement provision that creates a cause of action and both replaces and protects the analogous area of state law;
(2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and
(3) there is a clear Congressional intent that the claims brought under the federal law be removable to federal court.
Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.2000). To determine whether the union has established the first element of the Johnson test, we must review the provisions of the CSRA upon which it relies.
The Civil Service Reform Act
In its motion to dismiss, the union alleged two bases for its contention that the CSRA completely preempts Anderson's state court causes of action. First, the union argued that Anderson's suit involved a "prohibited personnel action" and thus was preempted by section 2303 of the CSRA. Second, the union argued that Anderson's suit alleged an "unfair labor practice" by the union and thus was preempted by section 7101 of the CSRA. We will address each respectively.
1. Title II of the CSRA, 5 U.S.C. § 2302 et seq., Prohibited Personnel Action
Federal employees are generally precluded from bringing state tort claims when the claims arise "out of an employment relationship that is governed by comprehensive procedural and substantive provisions" which provide meaningful remedies. Bush v. Lucas, 462 U.S. 367, 368, 103 S. Ct. 2404, 2406, 76 L. Ed. 2d 648 (1983). The CSRA affords such remedies to federal employees. The Act provides "an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration." United States v. Fausto, 484 U.S. 439, 445, 108 S. Ct. 668, 672, 98 L. Ed. 2d 830 (1988). *714 The CSRA authorizes federal employees to challenge "prohibited personnel practices" by their supervisors. See 5 U.S.C. § 2302; Saul v. United States, 928 F.2d 829, 833, 834 (9th Cir.1991) (employee had redress under CSRA for claims of defamation by supervisor). It is founded upon certain merit-system principles that govern civil service employment and provides that employees are to be treated fairly and equitably and "with proper regard for their privacy and constitutional rights." 5 U.S.C. § 2301(b)(2).
Under the Act, prohibited personnel practices include the taking of any "personnel action" that violates its merit-system principles. 5 U.S.C. § 2302. Specifically, a prohibited personnel practice means any action that is described in subsection (b) of Section 2302, which states that "any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority," engage any of the prohibited acts listed in the subsection. 5 U.S.C. § 2302(b)(1)-(11). Therefore, an integral element of a "prohibited personnel practice" is the taking of "personnel action" which is defined to include actions such as, but not limited to, an appointment, a promotion, a disciplinary or corrective action, a detail, transfer or assignment, or a decision concerning pay, benefits, or education or training. 5 U.S.C. § 2302(a)(2)(A). Thus, essentially, when a plaintiff's claims arise out of his or her employment relationship with the federal government and all supervisory actions taken by the defendants are related to the plaintiff's status as a federal employee, the actions constitute personnel decisions under the CSRA, and are therefore exclusively remedied thereunder. Rollins v. Marsh, 937 F.2d 134, 138 (5th Cir.1991). Thus, the question this Court must decide is whether Anderson's claim alleges the taking of a "personnel action" within the meaning of the CSRA.
The union relies on Bush, Fausto, Saul, and Rollins, in support of its argument that Anderson's claims are preempted. 462 U.S. at 367, 103 S. Ct. 2404, 484 U.S. at 439, 108 S. Ct. 668, 928 F.2d at 843, 937 F.2d at 138. In Bush, the plaintiff, an aerospace engineer for NASA, complained on television that his job was "worthless," a "travesty," and that NASA was fraudulently spending taxpayer money. 462 U.S. at 369-70, 103 S. Ct. 2404. He was subsequently demoted and his pay grade was reduced. Id. at 370, 103 S. Ct. 2404. Bush then filed suit against Lucas, the director of NASA, for defamation. Id. at 371, 103 S. Ct. 2404. After Bush's suit was dismissed, the Fifth Circuit affirmed, holding that in light of the remedies available under the CSRA, Bush had no private cause of action. Id.
In Fausto, the plaintiff, an employee of the Department of the Interior Fish and Wildlife Service, was suspended from his job for 30 days. 484 U.S. at 439, 108 S. Ct. 668. He then filed suit against the United States seeking back pay under the federal Back Pay Act. Id. at 443, 108 S. Ct. 668. The Court of Appeals held that his suspension was unlawful and awarded Fausto back pay for the period of his suspension. Id. The Supreme Court reversed, holding that "[t]he CSRA established a comprehensive system for reviewing personnel action taken against federal employees." Id. at 455, 108 S. Ct. 668.
In Saul, a Social Security Administration claims administrator sued two of his supervisors alleging that they had seized and opened his private mail and defamed him. 928 F.2d at 831. The Ninth Circuit held that the CSRA preempted Saul's common law tort claims because his petition alleged prohibited personnel practices by his supervisors. Id. at 833-34.
*715 In Rollins, the plaintiff, a federal government employee for the Army, took nude pictures of his wife, also a federal government employee for the Army, which were subsequently published in Hustler Magazine. 937 F.2d at 135-36. As a result, Rollins was temporarily suspended from his job and his wife lost her security clearance. Id. at 136. Rollins appeal his removal to the Merit Systems Protection Board, and the ALJ held that Rollins's removal was a prohibited personnel action under the CSRA and ordered Rollins reinstated. Id. The Rollinses then filed suit, naming the Secretary of the Army and fifteen supervisors and employees as defendants. Id. The complaint alleged violations of a broad array of federal constitutional and statutory rights as well as state-law rights such as defamation. Id. The Fifth Circuit held that because the Rollinses' claims arose out of their employment relationship with the federal government, and all the actions taken by the defendants were related to their status as federal employees, the actions taken against them were personnel decisions under the CSRA. Id. at 138. As such, the remedies provided by the CSRA preempted the Rollinses' state-law remedies for adverse personnel actions. Id. at 140.
In this case, the union's reliance on Bush, Fausto, Saul, and Rollins is misplaced. Each of those cases involve an allegation of a prohibited personnel practice against the plaintiff, and the plaintiff's alleged claims arose directly out of those prohibited personnel practices. Such is not the case here, where Anderson alleges no personnel action against her by her federal employer.
Instead, we believe that the present case is more like Gutierrez v. Flores, 543 F.3d 248 (5th Cir.2008) and Gilding v. Carr, 608 F. Supp. 2d 1147 (D.Ariz.2009). In Gutierrez, the plaintiff, a federal employee of the Army and union representative, received a 30-day suspension from the Army, his employer, after an investigation revealed that Gutierrez had been taking money that his union had intended for him to use to pay a cleaning services for its meeting room and then cleaning the room himself. 543 F.3d at 249-250. After learning that the Army had taken personnel action against Gutierrez, a fellow union member sent a letter to the Department of Labor and the local and national presidents of the union asking why Gutierrez had been provided a representative at union expense when he had acknowledged taking funds from the union. Id. at 250. Based on this letter, Gutierrez sued three fellow union members in state court, alleging libel, libel per se, and intentional infliction of emotional distress. Id. The case was removed to federal court, and Gutierrez moved to remand. Id. at 251. The union, relying on Bush, Saul, and Rollins, contended that remand was inappropriate because Gutierrez's state law causes of action were completely preempted by the CSRA. Id. at 253. The Fifth Circuit held that the union's reliance on those cases was misplaced because those cases concerned "disputes arising from the employment relationship wherein a government employer or supervisor takes an action against a government employee that allegedly violated the merit principles outlined in Title II of the SCRA." Id. at 253. In contrast, Gutierrez's claim did "not involve the employment relationship or any adverse employment action." Id. at 254. Although there was an "adverse employment action"Gutierrez's suspension by the Armyhis suit against the union solely concerned the allegedly defamatory letter sent by union members about his suspension. Id. at 254 n. 8. Similarly, in this case, no employment action was alleged to have been taken against Anderson. Furthermore, the subject of Anderson's defamation suit is *716 not any statements that were made during the course of Stier's disciplinary proceeding. Instead, Anderson's suit against the union is based solely on the alleged defamatory statements that the union published about her on its website.
In Gilding, the plaintiff, a manager with the Federal Aviation Administration ["FAA"] sued a former FAA employee, two air traffic controllers assigned to his office who were also local union officers, and the air traffic controllers' union for allegedly publishing defamatory statements about him on a blog. 608 F. Supp. 2d at 1149-50. Gilding alleged that because of the defamatory blog, he was placed on administrative leave and removed from his managerial position. Id. at 1150. He did not sue the FAA or any of the employees involved in the decision to remove him from his managerial position. Id. The court noted that the CSRA prohibits only "personnel practices" that are undertaken by "any employee who has authority to take, direct others to take, recommend or approve any personnel action" with respect to the plaintiff." Id. at 1151 (quoting 5 U.S.C. § 2302(b)). The court then concluded that the union was clearly not "an employee" who could recommend or approve a personnel action against Gilding. Id. at 1152. As such, Gilding's defamation claim against the union was not preempted. Id. at 1154.[2] Here, as in Gilding, the only defendant is the union that Anderson contends defamed her. And, as in Gilding, there is no evidence that the union was taking, recommending, or approving any personnel action against Anderson when it placed the allegedly defamatory statements about her on its website.
Because Anderson's complaint does not involve a "prohibited personnel practice" by an "employee who has authority to take, direct others to take, recommend or approve any personnel action" against Anderson, section 2302 of the CSRA does not preempt her defamation claim against the union.
2. Title VII of the CSRA, 5 U.S.C. § 7101 et seq., Unfair Labor Practices
The union also argues that Anderson's claims are preempted under section 7107 et seq., which governs union affairs and collective bargaining agreements. Title VII of the CSRA allows collective bargaining in the public sector and provides a detailed methodology for dispute resolution. See 5 U.S.C. §§ 7116(d), 7121, 7122. The statute created the Federal Labor Relations Authority ["FLRA"] and gave it the responsibility of supervising the collective bargaining process, promulgating administrative rules for federal labor relations, and adjudicating disputes over matters such as negotiability, bargaining units, arbitration, and representation *717 elections. Montplaisir v. Leighton, 875 F.2d 1, 2 (1st Cir.1989).
Section 7118 of the CSRA provides that "any agency or labor organization" charged "with having engaged in or engaging in an unfair labor practice" shall be investigated by the General Counsel for FLRA. 5 U.S.C. § 7118(a)(1). The section then provides a detailed administrative scheme that must be followed in actions before the FLRA. See 5 U.S.C. § 7118(a)(2)-(8). The union argued that because Anderson did not file a grievance for an "unfair labor practice," she cannot now proceed with her state court claims. Thus, the issue this Court must decide is whether Anderson's claim alleges an "unfair labor practice."
Section 7116 of the CSRA provides that it is an unfair labor practice for a union:
(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter [5 USCS §§ 7101 et seq.];
(2) to cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under this chapter [5 USCS §§ 7101 et seq.];
(3) to coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impending the member's work performance or productivity as an employee or the discharge of the member's duties as an employee;
(4) to discriminate against an employee with regard to the terms or conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition;
(5) to refuse to consult or negotiate in good faith with an agency as required by this chapter [5 USCS §§ 7101 et seq.];
(6) to fail or refuse to consult or negotiate in good faith with an agency as required by this chapter [5 USCS §§ 7101 et seq.];
(7)(A) to call, or participate in, a strike, work stoppage, or to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency's operations, or (B) to condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity; or
(8) to otherwise fail or refuse to comply with any provision of this chapter [5 USCS §§ 7101 et seq].
5 U.S.C. § 7116(b)(1)-(8).
The union argues that Anderson's libel claim alleges an "unfair labor practice" under subsections (5) & (8) of the statute above. Regarding subsection (5), there is no allegation by Anderson that the union failed or refused to consult or negotiate with her agency, the Social Security Administration. Thus, we turn to the union's argument that the catch-all provision found in section 7116(b)(8), which provides that it is an unfair labor practice to fail or refuse to comply with any provision of this chapter, was triggered by Anderson's allegation that the information contained on the union's website defamed her.
The union points out that under section 7102 of the statute, "[e]ach employee shall have the right to form, join, or assist any labor organization" and that such right includes the right "to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the government, the *718 Congress, or other appropriate authorities." 5 U.S.C. § 7102(1). The union argues that to the extent that Anderson's petition alleges that the union "exceeded its authority to communicate views of the labor organization under Section 7101 and 7102," such action would be an "unfair labor practice" under section 7116(b)(8).
The union made a similar argument in Gutierrez v. Flores. In Gutierrez, the union argued that the plaintiff's defamation suit against several union officials constituted an allegation of an "unfair labor practice" and should have been brought pursuant to the grievance procedures in Chapter 71 of the CSRA. 543 F.3d at 254-55. The Fifth Circuit disagreed, holding that "on the face of his well-pleaded complaint, [Gutierrez] alleges that [the union officials'] letter and e-mail were defamatory and intended to inflict emotional distress. Nothing in the CSRA pertains to this specific scenario." Id. at 255. Because Gutierrez's complaint did not allege an "unfair labor practice," his claim was not preempted by section 7116(b)(8) of the CSRA. Id. The Court also concluded that the union's contention that it was exercising its free speech rights might be a defense to liability on Gutierrez's libel claim, but it would not serve as a basis for federal question jurisdiction. Id. at 255 n. 11.
The same is true in this case. Anderson's complaint, like that in Gutierrez, is that the statements on the union's website defamed her and caused her emotional distress. As noted by the Gutierrez court, "[n]othing in the CSRA pertains to this specific scenario." Id. at 255. To the extent that the union is arguing that it was merely exercising its right under section 7102 to communicate the union's views, such right might be a defense to liability, but would not confer federal question jurisdiction. Id. at 255 n. 11.[3]
The union relies on Montplaisir v. Leighton to argue that the unfair labor practices provisions of the CSRA preempt Anderson's state law claims. In Montplaisir, four air traffic controllers who were fired for participating in an unlawful strike filed a legal malpractice suit against the union lawyers who had assured them during the collective bargaining process that if they participated in the strike they ran no significant risk of losing their jobs. 875 F.2d at 1-2. The court held that that the plaintiffs' claims raised an unfair labor practices charge under section 7116(b)(7), id. at 3, and that under such circumstances, the "CSRA necessarily precludes the maintenance of state-law malpractice claims against lawyers acting as the union's emissaries in the collective bargaining process." Id. at 8.
This case is more like Gutierrez than Montplaisir. Anderson's claim that she was defamed by the information on the union's website is not included within the list of "unfair labor practices" set forth in section 7116(b) because "[n]othing in the CSRA pertains to this specific scenario." Gutierrez, 543 F.3d at 255. In contrast, the plaintiffs' petition in Montplaisir alleged an unfair labor practice under section 7116(b)(7), which prohibits participating or condoning a strike. Also, the actions complained of in Montplaisir were committed during the course of the collective bargaining process. Such is not the case here.
*719 Because Anderson's complaint does not involve a "unfair labor practice" by the union, section 7116(b) of the CSRA does not preempt her defamation claim against the union.
CONCLUSION
Because this case does not involve an adverse personnel action or an unfair labor practice, the union failed to satisfy the first prong of the Johnson test for preemption, i.e., showing that the CSRA contains a civil enforcement provision that both replaces and protects Anderson's state law claims. See Gutierrez, 543 F.3d at 255-56. Therefore, the trial court erred in dismissing her state court claims.
Accordingly, we reverse the judgment of the trial court and remand for further proceedings.
NOTES
[1] Anderson had previously filed suit in state court against Stier, alleging that his October 2, 2007 letter about her to the ODAR's Office of Special Counsel was libelous. The State court action was removed to federal court. The federal district court dismissed Anderson's claims against Stier and substituted the United States as the defendant pursuant to the Federal Tort Claims Act. The federal court then dismissed Anderson's libel, slander and defamation claims based on limitations and dismissed her intentional infliction of emotional distress claim for failure to exhaust her administrative remedies. The Fifth Circuit recently reversed, holding that Stier, not the United States, was the proper party because he was acting outside the scope of his employment when he allegedly defamed her. See Anderson v. United States, 364 Fed. Appx. 920 (5th Cir.2010). Because Stier was the proper party and Anderson filed her claim within the 1-year state of limitations for defamation claims in the State of Texas, see TEX. CIV. PRAC. & REM.CODE ANN. § 16.002(a), the dismissal based on limitations was also erroneous. Anderson, 364 Fed.Appx. at 925. Similarly, because the United States was not the proper party, there were no administrative remedies to exhaust before bringing her intentional infliction of emotional distress claim. Id.
[2] We note that there have been cases in which a supervisor's defamation claims against subordinates have been held to be preempted. See Schwartz v. Int'l Fed. of Prof'ls & Technical Eng'rs, No. 3:07-CV-0978-1, 2007 WL 3196347 (N.D.Tex. Oct. 31, 2007) (memo.op.) (holding that claims based on alleged defamatory statements made during course of grievance were preempted by CSRA because, as union representative, subordinate was recommending personnel action against supervisor by filing grievance); Greene v. Am. Fed. of Gov't Employees, AFL-CIO, Local 2607, No. Civ. A. 05-0408 RMU, 2005 WL 3275903 (D.D.C. Sept. 7, 2005) (holding that supervisor's libel claims against supervisee and supervisee's union representative were preempted by CSRA because statements giving rise to supervisor's claims were made during course of administrative grievance against supervisor). Here, the alleged defamatory statements were not made by Anderson's subordinate Stier, were not made during the course of any disciplinary proceedings, and were not made as a part of any recommended personnel action against anyone.
[3] We also note that section 7102 gives employees the right to present "the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities." 5 U.S.C. § 7102(1). There is nothing in the record to show that the statements on the union's website were directed to any of the entities listed in the statute. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5283810/ | ORDER
PER CURIAM
Piotr Chorazy (Defendant) appeals the denial of his Rule 29.07(d) motion to set aside his guilty plea following his. convic*453tions for possession of a controlled substance and driving with a suspended license. Defendant claims that his guilty plea was involuntary because his attorney (1) failed to properly inform him of the immigration consequences of his plea and; (2) failed to file a motion to suppress evidence. We affirm.
We have reviewed the briefs of the parties and the record on appeal and find that trial court did not err in denying Defendant’s Rule 29.07(d) motion. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283812/ | ORDER
PER CURIAM.
Timothy Jones appeals from a sentence and judgment of acceding to corruption, in violation of Section 576.020, RSMo. (2000). We have reviewed the briefs of the parties and the record on appeal and conclude that no reversible error occurred. An extended opinion would have no jurisprudential purpose. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b) (2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283813/ | ORDER
PER CURIAM
Nancy Darrow (Movant) appeals the motion court’s judgment denying, without an evidentiary hearing, her motion for post-conviction relief under Rule 24.085. "
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts' and reasons for this order.
The judgment of the trial court is affirmed in accordance with Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283814/ | ORDER
PER CURIAM
Kerry Hogan (“Movant”) appeals from the judgment of the motion court denying his request for post-conviction relief pursuant to Rule 29.15 after an evidentiary hearing.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasbns for this order.
The judgment of the trial court is affirmed in accordance with Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283815/ | ORDER
PER CURIAM.
Michael Dare appeals the motion court’s denial of his Rule 29.15 motion for postcon-viction relief. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, setting forth the reasons for this order. The motion court’s findings of fact and conclusions of law are not clearly erroneous. We affirm. Rule 84.16(b)(2). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283818/ | DISSENTING STATEMENT
Alcala, J.,
filed a dissenting statement.
The legislature recently enacted three statutes addressing the inherently ques*539tionable nature of inmate testimony, the prejudicial impact of junk science, and the problems that occur when the state does not fully participate in discovery with the defense, and this snakebit case is riddled with each of those problems. I would grant the motion to stay this impending execution for a capital-murder conviction against Robert Lynn Pruett, applicant, on the basis that this court should fully consider the merits of his complaint that junk science played a primary role in his conviction, but in discussing the gravity of the situation, I also note that this case is riddled with problems that the legislature has attempted to now fix: junk science, inmate testimony, and lack of discovery. This application for a post-conviction writ of habeas corpus filed by applicant challenges his conviction for the 1999 capital murder of Daniel Nagle, a correctional officer at the McConnell unit. See Pruett v. State, No. 74,370 (Tex. Crim. App. Sept. 22, 2004) (not designated for publication); Ex Parte Pruett, 207 S.W.3d 767, 767 (Tex. Crim. App. 2005) (denying initial application). I respectfully dissent from the court’s dismissal of this post-conviction writ application on procedural grounds and its denial of the motion to stay the execution filed by applicant. See Tex. Code Crim. Proc. art. 11.071, § 5. Instead, I would file and set the present application for this court to interpret the meaning of article 11.073, and, if appropriate, remand this claim to the habeas court for an evidentiary hearing. See id. art. 11.073. I would further sua sponte reopen applicant’s previous application for a writ of habeas corpus in which he asserted complaints premised on the ineffectiveness of trial counsel and a due-process violation challenging the use of false evidence at his trial. Rather than permit an execution to take place under circumstances in which the primary evidence underlying the conviction — inmate testimony and likely junk science testimony based on the purported matching of strips of masking tape — has been deemed inherently questionable and unreliable by the legislature, I would instead ensure that the integrity of this conviction is beyond reproach by staying the execution and examining the evidence more closely.
I. Background
The record suggests that applicant was convicted primarily on the testimony of inmate-witnesses and junk science. The evidence adduced at applicant’s 2002 capital-murder trial indicated that the shank used to stab Nagle had masking tape wrapped around the handle. Applicant’s fingerprints were not found on the weapon. To connect applicant to the murder weapon, the state presented testimony from inmate witnesses, one of whom testified that he gave applicant the masking tape that was then used to make the murder weapon. Specifically, this inmate-witness stated that applicant’s cell mate, Phillips, gave masking tape to him and asked him to pass it along to applicant. To corroborate the inmate-witness’s story, the state presented the expert testimony of Lisa Harmon Baylor, who testified that, through the “science” of physical match comparison, she was able to identify the tape wrapped around the handle of the weapon as having been torn off of one of the rolls at Phillips’s workstation in the prison craft shop.
As to motive, the State’s theory was that applicant was upset because Officer Nagle had written a disciplinary charge against applicant for having food in an area of the prison where food was not permitted. See In re Pruett, Nos. 15-20222, 15-70011, 2015 WL 1840601, at *1 (5th Cir. April 23, 2015). Torn pieces of the disciplinary report were found near Officer Nagle’s body after the murder. Id. At trial, applicant testified that Officer Nagle tore up the *540report in applicant’s presence and that applicant then walked away, leaving Officer. Nagle alive and well. Id. “[T]here was no physical evidence connecting [applicant] to the murder.” Id. DNA testing revealed that only Officer Nagle’s blood was found on the disciplinary report. Id.1
II. This Court Should Stay the Execution and Remand the Current Application
In his current application, applicant asserts that he is entitled to receive a new trial because it is likely that jurors would not have convicted him had they been informed that the “science” relied upon by the State’s expert has now been discredited. See Tex. Code Crim. ProC. art. 11.073(b)(2). Applicant now contends that, according to a 2009 Forensic Report issued by the National Academy of Sciences, the “science” of physical match comparison, which was the basis for the State’s, expert’s testimony regarding the matching of the masking tape, has now been discredited. Applicant asserts, therefore, that had the jurors at his trial known that the science relied upon by the State has now been discredited, it is more likely than not that they would not have convicted him of eapi-tal murder.
Applicant’s complaint that junk science was used to convict him is precisely what the Legislature had in mind when it enacted Article 11.073 to permit post-conviction challenges premised on relevant scientific evidence that was not available to be offered by a convicted person at the convicted person’s trial or that contradicts scientific evidence relied on by the State at trial. See Tex. Code Crim. Proc. art. 11.073(a). Article 11.073 states, “A court may grant a convicted person relief on an application for a writ of habeas corpus if: (1) the convicted person filed an application, in the manner provided by Article 11.07, 11.071, or 11.072, containing specific facts indicating that (A) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and (B) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application; and (2) the court makes the findings described by Subdivisions (1)(A) and (B) and also finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.” See id. art. 11.073(b).
Although applicant plainly appears to have made a prima facie case that junk science was used to convict him, there is a question as to whether he has timely asserted his claim. The factual basis underlying applicant’s claim is the 2009 Forensic Report, but he did not present his claim in his earlier post-conviction writ applications that were filed after 2009. With respect to the applicable timing requirements, Article 11.073 states, “For purposes of ... Section 5(a)(1), Article 11.071 [the statutory bar on subsequent writs] ... a claim or issue could not have been presented previously *541in an original application or in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application, as applicable, was filed.” See id. art. 11.073(c) (emphasis added). “In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the scientific knowledge or method on which the relevant scientific evidence is based has changed since the applicable trial date or dates, for a determination made with respect to an original application[,] or the date on which the original application or a previously considered application, as applicable, was filed, for a determination made with respect to a subsequent application.” See id. art. 11.073(d) (emphasis added).
Today, this Court declines to consider the merits of applicant’s claim and instead dismisses this application as an abuse of the writ on the basis that the pleadings fail to satisfy the requirements of Article 11.071, § 5(a) and Article 11.073(c). See id,, art. 11.071, § 5(a), 11.073(c). The theory supporting dismissal is that applicant’s current habeas counsel could have, but did not, raise this new-scientific-evidence claim in his 2014 writ application because, at that time, he should have had access to the 2009 National Academy of Sciences Report that he uses as his evidentiary support for his current claim. The Court thus concludes that consideration of applicant’s claim is procedurally barred.
By focusing solely on the statutory language in Subsection .(c), this Court has failed to consider the meaning of that language when viewed in the broader context of the entire statutory scheme, and it has read terms into the statute that are not in its plain language. The statute requires either this Court or the habeas court to make “a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date.” See id. art. 11.073(d). Typically, findings are made by a habeas court after a full consideration of the evidence in the record, which would suggest that the case should be remanded to the habeas court for that to occur. Alternatively, if this Court is to make that finding, which would be contrary to our ordinary approach to applications for writs of habeas corpus, this Court only has pleadings before it, and we have not yet filed and set this case to decide it on the merits, so a finding at this stage based on mere pleadings would be inappropriate. Furthermore, although it is true that applicant relies on a 2009 report that predated his earlier applications, I cannot conclude that the date on which a report was issued is alone enough to show that this relevant scientific evidence was, as a matter of law, “ascertainable” through the exercise of “reasonable diligence” when applicant filed his earlier applications for post-conviction writs. See id. In any event, the statute is unclear as to whether it requires a “finding” from the habeas court or from this Court with respect to the timeliness of the Article 11.073 claim, and this Court should grant a stay to examine the meaning of the statute through a written opinion.
I also note that, by dismissing applicant’s new-scientific-evidence claim based on his pleadings alone, this Court reads a term into this new-science law that does not appear in the statutory language. This Court effectively holds today, for the first time since the statute’s effective date of September 1, 2013, that a case will be dismissed if an applicant fails to provide evidence making a prima facie ease that relevant scientific evidence was not ascer-*542tamable through the exercise of reasonable diligence on or before a specific date. See id. Although typically this Court has required that type of pleading to overcome the procedural bar on subsequent writs, that type of pleading requirement, applied in the present context, appears to run contrary to the legislative intent to liberally permit post-conviction challenges to convictions based on junk science. As of now, this Court has issued only one opinion addressing Article 11.073, Ex parte Robbins, and a motion for rehearing is pending in that case. See Ex parte Robbins, No. WR-73,484-02 (Tex. Crim. App. Nov. 26, 2014). Because the meaning of the temporal requirements of this statute are a matter of first impression before us, this Court should grant applicant’s motion to stay the execution to fully consider whether it is this Court or the habeas court that should determine whether an applicant has pleaded facts to make a prima facie showing of “reasonable diligence” to secure the new-science evidence, whether such a pleading requirement exists at all in this context, and whether a habeas court rather than this Court must make a finding on the question of reasonable diligence as part of the trial court’s findings and conclusions as to the merits of a complaint. There are far too many unanswered questions with respect to the meaning and application of Article 11.073 at this juncture to permit a person to be executed for capital murder in a case in which it appears that junk science was used to corroborate the inherently questionable inmate testimony.
To further explain' why this Court should step back and permit applicant to further develop his arguments, it should be noted that even as early as 2004, the trial court that heard applicant’s initial application for a writ of habeas corpus made findings of fact that “fundamental and material violations of the Constitution, the Rules of Evidence, and the trial court’s pretrial discovery” occurred in this case, and it recommended “that the applicant’s conviction be set aside.” See Ex parte Pruett, 207 S.W.3d 767 (Tex. Crim. App. 2005) (per curiam). During the last legislative term, again concerned that trials like those that occurred here should not be happening in Texas, the Legislature passed the Michael Morton Act to ensure that defendants would receive discovery of the evidence the State had in its possession so that they could prepare a defense against it. See Tex. Code Crim. Proc. art. 39.14. In rejecting the trial court’s recommendation that applicant be granted a new trial based on discovery violations that occurred even before the passage of the Michael Morton Act, this Court held that, because the Due Process Clause confers upon defendants a right to be informed about the existence of exculpatory evidence, it does not require the prosecution “to ‘reveal before trial the names of all witnesses who will testify unfavorably.’” See Pruett, 207 S.W.3d at 767. This Court further determined that, as “for the trial court’s conclusion that the failure to reveal the inculpatory statements also violated the rules of evidence and the trial court’s discovery order, such violations, even if they occurred, would not be grounds for relief on habeas corpus.” Id. Although this Court accurately decided the case under then existing law, the Legislature’s continued interest in addressing the particular problem that the trial court here found so compelling that it recommended a new trial in 2004 should give us pause before summarily rejecting applicant’s present complaint.
III. Applicant’s Second Application Should be Reopened by this Court Sua Sponte to Address His Allegations of a Due Process Violation by the Use of False Evidence
I would grant applicant’s motion to stay his execution and sua sponte reopen the *543second application for a writ of habeas corpus filed in 2014 by applicant, in which he alleged a due process violation by the use of false evidence. Ex parte Pruett, No. WR-62,099-02 (Tex. Crina. App. Dec. 10, 2014) (not designated for publication). This Court determined that the subsequent application failed to satisfy the requirements of Article 11.071, § 5(a), and the Court dismissed it. See id.; Tex.Code CRIM. Proc. art. 11.071, § 5(a). I dissented to that dismissal on the basis that applicant had made a prima facie showing that his claims should have been remanded to the trial court for consideration. Ex parte Pruett, No. WR-62,099-02 (Alcala, J., dissenting). Applicant complained that “due process was violated when the State failed to disclose deals that had been made with the inmate witnesses that testified during guilt/innocence and failed to correct false testimony.” Applicant explained that his due-process rights were violated by the State’s failure to disclose that a deal had been made with Harold Mitchell and also by the State’s failure to correct Mitchell’s false testimony. Furthermore, applicant contended that his “right to due process was violated by the State’s failing to disclose that inmates who desired to testify on Pruett’s behalf were threatened and physically assaulted.” Applicant argued that the factual basis of this claim was unavailable on the date that he filed his initial application. I concluded that applicant had pleaded a prima facie case that his due-process rights were violated and voted to remand that complaint for consideration on whether there was a factual basis showing that this claim was unavailable during his initial application, and, if so, addressing the merits of this complaint.
Applicant’s assertions that the State used the false testimony of inmate-witnesses is precisely what the Legislature was concerned about when it passed statutes to regulate this type of evidence after applicant’s trial took place. In 2009, the Legislature enacted Article 38.075, which states, “A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.” See Tex. Code Crim. Proc. art. 38.075(a). Because this enactment reflects a legislative determination that testimony by one inmate against another is inherently unreliable, this Court should also recognize that reality and remand this case to the habeas court for consideration of applicant’s claims that the inmates gave false testimony against him.
IV. Applicant’s Second Application Should be Reopened by this Court Sua Sponte to Address His Claim of Ineffective Assistance of Habeas Counsel
I would grant applicant’s motion to stay his execution and sua sponte reopen the second application for a writ of habeas corpus filed in 2014 by applicant, in which he alleged that his original habeas counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel. See Ex parte Pruett, No. WR-62,099-02. This Court determined that the ineffective-assistance-of-trial-counsel claim failed to satisfy the requirements of Article 11.071, § 5(a), and the Court dismissed it. See id.; Tex. Code Crim. Proo. art. 11.071, § 5(a). I dissented to that dismissal on the basis that applicant had made a prima facie showing that his claims should have been remanded to the trial court for consideration, relying on the reasoning in my dissent in Ex parte Buck and suggesting that inadequate representation by habeas *544counsel in failing to raise a potentially meritorious claim should serve as a basis to overcome the bar on subsequent writs. 418 S.W.3d 98, 109 (Tex. Crim. App. 2013) (Alcala, J., dissenting); Ex parte Pruett, No. WR-62,099-02 (Alcala, J., dissenting).
In my dissenting statement on applicant’s second application for a writ of ha-beas corpus, I noted that applicant had presented new, prima facie evidence of a change in his sentencing profile, such as that he was the victim of sexual abuse as a child by his mother for an extended period of time, that his mother prostituted him to men, and that his extreme poverty required him and his mother to dig through dumpsters to look for food and to sleep in parks due to homelessness. Given the substantial volume of mitigating evidence that had emerged since the time of applicant’s trial, I concluded that applicant had presented a prima facie case of ineffective assistance of trial counsel, worthy of remanding to the habeas court for consideration of that claim on the merits.
V. Conclusion
I do not reach the ultimate merits as to whether applicant has presented grounds on which habeas relief should be granted. Rather, I decide only that applicant has presented, both in the earlier application and in the current application, an adequate basis upon which to make a prima facie case that should be remanded to the habe-as court for full consideration of the merits. Given the multitude of the allegations of constitutional violations in this case, I respectfully dissent from the court’s dismissal of the application and to this court’s denial of the motion to stay applicant’s execution.
. Although applicant has previously asserted that his lack of DNA on the report suggests that he did not commit this offense, I conclude that the lack of DNA is not evidence of his innocence when only the victim’s DNA 'was found on the report. See Pruett v. State, No. AP-77,037, 2014 WL 5422573 (Tex. Crim. App. Oct. 22, 2014) (upholding trial court’s determination that it was not reasonably probable that applicant would have been acquitted at his trial on the basis of ’’inconclusive” results of DNA and palm-print testing). I am also unpersuaded that applicant is entitled to relief from his conviction because the State did not take better care in preserving the physical evidence against him. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283819/ | OPINION
Scott K. Field, Justice
The Texas Medical Association (TMA) sued the Texas State Board of Examiners of Marriage and Family Therapists (the Therapist Board), its executive director, its presiding officer, and the Texas Association for Marriage and Family Therapy (collectively, the Therapist Defendants) seeking declarations that certain portions of two of the Therapist Board’s administrative rules are invalid. See 22 Tex. Admin. Code §§ 801.42(13) (2014) (Texas State Bd. of Exam’rs of Marriage & Family Therapists, Professional Therapeutic Services), 44(q) (Texas State Bd. of Exam’rs of Marriage & Family Therapists, Relationships with Clients). Specifically, the TMA asserted that the rules are void because they (1) impermissibly expand the scope of practice for marriage and family therapists under the Licensed Marriage and Family Therapist Act and (2) conflict with the Medical Practice Act by allowing marriage and family therapists to engage in the practice of medicine. On cross-motions for summary judgment, the trial court declared that only one of the rules was invalid. Both parties have appealed. For the reasons that follow, we will affirm the trial court’s judgment.
BACKGROUND
The practice of medicine in Texas is governed by the Texas Medical Practice Act and regulated by the Texas Medical Board. See Tex. Occ. Code §§ 151.001-168.202. Among other things, the Medical Practice Act requires that a person have a Medical Board-issued license to lawfully “practice medicine” in the State. Id. § 155.001. “Practicing medicine” is de*554fined as “the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions” by a person who either “directly or indirectly charges money or other compensation for those services” or publicly professes to be a physician or surgeon. Id. § 151.002(a)(13).
The practice of “marriage and family therapy” is regulated by the Licensed Marriage and Family Therapists Act. Id. §§ 502.001-.455. The Act defines the practice of “marriage and family therapy” as
providing professional therapy services to individuals, families, or married couples, alone or in groups, that involve applying family systems theories and techniques. The term includes the evaluation and remediation of cognitive, affective, behavioral-, or relational dysfunction in the context of marriage or family systems.
Id. § 502.002(6). The Act imposes licensing requirements on marriage and family therapists and delegates regulatory authority to the Therapist Board. See id. §§ 502.151, .251.
In 1994, the Therapist Board adopted administrative Rule 801.42, listing the “professional therapeutic services” that a marriage and family therapist may provide. See 22 Tex. Admin. Code § 801.42. In relevant part, subsection 13 of Rule 801.42 provides that a marriage and family therapist may provide “diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as well as the International Classification of Diseases (ICD).” Id. § 801.42(13). The Therapist Board later promulgated Rule 801.44 describing the relationship between marriage and family therapists and their clients. See id. § 801.44. Rule 801.44, subsection q, provides that “a [licensed marriage and family therapist] shall base all services on an assessment, evaluation, or diagnosis of the client.” Id. § 801.44(q).
In 2008, the Texas Medical Association (TMA) sued the Therapist Board and the other Therapist Defendants seeking a declaration that Rule 801.42(13) and Rule 801.44(q) are invalid because they exceed the Board’s statutory rule-making authority. The TMA did not challenge the Therapist Board’s general authority to adopt rules concerning the scope of practice for licensed marriage and family therapists. Instead, the TMA argued that Rule 801.42(13) and Rule 801.44(q) are inconsistent with the scope of practice for marriage and family therapists as defined in Section 502.002(6) of the Licensed Marriage and Family Therapists Act. Alternatively, the TMA claimed that the statutory scope of practice under Section 502.002(6) is unconstitutional.
The parties subsequently filed cross-motions for summary judgment. The TMA moved for summary judgment on its claims that the rules were invalid; the Therapist Defendants moved for summary judgment seeking a take-nothing judgment on the TMA’s claims. The trial court granted the TMA’s motion in part and determined that Rule 801.42(13) exceeds the Therapist Board’s statutory authority under Section 502.002(6). As a result, the trial court declared that Rule 801.42(13) is invalid. The trial court, however, also granted the Therapist Defendants’ motion in part, ordering that the TMA take nothing on its claim for a declaration that Rule 801.44(q) is invalid. The Therapist Defendants appealed, and the TMA filed a cross-appeal.
In their sole issue on appeal, the Therapist Defendants contend that the trial court erred in finding that the Therapist *555Board exceeded its rulemaking authority under the Licensed Marriage and Family Therapists Act in adopting Rule 801.42(13). Conversely, in its cross-appeal, the TMA contends that the trial court erred in refusing to declare that Rule 801.44(q) is invalid. In addition, the TMA argues that if Rule 801.44(q) does not conflict with the Licensed Marriage and Family Therapists Act, the trial court erred in failing to conclude that the Act and the Rules are unconstitutional under article XVI of the Texas Constitution.
STANDARD OF REVIEW
Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Summary judgment is proper when the summary-judgment evidence shows that there are no disputed issues of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166(a)(c). When, as here, both parties move for summary judgment on overlapping issues and the trial court grants one motion and denies the other, we consider the summary-judgment evidence presented by both sides and determine all questions presented. Valence, 164 S.W.3d at 661. If we determine that the trial court erred, we render the judgment the trial court should have rendered. Id.
ANALYSIS
In this appeal, we must determine whether the Therapist Board exceeded its rule-making authority in promulgating Rule 801.42(13) and Rule 801.44(q). The Therapist Board, as a state administrative agency, has only-those powers that the legislature expressly confers upon it and those implied powers that are reasonably necessary to carry out its express functions or duties. Public Util. Comm’n of Tex. v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex.2001). Absent specific or implied statutory authority, an agency rule is invalid. Id. An agency may not exercise what is effectively a new power based on a claim that the exercise is expedient for administrative purposes. Id.
To establish a rule’s facial invalidity, a challenger must show that the rule (1) contravenes specific statutory language, (2) is counter to the statute’s general objectives, or (3) imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions. An agency rule is presumed valid, and the challenging party bears the burden to demonstrate its invalidity. Office of Pub. Util. Counsel v. Public Util. Comm’n of Tex., 131 S.W.3d 314, 321 (Tex.App.-Austin 2004, pet. denied).
The parties’ arguments on appeal primarily concern the proper construction of the Licensed Marriage and Family Therapists Act. We review questions of statutory construction de novo. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.2008). When construing a statute, our primary objective is to ascertain and give effect to the legislature’s intent. Id. at 631-32. In determining legislative intent, we begin with the statute’s words. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). We use any definitions provided by the statute and assign undefined terms their ordinary meaning, unless a different, more precise definition is apparent from the term’s use in the context of the statute. Id.
Where the statutory text is clear, it is determinative of legislative intent, unless enforcing the plain meaning of the statute’s words would lead to absurd results. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009). If a statute is ambiguous — i.e., there is more than one reasonable interpretation — we give “serious consideration” to the construction of *556the statute by the administrative agency charged with its enforcement, “so long as the construction is reasonable and does not conflict with the statute’s language.” Railroad Comm’n of Tex. v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628-30 (Tex.2011).
With these principles in mind, we first examine whether the trial court erred in concluding that the Therapist Board exceeded its rule-making authority in promulgating Rule 801.42(13). In relevant part, this Rule states:
The following are professional therapeutic services which may be provided by a Licensed Marriage and Family Therapists or a Licensed Marriage and Family Therapist Associate.
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(13) Diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as well as the International Classification of Diseases (ICD) as part of [a marriage and family therapist’s] therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.
22 Tex. Admin. Code § 801.42(13),
In its sole issue on appeal, the Therapist Defendants argue that the trial court erred in concluding that the Therapist Board exceeded its rulemaking authority in promulgating Rule 801.42(13). The Therapist Defendants point out that Section 502.002(6) of the Licensed Marriage and Family Therapists Act allows marriage and family therapists to provide “professional therapy services” including “evaluation of ... cognitive, affective, behavioral, or relational dysfunction.” See Tex. Occ. Code § 502.002(6). The Therapist Defendants argue that (1) the plain meaning of the terms “evaluation,” as used in Section 502.002(6), and “diagnostic assessment,” as used in Rule 801.42(13), involve the same process of examining a patient and forming a judgment about the patient’s condition; and (2) the term “evaluation,” if anything, is a broader, more general term that includes “diagnosis.” The Therapist Defendants also argue that the language in Section 502.002(6) authorizing marriage and family therapists to “evaluate] cognitive, affective, behavioral, or relational dysfunction” would be meaningless if the therapists could not also “utilize the [Diagnostic and Statistical Manual of Mental Disorders].”1 In short, the Therapist Defendants contend that the scope of practice for marriage and family therapists under Section 502.002(6) is intentionally broad and unambiguously includes the ability to diagnose, utilizing the DSM, certain mental disorders. In the alternative, the Therapist Defendants argue that, to the extent that the scope of practice under the Licensed Marriage and Family Therapists Act is ambiguous, we should defer to the Therapist Board’s interpretation. See Texas Citizens, 336 S.W.3d at 625.
In response, the TMA argues that the trial court correctly concluded that Rule 801.42(13) is invalid because the diagnosis of any mental disease or disorder is outside the scope of practice for marriage and family therapists under Section 502.002(6). *557The TMA contends that the terms “evaluation” and “diagnosis” are not equivalent and that, in fact, the Therapist Board’s own rule — Rule 801.44(q), providing that all services be “based on an assessment, evaluation, or diagnosis” — acknowledges that they are not. See 22 Tex. Admin. Code § 801.44(q) (emphasis added). The TMA contends that, based on the plain language of Section 502.002(6), “a licensed marriage and family therapist can examine and judge the worth, quality, significance, amount or condition of abnormal or impaired thinking, emotions, actions and relationships in the context of marriage and family systems,” but under the Medical Practice Act, only a person licensed to practice medicine can diagnose mental diseases or disorders.
As previously discussed, under the Medical Practice Act, a person who engages in the “diagnosis” of a mental disease or disorder for compensation is practicing medicine, and only a person with a Medical Board-issued license may practice medicine in this State. See Tex. Occ. Code § 155.001. In addition, the eligibility requirements to obtain a license to practice marriage and family therapy in Texas are distinct from those necessary to obtain a license to practice medicine. Compare id. § 155.008 (eligibility requirements to obtain license to practice medicine), and id. § 155.051 (license examination for license to practice medicine), with id. § 502.252 (requirements to obtain license to practice marriage and family therapy), and id. § 502.254 (license examination for license to practice marriage and family therapy). Nevertheless, under the Therapist Defendants’ construction of Section 502.002(6), licensed marriage and family therapists could engage in what is plainly the practice of medicine without a Medical Board-issued license. See id. § 151.002(a)(13) (defining “practicing medicine” as “the diagnosis ... [of] of mental or physical disease or disorder”). There is no exemption under the Medical Practice Act allowing marriage and family therapists to practice medicine in Texas without a Medical Board-issued license. See id. § 151.052 (exemptions from Medical Practice Act). Consequently, the Therapist Board’s construction of the scope of practice under Section 502.002(6) is in direct conflict with the licensing requirements of the Medical Practice Act.
Absent a contrary intention in either the Licensed Marriage and Family Therapists Act or the Medical Practice Act, we must presume that the legislature intended both statutes to be fully effective. Tex. Gov’t Code § 811.021(2); CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal, of Cities, 263 S.W.3d 448, 461 (Tex.App.-Austin 2008), aff'd sub norm. Texas Indus. Energy Consumers v. CenterPoint Energy Houston Elec., LLC, 324 S.W.3d 95 (Tex.2010). We also presume that the legislature was aware of the requirements of the Medical Practice Act when it subsequently enacted the Licensed Marriage and Family Therapists Act. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex.1990). Although the legislature was aware that only persons licensed by the Medical Board may practice medicine in Texas, it did not provide an exemption from the Medical Practice Act’s requirements for marriage and family therapists when it adopted the Licensed Marriage and Family Therapists Act. We therefore must construe the statutory scope of practice under the Licensed Marriage and Family Therapists Act “in a manner that harmonizes rather than conflicts with that law.” CenterPoint Energy Houston Elec., 263 S.W.3d at 461 (citing Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 531 (Tex.2002)).
The parties agree that the ordinary meaning of the term “evaluation” is “to examine and judge concerning the worth, *558quality, significance, amount, degree or condition.”2 See Webster’s Third New Int’l Dictionary 786 (2002). In contrast, the term “diagnosis” means “the act or process of discovering or identifying a diseased condition by means of a medical examination.” See Webster’s New World College Dictionary 397 (4th ed. 2001); see also Mosby’s Medical Dictionary 546 (8th ed. 2009) (“diagnose” means “identification of a disease or condition by scientific evaluation of physical signs, symptoms, history, laboratory test results, and procedures”). Based on the plain meaning of the terms “evaluation” and “diagnosis,” we conclude that the terms are related but are not synonymous. That is, while all diagnoses arise from some type of evaluation, not all evaluations necessarily lead to a diagnosis. The TMA’s construction of Section 502.002(6) — that a therapist’s authority to “evaluate] and remediat[e] [certain] dysfunctions” does not include the authority to conduct “diagnosis ... [of] a mental ... disease or disorder” — recognizes this distinction between the relevant terms and gives effect to both the Licensed Marriage and Family Therapists Act and the Medical Practice Act.
In support of their construction, the Therapist Defendants point out that in numerous statutes in which the legislature has expressly prohibited certain medical professions from diagnosing, the legislature has done so in clear and express terms. See Tex. Occ. Code §§ 262.151(a)(3)(A) (dental hygienists may not “diagnose a dental disease or ailment”), 301.002(2) (professional nursing “does not include acts of medical diagnosis”), 453.006(a) (physical therapists “may not engage in diagnosing diseases”). The Therapist Defendants reason that the legislature’s failure to expressly prohibit marriage and family therapists from diagnosing indicates that the legislature, in fact, intended for marriage and family therapists to have this ability.
We agree that the legislature has not, by statute, expressly prohibited marriage and family therapists from engaging in diagnosing. We disagree, however, that this lack of an express statutory prohibition means that the legislature necessarily intended to authorize marriage and family therapists to make diagnoses. Instead, we must examine the statute as a whole and determine whether this construction is reasonable. See Tex. Gov’t Code § 311.021(2), (3); City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex.2010) (“We presume that the Legislature intended all provisions of a statute to be effective, and that it intended a just and reasonable result.”). Because we have determined that construing Section 502.002(6) in a manner that includes the authority to diagnose any mental disease or disorder would result in a conflict with the Medical Practice Act, the Therapist Defendant’s construction is not reasonable. We conclude that the diagnosis of mental diseases or disorders is excluded from the statutory scope of practice for licensed marriage and family therapists under Section 502.002(6).
' Rule 801.42(13) authorizes licensed marriage and family therapists to conduct “diagnostic assessments” utilizing the DSM, a comprehensive classification of mental disorders and diseases. In effect, Rule 801.42(13) authorizes marriage and family therapists to engage in the diagnosis of mental diseases and disorders.3 Because *559this authorization exceeds the statutory scope of practice for marriage and family therapists permitted under Section 502.002(6), the trial court did not err in granting summary judgment in favor of the TMA on this claim and declaring Rule 810.42(13) invalid. We overrule the Therapist Defendants’ sole issue on appeal.
Finally, we consider whether the Therapist Board exceeded its rule-making authority by promulgating Rule 801.44(q). In two related issues, the TMA argues that the trial court erred in denying its motion for summary judgment on this claim because, like Rule 801.42(13), Rule 801.44(q) also unlawfully authorizes marriage and family therapists to diagnose mental diseases and disorders.
As previously discussed, Rule 801.44(q) states:
[A licensed marriage and family therapist] shall base all services on an assessment, evaluation, or diagnosis of the client.
22 Tex. Admin. Code § 801.44(q).
The Therapist Defendants respond by arguing that, by its own terms, Rule 801.44(q) does not require that all services be based on a diagnosis, or that a marriage and family therapist diagnose every patient. Instead, according to the Therapist Defendants, Rule 801.44(q) merely presupposes that a diagnosis by marriage and family therapists is appropriate in some circumstances. The Therapist Defendants reason that as long as the Licensed Marriage and Family Therapists Act “gives marriage and family therapists some authority to diagnose, no matter how broad or narrow, [Rule 801.44(q) ] is consistent with the statute and should stand.” For the following reasons, we conclude that Rule 801.44(q) is valid.
First, we note that Rule 801.44(q), on its face, does not expressly require a marriage and family therapist to diagnose a client — only that the therapist’s services be based on an assessment, evaluation or diagnosis of the client, presumably by some health care professional legally qualified to provide one. Id. (emphases added). Therefore, while Rule 801.44(q) contemplates that a diagnosis may be made, the rule does not specify that the diagnosis must be made, or even can be made, by a marriage and family therapist. Second, because we have already determined that the statutory scope of practice for licensed marriage and family therapists under Section 502.002(6) does not include the authority to diagnose mental diseases and disorders, we cannot reasonably construe Rule 801.44(q) as allowing for such a practice. See TGS-NOPEC Geophysical, 340 S.W.3d at 438 (“If there is vagueness, ambiguity, or room for policy determination in a statute or regulation, ... we normally defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the language of the statute, regulation, or rule.”). Because the plain language of *560Rule 801.44(q), standing alone, does not authorize marriage and family therapists to engage in diagnoses of any type, we conclude that Rule 801.44(q) does not exceed the statutory scope of practice for marriage and family therapists.
Accordingly, the trial court did not err in granting summary judgment in favor of the Therapist Defendants on this claim.4 We overrule the TMA’s first and second issues on appeal.
CONCLUSION
Having concluded that the trial court did not err in granting the TMA’s motion for summary judgment in part and in granting the Therapist Defendants’ motion for summary judgment in part, we affirm the judgment of the trial court.
. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is a 900 page categorical classification system that divides mental disorders into types based on criteria sets with defining features. Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, Text Revision, 4th ed. (2000)). According to the Therapist Defendants, the DSM is an authoritative compilation of information about mental disorders and represents the best consensus of the psychiatric profession on how to diagnose mental disorders.
. The terms "evaluation” and "diagnosis” are not defined in the statute. Accordingly, both parties assign the terms their common, ordinary meanings. See Tex. Gov’t Code § 311.011.
. While the parties join issue on whether Rule 801.42(13) exceeds the statutory scope of *559practice for marriage and family therapists based on their competing interpretations of Section 502.002(6), the proper construction of Rule 801.42(13) is generally not disputed. Both parties acknowledge that there is no substantive difference between the authority to conduct a "diagnostic assessment" and the authority to "diagnose.” See Webster’s Third New Int’l Dictionary 131 & 622 (2002) ("diagnostic” means "adopted to or used for the furthering of diagnosis: employing or marked by the methods of diagnosis” and "assessment” means "an appraisal or evaluation (as of merit)”). In addition, neither party disputes, and we agree, that the qualifying phrase "utilizing the DSM” refers to the ability to diagnose, at least to some degree, mental diseases and disorders. See United States v. Weis, 891 F.Supp.2d 1007, 1010 (N.D.Ill.2012) (explaining that the DSM provides "a standard, comprehensive diagnostic tool for evaluating mental disorders, and reflects a consensus opinion of the medical community at the time of publication”).
. In its third issue on appeal, the TMA asks, in the alternative, that this Court conclude that Section 502.002(6) is unconstitutional to the extent it permits marriage and family therapists to engage in the practice of medicine. See Tex. Const, art. XVI, § 31 ("The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for malpractice, but no preference shall ever be given by law to any schools of medicine.”). In response, the Therapist Defendants contend that the TMA failed to preserve this challenge because it was not raised by TMA as a ground for summary judgment. See Tex.R. Civ. P. 166a (issues not presented to trial court shall not be considered on appeal as grounds for reversal of summary judgment). Because we have concluded that Section 502.002(6) does not permit marriage and family therapists to engage in the practice of medicine, we do not decide this issue. See Tex.R.App. P. 47.1. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283820/ | J. Woodfin Jones, Chief Justice,
concurring and dissenting.
I respectfully dissent from the portion of the majority’s opinion that affirms the trial court’s declaration that rule 801.42(13) is void.
TMA makes too much of the use of the term “diagnose” in the MFT Board’s rules, virtually turning this case into a game of semantics. TMA assumes that the rules use a medical definition of “diagnose.” But because MFTs do not practice medicine, this assumption is unwarranted and unreasonable. Why would a non-medical body draft a rule using a term in its purely medical sense when a non-medical sense is available and arguably more common? The only reasonable construction of the rules is that the MFT Board used “diagnose” in the more common, traditional sense: “diagnose .... 2: to determine the causes of or the nature of by diagnosis <the teacher diagnosed and corrected the boy’s reading difficulties>.” Webster’s Third New Int’l Dictionary 622 (2002). The term “diagnosis” likewise has a common, non-medical meaning: “diagnosis .... 8: investigation or analysis of the cause or nature of a condition, situation, or problem < heat-flow measurements in the earth can aid in our diagnosis of the earth’s conditions” Id. Thus, the term “diagnose” does not necessarily refer to recognizing, identifying, and treating a disease, and it easily comes within the general concept of “evaluation” used in the MFT Act.
The MFT Act expressly authorizes MFTs to engage in “the evaluation and remediation of cognitive, affective, behavioral, or relational dysfunction in the context of marriage or family systems.” Tex. Occ. Code § 502.002(6). The challenged rules say nothing that would require or even permit an MFT to go outside those areas. Rule 801.42(13) states that an MFT may provide “diagnostic assessment” utilizing the knowledge organized in the well-known DSM manual. No therapist could hope to successfully remediate “cognitive, affective, behavioral, or relational dysfunction” in a marriage or family system without performing a “diagnostic as*561sessment” (in the general sense) of the individuals involved, and any therapist who attempted to evaluate an existing dysfunction in a marriage or family system without considering clear mental and emotional issues of the individuals involved would likely be committing malpractice.
Although the DSM manual is often used by psychiatrists, the categorization of mental disorders that it contains can obviously provide essential information to an MFT attempting to assist couples and families suffering from cognitive, affective, behavioral, or relational dysfunction.
In addition, the statutory definition of “practicing medicine” also contains a requirement that the person who is doing the “diagnos[ing], treating] or offering] to treat a mental or physical disease” must “directly or indirectly charge[ ] money or other compensation for those services.” Tex. Occ. Code § 151.002(a)(13)(B) (emphasis added). But an MFT who merely “utilizes the knowledge” in the DSM is not charging for the service of diagnosing a mental or emotional disease. Rather, he or she is simply using the knowledge organized in the DSM as part of developing an overall strategy for how best to remediate the clients’ cognitive, affective, behavioral, or relational dysfunction in the context of a marriage or family system. For this additional reason, the Therapist Board’s rules do not constitute “practicing medicine.”
I would uphold the validity of both rules. Accordingly, I would reverse the portion of the trial court’s judgment declaring Rule 801.42(13) void. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283821/ | OPINION
ANN CRAWFORD McCLURE, Chief Justice.
In this appeal we are asked to review a trial court’s final judgment and two contempt orders which were entered following two show cause hearings. The contempt proceedings resulted from the Appellants’ alleged refusal to comply with an agreed temporary injunction. For the reasons that follow, we lack jurisdiction to review the contempt rulings and the judgment which is based on the contempt findings on direct appeal.
FACTUAL SUMMARY
Quarry Hills Management, LLC (Quarry Hills) filed suit against German Chavi-ra and Alejandro Fabela, individually and doing business as El Paso Pavement Specialist and El Paso Pavement Specialist, LLC (collectively referred to as EPPS) on February 1, 2011. The suit alleged that Quarry Hills had retained EPPS as a subcontractor on three federal construction projects. The suit raised a number of claims, including business disparagement, breach of contract, tortious interference with contractual relationships, fraud, and conversion.
In particular, Quarry Hills complained that EPPS had not turned over “certified payroll” forms for several projects. On federal construction projects, certified payroll forms are one of the items that a contractor must submit to the owner to obtain final payment due under the job. 40 U.S.C. § 3145(a) (2014). The original petition sought a temporary restraining order and temporary injunction requiring EPPS to turn over certified payroll forms for three projects identified as “IBCT2-*563POV (Contract # W912HY-09-D-0004), BCT-3-CAB-P0V (Contract No W912HY-09-000-0003) and/or BCT-3POV (Contract No W912HY-09-D-0009,-0002).” Upon the filing of the suit the trial court issued a temporary restraining order, conditioned on the posting of a $500 bond, which required that the certified payroll forms for the three specified contracts be turned over to Quarry Hills immediately. The temporary restraining order was extended by a second ex parte order of the trial court which recited that the bond had been posted. The trial court extended the restraining order three additional times by agreed orders approved by Quarry Hills and counsel for at least one of the Appellants.1 The agreed extensions continued the temporary restraining order in force through a temporary injunction hearing set for June 6, 2011. Quarry Hills and EPPS mediated their disputes and reached a partial settlement which included an agreement by EPPS to prepare and file by May 20, 2011 certain certified payroll records, identified in a letter which is not of record. The mediation agreement contemplated that the parties would continue the June 7, 2011 temporary injunction hearing. That hearing was reset to August 30, 2011 and the parties mutually agreed to extend the temporary restraining order until the date of that hearing. EPPS’s initial counsel of record withdrew on August 5, 2011 and new counsel appeared on August 26, 2011.
At the temporary injunction hearing on August 30, the parties through counsel announced an agreement on the issuance of a temporary injunction. The agreement which was reduced to a written order recited that Quarry Hills would suffer irreparable injury unless the relief sought was granted and that the bond had already been posted. The agreed temporary injunction required that certified payroll records from two contracts be delivered by September 19, 2011.2 At the August 30 hearing, the trial judge instructed EPPS’ counsel to inform Appellant German Cha-vira that it is “very, very important — and I’m going to hold his feet to the fire — that he produce those records on September 19th.” EPPS counsel agreed to do so.
Quarry Hills filed a first “Plaintiffs Motion for Contempt and for Sanctions” on September 23, 2011. The motion contended that the payroll records had not been produced by the September 19 deadline in the temporary injunction. The motion was supported by the affidavit of David Vene-gas who swore that the United States Army Corp of Engineers was still demanding the certified payroll records; that failure to provide the forms was preventing the project from being closed out; and the situation .was jeopardizing Quarry Hills’ ability to contract for future federal projects. A show cause hearing was set for October 3, 2011.
German Chavira appeared at the October 3 hearing and testified as a partner of El Paso Pavement Specialist, LLC. It would have been evident to the trial court that there was some confusion amongst the parties as to the correct descriptive terms used to identify the different projects at issue. The agreed temporary in*564junction required EPPS to produce certified time records for project “BCT-3CAB-POV (Contract No W91211Y-09-000-003) and/or BCT-3-POV (Contract No W91211Y-09-D-0009,0002).” German Chavira testified to performing work on project “BCT-POV.” He brought some records to the hearing,'prepared by a third party identified as “TNT,” which combined projects “BCT-3-POV and “CAB.” Quarry Hills’ counsel contended that it really needed the certified payroll records for projects “BCT-POV” and “BCT-CAB-POV” and contended there was a third project called “BCT-3” which was done for another entity but for which payroll data had been intermingled.
Partly to resolve any confusion over the project descriptors, the trial court ordered the parties to meet the next day at a time and place certain. A third party auditor who had come to the hearing with Venegas was ordered to attend as well. German Chavira was ordered to bring all of his back up paperwork on the jobs, including time cards and all notes reflecting who was working on the two projects that he did for Quarry Hill. Chavira indicated that his secretary had provided the original time sheets to TNT for it to prepare what reports it did. The show cause hearing was reset for two days later on October 5.
When the parties reconvened the show cause hearing on October 5, EPPS’ counsel informed the trial court that the meeting the day before had lasted about ten minutes. EPPS’ counsel determined that the meeting would be fruitless without TNT’s participation. None of the back-up records, such as time cards, were brought to the meeting. Instead, EPPS’ counsel indicated that he had just recently made contact with TNT and was intending to have it assist in preparing the certified payroll records. The trial court recessed the hearing to permit EPPS’ counsel to confer with TNT to insure it would indeed meet with EPPS to prepare the certified payroll records. After the recess, EPPS’ counsel represented to the trial court that TNT would work with German Chavira to prepare the certified payroll records, and that Chavira would assist in that effort.
The trial court then ordered that EPPS pay $1,350 in attorney’s fees and $150 in costs as sanctions. EPPS was to produce the certified payroll records on or before October 15, 2011 and failing that, EPPS would be fined $300 per day until the records were delivered. The trial court warned Chavira, who was in the court room, that he needed to cooperate and that he risked arrest and confinement. The trial court specifically informed him:
The Court: That’s a very drastic measure, but if that’s what I have to do, Mr. Chavira, I’m going to do it. So, you’d better cooperate. I looked over there a little while ago and you were smiling and laughing. This is not a smiling and laughing matter. You’ve pushed me to the limit. Do you understand that, Mr. Chavira?
The Defendant: Yes, sir.
On January 6, 2012, Quarry Hills filed a motion to compel discovery responses. On January 17, 2012, it filed Plaintiffs Second Motion for Contempt and Sanctions. The trial court signed an order setting a show cause hearing on January 30, 2012. The order cites each of the Appellants for failure to produce the “Certified Payroll on the CAB-POV and the BCT-3-POV projects” and failure to pay the monetary sanctions ordered on October 5, 2011. The record does not show service of the show cause order personally on any of the Appellants. Their counsel, however, did file a response to the motion and appeared at the hearing on January 30, 2012.
EPPS’ response to the contempt motion raised several procedural challenges to the *565show cause hearing, including lack of personal service of the show cause order on any of the Appellants. The response also asserted that EPPS should not be required to produce any of the certified payroll records until EPPS was paid sums allegedly due it. Along with the response, EPPS served a notice of deposition for a corporate representative for Quarry Hills, requiring production of twenty-two categories of documents. The deposition was set three days from the date of filing the notice itself.
Both the show cause hearing and a motion to compel were set for January 30, 2012. At the hearing, EPPS’ counsel restated its position that once the certified payroll records were produced, the project would be “closed out” and EPPS would lose its ability to seek what it claimed it was owed. . EPPS then orally moved to increase- the bond to $250,000 which was the amount of its claim. Effectively, EPPS was arguing first that it could create the certified payroll records, but that it did not want to until it was paid or the bond was increased. It also argued that it could not create the certified payroll records without assistance.
The trial court noting, that it had “bent over backwards” more than in any other case, granted the motion for contempt and sanctions. It signed two orders on January 30, 2012. The first, labeled as an “Order,” compelled EPPS to pay $33,600 to Quarry Hills and struck EPPS’ pleadings. The trial court apparently arrived at this amount by multiplying the $300 per day fine for not producing the certified payroll reports by the number of days between October 15, 2011 and January 30, 2012, and by adding the $1,500 attorney’s fee and costs that had been awarded at the October 5, 2011 hearing. The order contains no finality language which would indicate that all issues between all parties had been finally resolved. But on the same day, the trial court signed a “Judgment” which also awards Quarry Hills $33,600 against EPPS based on all of Quarry Hills’ pleaded causes of action. The judgment includes pre-judgment and post-judgment interest as well court costs. It recites that “[tjhis Judgment finally disposes of all parties and all claims and is appealable.”
In this direct appeal, EPPS raises sixteen issues. Issue One complains that the trial court abused its discretion by imposing death penalty sanctions in a contempt proceeding. Issues Two, Seven, Ten, Twelve, Fourteen, and Fifteen raise procedural defects with the agreed temporary injunction, or the procedural issues attendant to the show cause hearings. Issues Eight, Nine, Eleven, and Thirteen challenge the sufficiency of the evidence to support a finding of contempt. Issues Three through Six contend in various ways the judgment cannot be supported as discovery sanction. Issue Sixteen generically asserts that EPPS was harmed by the contempt orders and Judgment.
JURISDICTION
EPPS filed its notice of appeal complaining of both the Order and Judgment signed on January 30, 2012. Many of its issues also attack the October 5, 2011 contempt order awarding $1,500 in attorney’s fees and costs, and assessing a $300 per day fine for continued noncompliance with the agreed temporary injunction.
Quarry Hills initially contends that this Court lacks jurisdiction to hear any part of this appeal because contempt orders, even if final, are not reviewable on direct appeal. The Texas Supreme Court has held a number of times that a contempt order cannot be reviewed on direct appeal. Texas Animal Health Commission v. Nunley, 647 S.W.2d 951, 952 (Tex. *5661983); Deramus v. Thornton, 160 Tex. 494, 383 S.W.2d 824, 827 (1960) (orig. proceeding) (“We have uniformly held in this State ... that the validity of a contempt judgment can be attacked only collaterally and that by way of habeas corpus.”); Wagner v. Wamasch, 156 Tex. 334, 295 S.W.2d 890, 893 (Tex.1956). A contempt order involving incarceration must be reviewed through an application for writ of habeas corpus. Ex parte Williams, 690 S.W.2d 243, 243 n. 1 (Tex.1985). When the contempt order only involves money fines, and habeas relief would be unavailable, mandamus is the appropriate procedure for obtaining review of a contempt order. In re Long, 984 S.W.2d 623, 625 (Tex.1999) (orig. proceeding) (per curiam) (“Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of mandamus.”); Rosser v. Squier, 902 S.W.2d 962, 962 (Tex.1995) (orig. proceeding) (per curiam) (issuing mandamus to invalidate fine exceeding $500 limit imposed by Government Code when no incarceration was at issue); Hernandez v. Hernandez, 318 S.W.3d 464, 466 n. 1 (Tex. App.-El Paso 2010, no pet.); In re Office of Atty. Gen. of Texas, 215 S.W.3d 913, 916 (Tex.App.-Fort Worth 2007, no pet.).
Whether the order complained of is final or not does not alter this equation; even a final contempt order is not subject to direct appeal. Wagner v. Wamasch, 295 S.W.2d at 893 (“If, by a liberal construction, the order should be held to be a judgment of contempt, it would, nevertheless, not be an appealable order.”); Beeler v. Fuqua, 351 S.W.3d 428, 433 (Tex.App.-El Paso 2011, pet denied). But certainly, if a final judgment is entered in a proceeding that also might include some contempt issue, the non-contempt portion of final judgment is directly reviewable. Richey v. Bolerjack, 589 S.W.2d 957, 959 (Tex.1979). In Richey, for instance, the proceeding involved a request to modify a child support order, and a contempt motion for the failure to pay past child support. Id. at 958. The court of appeals concluded it could not hear any part of the case because the trial court had not ruled on the contempt motion. Id. The Texas Supreme Court reasoned that the trial court judgment was final and remanded the case to the court of appeals to hear the appeal. Id. at 959. On remand, the court of appeals decided the modification and child support issues, but did not decide any issue related to failure of the trial court to rule on the contempt motion. Richey v. Bolerjack, 594 S.W.2d 795 (Tex.Civ.App.-Tyler 1980, no writ). The portion of a direct appeal from a final judgment which challenges a contempt finding should be dismissed; any other remaining issues should be decided on the merits. Metzger v. Sebek, 892 S.W.2d 20, 55 (Tex.App.-Houston [1st Dist.] 1994, writ denied), cert. denied, 516 U.S. 868, 116 S.Ct. 186, 133 L.Ed.2d 124 (1995).
These defined avenues for review have formed a “judicial path so well land-marked” that the Texas Supreme Court has been reluctant to depart from it. Deramus, 333 S.W.2d at 827. This court, and our sister courts of appeals, have followed that path on many occasions. E.g., Beeler, 351 S.W.3d at 433; Hernandez, 318 S.W.3d at 466 n. 1; Tracy v. Tracy, 219 S.W.3d 527 (Tex.App.-Dallas 2007, no pet.); Vernon v. Vernon, 225 S.W.3d 179 (Tex.App.-El Paso, 2005 no pet.); Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex.App.-Fort Worth 2001, pet. denied) (en banc) (“A contempt judgment is reviewable only via a petition for writ of habeas corpus (if the contemnor is confined) or a petition for writ of mandamus (if no confinement is involved)”).
*567EPPS responds to this line of cases by claiming that when the trial court utilizes non-traditional contempt remedies, such as here when the trial court strikes an answer, that ruling may be attacked by direct appeal. EPPS relies on Roloff Evangelistic Enterprises, Inc. v. State, 598 S.W.2d 697 (Tex.Civ.App.-Austin 1980, no writ) which reviewed a civil penalty awarded in a contempt proceeding by direct appeal. The Austin Court of Appeals reasoned that the civil penalty at issue was actually a fine authorized by the Child Care Licensing Act, rather than a fíne arising out of a contempt proceeding. Id. at 700. In other words, while the judgment said it is was a contempt order, it really was something else. Later, the Corpus Christi Court of Appeals in State v. Barraza, 742 S.W.2d 784, 785 (Tex.App.Corpus Christi 1987, no writ) cites Rolojf as support for an exception to the rule of no direct appeals from a contempt order. The exception arises “where the relief prayed for in the motion and afforded in the judgment is not of the character associated with contempt proceedings.” Id. at 785.
Were we writing on a clean slate, we might be persuaded that an exception such as stated in Barraza, or something like it, would make for good policy. We are certainly troubled here by the prospect of what appears on its face to be a final judgment, and denominated as being “ap-pealable,” but which cannot be directly appealed. Nonetheless, we are persuaded that the court in Barraza misread the rationale in Rolojf to create an exception where none existed. Barraza itself was not applying any exception, so its discussion of Rolojf roas dictum. Neither Barra-za nor Rolojf have been cited in support of this “exception” in the many years since they were decided. Constrained by the prior precedent of the Texas Supreme Court and this court, we decline to venture forth to create a new exception to the rule that contempt orders must be addressed collaterally by either habeas corpus or mandamus.
Moreover, we note that in the record below that there is an order dated October 7, 2011 finding Appellants in contempt and assessing attorney’s fees, costs, along with a daily fine for non-compliance. The record contains a January 30, 2012 order assessing a $83,600 judgment consisting of the unpaid attorney’s fees and costs, and the sum of the accumulated daily fines. Even if the final judgment here were subject to direct review, we would decline to hear issues surrounding the two other contempt orders for want of jurisdiction. See, Metzger, 892 S.W.2d at 55 (dismissing for want of jurisdiction those portions of appeal pertaining to contempt finding). And any relief that this court might issue with respect to the final judgment would therefore leave intact the almost identical contempt penalties which are found in the January 30, 2012 order. Unless EPPS validly challenges both the final judgment and the January 30, 2012 order, any error associated with challenging only one of the orders is harmless.
Accordingly, we lack the jurisdiction to hear EPPS’s Issue One, Two, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, and Sixteen as each of these issues seek to challenge by direct appeal the trial court’s rulings arising out of contempt proceedings and dismiss the appeal with respect to these issues on appeal.
DISCOVERY SANCTIONS
In Issues Three, Four, Five, and Six, EPPS also challenges the judgment to the extent it was based on a discovery sanction authorized under Tex.R.Civ.P. 215. In varying ways, EPPS contends the *568“death penalty” sanction cannot stand under the safeguards set out in TransAmerican Natural Gas v. Powell, 811 S.W.2d 913 (Tex.1991) and its progeny. EPPS no doubt raises these issues because at the second show cause hearing the parties were concurrently hearing a motion to compel. But as Quarry Hills concedes in its briefing, the trial court never entered any orders on the motion to compel and the judgment and contempt orders were not based on discovery abuse.. Rather, the judgment and contempt orders were based on the failure to create and provide a certified payroll form. In fact, a discovery request can only seek a document that is in a party’s possession, custody or control; it cannot compel a party to create a document where none exists. In re Colonial Pipeline Co., 968 S.W.2d 938, 942 (Tex.1998). Because the challenged orders were not the result of a discovery sanction, we overrule Issues Three, Four, Five, and Six. If properly challenged, the judgment and the contempt orders will survive, or. not survive, based only on the procedural and substantive issues encompassing EPPS’ apparent refusal to create and provide the certified payroll forms as it agreed to do in a temporary injunction. We affirm the judgment of the trial court below.
RIVERA, J., not participating.
. None of the Appellants had filed an answer or formal appearance during this time period. An attorney identified in the extension orders as “counsel for Defendant” approved each of the extension orders as to form.
. The projects were identified in this Order as: "BCT-3-CAB-POV (Contract No W91211Y-09-000-0003) and/or BCT-3-POV (Contract No W9121 lY-09-D-0009,0002).” The temporary injunction thus differs from the temporary restraining order in that one project was deleted and in the other two, an "H” in the contract number was replaced with "11.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283822/ | OPINION OF THE COURT BY
JUSTICE VENTERS
Seeking post-conviction relief from a death sentence, Appellant John Roscoe Garland argued in the McCreary Circuit Court that he was deprived of due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution, when, immediately after his trial, police officers acting in bad faith destroyed certain items of evidence, rendering them unavailable for DNA testing. Following an evidentiary hearing on the issue, the McCreary Circuit Court found that the officers had not acted in bad faith when the evidence was destroyed. The court denied Garland’s request. Garland now appeals that ruling to this Court. For the reasons stated below, we conclude that Garland had previously abandoned his request to have those items of evidence tested by DNA analysis, and therefore, waived any complaint he may have about their unavailability for DNA testing. We also conclude that Garland failed to establish the officers acted in bad faith, and so we affirm the decision of the McCreary Circuit Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
We begin by reviewing the procedural route this case has taken to reach this point. Garland was charged with three counts of murder for the 1997 slayings of *783Jean Ferrier, Crystal Conaster, and Chris Boswell. Following a jury trial in the McCreary Circuit Court, he was convicted and sentenced to death on each count. We affirmed the convictions and the death sentences in Garland v. Commonwealth, 127 S.W.3d 529 (Ky.2003).
. After his convictions were affirmed, Garland filed a motion in the circuit court to obtain DNA testing and analysis of certain evidentiary items pursuant to KRS 422.285, which permits a person convicted of murder and other specified crimes to request DNA testing of items “related to the investigation or prosecution ... that may contain biological evidence.” Garland also invoked KRS 422.287, which permits persons “being tried for a capital offense” to obtain DNA testing and analysis of items of evidence. Specifically, Garland moved the court to submit, among other things, three evidentiary items for DNA testing and analysis: the hair recovered from Jean Ferrier’s left hand; hair found on a broken Ferrier fingernail; and Jean Ferrier’s fingernail clippings. The McCreary Circuit Court denied Garland’s motion, and he appealed that ruling to this Court. See Garland v. Commonwealth, 2011 WL 2112497 (Ky.2011). (Garland II). We reversed, and remanded the matter to the circuit court for an evidentiary hearing. Significantly, we specifically held the following:
In his first pro se motion, Appellant specifically requested DNA testing, pursuant to KRS 422.285, of the clump of hair in Jean Ferrier’s hand and the possible hair under her fingernail. Appellant’s first motion also requested testing of a number of additional items, and raised additional grounds for DNA testing. On appeal, however, Appellant now limits his argument to the two items previously mentioned, and cites KRS 422.285 as the only statutory ground for testing. Therefore, we need not address testing of the other items listed in Appellant’s first motion, and will now consider whether the trial court erred in denying Appellant’s motion for DNA testing of the two hair specimens under KRS 422.285.
Garland II, at *3. (emphasis added).
Our opinion concluded as follows:
We affirm that part of the circuit court’s judgment that denied testing of items evidence that Appellant has abandoned on appeal. As to Appellant’s first appeal regarding his pro se motion for DNA testing and analysis of the clump of hair collected from Jean Ferrier’s left ■hand, and the possible hair collected from Ferrier’s fingernail clippings, the judgment of the McCreary Circuit Court is reversed, and the matter remanded for proceedings consistent with this opinion.
Garland II, at ⅜6.
Upon remand following our opinion, the circuit court conducted the evidentiary hearing. At the hearing, the court was informed that the two evidentiary items argued in the appeal, the “clump of hair in Jean Ferrier’s hand” and the “possible hair under her fingernail” had been subjected to DNA testing. The analysis showed the clump of hair came from Chris Boswell, one of the other murder victims. The results of the hair found in Jean Fer-rier’s broken fingernail showed that one strand of hair came from Jean Ferrier and another strand came from Chris Boswell. The origin of the third strand was indeterminable, and was perhaps not even human hair. None of these discoveries exculpated Garland.
The evidentiary hearing also revealed that Jean Ferrier’s fingernail clippings were not subjected to DNA testing because they had been discarded fourteen years earlier, immediately following the *784trial, by Kentucky State Police (KSP) officers, Sgt. David Biggerstaff and Detective Ronnie Meadows.
Biggerstaff testified at the evidentiary hearing that he was the evidence supervisor at the time of the trial and that his duties included cataloging, storing, ánd disposing of evidence. According to Big-gerstaff, KSP policy provided that items were deemed to have no “evidentiary value” if they were not introduced as evidence at trial. He said that it was standard KSP procedure at the conclusion of a trial to “process out” (i.e. destroy or return to their owners) items that had no “evidentia-ry value.” Meadows also testified, largely echoing what Biggerstaff said regarding KSP policy and the processing of evidence. Meadows added that according to their policy, items introduced at trial were preserved and that items not introduced at trial, such as the Jean Ferrier fingernail clippings, were destroyed. It is worth noting .that the loss of the fingernail clippings occurred despite the trial court’s entry two years earlier of a “no-destruction” order. The trial court noted that the KSP was not on the distribution list for that order. Apparently, the KSP ordinarily documented the destruction of evidentiary items “processed out” at the end of a trial; however, no destruction form relating to the fingernail clippings was introduced at the hearing, and we find none in the record of the case.1
Biggerstaff and Meadows disclaimed any knowledge of the destruction of any mitigating or exculpatory evidence. Following the evidentiary hearing, Appellant moved the court for a new trial on the grounds that the KSP had acted in bad faith in destroying the fingernail clippings, thus depriving him of due process. The trial court denied that motion, finding that the destruction of the fingernail clippings “was not done by the officers, or any agent of the Commonwealth, in any bad faith.” Citing to our decisions in Collins v. Commonwealth, 951 S.W.2d 569, 573 (Ky.1997), and Moore v. Commonwealth, 357 S.W.3d 470, 484-85 (Ky.2011), the court further found “[t]here is no evidence of any, and this Court finds that there was no willful, malicious or duplicitous motive to defeat or impair in any way the Defendant’s due process rights by destroying the items in question, specifically but not limited to the fingernail clippings.” Garland now appeals from the trial court’s order denying his motion for a new trial.
II. GARLAND WAIVED HIS RIGHT TO DNA TESTING OF THE FINGERNAIL CLIPPINGS
Appellant waived his due process claim regarding the unavailability of the fingernail clippings and his inability to have them tested for DNA evidence because in the 2011 appeal (Garland II), he did not pursue his argument to have those items tested. As noted in the portion of the opinion quoted above, when Garland appealed the order refusing his request for DNA testing, he limited his claim to testing two hair specimens: “the clump of hair *785in Jean Ferrier’s hand and the possible hair under her fingernail.”
These items were DNA tested and analyzed and the results yielded no exculpatory evidence. While Appellant may have requested DNA testing of the fingernail clippings in his initial motions in the trial court, he failed to pursue such testing on appeal. Arguments not pursued on appeal are deemed waived. Cook v. Popplewell, 394 S.W.3d 323, 327 n. 5 (Ky.2011); Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky.2010) (“[A]n extension of the core law-of-the-case doctrine is the rule that precludes an appellate court from reviewing not just prior appellate rulings, but decisions of the trial court which could have been but were not challenged in a prior appeal”). Thus, because Appellant confined his argument on appeal to DNA testing of the two sets of hair samples he waived his claims with regard to all other items.
Based upon the issues as Garland presented them in Garland II, our opinion ordered the testing of only the hair samples found in Ferrier’s hand and on her fingernail, not the fingernail clippings generally, for whatever biological substance they may hold other than hair. Garland’s failure to assert his right to have the fingernail clippings analyzed in his 2011 appeal foreclosed his right to make that demand later. That, in turn, forecloses the claim he now wishes to make; namely, that the destruction of the nail clippings deprived him of due process and entitled him to a new trial.
Garland abandoned his interest in DNA testing of anything other than the hair specimens. Through the pretrial discovery process, he was made aware that biological specimens had been collected, including the fingernail clippings. He did not seek to have them examined before trial. He invoked his statutory right after trial to have them tested for DNA evidence, but did not pursue that testing on appeal. As a result, we ruled that only the hair samples should be submitted for DNA testing. Garland cannot, after discovering that the fingernail clippings are no longer available for testing, revive his interest in them with the claim that their destruction violated his right to due process. “[I]ssues decided in earlier appeals should not be revisited in subsequent appeals.” St. Clair v. Commonwealth, 451 S.W.3d 597, 612 (Ky.2014) (citing Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky.2010)).
III. THE TRIAL COURT’S FINDING THAT THE EVIDENCE WAS NOT DESTROYED IN BAD FAITH WAS NOT CLEARLY ERRONEOUS
The destruction or mishandling of evidence by officers or agents of the state may result in a due process violation. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). However, the state’s destruction of evidence in and of itself does not establish a due process violation. A due process violation arises when the government, acting in bad faith, has caused evidence “potentially useful” to the defense to be destroyed or rendered unavailable. Youngblood, 488 U.S. at 58, 109 S.Ct. 333.2
We have previously held that in order to make out a due process violation where evidence has been destroyed a defendant *786must show (1) the Commonwealth acted in bad faith in destroying the evidence; (2) the potential exculpatory value of the evidence was apparent before its destruction; and (3) the evidence destroyed was, at least somewhat, irreplaceable. McPherson v. Commonwealth, 360 S.W.3d 207, 217 (Ky.2012). “The first two elements are interrelated ... it must appear that the state deliberately sought to suppress material, potentially exculpatory evidence.” Id. Thus, whether or not Garland has been deprived of due process will depend upon the facts demonstrating the exculpatory nature of the evidence and the culpability of the government actors in destroying the evidence.
As an appellate court, we defer to the trial court’s findings of fact and we do not disturb those findings on appeal unless those findings are clearly erroneous. CR 52.01. “A factual finding is not clearly erroneous if it is supported by substantial evidence.” Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky.App.2003). “Substantial evidence is evidence, when taken alone or in light of all the evidence, which has sufficient probative value to induce conviction in the mind of a reasonable person.” Id.
Garland concedes that the fingernail clippings had no known exculpatory value when they were destroyed. He contends, however, that an analysis of the biological material, if any, which may have been found on the fingernail clippings, had the potential to be exculpatory; and we agree. Throughout the trial, Garland maintained that his son, Roscoe, committed the murders. Roscoe testified at trial for the Commonwealth. He denied committing the murders and testified in great detail how his father, Garland, shot and killed all three victims. Finding Roscoe’s DNA on Jean Ferrier’s fingernail clippings would suggest that Roscoe was involved in a struggle with Ferrier and was not, as he claimed, a passive witness. Certainly, anyone involved in the trial, including the prosecutors, the police officers, and defense counsel, who were aware of the competing claims, could have surmised the potential evidentiary value that might arise from an analysis of the fingernail clippings. Garland satisfies the second and third prongs of the test we outlined in McPherson: the potential exculpatory value of the evidence was apparent before its destruction; and fingernail clippings are “at least somewhat, irreplaceable.” McPherson, 360 S.W.3d at 217.
Garland fails, however, to satisfy the first and most crucial prong of the McPherson test: bad faith on the part of the government. The trial court found that KSP officers Biggerstaff and Meadows did not act in bad faith when they destroyed the fingernail clippings, and that finding is supported by substantial evidence, and thus was not clearly erroneous. The evidence clearly showed that the officers disposed of the material in accordance with the routine KSP protocol for handling collected evidence that was not introduced at trial. As conceded by Garland, the fingernail clippings had no known exculpatory value during and after the trial. It was, therefore, reasonable for the officers to assume after the trial that, if neither the prosecution nor the defense had any use for an item, there was no reason to keep it. The trial court also noted that its order to preserve evidence was entered two years prior to the trial and was never conveyed to the officers.3
In Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988), we held that a de*787fendant’s due process and discovery rights were violated when the prosecutor deliberately erased witness interview tapes in order to keep defense counsel from obtaining the statements contained therein. Here, however, in stark contrast to San-born, sufficient evidence was presented to “induce conviction in the mind of a reasonable person”4 that the fingernail clippings were discarded as a matter of course in routine compliance with existing policy, and with no intention of depriving Garland of exculpatory evidence. Accordingly, we are not at liberty to disturb the trial court’s factual finding on this issue.
IV. CONCLUSION
For the reasons set forth above, the judgment of the McCreary Circuit Court is affirmed.
Minton, C.J., Abramson, Cunningham, Keller, Noble and Venters, JJ., sitting. All concur.
. A KSP evidence destruction form was presented at the hearing showing that police investigating the crimes had used a rape kit to collect potential evidence. Nothing relating to the rape kit was introduced into evidence at the trial. No sexual crimes were alleged in connection with the shootings. Appellant never requested to have the rape kit items tested for DNA. The destruction form was ostensibly signed by Meadows and Bigger-staff, but both officers denied signing it. Meadows and Biggerstaff said that someone else had signed their names to the form, possibly a KSP clerk. Appellant argued that this apparent forgery, otherwise unconnected to the fingernail evidence, indicated bad faith in the destruction of the fingernail clippings.
. But cf., Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) holding that a prosecutor's failure to disclose exculpatory evidence may result in the deprivation of due process, even in the absence of bad faith. Garland does not assert a Brady violation; the existence of the evidence was made known to him prior to trial.
. Notwithstanding the KSP protocol for the post-trial disposition of evidence, at least in the context of a capital offense resulting in a death sentence, the better practice would seem to dictate preserving all items collected in connection with the case. The protracted *787appellate processes that flow from a death case are well known, and, as here, often result in post-trial proceedings if not an entirely new trial under different evidentiary circumstances. Notice to the prosecution, the defense counsel and the trial court seem like prudent steps to take in a death penalty case when the post-trial destruction of such items is contemplated.
. See Hunter, 127 S.W.3d at 659. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283823/ | OPINION OF THE COURT BY
JUSTICE NOBLE
The Appellant, John David Cherry, Jr., was convicted of murder, first-degree wanton endangerment, second-degree unlawful imprisonment, carrying a concealed deadly weapon, third-degree trafficking in a controlled substance, trafficking in marijuana less than eight ounces, and possession of a controlled substance not in its original container. He was sentenced to life in prison. On appeal, he challenges his convictions on several grounds as set forth below. Finding no reversible error, this Court affirms.
I. Background
Cherry testified that the events in this case arose while he was in the midst of a multiple-day “bender” that took place from Friday, March 18, 2011, to early Sunday, March 20, 2011. He testified that he did not sleep from the time he awoke on Friday morning until he was booked into jail after his arrest Sunday morning and that *790he had used copious amounts of drugs during this period.
As part of the bender, Cherry spent Saturday evening and early Sunday morning ingesting a variety of intoxicating substances with friends. He began the night with his friend, Mike Maudlin, with whom he went to a bar in Lexington. At around 2:00 a.m., another friend, Richie Perez, picked them up from the bar and drove them to Maudlin’s home. Throughout the night, Cherry and his friends drank alcohol, smoked marijuana, used cocaine, and took prescription pills, including Klonopin.
Shortly after arriving at Maudlin’s, Cherry called his cocaine dealer, who lived in a Hedgewood Court apartment in the Woodhill subdivision. Cherry tried to get Maudlin or Maudlin’s roommate to drive him to Hedgewood Court, but both declined. And Maudlin took a Klonopin and fell asleep shortly thereafter. Cherry then called for a taxi from Yellow Cab of Lexington. Amine Lemghaili was dispatched and arrived at Maudlin’s residence to pick up Cherry at 3:09 a.m.
At 3:19 a.m., Lemghaili’s taxi pulled into the Hedgewood Court parking lot. Due to inconsistencies between Cherry’s statements to police and testimony at trial, what happened next is unclear, but it is undisputed that Cherry killed Lemghaili by shooting him in the back of the head with a .38-caliber revolver that belonged to Maudlin. Around 3:20 a.m., a resident of Hedgewood Court heard a gunshot followed by an engine accelerating. Surveillance footage showed Cherry walking from Hedgewood Court across some basketball courts toward Osage Court at 3:21 a.m.
Cherry’s flight from the scene first led him to a friend’s house nearby. The friend was unhappy with Cherry for coming to his house and knocking on his door at that hour, and Cherry was forced to leave shortly after arriving.
At 3:40 a.m., Cherry called Perez, who also lived nearby on Osage Court, but Perez did not answer. Sometime after making this call, Cherry met up with another friend, “AK.” Because Cherry could not get in touch with Perez, he asked AK to walk to Perez’s house and tell Perez to come pick him up and drive him back to Maudlin’s apartment.
Shortly thereafter, Perez picked up Cherry and drove him back to Maudlin’s residence. During the drive, Cherry acted shaken and scared. He told Perez that he could not believe what he had done but would not tell him what had happened.
Cherry placed a call to his girlfriend, Delania Bates, at 4:11 a.m., and asked her to come get him at Maudlin’s house and drive him to her apartment.
It is unclear at what time Cherry arrived at Maudlin’s apartment, but when they arrived, he and Perez smoked marijuana. Then Perez drove home. Also while at Maudlin’s, Cherry retrieved his .45-caliber pistol and returned Maudlin’s .38-caliber revolver.1
Around 5:00 a.m., Bates arrived at Maudlin’s to pick up Cherry, at which time she saw him snorting cocaine. They then drove to her apartment.
An argument between Cherry and Bates ensued during the car ride, and once inside Bates’s apartment, Cherry fired a shot in *791her vicinity.2 The bullet traveled through the wall and became lodged in a kitchen cabinet in the adjacent apartment. They then left Bates’s apartment for fear of the police coming and initially drove to Cherry’s grandmother’s house. She was not home, so they headed to Cherry’s mother’s house, which was “out in the country” some distance away. During this time, they continued to argue.
On the way to his mother’s house, Bates told Cherry she needed gas, so they pulled into a Marathon gas station at around 7:45 a.m. When Cherry got out of the vehicle, Bates shut the doors and drove off. Cherry chased after her, pulling his gun and pointing it at the fleeing vehicle.
A bystander, John Thomas, had been getting gas at the Marathon station and witnessed what occurred. Still holding his handgun, Cherry approached and had Thomas drive him to Wal-Mart.3 Once Cherry left his vehicle, Thomas called the police.
At 8:15 a.m., Cherry entered Wal-Mart and proceeded toward the sporting goods department. He spoke on the phone with his mother while walking through the store, and an employee overheard him say, “I love her. She left me. I’m gonna kill her.” Before the employee could call and warn the employee in sporting goods of her concerns, Cherry arrived at the sporting goods desk and purchased .45-caliber ammunition. He then pulled his handgun from behind his back and began loading it. The employee at the sporting goods register told Cherry he could not load the gun inside the store, so Cherry tucked the gun back into his waistband and exited the store. Employees at Wal-Mart also called police.
Outside Wal-Mart, Cherry walked to an adjacent McDonald’s parking lot, at which time he was spotted by Officer Matthew Smith, who confirmed Cherry matched the description provided by dispatch. Officer Smith exited his squad car, drew his weapon, and ordered Cherry to the ground. Ignoring Officer Smith’s commands, Cherry dropped the Wal-Mart bag containing the recently purchased ammunition and reached for his gun. The officer took cover behind his vehicle and continued giving Cherry verbal commands, which were ignored. Cherry eventually dropped his weapon, and Officer Smith handcuffed him.
Shortly thereafter, Officer Jerry Parsons arrived on the scene and placed Cherry in the backseat of his cruiser. A search incident to arrest uncovered various drugs and cash in Cherry’s pockets. Officer Parsons transported Cherry to the jail and interviewed him regarding the pills, Bates, Thomas, and Wal-Mart.
That morning, Lemghaili’s body was discovered in his taxi at Hedgewood Court. Officer B.J. Blank was the first to arrive on the scene, and he noticed that the front wheels of the taxi van had jumped the parking curb. The taxi was in park with the ignition turned off. Officer Blank found Lemghaili’s body slumped over in the driver’s seat with the seat belt fastened and a gunshot wound to the back of the head. Through information gleaned from the GPS device in Lemghaili’s taxi and his cell phone, the police discovered that Lemghaili’s last phone conversation had been with Cherry and that his last *792route driven had been from Maudlin’s home to Hedgewood Court.
Cherry spoke with his mother on the phone several times while he was in jail, and these conversations were recorded. On March 21, 2011, Cherry told his mother he had been trying to shoot Bates in the head when he shot at her, but he had missed because she ducked. He also asked his mother if she had seen the City-Region Section of that day’s Lexington Herald-Leader newspaper. She had, and Cherry said, “That was me.” The top story in the City-Region Section was about Lemghaili’s murder. Later, he stated, “I didn’t think I had it in me. I blacked out.”
After listening to this recorded conversation, detectives seized Cherry’s personal effects — his clothing and cell phone — from the detention center. Blood was observed on Cherry’s clothing. A forensic biologist later confirmed the presence of Lemghai-li’s DNA on Cherry’s gloves and jacket.
Cherry called his mother again on March 24, telling her that he was in “so much more trouble now.” He told her that the police had seized his cell phone, had found the bullet in the neighbor’s apartment, and had spoken with Maudlin. He stated that he had “screwed up real, real bad”; had thrown away his life; and would be old and have gray hair when he got out of jail.
On March 25, after listening to the jail phone calls, Detectives Rob Wilson and Matt Brotherton decided to question Cherry about the Lemghaili shooting. Cherry stated that he had been very intoxicated on drugs and alcohol on Saturday night and claimed not to remember what had happened. He admitted to having gotten into an argument with Bates and shooting his gun in her apartment. Eventually, Cherry began crying and stated, “I seen his face on the news. I don’t remember. I woke up, and I was in jail.” One of the detectives then asked, “What are we talking about?” and Cherry responded, “Talking about murder.”
Cherry maintained throughout the interview that he did not know or remember what had happened that night. At one point, he stated, “I think I tried to walk away without paying for the cab.” Later he said, “Because you don’t believe me when I tell you stuff that I don’t remember, I’m guilty. You’re recording. I’m guilty. I swear to god I’m sorry, [inaudible] I deserve whatever happens to me.” Several minutes later, after more statements of remorse and complaining that he only had occasional, brief flashes of what had happened that night, Cherry stated, “I would like to even say it was self-defense, but I would be lying and I don’t know. I’m telling you now what I know.”
At the end of the interview, Cherry was charged with Lemghaili’s murder.
At trial, Cherry’s primary defense was voluntary intoxication under KRS 501.080(1), which would have reduced his murder conviction to second-degree manslaughter, see Fields v. Commonwealth, 274 S.W.3d 375, 414 (Ky.2008) (“[Vjolun-tary intoxication is not an absolute defense, but rather reduces an intentional crime to one requiring a culpable mental state of wantonness.”), overruled on other grounds by Childers v. Commonwealth, 332 S.W.3d 64 (Ky.2010).
He claimed that at the time of the shooting, he had not slept for two days; had consumed vast quantities of alcohol and various drugs, including marijuana, pills, and cocaine; and had been so intoxicated that he had not understood what was happening in the taxi cab and had not intended to shoot and kill Lemghaili. He testified that he had passed out in Lemghaili’s taxi during the ride and that when awak*793ened by the driver yelling at him, he had believed some of his money was missing and accused the driver of stealing from him. Cherry testified that while they were yelling at each other — Cherry demanding, “Give me my money,” and Lem-ghaili yelling, “Get out” — Lemghaili turned toward the front of the taxi and appeared to reach for something between his legs, at which time Cherry fired a shot toward the front of the vehicle. Cherry claimed at trial that he had believed Lemghaili may have been reaching for a weapon.
The jury found Cherry guilty of murder, first-degree wanton endangerment for the shooting in Bates’s apartment, second-degree unlawful imprisonment relating to Thomas, carrying a concealed deadly weapon, third-degree trafficking in a controlled substance, trafficking in less than eight ounces of marijuana, and possession of a controlled substance not in its original container. He was sentenced to life in prison and now appeals to this Court as a matter of right. See Ky. Const. § 110(2)(b).
Additional facts will be developed as needed below.
II. Analysis
A. The trial court did not err in denying Cherry’s motion to sever the murder charge from the other charges.
Cherry first claims that the trial court abused its discretion and committed reversible error by denying his motion to sever the murder charge from the other charges related to the events involving Bates, Thomas, and Wal-Mart. He contends that his shooting of Lemghaili was unrelated to the later events and that joining the charges allowed the Commonwealth to introduce otherwise inadmissible and prejudicial KRE 404(b) evidence of the jointly-tried offenses.
Joinder of multiple offenses in a single indictment is permitted “if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.” RCr 6.18. Even if the requirements of Criminal Rule 6.18 are met, the trial court should nevertheless order the offenses be tried separately if joinder would be prejudicial to either the defendant or the Commonwealth. RCr 9.16. When moving for severance under Criminal Rule 9.16, “a defendant must prove that joinder would be so prejudicial as to be unfair or unnecessarily or unreasonably hurtful.” Ratliff v. Commonwealth, 194 S.W.3d 258, 264 (Ky.2006) (internal quotation marks omitted); see also Parker v. Commonwealth, 291 S.W.3d 647, 656-57 (Ky.2009) (“Because a defendant is prejudiced simply by virtue of being tried at all, we require a defendant to show that he would be ‘unfairly prejudiced’ by a joinder.”).
Trial judges are vested with great discretion in determining whether to join or sever offenses, Brown v. Commonwealth, 458 S.W.2d 444, 447 (Ky.1970), and this Court has consistently declined to disturb that discretion absent a showing of clear abuse and actual prejudice, e.g., Spencer v. Commonwealth, 554 S.W.2d 355, 357 (Ky.1977). Before an appellate court will reverse a trial court’s joinder decision, it “must be clearly convinced that prejudice occurred and that the likelihood of prejudice was so clearly demonstrated to the trial judge that the refusal to grant a severance was an abuse of discretion.” Murray v. Commonwealth, 399 S.W.3d 398, 405 (Ky.2013); see also Peacher v. Commonwealth, 391 S.W.3d 821, 838 (Ky.2013) (“[W]e have many times noted that an erroneous severance ruling does not justify appellate relief unless it resulted in *794actual prejudice to the party opposing the ruling.”).
This Court has long held that joinder is proper under Criminal Rule 6.18 when “the crimes are closely related in character, circumstance, and time.” Seay v. Commonwealth, 609 S.W.2d 128, 131 (Ky.1980). “Offenses that stem from closely related events and which occur within a short period of time may be properly joined in one indictment.” Chestnut v. Commonwealth, 250 S.W.3d 288, 299 (Ky.2008). As this Court has previously explained, to justify joining separate offenses in a single trial, “[t]here must be a sufficient nexus between or among them.” Peacher, 391 S.W.3d at 837. The required nexus must arise “from a ‘logical’ relationship between [the crimes], some indication that they arose one from the other or otherwise in the course of a single act or transaction, or that they both arose as parts of a common scheme or plan.” Id.
Here, all of the charges stemmed from Cherry’s continuous course of conduct spanning only about five hours. As the trial court aptly noted, at no point during that five-hour period was the defendant doing nothing. A clear, unbroken chain of events connected the shooting in the taxi to Cherry’s ultimate arrest after exiting the Wal-Mart. Indeed, the events leading to his commission of each of the charged crimes were like falling dominos, with each poor decision inexorably leading to the next. Despite the dissent’s unfounded fears that we are interjecting a “new ‘continuous course of conduct’ standard” for permitting joinder of dissimilar offenses, we use that phrase only as a general description of the events leading from the murder to Cherry’s ultimate arrest, not as a dispositive finding. Rather, the facts here certainly demonstrate that a clear nexus and logical relationship exists between these events. And we, therefore, must conclude that the separate charges were properly joined under RCr 6.18.
Having concluded that joinder was proper, we further hold that Cherry has not shown sufficient undue prejudice to convince us that the trial court abused its discretion in refusing to sever the charges. Murray, 399 S.W.3d at 405.
It is true, as Cherry argues, that a primary consideration in assessing whether undue prejudice resulted from the join-der of offenses is “whether evidence necessary to prove each offense would have been admissible in a separate trial of the other.” Roark v. Commonwealth, 90 S.W.3d 24, 28 (Ky.2002). KRE 404(b), which prohibits evidence of other crimes from being introduced to show the defendant’s general criminal predisposition, is therefore typically at the forefront of this analysis. Evidence of other crimes is admissible, however, if introduced for some “other purpose,” such as proof of motive, opportunity, intent, identity, or absence of mistake, KRE 404(b)(1), or if “inextricably intertwined” with other evidence in the case, KRE 404(b)(2).
Cherry cannot show undue prejudice here because the evidence of the events relating to the wanton endangerment, unlawful imprisonment, and drug charges would have been admissible at a separate murder trial for an “other purpose” under KRE 404(b) — namely, as “an expression of a sense of guilt.” Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky.2003). Cherry’s conduct after the murder — leaving the scene at Hedgewood Court, having Perez drive him back to Maudlin’s, trading out guns, having Bates drive him to her apartment and then to his grandmother’s house after shooting his gun in her apartment, stopping at the gas station on the way to his mother’s house, forcing Thomas to drive him to Wal-Mart after being left at the gas station, purchasing ammunition, *795and finally resisting arrest and brandishing his weapon4 — amounts to evidence of flight from the murder scene. With each new act, it can be perceived that Cherry sought to further distance himself, figuratively and literally, from the murder.
And evidence of a defendant’s flight or attempts to avoid arrest has long been admissible under Kentucky law “to show a sense of guilt because flight is always some evidence of a sense of guilt.” Doneghy v. Commonwealth, 410 S.W.3d 95 (Ky.2013) (citation and internal quotation marks omitted). Indeed, “where one after the commission of a crime flees from a place, and either evades or actively resists arrest, all facts and circumstances showing the evasion or resistance of arrest even though they disclose the commission of another crime, are competent against him upon a trial for the first offense.” Fallis v. Commonwealth, 197 Ky. 313, 247 S.W. 22, 24 (Ky.1923). Because the facts and circumstances of Cherry’s fleeing and attempting to avoid arrest following the shooting, which include those relating to the other charges, would be admissible in a trial for the murder of Lemghaili, his evi-dentiary objections to joinder are not persuasive.
Cherry’s defense and strategy at trial further bolsters our conclusion that joinder did not result in actual, undue prejudice. Cherry admitted that he had been a drug-dealer and that he had possessed and consumed copious amounts of illicit substances over the two-day period culminating in his arrest. His defense against intentional murder was that he essentially had a mental breakdown and his depression had led him to go on a two-day “bender” during which he ingested various substances to “dull the pain” — i.e., alcohol, marijuana, and pills — while correspondingly using cocaine to counteract their depressant effects and stay awake. As a result, he claimed that he had lost his grip on reality and had committed acts (shooting Lemghaili, shooting in Bates’s apartment, threateningly brandishing his gun at the gas station, etc.) that he would not have committed otherwise. Thus, insofar as his own defense was concerned, the evidence relating to the other charges was “inextricably intertwined” with the murder charge, or was at least relevant.
Because joinder of the separate charges was proper and Cherry cannot show that he suffered undue prejudice as a result of all of the charges against him being tried in a single trial, there was thus no error in denying the motion to sever.
B. The trial court’s admission of propensity evidence in rebuttal to Cherry’s interjection of character was harmless error.
Cherry next claims that the trial court erred in permitting the Commonwealth, on redirect examination of Mike Maudlin, to elicit testimony that Cherry had fired his handgun out a car window a few weeks before the Lemghaili murder. Cherry argues that this was improper other bad acts evidence of his character for violence introduced in violation of KRE 404(b).
On the first day of trial, the Commonwealth called Maudlin to testify in its ease-*796in-chief. On cross-examination, Maudlin was asked about Cherry’s state of intoxication:
Counsel: Was John [Cherry] acting intoxicated when he was around you [on the night of the Lemghaili murder]?
Maudlin: Yes. He seemed out of sorts. Normally he’s real upbeat, bubbly, talkative, very cordial with people. Everybody likes him. That night' it was very opposite for him. But it had been like that gradually over the time I [inaudible] over the week before. He, but yeah, we were definitely intoxicated before we. went to the bar and before we left.
For the next several minutes, defense counsel’s line of questioning turned to the subject of the various drugs and alcohol Maudlin had consumed and had seen Cherry consume both before and after going to the bar on the night of the Lemghaili murder. Defense counsel then concluded her cross-examination with the following:
Counsel: You said he was out of sorts?
Maudlin: Yes.
Counsel: Was he acting like himself?
Maudlin: No.
Counsel:. Had you ever seen him act this way before?
Maudlin: Not like this, to the, no. Not like that.
Counsel: Then something was definitely wrong with him?
Maudlin: Yes.
On rebuttal, the prosecutor argued that the defense, by eliciting testimony on the defendant’s character, had “opened the door” for the Commonwealth to have Maudlin testify to an incident that had occurred a few weeks prior to the night in question when he had been riding in a car with Cherry, who was drinking and had fired his handgun several times out the vehicle’s window.
Defense counsel objected on the grounds that this was inadmissible evidence of other bad acts offered to prove action in conformity in violation of KRE 404(b) and that the Commonwealth had not provided notice as required by KRE 404(c). Defense counsel further argued that she had not “opened the door” to this evidence as claimed by the Commonwealth because none of Maudlin’s testimony on cross-examination had involved Cherry’s character for violence or peacefulness. The trial court overruled the objection and allowed the following line of questioning by the Commonwealth:
Prosecutor: A couple weeks before [the night of the Lemghaili murder] do you remember an incident that took place when you and the defendant were out with Richie [Perez] riding around?
Maudlin: Yeah. I think it was sometime around that time frame.
Prosecutor: Tell us what happened.
Maudlin: We had been leaving somewhere. I was getting a ride, heading back to my place. John [Cherry] was upset. We had been drinking and smoking [pot] I think prior. He was upset and shot his gun a couple times out the window, and we took the gun away and went back to my place and just kind of tried to relax.
In overruling the objection and permitting the questioning, the trial court reasoned that the defense had put Cherry’s character' at issue and thus opened the door for admission of the character evidence proffered by the Commonwealth in rebuttal. The judge further concluded that notice was not required because the Commonwealth offered the evidence only in rebuttal.
Evidence of a person’s character is generally inadmissible for the purpose of proving action in conformity with that charac*797ter or trait of character, subject to a few exceptions. KRE 404(a). One instance when character evidence is permissible is when “[e]vidence of a pertinent trait of character or of general moral character [is] offered by an accused, or by the prosecution to rebut the same.” KRE 404(a)(1). The pertinent trait the Commonwealth wanted to prove is Cherry’s propensity to fire his gun recklessly when he was intoxicated. Certainly, the Commonwealth could not have offered this evidence in its case-in-chief because it fits into no exception to the exclusionary rule of KRE 404(b).
But here, the accused introduced the question of how Cherry had acted “before.” Defense counsel asked Maudlin if Cherry was acting like himself on the night of the crimes, or if he had ever “seen him act this way before?” Maudlin answered “No.”
The exception on the admissibility of propensity conduct in rebuttal when the defendant himself introduces such conduct is designed to prevent the jury from being misled when a witness puts his conduct in issue by saying that such conduct was out of the ordinary, or had never occurred before. The Commonwealth can rebut this.
But rebuttal evidence must be directly related to the evidence it rebuts. Maudlin’s testimony must be understood in context to what he could actually testify about. Cherry was present in Maudlin’s apartment on the evening the series of events began. He and Maudlin went to a bar, met up with a friend, and the three returned to Maudlin’s home. Maudlin took a Klonopin when they got back and fell asleep shortly thereafter. Cherry then called a cab to go get cocaine. During this time period, the cab driver was shot and killed. Cherry called Perez to come get him and take him back to Maudlin’s apartment. Cherry then left with his girlfriend around 5:00 a.m.
While Maudlin was aware that Cherry carried a gun, he never saw Cherry waving or recklessly firing a gun during this time period. So when he was asked about how Cherry was acting, he could only be testifying to what he saw during the time Cherry was with him. And, necessarily, rebuttal had to be framed to counter what Maudlin said he saw while he was with Cherry that night.
In fact, Maudlin’s initial testimony was demeanor testimony, not character testimony. The character flavor was added by defense counsel when she asked if he had ever acted this way before. Maudlin essentially said that Cherry had never been this quiet or depressed before, implying this conduct was out of character. This is precisely all the Commonwealth could rebut: that Cherry was in fact generally quiet and depressed.
Thus, there was no nexus to the specific acts of recklessly firing a gun while intoxicated, and permitting the Commonwealth to interject such acts was error. The question then is whether this improperly admitted rebuttal evidence is error so prejudicial that this Court must reverse.
In favor of reversal is the fact that Cherry raised as a defense to murder the evidence that he was so intoxicated that he could not form the requisite intent under the murder statute. A juror wavering between finding him guilty of murder and some lesser homicide might find that just a few weeks before the night of these crimes, Cherry was intoxicated and firing a gun out a car window going down the road, was the tipping point between believing he was so intoxicated he lacked capacity to know what he was doing and holding him responsible because he knew he had committed similar conduct before.
*798Cherry initially claimed blackout, and denied any knowledge of the killing. But he seemed to have significantly recovered his memory of events by trial. He testified that he passed out, but woke up to the driver yelling at him. He believed the driver had stolen some of his money, and argued with him. He testified the driver reached between his legs; he believed the driver was going for a weapon. He then fired his gun toward the front of the cab, essentially in self-defense. He admitted that he shot the cab driver, even though at first he claimed not to remember anything about the event. He told Perez shortly after the killing that he could not believe what he had done, but would not tell him what had happened. He deliberately switched guns with Maudlin once back at Maudlin’s apartment. The improper rebuttal testimony clearly had no effect on whether the jury would find him guilty. The only question was whether he was guilty of murder or something less.
Cherry’s own testimony indicated intentional, knowing conduct. Therefore, this Court cannot say that it was the improper rebuttal evidence that substantially affected the jury’s decision to find him guilty of murder instead of a lesser offense. When the conduct is compared to what he said happened at trial, there is .no likelihood that the rebuttal evidence affected the verdict. Therefore, the admission of this evidence was harmless. See Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky.2009) (“A non-constitutional evidentia-ry error may be deemed harmless ... if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.”).
C. The trial court’s erroneous admission of the detective’s testimony on Cherry’s truthfulness during post-arrest interview is harmless.
Cherry next claims that the trial court erred in allowing the prosecution to ask Detective Wilson whether he believed Cherry had been honest with him during his interview on March 25, 2011. Specifically, the prosecutor was permitted to ask the detective, “Based on the jail phone calls [between Cherry and his mother] you had heard, in your interview with him, did you believe that Mr. Cherry was being honest?” Detective Wilson replied, “No.” The Commonwealth was permitted to ask this question on redirect-examination of the detective in response to a line of questioning on cross-examination where defense counsel asked several questions relating to Cherry’s honesty. The questions were framed around Cherry telling the detective that Cherry was being “honest,” that he was “having a hard time remembering,” and that he was being as forthcoming as he could be. To these questions, the detective basically replied that that was what Cherry had said.
The trial court then allowed the prosecutor to ask the detective whether he believed Cherry was being honest, over defense objection, on the grounds that the defense had opened the door through its questioning on cross-examination.
This Court has long “disapprove[d] of the practice of asking a witness whether another witness [has lied].” Hall v. Commonwealth, 337 S.W.3d 595, 602 (Ky.2011); see also Lanham v. Commonwealth, 171 S.W.3d 14, 23 (Ky.2005) (“[I]t is generally improper for a witness to characterize the testimony of another witness as ‘lying’ or otherwise.”). “A witness’s opinion about the truth of the testimony of another witness is not permitted .... That determination is within the exclusive province of the jury.” Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky.1997) (quoting State v. James, 557 A.2d 471, 473 (R.I.1989)).
*799The question posed by the Commonwealth to Detective Wilson falls under this general prohibition.
As defense counsel repeatedly pointed out during its cross-examination of the detective, Cherry stated numerous times during the pre-trial interrogation that he was telling the truth and being as forthcoming as he could be given what he claimed to be able to remember. While defense counsel improperly called for an opinion as to the truthfulness of Cherry’s statements during the interrogation when she asked, “And he was being as forthcoming as he could be as far as you could tell?” (emphasis added), the detective properly answered the question by saying, “As far as I could tell. Only he could answer that.” Thus the trial court erred by allowing the Commonwealth to compound the improper questioning which had already been answered with the only appropriate response.
Nonetheless, this error is harmless. In his own testimony, Cherry admitted that he had lied to the police. And, when weighed against his admission that he had actually committed the killing, there is no likelihood that this substantially affected the verdict.
D. Crime-scene photograph showing the gunshot wound was admissible.
Cherry also claims that the trial court should not have allowed the Commonwealth to introduce a crime-scene photograph of Lemghaili’s body showing the fatal gunshot wound. Cherry argues that the position of Lemghaili’s body at the time of the shooting differed from the photo because the driver’s side door had been opened to take the photo, which allowed his body to shift from its original position leaning against the window. He also claims that “all necessary facts” were covered by witness testimony, and the photo added nothing to the proof. Accordingly, Cherry contends that the photograph only served to inflame the passions of the jury and was therefore inadmissible.
Graphic photographs, like all other evidence, are generally admissible even if prejudicial, if they are relevant. See KRE 401, 402. “[A] photograph, otherwise admissible, does not become inadmissible simply because it is gruesome.” Funk v. Commonwealth, 842 S.W.2d 476, 479 (Ky.1992). This general rule is limited by KRE 408, which directs the trial court to conduct a balancing test to determine whether the probative value of evidence “is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” KRE 403. Thus, probative photos are admissible “unless they are so inflammatory that their probative value is substantially outweighed by prejudicial effect.” Adkins v. Commonwealth, 96 S.W.3d 779, 794 (Ky.2003). This decision is left to the “sound discretion of the trial judge” and this Court reverses only for an abuse of that discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).
Here, Cherry incorrectly maintains that the photograph in question had no relevance to the Commonwealth’s case because it did not depict the original position of the body. But for evidence to be relevant, it need only be minimally probative of a fact of consequence. E.g., Springer v. Commonwealth, 998 S.W.2d 439, 449 (Ky.1999).
The photograph at issue is the only photograph at the crime scene clearly showing the fatal head wound. The image is direct evidence that Lemghaili was shot in the back of his head while buckled into the driver’s seat of his taxi and is more than minimally probative of the crime of mur*800der. See Ernst v. Commonwealth, 160 S.W.3d 744, 757 (Ky.2005) (photos of a victim’s corpse are relevant to show the nature of the injuries inflicted on the victim).
Cherry first claimed that he had no memory of the shooting, then admitted to “flashes” of memory, and finally testified at trial that he thought the victim was reaching for a gun and that he fired at the front of the cab, but did not intend to shoot him. The placement of the shot, that the driver was still buckled in his seat, and that the car had been running before Cherry turned it off, all point to a version of events different from Cherry’s description. Seeing the actual scene and the wound itself is probative that Cherry did something other than fire a wild shot, and directly supported the Commonwealth’s theory of murder rather than a lesser degree of homicide.
And, while gruesome, there was only one photo entered into evidence, and it was directly relevant to the charge of murder. And, this probative evidence is not made unnecessary by other witnesses’ testimony. In fact, the testimony of the other witnesses lessened some of its inflammatory nature because the jury'knew what to expect, and the photo obviously completes the full story as well as potentially rebutting a claim of a lesser degree of homicide. It is clear that the probative value of the photo outweighs its prejudicial effect, and the trial court therefore did not abuse its discretion by admitting it.
E. Cumulative error does not require reversal.
Lastly, Cherry contends cumulative error requires reversal of his convictions. See Funk v. Commonwealth, 842 S.W.2d 476, 483 (Ky.1992) (noting that “the cumulative effect of the prejudice” of multiple errors can warrant reversal). However, having found only two errors which do not warrant reversal, and which do not make this trial fundamentally unfair, there can-be no finding of cumulative error. See, e.g., Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky.2012) (“[T]he [cumulative error] doctrine is necessary only to address multiple errors ... if their cumulative effect is to render the trial fundamentally unfair.” (internal quotation marks omitted)).
III. Conclusion
For the reasons set forth above, the judgment of the Fayette Circuit Court is affirmed.
Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., sitting. Minton, C.J.; Abramson, Cunningham and Keller, JJ., concur. Venters, J., dissents by separate opinion.
. Maudlin had recently purchased the .38-caliber revolver and had only fired it once. Before they went to the bar that evening, Cherry swapped his .45-caliber pistol with Maudlin’s revolver. Cherry knew Maudlin kept his gun under his couch cushion, and it was apparently common for the two friends to temporarily trade firearms. Maudlin did not know that his gun had been fired a second time until the police came to his house to retrieve it, at which time he noticed that two of the revolver's chambers were marred.
. At trial, both Bates and Cherry testified that he had actually shot at a television, but in a recorded telephone conversation with his mother that was played for the jury, Cherry stated that he was shooting at Bates's head and missed because she ducked.
. At trial, Cherry testified that he had offered Thomas $15 to give him a ride and had not threatened him with the gun or otherwise.
. Cherry testified at trial that he had purchased the ammunition for the purpose of ending his own life because of what he had done. He added that, when he realized the police were arresting him after he left Wal-Mart, he initially refused to get on the ground and momentarily brandished his gun because he hoped for "suicide by police." He apparently thought twice about this because after doing so he quickly dropped the gun and began following the arresting officer’s orders, although he testified he had no explanation for the sudden change of heart. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283824/ | VENTERS, J.,
DISSENTS:
I respectfully dissent. RCr 6.18, in tandem with RCr 9.12, governs the circumstances in which different offenses charged against the same defendant may be prosecuted in the same trial.5 RCr 6.18, which *801exclusively provides the criteria for determining when different crimes may properly be joined in a single trial, identifies two instances for the proper joinder of separate crimes. As rioted by Professor Abramson, “The Commonwealth may charge separate crimes in separate counts if the offenses: (1) are of the same or similar character; or (2) are-based on the same acts or transactions connected together or constituting parts of a common scheme or plan.” See Leslie W. Abram-son, Joinder by Commonwealth by Indictment or Information, 8 Ky. Prac.Crim. Prac. & Proc. § 15.11 (5th ed. 2014). The majority opinion goes beyond the parameters of RCr 6.18 and now interjects a new standard for joinder of dissimilar offenses in a single trial — the “continuous course of conduct” standard.
The first basis for joinder expressly provided by RCr 6.18, crimes “of the same or similar character” has not been invoked here. No one in this case claims that Cherry’s crimes fit that category. So, we properly focus our attention on the second basis for joinder under RCr 6.18: offenses “based on the same acts or transactions connected together or constituting parts of a common scheme or plan.” To qualify for joinder under this theory, either of two preconditions must exist: (1) The crimes must be “based on the same acts or transactions connected together” or (2) they must “be based on the same acts or transactions [ ] constituting parts of a common scheme or plan.”
As Professor Abramson explains, joinder under this theory is allowed “when the crimes are closely related in character, circumstances and time.”6 I emphasize the use of the word “and” to denote that the temporal proximity of the crimes is alone insufficient under our rule; something more is required. Namely, the crimes must be also closely related in character and circumstances. In Peacher v. Commonwealth,7 we held that to establish a “sufficient nexus between or among [the separate offenses] to justify a single trial” there must be “a ‘logical’ relationship between them, some indication that they arose one from the other or otherwise in the course of a single act or transaction, or that they both arose as parts of a common scheme or plan.” Id.
The majority gives a passing nod to Peacher, but then it displaces the language of RCr 6.18 with a new standard, proposed by the Commonwealth in its brief to this Court, redefining the rule for joinder to include crimes committed as a “continuous course of conduct.” I dissent because (1) even under the majority’s new incarnation of the joinder rule, Cherry’s assorted crimes were not “a continuous course of conduct”; .there was a sufficient interlude between each criminal act to break its relationship with the prior acts. And, (2) Cherry’s assorted crimes do not qualify for joinder under the plainly written terms of RCr 6.18, our current rule for joinder.
I must also protest the majority’s prejudice analysis. Citing to Peacher, the majority erroneously suggests that an improper joinder can be reversed on appeal only upon a clear showing of actual prejudice. On that point, however, Peacher was discussing RCr 9.16, the rule calling for the severance of properly-joined offenses when undue prejudice arises from the join-der. RCr 9.16 does not, as the majority *802suggests, ratify the mis-joinder of offenses simply because prejudice is not discerna-ble.8 See Peacher, 391 S.W.3d at 838. RCr 9.16 is a severance rule; RCr 6.18, coupled with RCr 9.12, are the joinder rules. Because Cherry’s offenses were never properly joined for trial in the first place, RCr 9.16 has no application here.
The first prerequisite for joinder under the theory argued by the Commonwealth is that the different crimes must be “based upon the same acts or transactions connected together.” Let us review Cherry’s charges. According to the indictments, Cherry was charged with the following acts or transactions: shooting and killing taxi driver Amine Lemghaili in a parking area on Hedgewood Court in Lexington (murder); firing a gun in the apartment of his girlfriend, Delania Bates (wanton endangerment); unlawfully restraining gas station attendant John Thomas and forcing Thomas to drive him to a Wal-Mart store to buy bullets (unlawful imprisonment); possessing on his person a concealed handgun (possession of handgun by a convicted felon); possessing Tramadol with the intention of selling it (trafficking in a controlled substance); possessing marijuana (possession of marijuana); and possessing a prescription medicine in an improper container.
None of Cherry’s crimes come even close to being “based on the same acts or transactions connected together.” For an example of a proper joinder of crimes based upon the same acts or transactions see Debruler v. Commonwealth, 231 S.W.3d 752, 760 (Ky.2007). There, the defendant attempted to abduct a child and then, in an effort to flee the area, he attempted to rob another person of her car. We held that those crimes were “closely related in character, circumstance and time” because the attempted abduction prompted the getaway attempt and the need to steal a car. Id. The abduction of the victim and the escape from the scene was logically viewed as a single “transaction.” The logical nexus later mentioned in Peacher was established by the evidence showing that the two crimes “arose one from the other or otherwise in the course of a single act or transaction.” Peacher at 837.
There is no logical nexus between Cherry’s acts of murder, wanton endangerment, and unlawful imprisonment. The majority likens Cherry’s crimes to “falling dominoes” with each one “inexorably leading to the next.” A falling domino, however, actually strikes the next domino in the line, causing it to fall upon another standing domino, and each domino in its turn actually hits the next one causing it to fall. What is it about Cherry’s first domino (Amine’s murder) that “inexorably” caused the next domino, the shooting at Delania’s apartment, to fall? And from there, how did the wanton endangerment of Delania lead like a falling domino to the unlawful restraint of John Thomas? The answer is: nothing. There is no logical nexus that connected one to the other. It was not inevitable upon the murder of Amine (the first domino to fall) that Cherry would later endanger his girlfriend. The shooting in Delania’s apartment (the second domino to fall) did not cause her and Cherry to drive together toward his grandmother’s home, and it did not result in Delania leaving Cherry stranded at a gas station where he then unlawfully imprisoned the attendant. There was nothing inexorable about this sequence of events. The unlawful restraint of Thomas did not arise from the shooting in Delania’s apart*803ment, and neither of those events arose from the murder of Amine.
The majority contends these events were connected because at no time, between the murder of Amine and Cherry’s arrest, was Cherry “doing nothing.” That is true only in the existential sense that, as a being trapped within the time-space continuum, Cherry was always “doing” something and all of his acts and transactions occurred in sequential order, one after the other. That does not make them “connected together” as the term is used in RCr 6.18. It does not establish a “logical nexus” that connected one crime to the next.
None of Cherry’s crimes occurred at the same place and they all occurred at different times, under different circumstances. Even if they were “close” (a relative term) in time, they are not “closely related in character and circumstances.” Murdering Amine, shooting at Delania, imprisoning John, and possessing contraband are all based upon acts and transactions that are very different from each other — they are not of a similar or related character and they did not occur under similar or related circumstances. The only thing they have in common is that Cherry allegedly committed them all. That common denominator is not sufficient grounds for joinder.
After killing Amine Lemghaili, Cherry hitched a ride to Maudlin’s apartment where he sat for over an hour and a half smoking marijuana and snorting cocaine with his friends. His flight from the scene of Amine’s murder on Hedgewood Court was over. He was no longer on the run from that crime. Not a single event that occurred thereafter had any connection whatsoever to the murder. Whatever we define as the “acts or transactions” in which Amine was murdered, it could not reasonably be construed as encompassing, geographically and chronologically, everything Cherry did from the murder, through getting high at Maudlin’s place, then going to Delania’s place, getting angry with her, firing a gunshot through her apartment and leaving with her, stopping at the gas station where Thomas was taken captive, and then traversing through the Wal-Mart store and out onto the parking lot where he was arrested.
Cherry’s crimes consisted of a series of different acts and transactions, not “the same acts or transactions connected together.” The murder was completed in the parking lot at Hedgewood Court and Cherry completed his escape from the murder when he arrived' at Maudlin’s apartment. There is no set of facts or events that creates a logical link between the killing of Amine and the gunfire at Delania’s place. And, similarly, there are no facts or circumstances creating a logical link between the gunfire at Delania’s apartment and the abduction of Thomas at the gas station such that we might honestly say they are offenses “based on the same acts or transaction.” Cherry’s crimes are not based on the same acts or transactions connected together.
If not “connected together,” separate offenses may be joined under RCr 6.18 if they are crimes “based on the same acts or transactions [ ] constituting parts of a common scheme or plan.” What conceivable “scheme or plan” could Cherry have concocted that included all of his assorted crimes? It is impossible that the unlawful restraint of Thomas was part of a common plan or scheme that included the murder of Amine. Cherry would have had no idea that Delania’s car would need gas, or that she would leave him stranded at the gas station where he encountered Thomas, or that he would want to go buy bullets. There is absolutely no evidence to prove, and even less reason to believe, that firing his gun in Delania’s home served some part of a plan that also included killing *804Amine. By all accounts the murder of Amine was an act of random violence; the shot fired in Delania’s apartment was an act of rage apparently inspired by his belief that she had been out socializing all night; the unlawful restraint of Thomas was obviously an impulsive and desperate act to enable Cherry to get to the Walmart store to get bullets so he could go back and further endanger Delania; it was plainly not consistent with a plan of flight from the murder of Amine. No common plan or scheme encompassing those offenses is evident from the facts before us, and certainly none was apparent when the trial court denied Cherry’s objection to joinder.
I would agree that the charges pertaining to Cherry’s simultaneous possession of the drugs and the handgun could have been joined together for trial with each other. They fit comfortably within RCr 6.18’s provision for joinder of crimes “of the- same or similar character.” Those charges might also be joined properly with the restraint of John Thomas because they all conceivably qualify as “parts” of a “common plan” to get bullets for his gun and return to Delania. But those acts have absolutely no connection to the murder of Amine Lemghaili, and certainly no connection of the kind defined in RCr 6.18 as proper grounds for joinder.
The unduly prejudicial effect of trying Cherry for murder at the same time he is tried for an unrelated felony of unlawful imprisonment and an unrelated wanton endangerment is manifest. By grafting its new phrase, “a continuous course of conduct,” onto the provisions of RCr 6.18, the majority opinion unreasonably expands the conception of proper joinder, obscures the clarity of the rule, and interjects confusion into this body of law!
Because Cherry’s various crimes do not fit into the paradigm of RCr 6.18, the majority sidesteps the language of this rule and rationalizes its resulting opinion with the foggy notion that joinder is proper because there was a “continuous course of conduct.” That may not be a bad rule for joinder of separate offenses, but it is not the rule adopted by this Court under RCr 6.18 and RCr 9.12. We must read the terms of RCr 6.18 as they are, not as we might otherwise wish them to be. Therefore, I dissent.
. RCr 6.18 provides: "Two (2) or more offenses may be charged in the same complaint or two (2) or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment or information in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.”
RCr 9.12 provides: "The court may order two (2) or more indictments, informations, complaints or uniform citations to be tried together if the offenses, and the defendants, if more than one (1), could have been joined in a single indictment, information, complaint or uniform citation [pursuant to RCr 6.18]. The procedure shall be the same as if the prosecution were under a single indictment, information, complaint or uniform citation.”
. See Leslie W. Abramson, Joinder and severance of offenses of same acts or transactions connected together or constituting common scheme or plan, 8 Ky. Prac.Crim. Prac. & Proc. § 15.24 (5th ed. 2014).
. 391 S.W.3d 821, 837 (Ky.2013).
. In any event, the improper presentation to the jury of the array of crimes committed here would, by any definition, result in undue prejudice. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283825/ | OPINION
JONES, JUDGE:
This appeal arises from an order of the Bullitt Circuit Court, Family Division, granting Appellee James R. Holt (“James”) a domestic violence order (“DVO”) against Appellant Tammy Holt (“Tammy”). Tammy argues that the Bul-litt Family Court lacked jurisdiction to enter the DVO because James was a resident of Nelson County. In the alternative, Tammy argues that there was insufficient evidence to 'support entry of the DVO against her and that the Bullitt Family Court did not conduct a “meaningful hearing” before entering the DVO. For the reasons more fully explained below, we AFFIRM.
I. Background
The central facts of this case are not in dispute. Tammy and James were married to one another at one time. Their marital residence was located in Bullitt County, Kentucky. In August 2014, they were in the process of getting a divorce. Their dissolution action (including issues regarding the custody of their minor daughter) was pending before the Bullitt Family Court (Case No. 2013-CI-00978). After the parties separated, James relocated to Nelson County to live with his brother.
In late August 2014, James attempted to file petitions for domestic violence orders against Tammy on behalf of himself and his minor daughter with the Bullitt Circuit Clerk. The Bullitt Circuit Clerk instructed James thát because he was a resident of Nelson County, he should file the petitions there.
*809Accordingly, on August 14, 2014, James filed a domestic violence petition in Nelson County. James alleged the following in his petition:
Respondent has engaged in acts of violence towards me as well as visible anger, swearing, and yelling in front of minor children (our daughter and her sons). In October of 2013 and EPO had to be taken out on Respondent after I (Petitioner) was awarded our residence in pending and initial divorce case. She had come to residence demanding to enter home, which I refused, at which time she struck me in the face and chest. While in dissolution, Respondent has repeatedly followed and performed “drive-bys” at my current residence ... and on at least two occasions came to [the] residence while I was not there, the second of which on 5/30/2014 pried back door open with child in possession and overturned entire room. Visible damage to back door. On July 21st as I dropped child off with Respondent I asked [child] to retrieve her U.K. jacket I had bought her as [child] tried to walk out door Respondent I asked was heard saying “oh no you don’t” [and] pushing child into door.
The Nelson District Court entered emergency protection orders on both of James’s petitions and scheduled the matters for a hearing on August 27, 2014. Prior the hearing, the Nelson District Court set aside the initial emergency orders it entered and transferred the action to the Bullitt Family Court. The Nelson District Court’s August 20, 2014, order states:
A Petition was filed by Mr. Holt on August 14, 2014. This Court granted an Emergency Protection Order based upon the petition which ordered Respondent not to have any contact with the parties’ child. The Court was not made aware of the active Domestic Violence Order entered by the Bullitt Family Court regarding these parties on August 4, 2014. IT IS HEREBY ORDERED that the Emergency Order entered in this matter is hereby set aside. This matter shall be transferred to the Bullitt Family Court case 13-D-00266 as this Court does not have the authority or jurisdiction to amend or contradict the Orders of the Bullitt Family Court. Furthermore, the Clerk is instructed to remove this matter from this Court’s docket.
On September 2, 2014, the Bullitt Family Court held a hearing on James’s petition for a DVO against Tammy.1 An issue was raised at the hearing regarding the Bullitt Family Court’s jurisdiction over the DVO given James’s residency in Nelson County. Reluctantly, the Bullitt Family Court indicated that it would hear the matter. James and Tammy both testified at the hearing.
Consistent with his petition, James testified that Tammy had previously struck him in the face and chest. He also testified that Tammy was harassing, following, and spying on him. He testified that on May 30, 2014, someone broke into the home he shares with his brother by prying open a back door and ransacked his bedroom.2 James testified that Tammy’s past actions of violence and her stalking-like behavior made him afraid that she would harm him in the future.
Tammy admitted to being at James’s home on the day his house was broken into, but denied entering the home. Tam*810my also denied that she ever struck or punched James.
Following the hearing, the Bullitt Family Court entered a DVO against Tammy. The DVO restrains Tammy from: (1) committing further acts of abuse or threats of abuse against James; (2) having any contact or communication with James; and (3) coming within 500 feet of James or his residence. The DVO also ordered Tammy to complete anger management counseling through any state certified provider and to submit proof of counseling.
This appeal followed.
II. Analysis
Tammy’s appeal involves two claims of error. Tammy first asserts that the DVO is void ab initio because the Bullitt Family Court lacked jurisdiction to issue a DVO where the petitioner, James, was not a resident of Bullitt County. In the alternative, Tammy argues that the Bullitt Family Court failed to conduct a “meaningful” hearing and no evidence supported entry of the DVO.
A. Jurisdiction
Whether the Bullitt Family Court acted outside its jurisdiction in granting James a DVO is an issue of law. Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky.App.2009). We review issues of law de novo. Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004).
The concepts of venue and jurisdiction are commonly confused with one another. “[TJhere are fundamental distinctions between the concepts of jurisdiction and venue, the former relating to the power of courts to adjudicate and the latter relating to the proper place for the claim to be heard.” Baze v. Commonwealth, 276 S.W.3d 761, 766 (Ky.2008) (quoting Stipp v. St Charles, 291 S.W.3d 720, 724 (Ky.App.2009)). “While the concept of venue is important, it does not reach the fundamental level of jurisdiction, a concept whereby the authority of the court to act is at issue.” Fritsch v. Caudill, 146 S.W.3d 926, 927 (Ky.2004).
“[S]ubject-matter jurisdiction relates to a court’s ability to hear a particular kind of case, not [a] particular case.” Davis v. Wingate, 437 S.W.3d 720, 726 (Ky.2014). It is likewise important to recognize that a circuit court’s power to act is not constrained by territorial limitations. Winstead v. Commonwealth, 327 S.W.3d 386, 410 (Ky.2010). “[T]here is one circuit court for the entire state, and all of its judges are members of the same court with equal power to act throughout the Commonwealth.” Id.
The extent of a family court’s jurisdiction is set forth in KRS 23A.100. In relevant part, this provision provides: “(2) In addition to general jurisdiction of Circuit Court, a family court division of Circuit Court shall have the following additional' jurisdiction: ... (a) Domestic violence and abuse proceedings under KRS Chapter 403 subsequent to the issuance of an emergency protective order in accord with local protocols under KRS 403.735[.]” The following section, KRS 23A.100(3), further provides: “[f]amily court divisions of Circuit Court shall be the primary forum for cases in this section[.]”
KRS 23A.100 makes it perfectly clear that “[fjamily courts are vested with jurisdiction to decide matters involving domestic violence.” Sitar v. Commonwealth, 407 S.W.3d 538, 542 (Ky.2013). Moreover,
KRS 23A.100(3) specifically dictates that family courts “shall be the primary forum for cases in this section, except that nothing in this section shall be construed to limit the concurrent jurisdiction of District Court.” We are of the opinion *811that such language is clear — while family court is the primary forum for matters concerning domestic violence and abuse, the district court has concurrent jurisdiction to enter protective orders under KRS 403.725. Use of the term “primary forum” clearly indicates that the General Assembly did not intend for the statute to affect a jurisdictional limitation, but rather to emphasize that the purposes underlying the creation of family courts as set out in KRS 23A.110 are best fulfilled when domestic cases proceed in family court.
Gomez v. Gomez, 254 S.W.3d 838, 841 (Ky.App.2008).
The Bullitt Family Court issued a DVO in this case. Our General Assembly vested all family courts within this Commonwealth with the jurisdiction to preside over matters involving domestic violence. The Bullitt Family Court’s order granting a DVO to James falls squarely within the category of cases this Commonwealth has entrusted to family courts. See id. The Bullitt Family Court had subject matter jurisdiction to issue a DVO.
The question of whether Bullitt County was the correct county in which to hear the DVO proceedings is one of venue, not subject matter jurisdiction. “Venue generally derives from a statutory mandate as to the proper county or counties in which a claim may be heard.” Baze, 276 S.W.3d at 766. In certain cases, venue may properly lie in more than one county. Stipp v. St. Charles, 291 S.W.3d 720, 725 (Ky.App.2009).
Venue in domestic violence actions is dictated by KRS 403.725. It provides:
(1) Any family member or member of an unmarried couple who is a resident of this state or has fled to this state to escape domestic violence and abuse may file a verified petition in the District Court of the county in which he resides. If the petitioner has left his usual place of residence within this state in order to avoid domestic violence and abuse, the petition may be filed and proceedings held in the District Court in the county of his usual residence or in the District Court in the county of current résidence. Any family member or member of an unmarried couple who files a petition for an emergency protective order in District or Circuit Court shall make known to the court any custody or divorce actions, involving both the petitioner and the respondent, that are pending in any Circuit Court in the Commonwealth. The petition shall also include the name of the court where filed.
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(4) If a family member files an action for dissolution of marriage or child custody in Circuit Court, the Circuit Court shall have jurisdiction to issue a protective order upon the filing of a verified motion therein either at the commencement or during the pen-dency of the action in Circuit Court pursuant to the provisions of KRS 403.730 to 403.785.
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(7) During any hearing in Circuit Court on dissolution of marriage, child custody, or visitation, at which both parties are present or represented by counsel, the Circuit Judge shall have the authority to issue a protective order pursuant to KRS 403.750 to 403.785.
Id. (emphasis added).
Having reviewed the statute, we conclude that KRS 403.725(1), (4) and (7) make clear that venue is appropriate both in the county where the victim resides (or has fled to) and any county circuit court where on-going dissolution proceedings involving the same parties are pending.
*812James, a resident of Nelson County, filed his petition for a DVO in Nelson County. This was proper under KRS 403.725(1). Since there was an on-going dissolution action pending before the Bul-litt Family Court, however, venue was also appropriate in that court.3 KRS 403.725(4).
After reviewing James’s petition and having been made aware of the parties’ pending dissolution proceedings in Bullitt County, the Nelson District Court determined that venue would be more appropriate in Bullitt County before the same family court judge that was already familiar with the parties and their interactions with one another. This was an appropriate and statutorily sound decision as venue was proper in both locations. See Abbott v. Chesley, 413 S.W.3d 589, 606 (Ky.2013). It was likewise proper for the Bullitt Family Court to accept transfer of the domestic violence action. Id. (“[E]ven if the trial judge at the receiving end of a venue transfer believes the venue change was incorrect, he or she is not required to transfer the case back to the court of origin or to a third forum.”).
In conclusion, we find no error with respect to either jurisdiction or venue in this matter. The Bullitt Family Court is vested with jurisdiction over domestic violence proceedings. A dissolution action was pending in Bullitt County between James and Tammy. Accordingly, the Bul-litt Family Court was an appropriate venue in which to hear James’s petition for a DVO.
B. Substantial Evidence to Support Entry of a DVO
Appellate review of a trial court’s decision regarding issuance of a DVO “is not whether we would have decided it differently, but whether the court’s findings were clearly erroneous or that it abused its discretion.” Gomez, 254 S.W.3d at 842. Findings of fact will not be set aside unless they are clearly erroneous, that is, unsupported by substantial evidence. Kentucky Rules of Civil Procedure (CR) 52.01; Moore v. Asente, 110 S.W.3d 336 (Ky.2003).
The trial court may render a DVO if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may occur again. KRS 403.750(1). The preponderance of the evidence standard is met when sufficient evidence establishes that the alleged victim “was more likely than not to have been a victim of domestic violence.” Gomez, 254 S.W.3d at 842 (quoting Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky.1996)).
Domestic violence is defined as a “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse or assault between family members or members of an unmarried couple.” KRS 403.720(1).
James testified that Tammy had hit him in the face and chest on prior occasions. Additionally, James testified that Tammy was harassing and stalking him and presented circumstantial evidence that Tammy unlawfully entered his home and ransacked his room. James also testified that Tammy’s prior acts of violence, angry outbursts, frequent drive-bys, and harassing communications caused him to fear that she would commit future actions of violence against him.
Tammy emphatically denied that she ever physically assaulted James or that she broke into his home. She further disputed that the circumstantial evidence was sufficient enough for the trial court to rely on in concluding that she broke into James’s home.
*813The trial court is in the best position to judge the credibility of the witnesses and weigh the evidence presented. See Rupp v. Rupp, 357 S.W.3d 207, 210 (Ky.App.2011). Here, Tammy and James gave conflicting accounts of Tammy’s conduct. As the fact-finder, the Bullitt Family Court relied on James’s testimony.
Based on the record, we conclude the evidence presented was sufficient for the court to reasonably infer that Tammy had previously engaged in acts of domestic violence against James and that her conduct caused James to fear that she would engage in future acts of domestic violence against him, if not restrained. Accordingly, the Bullitt Family Court’s issuance of the DVO order against Tammy was not in error.
We now. briefly turn to Tammy’s argument that the family court did not conduct a “meaningful hearing” as required by statute. KRS 403.750(1) per-; mits a court to enter a DVO if, following the hearing, the court “finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur....” With respect to the hearing requirement, we have held that “[d]ue process requires, at the minimum, that each party be given a meaningful opportunity to be heard.” Wright v. Wright, 181 S.W.3d 49, 53 (Ky.App.2005). In turn, a party has a meaningful opportunity to be heard where the trial court allows each party to present evidence and give sworn testimony before making a decision. Id.
Both James and Tammy were represented by counsel. Each gave sworn testimony under oath before the Bullitt Family Court. Moreover, each party was allowed an opportunity for cross-examination. We cannot find anywhere in the record where Tammy was denied an opportunity to present evidence before the Bullitt Family Court rendered its decision. Accordingly, we conclude that Tammy was provided with a hearing as required by statute prior to entry of the DVO against her.
IV. Conclusion
For the reasons set forth above, we AFFIRM the Bullitt Circuit Court, Family Division.
DIXON, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN MAJORITY OPINION AND WRITES SEPARATELY.
. James voluntarily dismissed the petition he filed on behalf of the minor child.
. James introduced photographs showing the damaged door and his room.
. Pursuant to KRS 23A.100, a family court is considered part of the circuit court. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283828/ | ORDER
PER CURIAM
Jose Antonio Lugos-Campos Jr. appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief, following an evidentiary hearing, alleging ineffective assistance of counsel and that Movant’s plea was invalid. We have reviewed the briefs of the parties and the record orí appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283829/ | ORDER
PER CURIAM
Lorenzo Smotherman (“Defendant”) appeals from a judgment after a jury trial finding he was guilty of the class C felony of possession of a controlled substance, in violation of Section 195.202, RSMo (2011). He was sentenced as a persistent drug offender to twelve years in the Missouri Department of Corrections. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283830/ | *838ORDER
PER CURIAM
Lonnie Snelling (“Snelling”) appeals from a judgment dismissing his petition for failing to obtain proper service upon the named defendants and for failing to provide competent evidence in support of his claim for damages.
We have reviewed Snelling’s brief and the record on appeal. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, we have furnished the parties with a memorandum decision, for their information only, setting forth the reasons for our order.
We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/588196/ | 972 F.2d 139
UNITED STATES of America, Plaintiff-Appellee,v.Kevin B. MAHONEY, Defendant-Appellant.
No. 91-1090.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 27, 1992.Decided July 22, 1992*.Opinion Aug. 11, 1992.
David E. Risley, John P. Schmidt (argued), Office of the U.S. Atty., Springfield, Ill., for plaintiff-appellee.
Michael W. Ochoa (argued), Springfield, Ill., for defendant-appellant.
Before COFFEY and MANION, Circuit Judges, and SHABAZ, District Judge.**
COFFEY, Circuit Judge.
1
Kevin Mahoney was charged with one count of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and entered a plea of guilty, reserving the right to challenge the amount of cocaine involved in the conspiracy at sentencing. The district court found he had conspired to distribute five kilograms (kilos) of cocaine, and sentenced him to 121 months in prison. We affirm.
I. BACKGROUND
2
In May of 1989 Darrell Moore, an undercover informant, contacted Kevin Mahoney about purchasing one or two kilograms of cocaine. Mahoney said he could get Moore whatever he needed. The next day Moore introduced John Schaefer, an undercover D.E.A. agent, to Mahoney in Springfield, Illinois. Schaefer posed as a drug buyer with plenty of money who was interested in obtaining fairly large amounts of cocaine, and stated that Moore told him that Mahoney had a reliable supplier in Florida.1 Schaefer said he wanted to buy five kilos, and proposed a two-stage transaction. Initially, Mahoney's Florida source would deliver one kilo to Schaefer in Springfield, where he would pay cash. Second, if things went well during the initial sale, Schaefer would purchase four more kilos from Mahoney's supplier in Florida. Mahoney thought it sounded like a good plan, and offered to obtain samples of cocaine for Schaefer's inspection. As they continued talking during this, their first meeting, Schaefer tried to make sure that Mahoney's source could produce enough cocaine, and the following exchange occurred:
3
[SCHAEFER]: Okay. And I'll pay the COD. I mean, I'll pay for that ki [the first kilogram of cocaine from Florida], COD. So, we're talkin', probably, in the neighborhood of 18 or 19 grand delivered here. One.
4
[MAHONEY]: Right.
5
[SCHAEFER]: If we're gonna do a five [kilogram deal]. You'll take two and I take three. You're sure these people have no problem comin' up with that?
6
[MAHONEY]: Positive.
7
Defendant-Appellant's App., at 18. The statement "You'll take two and I take three" referred to Schaefer and Mahoney's plan to divide the five kilos for sale in different parts of the state. Schaefer promised to pay for all five kilos, loaning Mahoney the purchase price until he could sell his share of the drugs and repay him. Mahoney later introduced Schaefer to his supplier, Dana Holland, over the phone. Holland, who lived in Florida, was visiting relatives in Springfield and spoke with Schaefer from Mahoney's home. Schaefer and Holland talked at some length about the logistics of the deal, and Schaefer made it clear that he wanted to buy a five-kilo package, which he and Mahoney would divide and sell to their respective customers.2
8
Before the deal could be consummated, law enforcement officers in Springfield, Illinois arrested Mahoney, who was subsequently charged with one count of conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Mahoney pled guilty to this offense and reserved his right to challenge the amount of cocaine involved. He made his formal challenge to the amount of cocaine at the sentencing hearing, objecting to paragraph 17 of the Presentence Report, which stated that he had agreed to sell five kilos of cocaine, and he argued that he should only be held liable for two kilograms at the most. Relying on Mahoney's use of the word "positive" in the quoted colloquy, the court rejected Mahoney's argument, finding that he had the intent as well as the ability to come up with five kilos to sell to Schaefer. The court noted that Mahoney usually said "uh huh" when agreeing with Schaefer, so that when he said he was "positive" his ally could produce five kilos it was unusual and noticeable, and this convinced the court that Mahoney's supplier was able to produce the drugs. In addition, Mahoney had advised the agents at the time of his arrest that Holland had agreed not only to the proposed sale but also promised to make arrangements to obtain the full five kilos in Florida. Though Mahoney later recanted his statement, saying he had lied about Holland's statement in order to secure his own release from custody, the court found that Mahoney's testimony was untrustworthy, as he had previously lied to the government when it was to his advantage.
9
The court accepted Mahoney's guilty plea to one count of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Applying the Sentencing Guidelines, the district court found that Mahoney belonged in Criminal History Category I because he had neither a juvenile nor an adult criminal record. The court then found that Mahoney's intent to sell five kilos gave him a Base Offense Level of 32, exposing him to 121 to 151 months in prison. The judge imposed the minimum sentence available, 121 months.
II. ISSUE
10
The sole issue on appeal is whether the district court properly found that Mahoney had the intent and ability to sell five kilos of cocaine, in spite of his claim that he only had the intent and ability to sell two kilos.
III. DISCUSSION
11
The quantity of drugs involved in an offense is a question of fact, reviewed for clear error. United States v. Buggs, 904 F.2d 1070, 1078 (7th Cir.1990). In determining the amount of drugs involved for sentencing purposes, district courts may rely on Application Note 1 to § 2D1.4 of the Sentencing Guidelines, which provides in relevant part:If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount it finds the defendant did not intend to produce and was not reasonably capable of producing.
12
U.S.S.G., § 2D1.4, Application Note 1 (emphasis added). Mahoney argues that the italicized portion of the Note should apply in this situation as he had neither the intent nor the ability to produce five kilograms of cocaine.
13
The "lack of ability" argument is unpersuasive. Relying on United States v. Richardson, 939 F.2d 135 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S. Ct. 942, 117 L. Ed. 2d 112 (1992), Mahoney maintains that he lacked the funds to complete a five-kilogram deal, and thus should not be held responsible for that amount. In Richardson the defendant arranged to sell ten kilograms of cocaine to an undercover officer. He later claimed that it was unlikely that he would have been capable of producing the negotiated amount, because at the time of the negotiations it would have been impossible for him to raise the money to buy ten kilograms to sell to the officer. The Fourth Circuit agreed, holding that the defendant should not have been sentenced for all ten kilograms because "There is nothing in the record to show how Richardson could have raised $150,000 or any substantial amount of money, and without the money he was not 'reasonably capable' of producing any cocaine." Id. at 143. In the case at bar, however, Agent Schaefer had promised to finance the entire deal--Mahoney didn't have to put up a dime. Moreover, Mahoney did not, like the defendant in Richardson, have to buy the drugs from someone before he could sell them to Schaefer; he simply had to perform his role in facilitating the deal. Mahoney was merely the middleman or conduit, putting a buyer in touch with his supplier, and therefore his poverty or lack of it was irrelevant to the execution of the planned sale. Thus, Richardson is distinguishable; Mahoney didn't need money to accomplish the sale, he just needed Holland to get the drugs.
14
Mahoney also claims that he lacked the means to complete the sale because he did not have sufficient collateral to give Schaefer while he (Mahoney) travelled to Florida to pick up the drugs and transport them back to Springfield. Schaefer told Mahoney that if he gave him money to buy the cocaine in Florida, Mahoney would have to leave some collateral with him. Mahoney now claims that since he did not have $85,000 (the cost of the five kilograms) in assets to put up as collateral, he was incapable of completing a deal of that size. But Mahoney did not have to come up with $85,000 worth of collateral. The discussions concerning collateral took place when Schaefer was thinking about giving Mahoney some money that he could take to Florida to use in obtaining merely a quarter-kilo sample. A quarter kilogram cost only $3,500, thus Mahoney did not have to put up $85,000 in collateral, but would only have to come up with something like $3,500. At that time Mahoney advised Schaefer that he could find sufficient cash to use as collateral for this initial transaction if necessary.
15
[SCHAEFER]: ... As long as you give me that collateral, as long as you left me with somethin' here--
16
[MAHONEY]: Well, I gotta pair of Klipsche speakers. They're worth 4500 bucks.
17
[SCHAEFER]: Yeh [sic], but I can't.
18
[MAHONEY]: I know what you mean. I got cash somewhere here, some way, somehow.
19
Defendant-Appellant's App., at 49. Thus, by his own words, Mahoney was reasonably capable of completing the sample transaction. But even if he had no assets at all, it is questionable whether Mahoney's ability to come up with the collateral is even relevant. Application Note 1 to Guideline § 2D1.4 stops short of directing courts to examine whether the defendant was capable of fulfilling every request of the buyer or seller, regardless of whether it went to the core of the transaction; it simply asks whether the defendant was reasonably capable of producing the negotiated amount.
20
Mahoney's alternative argument is that he lacked the intent to sell five kilograms because the parties never finalized the arrangements for the deal and continued negotiating until the arrest. Specifically, he claims that the issues of price and collateral remained open and, since there was never a solid agreement to buy and sell five kilos, he is not accountable for that amount. Though he does not cite it, United States v. Ruiz, 932 F.2d 1174 (7th Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 151, 116 L. Ed. 2d 116 (1991), could arguably support Mahoney's claim. In Ruiz the defendant conspired to sell two kilos of cocaine, but bragged that he could get ten kilos if the buyer so desired. We held that the sentence should have been based on but two kilos, not ten, because the evidence failed to demonstrate that the conspirators really had the requisite intent, as well as the network, to sell ten kilos: there were no buyers for that amount, no price had been set or discussed for that amount, and there was no evidence the defendant actually had access to that amount of cocaine. Id. at 1184. Thus, Mahoney is correct that, in certain instances, the lack of a firm agreement can be used to support a defendant's claim that he should not be held responsible for an amount of drugs merely mentioned in passing during the negotiation of another deal. For example, it is conceivable that a defendant would not be held accountable for an amount of drugs where there has never been a definite, serious offer to buy or sell that amount. Id.; see United States v. Cea, 963 F.2d 1027, 1031 (7th Cir.1992) ("The purpose of [Application Note 1 to § 2D1.4] is to prevent a defendant from being sentenced on the basis of idle boasts or braggadocio rather than for the amount of contraband he actually intended to produce or buy and was reasonably able to produce or buy.")
21
In this instance, however, there is ample evidence of the defendant's ability and intent to produce the full five kilos. Here there was a buyer (Schaefer) who had expressed a clear and definite desire to purchase five kilos, and a seller (Mahoney) who stated that he was "positive" his supplier could come up with that amount. Also, price had been specifically discussed, both as to the initial one-kilo delivery and the follow-up four-kilo sale. Defendant-Appellant's App., at 18 (discussing the COD price for first kilo and the market rate for subsequent kilos), and at 39, 45, 47 (general price discussions). Moreover, the parties thoroughly discussed options for delivery and payment, never mentioning any amount smaller than five kilos except as to samples or the one-kilo starter transaction. This is analogous to Cea, where we rejected the defendant's argument that he should not be sentenced for the amount of drugs negotiated because certain points of the transaction were never agreed upon. The key factor was that the defendant clearly had the intent and ability to consummate the sale.
22
[Cea's] intent to [buy ten kilograms of cocaine] is demonstrated by his very specific negotiations as to price and amount, carried out over a recorded series of phone calls and meetings.... In other words, Cea was not shooting the breeze with the agents or randomly proposing hypothetical future transactions; he was dead serious about buying and distributing ten kilograms of cocaine and, through Quinto [his co-conspirator], had the means to do it.
23
Cea, 963 F.2d at 1031.
IV. CONCLUSION
24
We agree with the trial court's decision that the evidence here supports a finding that Mahoney had both the intent and ability to sell and deliver five kilos of cocaine, and we thus AFFIRM the sentence imposed.
*
This appeal was originally decided by unpublished order on July 22, 1992. See Circuit Rule 53. The court, on its own motion, has decided to issue the decision as an opinion
**
Judge Shabaz, of the Western District of Wisconsin, is sitting by designation
1
Neither the parties nor the transcript of the taped conversations between Schaefer and Mahoney state where in Florida Mahoney's supplier lived
2
Schaefer recorded this conversation, as he had all of his conversations with Mahoney, on audio tape | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283980/ | *851Order
Per Curiam:
Mr. Glen M. Groves appeals from the Judgment of the Circuit Court of Clay County, Missouri, denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Finding no error, we affirm. A published opinion would have no precedential value; however, we have separately provided a memorandum of law explaining our ruling to the parties. Rule 8416(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283831/ | ORDER
PER CURIAM..
Jessie Mann (Defendant) appeals the judgment of conviction for first-degree child molestation that the Circuit Court of Cape Girardeau County entered after a bench trial. Defendant claims the trial court plainly erred in: (1) admitting the child victim’s out-of-court statements; (2) admitting the video recording of the child victim’s deposition; and (3) permitting the prosecutor to cross-examine Defendant about his school-age Facebook friends.
We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion would have no precedential value. We have, however, 'prepared a memorandum opinion for the use of the parties only setting forth the reasons for our decision.
We affirm the judgment pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283832/ | Sherri B. Sullivan, P.J.
Introduction
Jerome Keeney, Jr. (Appellant) appeals from the trial court’s summary judgment entered in favor of Tim Fitch, Superintendent of Police, St. Louis County and Colonel Ronald Replogle, Superintendent, Missouri Highway Patrol (Respondents) on Appellant’s Petition for Declaratory Judgment. We reverse and remand.
Factual and Procedural Background
In 1988, the St. Louis County Police Department received complaints that various men were engaging in homosexual sexual acts in open view of the public in the parking lot and bathrooms of a rest stop at 700 Dunn Road, situated off Highway 270 and consisting of a tourist information booth, parking lot and associated facilities. As a result of the complaints, the St. Louis County Police Department investigated and conducted an undercover sting operation on September 28, 1988, “reference homosexual activity,” in which Detective Robert Bayes of the Bureau of Special Investigation for St. Louis County parked at the rest stop and sat in his car, waiting. While sitting in his car, undercover, Detective Bayes observed Appellant sitting in his car. Appellant started a conversation with Detective Bayes and asked Detective Bayes to sit in Appellant’s car with him. Detective Bayes agreed and got in Appellant’s car with him at the rest stop. Appellant and Detective Bayes talked for about ten minutes. Appellant placed his hand on Detective Bayes’s clothed groin area. Detective Bayes then identified himself as a police officer and placed Appellant under arrest.
The State charged Appellant with attempt sexual misconduct, third degree, a Class C misdemeanor, by information as follows:
That [Appellant], in violation of Section 564.011, RSMo,1 committed the class C misdemeanor of an attempt to commit the offense of sexual misconduct, punishable upon conviction under Sections 558.011.1(7) and 560.016, RSMo, in that on or about Wednesday, September 28, 1988, at approximately 8:20 p.m., at 700 Dunn Road, in the County of St. Louis, State of Missouri, [Appellant] grabbed the groin of Det. Bayes, and such conduct was a substantial step toward the commission of the crime sexual misconduct, and was done for the purpose of committing such sexual misconduct.
On September 11, 1989, Appellant pled guilty to the charge and received a suspended imposition of sentence and two years’ probation.
Section 566.090, the sexual misconduct statute in effect at the time of this incident, provided:
1. A person commits the crime of sexu- . al misconduct if:
*841(1) Being less than seventeen years old, he has sexual intercourse with another person to whom he is not married who is fourteen or fifteen years old; or
(2) He engages in deviate sexual intercourse with another person to whom he is not married and who is under the age of seventeen years; or
(B) He has deviate sexual intercourse with another person of the same sex. 2. Sexual misconduct is a class A misdemeanor.
Section 566.090, RSMo 1978 (since repealed).
Because of this conviction, on January 8, 2010, Appellant was instructed to file his initial registration with the Missouri Sex Offender Registry. On August 30, 2013, Appellant filed a Petition for Declaratory Judgment requesting that he no longer be required to register as a sex offender because attempting to engage in homosexual relations is no longer a criminal offense.
Appellant and Respondents filed cross-motions for summary judgment. Both sides presented their motions to the trial court with proposed findings of fact and conclusions of law. On July 31, 2014, the trial court granted Respondents’ motion for summary judgment, adopting their joint proposed findings of fact and conclusions of law as its judgment, and denied Appellant’s motion for summary judgment and underlying petition for declaratory relief. This appeal follows.
Points on Appeal
In his first point, Appellant argues the trial court erred in concluding his conduct was not innocent and he therefore should be required to register as a sex offender because the court erroneously declared and/or applied the law by failing to recognize the right to consensual same-sex conduct was affirmed in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
In his second point, Appellant maintains the trial court erred in concluding his obligation to register as a sex offender was based on conduct that occurred “in public” because the court erroneously declared and/or applied the law in that Appellant was not charged with public indecency or an act that had as an element that the charged conduct must have occurred in public.
In his third point, Appellant claims the trial court erred in concluding he should be required to register as a sex offender because the court erroneously declared and/or applied the law by stating that Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), stands only for protecting same-sex relations when they are private sexual acts “committed” in one’s home, in that the reasoning of Lawrence was not limited to sexual activity within the home and Appellant did, actually, have the right to rely upon the privacy afforded to a person seated in his darkened automobile at night.
In his fourth point, Appellant asserts the trial court erred in concluding he should be required to register as a sex offender because the court erroneously declared and/or applied the law as stated in State ex rel. Kauble v. Hartenbach, 216 S.W.3d 158 (Mo.banc 2007), by finding the petitioner in Kauble was not entitled to and was denied relief, in that the Missouri Supreme Court actually found Mr. Kauble should be entitled to the relief he sought but had not named the proper parties.
Standard of Review
Whether summary judgment was proper is a question of law. Turner v. School Dist. of Clayton, 318 S.W.3d 660, 664 (Mo. banc 2010). This Court’s review of a grant of summary judgment is de novo; there*842fore, the trial court’s order may be affirmed by this Court on an entirely different basis than that posited at trial, and this Court will affirm the grant of summary judgment under any appropriate theory. Id. The Court views the record in the light most favorable to the party against whom judgment was entered and affords that party the benefit of all reasonable inferences. Id. For summary judgment to be entered in its favor, the movant has the burden of proving that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Id.
The parties to this action do not contest the trial court’s determination that there are no genuine issues of material fact in this case. Rather, the issue on appeal is whether the trial court erred in determining Respondents were entitled to summary judgment as a matter of law. See generally Purcell v. Cape Girardeau County Comm’n, 322 S.W.3d 522, 524 (Mo.banc 2010).
Analysis
SORNA and SORA
In 2006, Congress enacted the federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901-16962 (2006), instructing states to pass legislation setting up a sex offender registration system and requiring sex offenders to register. 42 U.S.C. §§ 16912-16913. The statute sought to establish a comprehensive national system for the registration of offenders in order to “protect the public from sex offenders and offenders against children[.]” 42 U.S.C. § 16901.
SORNA requires all sex offenders, “including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act[,]” 28 C.F.R. § 72.3, to “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). SORNA defines “sex offender” as “an individual who was convicted of a sex offense.” 42 U.S.C. § 16911(1). The definition of “sex offense” includes “a criminal offense that has an element involving a sexual act or sexual contact with another,” and “an attempt or conspiracy to commit” that sexual act or contact. 42 U.S.C. § 16911(5)(A). State law crimes are “criminal offenses.” 42 U.S.C. § 16911(6).
This federal obligation triggers Missouri’s registration requirements under its own sex offender registration act (“SORA”), which it originally enacted in 1994 and later amended in 2006. Sections 589.400-589.425 RSMo 2006; Doe v. Toelke, 389 S.W.3d 165, 167 (Mo.banc 2012). The purpose of SORA is also, like SORNA, to protect children from violence at the hands of sex offenders and to respond to the known danger of recidivism among sex offenders. Doe v. Phillips, 194 S.W.3d at 833, 839 (Mo.banc 2006).
In Section 589.400(7), SORA provides that any person required to register under federal Mw, i.e., SORNA, must register with the chief law officers of their county' of residence in Missouri. Under this provision, Respondents maintain Appellant is required to register in Missouri because he is required to register under SORNA as “an individual who was convicted of a sex offense” under Missouri state law.
Appellant and the Registry
As set forth in detail supra, Appellant pled guilty in 1989 to the since-repealed Class C misdemeanor of attempt third degree sexual misconduct in the form of attempting to engage in deviate sexual intercourse with an individual of the same sex. Despite the existence of this historical fact, we find it of no effect at the *843present time and conclude for all intents and purposes Appellant has not committed a sex offense making him a sex offender for purposes of registering under SORNA.
The sexual offense of which Appellant was convicted in 1989 is no longer a sexual offense. In Lawrence v. Texas, 589 U.S. 558, 578-79, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the United States Supreme Court overturned a criminal prosecution for same-sex sodomy. The court held that the Texas criminal statute under which the defendant was charged was unconstitutional in that a same-sex sodomy law violates liberty interests under the Due Process Clause. Id. The applicable statute provided “a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” Tex. Penal Code Ann. Section 21.06(a) (Vernon 2003). In the instant case, Appellant was charged under, and pled guilty to, Section 566.090.1(3), RSMo 1978 (since repealed), which provided, “A person commits the crime of sexual misconduct if ... [h]e has deviate sexual intercourse with another person of the same sex.” These statutes are, in all relevant respects, identical. Lawrence held that .the specifically delineated statutory crime with which Appellant was charged was unconstitutional.
Further, the statutory section under which Appellant was convicted, Section 566.090.1(3), has ultimately been repealed by the Missouri Legislature. In order to better understand what became of the statute that was in effect at the time of Appellant’s plea, we set forth Section 566.090’s transmutations and reincarnations effected by the General Assembly from that time until present day.
In 1988, Section 566.090 read as follows:
1. A person commits the crime of sexual misconduct if:
(1)Being less than seventeen years old, he has sexual intercourse with another person to whom he is not married who is fourteen or fifteen years old; or
(2) He engages in deviate sexual intercourse with another person to whom he is not married and who is under the age of seventeen years; or
(3) He has deviate sexual intercourse with another person of the same sex.
2. Sexual misconduct is a class A misdemeanor.
Section 566.090, RSMo 1978 (since repealed).
In 1994, the Legislature inserted “in the first degree” in the first subsection introductory paragraph, deleted subdivisions (1) and (2) and the designation of subdivision (3), and inserted “or he purposely subjects another person to sexual contact or engages in conduct which would constitute sexual contact except that the touching occurs through the clothing without that person’s consent”; and in subsection 2, inserted “in the first degree” and “unless the actor has previously been convicted of an offense under this chapter or unless in the course thereof the actor displays a deadly weapon in a threatening manner or the offense is committed as a part of a ritual or ceremony, in which case it is a class D felony.” These changes rendered the following result, the statutory crime of sexual misconduct set forth in Section 566.090, as it existed in Missouri from 1995 to 2003:
Section 566.090
1. A person commits the crime of sexual misconduct in the first degree if he has deviate sexual intercourse with another person of the same sex or he purposely subjects another person to sexual contact or engages in conduct which would constitute sexual contact except that the touching *844occurs through the clothing without that person’s consent.
2. Sexual misconduct in the first degree is a class A misdemeanor unless the actor has previously been convicted of an offense under this chapter or unless in the course thereof the actor displays a deadly weapon in a threatening manner or the offense is committed as a part of a ritual or ceremony, in which case it is a class D felony.
In 2003, the Legislature, via L.2002, S.B. Nos. 969, 673 & 855, § A, in subsection 1, following “sexual contact,” deleted “or engages in conduct which would constitute sexual contact except that the touching occurs through the clothing.” The result was as follows:
Section 566.090
1. A person commits the crime of sexual misconduct in the first degree if he has deviate sexual intercourse with another person of the same sex or he purposely subjects another person to sexual contact without that person’s consent.
2. Sexual misconduct in the first degree is a class A misdemeanor unless the actor has previously been convicted of an offense under this chapter or unless in the course thereof the actor displays a deadly weapon in a threatening manner or the offense is committed as a part of a ritual or ceremony, in which case it is a class D felony.
In 2006, the Legislature, by L.2006, H.B. Nos. 1698, 1236, 995, 1362 & 1290, § A, removed from subsection 1, “he has deviate sexual intercourse with another person of the same sex or he” and replaced it with “such person.” Thus, effective June 5, 2006 until August 28, 2013, Section 566.090 provided:
Section 566.090
1. A person commits the crime of sexual misconduct in the first degree if such person purposely subjects another person to sexual contact without that person’s consent.
2. Sexual misconduct in the first degree is a class A misdemeanor unless the actor has previously been convicted of an offense under this chapter or unless in the course thereof the actor displays a deadly weapon in a threatening manner or the offense is committed as a part of a ritual or ceremony, in which case it is a class D felony.
Next, effective August 28, 2013, by L.2013, H.B. No. 215 § A, Section 566.090 was transferred to and redesignated Section 566.101, rewritten and retitled “Second degree sexual abuse, penalties,” which at the current time provides as follows:
Section 566.101 — Second degree sexual abuse, penalties
1. A person commits the offense of sexual abuse in the second degree if he or she purposely subjects another person to sexual contact without that person’s consent.
2. The offense of sexual abuse in the second degree is a class A misdemean- or, unless the actor has previously been convicted of an offense under this chapter or unless in the course thereof the actor displays a deadly weapon in a threatening manner or the offense is committed as a part of a ritual or ceremony, in which case it is a class D felony.
(Transferred from § 566.090 and amended by L.2013, H.B. No. 215, § A, eff. Aug. 28, 2013.)
No law criminalizing the same conduct set forth in former Section 566.090.1(3) has been enacted in its place.
The constitutionality of Section 566.090.1(3) RSMo 1978 (since repealed) *845was first raised in State v. Walsh, 713 S.W.2d 508, 513 (Mo.banc 1986). At that time, its constitutionality was upheld, with the Walsh court finding:
We believe further that punishing homosexual acts as a Class A misdemean- or, see Section 566.090.2, is rationally related to the State’s constitutionally permissible objective of implementing and promoting the public morality.
We further find that Section 566.090.1(3) is rationally related to the State’s concededly legitimate interest in protecting the public health. The State has argued that forbidding homosexual activity will inhibit the spread of sexually communicable diseases like acquired [immunodeficiency] syndrome (AIDS).
Id. at 512.
In 2013, more than a quarter-century after Walsh, the Missouri Supreme Court decided Glossip v. Mo. Dep’t of Transp. & Highway Patrol Employees’ Ret. Sys., 411 S.W.3d 796 (Mo.banc 2013). In Glossip, the majority opinion determined a highway patrol spousal survivor benefits statute does not discriminate on the basis of sexual orientation in violation of the equal protection clause because the statute drew its distinction on the basis of marital status, not sexual orientation. Id. at 804. The majority therefore concluded it did not have to reach the issue of the constitutionality of discrimination based on sexual orientation, but if it did, it would be guided by federal law, for the Missouri Constitution’s equal protection clause is coextensive with the Fourteenth Amendment. Id. at 805.
In his dissenting opinion, joined by Judge Draper, Judge Teitelman mentioned the Walsh decision and recognized “[although Walsh held that classifications based on sexual orientation were not subject to heightened equal protection scrutiny, that conclusion was based on the fact that homosexual behavior was, at that time, a crime. The rationale of Walsh is no longer viable in light of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), which held that homosexual behavior is no longer subject to criminalization.” Glossip, 411 S.W.3d at 813 (Mo.banc 2013) (J. Teitelman, dissenting on other grounds).
Homosexual deviate sexual intercourse is no longer a sexual offense in Missouri. As such, there is no logical existent reason to require Appellant to register on the sexual offender registry. A similar situation presented itself in State ex rel. Kauble v. Hartenbach, 216 S.W.3d 158 (Mo.banc 2007). In Kauble, the petitioner had pled guilty under a statute that was later found to be unconstitutional. Id. at 161. The conduct that constituted the basis for his guilty plea was not. criminal. Id. He sought to have his conviction overturned or vacated, and be allowed to remove his name from the sexual offender registry. Id. The Missouri Supreme Court noted .that the only court with the power to vacate Mr. Kauble’s conviction was the circuit court, which had lost jurisdiction over his case long ago. Id. However, the Court indicated that if he named the proper parties as defendants, that is, the individuals who are in control of and maintain the sexual offender registry, he could ask the Court for a declaratory judgment that his name be removed from the sex offender registry. Id.2 The Kauble court had this to say about Mr. Kauble’s situation, which is pertinent to Appellant’s here:
Kauble asserts that he is entitled to removal from the sex offender registry. Section 589.400.3(1) allows removal from *846the sex offender registry when “all offenses requiring registration are reversed, vacated or set aside.” In the current state of the law and this Court’s rules, Kauble’s plea of guilty remains a historical fact. Although there is no provision for vacating his guilty plea, there is no reason that the plea should have any current effect. Specifically, he should no longer be required to register as a sex offender.
Because there is no party to this proceeding that maintains the registry, this Court cannot grant Kauble’s requested relief ordering that his name be removed from the registry. If Kauble’s request to those who maintain the registry is denied, his remedy may be to bring an action against the parties responsible for maintaining the registry.
Id.
As the Missouri Supreme Court pointed out in Kauble, there is no procedure available for Appellant to have his 1989 guilty plea vacated, even though the law on which it was based was deemed unconstitutional as criminalizing behavior which is legal. However, unlike in Kauble, Appellant’s cause of action is properly postured and he has named the appropriate defendants and therefore is entitled to the remedy which the Court indicated was proper for Mr. Kauble, once appropriately requested.
Respondents’ Arguments
Respondents argue Appellant’s conduct on September 28, 1988 was criminal in other aspects justifying his continued registration on the sexual offender registry. Respondents maintain Detective Bayes was the victim of Appellant’s grabbing his groin without his consent, as he avers in his affidavit dated April 29, 2014, and created for the purpose of Appellant’s underlying declaratory judgment action.
The offense to which Appellant pled guilty in 1989 was clearly a strict liability statute. It included no language, as did other criminal statutes in effect at the time but under which Appellant was not charged or convicted, requiring a victim’s lack of consent as an element of the crime. Respondents cannot argue almost thirty years later that Appellant’s conduct on September 28, 1988 was sexually criminal in ways other than how the prosecutor chose to charge its illegality in 1989.
It is within the prosecutor’s discretion to determine the statute or statutes under which the prosecutor desires to proceed in charging a defendant with a crime. State v. Hendricks, 944 S.W.2d 208, 211 (Mo.banc 1997). The prosecutor’s determination will be based upon the evidence, along with any other considerations that the prosecutor may properly want to take into account. Id.
Likewise, from the defendant’s perspective, for his guilty plea to be a voluntary and intelligent admission that he committed the offense leveled against him by the prosecutor, the defendant must receive real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process. Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).
The prosecutor’s choice in charging Appellant in 1988 cannot be revisited or revised today. Appellant’s plea is now a part of history. Additionally, it nearly goes without saying that Respondents also cannot bring forward newly manufactured evidence, ie., Detective Bayes’s 2014 affidavit, to support a new theory of Appellant’s culpability.
Moreover, Respondents’ characterization of Detective Bayes as a “victim” of sexual contact by Appellant, and their contention that Detective Bayes did not give Appel*847lant permission to touch his groin, are disingenuous. Detective Bayes was participating in a sting operation to rid the rest stop of homosexual behavior in 1988 and he deliberately sat in his car at that location; got into Appellant’s car with him and talked for over ten minutes; and when Appellant finally made a sexual overture to Detective Bayes, Detective Bayes revealed his true identity as a police officer and placed Appellant under arrest for attempted homosexual deviate intercourse. Such a course of events would be considered a success by Detective Bayes in his undercover sting operation to rid the area of homosexual behavior that night in 1988, and to characterize himself today as a victim of unwanted sexual touching by Appellant that night is incongruous.
Respondents also argue that Appellant’s conduct on September 28, 1988 was committed in public, not in private, and as such does not deserve the protection of Lawrence. Respondents are attempting to expand upon the alleged criminality of Appellant’s conduct on the night of September 28, 1988, to add a public aspect to it that was not there when charged by the State, considered by the court or pled guilty to by Appellant almost thirty years ago. As we determined with regard to the ostensibly “nonconsensual” aspect to the actions of Appellant and Detective Bayes in the front seat of Appellant’s car on the evening of September 28, 1988, the State chose not to charge Appellant with a crime with a public aspect to it. Rather, it chose to charge Appellant with the strict liability crime of attempted deviate sexual intercourse with a person of the same sex as set forth in Section 566.090.1(3) RSMo 1978 (since repealed).
For the foregoing reasons, we consider Appellant’s petition for declaratory judgment well taken. Respondents’ motion for summary judgment should not have been granted, and it was error for the trial court to do so. Appellant’s appeal is granted for the reasons stated specifically herein only.
Conclusion
The trial court’s judgment is reversed and this cause is remanded for proceedings consistent with this opinion. Appellant’s Petition for Declaratory Judgment is ordered to be granted and Respondents are ordered to remove Appellant’s name and all other registration information from the Missouri Sex Offender Registry.
Mary K. Hoff, J., and Philip M. Hess, J., concur.
. All statutory references are to.RSMo 1978, unless othérwise indicated.
. Mr. Kauble filed a petition for writ of mandamus asking the Court to compel the trial court judge to dismiss and set aside his guilty plea and remove his name from the registry. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283833/ | ORDER
PER CURIAM
Mother A.N.S. appeals the judgment of the Circuit Court of the City of St. Louis denying her motion to set aside the default judgment entered in favor of father A.A.P. on his petition for name change, visitation, custody, and support for the parties’ minor child. We affirm the trial court’s judgment.
No error of law appears. An extended opinion would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283834/ | ORDER
PER CURIAM
Casitdel Wooten (“Defendant”) appeals from the trial court’s judgment, following a jury trial, convicting him as a prior offender of forcible rape, kidnapping, and third-degree assault of a 16-year-old girl. The court sentenced him to 22 years for the rape, to run consecutively with concurrent sentences,of 10 years for the kidnapping and one year for the third-degree assault, for a total of 32 years’ imprisonment. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/588932/ | 972 F.2d 1272
23 U.S.P.Q.2d 1839
GENERAL FOODS CORPORATION, Plaintiff-Appellee,v.STUDIENGESELLSCHAFT KOHLE mbH, Defendant-Appellant.
No. 91-1418.
United States Court of Appeals,Federal Circuit.
Aug. 11, 1992.Rehearing Denied; Suggestion for Rehearing In Banc DeclinedOct. 2, 1992.
Paul H. Heller, Kenyon & Kenyon, New York City, argued for plaintiff-appellee. With him on the brief were Richard L. DeLucia, James Galbraith and Richard S. Gresalfi.
Arnold Sprung, Sprung, Horn, Kramer & Woods, Tarrytown, N.Y., argued for defendant-appellant. With him on the brief was Nathaniel D. Kramer.
Before RICH, Circuit Judge, SKELTON, Senior Circuit Judge, and CLEVENGER, Circuit Judge.
RICH, Circuit Judge.
1
Studiengesellschaft Kohle mbH (SGK), as trustee for real-party-in-interest Max Planck Institute for Coal Research, appeals from the June 12, 1991 judgment of the United States District Court for the Southern District of New York, Civil Action No. 88-8343, declaring invalid claims 1 and 4 of SGK's U.S. Patent No. 4,260,639 ('639 patent), titled "Process for the Decaffeination of Coffee," on the sole ground of "double patenting," in view of SGK's earlier-issued U.S. Patent No. 3,806,619 ('619 patent), titled "Process for Recovering Caffeine." Because there is no double patenting, we reverse.
BACKGROUND
2
This declaratory judgment suit is between a licensor and licensee over patents relating to decaffeinated coffee. Plaintiff, General Foods Corporation (GF), owns Maxwell House Coffee Company which manufactures decaffeinated coffee at its AMCO plant in Houston, Texas, for sale under brands such as Sanka, Maxim, Brim, Yuban, and Maxwell House. GF also owns Kaffee HAG, a processor and research company in Bremen, Germany, which is said to have been the first producer of decaffeinated coffee.
3
SGK developed in Europe inventions relating to decaffeination and owned five United States patents involved in this lawsuit. Learning about SGK's developments, GF entered into an exclusive license agreement with SGK effective February 1, 1978, which has now become a nonexclusive license, on which it paid royalties to SGK through 1990, since then paying further royalties under protest. The license agreement provided for advance payments totalling $1,800,000 during the first year. Royalties were to range from 1.75% of net decaffeinated coffee sales up to 40,000,000 pounds down to 1.25% of net sales over 120,000,000 pounds.
4
GF brought this suit for a declaration of non-infringement, invalidity, and unenforceability as to all five patents. However, the District Court found that although all five SGK patents were licensed, SGK now asserts that only claims 1 and 4 of the '639 patent would be infringed by GF's operation at the AMCO plant and that the other four patents are no longer in suit. Although GF asserted numerous defenses against claims 1 and 4, including invalidity for "obviousness-type double patenting," non-infringement, obviousness under 35 U.S.C. § 103, non-enablement under 35 U.S.C. § 112, and unenforceability due to inequitable conduct before the Patent and Trademark Office (PTO), the District Court issued an Order of Trial on April 5, 1991, on GF's motion, to "bifurcate the issue of double patenting." The order further stated, "If the decision does not dispose of the action, trial will then immediately continue on the remaining issues."
5
The District Court held a separate trial on the single issue of double patenting. A judgment was entered holding claims 1 and 4 of the '639 patent invalid, thus terminating GF's declaratory judgment suit seeking invalidity of the only patent it was alleged to be infringing and putting an end to its obligation to pay SGK royalties under its contract. 765 F. Supp. 121.
6
This appeal followed and, as above stated, there is only one issue for us to decide--is there double patenting. We shall first discuss the facts regarding the two patents involved and then the law of double patenting as it applies to those facts.
Patent Claims
7
Preliminarily, in order to better focus on the crucial aspects of the patents under discussion, we make the following elementary observations about patent claims. The patent document which grants the patentee a right to exclude others and hence bestows on the owner the power to license, consists of two primary parts: (1) a written description of the invention, which may and here does include drawings, called the "specification," enabling those skilled in the art to practice the invention, and (2) claims which define or delimit the scope of the legal protection which the government grant gives the patent owner, the patent "monopoly." As stated by Judge Lane, who served on both of our predecessor courts, in In re Vogel, 422 F.2d 438, 164 U.S.P.Q. (BNA) 619 (CCPA1970), "A claim is a group of words defining only the boundary of the patent monopoly." (Emphasis ours.) The Supreme Court has likened patent claims to the description of real property in a deed "which sets the bounds to the grant which it contains. It is to the claims of every patent, therefore, that we must turn when we are seeking to determine what the invention is, the exclusive use of which is given to the inventor by the grant provided for in the statute,--'He can claim nothing beyond them.' " Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510, 37 S. Ct. 416, 418, 61 L. Ed. 871 (1917) (emphasis ours).
8
That being the essential nature of patent claims, it follows that each claim is an entity which must be considered as a whole. It cannot be said--though it often is, incorrectly, by the uninitiated--that a part of a claim is "claimed" subject matter. For example, a claim to a process comprising the step A followed by step B followed by step C defines, as a matter of law, only the A-B-C process and one cannot properly speak of any single step as being "claimed", for it is not; all that is claimed is the process consisting of the combination of all three steps. Such a claim, therefore, creates no patent right or monopoly in step A, no right to prevent others from using step A apart from the combination of steps A-B-C. Step A is not "patented."
9
Another way of stating the legal truism is that patent claims, being definitions which must be read as a whole, do not "claim" or cover or protect all that their words may disclose. Even though the claim to the A-B-C combination of steps contains a detailed description of step A, that does not give the patentee any patent right in step A and it is legally incorrect to say that step A is "patented."
10
These legal rules about construing claims are repeated here because the law of double patenting is concerned only with what patents claim. "Double patenting," therefore, involves an inquiry into what, if anything, has been claimed twice.
11
The Patent in Suit and its Claimed Invention
12
Coffee beans contain a small percentage of caffeine which must be removed to produce decaffeinated coffee. The inventor, Kurt Zosel, working in Germany for SGK, discovered that moist (i.e., containing water) "supercritical" carbon dioxide, that is, carbon dioxide above its critical temperature and critical pressure, was an excellent solvent for taking the caffeine out of coffee beans. That was the basic invention. The parties and the trial court have referred to the patent on this invention as "the decaffeination patent."
13
A U.S. application for patent on this invention was filed January 28, 1971, serial No. 110,428. This application was prosecuted to the point where all pending claims were allowed following the usual debate with the examiner over unobviousness in view of prior art references. The official Notice of Allowance was mailed by the PTO March 8, 1973. Payment of the base issue fee was due within three months, June 8, 1973.
14
Upon examining the 13 allowed claims prior to issue, Zosel and/or his attorneys realized that all claims were limited to raw coffee beans and it was concluded that the application disclosure would support broader claims not limited to raw coffee, but broad enough to include roasted coffee; i.e., claims simply calling for "coffee." It was decided, therefore, to file a continuation-in-part application (a CIP) with such broader claims. This was done within the time limit allowed by PTO rules and application Serial No. 364,190 was filed on May 25, 1973. Original application Serial No. 110,428, according to the usual practice, was allowed to go abandoned.
15
The try for broader claims did not succeed in a prosecution that was hard fought and went all the way to the PTO Board of Patent Appeals and Interferences (Board). Zosel and his assignee SGK ended up with a Board decision on July 12, 1979, that allowed claims to no more than had originally been allowed, claims to the new process as applied to raw coffee beans. The Board held the disclosure in Zosel's original application did not support claims naming "coffee" generally, wherefore he was entitled only to the filing date of the CIP, to which he had added supporting disclosure. Given that filing date, there was new prior art which barred claims not restricted to raw coffee. The Board said:
16
We affirm the rejection of claims 1-14 [the new broad coffee claims] under 35 USC 102(d) as anticipated by the British patent. Contrary to appellant's assertion, the decaffeination of coffee in general, i.e. from both its raw and roasted state, by the claimed expedient is not implicit in the disclosure of the parent application.
17
We are not concerned on this appeal with this aspect of the Board's decision. It simply concluded Zosel's effort to get broad "coffee" claims.
18
The more interesting aspect of the Board's decision relates to the double patenting issue now before us. During the CIP prosecution, the Examiner had made obviousness-type double patenting rejections based on the claims of Zosel's U.S. Patent No. 3,806,619, issued April 23, 1974, the same '619 patent relied on by the District Court in support of the double patenting decision here under review. The double patenting issue was extensively debated between the Examiner and applicant's attorney and went to the Board on appeal from the Examiner's final rejection. The Board reversed the Examiner's rejections for obviousness-type double patenting. The Board concluded (emphasis ours):
19
In re Borah, 53 CCPA 800, 354 F.2d 1009, 148 U.S.P.Q. (BNA) 213 [ (1966) ], supports appellant's position that the test for double patenting is whether or not the subject matter of the patent claims is obvious from the subject matter of the claims at issue. Clearly, here, steps (b) through (j) of the ['619] patent claims are not suggested by nor obvious from the claims at bar, the patent claims being a separate and distinct improvement invention thereover, and, consequently, no double patenting rejection is seen to be proper.
20
Thereafter, Zosel cancelled the rejected claims, received a Notice of Allowance, and the '639 patent in suit was issued on April 7, 1981.
21
Claims 1 and 4 of the '639 patent, held invalid in this suit for double patenting in view of the '619 patent, contrary to the unanimous decision of the Board on the identical issue, read as follows:
22
1. A process for the decaffeination of raw coffee which comprises contacting the raw coffee with water-moist carbon dioxide above its critical temperature and critical pressure to effect removal of caffeine therefrom and recovering a substantially decaffeinated coffee, the amount of water in the carbon dioxide being sufficient to effectuate said removal of the caffeine from the coffee.
23
4. A process as claimed in claim 1, in which the contact with the moist carbon dioxide is effected for a period of from 5 to 30 hours.
24
It will be observed that this process consists of two steps: (1) a caffeine removal step and (2) a decaffeinated-coffee recovery step. The claim 4 time limitation addition to claim 1 is of no significance to the decision of the issue here.
25
The Invention of Claim 1 of the '619 Patent Relied on Below
26
to Show Double Patenting
27
Zosel, more than a year after he had filed his foreign application to patent his decaffeination process, on which his U.S. parent and CIP applications were based, made a further invention which the parties have characterized as an "improvement" on the original process. It is, however, a separate invention, unrelated to the decaffeination invention defined in claims 1 and 4. Its purpose was to effect an efficient removal from the supercritical carbon dioxide solvent, used to extract caffeine from the raw coffee beans, of the caffeine removed so as to obtain caffeine of better than 95% purity. The shorter version of the general description of this recovery process in the '619 patent is as follows:1
28
[The process for recovering caffeine] which comprises removing the caffeine from the caffein-loaded carbon dioxide by repeated treatment with water and recovering the caffein and the water from the resultant dilute aqueous caffein solution by recycling a stream of air or nitrogen under a superatmospheric pressure of about 1 to 5 atmospheres through the heated caffein solution and a heat exchanger, separating the caffein and the condensed water and recycling after admixture of cold caffein solution the gas through the heat exchanger in countercurrent flow relation and meeting the heat requirement by supplying heat to the hot caffein solution.
29
The patent specification then proceeds with a detailed description of the recovery process in conjunction with a drawing of the processing apparatus employed.
30
What has caused much of the argument and most of the confusion in this case is the brief reference in the '619 patent to the '639 patent decaffeination process as the source of the caffeine in the "caffein-loaded carbon dioxide" which is the input to the recovery process. The totality of that reference in the '619 patent is in the opening paragraphs of the specification:
31
Austrian Pat. No. 290,962 and U.S. [CIP] application Ser. No. 364,190, filed May 25, 1973 disclose a process for decaffeinating green coffee, wherein moist carbon dioxide is recycled through a bed of green coffee and a bed of activated charcoal. The moist carbon dioxide passes through the green coffee bed in supercritical state and through the bed of activated charcoal at a lower temperature in liquified state. The moist carbon dioxide in supercritical state is loaded thereby with the caffein of the green coffee and the caffein is absorbed on the activated charcoal.
32
The recovery of the caffein from the activated charcoal is not described in the patent mentioned above.
33
The parties and the trial court have appropriately referred to the '619 patent as "the caffeine recovery patent."
34
It should be amply clear by now that the decaffeination invention and the caffeine recovery invention are separate and distinct inventions, directed to different objectives, and patentably distinguishable one from the other. Neither is statutory "prior art" to the other because the patent applications were copending and, further, because there can be no "prior invention by another " (cf. 35 U.S.C. § 102(g)) because both are the inventions of Zosel.
35
Claim 1 of the '619 patent, on the basis of which the District Court found double patenting, reads:
36
1. A process for obtaining caffein from green coffee which comprises:
37
a. contacting moist carbon dioxide in supercritical state with the coffee in a caffein absorption zone for absorption of caffein by the moist carbon dioxide,
38
b. withdrawing the moist carbon dioxide containing absorbed caffein from the absorption zone and contacting it with water for extraction of caffein from the moist carbon dioxide in an extraction zone for formation of an aqueous solution of caffein,
39
c. recirculating the moist carbon dioxide between the absorption zone and the contacting zone,
40
d. withdrawing aqueous solution of carbon dioxide from the extracting zone and introducing it into an evaporating zone, passing a stream of air or nitrogen through the aqueous solution in the evaporating zone for evaporation of water from the solution and concentration of caffein in the aqueous solution, and withdrawing a concentrated aqueous solution from the evaporating zone,
41
e. withdrawing the air or nitrogen laden with water vapor from the evaporating zone and cooling it for condensation of water and separating the water from the air or nitrogen in a separating zone,
42
f. recirculating the air or nitrogen between the evaporating zone and the separating zone,
43
g. admixing aqueous solution of carbon dioxide from the extraction zone with the air or nitrogen conveyed from the separating zone to the evaporating zone,
44
h. passing the air or nitrogen laden with water vapor and the admixture formed in step (g) in indirect heat exchange relation between the evaporating zone and the separating zone, for cooling of the air or nitrogen laden with water vapor for the condensation of step (e) and heating said admixture for heating the aqueous solution for the evaporation, and
45
[sic--no step i.]
46
j. supplying additional heat to the aqueous solution for the evaporation.
47
That this claim 1 of the '619 patent is the sole basis of the ultimate double patenting holding of the trial court is shown in its Conclusion of Law 24, which reads:
48
24. For all the foregoing reasons, we find [sic, hold] that claim 1 of the decaffeination patent ['639] is obvious from claim 1(a) of the caffeine recovery patent ['619]. Consequently, plaintiff is entitled to a judgment declaring claim 1 of the decaffeination patent invalid on the ground of obviousness-type double patenting.
ANALYSIS
49
Double patenting is altogether a matter of what is claimed. Claim interpretation is a question of law which we review de novo. Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 228 U.S.P.Q. (BNA) 90 (Fed.Cir.1985). As we construe the claims here involved, claims 1 and 4 of the patent in suit, '639, define a process of decaffeinating raw coffee with supercritical water-moist carbon dioxide and recovering the decaffeinated coffee. They say nothing about what happens to the caffeine. Claim 1 of the '619 patent, relied on to show double patenting, defines a 9-step process of "obtaining caffein from green coffee." Anything less than a process with all 9 steps is not what is claimed, and is, therefore, not patented. Claims must be read as a whole in analyzing a claim of double patenting. Carman Indus., Inc. v. Wahl, 724 F.2d 932, 940, 220 U.S.P.Q. (BNA) 481, 487 (Fed.Cir.1983) ("we wish to clarify that double patenting is determined by analysis of the claims as a whole.") These two inventions, decaffeination of coffee and recovery of caffeine, are separate, patentably distinct inventions between which there cannot be double patenting. Clearly the two patents do not claim the same invention, and this is not argued. Under an obviousness-type double patenting analysis, neither claimed process is a mere obvious variation of the other. No other kind of "double patenting" is recognized, so there is no double patenting. That concludes the case so far as this appeal is concerned. A discussion of the law which supports our conclusion follows.
50
No Double Patenting Between Patentably Distinct Inventions
51
The opinion in In re Vogel, 422 F.2d 438, 164 U.S.P.Q. (BNA) 619 (CCPA1970), undertook a "restatement of the law of double patenting as enunciated by this court." To summarize it, the opinion says that the first question is: Is the same invention being claimed twice? If the answer to that is no, a second question must be asked: Does any claim in the application define merely an obvious variation of an invention claimed in the patent asserted as supporting double patenting? If the answer to that question is no, there is no double patenting. The court was speaking, of course, about the PTO rejection of a pending patent application intended to forestall double patenting. If the rejected claim defines more than an obvious variation, it is patentably distinct.
52
One of our most recent double patenting decisions is In re Braat, 937 F.2d 589, 19 USPQ2d 1289 (Fed.Cir.1991) in which we held:
53
Thus, a double patenting rejection is sustainable here only if claims 5/1 and 6/1 of Dil are not patentably distinct from the subject matter defined by the rejected claims of Braat.... [The claim numbers refer to dependent claims 5 and 6, both depending from claim 1.]
54
....
55
... [W]e conclude that the claims of the Braat application and the Dil patent are patentably distinct, and that the double patenting rejection was in error.
56
Id. at 594, 19 USPQ2d at 1293 (emphasis added). With respect to extension of patent protection we said in Braat:
57
It is true that allowance of the Braat application will result in some timewise extension of Philips' patent protection of the Dil structure. This is because Braat's claims dominate the invention of Dil claims 5/1 and 6/1. As our predecessor court pointed out in Borah, in analogizing the Stanley decision, "We see ... that as a matter of law the extension of protection objection is not necessarily controlling."
58
Id. (emphasis added). Just a fortnight before Braat we decided Symbol Technologies, Inc. v. Opticon, Inc., 935 F.2d 1569, 19 USPQ2d 1241 (Fed.Cir.1991), in which the court said:
59
Furthermore, even if there had been a breach of the restriction requirement, we would reject Opticon's argument on the ultimate obviousness-type double patenting inquiry: whether the claims of the '186 patent are patentably distinct from the claims of the '297 patent. See In re Borah, 354 F.2d 1009, 1017, 148 U.S.P.Q. (BNA) 213, 220 (CCPA1966) (crux of obviousness-type double patenting inquiry lies in comparison of claims)....
60
Id. at 1580, 19 USPQ2d at 1249 (emphasis added).
61
The extensive opinion in In re Borah, 354 F.2d 1009, 148 U.S.P.Q. (BNA) 213 (CCPA1966), in its concluding pages, shows beyond question that the determining factor in deciding whether or not there is double patenting is the existence vel non of patentable difference between two sets of claims. The phrases actually used in the opinion include "patentably distinguishable," "patentable distinctions," and "whether such differences would have been obvious to one of ordinary skill in the art." They are all equivalent. The opinion summarizes two earlier cases, spanning three decades, to the same effect, citing them as established law with full approval, namely, In re Stanley, 214 F.2d 151, 102 U.S.P.Q. (BNA) 234 (CCPA1954), and In re Calvert, 97 F.2d 638, 38 U.S.P.Q. (BNA) 184 (CCPA1938).
62
Before leaving Borah, we call attention to the following statement there made in the court's discussion of Stanley:
63
In Stanley, this court sanctioned, in 1954, the issuance of a dominating patent to the owner of the improvement patent which had issued in 1950, notwithstanding the owner's protection would thereby be extended beyond the expiration of the improvement patent by several years. We see, therefore, that as a matter of law the extension of protection objection is not necessarily controlling.
64
354 F.2d at 1017, 148 U.S.P.Q. (BNA) at 220.
65
We find in the facts of the instant case a parallel situation. The facts here indicate that in the commercial decaffeination of raw coffee the processor is interested, for economic reasons, not only in the effective decaffeination of raw coffee but in the effective recovery of pure caffeine as a by-product. Therefore, both of Zosel's inventions are preferably used in the same commercial process. These patentably distinct process inventions are covered by separate patents, however, which happen to expire at different times. Each process, nevertheless, is capable of being used by itself. The fact that it may be desirable to use both inventions in the same commercial process does not result, however, in any recognized form of double patenting, or in the "extension" of either patent; each patent has a term of seventeen years.
66
A licensee which has taken a license under both patents, choosing to use the inventions claimed in both patents in the same commercial process, must know that, in the absence of some agreement to the contrary, it is not excused from paying royalty after one of the patents expires while the other is still in force and the invention it claims is being used. In the 1978 exclusive license agreement entered into by GF and SGK, the licensed "Patent Rights" were set forth in a schedule of some 21 U.S. and foreign patents and applications with a wide range of expiration dates. Included therein are patent '619 which had issued in 1974 and both the parent and CIP applications, Serial Nos. 110,428 and 364,190 which resulted in the '639 patent in suit in 1981. The record shows that before the license was entered into, GF had been supplied with copies of the parent and CIP application prosecution histories and was therefore fully informed about aspects of the '639 prosecution history it now attempts to use to show invalidity on double patenting grounds, particularly the decision to file the CIP application which GF now depicts as a deliberate effort by SGK to "extend" its protection by obtaining "a 24-year patent," to cover the inventions of others, etc. It has to be considered a bit odd that after enjoying the benefits of a license to use the principal invention which caused it to take a license in 1978--the decaffeination process which it knew was not yet patented, not the caffeine recovery "improvement" which it no longer wishes to use--and although fully informed about the prosecution of the patent on that decaffeination invention, it comes up with the contention a decade later that that patent is invalid and files the present declaratory judgment suit in 1988 to test its theory. At least, it would seem odd but for the realization that if its theory can be put across, it will save GF a lot of money. During the time GF was an exclusive licensee, its interest in having the broadest and longest patent protection on the decaffeination process was as great as SGK's.
67
Determining What Is Patented By Correct Claim Interpretation
68
Is Essential To Determination Of Obviousness-Type
Double Patenting Issues
69
The basic concept of double patenting is that the same invention cannot be patented more than once, which, if it happened, would result in a second patent which would expire some time after the original patent and extend the protection timewise. But double patenting law has always been more inclusive. Double patenting law principles extend to merely obvious variants of what has been patented. Step one of the analysis is to determine what that is. Claims are the determinants.
70
In the cases, which are mostly from the Court of Customs and Patent Appeals, now merged with the former Court of Claims to form this court, the development of the law came to a turning point in In re Zickendraht, 319 F.2d 225, 138 U.S.P.Q. (BNA) 22 (CCPA1963), particularly in the concurring opinion therein. Soon thereafter the obvious variant kind of double patenting came to be known as "obviousness-type" double patenting, which signifies that the difference between the first-patented invention and its variant involves only an unpatentable difference, no second patentable invention having been made. The Zickendraht concurring opinion suggested that an obviousness-type double patenting situation could be overcome by filing a terminal disclaimer, which had been provided for in section 253 of the 1952 patent act for that very purpose. However, where the two inventions are patentably distinct, no disclaimer is called for. Where there is a second patentable invention, as there is here, because the difference is not an obvious one, it is important to bear in mind that comparison can be made only with what invention is claimed in the earlier patent, paying careful attention to the rules of claim interpretation to determine what invention a claim defines and not looking to the claim for anything that happens to be mentioned in it as though it were a prior art reference. This was not done by the trial court. Rather, it was carefully misguided by GF's arguments into doing exactly the opposite, as we shall now show.
71
It should suffice, we feel, to point out the principal error into which the trial court was led which resides in a complete misinterpretation of claim 1, set forth above, of the '619 patent on the caffeine recovery process, now expired. We have quoted above, immediately following claim 1 of the '619 patent, Conclusion of Law 24 which is the ultimate error. The gist of it is that claim 1 of patent '639 in suit is "obvious from claim 1(a)" of patent '619. Of course, there is no such thing as "claim 1(a)," a term used no less than 11 times throughout the Findings of Fact and Conclusions of Law. There is a claim 1 and the first step of its 9 recited steps is designated "(a)." And that step recites the essence of the very same process claimed in the '639 patent in suit but, in accordance with the principles of claim construction discussed early in this opinion, step (a) is not "claimed" in the '619 patent, nor is it "patented" or "covered" as the trial court seems to have thought it was as shown by its Finding of Fact 58 which says: "It was obvious to one of ordinary skill in the art that supercritical carbon dioxide would substantially decaffeinate coffee, as otherwise it would not be claimed in claim 1 of the '619 patent...." (Emphasis ours.) This concept violates the fundamental rule of claim construction, that what is claimed is what is defined by the claim taken as a whole, every claim limitation (here each step) being material. What is patented by claim 1 of '619 is a 9-step caffeine recovery process, nothing more and nothing less.
72
A further error of the trial court in dealing with the '619 patent's claim 1 was in looking, not at what invention it defines, but at whatever the claim discloses, illustrated by Findings of Fact 68 and 69.
73
68. There cannot be double patenting here unless the plaintiff [GF] establishes, inter alia, that claims 1 and 4 of the '639 patent are obvious from the claims of the '619 patent, as interpreted by the specification in view of the prior art.
74
This is perfectly sound law if one construes "from the claims" to mean from the invention defined by the claims, but in the next finding the court jumps the track (emphasis ours):
75
69. Claim 1(a) of the '619 patent anticipates, or at least renders obvious, the inventions of claims 1 and 4 of the '639 patent because every step of claims 1 and 4 of the '639 patent is set forth in claim 1(a) of the '619 patent....
76
This clearly is using nothing but the disclosure of clause (a) of claim 1 as though it were prior art, and in not reading claim 1 to determine what invention it defines--like the metes and bounds of a deed. We repeat, clause (a) of claim 1 is not a claim, patent '619 does not claim clause (a) but a 9-step process of which (a) is the first step, and double patenting is based entirely on what is claimed, reading each claim as an entirety to determine what invention it defines.
77
A further illustration of the same misconstruction of claims by reading them for what they disclose rather than to determine what they define appears in Conclusion of Law 18 which says, in part, "in this case the only relevant inquiry is whether the claims of the first patent 'disclose [ ] to one of ordinary skill in the art' the claims of the second patent." (Emphasis ours.) The source of the quoted phrase is not given. The court failed to observe the distinction between a claim as a written disclosure and a claim as a definition of an invention.
78
How the meaningless, confusing, and highly misleading expression "claim 1(a)" got injected into this case "is a puzzlement." We are also perplexed as to what the trial court meant by it in its constantly reiterated use. There is some evidence the court was led to believe that clause (a) of claim 1 was actually a claim in the sense that the words "claim" and "claimed" are used in the law of double patenting and in patent law generally. If that is so, we express sincere sympathy for the trial judge in his efforts to understand this double patenting issue, a subject usually fraught with difficulty. There is a much stronger indication that GF's counsel are responsible for the use of the term "claim 1(a)." Whether they originated it or not, they have perpetuated it in the course of ten pages of their brief before this court (Main Brief at pages 39-49, the term appearing at least once on every page except page 47 and altogether 17 times). This fictitious "claim 1(a)," which is supposed to define some already patented invention, is then argued to make the invention claimed in the patent in suit obvious, if not anticipated which is the epitome of obviousness. This may seem plausible because "claim 1(a)" is a description of that very invention. But, in the first place, this argument fails because it totally ignores the rules of claim interpretation and, in the second place, it is used as though it is a prior art disclosure for everything recited in claim 1 being applied to support an obviousness rejection under 35 USC 103. This is impermissible in the law of double patenting.
79
Precedents Prohibit Use of Disclosure of Patent Cited to
Support Double Patenting
80
Our precedent makes clear that the disclosure of a patent cited in support of a double patenting rejection cannot be used as though it were prior art, even where the disclosure is found in the claims. See, e.g., Braat, 937 F.2d at 594 n. 5, 19 USPQ2d at 1293 n. 5 ("The patent disclosure must not be used as prior art"); Vogel, 422 F.2d at 442, 164 USPQ at 622 (in considering obviousness-type double patenting, "the patent disclosure may not be used as prior art"); In re Plank, 399 F.2d 241, 242, 158 U.S.P.Q. (BNA) 328, 329 (CCPA1968) ("Its claims [Plank et al. patent] are used as the basis for a double patenting rejection. It is not a prior art reference"); In re Aldrich, 398 F.2d 855, 859, 158 U.S.P.Q. (BNA) 311, 314 (CCPA1968) ("double patenting rejections cannot be based on section 103, ... or on the disclosures of the patents whose claims are relied on to demonstrate double patenting or on the 'disclosures' of their claims.... [P]atent claims are looked to only to see what has been patented, the subject matter which has been protected, not for something one may find to be disclosed by reading them"); In re Boylan, 392 F.2d 1017, 1018 n. 1, 157 U.S.P.Q. (BNA) 370, 371 n. 1 (CCPA1968) ("in analyzing cases of these types, it must always be carefully observed that the appellant's patent is not 'prior art' under either section 102 or section 103 of the 1952 Patent Act"); In re Braithwaite, 379 F.2d 594, 600 n. 4, 154 U.S.P.Q. (BNA) 29, 34 n. 4 (CCPA1967) ("While analogous to the non-obviousness requirement of 35 U.S.C. § 103, that section is not itself involved in double patenting rejections because the patent principally underlying the rejection is not prior art"); Borah, 354 F.2d at 1018, 148 USPQ at 221 ("We have no prior art here"); In re Sutherland, 347 F.2d 1009, 1015, 146 U.S.P.Q. (BNA) 485, 491 (CCPA1965) ("Nor is obviousness invariably involved in 'double patenting' rejections. Claims relied on in such [double patenting] rejections often disclose or name the very thing being claimed [in the rejected claims]. Furthermore, the words of such claims cannot be treated as 'prior art,' ... but are looked to solely for the purpose of determining what has already been patented. They are not treated as prior art for the simple reason they are no more 'prior art' under the statue than the specification") (citation omitted); In re Sarett, 327 F.2d 1005, 1013, 140 U.S.P.Q. (BNA) 474, 481 (CCPA1964) ("We are not here concerned with what one skilled in the art would be aware [of] from reading the claims but with what inventions the claims define.")
81
The '619 Patent During Its Term Provided No Protection for
82
the Invention Claimed in the '639 Patent
83
Double patenting is intended to prevent unjustified extension of protection. Because the trial court misunderstood the construction of patent claims, it failed to appreciate that the invention of the second-to-issue '639 patent received no protection from the first-issued '619 patent because no claim of the latter covers the decaffeination process. Protection of that invention did not begin until the '639 patent issued on April 7, 1981. It will expire 17 years thereafter. There is no 24-year patent protection as GF alleges.
84
All that is claimed in the '619 patent is the caffeine recovery invention. To clearly understand this one must look at all the claims of '619. There are only 6 claims and the broadest is independent claim 4 which we quote as showing the maximum patent coverage of this patent:
85
4. A process for concentrating a dilute aqueous solution of caffein, which comprises:
86
a. introducing the dilute aqueous solution into an evaporating zone, passing a stream of air or nitrogen through the aqueous solution in the evaporating zone for evaporating of water from the aqueous solution and concentration of caffein in the aqueous solution, and withdrawing a concentrated aqueous solution from the evaporating zone,
87
b. withdrawing the air or nitrogen laden with water vapor from the evaporating zone and cooling it for condensation of water and separating the water from the gas in a separating zone,
88
c. circulating the air or nitrogen between the evaporating zone and the separating zone,
89
d. admixing the dilute aqueous solution of caffein and the air or nitrogen conveyed from the separating zone to the evaporating zone,
90
e. passing the air or nitrogen laden with water vapor and the admixture formed in step (d) in indirect heat exchange relation between the evaporating zone and the separating zone, for cooling of the air or nitrogen laden with water vapor for the condensation of step (b) and for heating said mixture for heating the aqueous solution for evaporation of step (a), and
91
f. supplying additional heat to the aqueous solution for the evaporation.
92
Comparison of this claim 4 with claim 1 will show the general correspondence of claim 4 to steps (d)-(j) of claim 1 which further references carbon dioxide in steps (d) and (g) and shows in steps (a)-(c) the source of the caffeine to be coffee which has been treated with moist supercritical carbon dioxide, making claim 1 more limited but still containing all the limitations of claim 4.
93
Since a patent is not infringed unless one or more claims are infringed and none of the '619 claims are infringed by one practicing the decaffeination process claimed in patent '639 without more, the '619 patent did not cover the '639 process and a patent thereon cannot extend the protection granted by the now expired '619 patent.
94
As the '619 patent states in its second paragraph, previously quoted herein, the recovery of the caffeine produced by the '639 patent is not described in that patent, which was then only the CIP application, Ser. No. 364,190. Furthermore, by these statements in the '619 patent the public was put on notice of the existence of the CIP application's pendency, of the invention therein described, and the probability of a future patent.
Other Arguments
95
Both parties' briefs have made and debated, and we have considered, numerous arguments other than those we have discussed, the majority of which we find irrelevant and all of which we find it unnecessary to comment on.
CONCLUSION
96
Finding the judgment of the District Court that claims 1 and 4 of the '639 patent are invalid for obviousness-type double patenting in view of claim 1 of the '619 patent to have been in error, essentially because of the distressing failure to adhere to firmly established and universally understood rules of claim interpretation, that judgment is reversed and the case is remanded for further proceedings.
COSTS
97
(a) Appellant requests us to vacate the award of costs on the double patenting trial. We deny the request and leave it to the trial court to review and decide in view of the outcome.
98
(b) Costs on this appeal to appellant.
99
REVERSED AND REMANDED.
1
Two spellings of "caffeine" appear in this opinion because the '619 patent omits the terminal "e" except in its title | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/588223/ | 972 F.2d 247
Thomas J. CHENEY, Appellant,v.UNITED STATES of America, Appellee.
No. 91-3444NI.
United States Court of Appeals,Eighth Circuit.
Submitted May 22, 1992.Decided Aug. 11, 1992.Rehearing and Rehearing En Banc Denied Sept. 23, 1992.
Thomas J. Cheney, pro se.
Paul C. Lillios, Asst. U.S. Atty., Cedar Rapids, Iowa, argued, for appellee.
Before JOHN R. GIBSON, FAGG, and MAGILL, Circuit Judges.
PER CURIAM.
1
Thomas J. Cheney appeals the district court's grant of summary judgment in favor of the United States in this Federal Tort Claims Act (FTCA) lawsuit. We affirm.
2
In May 1987, following a search of the home Cheney shared with Stephanie Oberbroeckling, an agent of the federal drug task force seized items contained in their joint safe deposit box. In June 1987, the agent returned to Oberbroeckling a car title certificate that had been taken from the box. Cheney asserts he owned the car to which the title certificate belonged; he had an agreement with a storage facility to release the car to anyone presenting the title certificate; the agent informed Oberbroeckling of this agreement; Oberbroeckling retrieved the car from storage; and while the car was in her possession, the car was damaged and its value destroyed. Cheney brought this action under FTCA, contending the United States is liable for the damage to the car based on the acts of its agent in releasing the title certificate to Oberbroeckling.
3
The district court granted summary judgment in favor of the United States, holding Cheney's claim falls within an exception to the FTCA's waiver of sovereign immunity. Under 28 U.S.C. § 2680(c), the FTCA's broad waiver of sovereign immunity does not apply to "claim[s] arising [from] ... the detention of any goods or merchandise by any ... law-enforcement officer." This exception extends to damage claims resulting from the negligent handling of detained property. Kosak v. United States, 465 U.S. 848, 854, 104 S. Ct. 1519, 1523, 79 L. Ed. 2d 860 (1984). Cheney, however, contends this exception does not apply to his claim because the United States never actually possessed the car. Instead, Cheney maintains that because the United States's agent enabled Oberbroeckling to gain possession of the car, leading to the car's destruction, the United States is liable under 28 U.S.C. §§ 1346(b) and 2674 "for injury or loss of property ... caused by the negligent or wrongful act or omission" of the agent who was acting within the scope of his employment. Id. § 1346(b).
4
Having reviewed the record, we conclude the district court properly held Cheney's claim falls within the section 2680(c) exception to the FTCA's waiver of sovereign immunity. Cheney's claim is based on the agent's action in returning the title certificate to Oberbroeckling, which resulted from the original detention of the certificate. Thus, Cheney's claim falls within section 2680(c)'s broad exception to the FTCA's general waiver of sovereign immunity in cases arising out of the detention of property by law enforcement officers. See Kosak, 465 U.S. at 853-54, 104 S.Ct. at 1523-24 (holding language of exception entitled to broad interpretation, including all injuries arising from a government official's detention of property); Schlaebitz v. United States Dep't of Justice, 924 F.2d 193, 194 (11th Cir.1991) (per curiam) (holding loss of property because of improper release to third person falls within section 2680(c) exception). The district court properly held the United States is entitled to sovereign immunity and granted summary judgment in favor of the United States on this basis.
5
We affirm the district court.
6
JOHN R. GIBSON, Circuit Judge, dissenting.
7
I respectfully dissent.
8
I am not convinced that the 1976 Datsun 280Z is "goods or merchandise" within the meaning of 28 U.S.C. § 2680(c). Accordingly, I would reverse the order of summary judgment. | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283835/ | ORDER
PER CURIAM
Nicholas Nettles (“Defendant”) appeals from the trial court’s judgment, following a bench trial, denying his motion to suppress evidence and statements and finding him guilty on each of five counts: four counts of the class C felony of possession of a controlled substance, in violation of Section 195.202, RSMo. Cum. Supp. 2010, and one count of the class A misdemeanor of possession of a controlled substance, in violation of Section 195.202, RSMo. Cum. Supp. 2010. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 80.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283836/ | ORDER
PER CURIAM:
Stanley J. Stramel (“Husband”) appeals from a judgment dissolving his marriage to Linda S. Stramel (“Wife”). Husband argues that the property division contained in the judgment failed to address a marital debt; that the judgment erroneously ordered a cash equalization payment as part of the property division; and that the judgment failed to comply with the provisions of § 452.335, RSMo when ordering Husband to pay maintenance to Wife. We affirm. Because a published opinion would have no precedential value, an unpublished memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283838/ | PAUL E. DANIELSON, Associate Justice | Appellant City of Greenwood (“City”) appeals from the interlocutory order of the Sebastian County Circuit Court in favor of separate appellees Shadow Lake Association, Inc., a/k/a Shadow Lake Property Owners Association, an Arkansas nonprofit corporation (“SLPOA”) and Shirley Ann Walters and Jennifer Puckett, Trustees of the Bill and Shirley Walters Family Trust of 2007 (collectively, “the Trustees”). The SLPOA and the Trustees had sued the City, claiming that two of the City’s ordinances, which were to submit to the City’s voters questions relating to the annexation of property, were derived in violation of the open-meetings provision of the Arkansas Freedom of Information Act (“FOIA”). In its order, the circuit court granted in-junctive relief by ordering that the ordinances not be included on |gthe November 4, 2014 ballot. See Ark. R.App. P.-Civ. 2(a)(6) (2014) (permitting the appeal of an interlocutory order by which an injunction is granted). On appeal, the City asserts that the circuit court erred in finding that the City violated the open-meetings provision of the FOIA, Arkansas Code Annotated § 25-19-106 (Repl. 2014). It alternatively claims that, to the extent this court might find the matter moot, the circuit court’s orders should still be reversed or vacated. We dismiss the City’s appeal as moot. The relevant facts are these. On September 30, 2014, the SLPOA filed a complaint against the City regarding an annexation ordinance that included the subdivision of Shadow Lakes Estates, specifically, Ordinance No. 14-13, that was adopted by the City and to be submitted to its voters at the November 4 election. The complaint alleged several irregularities relating to the substance of the ordinance and its adoption by the City’s council. Specifically, the SLPOA asserted that (1) in adopting Ordinance No. 14-13, the City failed to strictly comply with Arkansas Code Annotated §§ 14-40-302 to -303 (Repl. 2013), by failing to properly read the ordinance, failing to give notice of the procedures to be followed at the special meeting during which the ordinance was adopted, and denying the right to comment via a public forum; (2) Ordinance No. 14-13 constituted a taking because the legal description contained in the ordinance did not exclude Shadow Lake resulting in a violation of Arkansas Code Annotated § 14^10-501 (b)(2) (Repl. 2013); (3) the City acted arbitrarily and capriciously in including and excluding certain properties, which resulted in irregular boundary lines, and pressing forward with annexation when it would not be able to economically sustain and maintain proper services to the annexed properties; and (4) |sOrdinance No. 14-13’s adoption violated the open-meetings provision of the FOIA, where the City’s attorney had visited with the City’s council members individually. To remedy these alleged violations, the SLPOA sought an injunction removing the ordinance from, or prohibiting the inclusion of it on, the November 2014 ballot. A few days later, the Trustees filed a similar action pertaining to the City’s adoption of Ordinance No. 14-12; their petition against the City sought a declaratory judgment that the ordinance was invalid and an injunction enjoining the City from proceeding with the November election. The Trustees averred that, despite having received notification that their property would not be targeted for annexation, their property was included within the legal description of the tract of land included for annexation by Ordinance No. 14-12. They further asserted that the City’s reading of the ordinance was not in compliance with Arkansas Code Annotated § 14-55-202 (Repl. 1998), and that the City adopted the ordinance in violation of the FOIA where the City’s attorney admitted that he had visited with members of the city council prior to the meeting at which the ordinance was adopted. Like the SLPOA, the Trustees also sought an injunction removing the ordinance from the ballot or precluding its inclusion on the November ballot. The City, answered both complaints and filed a motion to dismiss in each case. That same day, a hearing was held before the circuit court at which both cases were heard jointly. Some debate was had over which claims of the SLPOA and the Trustees the circuit court could hear at that time due to the fact that the ordinances had not yet been put into effect since they had not yet been voted upon. The circuit court further heard the testimony of |4Michael Hamby, who was the city attorney for the City of Greenwood. At the conclusion of the hearing, the circuit court ruled that Mr. Hamby’s contact with four city council members prior to the council’s adoption of the ordinances at issue was in violation of the FOIA and rendered the ordinances nullities. The circuit court additionally ruled that the ordinances would not be included on the November ballot. A single order memorializing the circuit court’s ruling in both cases was filed the next day. In it, the circuit court found, in relevant part as follows: 14.The meat of this case involves the Open Meetings provision of the Arkansas Freedom of Information Act (A.C.A. § 25-19-106) and whether or not there was a violation of this law. The significant facts are as follows: • The Minutes of the August 12, 2014, meeting reflect that Mr. Hamby contacted each member of the [Greenwood City Council] as to the modifications of the annexation proceedings and/or ordinances; • Mr. Hamby testified that he had contacted at least four (4) members of the GCC as to the modifications of the annexation proceedings and/or ordinances; • The purpose of Mr. Hamby’s contact with the GCC members was to obtain a decision of the council as to the modifications of the annexation proceedings, or as Mr. Hamby testified, he “wanted to know how they wanted to vote”; • Mr. Hamby further testified that he had specific conversation [sic] with at least one (1) council member as to the possible deletion of Ms. Walters’ property; and • Mr. Hamby also testified that he conversed with another council member about deleting all or a portion of Tract D, which was done. 15. The Court’s opinion is that the above referenced facts, specifically the contacts and conversations had by Mr. Hamby with individual council members, falls squarely within the parameters of Harris v. City of Fort Smith, Arkansas, 359 Ark. 355, |5197 S.W.3d 461 (2004), which this Court is more than familiar with. 16. The meetings in this matter are subject to oversight under the Freedom of Information Act and the actions taken by Mr. Hamby, the City Attorney, violated the Open Meetings provision of the Arkansas Freedom of Information Act (A.C.A. § 25-19-106), thus rendering the Ordinances derived thereby a nullity. 17. As such, the Ordinances derived in violation of the Open Meetings provision of the Arkansas Freedom of Information Act (A.C.A. § 25-19-106) shall not be included on the November 4, 2014 ballot. The City now appeals. As an initial matter, we must determine whether the instant appeal is actually moot given that the November 2014 election has already occurred. The City, in an alternative argument, avers that the actions against it by the SLPOA and the Trustees were moot from their inception because the ballots for the November election had already been printed and the Sebastian County Election Commission had not been made a party to either suit. Nonetheless, the City maintains, the circuit court incorrectly ruled that the City violated the FOIA, and it would be patently unfair to permit that decision to stand. Accordingly, the City asks this court to declare the circuit court’s order null and void or to remand with instructions for the circuit court to set aside its order. The SLPOA asserts that the City’s mootness argument is being raised for the first time on appeal, while the Trustees assert that any opinion from this court addressing the merits would be advisory in nature in light of the election having already occurred and the ordinances being soundly defeated. While the City claims that the underlying suits by the SLPOA and the Trustees were moot, our examination of the record in this case reveals that the City neither developed this | fiargument before the circuit court, nor obtained a ruling on it. It is well settled that this court will not address an argument on appeal if it has not been argued before the circuit court or if a party fails to obtain a ruling from that court. See, e.g., Simpson Housing Solutions, LLC v. Hernandez, 2009 Ark. 480, 347 S.W.3d 1. However, it is clear that the City’s appeal itself is moot. As a general rule, the appellate courts of this state will not review issues that are moot because to do so would be to render an advisory opinion, which this court will not do. See Etherly v. Newsome, 2013 Ark. 391, 2013 WL 5595494. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. See Bd. of Trustees of the Univ. of Ark. v. Crawford Cnty. Cir. Ct., 2014 Ark. 60, 431 S.W.3d 851. We have, however, recognized two exceptions to the mootness doctrine. See Lott v. Langley, 2013 Ark. 247, 2013 WL 2460130. The first exception involves issues that are capable of repetition, yet evading review, and the second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. See id. Here, the City claims that the ordinances at issue were not nullities because no FOIA violation occurred. However, because the City’s November 4, 2014 election has already taken place, the issue of whether the challenged ordinances should have remained on the ballot is moot, unless one of the two exceptions to mootness applies. Neither does. | /This court must first consider whether the issue involved is capable of repetition, yet will evade review. Examples of such cases as recognized by this court include abortion-law challenges, election-procedure cases, and cases involving various court procedures. See Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d -744 (2007). The instant issue is one involving the FOIA and does not fall within those examples previously recognized. Moreover, while it is certainly conceivable that the city attorney might have contact with individual council members on various issues in the future, it is highly unlikely that the particular contact at issue here would repeat itself, yet not be capable of review. Even where there is a possibility that the issue might recur, it is only a possibility and this court does not anticipate future litigation and does not issue advisory opinions. See Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995). Neither is it a forgone conclusion that should it recur, it would necessarily evade review. See id. This exception therefore does not apply. Nor can it be said that the second exception has application. A determination of the issue presented would be dependent on the specific and unique facts presented. Because of the unlikelihood that these specific facts -will recur, any decision by this court would not serve to prevent future litigation. See, e.g., Monticello Healthcare Ctr., LLC v. Goodman, 2010 Ark. 339, 373 S.W.3d 256. Indeed, even if this court were to hold that the ordinances were not nullities, the ordinances specifically provided that the annexation questions were to be. presented at the November 4, 2014 election, which has already come to pass. Accordingly, we dismiss the instant appeal as moot. Appeal dismissed. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283840/ | Rhonda Wood, Justice, dissenting. I dissent because the court should address the merits of Bradley’s appeal. The majority is dismissing the appeal for lack of compliance with the Rule 37 verification requirement. The court is doing this on its own initiative: neither party raised the issue to the circuit court or on appeal. Unless there is an issue as to |sthe court’s subject-matter jurisdiction, this court does not entertain issues not raised below. Because lack of verification does not impact our subject-matter jurisdiction, I dissent. As the majority explained, Arkansas Rule of Criminal Procedure 37.1(c) (2014) requires that a “petition shall be accompanied by the petitioner’s affidavit, sworn to before a notary or other officer authorized by law to administer oaths.” This rule further provides a form in which the affidavit should read. The rule also requires us to dismiss a petition that fails to include this affidavit: “[A]ny appellate court shall dismiss any petition that fails to comply with subsection (c) of this rule.” Ark. R.Crim. P. 37.1(d). Here, Bradley has signed the petition, and the petition has been notarized. Yet the petition fails to include an affidavit, which Rule 37.1(c) requires. “[A]bsent an issue of subject-matter jurisdiction, an appellate court will not address an issue if it was not presented to the trial court, ruled upon by the trial judge, and argued by the parties on appeal.” Edwards v. Edwards, 2009 Ark. 580, at 8, 357 S.W.3d 445, 450. Recently, in Brown v. State, 2015 Ark. 7, 2015 WL 222652, Justice Danielson’s concurrence detailed this court’s departure in 2005 from construing the verification requirement in Rule 37 as a procedural rule to construing it as a jurisdictional rule. Since 2005, this court has repeatedly stated that, without a properly verified Rule 37 petition, the circuit court and this court lack jurisdiction. E.g., Branning v. State, 2014 Ark. 256, 2014 WL 2463083 (per curiam). This is inaccurate — verification has no effect on the circuit court’s or this court’s subject-matter jurisdiction. We accordingly have no obligation to raise the issue sua sponte. | (¡Subject-matter jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. A court lacks subject-matter jurisdiction “if it cannot hear a matter ‘under any circumstances’ and is ‘wholly incompetent to grant the relief sought.’ ” Nance v. State, 2014 Ark. 201, at 15, 433 S.W.3d 872, 881 (quoting J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352-53, 836 S.W.2d 853, 858 (1992)). In the present case, Bradley seeks postconviction relief under Rule 37, and this court is competent to grant or deny him the relief requested. E.g., State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830 (affirming the circuit court’s decision to grant the petitioner a new trial based on a Rule 37 petition). Amendment 80, section 3, to the Arkansas Constitution provides the supreme court the authority “to prescribe the rules of pleading, practice and procedure.” Procedural rules are aptly defined as claim-processing rules. See Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). “Procedural law is defined as ‘[t]he rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.’ ” Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 420 (2007) (citing Black’s Law Dictionary 1221 (7th ed. 1999)). Our verification rule is a mandatory step in the process of having the right to effective assistance of counsel enforced. For this reason, it is a procedural rule that has nothing to do with jurisdiction. Bradley neglected to follow that mandatory procedural rule in this case when he failed to include an affidavit. However, Bradley’s neglecting to follow a procedural rule does not strip the circuit court and our court of subject-matter jurisdiction. But that is exactly, and erroneously, what this court has held |7through a series of per curiams. E.g., Stewart v. State, 2014 Ark. 85, 2014 WL 689043 (per curiam); Martin v. State, 2012 Ark. 312, 2012 WL 3372998 (per curiam); Williamson v. State, 2012 Ark. 170, 2012 WL 1353171 (per curiam); Stephenson v. State, 2011 Ark. 506, 2011 WL 5995557 (per curiam). We are not the only court that has temporarily defined mandatory procedural rules as jurisdictional. As Justice Ginsburg explained, Courts, including this Court, it is true, have been less than meticulous [in their use of the term jurisdictional]; they have more than occasionally used the term “jurisdictional” to describe emphatic time prescriptions in rules of court. “Jurisdiction,” the Court has aptly observed, “is a word of many, too many meanings.” Clarity would be facilitated if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority. Kontrick, 540 U.S. at 454-55, 124 S.Ct. 906 (citations omitted). Admittedly, our case is different from Kontrick. We are a state court hearing a criminal postconviction matter, but we likewise must acknowledge if we erred in labeling our verification rule as jurisdictional in the past. As a nonjurisdictional procedural rule, Rule 37 verification is deemed waived if not raised at the appropriate time. This court has become highly technical on this issue, and the result is that the petitioner’s appeal is not considered on the merits. The State has neither raised the issue below nor has it raised the issue on appeal. Cf. Bunch v. State, 370 Ark. 113, 115, 257 S.W.3d 533, 534 (2007) (dismissing a Rule 37 petition upon the State’s motion to dismiss for lack of verification). Therefore, I dissent on the basis that we should decline to dismiss the appeal and affirm on the merits. To the extent our past cases have held that Rule 37 verification is a jurisdictional requirement, we should overrule them. Hannah, C.J., and Danielson, J., join. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283841/ | OPINION OF THE COURT BY JUSTICE VENTERS
KRS 61.102, commonly known as the Kentucky “whistleblower” statute, prohibits reprisal against a public employee “who in good faith reports, discloses, divulges ... any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority or otherwise brings to the attention of ... [an] appropriate body or authority, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety.” Pursuant to ICRS 61.101, the whistleblower protections and remedies apply to employees of state government and any of its political subdivisions.1 The purpose un*341derlying the statute is “to discourage wrongdoing in government, and protect those who make [such wrongdoing] public.” Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789, 792 (Ky.2008).
This case presents two issues: 1) must a government employee’s report or disclosure touch on a matter of public concern in order to come within the protections of the statute; and 2) whether Appellee’s conduct qualifies as a disclosure within the meaning of the statute?
For the reasons stated below, and based upon the plain language of the statute, we conclude that KRS 61.102 does not require an employee’s report or disclosure to touch on a matter of public concern. We further hold that none of the reports and disclosures presented by the facts here fit within the protections afforded by the statute.
I. PROCEDURAL AND FACTUAL BACKGROUND
Appellee, Katricia Rogers (Rogers), was an at-will employee of Appellant, Pennyrile Allied Community Services, Inc. (PACS). PACS is a government program focused on rural development. Rogers was responsible for presenting educational programs at schools. Because of the nature of her work, Rogers traveled around the state and was often working out of the office.
Rogers worked under the supervision of Dennis Gibbs (Gibbs), a Regional Supervisor. Gibbs frequently traveled to the homes of his subordinates to ensure that they were actually working rather than spending the day at home. In September of 2001, Gibbs went to check on Rogers. He drove up Rogers’s driveway, which was marked “private property,” and caused minor damage to the gravel driveway when his vehicle got stuck. Later that day, Gibbs informed Rogers of the incident. She made no complaint about Gibbs’s conduct at this time.
Later, however, Rogers went to the local sheriffs office and asked a deputy if Gibbs’s practice of making uninvited visits to employees’ homes was legal. The deputy opined that no one, “employer or not,” could come on private property without permission, and that doing so would constitute trespassing. Rogers took no immediate action in response to that information.
About two months later, at a PACS staff meeting that included Gibbs and other PACS employees, Rogers challenged Gibbs about his unannounced visits to employees’ homes during work hours. She began by asking Gibbs what he was authorized to do with regard to checking on his employees to ensure they were actually working. Gibbs responded, somewhat defiantly, that he could do whatever he wanted, including going to the workers’ homes and looking into their windows.
Rogers then mentioned the opinion given to her at the sheriffs office and implied that she would seek prosecution of Gibbs if he trespassed upon her property again. The meeting ended abruptly. The next morning, Rogers was fired for insubordination and other reasons.2 PACS admits that the decision to terminate Rogers was made after Rogers’s remarks at the staff meeting.
Rogers then filed suit under KRS 61.102, claiming that she had been terminated from her job for making “a good faith report to local law enforcement officers and representatives of PACS ... regarding an actual or suspected violation of *342the law.” The trial court granted summary judgment to PACS, dismissing Rogers’s whistleblower claim on the ground that Rogers’s report or disclosure of Gibbs’s alleged trespass did not touch on a matter of public concern. The trial court reasoned that Rogers’s statements to the deputy at the sheriffs office and to Gibbs at the staff meeting were nothing more than the expression of a personal grievance that did not disclose illegality, fraud, waste, or abuse of authority in state government, or violations of the law.
On direct appeal, the Court of Appeals reversed the trial court, holding that the unambiguous language of KRS 61.102 contained no requirement that reports under the act must touch upon a matter of public concern, and that it was therefore beyond the authority of the courts to interject such a requirement. We granted discretionary review to consider the important questions presented by this matter.
II. ANALYSIS
On discretionary review before this Court, PACS acknowledges that KRS 61.102 contains no explicit language requiring that disclosures and reports protected by the statute must “touch on a matter of public concern.” But as grounds for reversing the Court of Appeals opinion, PACS argues that the legislative intent behind the statute clearly contemplates such a requirement. As an alternate ground for reversal, PACS argues that Rogers never made the kind of report or disclosure covered by the statute. PACS contends that neither her conversation with the deputy sheriff about Gibbs’s behavior, nor her confrontation of Gibbs at the PACS meeting was subject to KRS 61.102.
This case is purely a matter of statutory construction and interpretation, which is a question of law. Accordingly, this Court’s review is de novo. Neurodiagnostics, Inc. v. Kentucky Farm Bureau Mut. Ins. Co., 250 S.W.3d 321, 325 (Ky. 2008). KRS 61.102 provides:
No employer shall subject to reprisal, or directly or indirectly use, or threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the Kentucky Legislative Ethics Commission, the Attorney General, the Auditor of Public Accounts, the Executive Branch Ethics Commission, the General Assembly of the Commonwealth of Kentucky or any of its members or employees, the Legislative Research Commission or any of its committees, members or employees, the judiciary or any member or employee of the judiciary, any law enforcement agency or its employees, or any other appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety. No employer shall require any employee to give notice prior to making such a report, disclosure, or divulgence.
This statute represents the General Assembly’s enactment, based upon public policy considerations, of an exception to the common law principle that an at-will employee may be fired for any reason at any time. As noted previously, KRS 61.101 defines the public employees and employ*343ers covered by the act. PACS’s status as a “political subdivision” of state government and Rogers’s status as an employee of that entity have not been challenged in this action. There is no dispute that Rogers was fired,.although the motivation for her dismissal was a disputed issue of fact, which was not addressed because the trial court’s interpretation of the statute resolved the case as a matter of law.
A. KRS 61.102 and the “Matter of Public Concern” Requirement
We have not directly addressed the question of whether a valid claim under KRS 61.102 must arise from a report or disclosure touching upon a matter of public concern. Our review of a statute to determine its meaning begins with the elementary standards of statutory construction.
KRS 446.080(1) requires that “[a]ll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature[.]” KRS 446.080(4) provides: “All words and phrases shall be construed according to the common and approved usage of language[.]”
Where a statute is plain and unambiguous on its face, we are not at liberty to construe the language otherwise, even though such a construction may be more consistent with the statute’s legislative purpose. Whittaker v. McClure, 891 S.W.2d 80, 83 (Ky.1995). “Our ultimate goal when reviewing and applying statutes is to give effect to the intent of the General Assembly. We derive that intent from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration.” Commonwealth v. Wright, 415 S.W.3d 606, 609 (Ky.2013).
The Court of Appeals concluded that a valid claim under the whistleblower act did not require the disclosure (or threat of disclosure) of a matter touching upon public interest, as long as the disclosure otherwise fit the statute’s description of a protected report. In so holding, the Court of Appeals relied principally upon two factors. First, there is no language in the statute expressly limiting its protection to matters that contain a public interest nexus. Second, mindful that the statute lacked an express reference to a public nexus, the Court of Appeals gave particular attention to the clause of KRS 61.102(1) protecting the divulgenee of “any facts or information relative to an actual or suspected violation of any law,” and “any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority.” (emphasis added). Because the Court of Appeals found no ambiguity in the plain language of the statute, it found no reason to rely upon interpretations of similar laws enacted by Congress and the legislatures of other states, some of which explicitly provided a “public interest” requirement.
The reasoning of the Court of Appeals is further strengthened by the legislature’s inclusion of the clause “or any facts or information relative to ... a substantial and specific danger to public health or safety.” (emphasis added). This express inclusion of a public nexus when matters of health and safety are involved, where no public nexus is otherwise mentioned, suggests that the General Assembly intended to impose that requirement as to one area of concern but not to the others.
We agree with the Court of Appeals’ analysis of KRS 61.102; there is no requirement in . the statute that protected reports and disclosures must touch upon a matter of public concern. Obviously, in the usual case, an action brought under KRS 61.102 is likely to touch on a matter *344of public concern, if only because matters of “waste, fraud, abuse of authority” and “violations of the law” affecting public employees, by virtue of their employment, are more likely to be matters of public interest and concern. But, we conclude that the protections afforded by the statute are limited only by the language of the statute and there is no requirement limiting the protections of KRS 61.102 to disclosures that touch on- a matter of public concern.
PACS argues that under this construction of the statute, a state employee might receive whistleblower protection if he was fired for divulging to the police that his boss violated the law against littering on the way to work, or some other matter devoid of public concern. We agree that such extraordinary, if unlikely, circumstances may arise. While some may doubt the prudence of a law that allows such an action, it is not the role of the judiciary to pass upon the wisdom of a statute. Our constitutional authority is to ascertain the meaning of the statute, based not upon what the legislature may have intended to say, but upon the meaning of what it did say. Similarly, we do not go about interpreting a statute by evaluating the most extreme scenario in which it may be applied. In its wisdom, the legislature implemented a public policy of protecting state employees who report, divulge, or disclose any violation of the law, or any facts or information relative to “mismanagement, waste, fraud, abuse of authority” without regard to whether a public interest is involved.
B. KRS 61.102 and Conduct That Constitutes a Protected Disclosure
Drawing upon the reasoning of Judge Maze’s dissenting opinion in the Court of Appeals, PACS argues that the summary judgment dismissing Rogers’s claim was proper because Rogers’s inquiry of the deputy sheriff and her comments to Gibbs at the PACS staff meeting were not disclosures protected by the statute. We agree with that analysis.
A state employee engages in whistle-blowing within the meaning of KRS 61.102 when he or she “in good faith reports, discloses, divulges, or otherwise brings to the attention of [government officials] any facts or information relative to an actual or suspected violation of any law, statute, executive order,, administrative ' regulation, mandate, rule, or ordinance^]” KRS 61.102(1).
We have never specifically addressed what constitutes a protected disclosure under KRS 61.102. “Disclosure” is defined in KRS 61.103(1) as “a person acting on his own behalf, or on behalf of another, who reported or is about to report, either verbally or in writing any matter set forth in KRS 61.102.” As such, the statute’s definition of “disclosure” is not of much help beyond stating that a report need not be in writing and need not be completed, so long as the report was imminent.
Rogers argues that a report or disclosure occurred when: 1) she went to the sheriffs office; 2) she confronted Gibbs about coming to her house at the PACS meeting; and 3) she “threatened” Gibbs with legal action if he came again onto her property uninvited. We find that none of these factual situations is a disclosure within the meaning of KRS 61.102.
We begin by addressing Rogers’s argument that her discussion with the deputy sheriff concerning the legality of Gibbs’s practice was a disclosure within the meaning of the statute. In her deposition, Rogers admits that she did not file a report or pursue any type of legal action at the time she spoke with the deputy. She approached the deputy ostensibly for legal advice. Rogers testified in her deposition, *345“I did not go [to the sheriffs office] to report at that time any damage or anything he done. I just went to get some advice and learn what the law was.” She did not report Gibbs for what she suspected was a violation of the law, or fraud, waste, or mismanagement; nothing in the record even indicates she mentioned Gibbs’s name. Rogers was not reporting, disclosing, or divulging anything; she was simply asking a rather generic question about property and privacy rights.
Notwithstanding the conversation with the deputy, Rogers maintains she made a “good faith report or disclosure” in two distinct ways during the PACS meeting. First, Rogers’s comments during the meeting constituted an “internal disclosure”; and second, she implicitly threatened Gibbs with legal action if he came on her property again.
According to her deposition, Rogers told Gibbs at the staff meeting, “I just know that you came to my husband and my house, you know, you messed up our driveway. It kind of left us upset because we had to fix it. You know, we didn’t give you a reason to come to our house.” When Gibbs asserted that he could, indeed, go to her house, and he apologized for “messing up” her driveway, Rogers said, “I know that you know that I talked to the sheriffs department. They told me it was illegal for anyone — it don’t matter if you’re an employer or boss, you cannot trespass on private property, and they can arrest you whether you’re still there or not.”
It is difficult to fit Rogers’s words into the statutory language. Each of the words used in the statute to denote the protected conduct of the employee, “reports, discloses, divulges, or otherwise brings to the attention of ...” describes behavior that brings to light facts not otherwise known to the recipient. Gibbs was obviously well aware of what Rogers was complaining about. Furthermore, there was no one at the meeting with supervisory authority over Gibbs to whom Rogers could have been addressing these comments for some kind of corrective action. The phrases “in good faith” and “brings to the attention of’ clearly denotes an intent on the part of the employee to reveal or impart what is known to the employee to someone else who lacks that knowledge and, as further discussed below, is in a position to do something about it.
In Boykins v. Hous. Auth. of Louisville, 842 S.W.2d 527 (Ky.1992), we held that a negligence action filed by an employee on behalf of her infant son against the housing authority, which was also her employer, could not be considered a report or disclosure within the meaning of the whistleblower statute. We reasoned that the gravamen of the complaint was not intended as a report of information regarding alleged violations of law, mismanagement, or endangerment of public health by employer, but rather was a simple negligence action. Id. at 528. In similar fashion, Rogers’s verbal complaints were not a report or disclosure intended to bring to light fraud, waste, mismanagement, or violations of the law; they were simply Rogers’s expression of a personal grievance against Gibbs about his trespass upon her driveway. We do not, as the dissent suggests, interject a new element into the statute. Rather, we simply recognize that inherent in the meaning of the words chosen by the legislature is the concept that the claimant intended to expose wrongdoing that was otherwise concealed.
First, Rogers asserts that her discourse at the PACS meeting was an “internal disclosure” of the kind found in Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789 (Ky.2008). In Gaines, we held that the phrase in KRS 61.102, “any other appropriate body or authority,” means a body or *346authority with the power to remedy or report the perceived misconduct. Id. at 793. We went on to say that the whistle-blower statute applied even if the “appropriate authority” was within the agency where the wrongdoing was occurring. Id.
It is significant though, that in Gaines, the internal report was not made to the alleged wrongdoers, but to a governnient attorney working in the same department, who in turn reported the alleged wrongdoing to a higher-level government employee within the department. In the instant case, the perceived wrongdoer, Gibbs, was the highest-ranking person at the meeting. Rogers made no effort to bring her claim to the attention of anyone with the power to remedy or report Gibbs’s behavior. Rogers was merely expressing to her boss her displeasure about a practice. She did not intend to “report,” “divulge,” or “disclose” anything by discussing this practice with the offending boss in front of her coworkers. An otherwise at-will employee cannot gain whistleblower status, and the protections that come with that status, by simply complaining to her boss about what she perceives as his misconduct.
Rogers further argues that her comments at the staff meeting constituted a threat, warranting protection under KRS 61.102. Rogers cites to Consolidated Infrastructure Management Authority, Inc. v. Allen, 269 S.W.3d 852 (Ky.2008), which contains the statement that “disclosure not only occurs when a report is actually made, but also when the threat of a report is made.” Id. at 856.
In Allen, we held that a letter from a state employee to his supervisor threatening to report safety violations to Kentucky OSHA if those violations were not remedied constituted a disclosure within KRS 61.102 and 61.103.3 Reading those two statutes in conjunction, we held that the whis-tleblower protections extend not only to actual disclosures and reports, but also to threats to report or disclose.
The case at bar is readily distinguished from Allen. Rogers did not threaten Gibbs with legal action for his past misconduct. At most her statement at the staff meeting, “you cannot trespass on private property, and they can arrest you if you’re still there or not,” can be construed as a warning not to come upon her property in the future without permission; the closest she gets to an explicit threat is that statement. We are not aware of any context in which those words would be construed as a “threat” to report, disclose, or divulge misconduct.
In summation, we conclude that Rogers’s inquiry, directed to the sheriffs office, for an opinion on the legality of Gibbs’s behavior does not constitute a report, disclosure, or divulgence triggering the whistleblower protections of KRS 61.102; and, her confrontation with Gibbs at the PACS staff meeting, expressing her objection to his entry upon her property does not constitute a report, disclosure, or divulgence triggering the whistleblower protections of KRS 61.102. Her comments comport with neither the statutory language of KRS' 61.102, nor the purpose underlying the statute, as stated in Gaines, “to discourage wrongdoing in government, and protect those who make [such wrongdoing] public.” 276 S.W.3d at 792.
III. CONCLUSION
For the foregoing reasons, the opinion of the Court of Appeals is reversed and the *347summary judgment of the Perry Circuit Court dismissing Appellee’s complaint is hereby reinstated.
All sitting. Minton, C.J., Abramson, Cunningham, Keller and Venters, JJ., concur. Noble, J., dissents by separate opinion.
. KRS 61.101: "As used in KRS 61.102 and 61.103, unless the context requires otherwise: (1) ‘Employee’ means a person in the service of the Commonwealth of Kentucky, or any of its political subdivisions...."
We held in Wilson v. City of Cent. City, 372 S.W.3d 863 (Ky.2012), that for purposes of KRS 61.102, cities and other municipal corporations are not "political subdivisions” of the Commonwealth, and therefore are not *341"employers” within the meaning of the Whis-tleblower Act.
. Rogers had previously been on probation with PACS for reasons that are not germane to this appeal.
. KRS 61.103(l)(a): "Disclosure” means a person acting on his own behalf, or on behalf of another, who reported or is about to report, either verbally or in writing, any matter set forth in KRS 61.102. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283842/ | NOBLE, J.,
DISSENTING:
Katricia Rogers frequently worked out of the office. Her supervisor, suspicious that she was not actually working at these times, went to her home during the workday and caused damage to her driveway. Rogers, believing her supervisor had illegally trespassed on her posted land, later informed him of that belief and implied to him that she would seek prosecution if he did it again. She was fired the next day. Despite these simple facts showing a color-able claim of retaliation, the majority holds that Rogers is not entitled to the protection of the so-called Whistleblower Act, KRS 61.102. I cannot join that holding and for that reason dissent.
The Act is broadly drafted to protect government employees who report perceived wrongdoing in good faith. Specifically, it protects any government employee
who in good faith reports, discloses, divulges, or otherwise brings to the attention of ... any ... appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, [or] statute ... of ... the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety.
KRS 61.102(1). Such an employee is not “subject to reprisal,” id. and the employer may not “directly or indirectly use, or threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any [such] employee,” id.
The majority disposes of Rogers’s claim that she is covered by the statute by concluding that she did not engage in the type of conduct protected by the Act (e.g., reporting or disclosing) and did not communicate with an appropriate authority (e.g., her supervisor’s boss). But to reach this conclusion, the majority has in both instances read into the Act something that is not there.
First, the majority reads the protected-conduct language to require that the employee “bring to light facts not otherwise known to the recipient.” But that is not required by the Act. That a supervisor already knows a fact does not mean that a subordinate has not reported, disclosed, or brought the fact to the supervisor’s attention when she tells the supervisor of the fact. The conduct described in the Act is that of the reporting employee; it in no way depends on the knowledge of the recipient. Indeed, if that were the case, whistleblower claims could easily be defeated by collusion between the person engaged in the bad conduct and the person to whom it is reported, with the reporter being completely innocent. Or, in a less nefarious way, whistleblower claims could be defeated if the reporter is simply not the first person to report the misconduct: the first reporter would be protected, but all others would be fair game for reprisal.
But even if the reporter had to bring information to light that was previously unknown, Rogers did so. Although her supervisor obviously knew what he had done (entering her property), he may not have been aware that it might be illegal. In fact, he told Rogers that he could go to her house to confirm that she was working *348anytime he wished to do so. Rogers replied that the entry onto her property, which had a “private property” sign, was an illegal trespass, which she believed it to be. The information brought to light whs the illegality of the conduct, not the conduct itself.
Second, the majority reads the requirement that the report of bad conduct be made to an “appropriate body or authority” to exclude reporting to the person engaged in the alleged illegal conduct. In other words, under the majority’s reading, the report must be made to a third party, such as the supervisor’s supervisor' or some other person or entity with authority over the supervisor (such as law enforcement). Although such reporting is covered by the Act, again it is not required.
The Act requires only that the report be made to an appropriate body or authority. What more direct authority can there be than the person committing the complained-of act? The supervisor was directly responsible for his own conduct, and thus is an appropriate authority. As we have held, “appropriate authority” includes “any public body or authority with the power to remedy or report the perceived misconduct.” Workforce Development Cabinet v. Gaines, 276 S.W.3d 789, 793 (Ky.2008). Just as “the most obvious public body with the power to remedy perceived misconduct is the employee’s own agency (or the larger department or cabinet),” id. at 793, the most obvious person with the power to remedy the misconduct within the agency is the alleged wrongdoer himself. Perhaps the supervisor was unaware that his conduct could be illegal. If so, then reporting it to him, rather than further up the chain of command, would allow “minor wrongdoing [to] be addressed internally,” id. a practice this Court has approved as falling within the Act’s protection id.
This case is, in many ways, similar to Gaines. There, we held that internal reporting was covered by the Act, and that a reporter was not required to contact an external entity to be protected. Id. Just as the Act’s protection extends to internal reporting, so too should it extend to directly reporting the illegality to the wrongdoer.
The majority attempts to distinguish Gaines, however, by noting that the report in that case was not made to the alleged wrongdoers but to an attorney working in the department, who then reported the matter higher up. But the reasoning for allowing-internal reporting to be protected applies just as strongly — if not more so— to bringing the claimed illegality directly to the wrongdoer’s attention, especially when minor wrongdoing (like mostly harmless trespassing) is at issue. As we noted in Gaines, “An internal report is often the logical first step, and in many cáses may be the only step necessary to remedy the situation.” Id. at 794. But just as likely, the first logical step, if the goal is to remedy the bad conduct, would be to bring it to the perpetrator’s attention — and in many instances, this too may be the only step necessary to remedy the situation.
Gaines pointed out that it would be absurd to allow an employee to be punished for internally reporting wrongdoing before proceeding to a third-party investigative or enforcement agency (such as legislature or the police, other proper entities listed in the Act). That applies here. It would be absurd if Rogers’s conduct would have been protected if she went to her boss’s boss, and possibly created substantial ill will in her department as a result, but is not protected because she went straight to the source of the illegality, which might have resolved the situation amicably. Indeed, it is often considered impolitic to go over a person’s head to report suspected *349wrongdoing rather than going to the person first. But the majority’s reading of the Act requires such a breach of protocol for the reporting to be protected.
There is no reason to believe the Act does not anticipate this common practice— and protect it. And there is no question-that the plain language of the Act would allow it.
Like in Gaines, “[t]his interpretation serves the goals of liberally construing the. Whistleblower Act in favor of its remedial purpose, and of giving words their plain meaning.” Id. at 793. The majority relies heavily on a statement from Gaines that the purpose of the Act is “to discourage wrongdoing in government, and to protect those who make it public.” Id. But that is not its only purpose.
Behind both of these goals is the assumption that reporting will lead to the illegality being corrected. That is the underlying purpose of the Act, which is supported by protecting those who bring such conduct to public light. But making the illegality public is not the only way to accomplish the underlying goal. Thus, Gaines held that internal reporting was protected, even though such reporting may not result in public disclosure of the wrongdoing.
Though it may not always be successful, especially where as here there is already bad blood between the reporter and the alleged wrongdoer, in many instances bringing the illegality to the possibly innocent-minded wrongdoer may put an end to the wrongdoing. If, instead of firing Rogers, the supervisor in this case had stopped going on to employees’ property, then the goals of the Act would have been met in this case. The reporting would have led to the end of conduct suspected to be illegal. This is true whether the’ act reported was in fapt illegal or not. Rogers believed that it was, relying on what a sheriff had told her. This is all the Act requires and is precisely the type of conduct the Act protects.
Instead, the supervisor chose to fire Rogers. While there is a substantial question as to the motive for that termination, there is at least some proof that it stemmed from what Rogers said to her supervisor.
The majority has withdrawn the Whis-tleblower Act’s protection from conduct like Rogers’s in this case and instead protected the supervisor’s conduct. In so doing, the majority ignores the plain meaning of the Act’s language. I would instead affirm the decision of the Court of Appeals. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283843/ | OPINION OF THE COURT BY
JUSTICE ABRAMSON
Kentucky Revised Statute (KRS) 189A.010, the Driving Under the Influence (DUI) statute, outlaws the operation or physical control of a motor vehicle under a number of circumstances the General Assembly has determined pose a substantial risk of impaired driving.1 Any person who violates those proscriptions is subject, for a first offense, to a fine between $200 and $500, to incarceration in the county jail for anywhere from two to thirty days, or in lieu of fíne or incarceration to two to thirty-days service in a community labor program. KRS 189A.010(5)(a). For subsequent offenses within five years of the first one, the penalties become gradually more severe, until “[f]or a fourth or subsequent offense within a five (5) year period, [the offender will] be guilty of a Class D felony.” KRS 189A.010(5)(d).2 The question before us is what counts as a predicate offense for purposes of the DUI penalty enhancement provisions. Are predicate offenses limited to those that have resulted in a conviction before the new offense was committed (sometimes referred to as the conviction-to-offense approach), or may any conviction be counted, regardless of when the offense occurred (provided that it did not occur more than five years before the current offense) so long as the conviction was entered prior to the conviction in the current case (sometimes referred to as the conviction-to-conviction approach)? Unfortunately, this Court has rendered opinions suggesting support of both approaches, and thus has given rise to confusion and inconsistent results in the Court *352of Appeals.3 We accepted discretionary review in this case to clarify how the enhanced penalty provisions of KRS 189A.010(5) should be applied.
RELEVANT FACTS
This case began on September 14, 2010 when the defendant, Matthew Ballinger, was arrested in Bowling Green and charged with DUI. A record check revealed that Ballinger had been convicted of DUI in April 2003 (offense in March 2008), in October 2004 (offense in May 2004), and in June 2008 (offense in July 2006). Because predicate offenses are limited to those committed within five years of the current offense,4 by September 2010 the 2003 and 2004 convictions no longer counted as predicates. The 2006 offense did still qualify, though, and accordingly Bal-linger was initially charged in the Warren District Court with DUI second offense.
The record check also revealed, however, that in July 2010, Ballinger had twice been charged with DUI in the Barren District Court, one offense in mid-July, it appears, and the other at the end of the month. The Warren County Attorney, therefore, requested that the September Warren County charge be continued pending the outcome of the Barren County proceedings, and she refused several offers by Ballinger to plead guilty to the DUI second offense charge.
On December 20, 2010, Ballinger pled guilty to both of the Barren County charges, whereupon the Commonwealth sought and was given an indictment against Ballinger in Warren County for DUI fourth offense, a felony, the two new Barren County convictions counting, according to the Commonwealth, as Balling-er’s second and third predicate convictions. Upon transfer of the matter to the Warren Circuit Court, Ballinger promptly moved to have it sent back to district court, on the ground that the December Barren County convictions were not eligible predicates because they were entered after he committed the September Warren County offense.
The circuit court agreed with Ballinger, citing Fulcher v. Commonwealth, 149 S.W.3d 363 (Ky. 2004). Fulcher was not a DUI case, but in the course of construing the penalty provisions of KRS 250.991(2), a statute pertaining to the possession of anhydrous ammonia, this Court remarked in a footnote that KRS 189A.010(5) “appears to” adopt the “conviction-to-offense” approach. 149 S.W.3d at 380 n.3. Seizing on this footnote, the circuit court construed *353KRS 189A.010(5) as a “conviction-to-offense” enhancement statute, under which the two post-offense Barren County convictions could not be used as predicates to enhance Ballinger’s September DUI. Thus, the trial court concluded Ballinger could only be charged and convicted of DUI second offense.
The Commonwealth appealed, and the Court of Appeals reversed. In a unanimous opinion, the appellate panel discounted the Fulcher footnote as non-binding dicta and relied instead on Royalty v. Commonwealth, 749 S.W.2d 700 (Ky. App. 1988), a case in which the Court of Appeals construed an earlier version of KRS 189A.010 as providing for a “conviction-to-conviction” enhancement scheme. In that case, the Court of Appeals upheld a DUI third offense conviction where the enhanced offense occurred prior to the alleged predicate offense, but was still pending when the predicate offense resulted in a conviction.5 Under the Royalty “conviction-to-conviction” scheme, the appellate panel in this case held Ballinger’s two Barren County convictions are eligible predicate offenses because the convictions were entered prior to the resolution of the Warren County charge.
Royalty, the case upon which the appellate panel relied, relied in turn on this Court’s Opinion in Commonwealth v. Ball, 691 S.W.2d 207 (Ky. 1985). Ball addressed whether the recently enacted KRS 189A.010 (a statute that came into effect in 1984 as part of what was then referred to as “the slammer bill”) defined a new crime subject to ex post facto restrictions on what could be considered a prior offense, as the defendant maintained, or merely recodified and revised somewhat the already existing crime of driving under the influence, so that prior offenses under former versions of the law would still count as prior offenses under the new version. The Court summed up its holding that KRS 189A.010 did not create a new crime by stating that
One who has been convicted of engaging in the prohibited conduct of operating a motor vehicle anywhere in this state while under the influence of alcohol in violation of Section (1) of KRS 189A.010, and who has the status at the time of such conviction of having been previously convicted within five years of such conviction of driving under the influence, is a previous offender and is subject to the enhancement provisions of Sections (2)(a), (b), and (c) of KRS 189A.010 [Now Section 5(a)-(d) ].
691 S.W.2d at 210 (emphasis added). In Ball, that is, the Court suggested that the only relevant question at the time of a DUI conviction with respect to penalty enhancement was the number of prior convictions within the last five years. Offense dates did not matter-the conviction-to-conviction approach controlled. In Fulcher v. Commonwealth, however, as noted above, the Court suggested that KRS 189A.010(5) provides for penalty enhancement under a conviction-to-offense approach, a timely offense not counting for enhancement purposes unless the conviction for that offense was entered prior to the commission of the current offense. In the face of these cross signals, it is no surprise that the Court of Appeals has found the question a vexing one.
Ballinger maintains that the Court of Appeals got it .wrong in this case by not paying close enough attentiqn to a change the General Assembly made in 1991 to . *354KRS 189A.010(5). Before then (and still now), although the statute provided for enhanced penalties for second, third, and fourth and subsequent offenses, it nowhere defined what was meant by those terms. In 1991, however, as part of a substantial revision of KRS Chapter 189A, the General Assembly added the following subpart to KRS 189A.010(5):
(e) For purposes of this subsection, pri- or offenses shall include all convictions in this state, and any other state or jurisdiction, for operating or being in control of a motor vehicle while under the influence of alcohol or other substances that impair one’s driving ability, or any combination of alcohol and such substances, or while having an unlawful alcohol concentration, or driving while intoxicated, but shall not include convictions for violating subsection (l)(f) of this section. A court shall receive as proof of a prior conviction a copy of that conviction, certified by the, court ordering the conviction.
KRS 189A.010(5)(e).6 This remains the current version of KRS 189A.010(5)(e). Ballinger insists that the “new” provision should be understood to say that “prior offenses shall include all convictions in this state, and any other state or jurisdiction [prior to the current offense].” Although the statute does not actually include that last key phrase that appears to be how the courts in Fulcher, Beard, and Brewer, as well as the Warren Circuit Court in this case, understood it. The courts in Anderson and Smith, and the Court of Appeals panel in this case, were equally convinced, however, that the plain meaning, of “all convictions” in subsection (5)(e), is any conviction for which there is adequate record support at the time of the new conviction. That is not exactly what the statute says either. So how is the statute to be understood? To answer that question, wé begin with the basic principles that guide our interpretation of statutes.
ANALYSIS
The proper interpretation of Kentucky statutes is an issue of law which we address de novo. Delphi Auto. Systems, LLC v. Capital Community Economic/Industrial Development Corporation, Inc., 434 S.W.3d 481, 485 (Ky. 2014). Our primary goal is to discern the intent of the General Assembly, and we discern that intent, if at all possible, simply from the language the General Assembly chose, either as defined by the General Assembly or as it would ordinarily be understood in the given context. Commonwealth v. Wright, 415 S.W.3d 606, 609 (Ky. 2013). We have been enjoined by the General Assembly itself, moreover, to construe its statutes liberally “with a view to promote their objects.” KRS 446.080(1). Even so, we are not free, even in the name of fidelity to what might seem the clear legislative purpose, to add to or subtract from the statutory language. Light v. City of Louisville, 248 S.W.3d 559 (Ky. 2008) (citing Beckham v. Bd. of Educ. of Jefferson Cnty., 873 S.W.2d 575 (Ky. 1994)). We presume, of course, that the General Assembly did not intend an absurd or an unconstitutional statute or one at odds with other statutory provisions. Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011); MPM Financial Grp., Inc. v. Morton, 289 S.W.3d 193 (Ky. 2009). We also presume that when the General Assembly revises and reenacts a statute, as it did KRS Chapter 189A in 1991, it “is *355well aware of the interpretation of the existing statute and has adopted that interpretation unless the new law contains language to the contrary.... If the legislators intend[ ] to depart from the existing statutory interpretation, it is incumbent that they use ‘plain and unmistakable language’ which leaves no doubt that a departure from the prior interpretation is intended.” Butler v. Groce, 880 S.W.2d 547, 549 (Ky. 1994) (quoting Long v. Smith, 281 Ky. 512, 136 S.W.2d 789, 791 (1940), and citing Brown v. Harrodsburg, 252 S.W.2d 44, 45 (Ky. 1952) (When the legislature “substantially re-enacts [a] statute, it will be deemed to have adopted the construction theretofore placed upon the statute by the court unless the contrary is clearly shown by the language of the new enactment.”)).
When, as is not infrequently the case given language’s inherent slipperiness, the legislative intent is not perfectly apparent from the statute alone, we have recourse to the statutory context; to the legislative history, if there is any; to the “historical settings and conditions out of which the legislation was enacted,” Commonwealth v. Howard, 969 S.W.2d 700, 705 (Ky. 1998); to the canons of statutory construction; and to such other interpretive aids as may be appropriate in the' given case. Delphi Automotive Sys., 434 S.W.3d at 485 (referring in a Uniform Commercial Code case to the Code’s official comments), Brown v. Commonwealth, 174 S.W.3d 421 (Ky. 2005) (referring in a murder case to the Commentary to the Penal Code); Knotts v. Zurich Ins. Co., 197 S.W.3d 512 (Ky. 2006) (referring in a case involving Kentucky’s version of a model Act to interpretations of the Act in other adopting jurisdictions).
Applying these principles here, we note initially that KRS 189A.010(5) does not, on its face, make perfectly clear what counts as a predicate offense for penalty enhancement purposes. Subsection (5)(e)’s definition of “prior offenses” as including “all convictions in this state, and any other state or jurisdiction, for [DUI]” neither says nor implies that a qualifying conviction must have preceded the commission of the current offense, but neither, on the other hand, does the language “pri- or offenses shall include all convictions” make clear that any conviction occurring before the present one is a prior offense. The ambiguity is all too well reflected in the conflicting opinions discussed above. For at least a couple of reasons, however, we are convinced that the Court of Appeals, in this case at least, correctly construed the statute as including among the convictions giving rise to enhanced penalties all duly certified DUI convictions (for offenses committed within five years prior to the current offense) entered against the defendant prior to his conviction in the current case, even if some of those convictions were not yet entered at the time of the current offense.
In the first place, a clear purpose of the DUI statutes, generally, is to protect the public from the serious risk of injury and property damage posed by impaired drivers. Howard, 969 S.W.2d at 700, 704 (noting the public safety interest meant to be furthered by “laws which prohibit persons from driving while intoxicated”). As the Court noted in Butler v. Groce, supra, the General Assembly has sought to protect this public interest in two related ways: criminal sanctions under KRS 189A.010(5) and license suspensions under KRS 189A.Q70(1). As do the criminal sanctions, the suspensions become graver with each repeated offense, up to a five-year suspension for a fourth or subsequent offence within a five-year period. In Butler, the Court held that for license suspension purposes, the length of the sus*356pension was to be determined not by how the offense had been characterized by the trial court, but simply by the number of convictions already of record at the time of the new conviction.
KRS 189A.070(l)(e) provides that “offense” is to have the same meaning under both KRS 189A.070(1), the license suspension statute, and KRS 189A.010(5), the criminal sanctions statute. A prior offense under the latter statute, therefore, to be consistent with Butler’s construction of KRS 189A.070(1), would also be any conviction of record (within the five-year time limit) at the time of the new conviction— even if one or more of the record convictions had not been entered at the time of the current offense, the circumstance presented in this case. This approach is true to the statutory directive that “prior offenses shall include all convictions” for qualifying offenses at the time of the current conviction;' it harmonizes the related statutes KRS 189A.010(1) and KRS 189A.070(1); and it is in keeping with the statutory purpose of protecting the public from impaired drivers.
It is not quite, however, the full-blown convietion-to-conviction approach of Ball and Royalty. In Royalty, as noted, under a prior version of KRS 189A.010, the Court of Appeals affirmed a conviction for DUI third offense where two of the defendant’s offenses were resolved out of order. What was chronologically the defendant’s second offense did not result in a conviction until after the defendant had been convicted of what chronologically was his third offense.7 The defendant argued that notwithstanding the conviction for the subsequent offense, what was in fact a second offense at the time of commission could not be punished as a “third.” . Rejecting that argument, the Court of Appeals relied on the language from Ball quoted above to the effect that for DUI enhancement purposes the relevant question was not the order of prior offenses but only the number of prior convictions, i.e., whether at the time of the current conviction the defendant had “been previously convicted within five years of such conviction of driving under the influence.” Ball, 691 S.W.2d at 210.
Royalty was decided in 1988. As Bal-linger notes, in 1991 the General Assembly made a number of revisions to KRS Chapter 189A, including two which, because they seem responsive to Ball and Royalty, are of particular pertinence here and provide a second reason for affirming the result in this case.
In Ball, the Court had said that a “previous offender” was a person who, at the time of his or her current conviction had, “within five years of such conviction” been previously convicted. The General Assembly amended the statute in 1991 to say, contrary to Ball, that “In determining the five (5) year period under this section, the period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered” (now KRS 189A.010(10)).
The 1991 General Assembly also added the provision, noted above (KRS 189A.010(5)(e)), explaining that “prior offenses shall include all convictions in this state, and any other state or jurisdiction, for [DUI].” Contrary to Royalty, this provision and certainly the two provisions together indicate that to some extent the sequence of offenses matters. Specifical*357ly, the General Assembly has expressed its intent that predicate offenses for DUI enhancement purposes must be “prior” offenses — offenses occurring within the five years immediately preceding the commission of the current offense — and furthermore, as the statute goes on to say, predicate offenses include all such prior offenses which have resulted in conviction by the time of the current conviction. Thus, neither the “convietion-to-of-fense” nor the “convietion-to-conviction” approach is accurate under the current statutory scheme. Instead there is a two-part inquiry. First, was the alleged predicate offense committed within the five-year period preceding the commission of the current offense? If the answer is “yes,” the next question is simply whether the conviction for that prior offense was entered prior to the defendant’s conviction for the current offense by either guilty plea or verdict. Both inquiries must be answered affirmatively in order for the prior offense to qualify as a predicate offense for an enhanced DUI.
The facts of this case satisfy the two-part test. Ballinger’s two July Barren County offenses were committed shortly before his September Warren County offense, and reduced to convictions in December 2010. Should the Warren County proceeding result in a conviction, the convictions for the Barren County offenses may be counted for enhancement purposes, resulting in a DUI fourth offense.
Ballinger would give even more significance to the General Assembly’s addition in 1991 of the definition of “prior offense,” and would have us read into it: “prior offenses shall include all convictions [prior to the current offense].” The General Assembly stopped, however, with “all convictions” for which certified copies could be shown. While not a complete endorsement of the Ball/Royalty approach, the 1991 amendments were not, as Ballinger would have it, a complete rejection of it, either. The statute requires that a predicate DUI offense be prior to the current offense, but it does not require that the predicate conviction be prior to the new offense, and we are not at liberty to make additions to the statute. Under KRS 189A.010(1) as it currently stands, the Court of Appeals correctly determined that Ballinger is subject to prosecution for DUI fourth offense.8
Against this conclusion, Ballinger relies on the footnote referred to above from Fulcher v. Commonwealth. In that case the defendant was convicted, among other things, of two counts each of possession of anhydrous ammonia in an unapproved container (outlawed by KRS 250.489(1)) and possession of drug paraphernalia (outlawed by KRS 218A.500(2)), the charges arising from two separate instances of the two crimes. 149 S.W.3d at 367-72. KRS Chapters 250 and 218A both provide for enhanced penalties for subsequent offenses, and enhanced penalties were imposed for the second of each offense. The defendant maintained that the enhancements were improper because in neither instance did the second offense follow a prior conviction. The Court agreed that both enhancements were improper, but *358found that they were improper for different reasons.
With regard to the second paraphernalia charge penalty, the Court noted that in KRS Chapter 218A an offense was to be deemed “subsequent” if “prior to his conviction of the offense, the offender has at any time been convicted under this chapter.” KRS 218A.010(41). This, the Court stated, was a codification of the Ball/Royalty conviction-to-conviction approach to subsequent offenses. 149 S.W.3d at 380-81. Even under that approach, however, because the two paraphernalia charges were tried jointly, neither conviction could be said to have preceded the other.
With respect to the enhanced penalty for the second anhydrous ammonia charge, the Court noted that while KRS 250.991(2) provided for enhanced penalties for a “subsequent offense,” nowhere in Chapter 250 was the term “subsequent offense” defined. “[I]n that circumstance,” the Court said, “we have always interpreted such language to require a conviction-to-offense sequence, i.e., the second offense must occur after conviction of the first offense.” 149 S.W.3d at 380. The Court cited cases (Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728 (1939) and Brown v. Commonwealth, 100 Ky. 127, 37 S.W. 496 (1896)) that construed habitual offender statutes, predecessor to the current persistent felony offender (PFO) provisions, and a case (Denham v. Commonwealth, 311 Ky. 320, 224 S.W.2d 180 (1949)) construing a local option law. It was at this point that the Court entered a footnote observing that KRS 532.080(2) and (4), the PFO statutes, are still understood to require the conviction-to-offense approach, and also stating that “The General Assembly also appears to have adopted the conviction-to-offense sequence for subsequent offense enhancement of operating a motor vehicle while impaired. KRE 189A.010(5)(e) (defining prior offenses as ‘all convictions’ obtained prior to the subsequent offense).” 149 S.W.3d at 380 n.3.
As the Court of Appeals panel noted, the footnote in Fulcher is dicta and therefore is not binding. And as we have explained above, we cannot accept the Fulcher Court’s reading into KRS 189A.010(5)(e) the words “obtained prior to the subsequent offense.” Those words appear in the Fulcher footnote but the statute simply does not say that. Cf. Commonwealth v. Derringer, 386 S.W.3d 123 (Ky. 2012) (discussing KRS 532.080 and its requirement that for PFO status an offender must not only have a prior offense, but must have a “previous felony conviction,” a requirement we have always understood to indicate the “conviction-to-offense” approach to' sentence enhancement for repeat offenders). The statute says that in setting a penalty, ie., upon conviction, the court is to consider as “prior offenses” “all [DUI] convictions,” then of record, and we, again, are not at liberty to add limitations the General Assembly did not include.
We also disavow the Fulcher Court’s suggestion that in the absence of an expressly contrary definition, such as the one in KRS 218A.010(41), there is a presumption that subsequent offense enhancement statutes intend the persistent felony offender-type conviction-to-offense approach. The justification for that approach under the habitual criminal/persistent offender statutes was explained in 1896 by this Court’s predecessor in Brown v. Commonwealth, 37 S.W. at 496, as follows:
The statute was manifestly intended to provide an increased penalty for a subsequent offense, in order to deter the offender from its repetition. After punishment is imposed for the commission of a crime, the double penalty is held in terrorem over the criminal, for the purpose of effecting his reformation, and *359preventing further and subsequent offenses by him. So we find that for a third offense the punishment of imprisonment for life is provided by the act, upon the theory, doubtless, that he must then be regarded as incorrigible. The reformatory object of the statute, namely, to provide a deterrent from future crime, would not be effected by a construction which gives to the offender no opportunity to reform.
See also, Bray v. Commonwealth, 703 S.W.2d 478 (Ky.1985) (reaffirming this rationale for the conviction-to-offense approach to PFO sentencing).
Where the enhanced penalties can be a doubled sentence or life in prison — terror indeed — as is still the case under KRS 532.080, this focus on the offender and the concern that he or she not be so severely punished without ample warning and sufficient opportunity to reform makes good sense. There are dozens of statutes, however, providing for enhanced penalties for repeated violations or offenses. And while all of them are no doubt meant to deter repeat offenders, there is no reason to suppose that reformation is the, or even a, main purpose of them all. Cynthia L. Sletto, Chronological or Procedural Sequence of Former Convictions as Affecting Enhancement of Penalty Under Habitual Offender Statutes, (noting the wide variety of and rationales for different types of repeat-offender enhancement statutes). Some, and we believe KRS 189A.010 is a clear example, are more aimed at protecting people or property from socially useless and highly dangerous risks. Impaired driving is a threat to everyone traveling Kentucky’s highways, and a driver who drives intoxicated needs no warning to know he will be punished to the full extent of the law. That is the result of the Court of Appeals’ reading of KRS 189A.010(5)(e), a reading in which, under the facts of this case, we concur.
Finally, an additional issue not raised by the parties but clearly lurking in the record of this case is the effect of Ballinger having pled to two separate DUI offenses in Barren District Court on the same day. In Beard, 275 S.W.3d at 208, the Court of Appeals lamented what it perceived as a requirement that it treat two separate DUI offenses as one offense if the convictions for both were entered “virtually simultaneously.” That court observed that “[pjublic policy appears to be ill served by the outcome of this case” wherein the timing of the convictions allows the “penalty provisions [to be] effectively circumvented.” Id. The Beard court aptly referred to the practice of allowing a DUI defendant to plead guilty to multiple DUI charges in one plea as “bundled.” However, Beard, relying heavily on Royalty (which predates the 1991 revisions to the statute) and not citing KRS 189A.010(1) (which focuses on the dates .of the offenses), also concluded that Kentucky DUI law embodies a “conviction-to-offense” approach, a position we now reject based on a full reading of KRS 189A.010. Under the statute as it now stands with its focus on both convictions and “the dates on which the offenses occurred,” KRS 189A.010(10), and in light of this Court’s Butler v. Groce directive that the actual number of prior DUI offenses controls, as opposed to how a court may have labeled or handled those prior offenses, we see no sound basis for concluding that the bundling of separate DUI offenses into one guilty plea or one trial should interfere with the clear intent of the statute that repeat offenders suffer progressively more serious consequences for each separate offense.
Unlike the paraphernalia statute in Ful-cher, which expressly provided that an offense was to be deemed “subsequent” if *360“prior to his conviction of the offense, the offender has at any time been convicted under this chapter,” KRS 218A.010(41), the DUI statute has no subsequent-offender definition. Instead, it prescribes the two-part inquiry that we have outlined. That two-part inquiry also distinguishes DUI offenses from the subsequent anhydrous ammonia charge in Fulcher, where this Court elected to adopt the eonviction-to-offense approach applicable to PFO charges. While Fulcher still controls for the specific drug statutes at issue there, it has no bearing on the DUI statute. Simply put, a defendant cannot avoid the plainly intended consequences of multiple instances of DUI in the relevant five-year period by simply entering a “bundled” plea which results in a single judgment. Thus, Ballinger is properly subject to a DUI fourth offense charge even though the convictions for his second and third DUI offenses were entered the same day.9
CONCLUSION
In sum, even though Ballinger’s December 2010 convictions for two July 2010 Barren County DUI charges had not been entered at' the time he committed the September 2010 DUI offense in Warren County, at the time of his January 2011 Warren County indictment they had become of record and they are eligible as predicate offenses should the Warren County proceeding result in a conviction. The Court of Appeals having-so held, we hereby affirm that Court’s decision and . remand for further proceedings consistent with this Opinion.
All sitting. All concur, except Keller, J., not sitting. Noble, J., concurs by separate opinion.
. KRS 189A.010(1) provides that
(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:
(a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
(b) While under the influence of alcohol;
(c) While under the influence of any other substance or combination of substances which impairs one’s driving ability;
(d) While the presence of a controlled substance listed in subsection (12) of this section is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
(e) While under the combined influence of alcohol and any other substance which impairs one’s driving ability; or
(f) Having an alcohol concentration of 0.02 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle, if the person is under the age of twenty-one (21).
. Additional penalty enhancements follow if the case involves "aggravating circumstances,” such as "operating a motor vehicle in excess of thirty (30) miles per hour above the speed limit;” or "operating a motor vehicle in the wrong direction on a limited access highway.” KRS 189A.010(11).
. Cf. Commonwealth v. Brewer, 2011 WL 2693574 (Ky.App. 2011) (applying conviction-to-offense approach to uphold the dismissal of a DUI second charge where the first conviction did not precede the second offense) with Anderson v. Commonwealth, 905 S.W.2d 871 (Ky. App. 1995) (holding that it is the number not the order of the prior convictions that matters); Smith v. Commonwealth, 2009 WL 276794 (Ky. App. 2009) (applying conviction-to-conviction approach to uphold DUI fourth conviction even though fourth conviction stemmed from what, chronologically, was only the third offense). And see Commonwealth v. Beard, 275 S.W.3d 205 (Ky. App. 2008) (asserting, on the one hand, that "Kentucky has indeed embraced the conviction-to-offense prerequisite for penalty enhancement purposes in DUI cases,” but then, on the other hand, upholding the dismissal of a DUI second charge not because the second offense preceded the first conviction, but rather because the two cases were disposed of simultaneously, making it impossible to say that at the time of the "second” conviction, there existed a prior conviction which could (and, it is suggested, would) bring the conviction-to-conviction approach into play.)
. KRS 189A.010(10) provides that "In determining the five (5) year period under this section, the period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered.”
. As explained more fully infra, Royalty involved an out-of-sequence offense. This case does not because the Barren County DUI offenses occurred before the Warren County offense.
. Subsection (l)(f) outlaws for persons under the age of twenty-one ''[h]aving an alcohol concentration of 0.02 or more as measured by a scientifically reliable test or tests of a sam-pie of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle.”
. The Breckinridge County conviction appealed in Royalty was entered November 10, 1986 for a DUI offense that had occurred eighteen months earlier on May 11, 1985. During that eighteen-month period, Royalty, who already had a 1982 DUI conviction, was cited for DUI in Jefferson County on February 14, 1986 and convicted on April 21, 1986.
. We realize that as we here construe it the statute leaves open the possibility that DUI offenses could be prosecuted out of order and a subsequent offense be under-punished as a result. That possibility is one of the things that led the Royalty Court to reject a sequen-tiality requirement. The General Assembly appears to have recognized the risk that a sequentiality requirement might be abused and has attempted to minimize the risk by encouraging the prompt processing of DUI cases. See KRS 189A.330 (requiring court clerks to report to the Administrative Office of the Courts DUI cases that have been pending for more than ninety days).
. As noted, the Barren District Court accepted a plea and entered a single judgment for the two separate July 2010 DUI offenses. That court treated the combined offenses as a single DUI second offense, when in fact they were a DUI second offense and DUI third offense. We note this to emphasize that, if convicted, Ballinger’s status is to be determined under the two-part inquiry, and thus he is properly subject to a DUI fourth offense even though his record does not reveal a conviction. for DUI third offense, given the manner in which the Barren County offenses were handled. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283844/ | NOBLE, J.,
CONCURRING:
I fully concur with Justice Abramson’s majority opinion. However, I would further point out, for the benefit of practitioners, especially prosecutors, that what we are saying today is that, in effect,'all DUI charges are simply a charge of DUI until there is a guilty plea or adjudication of being guilty of driving under the influence. At that point, under this opinion, any conviction entered before the penalty phase of the trial is admissible to prove the degree of.DUI, or in taking a guilty plea. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283845/ | OPINION OF THE COURT BY
JUSTICE NOBLE
The policy and processes that make up the juvenile justice system, laid out in Kentucky in the Unified Juvenile Code, have received a great deal of attention on a national level over the last few years once it became widely known that millions of dollars were being spent to incarcerate juvenile offenders indiscriminately, to remove many from their homes for minor offenses, and to do this with very little due process. Anne S. Tiegen, Nat’l Conf. of State Legis., Legislative Reforms in Juvenile Detention and the Justice System 7 (2015).1 Juvenile courts, charged with determining the best interests of the juvenile defendants before them, often faced complicated family issues and lacked training about the specifics of juvenile growth and development. There were limited remedies available to deal with an ever-increasing number of children being brought into court.
Kentucky has been at the forefront of this national debate, as is evidenced by sweeping changes to the existing juvenile code relating to status and public offenses through a legislative enactment commonly referred to as Senate Bill 200. See 2014 . Ky. Laws Ch. 132 (SB 200). This legislation resulted from recognition of escalating budgetary demands for the existing juvenile offense system without a commensurate increase in successful outcomes. Legislative leaders formed a task force that met for two years, studying the existing processes, current research about how best to aid children with the problems that brought them into the system, and the financial impact of juvenile treatment. The report from the task force was the catalyst that led to the passage of Senate Bill 200, part of which took effect in 2014, with the rest to go into effect July 1, 2015.
This case, however, arises under the version of the statutes in effect prior to the amendments of 2014-2015.2 Because this case concerns a juvenile code process known as an “informal adjustment,” which is a concept carried over to the newly revised code, albeit with changes, and because the facts of this case raise questions about the validity of the process as applied, this court granted discretionary review to determine the scope of a juvenile court’s authority in issuing and monitoring an informal adjustment. Additionally, this Court seeks to clarify the rights of a child subject to this process.
L Background
On April 13, 2011, “Jon,”3 the then fifteen-year-old Appellant, was in class late in the day. For whatever reason, he pulled his penis out of his pants, put it on *363the shoulder of the student in front of him, and tried to stick it in the student’s ear and hit him in the face with it. This, obviously caused a disturbance, and a juvenile complaint was filed two days later. This was converted to a petition charging Jon with third-degree sexual abuse. Then, on April 19, 2011, Jon was arrested and. brought before the district court, where he was detained. At the next court date, Jon was represented by Jason Holland, a conflict attorney for the juvenile division of the Department of Public Advocacy (DPA), because the locally assigned DPA juvenile defender was conflicted out due to representing the complaining witness. Jon was released from detention on a conditional order of release.
During this time, Jon also had a pending juvenile offense case on a charge of assault that had occurred during a domestic violence incident between his mother' and her ex-boyfriend.
Then, on May 24, 2011, during a pretrial conference, the district judge ordered that Jon’s case be “informally adjusted” on the condition that he move out of the state of Kentucky to Oklahoma to live with his father, and the existing order of release with its conditions was terminated. That is the extent of the order, which was handwritten on a court docket sheet. Notably, the order does not state any other condition, including a time frame, or the parameters of what it meant to “live with” his father. As the record later indicated, Jon’s father had another family in Oklahoma.
Jon and his mother (who was his legal custodian) were forced to comply with the order to avoid formal juvenile prosecution, and did so. Jon moved to Oklahoma, apparently enrolled in school there, and remained for around five months. He then returned to his mother in Kentucky.
In October, when the Commonwealth learned that Jon was back in Kentucky, his case was placed on the docket for “review.” No written motion was filed, but the Commonwealth orally moved the district court to redocket the case and reinstate the sex offense charge, because Jon was back in Kentucky.
Jon and his mother appeared, but his previously appointed attorney (Jason Holland) had not been given notice and thus did not appear. The local DPA juvenile defender, who was conflicted out of representing Jon because she actively represented the complaining witness, nonetheless “stood in” as counsel for Jon.
The district court heard nothing beyond the Commonwealth’s allegations that Jon had returned to Kentucky in violation of the- court’s previous order before ruling. No testimony was taken to establish that Jon had willfully violated the terms of the informal adjustment, and no arguments were made about the limitations of the informal adjustment, and whether there was a violation at all. In fact, Jon was effectively without counsel at this point, because the attorney “standing in”’ was conflicted out from making substantive ar-' guments on his behalf. The district court sustained the motion to re-docket charges “as he did not stay in Oklahoma with dad.” Jon was released on “strict” conditions of release and ordered to appear the following week for a pretrial conference, of which Jason Holland was to be notified.
After the court ruled on this motion, there was some discussion between the DPA lawyer and Jon’s mother about where to go to find Jason Holland’s office. In response to the DPA lawyer, Jon’s mother attempted to explain that Jon was back in Kentucky for several reasons: he was unhappy away from her and his home, he felt his father favored his step-children, and most importantly, a dependency, neglect *364and abuse case may have been initiated against the father in Oklahoma, which put Jon at risk. As the child’s legal custodian, the mother wanted him out of harm’s way. During the conversation, a male voice, possibly that of the prosecutor,4 can be heard saying, “He’s supposed to stay there [Oklahoma] for these charges to go away.” In response to Jon’s mother’s explanation, the male voice can be heard saying: “Okay. That’s fíne. But these charges have to come back.”
The record is not clear, but it appears that the prosecutor believed the Kentucky Children’s Law Center had been consulted about representing Jon. At an appearance on December 15, 2011, the prosecutor stated that he had received a call from an “agency” that he had been told the week before would be representing Jon; He said that that unnamed agency said that they do not do criminal eases and thus it was his understanding that Jon was not represented at that time. He then noted that Jon needed to find out whether he was going to get a private attorney or have another DPA-conflict attorney appointed. Jon’s mother said she would hire a private attorney. The judge ordered that they appear on December 22 with an attorney. The written order refers to the Kentucky Children’s Law Center, noting that it does not represent children in juvenile court.
There is no recording of the December 22 appearance in the record. A written order, however, states that on that date, Jason Holland was reappointed as conflict counsel, and that the matter was scheduled for a pretrial conference on January 10, 2012.
The recording of the January 10, 2012 appearance is very short. Rather than a pretrial conference, it appears to have been transformed into an adjudication hearing at which Jon entered an “admission” on the sex-abuse charge as part of an agreement, with the prosecution. The pending assault case was nearly two years old by that time, and it was to be dismissed as part of that agreement. The judge called the case, briefly described the deal (in no more than two sentences), and then undertook a very short colloquy on the “admission.” The colloquy consisted of four questions: 1) Are you “admitting that you committed sexual abuse third degree?”
2) “Has anyone made a threat or promises to you to make you make this admission?”
3) “Are you under the influence of drugs or alcohol today?” and 4) “Are you entering this admission voluntarily and of your own free will?” No information was given that as a juvenile sexual offender, Jon could remain in sexual-offender treatment for up to four years, well past his eighteenth birthday, pursuant to KRS 685.515.
Though Jason Holland had previously been re-appointed to represent Jon, the record does not show whether he attended the January 10 hearing. The only voices that can be heard on the recording are those of the judge, the prosecutor, and Jon.
After asking Jon those four questions, the judge stated quickly: “Show admission made, waived rights.” He then set the case for a disposition hearing on January 31, 2012, ordered the Department of Juvenile Justice (DJJ) to prepare a pre-disposi*365tion report, and again left Jon on “strict” conditions of release.
It appears that the January 31 hearing did not happen. Instead, the matter was continued, several times, until March 27, 2012. At. that time, Jon appeared with his mother. The prosecutor opened by stating that Jason Holland had been appointed to represent Jon, but that he and his mother had contacted Holland about hiring a specific private attorney. In response to this the judge said, “I guess my question is: for what purpose? If you think I’m going to allow him to withdraw his admission, I am not. And the disposition is probably going to be'what is being recommended right now. But if you want a week to get an attorney over to the dispositional hearing, I’ll be glad to give it to you, but one week only.” He then ordered that Jon appear the next week with a lawyer for his disposition hearing.
At that next appearance, the judge ordered the matter continued to April 17. The court’s order stated that this was to be the “last continuance.”
At the April 17 hearing, Jon’s mother again appeared, stating she had trouble getting an attorney. Disposition was reset to May 15, 2012. The court’s order stated that the family was to hire an attorney or that Jason Holland would stand in at the disposition hearing. The handwritten docket order noted: “LAST CONTINUANCE.”
At the May 15 disposition, the trial court considered the Juvenile Sexual Offender Assessment filed by DJJ, removed Jon from his home and ordered him detained until placement, and committed him to DJJ as a juvenile sexual offender for placement in an “appropriate facility”— despite the fact he had been in the community for nearly a year without any further offenses — rather than ordering treatment in the community. His placement was scheduled to be reviewed in June.
Shortly after entry of this order, a DPA lawyer from Frankfort entered an appearance for Jon and pursued post-judgment motions. Jon’s new counsel eventually filed a notice of appeal to circuit court, which affirmed the district court. The Court of Appeals denied discretionary review.
Jon then sought discretionary review from this Court, which was granted for the reasons stated above.
II. Analysis
The juvenile public-offense process,5 properly administered, differs dramatically from the adult criminal process, although over the years criminal-case terminology has been imported into the juvenile process because certain criminal law concepts, such as due process and the requirement of proof beyond a reasonable doubt, KRS 610.080(2), are also required by the juvenile code. But a juvenile offense is not a crime. It is instead an allegation of an act committed by a juvenile, “which, if committed by an adult, would be a crime, whether the same is a felony, misdemeanor, or violation.” KRS 600.020(47) (2011). Juvenile actions are brought “in the interest of’ the juvenile, id., rather than against the juvenile, as occurs in the adult adversarial process. Although the allegations in such juvenile actions mirror all the elements of the crim*366inal charges that can be made against adults, because of the nature of juvenile actions, there are many procedures and considerations that apply to juveniles that do not apply to adults, and the statutes clearly state that a juvenile offender is not a criminal. KRS 635.040.
KRS 600.010(2)(a), although amended by the recent statutory revisions, has always expressed the legislative purposes behind the juvenile code. That provision requires that efforts are to be made to protect children; to strengthen and encourage family life; to maintain the biological family unit; and to conduct data collection and research to support ongoing juvenile practices.
To further support this nurturing mandate, the recently amended KRS 600.010(2)(b) emphasizes a preference for in-home interventions, and avoiding out-of-home placements “to the extent possible.” KRS 600.010(2)(d) further stated, at the time of Jon’s action (and still states) that children have a “right to treatment reasonably calculated to bring about an improvement of [the] condition” that brought them before the court. And this statute, both before and after the amendment, has mandated fair judicial proceedings which recognize the rights and interests of all parties. KRS 600.010(2)(g).
And while the prior version of KRS 600.010(2) was in effect at the time this case arose, both the general and specific language in the prior statute can certainly be interpreted to subsume the more specific directives of the current version of the statute.
With this broad mandate of protection and rehabilitation in mind, this court must begin by looking at the court process set out in the juvenile code in order to understand whether the process applied in this case was appropriate.
Generally, a juvenile case begins with the filing of a complaint with the Court Designated Worker (CDW). The CDW has several options at that point as set out in KRS 610.030, which will not change until later this year. First, the CDW reviews the complaint, which is actually a pre-court document filed on a prescribed form, to clarify what is being claimed. The complaint is sent to the county attorney who reviews the claim, and determines whether there is probable cause to proceed. KRS 635.010(1). At that point, the CDW has several statutory options, including determining that no further action is necessary and disposing of the complaint; referring the child for social services; or, with agreement of the child, placing the child in a diversion program if he meets certain criteria. KRS 610.030(2)(a) 1.-3. (On successful completion of the diversion, the case is closed and he never goes to court.)
But there are other options that can apply based on the facts and the child’s history with the juvenile system. If diversion fails, or if the child does not qualify or rejects diversion, or diversion is otherwise inappropriate, the case may then proceed to a petition (which incorporates the complaint) and which is filed with the clerk of the court, given a case file number, and the case proceeds in court as a juvenile matter. The CDW may recommend informal adjustment or formal court proceedings, or make no recommendation at all. KRS 610.030(2)(a)4.-5.
Once a case is before the court, the court has two options: proceed with formal juvenile court proceedings, or dispose of the case through an informal adjustment. KRS 610.100(3) (replaced by KRS 610.105 effective July 1, 2015). The full processes of formal juvenile court proceedings need not be discussed here, as it is the informal adjustment option that is at issue in this *367case, although some parts of formal court proceedings will be noted later to showcase differences in the two approaches to . the juvenile case.
An “informal adjustment” is “an agreement reached among the parties ... that the best interest of the child would be served without formal adjudication and disposition.” KRS 600.020(34) (emphasis added).6 The agreement must be made with “consultation, but not the consent, of the victim of the crime,” id., and it must be “approved by the court,” id. To illustrate what this process bypasses, we must look at what “formal” proceedings require.
“Adjudication” and “disposition” are legal terms of art when used in the juvenile code. In formal juvenile proceedings, they are the final steps in concluding a particular juvenile complaint, and the statute re-. quires “two (2) distinct hearings,” or a bifurcated proceeding. KRS 610.080.
“The adjudication shall determine the truth or falsity of the allegations in the petition....” KRS. 610.080(1). It can amount to an evidentiary hearing on the charge which allows for witnesses and presentation of evidence, or it can be the point at which an “admission” or “confession” is taken and evidence is not presented. KRS 610.080(1). This is not a “guilty plea,” though it is frequently referenced as such in common usage, which impermissi-bly injects criminal connotations. KRS 635.040. Because the adjudication determines the truth or falsity of the petition, it necessarily decides whether a status or public offense has occurred, and if so, what it is.
All hearings are to be conducted “in a formal manner” unless otherwise specified by statute. KRS 610.070(2). These are not hearings open to the public, and only specified persons may be present. KRS 610.070(3). Because a child can be removed from his home and placed with the Cabinet or put in the custody of DJJ, the statute requires due process rights and thus if requested requires application of the Rules of Criminal Procedure, KRS 610.080(2), which also erroneously implies criminality to the juvenile. Any evidence the court relies on must rise to the level of proof beyond a reasonable doubt, also the criminal standard. The Rules of Civil Procedure also apply. Id. If the child is found to have committed a public offense, then there are further statutory requirements the court must comply with, such as ordering evaluations to be done by DJJ to assist the court in making disposition. KRS 610.080 (addressing when a “formal predisposition investigation report” must be made)'; KRS 610.100(1) (addressing content and process of making report).
The disposition is the second hearing required by KRS 610.080. At that hearing, the court “shall determine the action to be taken ... on behalf of, and in the best interest of, the child.” KRS 610.110(1). It provides a child the opportunity to be heard on the information the court is considering, which includes the predisposition investigation report. Disposition can result in several alternatives, including probation, placing the child on court-monitored supervision, or commitment of the child to the Cabinet for Health and Family Services (Cabinet) or to DJJ. KRS 635.060; KRS 610.110(4). Commitment to the Cabinet normally means the child is placed out of the home, in foster care or other Cabinet facilities. Commitment to DJJ usually means the child is *368placed in unsecure or secure detention for a prescribed period of time.
But when a court makes a decision to proceed by informal adjustment, it is by definition deciding that the case should not proceed to formal adjudication and disposition, in the best interest of the child. KRS 600.020(34). This is a significant decision, and as defined and applied, removes the procedural rights and safeguards that accompany formal court proceedings. At the same time, however, it is a finding that this child does not need the benefit of formal court proceedings, and that there are alternatives that are better for him. And he and the county attorney must agree. KRS 600.020(34) provides that an “informal adjustment” (as opposed to a formal court proceeding) requires an agreement reached among the parties to the case. A victim may be consulted about the agreement, but does not have to consent. Thus when a court proceeds with an informal adjustment, an agreed-upon resolution to the case occurs rather than an adjudicated disposition.
Obviously, informal adjustment was thus never intended to cover cases where there is a serious offense, or where there is a need for extensive evaluations or corrective out-of-home placements. The intent of the statutes allowing informal adjustments is that the court has discretion to recognize when a case can be resolved best for the child without going through the court process because the child committed a low-level offense or a first, out-of-character offense, or the child’s problems may already have been remedied, or the child’s family has the situation under proper control.
But even so, informal adjustments are not without certain requirements, and the court’s discretion is not unfettered. There must be notice to all parties and the victim, and an agreement between the child and the county attorney to proceed with the terms of an informal adjustment instead of formal juvenile proceedings. Again, this agreement is necessary, because by proceeding with an informal adjustment the child waives many due process rights, such as the right to contest the charges against him. By this agreement, whether the child actually committed the offense or not, he agrees to be subject to the conditions the court then sets as.the “adjustment.” If the child successfully performs the terms of the informal adjustment, then the case should be dismissed.
But sometimes the child fails to perform whatever conditions the court has set, and that is when many of the questions in this case arise. What can the court require as proper conditions, and what can the court do if the conditions of an informal adjustment are not met?
Applying this legal framework to the case before us, we must begin with looking at the record of the proceedings, which is sparse in comparison to cases originating in circuit court. There is little supporting documentation in the record, but what is available fails to establish why this case was converted from a formal proceeding to an informal adjustment. A recording of the hearing at which the informal adjustment occurred was not included in the appellate record and may not exist. Converting the case is clearly permitted, because an informal adjustment can be made at any time during the proceedings on proper notice to the victim and all interested parties. KRS 610.100(3). And it is implicit in proceeding with an informal adjustment that the court found that it was in the child’s best interest to do so. But there is nothing in the record that clearly demonstrates why the court chose this route. Nor is there anything in the record that establishes that the informal adjustment was agreed to by the child.
*369To the contrary, nothing in the record establishes that the child and his mother wanted him to leave Kentucky and go to live with his father among strangers in another state. Nonetheless, the court proceeded to order the literal banishment of the child from Kentucky, as is noted in the court’s entry on the docket sheet. There is no explanation as to why this move was in the child’s best interest, nor why this approach was superior to formal proceedings. Worse still, the order itself includes no limit on how long Jon had to live with his father (and thus it had no duration); under what circumstances Jon might be allowed to return to Kentucky, many of which could easily be anticipated; nor any indication of consequences should the child not obey the order.
If the order required Jon to live with his father indefinitely, the district court, in effect, entered a change of custody order without a hearing on the propriety of the father as a custodian, which is not within a district court’s jurisdiction. This alone would mean that the court’s action fails to meet the statutory requirements for an informal adjustment.
Nevertheless, if the order was of indefinite duration, arguably the child did not satisfactorily perform the ordered informal adjustment, because he returned to the state of Kentucky without permission from the court. But it appears that he returned because of difficulties adjusting to his father’s household and because his father was the subject of a dependency and neglect investigation in Oklahoma. The failure to provide for this possibility and thereby leave the child an out if it was impossible or unreasonable for him to continue living with his father, perhaps more than anything, establishes the impropriety of the court’s order requiring him to live with his father in another state.
Regardless, once the county attorney learned the child was back in the state, he requested the court to “revoke” the informal adjustment as if it were some kind of pre-adjudication probation, which it is not. As the statute makes clear, an informal adjustment is in place of formal proceedings, and it is appropriate only if it is in the child’s best interest. But once that route has been invoked, the case does not “revert” to a formal proceeding. The court could have imposed a number of requirements as a part of the informal adjustment, but did not. Failing the one thing ordered, however, does not mean that the court could then proceed on the charges. The path open to the court is to make further adjustments, or to impose sanctions, not to recharacterize the case as one requiring formal adjudication and disposition. If it was not in the child’s best interest to go forward with formal court proceedings in the first instance, why would it be in his best interest to do so after he violated the court’s order?
At the hearing to “revoke” the informal adjustment, the child’s mother attempted to explain to either the prosecutor or the judge as described above why the child had returned. The only response was simply that since Jon was now back in Kentucky, “charges have to come back.” Clearly charges were then being reinstated because the child disobeyed the court’s order, and not because formal proceedings were in the child’s best interest.
An informal adjustment and formal proceedings are alternative routes for dealing with a child charged with a juvenile offense. There is nothing in the statutes that supports a hybrid process. A case is either informally adjusted or it is tried through the formal court proceedings of adjudication and disposition with their attendant due process requirements. Once a child and the other interested parties *370have agreed to an informal process where these constitutional safeguards are waived, shifting to a formal process where the child’s non-offense conduct during the informal, adjustment is used' against him resembles a “bait and switch,” and is not legally supportable.
The trial court erred when it changed the case from an informal adjustment to formal proceedings. And while the record on appeal does not clearly establish that the child agreed to an informal adjustment in the first place, the fact is that is what he got, and this Court will presume that orderly and proper procedures were followed in the face, of a silent record. Nonetheless, it is simply unfair to change horses in midstream and formally proceed against him on charges he had every reason to believe were being decided in an alternative manner.
Additionally, there is the factual question as to whether he in fact failed the informal adjustment term. He actually did move to Oklahoma and live with his father for some months, and only returned to Kentucky around five months later. The court’s order did not specify how long he was to live with his father, or what the consequences were, if any, for returning to Kentucky.
But charges were “brought back” because the child was back in Kentucky. Banishment is not a legal disposition under Kentucky law, even as a condition of probation or alternative to imprisonment for adults. See Weigand v. Commonwealth, 397 S.W.2d 780, 781 (Ky.1966) (“The Commonwealth concedes it is beyond the power of a court to inflict banishment as an alternative to imprisonment.”). A child could, as part of an informal adjustment, agree to live with a different parent, but it is clear that a district court could not enforce such an agreement without the consent of the child’s legal custodian, even though a district court may remove a child from his home if the child is at risk of harm, KRS 610.050, and can commit a child to custody after adjudication and disposition. A child can only agree in an informal adjustment to what he is willing to do, and to that which is legal. Certainly the child’s mother, his legal custodian, had rights to be considered in such a move as well, which the district court had no jurisdiction to contravene. Yet the district court re-docketed the charges “as he did not stay in Oklahoma with dad.”
The child was placed on “strict” conditions of release, and allowed to remain with his mother. Three months later, apparently an agreement had been negotiated whereby the pending assault charge against the child from the altercation with his mother’s ex-boyfriend would be dismissed if the child admitted he had committed sex abuse in the third degree, a misdemeanor. In taking the child’s admission or confession, the trial court asked four perfunctory questions, which mostly contained legal terms, and did not explain any of them. The child was asked to admit that he had committed third-degree sex abuse without being told what that meant; he was asked if he had been promised anything for the admission when a child might easily think that he had, because of the agreement to dismiss the assault charge; he was asked if he was under the influence of drugs or alcohol; and whether he was making the admission voluntarily and of his own free will. His answers were barely audible, though he did answer yes to those questions, but as a 15-year-old child, there is nothing in the record to indicate that he understood what he was answering. There was obviously no explanation of the consequences of the admission, which could involve sex-offender treatment in a juvenile detention facility for three years with a possible extension of *371one year, which would detain him until age 19. KRS 635.515(1).
After taking the admission or confession, the court then left the child in the community on the same “strict” terms, and set a date for disposition. As noted above, it is unclear whether the child had counsel present when he entered the admission, though it is clear that no counsel spoke up for him. Instead, the judge held a perfunctory hearing at which he stated the “deal” reached on the child’s behalf and then asked the four questions laid out above. The child’s mother apparently was still seeking other representation for Jon when the disposition was first scheduled. The district judge expressed skepticism that Jon needed a different lawyer at that point, suggesting that a lawyer would only be present for support. The court did delay disposition, but told the child getting a new attorney at that point was futile, because he would not allow him to withdraw his admission. Disposition finally occurred on May 15, 2012, over a year after the case began, contrary to KRS 610.070(1), which requires speedy hearing.
At that time, the trial court removed him from his home, and committed him to DJJ as a juvenile sexual offender. This disposition was available to the court — if the child was properly in formal proceedings, and if it was in his best interest. Because the child was adjudicated as having committed a misdemeanor, it was not mandatory that he be committed as a juvenile sexual 'offender. KRS 635.510(2)(b) 85 635.505(g).
But this child should not have been subjected to formal proceedings. Instead, the court had already found that formal proceedings were not in his best interest, and imposed an informal adjustment. He had been in the community for over a year before disposition. His behavior that was the basis of the charges, while beyond doubt inappropriate, is at least as indicative of immature, adolescent horseplay as it is of sexual perversion. Everything in the record points to the conclusion that this child could have succeeded at an informal adjustment that set the terms based on his conduct and needs rather than expulsion from the state and removal from his home and the custody of his mother. It was error for the court to have ordered otherwise.
A juvenile case proceeds by either an informal adjustment or through formal proceedings. Once a case has been determined to be appropriate for an informal adjustment, the case cannot be “returned” to formal proceedings. Electing to proceed by informal adjustment means that there will not be formal proceedings on that charge.
The remaining question, then, is what remedy is appropriate in this case. At the very least, the district court’s judgment, reflecting the adjudication and disposition, must be vacated. If the child was young enough to still fall under the jurisdiction of the juvenile court, then the appropriate action would' be to return the child to the informal adjustment status, so that the court could apply, reasonable and appropriate terms in the child’s best interest. However, this child was 15 at the time of the charged offense in 2011, and should be at least 18 years old at this time. His current status is unknown to the Court. If he remains in the custody of DJJ, he must be released forthwith, and now being over the age of 18, his case is concluded.
This, situation highlights the complexity and serious repercussions that arise from juvenile public-offense cases. This child did not receive the process to which he was entitled. For however long he was in the custody of DJJ, the state bore the cost of his incarceration, which was unwarranted. It is wholly unknown what effect this *372has had on him and his familial relationships. It is to be hoped that he obtained benefits from sex-offender treatment and other programs at DJJ, but research that sparked juvenile justice reforms nationwide has indicated a negative effect from placing low-level offenders with more serious offenders.
Juvenile dockets are often large, and all courts have time limitations. But there are prescribed processes that must be followed if the courts are to give value to the intent of the legislature in treating juvenile offenders in a manner that is significantly different from adult offenders, yet does not strip them of their basic constitutional rights of fair process.
III. Conclusion
For the forgoing reasons, the decision of the circuit court is reversed, and the district court’s adjudication and disposition in this case is vacated. If the Appellant remains in custody, he is to be released forthwith; and his case closed-.
Minton, C.J.; Abramson, Barber and Venters, JJ., concur. Cunningham, J., concurs in result only. Keller, J., not sitting.
. This document can be accessed at the National Conference of State Legislatures’ website, at http://www.ncsl.org/documents/cj/ juvenile-detention-legislative-reforms.pdf.
. , Unless otherwise noted, the citation to and quotation of portions of the juvenile code are to those provisions in effect in 2011-2012, when the underlying proceedings were held.
It should also be noted that the revisions to the juvenile code enacted through SB 200 address several of the issues addressed in this opinion.
.This name is a pseudonym, used to maintain the juvenile’s anonymity and improve readability over the earlier practice of using initials.
. 4 In light of when this conversation took place (after the judge’s ruling), the male voice was possibly that of the prosecutor, but it is impossible to conclusively discern based on the record, which consists only of an audio tape. The quality of the recording is low and the voices are distorted, which makes it difficult to discern who is speaking to whom. Thus, it is not completely clear whether Jon's mother was speaking to the court or the prosecutor as she tried to explain the situation.
. This is distinguished from the process for resolving a status-offense action, which is "any action brought in the interest of a child who is accused of committing acts, which if committed by an adult, would not be a crime. Such behavior shall not be considered criminal or delinquent and such children shall be termed status offenders.” KRS 600.020(59)(a) (2011).
. 6 At the time of Jon’s proceedings, this definition was under subsection (31) of KRS 600.020. It still reads the same, however. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283846/ | OPINION OF THE COURT BY
JUSTICE NOBLE
This case raises primarily two issues. First, does a defendant’s pro se request to withdraw his guilty plea constitute a critical stage of the proceedings at which the right to counsel attaches, and, if so, is that right violated when trial counsel refuses to assist in the request or to seek alternative counsel? Second, does trial counsel’s complete failure to investigate an alleged alternative perpetrator constitute reversible ineffective assistance of counsel? The Court of Appeals agreed under the first issue that such a request is a critical stage and that the Appellant, Shawn Tigue, was denied counsel when he sought to withdraw his guilty plea. Based on this error, the court reversed Tigue’s convictions and ordered the case remanded “for a new trial.” 1
This Court agrees that Tigue’s right to counsel was violated when he asked to withdraw his plea, but disagrees that his conviction should be reversed for that error, as his relief is limited to reversal of the trial court’s final judgment, not his guilty plea. This Court nevertheless affirms the judgment of the Court of Appeals on other grounds by reaching the *378second issue and finding ineffective assistance of counsel.
I. Background
Bertha Bradshaw was murdered in her Bell County home on the morning of April 11, 2003, by a shotgun blast to the back of her left shoulder. At the time she was shot, she was covered and lying in her bed with her head at the foot of the bed and her feet at its head. Several items were taken from the home, including her purse, several bottles of pills and unfilled drug prescriptions, a Remington 12-gauge pump shotgun, and a green canvas “squirrel bag” belonging to Bradshaw’s husband. The kitchen door had been damaged and forcibly entered.
A neighbor told the police that she had seen a maroon Chevrolet pickup truck belonging to Shawn Tigue backed into Bradshaw’s driveway between ten-thirty and eleven o’clock that morning. When the police located the truck, Tigue was in the passenger seat and his wife was driving. Police stopped the truck, asked them to exit the vehicle, and searched them for weapons. A pill bottle with a scratched-up label and containing three different types of pills was found in Tigue’s pocket. Tigue was then arrested and taken into custody. A search of his truck revealed the green squirrel bag containing assorted 12-gauge shotgun shells.
After Tigue was taken into custody, he signed a waiver of his Miranda rights and was questioned about the murder by Detective Donald Perry. Tigue appeared to Detective Perry to be high at that time, but the detective concluded that he was still able to comprehend the situation based on Tigue’s asking if he could still stop the questioning even after signing the waiver. During this interview, Tigue told detectives that he was prescribed the hy-drocodone found in his pill bottle and that he had purchased the other two types of pills, which were both alprazolam (commonly known by its tradename, Xanax). He denied knowing anything about Bradshaw’s murder and consented to a search of his house, where detectives found no evidence linking him to the shooting. He was then taken to jail on drug charges.
From what remained of the label on the pill bottle in Tigue’s possession at the time of his arrest, Detective Perry was able to determine that it was a prescription for alprazolam written for Bertha Bradshaw that had been filled at a Rite Aid Pharmacy in Pineville, Kentucky, at about noon on the day of Bradshaw’s murder. The pharmacist’s description of the man who had filled the prescription matched that of Ti-gue.
The next day, April 12, Detective Perry interviewed Tigue again. Tigue admitted to having filled the prescription at Rite Aid. When questioned about the green bag that was found in his truck, Tigue stated that his neighbor, Danny Smith, had come to his house and given him those items between 10:00 a.m. and noon the day before, effectively pointing toward Smith as the murderer. He said that Smith had told him to fill the prescription and get rid of the bag, and that he could have half of the alprazolam for doing so. Detective Perry then left to try to find Smith.
It is apparently at this time that Tigue would later claim he was overcome with fear that Smith would retaliate against his family. Before Detective Perry was able to locate Smith, dispatch informed him that Tigue had asked that he return. Upon Detective Perry’s return, Tigue confessed to breaking into Bradshaw’s house, shooting her with the shotgun, and taking the items. After confessing to the crimes, he told the detective where he had hidden the shotgun. He then took the police to the hidden shotgun and consented for *379them to retrieve from his house the blue flannel shirt he had been wearing during the commission of the crimes. Tigue was then taken back to the jail and charged with murder and first-degree burglary. -
Despite his confession, Tigue thereafter maintained his innocence. He claims that in his first discussion with defense counsel,2 he told them that his confession was false and that he knew who had actually killed Bradshaw, though he would not say who the killer was. Tigue would later elaborate that while he had in fact illegally entered the Bradshaw home and taken the pills, money, and other items, he had done so only after Smith had earlier shot and killed Bradshaw with the shotgun and told him to go get the items he took. This version of events would have established an alternative perpetrator defense to the murder.
But Tigue never named Smith as the murderer to his counsel, although he claims he tried to tell the DPA investigator, Lisa Saylor, about Smith and what had actually happened, but she “blew [him] off.” She allegedly told him there was nothing to be done about it because he confessed. He maintained his innocence from his first contact with counsel and told them he wanted to go to trial. Tigue claimed that his reluctance to name Smith again throughout was driven by his fear that doing so would put his family’s safety at risk from retaliation by Smith.
Tigue was arraigned on May 16, 2003, at which time the court found him to be indigent and appointed Cotha Hudson from DPA to represent him. He also entered a plea of not guilty to all charges. Before the final pretrial conference on September 3, Hudson filed a motion for bond, which was denied, and the Commonwealth filed a notice of intent to seek the death penalty based on the statutory ag-gravator in KRS 535.025(2)(a)(2) of a murder committed during the commission of a burglary.
Tigue was represented at the pretrial conference by another DPA lawyer, Lowell Lundy, who had been assigned as co-counsel once the death penalty was put in play. The case was assigned for trial on March 30, 2004.
Thereafter, the circuit court’s record is devoid of any activity in the case until January 12, 2004, when Lundy reluctantly filed, at Tigue’s insistence,3 a motion to suppress the confession and other evidence allegedly obtained in violation of Tigue’s constitutional rights. Two days later and with similar reluctance, Hudson filed a motion for a psychiatric examination and inpatient treatment for Tigue, and attached to it a three-page medical record of an emergency room visit for psychiatric care on April 23, 1998.4 Both motions were *380noticed for hearing on January 28, but Hudson agreed at the hearing to have both held in abeyance. Lundy orally moved to withdraw the motions at a subsequent hearing on January 27.
Leaning heavily on the confession, Ti-gue’s counsel was quite candid and unambiguous about the fact that their entire pre-trial strategy had been geared solely toward brokering a plea deal with .the Commonwealth to avoid the possibility of a death sentence. Despite his counsel’s advice to seek a plea bargain, Tigue initially refused to consider pleading guilty and instead insisted on going to trial to prove that he was not Bradshaw’s murderer. His months-long obstinacy ultimately ended on February 2, 2004, however, when he capitulated to the pleas of family members and his defense team and decided to accept a plea bargain, under which he would be sentenced to life without the possibility of probation or parole for 25 years in exchange for his guilty plea.
With Lundy present at the plea hearing, the trial judge conducted a plea colloquy, during which Tigue answered “yes” when asked whether the statements contained in the plea agreement about his guilt were true; whether his plea was knowingly, intelligently, and voluntarily entered; whether he understood that he was waiving his constitutional rights, including the right to a trial by jury and the right to appeal; and whether he was satisfied with his counsel.. At the conclusion of the hearing, the judge advised Tigue that if he had any questions, he could ask them when he returned for sentencing, which was delayed until February 26 to allow for completion of the presentence investigation report under KRS 582.050. At the conclusion of the plea hearing, Lundy Filed with the court formal written notices of withdrawal of the motions to suppress and for psychiatric evaluation.
Soon after returning to the jail, however, Tigue called his counsel and family members to tell them that he wished to withdraw the guilty plea, which he claimed was false and involuntary. And in the weeks that followed, he made numerous unsuccessful attempts to contact his attorneys to request their assistance in withdrawing the plea. In addition, the trial judge received several letters from Tigue and members of his family asking that he be allowed to withdraw the plea and detailing various encounters,, occurrences, and statements that they believed showed negligent representation and professional misconduct by defense counsel.
But defense counsel never acknowledged Tigue’s requests, and no written motion to withdraw the guilty plea was filed on Ti-gue’s behalf béfore the sentencing hearing *381held on February 26, 2004. At that time, Tigue orally asked to be allowed to withdraw the plea, stating that he had entered the plea involuntarily as a result of the actions of his defense team. During the exchange that followed, the judge acknowledged having received and read letters from Tigue and his family members, but stated that he would not further address the allegations they raised despite conceding that “there are things in those letters that could cause [him] concern.” But in concluding that Tigue had “not given [him] any grounds to withdraw [the] plea,” the judge explained, “There’s been no motion to withdraw your plea. You’re doing this pro se. You’re not giving me really what I would consider to be sufficient legal grounds at this time.”
Having thus declined to address the merits of Tigue’s allegations and summarily denied the request to withdraw, the court proceeded to pronounce the final judgment, sentencing Tigue to life in prison without the possibility of probation or parole for 25 years in accordance with the terms of the plea agreement. The judge then stated, “I’ll be seeing you back. I feel relatively certain about that. At some point in time, I suspect we will conduct an actual hearing into the issues that you’ve raised, that you wanted to raise, by the letter, by the letters that you sent.” Finally, when Tigue asked how long he had to file an appeal, the judge stated:
There’s no appeal from a plea of guilty since there was no formal motion filed with the court to withdraw your plea of guilty. If I had ruled on that, ruled on an actual formal motion to withdraw your plea of guilty, that would be a final and appealable order. But there is no appeal from this plea of guilty. But you do have other post-judgment remedies that are available to you. And like I said, I’m not. going to bother to tell you what those are because I have no doubt you’re going to learn. You’ll learn very quickly what those are once you get to the Department of Corrections. So we’ll just address them as they come up.
Tigue did not pursue a direct appeal and, as anticipated by the trial court, he instead filed a pro se motion to vacate his conviction and sentence under Criminal Rule 11.42 and a motion for appointment of counsel. Relevant to this appeal, his pro se motion challenged the validity of his guilty plea on grounds that it was the product of ineffective assistance of counsel, alleging that he had not knowingly, intelligently, and voluntarily entered his guilty plea, but rather had been coerced and manipulated into doing so by his defense team. The trial court granted the request for appointment of counsel.
On June 18, 2008, appointed counsel filed a supplemental motion and memorandum of law raising as additional grounds for relief that Tigue was denied assistance óf counsel during a critical stage of the proceedings (the motion to withdraw the plea) and was denied conflict-free counsel, both of which violated his right to counsel. After holding a two-day evidentiary hearing, the trial judge issued an order on December 31, 2008, denying the 11.42 motion, finding, among other things, that Ti-gue had not received ineffective assistance of counsel and that he had knowingly, intelligently, and voluntarily entered his guilty plea.
Tigue appealed.5 The Court of Appeals reversed Tigue’s convictions and sentence *382and remanded the case for a new trial, holding that he was denied assistance of counsel at a critical stage of his criminal proceedings resulting in a per se violation of his right to counsel under the state and federal constitutions. Specifically, the Court of Appeals held that a motion to withdraw a guilty plea is a critical stage of criminal proceedings during which the right to counsel attaches and that trial counsel’s refusal or failure to file a motion to withdraw the plea on Tigue’s behalf constituted a denial of counsel. The Court of Appeals did not reach Tigue’s other claims of error.
This Court granted the Commonwealth’s motion for discretionary review to address whether a request to withdraw a guilty plea is a critical stage of the proceedings, and whether Tigue’s right to counsel was violated. This Court also granted Tigue’s cross-motion for discretionary review raising the issues left unaddressed by the Court of Appeals as alternative reasons to affirm, putting those issues before this Court as well.
II. Analysis
This Court ultimately reverses Tigue’s conviction and sentence and remands to the trial court for a possible new trial upon finding ineffective assistance of counsel leading to his guilty plea. For that reason, the Court could avoid deciding the Commonwealth’s claim as it would be rendered moot. But because the Commonwealth raises a novel question, this 'Court has decided to answer it and describe how it would play out if Tigue were not entitled to greater relief from his other claims of error. Tigue’s other claims are.then addressed, to the extent necessary, to give him the full relief to which he is entitled.
A. Tigue’s request to withdraw his guilty plea
The Commonwealth claims that the Court of Appeals erred in concluding that Tigue’s request to withdraw his guilty plea was a critical stage of the proceedings and, as a result, that Tigue was improperly denied the assistance of counsel at that proceeding. Alternatively, the Commonwealth argues that Tigue had sufficient assistance of counsel and, even if he did not, the only remedy available is an evi-dentiary hearing, not reversal of his conviction and sentence.
Whether a motion to withdraw a plea is a “critical stage” is an issue of first impression for this Court. This Court concludes that a pre-judgment proceeding at which a defendant seeks to withdraw his guilty plea is a critical stage of the proceedings at which he is entitled to the assistance of counsel. This Court also concludes that Tigue’s right to counsel was violated when his counsel refused to help him seek to withdraw his plea and the trial court refused to consider his pro se request (and appoint him counsel). Finally, the Court concludes that reversal of the conviction in such a situation is the wrong remedy.
1. A request to withdraw a guilty plea is a critical stage of the criminal proceeding at which the right to counsel attaches.
As a preliminary matter, we must address Tigue’s argument that the Com*383monwealth cannot challenge the Court of Appeals’ conclusion that a motion to withdraw a guilty plea is a critical stage of the proceedings because it did not explicitly include this exact issue in its motion for discretionary review. We must disagree with Tigue. Each of the questions of law presented by the Commonwealth in its motion for discretionary review were preceded by the conditional clause, “If a motion to withdraw a guilty plea is a critical stage of the proceedings.” That is sufficient to preserve this issue for our review. Even absent such language, reaching the other issues raised by the Commonwealth necessarily requires first affirming the Court of Appeals’ holding, that a motion to withdraw a guilty plea is a critical stage.
Turning to the critical-stage question, it almost goes without saying that the Sixth Amendment, as extended to the states by the Due Process Clause of the Fourteenth Amendment, guarantees all criminal defendants the right to counsel. See U.S. Const, amend. VI; Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Defendants also have a right to counsel under the Kentucky Constitution. Ky. Const § 11. A criminal defendant’s right to counsel “is needed to protect the fundamental right to a fair trial,” Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and, therefore, entitles the accused to “assistance] by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.” Id. at 685,104 S.Ct. 2052. “[T]he right to counsel is the right to effective assistance of counsel.” Id. at 686, 104 5.Ct. 2052.
A criminal defendant has a right to assistance of counsel not only at the actual trial, but at every “critical stage” of the criminal proceedings. E.g., Henderson v. Commonwealth, 396 S.W.2d 313, 314 (Ky. 1965). Because Tigue claims he was denied counsel at a critical stage when his counsel would not assist him in seeking withdrawal of his plea, we must first determine whether the presentation of a prejudgment6 motion to withdraw a guilty plea is a critical stage of criminal proceedings. In other words, is a criminal defendant entitled to assistance of counsel to request withdrawal of a guilty plea before final judgment has been entered? For the reasons discussed below, this Court’s answer is yes.
As a general matter, we note that there exists no precise and comprehensive definition of what constitutes a “critical stage.” The United States Supreme Court has defined the concept in numerous ways over the years, including proceedings when “[a]vailable defenses may be irretrievably lost,' if not then and there asserted,” Hamilton v. Alabama, 368 U.S. 52, 53, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); “where rights are preserved or lost,” White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); when counsel’s assistance is “necessary to mount a meaningful ‘defence,’ ” United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); where “potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice,” id. at 227, 87 S.Ct. 1926; and when it holds “significant consequences for the accused,” Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843,152 L.Ed.2d 914 (2002).
*384Both the Kentucky courts and the federal courts have long recognized that both sentencing and guilty-plea proceedings are critical stages during which the right to counsel attaches. See Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Iowa v. Tovar, 541 U.S. 77,124 S.Ct. 1379, 158 L.Ed.2d 209 (2004); Stone v. Commonwealth, 217 S.W.3d 233, 239 (Ky.2007) (“[P]lea negotiations, guilty plea hearings, and sentencing hearings are all ‘critical stages’ at which the right to counsel attaches.” (quoting King v. Bobby, 433 F.3d 483, 490 (6th Cir.2006))). It is axiomatic that “[a] guilty plea ... is an event of signal significance in a court proceeding.” Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Because a valid guilty plea forecloses the very right to a trial, it is not hyperbole to say that a defendant’s guilty plea might in fact be the most critical stage of his criminal proceeding. See United States v. Akins, 276 F.3d 1141, 1147 (9th Cir.2002) (“Nowhere is counsel more important than at a plea proceeding.”).
And when the validity of a plea is called into question, “a plea withdrawal hearing is vital to ensuring the integrity of the process by which guilt may ultimately be determined.” United States v. Davis, 239 F.3d 283, 286 (2d Cir. 2001). We see little reason to distinguish the “criticalness” of procedures employed on the front end in entering the guilty plea from that of those on the back end of the plea when the validity of the plea is called into question before final sentencing. At both stages, when a defendant enters a guilty plea and when he seeks to withdraw the plea, the validity of the plea is at issue. Thus, federal courts have generally concluded that “[a] plea withdrawal hearing is a ‘critical stage’ in the criminal proceeding.” United States v. Sanchez-Barreto, 93 F.3d 17, 20 (1st Cir.1996).
We agree and thus hold that a motion to withdraw a guilty plea made before entry of the final judgment of conviction and sentence is a “critical stage” of the criminal proceedings to which the right to counsel attaches.
2. Tigue was denied assistance of conflict-free counsel during his motion to withdraw the guilty plea.
Having determined that a motion to withdraw a guilty plea is a critical stage, we now turn to the question whether Tigue was denied assistance of counsel when he made his pro se motion to withdraw his ,plea. Fundamentally, this is a claim of ineffective assistance of counsel because, after all, no assistance is necessarily ineffective assistance.
In the vast majority of cases, to succeed on a claim of ineffectiveness of counsel, a defendant must show: (1) deficient representation by counsel, and (2) resulting prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But some circumstances are so inherently prejudicial that they give rise to a per se violation of the right to counsel without the need to prove actual prejudice. See Wright v. Van Patten, 552 U.S. 120, 124, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (“[A] Sixth Amendment violation may be found “without inquiring into counsel’s actual performance or requiring the defendant to show the effect it had on the trial,’ when ‘circumstances [exist] that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.’ ” (alteration in original) (citations omitted)). In particular, the United States Supreme Court has identified circumstances where “although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective as*385sistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” United States v. Cronic, 466 U.S. 648, 659-60, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Relevant to this case, prejudice may be presumed, and a per se Sixth Amendment violation may thus be found, when there has been a “complete denial of counsel ... at a critical stage” of the criminal proceeding, id. at 659, 104 S.Ct. 2039, or “when counsel is burdened by an actual conflict of interest,” Smith v. Robbins, 528 U.S. 259, 287, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (quoting Strickland, 466 U.S. at 692, 104 S.Ct. 2052). We conclude both that Tigue suffered from a complete denial of counsel and that his counsel had an actual conflict of interest when the request to withdraw the plea was finally made.
As to the complete denial of counsel, the Commonwealth notes that Tigue’s trial counsel was present at the sentencing hearing where he asked to withdraw his guilty plea. While it goes without saying that an attorney’s actual physical absence at a critical stage constitutes denial of counsel, e.g., Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), it is also true that a complete denial of counsel may occur when, despite being physically present at the critical stage, counsel is prevented from providing assistance to the accused, see, e.g., Geders v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (holding a trial court’s order preventing the defendant from consulting with counsel about anything during overnight recess constituted denial of counsel); Herring v. New York, 422 U.S. 853, 859-63, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (holding that defense counsel being denied an opportunity to present a closing argument constituted de: nial of counsel). In essence, a complete denial of counsel occurs in one of two situations: “when counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n.25, 104 S.Ct. 2039.
Of course, neither of these situations is what Tigue encountered. His trial counsel was physically present, and no court order or other action barred his • counsel from assisting him in moving to withdraw his guilty plea. Instead, his trial counsel, apparently believing the plea to have been in his best interest, declined to pursue the matter on Tigue’s behalf.
But we believe that counsel’s refusal to assist a client, at least in some circumstances, has the same effect — a complete denial of counsel — as counsel’s physical absence or being prevented from assisting. Of course, many tactical and strategic decisions in the course of trial and appeal belong solely to counsel, see Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (“[T]he lawyer has — and must have — full authority to manage the conduct of the trial.”), unless a defendant has invoked his right to proceed pro se (or, as allowed under Kentucky law, the right to hybrid representation). Thus, for example, a defendant is bound by his counsel’s ultimately backfiring decision to try to use a surprise witness at trial, cf. id. at 410-11, 108 S.Ct. 646, and may not force his lawyer “to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points,” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
At the same time, many decisions are personal to the defendant and can only be made by him. In fact, the Supreme Court has gone so far as to say that “the accused has the ultimate authority to make certain fundamental decisions re*386garding the case.” Id. These personal decisions include “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Id.
Just as the decision whether to enter a guilty plea is personal to the defendant, so too is the decision whether to ask to withdraw such a plea. See United States v. Davis, 239 F.3d 283, 286 (2d Cir.2001) (“It cannot be gainsaid that a defendant’s guilty plea is the most critical stage of the proceeding as it forecloses his very right to a trial. Consequently, in the face of an allegedly involuntary plea, a plea withdrawal hearing is vital to ensuring the integrity of the process by which guilt may ultimately be determined.”). Implicit in the requirement that counsel defer to the defendant’s decision to enter the plea is “the requirement that counsel abide by a client’s determination, after a plea of guilty has been entered, to seek its withdrawal.” State v. Barlow, 419 NJ.Super. 527, 17 A.3d 843, 848 (App.Div.2011). The decision to seek to withdraw a guilty plea is not merely trial strategy, and cannot be made by counsel. If a defendant has entered a guilty plea and, before entry of final judgment, desires to seek to withdraw that plea, whether because it was allegedly entered in error, under duress, or other reason, he is entitled to the assistance of counsel in making such a request. See Davis, 239 F.3d at 286 (“Given the occasionally complex standards governing plea withdrawals ..., it would be unreasonable to expect a criminal defendant to navigate this area of law without the competent advice of counsel.” (citation omitted)).
Applying this rule to the facts in this case, we agree with the Court of Appeals that Tigue was, in effect, completely denied counsel during his efforts to withdraw his plea despite Lundy’s nominal presence at the sentencing hearing. Immediately after entering the guilty plea, Tigue sought his trial counsel’s assistance to withdraw the plea, but his attempts to contact counsel during the three weeks between the plea and sentencing hearing went unanswered. And the video of the sentencing hearing demonstrates that Lundy merely stood to the side during the plea withdrawal discussion and did not speak a word in Tigue’s favor or otherwise offer his counsel or assistance. To stand silent and refuse to act on a decision that is personal to the defendant is no different than not being present at all. It is a complete denial of counsel.
It is no answer, as the trial court believed, that Tigue’s request could not even be entertained because it was not presented in a formal, written motion. To be sure, as a general matter, we do not condone the motion practice employed here. But after reviewing the video recording of the sentencing hearing, as well as the contents of the letters sent to the court, we are satisfied that Tigue’s pro se request for permission to withdraw his guilty plea constituted a valid motion.
Our Rules of Criminal Procedure do not require all requests for relief to be made in writing and filed with the court in order to be considered valid motions. Though motions should ordinarily “be in writing,” that requirement is not applied to motions “made during a hearing or trial.” RCr 8.14. Nor do our rules contain any specific requirements for • bringing a motion to withdraw a plea of guilty in particular. See RCr 8.10. Rather, whether oral or written, a motion'is valid if it “state[s] with particularity the grounds” supporting the party’s application to the court and “set[s] forth the relief or order sought.” RCr 8.14. As to the latter requirement, it should go without saying that Tigue’s clear and unambiguous request to be allowed to *387withdraw his guilty plea sufficiently set forth the relief being sought.
With respect to the particularity requirement, the grounds asserted by Tigue at the sentencing hearing in support of his claim that the plea was not voluntary were that he had been “threatened” and that his counsel “never showed any interest in defending [him]” (i.e., ineffective assistance). While it may be questioned whether these statements taken alone were sufficiently particular, there is no question that the particularity requirement was satisfied here when the orally asserted grounds are considered in tandem with the letters he and his family sent to the court. The letters contained quite detailed accounts of the alleged misconduct by counsel, and certainly provided fair notice of Tigue’s claims for relief. See Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky.1983) (“Pro se pleadings are not required to meet the standard ... applied to legal counsel” and are sufficient if they “give at least fair notice of the claim for relief.”); see also United States v. Joslin, 434 F.2d 526 (D.C.Cir.1970) (treating letters to the court as a pro se motion to withdraw a guilty plea). Thus, Tigue’s request was sufficient to constitute a motion to withdraw the guilty plea.
Furthermore, because Tigue’s motion raised allegations that the plea was involuntary, the trial court was required to assess the validity of the plea before proceeding to sentencing and entry of final judgment. While the decision whether to-grant a request to withdraw a voluntary guilty plea rests in the discretion of the trial court, “[i]f the plea was involuntary, the motion to withdraw it must be granted.” Rodriguez v. Commonwealth, 87 S.W.3d 8, 10 (Ky.2002). And because determining whether a plea was voluntarily entered requires “[evaluating the totality of the circumstances surrounding the guilty plea [which] is an inherently factual inquiry,” Bronk v. Commonwealth, 58 S.W.3d 482, 487 (Ky.2001), the defendant is generally entitled to an evidentiary hearing when it is alleged that the plea was entered involuntarily, Edmonds v. Commonwealth, 189 S.W.3d 558, 566 (Ky. 2006); see also Williams v. Commonwealth, 229 S.W.3d 49, 51 (Ky.2007).
Moreover, Tigue’s trial counsel had a conflict of interest when the request to withdraw the guilty plea was finally made. Tigue’s primary argument in support of his motion to withdraw his plea involved allegations that his attorneys threatened him and refused to prepare a defense to force him into entering the plea. When a “defendant ma[kes] a claim of coercion during his plea withdrawal hearing ... his accusation placets] his attorney in the position of having to defend himself, and potentially to contradict [the defendant], in open court.” Davis, 239 F.3d at 287. This moves beyond a generic claim of coercion and shows an actual conflict of interest. Id. This is so even if counsel stands mute and does not contradict the defendant. Id. (“Counsel’s statements at the hearing did not directly contradict Davis, but neither did they support him. Defense counsel’s silence at this stage of the proceedings illustrates his actual conflict.”). Thus, to the extent Lundy was present at the sentencing hearing, any continued representation during the plea withdrawal motion created an actual conflict of interest adversely affecting his performance.
Worse still, unlike the counsel in Davis who said nothing in the face of his client’s allegations but still had a conflict of interest, Lundy actually spoke up. ’ In fact, the only time Lundy spoke at all when Tigue brought up his request to withdraw the plea was when he responded to a question from the judge and confirmed that he *388thought the evidence against his client was “rather overwhelming” and that the recommendation to take the plea had been discussed with Tigue and his family on numerous occasions. These statements, albeit in response to the judge’s questioning, weighed against and undermined Tigue’s explicitly stated position. “At that point, the attorney had an actual conflict of interest: to argue in favor of his client’s motion would require admitting serious ethical violations and possibly subject him to liability for malpractice; on the other hand, ‘[a]ny contention by counsel that defendant’s allegations were not true would ... contradict his client.’ ” Lopez v. Scully, 58 F.3d 38, 41 (2d Cir.1995) (quoting United, States v. Ellison, 798 F.2d 1102, 1107 (7th Cir.1986) (alteration and omission in original)).7 By noting that the evidence was rather overwhelming and justifying the plea by referring to the many discussions with Tigue and his family, “the attorney put his own interests ahead of his client’s by denying the truth of [Tigue’s] allegations and thereby attacking his own client’s credibility.” Id. This created an actual conflict of interest. Id; see also Barlow, 17 A.3d at 848 (holding “that defendant was deprived of effective assistance of counsel as the result of counsel’s undermining of defendant’s assertions of innocence in connection with his application to withdraw his plea.”). As discussed above, such an actual conflict of interest is a per se Sixth Amendment violation. Smith, 528 U.S. at 287, 120 S.Ct. 746.
Because Lundy refused to assist Tigue in moving to withdraw the guilty plea, he may as well not have been present. This constituted a complete denial of counsel to Tigue when he made the request to withdraw his plea. Additionally, given the na.ture of Tigue’s claims and the fact that Lundy spoke against those claims, Lundy was “burdened by an actual conflict of interest,” Strickland, 466 U.S. at 692, 104 S.Ct. 2052, and Tigue was therefore “constructive[ly] deni[ed] assistance of counsel altogether,” id. during his motion to withdraw his plea. Because we have determined that a pre-sentencing plea-withdrawal motion is a “critical stage” of the criminal proceedings, this resulted in a per se violation of Tigue’s right to counsel under the Sixth Amendment of the United States Constitution and Section Eleven of the Kentucky Constitution. •
3. Tigue’s remedy is the vacating of the judgment and remand for further proceedings as may be necessary, not reversal of his underlying conviction or remand for mandatory evidentiary hearing.
Having determined that the Court of Appeals was correct in finding a viola*389tion of Tigue’s right to counsel, we must now consider whether reversing the judgment of conviction and sentence and remanding for a “new trial” was the appropriate remedy in this case. As noted above, the Commonwealth claims that Ti-gue’s remedy is limited to an evidentiary hearing on a motion to -withdraw his guilty plea, and that reversal of his conviction and sentence is too drastic of a remedy. Although this Court agrees that Tigue has not yet shown entitlement to a new trial under this claim, it nevertheless concludes that the trial court’s judgment of conviction and sentence entered after Tigue asked to be allowed to withdraw his guilty plea must be vacated. At the same time, however, this Court cannot, as requested by the Commonwealth, order that an evi-dentiary hearing take place.
As discussed above, the refusal of Tigue’s counsel to assist him in seeking to withdraw his guilty plea functioned as a complete denial of counsel at a critical stage of the proceedings, which “is a per se Sixth Amendment violation.” Stone v. Commonwealth, 217 S.W.3d 233,- 238 (Ky. 2007) (quoting Van v. Jones, 475 F.3d 292, 311-12 (6th Cir.2007)). The remedy for such a violation, however, is not complete, reversal and remand for a new trial in every case. Although a per se Sixth Amendment violation is not subject to harmless-error analysis, the remedy has been described as “reversal of a conviction, a sentence, or both, as applicable.” Id. (quoting Van, 475 F.3d at 311-12) (emphasis added).
We read this as meaning that the remedy is reversal of whatever judgment or order is tainted by the lack of counsel. The lack of counsel can only have prospective effect. Thus, if there is an absence of counsel before the conviction, then the conviction is reversed. But if the absence of counsel comes after the conviction, but before sentencing, then only the sentence is vacated. In the latter scenario, there is no taint on the pre-existing conviction.
In this case, Tigue’s complete denial of counsel occurred after his guilty plea. But “[a] plea of guilty ... is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” Kercheval v. United States, 274 U.S. 220, 223,' 47 S.Ct. 582, 71 L.Ed. 1009 (1927); see also Cook v. Commonwealth, 129 S.W.3d 351, 364 (Ky.2004) (“The word [conviction] generally means the ascertainment of defendant’s guilt by some legal mode and an adjudication that the accused is guilty. This may be accomplished by ... a plea of guilty or a verdict which ascertains and publishes the fact of guilt.” (quoting Commonwealth v. Reynolds, 365 S.W.2d 853, 854 (Ky.1963) (brackets in original)). Because the denial of counsel caused by Tigue’s counsel’s refusal to assist him in trying to withdraw his guilty plea occurred after entry of that plea, it can have no direct effect on that plea.
Instead, the denial of counsel tainted only those official decisions coming after it. These consist primarily of the “Judgment and Sentence Pursuant to Guilty Plea” entered by the trial court. Tigue’s guilty .plea, if not withdrawn, can still have legal effect. It is a legal conviction from which judgment can be pronounced and sentence can be imposed. Thus, to the extent that the Court of Appeals reversed Tigue’s conviction and remanded for. a new trial because of trial counsel’s failure to assist in seeking to withdraw the plea, it erred by granting him too much relief.
The question, then, is whether the Commonwealth is correct that the proper remedy is remand for an evidentiary hearing *390on Tigue’s motion to withdraw his guilty plea. We cannot ignore that all of this trouble stems from Tigue’s attempt to withdraw his guilty plea, which if successful'would have nullified the legal effect of the plea. See Kercheval, 274 U.S. at 224, 47 S.Ct. 582 (“The effect of the court’s order permitting the withdrawal was to adjudge that the plea of guilty be held for naught.”); Meece v. Commonwealth, 348 S.W.3d 627, 654 (Ky.2011). Indeed, this is the remedy applied by most other courts that have found a Sixth Amendment violation in similar circumstances. These courts have remanded for appointment of counsel to help with the motion to withdraw the plea and to hold a hearing where counsel’s pre-plea performance and alleged coercion would be addressed. See, e.g., Fortson v. State, 272 Ga. 457, 532 S.E.2d 102, 105 n.3 (2000); Searcy v. State, 971 So.2d 1008, 1012 (Fla. Dist. Ct.App. 2008); State v. Obley, 19 Neb.App. 26, 798 N.W.2d 151,158 (2011).
But this goes too far to the extent that it requires a hearing on remand. The effect of this error is limited. All it requires is for this Court to rewind this matter to the point in time when Tigue had already entered his plea but before he was sentenced. A defendant in such a position may again seek to withdraw his guilty plea. And if he does, he is entitled to the assistance of counsel (other than the trial counsel he accuses of having acted ineffectively) and to be heard on his underlying claims. But such a defendant might not again seek to withdraw his plea. He could, for example, be enticed by the Commonwealth to leave his plea in place by a recommendation of a lesser sentence or a favorable parole recommendation.
Thus, we think mandating a hearing on remand is inappropriate. Instead, the appropriate remedy is to vacate the judgment but not, at this point, the guilty plea, and to remand for further proceedings as may be required, depending on the action of the defendant.
This is the minimum relief that Tigue is entitled to, based on the foregoing analysis. But as noted above, Tigue has raised other claims, such as his underlying claim that his counsel were ineffective because they did not adequately investigate his possible defenses and that he was coerced into entering his guilty plea. The Court of Appeals never reached these claims because it reversed Tigue’s conviction and remanded for a new trial on the plea-withdrawal issue discussed above.
Those other issues are again live and no longer moot because this Court is granting lesser relief with respect to the denial of counsel at the sentencing hearing than he might receive if he is successful on his other claims. This leaves two options for this Court going forward: remand to the Court of Appeals to decide the issues left unaddressed before, or go ahead and decide the other issues to the extent necessary.
Often, remand 'in such a case is the better course of action. Except in direct appeals of criminal cases with sentences of twenty years or more and a few other narrow types of case, this Court is not a court of direct review. But this case is different than the average discretionary appeal where we disagree with the Court of Appeals but have issues still to be ye-solved. Here, we are disagreeing only as to the degree of relief the defendant is entitled to. Tigue’s other claims, if successful, would entitle him to greater relief — reversal of his conviction (the guilty plea) and remand for a new trial — than this Court is granting on the issue actually addressed by the Court of Appeals. If we remand for consideration of the other issues, we create the danger of seemingly inconsistent results, since we would have *391reversed only the trial court’s judgment and left intact the guilty plea, whereas a Court of Appeals ruling in Tigue’s favor would vacate the guilty plea. Moreover, the full case with all its issues is already at this Court, discretionary review having been granted to both sides, and judicial economy favors swift resolution of the full appeal. For those reasons, we will go ahead and address Tigue’s other claims to the extent necessary.
B. Tigue received ineffective assistance of counsel that led to his entering a plea of guilty.
Tigue’s primary other claim, and the only one that must be addressed, is that his trial counsel were ineffective because they failed to investigate the charges against him and possible defenses he might raise. He claims that this conduct, really omissions, along with pressure from his counsel led him to enter his guilty plea.8
As noted above, to succeed in a standard claim of ineffectiveness of counsel, a defendant must show (1) deficient representation by counsel and (2) resulting prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This “test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill noted that “[i]n the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ], and McMann v. Richardson, [397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)].” Hill, 474 U.S. at 58-59, 106 S.Ct. 366. Under those cases, the volun-tariness of the plea depends on whether counsel’s advice “was within the range of competence demanded of attorneys in criminal eases,” McMann, 397 U.S. at 771, 90 S.Ct. 1441, and a defendant who pleads guilty upon the advice of counsel “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann,” Tollett, 411 U.S. at 267, 93 S.Ct. 1602.
The prejudice prong, when addressing guilty pleas, “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. 366. “In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
The Court further elucidated that “[i]n many guilty plea cases, the ‘prejudice’ in*392quiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial.” Id. In «addressing a scenario like Tigue’s, “where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence,” id. the Court stated that “whether the error ... causjed] him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea,” id. and that “[t]his assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial,” id. The Court also addressed the failure to advise the defendant about potential defenses, like the possible alternative-perpetrator claim in this case, - stating “the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would, have succeeded at trial.” Id. In other words, “to obtain relief [on an ineffective assistance claim] a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky.2012) (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)) (alteration in original).
Turning to the facts of this case, it is worth noting that the trial judge, though ultimately denying the claim, stated: “This case raises some troubling issues, it just flat out does.... Because I know I sat right here and watched it all, and I had a strong sense that Mr. Tigue was not being well attended by his attorneys.” And Ti-gue testified that the “straw that broke the camel’s back” was Lundy telling him in the hallway of the courthouse the morning of his plea hearing that he “wasn’t going to put up a defense if [Tigue] took it to trial.” Nevertheless, the trial court denied the 11.42 motion, concluding that defense counsel acted reasonably in its investigation, or lack of investigation, of the charges against Tigue (specifically, in not investigating Danny Smith’s purported role in the murder).9 The court found that defense counsel had been faced “with a client who had confessed to murder ..., a client who was uncooperative and untruthful with his own attorneys, and a client against whom the other evidence of guilt was overwhelming.” The trial court further concluded that Tigue had not satisfied the prejudice prong of Strickland, finding that the evidence which could have been discovered through investigation by defense counsel would not have “affected [Tigue]’s trial in any way.” Finally, the trial court concluded that the plea was knowingly, voluntarily, and intelligently entered. In so ruling, the judge relied upon his recollection and review of the plea colloquy, his findings that Tigue possessed above-average intelligence and had previous experience in the' guilty plea process,10 and his rejection of Tigue’s claim that his defense team had coerced and manipulated him into pleading guilty.
*393First, we find no abuse of discretion to the extent the trial court found Tigue had not shown his defense team’s pressure tactics employed to convince him to accept the plea, at least standing alone, constituted traditional coercion that rendered his plea involuntary. No unfilled promises were made to Tigue, nor was he truly threatened with physical harm or otherwise’under such duress to have overborne his will in deciding to plead. See Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Adams v. Tuggle, 300 Ky. 751, 189 S.W.2d 601 (1945). That said, the pressure tactics used to convince Tigue to plead guilty are nevertheless relevant to our assessment of the totality of the circumstances surrounding the plea as we evaluate whether defense counsel’s pre-trial performance was deficient so as to render the guilty plea invalid.
In addition to alleging coercion, Tigue further claims that counsel’s failure to adequately investigate the charges against him — in particular, the failure to investigate Danny Smith’s alleged role in Bertha Bradshaw’s murder — and prepare for the guilt phase of his trial was ineffective assistance rendering his guilty plea invalid.11 And Tigue points to several pieces of evidence to support his claim that his trial counsel’s deficient investigation and preparation for trial rendered his plea invalid.'
Most notable was the testimony of Charles Griffin, who was one of Bradshaw’s neighbors. In particular, Griffin testified at the 11.42 hearing that he heard a gunshot in the direction of the Bradshaw residence on the morning her body was discovered (by Griffin’s wife). He heard the gunshot approximately two. hours before the time that another neighbor witnessed Tigue’s truck parked in the driveway. And he testified that he saw an individual he recognized as Danny Smith standing on the Bradshaws’ property only a couple minutes after hearing the gunshot. When questioned about his failure to provide this information to police, Griffin explained that he initially failed to tell police what he had seen because he had been focused on the mental and emotional state of his wife after she had discovéred Bradshaw’s body, and that later he had not seen any reason to provide this information to the police because he had heard that Tigue confessed. Nobody from Ti-gue’s defense team had interviewed Griffin (or, to his knowledge, any of his neighbors) during the ten months Tigue was in jail before pleading guilty. Griffin’s testimony was first brought to light during the 11.42 evidentiary hearing in 2008.
Tigue also emphasizes his counsel’s recommendation to enter the guilty plea before the forensic lab testing of evidence found in the Bradshaw residence was completed. Of particular significance are clothing fibers found in the splintered wood of the broken kitchen door, which were believed to have come from the flannel shirt Tigue had been wearing when he broke into the house the morning of the murder. The lab results proved, however, *394that Tigue’s shirt was not the source of these fibers, thus supporting his claim that someone else (possibly Danny Smith) had actually broken into the house and killed Bertha Bradshaw before Tigue burglarized the house. And other evidence found at the scene, such as various human hairs, ultimately proved to be inconclusive and' thus were at least not inculpatory.
Not only did Tigue’s trial counsel fail to ever obtain the lab results, they clearly believed that this evidence would harm Tigue. Thus, at the 11.42 hearing, in explaining their pre-plea conduct to not investigate and to urge a guilty plea, they claimed that all the evidence was against him. Yet the lab results were only discovered by Tigue’s appellate counsel after the 11.42 hearing (and were presented as one of the grounds for relief in the Civil Rule 60.02 motion that was later added to the appeal).
While the duty to investigate is not absolute, a less-than-complete investigation may be supported only by a reasoned and deliberate determination that further investigation is not warranted. “In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. And to be sure, a reasonable investigation need not be “an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct,” but rather “must be reasonable under all the circumstances.” Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky.2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009).
With this in mind, our review of the record makes clear that Tigue’s counsel’s investigation was deficient. Informing our decision here is Bowling v. Commonwealth, 981 S.W.2d 545 (Ky.1998), the facts of which were similar to yet readily distinguishable from this case. The Court in Bowling rejected several claims of ineffective assistance of counsel, including that trial counsel was ineffective for failing to investigate several other people who allegedly had a motive to commit the charged murders. The Court held that the alleged failure to investigate did not constitute ineffective assistance because the argument was based only on “vague rumors and unsupported claims,” id. at 550, and, in any event, “the mere existence of other potential suspects could do nothing to diminish the impact of the Commonwealth’s overwhelming proof against Appellant,” id.
The Court added that the claim was “particularly offensive when Appellant allege^] to know the identity of the actual killer yet continue[d] to withhold the information.” Id. In addition, the Court in Bowling also found no ineffective assistance of counsel in failing to locate a witness to the shooting who had provided a description of the shooter that did not match the defendant’s appearance because the claim was refuted by the record, which demonstrated that defense counsel had in fact “made extraordinary efforts to locate [the witness], and even requested a continuance until he could be found.” Id.
The facts here differ from those in Bowling in several respects. First, Tigue claims that his counsel was ineffective in failing to investigate, in particular, Danny Smith’s involvement in the murder, rather than some unidentified other person or people who might have had a motive to kill Bertha Bradshaw. And while Hudson testified that Tigue never specifically identified Smith as the true killer to her (and *395had been otherwise uncooperative),12 she admitted to having been aware of the fact that he had initially told police that Smith had murdered Bradshaw. So even assuming Tigue had refused to name the alleged killer while also maintaining his innocence and claiming someone else did it, the reasonable inference based on even cursory investigation would be that Smith was that person.
And the reasonable course would have been to investigate his potential role in the murder. “[A]n attorney cannot ignore the duty to make a reasonable investigation merely because his or her client is uncooperative or mislead[ing].” Slaughter v. Parker, 187 F.Supp.2d 755, 836 (W.D.Ky.2001), ajfd in part, rev’d in part on other grounds, 450 F.3d 224 (6th Cir. 2006).
But as Lowell Lundy and Cotha Hudson readily admitted, they chose not to investigate Tigue’s claims of innocence whatsoever because they believed his confession was true despite his assertions to the contrary. Moreover, it was even conceded that, at the time the guilty plea was entered, defense counsel had made no cognizable preparations for the guilt phase of the trial, despite having had almost ten months to do so.
Indeed, when asked if he had ever discussed with Tigue their plans for trial, Lundy replied, “There weren’t any plans for trial except to let him take the stand and testify if he wanted to.” And in response to a later question about investigative measures taken to prepare for the guilt phase, he could 'not recall having conducted any investigation outside of speaking with Tigue and his mother. Furthermore, although Lundy filed what he described as a “universal motion to suppress all evidence against [Tigue]” on January 12, 2004, the record demonstrates that it was withdrawn only two weeks later on January 27. But when asked about it, Lundy could not say whether he had ever discussed the possibility of suppression with Tigue or not. Similarly, Lundy could not recall the filing or withdrawal of the motion for psychological evaluation, nor could he remember ever discussing with Tigue or his family members Tigue’s mental or emotional state or the possibility of having him undergo an evaluation. And Lundy testified that he was not aware that Tigue had any history of mental illness, adding, “He may have been in an asylum. If he was, I don’t know it. He may have told me but I don’t recall it.”
On the other hand, Hudson could recall having interviewed one witness, the neighbor who placed Tigue’s truck at the scene. She also testified that she and Lundy had investigated Tigue’s medical and educational history for mitigation purposes. She confirmed that the first time she spoke with Tigue, he told her he had not killed Bradshaw but would not tell her who had. And she acknowledged that this was consistent with his initial statements to police identifying Danny Smith as the murderer. But Hudson admitted that she had never tried to corroborate Tigue’s version of events “since he wouldn’t provide us any information” and “was uncooperative and was sticking to the fact that he had lied to police.” Moreover, she testified that, on the date Tigue had entered his guilty plea, *396she had been in a different county for another case and while there, coincidentally enough, had begun “outlining what [they] would be doing for final prep for trial.” According to Hudson, she “was going to look into Danny Smith” but “hadn’t gotten that far into the case when [they] settled.” And not unlike the testimony of her co-counsel, Hudson could not remember their reason for withdrawing the motion for psychiatric evaluation, adding, “I believe he asked me to withdraw it.”
Finally, we find additional convincing proof of the deficiency of counsel’s pretrial performance in the answers provided by Hudson to a form filled out in conjunction with the Kentucky DPA Capital Litigation Persuasion Institute’s training workshop she attended in October 2008 in preparation for Tigue’s trial.13 Hudson’s disdain for Tigue and his family is apparent in her answers on this form, with her going so far as to state, “I hate my client.”14 Also clear is her steadfast refusal to acknowledge his claims of innocence or possible weaknesses in the Commonwealth’s evidence that might in fact have supported such claims.15
The clear implication of Hudson’s responses and non-responses is that she had no intention of making any significant investigation or preparation for the guilt phase o.f the trial. For example, the form asked about the “most important motions or evidentiary hearing or presentation issue you have” in the case. Her answer: “suppression of evidence.” We are strained to read anything but neglect in this answer given the obvious questions in this case about a likely other suspect, or alleged alternative perpetrator. More importantly, even though suppression of evidence was listed as the most important issue, Hudson and Lundy did not follow through on it.
As noted above, a motion to suppress Tigue’s confession and other evidence was eventually filed on January 12, 2004. But it is obvious from the record that Lundy did so reluctantly and only as a token concession to the dogged insistence of Ti-gue and his family. The motion was never argued or otherwise addressed before being withdrawn by Lundy only two weeks later. In any event, Hudson testified that she did not even remember the motion to suppress. We can think of few examples better encapsulating deficient pre-trial performance than determining that an issue is the most important one in a case, and then totally failing to pursue it.
In sum, defense counsel was prepared only to concede guilt and pursue their sole goal of avoiding a death sentence.16 And although brokering a plea *397deal to avoid a possible death sentence is certainly a reasonable strategy for a capital defense lawyer, it is unreasonable to do so while disregarding counsel’s duty to investigate and prepare for trial. See Quarles v. Commonwealth, 456 S.W.2d 693, 694 (Ky.1970) (“[A]n. attorney may, after making an adequate investigation, in good faith and in the exercise of reasonable judgment, advise his client to plead guilty.” (emphasis added)). And Tigue’s counsel’s outright refusal to consider pursuing any strategic goal other than avoidance of a possible death sentence through pleading guilty ran afoul of their “duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy.” Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (citing Strickland, 466 U.S. at 688,104 S.Ct. 2052).
To be sure, this Court fully appreciates the high degree of deference with which we must scrutinize counsel’s performance. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. We nevertheless conclude that Tigue has “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks omitted). When Tigue repeatedly asserted an alternative perpetrator theory explaining his alleged false confession that was at least plausible, and had already disclosed the identity of this person, albeit to police and not his counsel, his attorneys made an unreasonable decision not to investigate or otherwise attempt to verify the assertions based solely on their personal beliefs as to his guilt. In other words, it was objectively unreasonable for defense counsel in these circumstances to summarily concede their client’s guilt and dismiss out of hand his claim of innocence without. making any effort to investigate the legitimacy of that claim. Simply put, it is clear that defense counsel’s failure to investigate “resulted from inattention, not reasoned strategic judgment.” Wiggins v. Smith, 539 U.S. 510, 526, 123 S.Ct. 2527,. 156 L.Ed.2d 471 (2003).
We therefore conclude that counsel’s pre-trial performance was so deficient as to fall outside the range of professionally competent assistance. To hold otherwise would effectively sanction otherwise deficient and incompetent performance by trial counsel any time they take the prosecution’s “overwhelming” evidence — consisting of a questionable confession and then-untested, ultimately not inculpatory forensic evidence — at face value without any sort of adversarial testing. We cannot allow the presumption of innocence enjoyed by all accused to be so unceremoniously tossed aside by the very individuals tasked with zealously defending that presumption.
But that does not end our inquiry. We must next determine whether prejudice resulted from counsel’s deficient performance. And as we noted above, since this ineffective-assistance claim pertains to the validity of the guilty plea, the prejudice component of Strickland is satisfied if it is reasonably probable that Tigue would not have changed his plea to guilty, and instead would have insisted on going to trial, but for his counsel’s failure to investigate and prepare for the guilt phase of his trial. E.g., Bronk v. Commonwealth, 58. S.W.3d 482, 486-87 (Ky.2001).
*398This requires “convincing] the court that a decision to reject the plea bargain would have been rational under the circumstances.” Stiger v. Commonwealth, 381 S.W.3d 230, 237 (Ky.2012) (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473,176 L.Ed.2d 284 (2010)) (alteration in original).. As also noted above, this inquiry will often closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial.
Here, the record is replete with evidence from Tigue himself that he would not have pleaded guilty were it not for his counsel’s unreasonable performance. Specifically, it is undisputed that for ten months he obstinately refused to agree to plead guilty, desiring instead to have his guilt or innocence determined at a jury trial, where he believed “the truth would come out.”
It is also undisputed that he remained resolute in his resolve up until the morning of February 2, 2004. Even Hudson testified that she had completely expected to go to trial and that she was “shocked” to hear that Tigue had entered the guilty plea. That morning, after sitting in a holding cell at the courthouse for two hours, he eventually succumbed to the heavy-handed efforts of his defense team, who used members of his family as proxies. These efforts were employed for the exact purpose of overcoming his resistance.17 And such pressure tactics would have been of doubtful efficacy if not for his counsel’s clear failure to investigate and prepare for the guilt phase of trial. In fact, as we previously noted, the “straw that broke the camel’s back,” according to Tigue, was Lundy telling him in the hallway of the courthouse the morning of his plea hearing that he “wasn’t going to put up a defense if [Tigue] took it to trial.”
Even assuming Tigue was never expressly told that no investigations or other preparations for trial had been or would be undertaken on his behalf, his attorneys’ testimony effectively corroborated this sentiment when they conceded that, at the time he entered his guilty plea, they had not had any strategy for trial except to let’ him take the stand and tell the jury his story.
That fact clearly was not lost on Tigue or his family, all of whom testified that defense counsel’s refusal to investigate and prepare any kind of defense against the charges was their primary, if not only, motivation for assisting in convincing him to plead guilty.
And we cannot say that it would not have been rational for Tigue to insist on going to trial but for his counsel’s deficient performance. The evidence he managed to uncover with the assistance of appellate counsel and present at the 11.42 hearing years later makes clear that Tigue certainly had a feasible defense to the murder of Bertha Bradshaw, a defense that his attorneys’ ineffective assistance wholly prevented him from developing. And after actually having an opportunity to do so, the decision not to plead guilty and instead insist on going to trial would have been a rational one for Tigue. Thus, because we can say with reasonable certainty that, but for counsel’s deficient performance, Tigue would have insisted on going to trial, this Court is convinced that Tigue has satisfied the prejudice prong of Strickland.
Accordingly, we must conclude that the trial court erred in denying Tigue’s 11.42 *399motion and “acted erroneously in denying that appellant’s pleas were made involuntarily.” Bronk, 58 S.W.3d at 487. The totality of the circumstances clearly demonstrates that defense counsel’s performance was deficient in unreasonably failing to investigate and prepare for the guilt phase of trial, and that Tigue would not have decided to plead guilty but for counsel’s deficient performance. Because counsel’s ineffective assistance deprived him of a fair trial and “resulted [in] a breakdown in the adversary process that renders the [conviction and sentence] unreliable,” Strickland, 466 U.S. at 687, 104 S.Ct. 2052, the trial court’s refusal to vacate Tigue’s conviction was error.
III. Conclusion
For the foregoing reasons, the judgment of the Court of Appeals, which reversed Tigue’s conviction and sentence and remanded for a new trial, is affirmed. As a result, Tigue’s convictions and guilty plea are vacated, and this matter is remanded to the Bell Circuit Court for further proceedings as may be necessary.
All sitting. All concur.
. The use of the phrase "new trial” suggests that Tigue had already been tried once. Of course, he had not been tried because he entered a guilty plea before trial. The phrase is instead used to describe what happens upon reversing his conviction and vacating-his guilty plea: he gets a whole new proceeding at which the question of his guilt may be decided.
. Tigue’s defense team included Assistant Public Advocates Cotha Hudson and Lowell Lundy (who was later appointed as co-counsel to assist Hudson once the Commonwealth filed notice of its intention to seek the death penalty), DPA investigator Lisa Saylor (now Evans), and DPA mitigation specialist Robin Wilder.
. Tigue wrote several letters to DPA Eastern Regional Manager Roger Gibbs during his incarceration in the Bell County Detention Center. These letters show that Tigue had voiced complaints about his attorneys' performance and requested appointment of other counsel at least as early as September 2003 (Gibbs’s earliest reply to Tigue is dated September 18, 2003). Tigue complained, among other things, that his counsel had ignored his repeated requests to seek suppression of his incriminating statements without even considering the grounds he believed might warrant suppression. He also raised similar complaints about his mental and emotional condition and desire for psychiatric evaluation and treatment.
.According to the emergency room records, Tigue was admitted for in-patient psychiatric evaluation of possible major depression; he *380was discharged the next day with final diagnoses of adjustment disorder with depressed mood and what appears to be “possibly substance abuse” (though the handwriting is difficult to make out).
In contrast, according to members of Ti-gue's family, trial counsel was provided with many more medical records which purportedly documented his history of psychiatric diagnoses and treatment. They allegedly obtained the records on their own accord, purportedly in the face of complacency and neglect of counsel, and provided them specifically to use in support of the motion.
According to one letter signed by Theresa McVey (Tigue’s sister) and dated February 29, 2004, this consisted of 237 pages of records from Baptist Regional’s psychiatric facility mentioned above, 125 pages from Pineville Community Hospital, and 15 pages from physician, Dr. Jerty L. Woolum. For context, while the addressee’s name has been redacted and the identity of that individual cannot be gleaned from the content of the letter, it appears McVey wrote it in tandem with or supplemental to complaints of professional misconduct by Hudson and Lundy that she filed with the Kentucky Bar Association on February 26, 2004.
. While the appeal was still pending, Tigue filed, again pro se, a motion under Civil Rule 60.02 to vacate the order denying his previous motion to vacate and to vacate the judgment of conviction. The trial court denied the motion without holding another evidentiary hearing, and Tigue timely appealed that denial as well. Because they shared common *382issues and circumstances, the Court of Appeals consolidated the two appeals for purposes of making a decision on the merits. To the extent that they differed from those raised in his 11.42 motion, the issues raised by the pro se 60.02 motion were not reached by the Court of Appeals. Because the separate grounds for relief raised by the 60.02 motion to vacate are not germane to this Court’s resolution of Tigue’s appeal, we do not address them further.
. Our analysis and decision in this case is limited to pre-judgment motions, leaving for another day inquiry into whether a post-judgment plea withdrawal proceeding is a critical stage.
. We recognize that this creates a dilemma for trial counsel, who can either, undermine his client’s decision or agree with the client’s allegation of coercion. Neither of these is a viable option. The first, as described in this opinion, creates a conflict of interest between the lawyer and the client. And the latter option is barred because "it is unethical for counsel to assert his or her own ineffectiveness for a variety of reasons.” Humphrey v. Commonwealth, 962 S.W.2d 870, 872 (Ky. 1998). The dilemma is best solved by the trial court:
[I]n the face of a motion to withdraw a plea based on counsel’s misconduct, [trial] courts must determine whether the facts as alleged support a finding of a conflict. If they do not, there is no problem. If they do, the defendant may still waive his right to conflict-free counsel or his right to counsel altogether and proceed pro se; otherwise, the district court must provide the defendant with the effective assistance of conflict-free counsel for purposes of the plea withdrawal. Our frequent review of district courts’ actions in this circuit confirms that the appointment of new counsel in such situations is the usual practice.
United States v. Davis, 239 F.3d 283, 287-88 (2d Cir. 2001).
. It is worth noting that this claim differs from the claim that Tigue might be able to raise at the trial court if this matter were remanded there only on the plea-withdrawal issue addressed above, although both claims would stem from the same underlying facts— counsel’s pre-plea conduct. The claim he would be able to raise on remand to the trial court as laid out above would be a direct claim that his plea was invalid because it was unknowing and involuntary. The claim addressed here is an indirect claim, namely, that his counsel were ineffective in pre-trial investigation, which in turn led him to enter a plea that he would not otherwise have entered. This is a subtle distinction, but it is one we have maintained in our law, if only recently. See Leonard v. Commonwealth, 279 S.W.3d 151, 158 (Ky.2009) (distinguishing between direct claims of error and indirect or collateral claims of ineffective assistance of counsel, even when the claims are related). Part of the reason for the distinction is that different standards of review govern the two types of claims. Id.
. A statement by the judge at the conclusion of the August 6, 2008, hearing helps illuminate his reasoning behind finding reasonable performance by defense counsel. Specifically, after noting his concern "that Mr. Tigue was not being well attended by his attorneys,” the judge said:
But they also have reasons too. They get some cases that they see as mission impossible, and I think that was the situation here, Mr. Tigue. That’s why you didn't see a whole lot of trial preparation here because the last thing they wanted to do was take your case to trial.
. Tigue pleaded guilty to an unrelated burglary charge in 1999.
. As noted above, Tigue’s allegations essentially amount to a claim of ineffective assistance of counsel, i.e., that counsel’s allegedly deficient performance rendered the plea involuntary and invalid. The trial court, however, treated as standalone issues and conducted separate and distinct inquiries into the effectiveness of counsel, the alleged coercion by counsel, and the validity of the plea. But since Tigue alleged that defense counsel’s ineffectiveness in failing to investigate and prepare a defense for trial, in addition to coercion, caused his involuntary decision to plead guilty, the court should have evaluated the effectiveness of counsel’s performance as part of the totality of the circumstances surrounding the allegedly involuntary plea.
. The trial court found that Tigue had not cooperated with his defense team based, at least in part, on Hudson’s testimony. But there was conflicting testimony on this point. In particular, Tigue testified that he had provided Smith’s name to his attorneys and defense team, but had been rebuffed because he had already confessed. And, in fact, some of Hudson's own testimony implies she was at least aware of Smith's potential connection to the murder.
. The form was signed by Hudson and dated September 29, 2003.
. For example, question five asked Hudson to list the three "most SIGNIFICANT PROBLEMS with [her] case, from problems inside and outside courtroom, legal, factual, strategy personalities in case, etc.,” to which she answered, listing only two:
1) "his family”
2) "himself”
The seventeenth question asked Hudson to list "[t]he strongest emotion [she] ha[d] about this case,” to which she responded, "I hate my client.”
. For example, the ninth question asked her to list the three "most difficult areas [she was] experiencing with [her] client.” She answered:
1) "his denial"
2) “his lack of remorse”
3) "his inability to get serious”
Question ten asked her to list "[t]he hardest aspect of this case,” which she said was "overcoming [her] anger at the stupidity of this.”
. And even as early as September 29, 2003, defense counsel had only one final obstacle to overcome to achieve that goal, as illustrated by questions eleven and twenty-two:
*39711. What is your strategy to negotiate to a life sentence:
“we already have that offer”
[[Image here]]
22. Negotiation
[[Image here]]
B. Who most needs to be persuaded to achieve a negotiated plea? "client"
(Emphasis in original.)
. According to Tigue, at one point he requested that he be taken back to the jail to end their efforts at convincing him to change his mind. His request was reportedly refused, however, with the bailiff explaining that the driver ("Jimmy”) had left the courthouse. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283847/ | OPINION
KRAMER, JUDGE:
This appeal and cross-appeal are brought by K.W. (“mother”) and J.S. (“father”) from a Henderson Family Court order denying a Kentucky Rules of Civil Procedure (CR) 60.02 motion to set aside an agreed judgment of paternity. Having reviewed the record and applicable law, we affirm the order as to the judgment of paternity but reverse that portion of the *401order discontinuing child support, and remand for further proceedings.
Mother gave birth to twins on October 5, 2007. At that time, mother and father, who were not married, were residing together. Also living with the couple was their eldest child, who was born in 2002.
When the twins were about eighteen months old, father decided that he wanted to claim them as his dependents for income tax purposes. Mother and father went to the Henderson County Attorney’s office on April 15, 2009, and mother signed a complaint requesting an adjudication of paternity and support order. Father signed an accompanying notarized affidavit stating that he was the biological father of the twins. Mother and father both signed an agreed judgment of paternity, which stated that father did not want a DNA test, was waiving all rights to have a DNA test performed in the future, and that- no DNA test would be ordered in the future. The judgment declared him to be the father of the twins, but made no ruling as to child support at that time because father and mother were residing together and father was providing “in kind services.”
In early October 2009, father and mother separated. In December of that year, the County Attorney filed a motion to set child support for father. Although there is no child support order in the record, a support order was apparently entered on January 25, 2010, following an appearance by the parties before the court.1 Father did pay child support for some time, and was jailed at one point for failure to pay child support.
On August 6, 2013, father filed a CR 60.02 motion to set aside the paternity judgment, claiming that it was based upon a fraudulent representation by mother that he was the biological father of the twins.
At the hearing on the motion, mother stated that the twins’ biological father was a co-worker who was not “in the picture.” Mother testified that father suspected the twins were not his children at the time of their birth, and that she had confirmed to him that he was not the biological father before the entry of the paternity judgment. Photographs were introduced into evidence that purported to show that the twins are partly of Mexican descent, whereas father and mother are both Cau- - casian. According to mother, father agreed to the paternity judgment for tax purposes, fully aware that the twins were not his biological children. Mother testified that the twins call father “daddy” and think of him as their father.
Father testified that he did not know the true paternity of the twins at the time the paternity judgment was entered in 2009, and only became suspicious over time as he observed their dark skin, hair and eyes. He did admit that he has known since January 2010 that the twins were not his biological children, and that he confirmed this by administering a paternity test he purchased at a drugstore. When he was asked by the court why he waited for three years to file the CR 60.02 motion after this discovery, he explained that he did not know how to proceed and could not afford an attorney. He testified that he has only seen the twins a “handful” of times since he and mother separated, usually on the monthly occasions when he visits the older child, but acknowledged that the twins call him “daddy.”
Having heard the parties’ testimony, the family court found that there was evidence that father knew or should have been aware that he was not the twins’ biological *402father, that he benefited from being able to claim them on his taxes, that he had established a relationship with them and acted as their father and still saw them sporadically. The court concluded that there was no basis to set aside the paternity judgment because there was no fraud on mother’s part, and that father, by virtue of his own conduct, was equitably estopped from setting aside the judgment of paternity. The court also ruled, however, that it would be unjust to require father to continue to pay child support, and ordered that he was to have no future child support obligations from the date of entry of the order.
Mother filed an appeal, arguing that the trial court’s discontinuation of child support was an abuse of discretion and should be reversed. Father filed a cross-appeal, arguing that the paternity judgment must be set aside as it is inequitable. We will address the cross-appeal first, because reversal on that issue would render the child support issue moot.
The trial court’s denial of a motion made pursuant to CR 60.02 is reviewed for an abuse of discretion. The rule permits the court to relieve a party from a final judgment on the following grounds:
(a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken.
Because father made his CR 60.02 motion more than three years after entry of the paternity judgment, the trial court correctly held that he could not rely on grounds (a), (b), or (c) for relief. The court further held that father had not proved the essential elements of fraud to justify setting aside the order pursuant to subsection (d), as the court found no proof of the misrepresentation of a material fact or inducement, noting instead that father signed the agreed paternity judgment for his own tax advantage. Nor did the court find any reason of an extraordinary nature to justify relief under subsection (f).
In his cross-appeal, father argues that he is entitled to relief under subsection (d) because mother made the material misrepresentation to him that he was the biological father of the twins in order to induce him to agree to the paternity judgment. Substantial evidence, in the form of the parties’ testimony at trial, supports the trial court’s finding that father knew or should have known the twins were not his biological children, and that he only entered into the judgment in order to gain a tax benefit. Since it appears that both father and mother were complicit in the entry of the paternity order, this argument must fail.
Father further argues that the prospective application of the paternity judgment is not equitable, because it is now undisputed, based on mother’s testimony and the appearance of the children, that he is not the biological father of the children. Father relies on Crowder v. Commonwealth ex rel. Gregory, 745 S.W.2d 149 (Ky.App.1988), a case in which a default judgment was entered after the appellant *403failed to respond to a paternity complaint. Five years later, a blood test was performed which unequivocally excluded the appellant as the father of the child. The trial court nonetheless denied the appellant’s motion for relief from the paternity judgment pursuant to CR 60.02(e) and (f). A panel of this Court reversed on the grounds that it was no longer equitable for the judgment to have prospective application. The Court concluded that such a result was mandatory under KRS 406.111, which at that time provided that
If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the [blood] tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved aceordingly.[2]
The Court held that the use of the word “shall” in the statute left the trial court without discretion in the matter. Id. at '151. The opinion also stated that the continued application of the paternity judgment against the appellant was unacceptable for various reasons: for instance, the child would potentially have a legal claim to a part of the appellant’s estate and to his social security account to the disadvantage of his true children; the Commonwealth could never recoup public assistance paid to the child’s mother from the child’s true father; and that it was unfair to the child to decree a man to be his father who bore no relation to him. Id.
Since Crowder, however, this Court has held that the doctrine of equitable estoppel is applicable in paternity cases, with the result that a man who is not the biological father of a child can nevertheless be held to be the legal father on equitable grounds. S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky.App.2005). The doctrine is based on the theory that
[w]here one has, by a course of conduct, with a full knowledge of the facts with reference to a particular right or title, induced another, in reliance upon such course of conduct, to act to his detriment, he will not thereafter be permitted in equity to assume a position or assert a title inconsistent with such course of conduct, and if he does he will be estopped to thus take advantage of his own wrong.
Id. at 506.
The elements of estoppel
(1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts;
(2) the estopped party is aware of these ' facts; (3) these facts are unknown tp the other party; (4) the estopped party must act with the intention or expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment. .
Id.
There was substantial evidence in the form of mother’s testimony and the appearance of the twins themselves to support the determination that father was aware at the time he signed the paternity judgment that they were not his biological children, but that he chose to acknowledge them as such in order to gain a tax benefit. Moreover, he testified that he learned definitively that the twins were not his biological children in 2010, but waited over two years from that time to file the CR 60.02 motion. In that respect, the facts of this case are distinguishable from those in Wheat v. Commonwealth Cabinet for Health and Family Services, ex rel. C.P., *404217 S.W.3d 266 (Ky.App.2007). In that case, the appellant initially acknowledged paternity of the child and agreed to pay support. He never made the support payments, however. Twelve years later, DNA testing proved that the appellant was not the biological father. This Court held that he did not need to pay the accrued support because he had no relationship with the child whatsoever. Id. at 269. By contrast, in this case, father allowed the twins to continue thinking of him as their father, and to call him “daddy.” Under these circumstances, the trial court' did not abuse its discretion in applying the doctrine of equitable estoppel.
On appeal, mother argues that the trial court erred in relieving father of any further child support obligations. The only explanation given by the trial court for discontinuing child support is that mother admitted the children were not father’s biological children, and the court found that it would be unjust for him to continue to pay child support under these circumstances. He is nonetheless their legal father under the paternity judgment, and the children are statutorily entitled to support. “The father of a child which is or may be born out of wedlock is liable to the same extent as the father of a child born in wedlock, whether or not the child is born alive, for the reasonable expense of the mother’s pregnancy and confinement and for the education, necessary support and funeral expenses of the child.” KRS 406.011. Courts are permitted to deviate from the child support guidelines “where their application would be unjust or inappropriate.” KRS 403.211(2). In this case, the trial court found that father admitted paternity in order to gain a tax advantage. We fail to see the justice of continuing to recognize him as the twins’ legal father, while allowing him to avoid paying child support and thereby leaving the children without any means of paternal support whatsoever. “[A] trial court’s discretion is not unlimited. The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Dickens v. Dickens, 401 S.W.3d 489, 491 (Ky.App.2013). The trial court’s decision to discontinue child support was an abuse of discretion, and is consequently reversed.
The Henderson Family Court order is affirmed insofar as it denied father’s motion to set aside the agreed judgment of paternity. The decision to discontinue child support is reversed, and the matter is remanded for further proceedings to determine child support.
ALL CONCUR.
. From comments made at the hearing, it appears that the child support order was entered in a different family court case involving the couple’s older child.
. The current version of the statute states that testing creates a rebuttable presumption of paternity. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283860/ | MEMORANDUM OPINION
DAVID PURYEAR, Justice.
The State of Texas filed suit against Life Partners Holdings, Inc.; Life Partners, Inc.; Brian D. Pardo; and R. Scott Peden (cumulatively Life Partners) for allegedly engaging in fraudulent activities in connection with the sale of securities. The State also asserted that the following people had possession of money or assets belonging to Life Partners: Advance Trust & Life Escrow Services, LTA; Purchase Escrow Services, LLC; Pardo Family Holdings, Ltd.; Dr. Donald T. Cassidy; and American Stock Transfer & Trust Company.1 In its suit, the State sought, among other things, injunctive relief against Life Partners. The district court denied the relief requested by the State, and in its judgment, the district court determined that the State “failed to establish that the transactions at issue are securities under” the Texas Securities Act. The State appeals the district court’s judgment.
*621On appeal, the State argues that the products sold are securities under the Securities Act because they are investment contracts, notes, bonds, or other evidence of indebtedness. See Tex.Rev.Civ. Stat. art. 581-4(A) (defining “security”). In supporting the district court’s judgment, Life Partners contends that the evidence presented to the district court established that its products do not qualify as securities. Alternatively, Life Partners insists that its products are exempt from regulation under the Securities Act because they are contracts relating to insurance policies. See id. In addition, Life Partners contends that a contrary ruling by the district court would have been inconsistent with prior state and federal cases. Specifically, Life Partners refers to SEC v. Life Partners, Inc., 87 F.3d 536 (D.C.Cir.1996), and Griffitts v. Life Partners, Inc., No. 10—0—0027-CV, 2004 Tex.App. LEXIS 4844, 2004 WL 1178418 (Tex.App.-Waco May 26, 2004, no pet.) (mem.op.). Relatedly, Life Partners insists that a contrary ruling would also have violated the Full Faith and Credit Clause because the court in SEC v. Life Partners, Inc. had previously determined that the products offered by Life Partners were not securities. In addition, Life Partners urges that a ruling inconsistent with the cases mentioned above would have resulted in a deprivation of its property rights without due process of law because it has entered into thousands of contracts based on the holdings of those cases.
Recently, the Dallas Court of Appeals was asked to determine whether the life settlements offered by Life Partners were securities. See Arnold v. Life Partners, Inc., 416 S.W.3d 577 (Tex.App.-Dallas 2013, no pet. h.). In that case, Life Partners also argued that the issue had been settled by the eases listed above, but the court determined that “neither the D.C. Circuit nor the Waco Court of Appeals is binding authority on this court.” Id. at 585. Moreover, the court discussed how many courts from other states have determined that these types of products constitute securities and that more recent federal cases have disagreed with the holding in SEC v. Life Partners, Inc. Id. at 585 n. 3, 587. After summarizing relevant case law,.the court determined that the products offered by Life Partners are “investment contracts” and, therefore, “meet the definition of ‘security.-’ ” Id. at 588 (quoting Tex.Rev.Civ. Stat. art. 581-4(A)).
In addition, the court also disagreed with Life Partners’ suggestion that the products were excluded from regulation under the Securities Act provision that explains that the Act does not apply to insurance policies or.any contracts relating to insurance policies “ ‘issued by an insurance company subject to the supervision or control of the Board of Insurance Commissioners when the form of such policy or contract has been duly filed with the Board as now or hereafter required by law.’ ” Id. at 588 (quoting Tex.Rev.Civ. Stat. art. 581-4(A)). Essentially, the court concluded that the exclusion did not apply because Life Partners is not “subject to the supervision or control of the Board of Insurance Commissioners.” Id. at 588; see also Employers Reinsurance Corp. v. Threlkeld & Co. Ins. Agency, 152 S.W.3d 595, 599 (Tex.App.-Tyler 2003, pet. denied) (stating that selling products is not part of insurance business).
We agree with the conclusions reached by the Dallas Court and fully incorporate its analysis. Accordingly, we conclude that the life settlements offered by Life Partners are investment contracts and, therefore, qualify as securities subject to regulation under the Securities Act. Regarding Life Partners’ assertions that a conclusion that its products are securities *622would violate its due process rights arid is contrary to the Full Faith and Credit Clause, we have been unable to find any legal support for either of those propositions. This case considers whether Life Partners’ business practices constitute the sale of securities under Téxas law, and no binding determination on that matter has previously been made.
For all of these reasons, we sustain the State’s first issue on appeal. Accordingly, we reverse the judgment of the district court and remand this case for further proceedings consistent with this opinion.
. Advance Trust & Life Escrow Services, LTA, and Purchase Escrow Services, LLC filed a brief in this matter. In their brief, they explain that they were added to the lawsuit as relief defendants. SEC v. George, 426 F.3d 786, 798 (6th Cir.2005) (stating that relief defendant may be added to case for purpose of aiding recovery of relief but has no ownership interest in property that is subject of litigation). Further, they state that there was no evidence or finding that either of them "held or retained” any property of Life Partners. Accordingly, they contend that they are not proper parties to the suit and that the district court's judgment should be affirmed in their favor. Those assertions are better suited for the district court’s consideration on remand pursuant to this opinion. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283861/ | OPINION
Melissa Goodwin, Justice
We withdraw our opinion issued on October 8, 2014, and substitute this one in its place. We overrule appellants’ motion for rehearing.
This appeal is limited to facial challenges to the constitutionality of various Election Code provisions. See Tex. Elec. Code §§ 251.001, 253.003, 253.031, 253.037, 253.091, 253.094, 253.095, 253.101, 253.102, 253.103, 253.104, 253.131, 253.132, 273.081; Act of June 19, 1987, 70th Leg., R.S., ch. 899, § 1, 1987 Tex. Gen. Laws 2995, 3009 (former sections 253.062 and 253.097, repealed 2011). Facing cross-motions for summary judgment, the trial court ruled against appellants King Street Patriots (KSP), Catherine E'ngelbrecht, Bryan En-gelbrecht, and Diane Josephs, the parties facially challenging the constitutionality of the Election Code provisions. The trial court concluded that it did not have jurisdiction to consider some of appellants’ constitutional challenges and, as to the remaining challenges, the trial court upheld the constitutionality of the Election Code provisions at issue. For the reasons that follow, we affirm the trial court’s judgment.1
BACKGROUND
The Texas Democratic Party, Boyd Richie,2 in his capacity as Chairman of the Texas Democratic Party, John Warren, in his capacity as Democratic nominee for Dallas County Clerk, and Ann Bennett, in her capacity as the Democratic nominee for Harris County Clerk, 55th Judicial District (collectively “TDP”), brought suit against appellants seeking damages and injunctive relief based upon alleged Election Code violations. See Tex. Elec. Code *636§§ 253.131, 253.132, 273.081. Their allegations included that KSP made unlawful political contributions to the Texas Republican Party and its candidates (collectively “TRP”) with regard to the 2010 general election by training poll watchers in coordination with the TRP and then offering the poll watchers’ services only to the TRP. TDP also alleged that, based upon its political activities, KSP was “a sham domestic nonprofit corporation” and “an unregistered and illegal political committee.” TDP asserted claims against KSP for Election Code violations based upon KSP’s status as a political committee and its status as a corporation.
Appellants answered and filed a counterclaim. They asserted that- KSP was formed as a non-profit Texas corporation on December 30, 2009, to “provide education and awareness” to the “general public on important civic and patriotic duties.” They stated that they “decided that a good way to participate was to help ensure that elections are free and fair” and that they “assisted anyone who was interested in this project in becoming a poll watcher.” Their counterclaim sought declaratory relief challenging the constitutionality of Election Code provisions. Appellants claimed that the Election Code provisions at issue violated the First, Fourth, Eighth, and/or Fourteenth Amendments to the United States Constitution. See U.S. Const, amends. I, IV, VIII, XIV, § 1.
The parties entered into a rule 11 agreement to sever appellants’ counterclaim challenging the facial constitutionality of the Election Code provisions into a separate cause number by agreed order and to ■ abate the remaining claims until the new cause was resolved. Per that agreement, the trial court severed KSP’s counterclaim into this cause and realigned the parties. The parties then filed cross-motions for summary judgment. See Tex. R. Civ. P. 166a.
In their motion for summary judgment, TDP urged that the applicable provisions of the Election Code were facially constitutional. See Tex. Elec. Code §§ 251.001, 253.031, 253.094, 253.104, 253.131, 253.132, 273.081. Among the grounds asserted to support summary judgment, TDP argued that sections 251.001, 253.094, and 253.131 had already been determined constitutional. To support this ground, TDP cited the opinions in Ex parte Ellis, 309 S.W.3d 71 (Tex.Crim.App.2010), Osterberg v. Peca, 12 S.W.3d 31 (Tex.2000), and Castillo v. State, 59 S.W.3d 357 (Tex.App.-Dallas 2001, pet. ref'd).
Appellants countered in their motion for summary judgment that the applicable Election Code provisions were facially unconstitutional. Among the grounds asserted to support summary judgment in their favor, appellants urged that: (i) the sections creating private rights of action for Election Code violations, see Tex. Elec. Code §§ 253.131, 253.132, 273.081, violated the First, Fourth, and Fourteenth Amendments; (ii) the sections prohibiting corporate contributions and expenditures, see id. §§ 253.091, .094, were unconstitutional under Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), and violated the First and Fourteenth Amendments; (iii) the definitions of contributions and expenditures, see Tex. Elec. Code § 251.001(2)-(10), were unconstitutionally overbroad and vague; (iv) the definitions of political committees, see id. § 251.001(12), (14), were unconstitutionally overbroad and vague and violated the First Amendment; (v) the direct expenditure sections, see id. former §§ 253.062, .097, violated the First Amendment; (vi) the sections with “thirty and sixty day blackout periods,” see id. §§ 253.031(e), .037(a), violated the First *637Amendment; and (vii) the sections providing criminal penalties, see id. §§ 25B.003, .094, .101, .102, .103, .104, violated the Eighth Amendment.
Appellants did not offer summary judgment evidence to support their motion. TDP’s evidence included affidavits, documents, and videos concerning KSP’s recruitment and training of poll watchers.3 The parties also stipulated to the following facts:
a. King Street Patriots, during and in advance of the 2010 General Election for State and County Officers, conducted, at its own expense, a training and recruitment program for poll watchers. Many of these KSP located and trained poll watchers were subsequently appointed to serve under Texas Election Code §§ 32.002-003 by the Harris County Republican Party Chairman and/or Republican Nominees with regard to the 2010 General Election for State and County Officers.
b. Plaintiffs, the Texas Democratic Party, Boyd Richie, John Warren, and Ann Bennett, using the private right of action found in Tex. Elec. Code §§ 273.081, 253.131, and 253.132, intend to enforce Texas Election Code sections 251.001(2), (3), (4), (5), (6), (7), (8), (9), (10), (12), (14), 253.031(c), -253.037(a)(1) and (b), 253.062, 253.094, 253.097, and 253.104 against Defendants-Coun-terclaimants, King Street Patriots, Catherine Engelbrecht, Bryan En-gelbrecht and Diane Josephs, based on alleged political speech the Defendants-Counterclaimants have engaged in, and intend to continue to engage in, in the future.
The trial court granted summary judgment against appellants and in favor of TDP. The trial court declared that Election Code sections 251.001(2), (3), (5), (6), (7), (8), (10), (12), and (14), 253.031, 253.037, 253.094, 253.104, 253.131, 253.132, and 273.081 and former sections 253.062 and 253.097 were facially constitutional. The trial court also concluded that it did not have jurisdiction to grant declaratory relief with respect to sections 251.001(4) and (9), the officeholder definitions, sections 253.031(c) and 253.037(a), the “blackout” periods, and the criminal penalties contained in sections 253.094(c), 253.003(e), 253.101, 253.102, 253.103, and 253.104. The trial court concluded that it did not have jurisdiction with respect to those provisions because they were not at issue in the case. This appeal followed.
ANALYSIS
Appellants bring six issues on appeal, primarily tracking the grounds raised in their motion for summary judgment. Appellants challenge the constitutionality of the sections of the Election Code that create a private right of action, the sections *638that allegedly “ban” corporate contributions and expenditures, the section defining various terms, the sections allegedly creating “blackout” periods, and the sections containing criminal penalties for violations of the Election Code. Appellants contend that the trial court erred by concluding that it did not have jurisdiction with respect to some of these challenged Election Code provisions and that it erred by declaring the remaining Election Code provisions facially constitutional.
Standards of Review
We review a trial court’s summary judgment rulings de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional motion for summary judgment, the movant must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). When, as is the case here, .both parties move for summary judgment and the trial court grants one motion and denies the other, we review the summary-judgment evidence presented by both sides, determine all questions presented, and render the judgment the trial court should have rendered. Texas Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex.2004).
We also review matters of statutory construction de novo. See Texas Mun. Power Agency v. Public Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.2007). Of primary concern in construing a statute is the express statutory language. See Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.2009); Osterberg, 12 S.W.3d at 38. “We thus construe the text according to its plain and common meaning unless a contrary intention is apparent from the context or unless such a construction leads to absurd results.” Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex.2010) (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008)). We consider the entire act, not isolated portions. 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex.2008).
We also interpret statutes, if possible, in a way that makes them constitutional. See City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex.2009). “A statute is presumptively constitutional.” Brooks v. Northglen Ass’n, 141 S.W.3d 158, 170 (Tex.2004) (citing Barshop v. Medina Cnty. Underground Water Conservation Dist, 925 S.W.2d 618, 625 (Tex.1996)); see also Tex. Gov’t Code § 311.021(1).
Declarations Addressing Constitutionality of Statutes
Declaratory relief is available to resolve constitutional challenges to statutes. See Tex. Civ. Prac. & Rem. Code §§ 37.001-011 (“UDJA”). The separation of powers article of the Texas Constitution, however, prohibits courts from issuing advisory opinions. Tex. Const, art. II, § 1; see Brown v. Todd, 53 S.W.3d 297, 302 (Tex.2001) (advisory opinion decides “abstract questions of law without binding the parties”). An advisory opinion addresses a “theoretical dispute,” a dispute that does not involve “a real and substantial controversy involving a genuine conflict of tangible interests.” Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex.App.-Austin 2002, pet. denied). Accordingly, the UDJA has been interpreted “to be merely a procedural device for deciding eases already within a court’s jurisdiction rather than a legislative enlargement of a court’s power, permitting the rendition of advisory opinions.” Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993); see also Texas Health Care Info. Council, 94 S.W.3d at 846 (“A declaratory judgment *639action does not vest a court with the power to pass upon hypothetical or contingent situations, or to determine questions not then essential to the decision of an actual controversy, although such questions may in the future require adjudication.”). As such, a party seeking declaratory relief must show that a requested declaration will resolve a live controversy between the parties. See Texas Health Care Info. Council, 94 S.W.3d at 846.
The constitutional challenges at issue here are limited to facial challenges. To sustain a facial challenge, a party generally “ ‘must establish that the statute, by its terms, always operates unconstitutionally.’ ” City of Corpus Christi v. Public Util. Comm’n of Tex., 51 S.W.3d 231, 240-41 (Tex.2001) (citing Barshop, 925 S.W.2d at 627 (citing Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 (Tex.1995))); see Combs v. STP Nuclear Operating Co., 239 S.W.3d 264, 272 (Tex.App.-Austin 2007, pet. denied) (comparing facial and as-applied constitutional challenges and noting that “[a] party seeking to invalidate a statute ‘on its face’ bears a heavy burden of showing that the statute is unconstitutional in all of its applications”).
Among their constitutional challenges, appellants claim that the Election Code provisions at issue violate their free speech and associational rights under the First and Fourteenth Amendments. See U.S. Const, amends. I, XIV, § 1. In a facial challenge to a statute based on the First Amendment, even if the challenged statute is constitutional in some of its applications, a plaintiff may prevail by establishing “ ‘that the statute lacks any plainly legitimate sweep.’” Catholic Leadership Coal of Tex. v. Reisman, 764 F.3d 409, 426 (5th Cir.2014) (quoting United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal quotation marks and citation omitted)). “Plaintiffs may also invalidate a statute as overbroad if they demonstrate that ‘a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” Id. (quoting Stevens, 559 U.S. at 473,130 S.Ct. 1577 (internal citations omitted)).
The United States Supreme Court has stated the importance of First Amendment rights in the electoral context on many occasions. In Citizens United, the Supreme Court explained:
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.... The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” ... For these reasons, political speech must prevail ag;ainst laws that would suppress it, whether by design or inadvertence.
558 U.S. at 339-40, 130 S.Ct. 876 (internal citations omitted).
The Supreme Court, however, has applied differing standards in the electoral context depending on whether the statute at issue addresses political expenditures, contributions, or disclosure requirements. For example, when reviewing statutes governing corporate contributions and disclosure requirements, the Supreme Court has articulated the test as whether the statute is closely drawn to match a sufficiently important governmental interest. See Doe v. Reed, 561 U.S. 186, 196, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010) (noting that “exacting scrutiny” review applies when considering First Amendment challenges to disclosure requirements in the electoral context); Citizens United, 558 *640U.S. at 366-67, 130 S.Ct. 876 (noting that disclosure requirements are subject to “ ‘exacting scrutiny,’ which requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest” (quoting Buckley v. Valeo, 424 U.S. 1, 64, 66, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976))); Federal Election Comm’n v. Beaumont, 539 U.S. 146, 161, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003) (noting that challenges to limits on corporate contributions pass constitutional muster if “ ‘closely drawn’ to match a ‘sufficiently important interest’” (citation omitted)).
In contrast, when reviewing statutes governing corporate independent expenditures in the electoral context, the Supreme Court .used a strict-scrutiny review. See Citizens United, 558 U.S. at 340, 130 S.Ct. 876 (“Laws that burden political speech are ‘subject to strict scrutiny.’”). Strict-scrutiny review .“requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’ ” Id. (quoting Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007)); Buckley, 424 U.S. at 39, 96 S.Ct. 612 (noting that restrictions on political expenditures “limit political expression ‘at the core of our electoral process and of the First Amendment freedoms’ ” (quoting Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968))); see also McCutcheon v. Federal Election Comm’n, — U.S. —, 134 S.Ct. 1434,1444-45,188 L.Ed.2d 468 (2014) (plurality op.) (declining to revisit distinction in Buckley between contributions and expenditures and corollary distinction in applicable standards of review). Within this framework, we turn to appellants’ issues.
Private Right of Action
In their first issue, appellants challenge the constitutionality of the sections creating a private right of action for Election Code violations. See Tex. Elec. Code §§ 253.131, 253.132, 273.081. Appellants contend that these provisions on their face violate the First Amendment, the Fourth Amendment, and the Due Process Clause of the Fourteenth Amendment. See U.S. Const, amends. I, IV, XIV, § 1. They assert that the provisions infringe upon speech and associational rights: that they “lack guidelines regarding what showing is necessary' to initiate an investigation,” “lack sufficient standards to protect discovery abuse,” and have “enormous potential for abuse.” They also urge that the injunction section, section 273.081, is an improper prior restraint on speech.
a) Sections 253.131 and 253.132
Section 253.131 creates a private right of action for opposing candidates, and section 253.132 creates a private right of action for political committees, to bring actions against a corporation or labor organization to recover statutory damages for violations of the Election Code. See Tex. Elec. Code §§ 253.131, .132. Sections 253.131 and 253.132 state:
§ 253.131. Liability to Candidates
(a) A person who knowingly makes or accepts a campaign contribution or makes a campaign expenditure in violation of this chapter is liable for damages as provided by this section.
(b) If the contribution or expenditure is in support of a candidate, each opposing candidate whose name appears on the ballot is entitled to recover damages under this section.
(c) If the contribution or expenditure is in opposition to a candidate, the *641candidate is entitled to recover damages under this section.
(d) In this section, “damages” means:
(1) twice the value of the unlawful contribution or expenditure; and
(2) reasonable attorney’s fees incurred in the suit.
(e) Reasonable attorney’s fees incurred in the suit may be awarded to the defendant if judgment is rendered in the defendant’s favor.
§ 253.132. Liability to Political Committees
(a) A corporation or labor organization that knowingly makes a campaign contribution to a political committee or a direct campaign expenditure in violation of Subchapter D is liable for damages as provided by this section to each political committee of opposing interest in the election in connection with which the contribution or expenditure is made.
(b) In this section, “damages” means:
(1) twice the value of the unlawful contribution or expenditure; and
(2) reasonable attorney’s fees incurred in the suit.
(c) Reasonable attorney’s fees incurred in the suit may be - awarded to the defendant if judgment is rendered in the defendant’s favor.
Id. §§ 253.131, .132. Appellants focus on the lack of standards within the private-right-of-action sections regarding what showing is necessary to initiate investigation or discovery and what is discoverable, arguing that discoverable evidence must satisfy a heightened showing of relevance in the context of the First Amendment.
The trial court upheld the constitutionality of these sections based in part on the Texas Supreme Court’s opinion in Oster-berg. In that opinion, the Texas Supreme Court faced a constitutional challenge to section 253.131 based on the First Amendment’s free speech and associational rights. 12 S.W.3d at 48. The supreme court held that the private right of action created in section 253.131 was constitutional, reasoning that private enforcement advanced a “sufficient state interest”:
Section 253.131 is designed to “deter violators and encourage enforcement by candidates and others directly participating in the process, rather than placing the entire enforcement burden on the government.” ... Because state resources for policing election laws are necessarily limited, in many cases section 253.131 is likely to provide the only viable means of enforcing reporting requirements. Preventing evasion of these important campaign finance provisions is a legitimate and substantial state interest.... Furthermore, that the person enforcing the law and receiving damages can be a private party rather than the State does not mean that section 253.131 adds additional restrictions on First Amendment rights.
Id. at 49 (internal citations omitted). Although the court did not address section 253.132, the rationale for concluding that section 253.131 does not violate First Amendment rights applies equally to section 253.132.
Appellants urge that Osterberg does not control here. They distinguish the issue before this Court from the one addressed in Osterberg because, in that case, the challenge concerned who could recover damages and only one opposing candidate brought the suit. Appellants argue that the issue here is different because their focus is on the language in sections 253.131 and 253.132 that allows multiple parties to seek damages for the same Election Code violation. For example, they urge that multiple candidates may sue and recover damages when the chai-*642lenged speech is about issues. However, the dispute here concerns alleged improper contributions by KSP to the TRP and its candidates, not issue advocacy by KSP. Declaratory relief is only available if the declaration will resolve a live controversy that binds the parties, Texas Ass’n of Bus., 852 S.W.2d at 444, therefore, we decline to consider appellants’ constitutional challenge based upon speech concerning issues. Further, whether the statute is unconstitutional as-applied to a particular circumstance, such as multiple candidates suing to recover damages for the same speech about issues, is not the dispositive question before us, given that appellants’ facial challenge requires them to prove the statute is unconstitutional in all circumstances or, in the First Amendment context, “that the statute lacks any plainly legitimate sweep.” See Reisman, 764 F.3d at 426.
Appellants urge that the private-right-of-action sections do not provide necessary safeguards to avoid chilling the First Amendment fundamental right of privacy in association, “particularly where one must divulge such information to political opponents.” In the context of as-applied challenges, courts have found that the constitution provides protection from disclosure of a person’s identity in the context of associational rights if there is a “Reasonable probability” that the disclosure will subject the person to “threats, • harassment, or reprisals from either Government officials or private parties.” Citizens United, 558 U.S. at 367, 130 S.Ct. 876; Buckley, 424 U.S. at 74, 96 S.Ct. 612; In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 376, 380-82 (Tex. 1998) (orig. proceeding). But appellants only bring a facial challenge to the statutes at issue. See Citizens United, 558 U.S. at 367, 130 S.Ct. 876 (acknowledging as-applied challenge may be available based upon showing that there was reasonable probability that disclosure would subject persons to threats, harassment, or reprisals). Appellants also did not offer summary judgment evidence that would support a finding that there is a “reasonable probability” that disclosure via discovery would subject them to “threats, harassment, or reprisals.” See id. As such, precedent does not support appellants’ argument that subjecting a person to suit and discovery under the Election Code facially violates First Amendment associational rights.
Appellants’ arguments also focus on the lack of standards for discovery and initiating a suit within the private-right-of-action provisions to support their position that the provisions violate the Due Process Clause and the Fourth Amendment. See U.S. Const, amends. IV, XIV, § 1. They urge that the private-right-of-action provisions violate the Fourth Amendment because they do not require a showing of probable cause prior to allowing discovery. They contend that discovery initiated by a person acting under color of state law is a Fourth Amendment search and, therefore, that probable cause is required. Otherwise, they urge, the government could circumvent probable cause requirements by awaiting discovery in a civil proceeding. As to the Due Process Clause, appellants urge that the sections fail to provide the necessary “procedural safeguards” to prevent “ ‘unbridled discretion’ via discovery to seize constitutionally protected documents and communications, even if the private enforcers lose on their claims.”
The Due Process guarantees, however, only provide protection against state action. See Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 485, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); *643Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (noting that since 1883, “principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States” and that the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrong”).4 Similarly, the Fourth Amendment protections generally only apply to state action. Skinner v. Railway Labor Executives’Ass’n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Although the Fourth Amendment provides protection against a search or seizure by a private party if the private party is acting as an instrument or agent of the government, there was no evidence that TDP was acting as an agent or instrument of the government here, see id. and, even if there were such evidence, that would not satisfy appellants’ burden to show that the statute is facially unconstitutional. See City of Corpus Christi, 51 S.W.3d at 240-41.
In any case, a private suit brought under the Election Code has procedural safeguards in place to protect defendants from unnecessary or overly intrusive discovery. Such suits are subject to the laws that apply to civil suits generally, such as the Texas Rules of Civil Procedure and the Texas Rules of Evidence. The Texas Rules of Civil Procedure provide guidelines for discovery and allow trial courts to limit discovery to protect confidential information. See Tex. R. Civ. P. 192.6. The rules, as well as statutes, also allow trial courts to award sanctions for discovery abuse and remedies for frivolous suits. See, e.g., Tex. Civ. Prac. & Rem. Code §§ 10.001 — .006; Tex. R. Civ. P. 13, 215. And sections 253.131 and 253.132 allow the recovery of attorney’s fees for a successful defendant. See Tex. Elec. Code §§ 253.131(e), .132(c).
We conclude that the trial court did not err by granting summary judgment in favor of TDP with respect to sections 253.131 and 253.132 and by declaring those sections facially constitutional.
b) Section 273.081
Section 273.081 states that “[a] person who is being harmed or is in danger of being harmed by a violation or threatened violation of this code is entitled to appropriate injunctive relief to prevent the violation from continuing or occurring.” Id. § 273.081. Appellants argue that section 273.081 is “a prior restraint” on speech. See Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993); Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d 387, 393 (Tex.App.-Austin 2000, no pet.). “A prior restraint is an administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur.” Minton, 33 S.W.3d at 393. Appellants also argue that the section fails strict-scrutiny review and that it is not narrowly tailored to an important governmental interest. *644Appellants focus on the language in section 273.081 that allows injunctive relief to a “person,” not just a political opponent, based upon “threatened” harm. Appellants argue that no compelling interest justifies enjoining political speech.
The plain language of section 273.081, however, does not support appellants’ assertion that the section on its face violates the prohibition on prior restraints. See Scott, 309 S.W.3d at 930. The section applies to the entire Election Code, allowing injunctions in many different contexts. See Tex. Elec. Code § 273.081; In re Gamble, 71 S.W.3d 313, 318 (Tex.2002) (orig. proceeding) (discussing injunctive relief provided by section 273.081 in context of violation of section 141.032 by party chair); Cook v. Tom Brown Ministries, 385 S.W.3d 592, 608 (Tex.App.-El Paso 2012, pet. denied) (mem. op.) (reversing trial court’s denial of injunctive relief for Election Code violation and ordering city clerk to decertify and return recall petitions); Ramirez v. Quintanilla, Nos. 13-10-00449-CV, 13-10-00450-C V, 13-10-00454-CV, 2010 WL 3307370, at *15-16, 2010 Tex. App. LEXIS 6861, at *43-44 (Tex.App.-Corpus Christi Aug. 20, 2010, pet. denied) (mem. op.) (affirming temporary injunction enjoining special election). The section also limits the scope of injunc-tive relief to “appropriate injunctive relief.” Tex. Elec. Code § 273.081. And an order granting a temporary injunction is subject to interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(4). Given the scope and limits of the injunctive relief available under section 273.081, we conclude that this section is not facially unconstitutional or a “prior restraint” on speech. See Minton, 33 S.W.3d at 393.
We conclude that the trial court did not err by granting summary judgment in favor of TDP with respect to section 273.081 and by declaring the section facially constitutional. We overrule appellants’ first issue.
Corporate Contributions and Expenditures
In their second issue, appellants argue that sections 253.091 and 253.094 are unconstitutional because they “ban” corporate contributions and expenditures. See Tex. Elec. Code §§ 253.091, .094. They argue that the corporate “ban” on contributions and expenditures fails strict-scrutiny review under Citizens United. As part of this issue, appellants also argue that the restrictions are content based and violate the equal protection clause and that speech restrictions that differentiate among speakers are subject to strict scrutiny. Content-based restrictions have been held to raise equal protection concerns “because, in the course of regulating speech, such restrictions differentiate between types of speech.” Burson v. Freeman, 504 U.S. 191, 197 n. 3, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992). “Under either a free speech or equal protection theory, a content based regulation of political speech in a public forum is valid only if it can survive strict scrutiny.” Id.
Section 253.091 sets forth the types of entities that are subject to subchapter D, the subchapter addressing corporations and labor organizations. Tex. Elec. Code § 253.091. The section includes non-profit corporations — such as KSP — as entities subject to subchapter D. See id. Prior to its amendment in 2011, section 253.094(a) limited corporate political contributions and expenditures to those expressly allowed in the subchapter. See Act of June 19, 1987, 1987 Tex. Gen. Laws at 3009. In .2011, section 253.094(a) was amended to delete corporate political expenditures. It now reads:
A corporation or labor organization may not make a political contribution that is not authorized by this subchapter.
*645Tex. Elec. Code § 253.094(a). Section '253.094 was amended after the Citizens United pinion in which the Supreme Court held that the government may not prohibit corporate independent political expenditures. 558 U.S. at 365, 130 S.Ct. 876.5
At this stage of the parties’ dispute, TDP’s claim as to section 253.094 is not based on alleged political expenditures by KSP, but alleged contributions made by KSP.6 s to the contribution limitations that section 253.094 places on the entities specified in section 253.091, appellants ask this Court to expand the holding in Citizens United. We decline to do so. The Supreme Court in Citizens United continued to distinguish between expenditures and contributions and expressly stated that it was not reconsidering corporate contribution limits. 558 U.S. at 358-60, 130 S.Ct. 876; see McCutcheon, 134 S.Ct. at 1444-45 (discussing Buckley and reasons for distinguishing between political expenditures and contributions in context of First Amendment). Further, we are guided by the Supreme Court’s analysis in Beaumont and the Texas Court of Criminal Appeals’ analysis in Ex parte Ellis. In Beaumont, the Supreme Court rejected an as-applied challenge to corporate contribution limitations. 539 U.S. at 163, 123 S.Ct. 2200. Upholding the constitutionality of the corporate contribution regulation at issue, the Supreme Court found that the regulation served compelling governmental interests, preventing “war chest” corruption and serving to prevent individuals from using the corporate form to circumvent contribution limits. Id. at 154-55,123 S.Ct. 2200. The Texas Court of Criminal Appeals in Ex parte Ellis concluded that the opinion in Citizens United did not have any effect on its jurisprudence relating to corporate contributions and upheld section 253.094 as facially constitutional, guided in part by the Beaumont opinion. 309 5.W.3d at 83-85, 92.
Appellants also urge that section 253.094 violates the equal protection clause because it bans contributions by corporations but not labor unions. But, as previously stated, section 253.094 also applies to labor organizations. See Tex. Elec. Code § 253.094. Guided by the directives in Beaumont and Ex parte Ellis, we conclude that the trial court did not err by granting summary judgment in favor of TDP with respect to appellants’ constitutional challenges to the corporate contribution limitations and by declaring section 253.094 facially constitutional. We overrule appellants’ second issue.
Contribution and Expenditure Definitions
In their third issue, appellants argue that the definitions of contribution, campaign contribution, officeholder contribution, political contribution, expenditure, campaign expenditure, direct campaign expenditure, officeholder expenditure, and political expenditure are unconstitutionally vague. See Tex. Elec. Code § 251.001(2)-(10).
A law is unconstitutionally vague if it fails to give those affected by it a reasonable opportunity to know what is required or when it is so indefinite that *646any enforcement is necessarily arbitrary or discriminatory. City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999); Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437-38 (Tex.1998). In the context of statutes that impose criminal penalties and impact First Amendment interests, “[e]lose examination of the specificity of [a] statutory limitation is required.” Buckley, 424 U.S. at 40-41, 96 S.Ct. 612. “In such circumstances, vague laws may not only ‘trap the innocent by not providing fair warning’ or foster ‘arbitrary and discriminatory application’ but also operate to inhibit protected expression by inducing ‘citizens to steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.’ ” Id. at 41 n. 48, 96 S.Ct. 612 (internal citation omitted). “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” National Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
Appellants focus on the words “direct” and “indirect” and the phrase “any other thing of value” in the definitions of contribution and the phrase “any other thing of value” in the definitions of expenditure to support their position that the general definitions are unconstitutionally vague. See Tex. Elec. Code § 251.001(2), (6). For purposes of this appeal, the Election Code defines a contribution to mean “a direct or indirect transfer of money, goods, services, or any other thing of value” and an expenditure to mean “a payment of money or any other thing of value.” Id. ‘ § 251.001(2), (6). Appellants also raise additional concerns with the definitions of the different types of contributions and expenditures. Focusing on the phrases “contribution,” “political committee,” “the intent,” and “in connection with ... a measure,” they contend that the definition of campaign contribution is circular and vague. Section 251.001(3) defines a “campaign contribution” to mean “a contribution to a candidate or political committee that is offered or given with the intent that it be used in connection with a campaign for elective office or on a measure.” See id. § 251.001(3). Appellants argue that “in connection with a campaign ... on a measure” cannot be construed to exclude “general issue advocacy” and, therefore, is vague and unconstitutional.
Appellants make similar arguments as to the definition of an officeholder contribution. Section 251.001(4) defines an “officeholder contribution” to mean a “contribution to an officeholder or political committee that is offered or given with the intent that it be used to defray expenses that: (A) are incurred by the officeholder in performing a duty or engaging in an activity in connection with the office; and (B) are not reimbursable with public money.” See id. § 251.001(4). Appellants make the same argument and address intent, as well as contending that the words “defray” and “in connection with” are vague. Finally, because a “political contribution” is defined as a “campaign contribution” or an “officeholder contribution,” appellants urge that this definition is also vague for the reasons stated above. See id. § 251.001(5).
Turning to the definitions of different types of expenditures, the Election Code defines a “campaign expenditure” to mean “an expenditure made by any person in connection with a campaign for an elective office or on a measure. Whether an expenditure is made before, during, or after an election does not affect its status as a campaign expenditure.” Id. § 251.001(7). “A ‘direct campaign expenditure’ means a campaign expenditure that does not constitute a campaign contribution by the person *647making the expenditure.” Id. § 251.001(8). Appellants contend that the words “in connection with” are vague when considering their impact on political speech about a measure, especially because the definition includes political speech after an election. Appellants further urge that the definitions include “general issue advocacy” and, therefore, are unconstitutional. Appellants make the same vagueness argument as to the definition of “officeholder expenditure” as they make as to the definition of “officeholder contribution.” See id. § 251.001(9). The definition of officeholder expenditure also includes the word “defray” and the phrase “in connection with.” Finally, appellants urge that the definition of political expenditure is vague because it uses the terms “campaign expenditure” and “officeholder expenditure.” See id. § 251.001(10).
As an initial matter, the trial court concluded that it did not have jurisdiction to consider the challenged officeholder definitions. See id. § 251.001(4), (9). We agree. Because the officeholder definitions were not at issue between these parties, any declaratory relief as to their constitutionality would be advisory. See Todd, 53 S.W.3d at 302 (noting that courts do not have jurisdiction to render advisory opinions). For the same reason, we decline to address appellants’ arguments addressing the word “measure” in the various definitions. See id. The parties’ dispute concerns KSP’s activities in connection with campaigns for elective office, not their activities in connection with a measure. See id.
Appellants’ remaining arguments challenging the definitions are controlled by the analysis and reasoning in Ex parte Ellis. In the context of alleged improper corporate contributions and a criminal prosecution, the Texas Court of Criminal Appeals considered vagueness and overbreadth challenges to the contribution definitions and found the definitions to be facially constitutional. See 309 S.W.3d at 82-92. The Ellis court found that the definitions were “sufficiently clear to afford a person of ordinary intelligence a reasonable opportunity to know what [was] prohibited” and that the definitions provided appropriate guidelines for enforcement. Id. Although the Ellis court did not address the expenditure definitions, the same rationale for concluding that the contribution definitions are facially constitutional applies to the expenditure definitions. Following the Ellis court’s analysis, we conclude that appellants failed to establish that the definitions at issue are facially unconstitutional and that the trial court did not err in its summary judgment rulings as to these definitions. We overrule appellants’ third issue.7
*648Political Committee Definitions
In their fourth issue, appellants contend that the definitions of political committee, ' specific-purpose committee, general-purpose committee, and the now-repealed direct expenditure sections are facially unconstitutional because they violate the First Amendment and are unconstitutionally vague. See Tex. Elec. Code §§ 251.001(12), (13), (14), 253.062, 253.097; Act of June 19, 1987, 1987 Tex. Gen. Laws at 3009.
a) Political Committee Definitions
The Election Code defines a political committee to mean “a group of persons that has as a principal purpose accepting political contributions or making political expenditures.” Tex. Elec. Code § 251.001(12). A specific-purpose political committee supports or opposes identified candidates or measures, id. § 251.001(13), and a general-purpose political committee “has among its principal purposes ... supporting or opposing” two or more unidentified candidates or one or more unidentified measures or “assisting two or more officeholders who are unidentified.” Id. § 251.001(14). Appellants focus on the phrases “supporting or opposing” and “assisting two or more officeholders” and the inclusion of “unidentified” measures, candidates, and officeholders and “unknown” offices in the general-purpose committee definition. See id.
Appellants argue that strict scrutiny applies, but that, even if exacting scrutiny applies, the statutes are facially unconstitutional. Appellants focus on the analysis by the Supreme Court in Citizens United and Buckley concerning regulation of political committees. The Supreme Court in Citizens United observed that political committee status is “burdensome,” “onerous,” “expensive to administer and subject to extensive regulation.” See 558 U.S. at 337, 130 S.Ct. 876. In Buckley, the Supreme Court construed the federal definition of “political committee” to encompass only organizations “under the control of a candidate[s]” or organizations with the “major purpose” to nominate or elect candidates. 424 U.S. at 79, 96 S.Ct. 612; see Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 253 n. 6, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986).
Appellants argue that because the definitions of political committee in the Election Code do not have a “major purpose” or “under the control of a candidate” test that they are facially unconstitutional. Appellants urge that allowing an organization to speak only if it becomes a political committee equates with banning the organization’s speech when the organization decides that the speech is “simply not worth it.” See Massachusetts Citizens, for Life, Inc., 479 U.S. at 255, 107 S.Ct. 616. They also urge that the political committee definitions are unconstitutional because they have a zero-dollar threshold and that they are unconstitutionally vague because “[a] speaker cannot know when it has this ‘principal purpose.”’ They urge that the definitions do not provide fair warning and subject speakers to “arbitrary and discriminatory application,” thereby chilling *649speech. See Buckley, 424 U.S. at 41 n. 48, 96 S.Ct. 612.
Mindful that appellants’ challenge to the definitions is a facial challenge, we cannot conclude that these definitions violate the First Amendment, that they are unconstitutionally vague, or that they lack any plainly legitimate sweep. See Morales, 527 U.S. at 52, 119 S.Ct. 1849; Reisman, 764 F.3d at 426; compare Massachusetts Citizens for Life, Inc., 479 U.S. at 263-65, 107 S.Ct. 616 (holding that federal statute prohibiting corporate expenditures “as applied” to newsletter by nonprofit, nonstock corporation formed to promote “pro life” causes was unconstitutional as a violation of First Amendment). The plain language of section 251.001(12) limits “political committee” status to groups with “a principal purpose of accepting political contributions or making political expenditures.” The Election Code does not define the words “principal purpose” so we apply their common meaning. “Purpose” means “[t]he object toward which one strives or for which something exists; goal; aim.” American Heritage Dictionary of the English Language 1062 (1973). “Principal” means “[fjirst, highest, or foremost in importance, rank, worth, or degree; chief.” Id. at 1041. Applying the phrase’s common meaning limits the reach of the definition, and the definition also expressly encompasses the definitions of political contributions and expenditures, further defining and narrowing the classification. See Tex. Elec. Code § 251.001(5), (10). The definitions of specific-purpose and general-purpose also distinguish between and narrow the different types of political committees on the basis of whether the measure or candidates at issue are identified and known or unidentified and unknown.
Viewing the definitions as a whole and in context with each other, they are “sufficiently clear to afford a person of ordinary intelligence a reasonable opportunity to know what [was] prohibited” and provide appropriate guidelines for enforcement. See Ex parte Ellis, 309 S.W.3d at 82-92; see also Buckley, 424 U.S. at 41 n. 48, 96 S.Ct. 612; Parker, 249 S.W.3d at 396. We therefore conclude that the challenged definitions are not unconstitutionally vague or facially unconstitutional under the First Amendment.
b) Former Sections Addressing Direct Expenditures
As part of their fourth issue, appellants argue that the direct expenditure requirements contained in former sections 253.062 and 253.097 are unconstitutional because they force political committee burdens on individuals. See Act of June 19,1987,1987 Tex. Gen. Laws at 3009. Former section 253.062 required an individual to comply with reporting requirements when the individual made a direct campaign expenditure exceeding $100, and former section 253.097 required a corporation or labor organization to comply with former section 253.062 as an individual when the corporation or labor organization made direct expenditures in connection with an election on a measure. See id. As previously stated above, the parties’ dispute concerns KSP’s activities in connection with campaigns for elective office, not its activities in connection with a measure, and TDP’s claim concerns alleged contributions by KSP, not expenditures. See id. We therefore decline to address appellants’ arguments addressing these two sections. See Todd, 53 S.W.3d at 302. We overrule appellants’ fourth issue.
30 and 60 day periods
In their fifth issue, appellants argue that the 30 and 60 day “blackout” periods in sections 253.031 and 253.037 are unconstitutional. See Tex. Elec. Code §§ 253.031(c), .037(a). Section 253.031(c) prohibits a political committee from mak*650ing a campaign contribution or expenditure supporting or opposing specified candidates unless its campaign treasurer appointment has been on file for at least 30 days. Id. § 253.031(c). Section 253.037(a) prohibits a general-purpose committee from making a political contribution or expenditure unless its campaign treasurer appointment has been on file for at least 60 days and it has accepted political contributions from at least 10 persons. Id. § 253.037(a). Appellants argue that the State does not have an interest in prohibiting speech for a period of time after a group is formed or in prohibiting expenditures and contributions by groups of fewer than 10 people. They contend that the 10-person minimum is unconstitutional because the government has no interest in ensuring that political speech has a base of support and violates the right of association of any group of persons smaller than 10 persons.
The trial court concluded that it did not have jurisdiction to grant declaratory relief with respect to these provisions because they were not at issue in this case and, therefore, any relief would be advisory. See Todd, 53 S.W.3d at 305. Appellants argue that the trial court’s conclusion that it did not have jurisdiction was in error because appellants must abide by the deadlines in these provisions to engage in political speech. The parties also stipulated that TDP “intended to enforce” sections 253.031(c) and 253.037(a) against appellants. TDP’s petition, however, does not raise section 253.037, and limits the alleged violation of section 253.031 to the failure to appoint a campaign treasurer at all. We therefore agree with the ' trial court that it did not have jurisdiction to consider appellants’ constitutional challenges to these provisions. On this basis, we overrule appellants’ fifth issue.
Criminal Penalties
In their sixth issue, appellants argue that the criminal penalties in the Election Code violate the Eighth Amendment. See Tex. Elec. Code §§ 253.003(e), 253.094(c), 253.095, 253.101(b), 253.102(c), 253.103(c), 253.104(c). The specified offenses under . the Election Code are third-degree felonies and subject to punishment by imprisonment “not more than 10 years or less then 2 years.” Tex. Penal Code § 12.34. In addition to imprisonment, a corporate officer “may be punished by a fine not to exceed $10,000.” Id. The Eighth Amendment states that “[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII.
The trial court did not address appellants’ constitutional challenges to the criminal penalties in the Election Code because it concluded that it did not have jurisdiction to do so. In its order, the trial court reasoned that the State is not a party and that TDP was not entitled to seek criminal penalties and, therefore, that any ruling would be an improper advisory opinion. See Todd, 53 S.W.3d at 305. We agree and, on this basis, overrule appellants’ sixth issue.
CONCLUSION
Having overruled appellants’ issues, we affirm the trial court’s final summary judgment.
. Gilberto Hinojosa replaced Boyd Richie as the Chairman of the Texas Democratic Party following Hinojosa's election at the Texas Democratic Party State Convention.
. TDP presented affidavits from the Chair of the Harris County Democratic Party, the Deputy Executive Director for the Texas Democratic Party, and Bennett. They testified regarding KSP’s "assistance” and “support" of the TRP during the 2010 general election cycle and KSP's poll watcher program. The Chair of the Harris County Democratic Party testified:
The poll watchers recruited and trained by KSP for service in Harris County were all appointed by Republican nominees or the Harris County Republican Party. The KSP never offered to provide poll watchers for or on behalf of the Harris County Democratic Party. I attended at least one meeting at the Harris County Attorney General's Office at which the representative of the Harris County Republican Party discussed and acknowledged the coordinated efforts between the KSP and the Harris County Republican Party in connection with training and assigning poll watchers.
. We also are not persuaded by the cases cited by appellants to support their position that the private-right-of-action provisions violate the Due Process Clause. Unlike the statutes at issue here, those cases involved laws that delegated legislative power to private citizens. See, e.g., Eubank v. City of Richmond, 226 U.S. 137, 141-44, 33 S.Ct. 76, 57 L.Ed. 156 (1912); General Elec. Co. v. New York Dep't of Labor, 936 F.2d 1448, 1454-55 (2d Cir. 1991) (collecting similar cases). For example, an ordinance allowing boundaries to be fixed by a vote of two thirds of a particular group of property owners was found to be unconstitutional because it allowed a majority of private citizens to determine the rights of the minority without fixing a standard under which the decision was made. Eubank, 226 U.S. at 141-44, 33 S.Ct. 76.
. We disagree with appellants’ contention that the trial court failed to address the expenditure component of former section 253.094. • In the final summary judgment, the trial court expressly referenced the 2011 amendment to section 253.094 that removed expenditures.
. TDP’s counsel confirmed at oral argument that TDP’s claim for statutory damages based upon a violation of section 253.094 was limited to alleged political contributions made by KSP. See Tex. Elec. Code § 253.094. Their fourth amended original petition conforms with counsel’s statements at oral argument.
. On rehearing, appellants focus on the over-breadth doctrine. To the extent appellants challenge the definitions based upon this doctrine, we also reject that challenge. “An overbroad statute ‘sweeps within its scope a wide range of both protected and non-protected expressive activity.'" Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 435 (Tex. 1998) (citation omitted). “To vindicate First Amendment interests and prevent a chilling effect on the exercise of First Amendment freedoms, the overbreadth doctrine allows a statute to be invalidated on its face even if it has legitimate application, and even if the parties before the court have suffered no constitutional violation.” Ex parte Ellis, 309 S.W.3d 71, 90-91 (Tex.Crim.App.2010) (citing Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). “The overbreadth doctrine is ‘strong medicine’ that should be employed ‘sparingly’ and 'only as a last resort.'" Id. (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. 2908). “ ‘[T]he over-breadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.' ” Id. (quoting Broadrick, 413 U.S. at 615, 93 S.Ct. 2908). “Only if the statute ‘reaches a substantial amount of constitutionally protected *648conduct’ may it be struck down for over-breadth.” Benton, 980 S.W.2d at 436 (quoting City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)). On this record, we decline to strike down the challenged definitions as facially unconstitutional based on the overbreadth doctrine. See id.-, see also Clements v. Fashing, 457 U.S. 957, 972 n. 6, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (overbreadth exception to traditional requirement of standing may not apply where First Amendment rights may be litigated on a case by case basis). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283862/ | ON MOTION FOR REHEARING OPINION
David Puryear, Justice
We withdraw the opinion and judgment dated June 13, 2014, and substitute the following opinion and judgment in then-place. We deny appellant’s motion for rehearing.
Tommy Adkisson appeals, both individually and on Bexar County’s behalf in his official capacity as Bexar County Commissioner Precinct 4, from the trial court’s summary judgment declaring that he must disclose certain records requested under the Texas Public Information Act (PIA). See generally Tex. Gov’t Code §§ 552.001- ' .353. Commissioner Adkisson contends that the requested information is not public information. The requestor, appellee Hearst Newspapers, LLC, sought correspondence from Commissioner Adkisson’s personal e-mail accounts related to his official capacity as a county commissioner or as chairman of the San Antonio-Bexar County Metropolitan Planning Organization, or both.
The Commissioner sued the Attorney General for declaratory relief from the Attorney General’s letter rulings that the information is public and must be released.1 See id. § 552.324 (establishing that governmental body seeking to withhold information from a requestor may only file suit seeking declaratory relief from compliance with decision by attorney general). Hearst intervened in the lawsuit, seeking a writ of mandamus under the PIA. See id. §§ 552.321 (permitting requestor to sue for writ of mandamus compelling governmental body to make information available to public), .325 (providing that requestor is entitled to intervene in suit filed by governmental body seeking declaratory relief allowing it to withhold information). Hearst also sought declaratory relief and attorneys’ fees under both the PIA and the Uniform Declaratory Judgments Act. See id. §§ 552.3215 (permitting suit for declaratory judgment or injunctive relief against governmental body that is withholding information), .323 (establishing circumstances under which courts may or shall award attorneys’ fees); Tex. Civ. Prac. & Rem. Code §§ 37.003 (establishing power of courts to declare rights, status, and other legal relations), .009 (allowing court to award “equitable and just” attorneys’ fees). The Commissioner, the Attorney General, and Hearst each moved for summary judgment and sought attorneys’ fees.
The trial court denied the Commissioner’s motion and granted the Attorney General’s and Hearst’s motions and awarded attorneys’ fees to the Attorney General and to Hearst. We will affirm the judgment because we conclude that information in the Commissioner’s official-capacity e*765mails is necessarily connected with the transaction of the County’s official business and the County owns the information under the Local Government Code; thus, the requested information satisfies the PIA’s definition of “public information.” In addition, we conclude that the trial court acted within its discretion by awarding attorneys’ fees to the Attorney General and Hearst. However, we will modify the trial court’s judgment to clarify that only Bexar County, the governmental entity on behalf of which the Commissioner filed suit in his official capacity and against which Hearst filed its suit, is liable for the attorneys’ fees awarded under the PIA to the Attorney General and Hearst.
BACKGROUND
Hearst is the publisher of the San Antonio Express-News. An Express-News reporter requested information under the PIA from the Commissioner by submitting an open-records request to the County. The reporter requested copies of certain email correspondence “related to [the Commissioner’s] official capacity as a county commissioner and/or chairman of the [Metropolitan Planning Organization].” Although the request sought correspondence from both the Commissioner’s personal email accounts and his County e-mail account, it explicitly stated that the Express-News sought only “relevant documents from Commissioner Adkisson’s official capacity, not personal correspondence.”
Soon after Hearst requested documents from Bexar County, the Metropolitan Planning Organization received a request from a different requestor seeking all correspondence between the Commissioner, other named County Commissioners, and certain county employees on both work and home communication devices when used in official capacity. The Metropolitan Planning Organization, in turn, requested the information from Bexar County. The San Antonio-Bexar County Metropolitan Planning Organization is an organization charged with developing and maintaining a comprehensive regional transportation planning process.2 Its Transportation Policy Board provides transportation policy and planning guidance. A number of regional elected and appointed officials are on the Board. At the time of the PIA requests, the Commissioner served on the Board as one of the Bexar County representatives and was the Board Chair.
Bexar County sought letter rulings from the Attorney General for both requests.3 See Tex. Gov’t Code § 552.301 (requiring governmental body that receives written request for information that it wishes to withhold from public disclosure to ask for attorney general decision). The County contended that any correspondence in the Commissioner’s personal e-mail accounts, regardless of its content, is not public information as defined by the PIA because it was not either collected, assembled, or maintained by the governmental body or prepared on behalf of the governmental body and the governmental body did not have a right of access to the correspondence. The County asserted that it was not submitting a representative sample of any requested correspondence because to do so would require the County to search a computer at the Commissioner’s private residence to compile the requested correspondence, which would infringe upon the *766Commissioner’s legitimate expectation of privacy and his constitutional rights not to be subject to a search warrant without probable cause: The County’s two requests for rulings from the Attorney General were substantively the same, except that in the second request the County also asserted that the information might be excepted from disclosure under Sections 552.101 (based on case law related to common-law privacy), 552.109, 552.111, and 552.137 of the PIA. See id. §§ 552.101 (excepting from disclosure information considered to be confidential by law, including judicial decision), .109 (excepting from disclosure elected official’s private correspondence or communications related to matters which would constitute invasion of privacy if disclosed), .111 (excepting from disclosure interagency or intra-agen-cy correspondence that would not be available by law to party in litigation with agency), .137 (excepting from disclosure email address of member of public that is provided for purpose of communicating electronically with governmental body).
The Attorney General determined that the requested information comes “within the scope of the [PIA] if it relates to the official business of a governmental body and is maintained by a public official or employee of the governmental body.” Relying on the statutory language and prior open records decisions, the Attorney General explained that information in a public official’s personal records may be subject to the PIA if the public official uses the records to conduct public business: “A governmental body may not circumvent the applicability of the [PIA] by conducting official public business in a private medium.” Accordingly, the Attorney General ruled that:
[T]o the extent the e-mails maintained by. the county Commissioners and county employees relate to the official business of the county, they are subject to the [PIA]. To the extent the county Commissioners’ and county employees’ e-mails do not relate to the official business of the county, they are not subject to the Act and need not be released.
The Attorney General also addressed the County’s contention that it could not search for or produce a representative sample of documents without infringing upon the County Commissioners’ and County employees’ constitutional rights. The Attorney General disagreed with the County’s assertion that searching for the requested documents would require the County’s district attorney to search the computers at the County Commissioners’ and County employees’ private residences. The Attorney General explained that under the PIA, each elected county officer is the officer for public information and the custodian of information created or received by that county officer’s office, meaning that the County Commissioners are the public-information officers and custodians of information created or received by their respective offices. Id. § 552.201(b). After an officer for public information is notified of a request for public information that he maintains, he has a duty to provide it to the requestor unless the attorney general rules that it may be withheld. Id. §§ 552.203(1), .204, .221, .301, .353. Thus, the Attorney General further explained, to comply with the PIA, “[t]he only requirement is that the county Commissioners, who maintain the information at issue, collect ‘public information’ maintained in their personal e-mail accounts as the [public-information officer and] custodian of records for his or her office.” See id. §§ 552.201, .203, .353. In other words, the Attorney General concluded that nothing in the PIA required the Commissioner to allow the County unfettered access to his personal e-mail accounts.
*767The Attorney General determined that the County failed to comply with the requirements of the PIA because it did not submit either (1) written comments stating the reasons why the stated exceptions to disclosure apply or (2) a copy of the specific information requested or representative samples of the information. See id § 552.301(e)(1)(A), (D). The Attorney General opined that the County’s failure to provide the Attorney General’s office with the information required in Section 552.301(e) results in a legal presumption that the requested information is public and must be released. In addition, the Attorney General stated that because the County failed to submit the requested information to the Attorney General’s office for review, he had no basis for finding any of the information confidential by law under any of the exceptions raised by the County.
After the Attorney General issued the ruling that the requested e-mails were public information under the PIA “to the extent that they relate to the official business of the county,” the Commissioner filed suit to challenge the ruling on behalf of himself in his individual capacity and on behalf of the County — i.e., the governmental body seeking to withhold information from the requestor — in his official capacity as County Commissioner. Hearst intervened, and as noted above, all three parties filed summary-judgment motions addressing the issue of whether the requested official-capacity e-mail correspondence held by the Commissioner in personal e-mail accounts is “public information” as defined by the PIA.
The trial court denied the Commissioner’s motion, granted the Attorney General’s and Hearst’s motions, and awarded attorneys’ fees to the Attorney General and Hearst. The Commissioner appeals from this final judgment.
ANALYSIS
The Commissioner challenges the trial court’s judgment in four issues, contending that (1) the e-mail in his private e-mail accounts is not subject to the PIA because the e-mail was not collected, assembled, or maintained either by a governmental body or for a governmental body that owned the information or had a right of access to the information; (2) the Attorney General inappropriately relied on the Local Government Code to conclude that private email is subject to the PIA; (3) the Attorney General’s content-based approach to analyzing what constitutes public information is not supported by the statute’s plain language, creates absurd results, confuses and expands the public-information officer’s responsibilities, and infringes on public servants’ Fourth Amendment constitutional rights; and (4) final judgment was inappropriate because the Attorney General’s and Hearst’s motions did not dispose of all claims before the trial court, and the trial court erred by awarding attorneys’ fees and costs to appellees. The Commissioner’s first three issues support his central contention that the requested official-capacity e-mail correspondence held in his personal e-mail accounts is not public information as defined by the PIA. To decide this question, we must construe the PIA’s definition of “public information,” as well as the Local Government Code’s provisions related to ownership of local government records. Accordingly, we consider the Commissioner’s first three arguments together and in the context of our construction of the applicable statutes.
Standard of review
We review the district court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). In this case, the three motions filed were essentially cross motions, with *768the Commissioner on one- side and Hearst and the Attorney General on the other. On cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one side’s motions and denies the other side’s motion, as here, we review the summary-judgment evidence presented by both sides, determine all questions presented, and if we find that the trial court erred, we render the judgment that the trial court should have rendered. See id. at 356-57.
All three parties moved for summary judgment on the legal question of whether the requested information is public information that must be released under the PIA. In particular, the Commissioner argued that (1) the Commissioner’s privately held e-mail is not “public information” as defined by the PIA; (2) Bexar County and Precinct 4 did not and do not “collect, assemble, or maintain” the information sought; the information sought was not held “by or for” the County or Precinct 4; and Bexar County and Precinct 4 do not “have access or a right of access” to the Commissioner’s individually held private email; and (3) the Commissioner is an individual, not a “governmental body” as that term is defined by the PIA, and thus, the PIA is inapplicable to individually held information. The Attorney General moved for summary judgment on the ground that the Commissioner’s personal e-mails at issue are information connected to the transaction of official county business and are public information. Hearst also moved for summary judgment on the ground that email conducting government business in non-County accounts is subject to disclosure under the PIA.
In general, matters of statutory construction are legal questions, and “[s]pecifically, whether information is- subject to the [PIA] and whether an exception to disclosure applies to the information are questions of law” that we review de novo. Id. at 357; see also State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) (explaining that appellate review of legal question of statutory construction is de novo). Our primary objective when construing statutes is to give effect to the Legislature’s intent, which we seek first and foremost in the text of the statute. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631-32 (Tex. 2008). The plain meaning of the text is the best expression of legislative intent, unless a different meaning is apparent from the context or application of the plain language would lead to absurd results. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). When a statute’s words are unambiguous, “it is inappropriate to resort to rules of construction or extrinsic aids to construe the language.” City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex.2008).
The PIA
The PIA’s purpose is to provide the public with access to complete information about government affairs and the official acts of public officials and employees. Tex. Gov’t Code § 552.001(a); Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 293 (Tex.2011). In support of this purpose, the PIA directs that it be liberally construed in favor of disclosure of requested information. See Tex. Gov’t Code § 552.001; Jackson, 351 S.W.3d at 293. When public information is requested from a governmental entity, it must be promptly produced for inspection, duplication, or both. Tex. Gov’t Code § 552.221 (requiring prompt production of public information). The PIA contains a non-exclusive list of categories of public information, see id. § 552.022, as well as certain specific *769exceptions from required disclosure, see id. §§ 552.101-.154.
If a governmental body considers the requested information exempt from disclosure, and there has been no previous determination about the requested information, the governmental body must submit to the attorney general written comments stating why any claimed PIA exceptions apply and must request an opinion from the attorney general about whether the information falls within the claimed PIA exceptions. Id. § 552.301; City of Houston v. Houston Chronicle Publ’g Co., 673 S.W.2d 316, 323 (Tex.App.-Houston [1st Dist.] 1984, no writ) (“Where the custodian thinks that information is not public, and there has been no previous applicable decision it must be submitted to the Attorney General for a decision or it will be presumed to be public information.”). The governmental body must also submit a copy of the specific information requested or submit representative samples of the information, if a voluminous amount of information was requested. Tex. Gov’t Code § 552.301. If the governmental body does not timely request an attorney general opinion as provided in Section 552.301, the information is presumed public. Id. § 552.302.
If the attorney general determines that the requested information must be disclosed to the requestor, the governmental body may seek declaratory, relief from compliance with the decision. Id. § 552.324. In addition, the requestor or the attorney general may seek mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to supply information that the attorney general has determined is public information not excepted from disclosure. Id. § 552.321. The PIA also contemplates that an “officer for public information or other person or entity” may file “a suit seeking to withhold information from a requestor,” but they may not file suit against the requestor. Id. § 552.325(a). In an action brought under Section 552.321, the PIA requires the trial court to assess costs of litigation and reasonable attorneys’ fees incurred by a plaintiff (i.e., the requestor or attorney general) who substantially prevails, unless the court finds that the governmental body acted in reasonable reliance on (1) a judgment or court order applicable to the governmental body; (2) the published opinion of an appellate court; or (3) a written decision of the attorney general. Id. § 552.323(a). In an action brought under Section 552.324, the court may assess costs of litigation and reasonable attorneys’ fees incurred by a plaintiff (i.e., the governmental body) or defendant (i.e., the attorney general) who substantially prevails. Id. § 552.323(b). In exercising its discretion under this subsection, the court shall consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith. Id.
Public information
The central question in this case is whether official-capacity e-mails held by the Commissioner in his personal e-mail accounts are public information as defined by the PIA. The Commissioner contends that e-mails held in personal accounts can never be public information, regardless of their content. The PIA defines “public information” as:
information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:
(1) by a governmental body; or
(2) for a governmental body and the governmental body owns the infor*770mation or has a right of access to it.4
Former Tex. Gov’t Code § 552.002(a); see also In re City of Georgetown, 53 S.W.3d 328, 331 (Tex.2001) (orig. proceeding) (“ ‘Public information’ is broadly defined in the Act .... ”). If the information in the official-capacity e-mails contained in the Commissioner’s personal e-mail accounts 1) is collected, assembled, or maintained for the County; 2) is connected “with the transaction of official business” for the County; and 3) the County either owns or has a right of access to the information, then the information is public information under the statutory definition.5 We address these dispositive components of the definition below.
1) Information held in connection with the transaction of official business
As a preliminary matter, we must clarify the meaning of the terms used by all the parties. The requests sought only “official-capacity e-mails.” Specifically, the requests sought e-mails between Commissioner Adkisson and two citizens “related to [Adkisson’s] official capacity as a county commissioner and/or chairman of the [Metropolitan Planning Organization]” and all correspondence between Commissioner Adkisson and six other people from devices “used in official capacity.” (Emphases added.) In addition, Hearst’s request explicitly excluded “e-mails of a personal nature.” The Attorney General’s letter ruling declared that to the extent the requested e-mails “relate to the official business of the county,” the County must release the information. The PIA definition refers to information retained “in connection with the transaction of official business.” Thus, we must determine whether “official-capacity e-mails” that “relate to the official business of the county” are information held “in connection with the transaction of official business.”
We first consider the meaning of the non-statutory terms at issue because we must determine whether the statutory definition of “public information” encompasses the requested information that the Attorney General, ordered disclosed. We begin by examining the meaning of “official capacity” and “official business.” “Official” means “belonging or relating to an office, position, or trust: connected with holding an office,” while “capacity” is defined as “position, character, or role” and “business” means “affair, matter.” Webster’s Third New Inti Dictionary 302 (“business”), 330 (“capacity”), 1567 (“official”) (2002). In this case, then “official capacity” means relating to the Commissioner’s office or position as Bexar County Precinct 4 County Commissioner, which includes the position he holds on the Met*771ropolitan Planning Organization as a Bex-ar County representative. E-mails sent or received in his official capacity would thus mean e-mails sent or received that are related to his County government position as Commissioner. Similarly, “official business” means an affair or matter related to his County government role.6 “Relates to,” which is part of the meaning of “official capacity” and “official business,” in addition to being used in the Attorney General’s ruling, means “to have a connection with, to refer to, or to concern” and is very broad in its ordinary usage. Texas Dep’t of Pub. Safety v. Abbott, 310 S.W.3d 670, 674-75 (Tex.App.-Austin 2010, no pet.). Accordingly, information in “official-capacity e-mails” that “relate to the official business of the county” is information in emails sent or received in Adkisson’s role as Commissioner that is connected with, refers to, or concerns an affair or matter that he is involved with in his County government role.
Next, we turn to the statutory language at issue and examine the plain meaning of the phrase “information [held] in connection with the transaction of official business.” See Molinet, 356 S.W.3d at 411. We consider the entire act when determining the Legislature’s intent with respect to specific statutory provisions, see Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex.2011), and we read words and phrases in context and construe them according to the rules of grammar and common usage, Tex. Gov’t Code § 311.011.
As discussed above, “official business” means an affair or matter related to the Commissioner’s County government role as Commissioner. The key word remaining to be analyzed is “transaction.” “Transaction” means “an act, process, or instance of transacting: as a communicative action or activity involving two parties or two things reciprocally affecting or influencing each other.” Webster’s Third New Int’l Dictionary 2425 (2002). While the word “transaction” has more than one dictionary definition, this meaning is the only one that is reasonable when considered in the context of the PIA as a whole. See Gulf Metals Indus, v. Chicago Ins. Co., 993 S.W.2d 800, 806 (Tex.App.-Austin 1999, pet. denied). The PIA’s express purpose is to provide the public with “complete information about the affairs of government and the official acts of public officials and employees.” Tex. Gov’t Code § 552.001(a). When viewed in light of this purpose, “the transaction of official business” must include communications involving two parties that reciprocally affect or influence each other in a matter related to official business. See City of Garland, 22 S.W.3d at 359 (concluding that draft prepared by city employee was public information because it was used “in connection with transacting official business” when city manager circulated it to city council and used it to consult with council about how to handle a personnel problem, “a decision involving the City’s official business”).
The Commissioner argues that the mere creation of a document is not transacting official business. He relies on *772City of Garland for the proposition that the document must be used in connection with the transaction of official business in order to be considered “public information” under the PIA. See id. He contends that summary judgment was improper because the Attorney General and Hearst have not presented evidence that the requested e-mails were used in the transaction of official County business.7 In a PIA case, however, the governmental body (here, the County represented by the Commissioner in his official capacity) seeking to withhold information bears the burden of demonstrating that the requested information is either not public information or falls within an exception from disclosure under the PIA. See Thomas v. Cornyn, 71 S.W.3d 473, 480-81, 488 (Tex.App.-Austin 2002,- no pet.) (explaining that placement of burden of proof upon governmental body in, judicial proceeding is consistent with PIA’s strong policy favoring disclosure of public information and PIA’s placement of burden on governmental body when seeking open-records determination from attorney general).
The holding in City of Garland supports the definition of “information [held] in connection with the transaction of official business” as including communications involving parties that reciprocally affect or influence each other in a matter related to official business. While the court did state that “the mere creation of a draft is not transacting official business,” it further explained that a draft document-“used in connection with transacting official business” becomes public information. 22 S.W.3d at 359 (emphasis added). The court held that a draft document that was circulated to the city council and used when considering a matter involving official city business was a document “used in connection with transacting official business.” Id. In this case, a draft e-mail that was never sent to anyone would not be public information, but e-mail correspondence between the Commissioner in his official capacity and other people discussing County government matters that he is involved with is information used in connection with transacting official business. To conclude otherwise would lead to the absurd result that the Commissioner could conduct all his official County business correspondence through his personal e-mail accounts without it being subject to the PIA, even if the same correspondence would be subject to the PIA if he used his County e-mail account.
Although the Attorney General’s determination that the Commissioner should release e-mails that “relate to the official business of the county” sounds, when first considered, as if it would encompass a broader scope of information than e-mails *773retained “in connection with the transaction of official business,” when the Attorney General’s phrase is considered in the context of the request for “official-capacity e-mails,” it becomes clear that the Attorney General’s phrase has the same meaning here as the statutory phrase. Applying the terms’ plain meaning, the Attorney General decided that the Commissioner should release e-mails retained in his personal e-mail accounts that are related to his office or role as Commissioner and that have a connection with, refer to, or concern County business that Adkisson is involved with in his role as Commissioner. These e-mails sent or received in the Commissioner’s official capacity that are connected with County business that the Commissioner is involved with are transactions of official business because they are communications involving two parties that reciprocally affect or influence each other. In other words, if the Commissioner is communicating in his official capacity about official County business, he is “transacting official business” and the communications satisfy the definition of “public information,” assuming the other components of the definition are satisfied.
2) Information collected, assembled, or maintained for the County and the County owns it
The Commissioner contends that information in his personal e-mail accounts is not information collected, assembled, or maintained for the County and that the County does not own or have a right of access to information in his personal e-mail accounts, even if that information concerns the transaction of official business and his position as Commissioner. We disagree.
The Local Government Code defines a “local government record” as:
any document ... regardless of physical form or characteristic and regardless of whether public access to it is open or restricted under the laws of the state, created or received by a local government or any of its officers or employees ... in the transaction of public business.
Tex. Loc. Gov’t Code § 201.003(8). Local government records are subject to the PIA. Id. § 201.009. As discussed above, to the extent the Commissioner communicated in his official capacity with others by email in his personal accounts about official business, those e-mails are documents created or received by him in the transaction of public business; thus, they are. “local government records.” See id. § 201.003(8).
The Local Government Code declares these records to be public property subject to the provisions of Title 6, Subtitle C of the Code, which establishes standards for records management, preservation, and access. See id. §§ 201.002 (describing purpose of Subtitle C), .005(a) (declaring local government records to be public property). The Code also explicitly states that “[a] local government officer or employee does not have, by virtue of the officer’s or employee’s position, any personal or property right to a local government record even though the officer or employee developed or compiled it.” Id. § 201.005(b). In addition, Hearst submitted as summary-judgment evidence the administrative policy establishing the records-management program for the Office of Commissioners Court of Bexar County. That policy defines “records of the Office of Commissioners Court of Bexar County” as:
all documents ... regardless of physical form or characteristic and regardless of whether public access to the information recorded therein is open or restricted under the laws of the state, created or received by this office or any of its officers or employees ... in the transaction of public business.
*774(Emphasis added.) As a result, any local government records collected, assembled, or maintained in the Commissioner’s personal e-mail accounts belong to the County, not to the Commissioner in his individual capacity. Conducting County business through a personal e-mail account instead of through an official County e-mail account does not change the County’s ownership of the local government records created or received by the Commissioner as a County government officer.8
Having determined that the County owns any information created or received by the Commissioner in the transaction of public business that is contained in the Commissioner’s personal e-mail accounts, we must also ascertain whether the information is collected, assembled, or maintained for the County. See Murphy v. City of Austin, No. 03-04-00332-CV, 2005 WL 309203, at ⅜3 (Tex.App.-Austin Feb. 10, 2005, no pet.) (mem. op.) (explaining that right of access alone cannot render information public when determining whether information held by private entity was maintained for governmental body). The Commissioner argues only that he, as an individual, owns the information in his personal e-mail accounts, and Bexar County does not own or possess access to the accounts. We infer that he also argues, therefore, that he is not maintaining any information in those accounts for Bexar County. Separate from any arguments about ownership or right of access, we must determine whether County-owned information held by the Commissioner in his personal e-mail accounts is information held for the County. See id.
The Commissioner, as an elected Bexar County officer, “is the officer for public information and the custodian, as defined by Section 201.003, Local Government Code, of the information created or received by that county officer’s office.” Tex. Gov’t Code § 552.201(b); see also Tex. Loc. Gov’t Code § 201.003(2) (defining “custodian” as “the appointed or elected public officer who by the state constitution, state law, ordinance, or administrative policy is in charge of an office that creates or receives local government ' records”). Accordingly, he is charged with the statutory duty of acting for the County as the public-information officer and custodian of information for his County office. Tex. Gov’t Code § 552.203 (establishing public-information officer’s duty to protect public information and make it available for public inspection and copying); see also Tex. Loc. *775Gov’t Code § 203.002 (duties and responsibilities of elected county officers as records-management officers). In other words, as Commissioner, he is responsible for maintaining public information created or received by him or by his employees or his office — no matter where that information is physically created or received— for the County. See Tex. Loc. Gov’t Code § 201.003(8) (defining “local government record” to include documents created or received by a local government or any of its officers or employees in the transaction of public business, “regardless of physical form or- characteristic and regardless of whether public access to it is open or restricted under the laws of this state”). Consequently, we conclude that the requested information, which is owned by the County, is information collected, assembled, or maintained for the County.9
To summarize, under these circumstances, official-capacity e-mails related to official County business are necessarily information held in connection with the transaction of official business, and this information is held for the County, which owns it. Thus, it satisfies the PIA’s definition of “public information.” Accordingly, we overrule the Commissioner’s first three issues.
3) Common-law privacy
In his fourth issue on appeal, the Commissioner contends that the summary judgment was not final because it did not dispose of all claims before the trial court. He asserts that now that the information has been determined to be public, the trial court must still determine whether the information is excepted from disclosure under PIA Section 552.101 and the doctrine of common-law privacy. Hearst and the Attorney General assert that the Commissioner waived his claim to any exceptions by failing to provide a representative sample of documents for the Attorney General to consider, by failing to raise the issue in response to their summary-judgment motions, and by refusing to provide the records to the trial court for in camera review.
In this case, the Commissioner sought declaratory relief from compliance with the Attorney General’s ruling that the requested information is public information under the PIA and must be released. See Tex. Gov’t Code § 552.324. Hearst and the Attorney General moved for summary judgment on the sole ground that the requested information is public information as defined by the PIA, and thus, must be released. The Commissioner also moved for summary judgment on the same issue, contending that the information is not subject to the PIA, and therefore, it is *776not required to be released. When both sides move for summary judgment, each side must carry its own burden as the movant, and also as the nonmovant, in response to the other side’s motion. See City of Garland, 22 S.W.3d at 356. Once Hearst and the Attorney General established the elements of their claim as a matter of law, the burden shifted to the Commissioner as nonmovant to expressly state any reasons seeking to avoid summary judgment and to produce any summary-judgment evidence raising a fact issue that would preclude the release of the documents. See City of Houston v. Clear Creek Basin Autk, 589 S.W.2d 671, 678 (Tex.1979). To the extent the Commissioner contends that even if the information is public, it is excepted from disclosure under the PIA based on the doctrine of common-law privacy, it was his burden to raise this argument in response to Hearst’s and the Attorney General’s summary-judgment motions and to produce summary-judgment evidence to support his contention.
In his response to Hearst’s and the Attorney General’s summary-judgment motions, the Commissioner contended that he has a right to privacy that protects the requested e-mail, which is located in a personal account.10 In support, he relied on the United States Supreme Court decision in City of Ontario, Cal. v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010), for the proposition that a federal right to privacy exists in a governmental workplace. See Quon, 560 U.S. at 756,130 S.Ct. 2619 (exploring contours of government employees’ reasonable expectation of privacy in workplace in case involving assertion by government employer in certain circumstances of right to read text messages sent and received by employee on employer-owned pager). The Commissioner never articulated, however, in his summary-judgment response or on appeal, the scope of the- privacy protection covering the e-mails at issue in this case. The Supreme Court’s opinion in Quon does not establish a broad right to privacy that would necessarily protect public information contained in a government official’s personal e-mail account.11 Here, as in Quon, it would not be reasonable for the Commissioner to conclude that his communications were in all circumstances im*777mune from scrutiny. See id. at 762, 130, S.Ct. 2619 (explaining that Quon had limited privacy expectation because he knew his messages were subject to auditing, and as law-enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, resulting in analysis of his on-the-job communications).
The only summary-judgment evidence that the Commissioner relied on to support his privacy argument was the County administrative policies concerning computer-resources use that Hearst had submitted as summary-judgment exhibits. The Commissioner asserted that these policies support summary judgment in his favor because they provide that employees retain their rights to privacy “as may be provided by state or federal law.” Standing alone, this phrase in the policies does not raise a fact issue concerning the Commissioner’s asserted privacy expectation in the requested e-mails — the scope of which he has never articulated under either state or federal law. If anything, the policies (which were approved by the Commissioners Court) demonstrate that County employees have a limited privacy expectation in their e-mail communications. The policies state that “[EJmployees have no right to privacy with regard to e-mail or Internet access, except as may be provided by state or federal law.” (Emphasis added.) They also provide that the employees’ email and other communications may be viewed and monitored.12
When the Commissioner voluntarily took on his elected office, including his role as the public-information officer for his office, he relinquished some of the privacy expectations of a private citizen, at least in connection with his work as a County Commissioner. As an elected County official and the public-information officer for his County office, the Commissioner would or should have known that documents created or received by him, his employees, or his office in the transaction of public business were records potentially subject to review under the PIA or for any variety of other reasons, regardless of where they are physically located. See Quon, 560 U.S. at 762; 130 S.Ct. 2619. While the Commissioner may have some reasonable expectation of privacy in his personal information, there is no right to privacy protecting public information or local government records merely because the Commissioner has maintained that information in his personal e-mail accounts. Moreover, in this particular case, the Commissioner’s privacy interest in his personal information is not implicated at all because the Commis*778sioner, as the public-information officer for his office, is the person responsible for searching for and releasing responsive information from his own e-mail accounts.13 The County policies that the Commissioner relied on as summary-judgment evidence reinforce this conclusion and do not raise an issue of material fact on the Commissioner’s argument that the documents should be excepted from disclosure under PIA Section 552.101 and the doctrine of common-law privacy.
To the extent the Commissioner may also be contending-that specific responsive e-mails (i.e., e-mails transacting official business) are somehow protected by the common-law privacy doctrine in whole or in part, his failure to explain how the release of documents concerning the transaction of official business could be confidential under this doctrine is fatal to his contention. Information is deemed confidential by law under the common-law privacy doctrine if: (1) the information contains highly intimate or embarrassing facts about a person’s private affairs, the publication of which would be highly objectionable to a reasonable person; and (2) the information is not of legitimate concern to the public. Industrial Found, of the S. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 682-88, 685 (Tex.1976) (interpreting former version of PIA). The Commissioner did not provide any specific examples, either in the affidavit he filed in support of his summary-judgment motion or by submitting documents to the Attorney General (as required under the PIA) or in camera to the trial court, of private information that would be contained in e-mails satisfying the definition of public information. See id. at 688, 685-86 (deciding that affidavit raised fact issue concerning privacy doctrine when it alleged that claims filed with industrial-accident board contained information about private matters that would cause extreme embarrassment to the injured claimant, including claims related to sexual assault, illegitimate children, pregnancy, psychiatric treatment of mental disorders, injuries to sexual organs, injuries from attempted suicide, and physical or mental abuse by co-employees or supervisors and remanding to trial court for in camera review of requested documents). It was the Commissioner’s burden to raise a fact issue precluding release of the documents. Without any evidence to support the Commissioner’s claim that the requested information is protected by the common-law privacy doctrine, he has not carried his summary-judgment burden to show that the information is excepted from disclosure under PIA Section 552.101. The trial court’s summary judgment dis*779posed of all issues before it and was a final judgment.
4) Attorneys’ fees
Also in Ms fourth issue, the Commissioner challenges the trial court’s award of costs and attorneys’ fees to both the Attorney General and Hearst. The Attorney General sought fees under PIA Section 552.323(b), which governs fee awards in suits under Section' 552.324 brought by governmental bodies seeking to withhold information, and Hearst sought fees under PIA Section 552.323(a), which governs fee awards in suits under Sections 552.321 or 552.3215 for writ of mandamus or for declaratory judgment against a governmental body. See Tex. Gov’t Code § 552.323(a)-(b). The Commissioner contends that (1) the Attorney General is not entitled to costs and attorneys’ fees because he is a defendant in the suit, not a plaintiff, see id. § 552.323(a); (2) Hearst is not entitled to costs and attorneys’ fees because its mandamus petition named only the Commissioner, who is not a governmental body, see id. § 552.321; (3) even if Hearst is entitled to costs and attorneys’ fees, they should not be awarded because the Commissioner acted in reasonable reliance on a published appellate court opinion, see id. § 552.323(a); (4) alternatively, although costs and attorneys’ fees may be awarded when a governmental body sues under PIA Section 552.324, the trial court must consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith, and he argues that no evidence of bad faith or lack of reasonable basis in law exists, see id. § 552.323(b); and (5) the award of costs and attorneys’ fees was premature because the judgment was not final. Addressing the Commissioner’s last argument first, we have already determined that the trial court’s judgment is a final judgment; therefore, the award of costs and fees was not. premature.
We turn next to the dispositive questions concerning the attorneys’ fee award: did the trial court abuse its discretion by awarding fees to the Attorney General under Section 552.323(b) and to Hearst under Section 552.323(a)? Section 552.323(b) provides:
In an action brought under Section 552.324, the court may assess costs of litigation and reasonable attorney’s fees incurred by a plaintiff or defendant who substantially prevails. In exercising its discretion under this subsection, the court shall consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith.
Id. § 552.323(b). The Commissioner contends that the trial court should not have awarded fees to the Attorney General because there is no evidence in the record to support a finding of lack of reasonable basis in law for the County’s conduct in withholding the documents or of bad faith in bringing the litigation. The PIA entrusts attorneys’ fee awards to the trial court’s sound discretion, subject to the requirement that any fees awarded be reasonable and the court’s consideration of whether a reasonable basis in law existed for withholding the documents and whether the litigation was brought in good faith. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998) (analyzing attorneys’ fee award under the Uniform Declaratory Judgments Act). It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal principles, or to rule without supporting evidence.14 Id. The trial court’s judg*780ment granting or denying attorneys’ fees will not be reversed on appeal absent a clear showing that the court abused its discretion. Oake v. Collin Cnty., 692 S.W.2d 454, 455 (Tex.1985).
The Commissioner’s position throughout this litigation has been that public business conducted through his personal e-mail accounts can never be public information under the PIA and that he as a Commissioner is not a governmental body and thus is not subject to the PIA. He refers us to a Dallas Court of Appeals opinion and an Attorney General opinion as the reasonable basis in law that he relied on before the trial court. See City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 715 (Tex.App.-Dallas 2009, no pet.) (holding that fact issue existed concerning whether e-mails in city officials’ personal e-mail accounts are collected, assembled, or maintained by or for city and whether city has right of access to e-mails, precluding summary judgment); Tex. Att’y Gen.. OR2000-8105 at n.2 (stating that state senator, as individual person, is not governmental body subject to PIA, but that her “office clearly falls within the meaning of ‘governmental bod/ ” as defined by PIA). These cases do not support the Commissioner’s position and the Commissioner has presented no authority from this or any other jurisdiction that does. Consequently, the trial court could have reasonably determined that the County had no reasonable basis in law for withholding the information. In addition, the County failed to comply with the PIA requirements of submitting written statements supporting claimed exceptions and a representative sample of documents, and the Commissioner has equivocated about the existence of responsive information — all actions that the trial court could reasonably have considered when determining whether the County withheld the information in good faith. Therefore, the trial court acted within its discretion when it awarded costs and attorneys’ fees to the Attorney General under PIA Section 552.328(b).
For essentially the same reasons, the trial court acted within its discretion when it awarded costs and attorneys’ fees to Hearst under Section 552.323(a). Section 552.323(a) provides:
In an action brought under Section 552.321 or 552.3215, the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails, except that the court may not assess' those costs and fees against a governmental body if the court finds that the governmental body acted in reasonable reliance on:
(1) a judgment or an order of a court applicable to the governmental body;
(2) the published opinion of an appellate court; or
(3) a written decision of the attorney general, including a decision issued under Subchapter G1 or an opinion issued under Section 402.042.
Tex. Gov’t Code § 552.323(a). As explained above, the trial court could have reasonably determined that the County did not act in reasonable reliance on the appellate court’s opinion in City of Dallas. Therefore, the trial court acted within its discretion when it awarded fees and costs to Hearst.15 We overrule the Commissioner’s fourth issue.
*781The Commissioner also asks this Court to clarify the trial court’s award of attorneys’ fees, asserting that direction is needed as to whether Bexar County or Tommy Adkisson in his individual capacity is ordered to pay fees and costs. The Attorney General and Hearst sought fees from “Tommy Adkisson, Individually and Officially on Behalf of Bexar County, Texas, as County Commissioner Pet. 4, Plaintiff’ — i.e, both the Commissioner-individually and the County as represented by the Commissioner in his official capacity — and the trial court awarded those fees without apportioning liability.
The underlying request for information was originally delivered to the County, and under the PIA, it was the County’s duty to promptly produce the information. See id. § 552.221. We have already concluded that the requested information was owned by the County and that the Commissioner, as public-information officer for his County office, collected and maintained the requested information for the County. Consequently, we conclude, under the facts of this case, that when the trial court awarded attorneys’ fees to the Attorney General and Hearst, as a matter of law, the award could only be imposed against Bexar County as the governmental body on behalf of which the Commissioner filed suit and against which Hearst filed its suit. See id. §§ 552.321, .3215, .323, .324. Accordingly, we modify the trial court’s judgment to reflect that only Bexar County, the governmental body on behalf of which the Commissioner filed suit in his official capacity and against which Hearst filed its suit, is liable for the attorneys’ fees awarded under the PIA to the Attorney General and Hearst.
CONCLUSION
We have determined that the requested information is public information as defined by former Section 552.002 of the PIA and that the trial court did not abuse its discretion by awarding attorneys’ fees to Hearst and the Attorney General. However, we modify the trial court’s judgment to reflect that only Bexar County is liable for the attorneys’ fees awarded under the PIA to the Attorney General and Hearst, and we affirm the judgment as modified.
. Greg Abbott was the Attorney General of Texas when the Commissioner filed suit. Abbott's successor, Ken Paxton, has been automatically substituted as a party defendant. See Tex. R. App. P. 7.2(a).
. This background information about the San Antonio-Bexar County Metropolitan Planning Organization was provided in Adkisson’s summary-judgment motion and appears to be uncontested.
. The Attorney General issued substantively similar letter rulings for both requests, reaching the same conclusion in both. Likewise, our analysis applies to both requests.
. This is the version of Section 552.002 that was in effect when the PIA requests at issue here were made in 2010. See Act of May 29, 1995, 74th Leg., R.S., ch. 1035, § 2, sec. 552.002, 1995 Tex. Gen. Laws 5127, 5127. The Texas Legislature amended the statute in 2013. See Act of May 24, 2013, 83d Leg., R.S., ch. 1204, § 1, sec. 552.002, 2013 Tex. Sess. Law Serv. 3012, 3012-13 (West) (amending definition of "public information”). We refer to the prior version as "former” Section 552.002 for convenience.
. The Commissioner does not appear to dispute that all information in his personal email accounts was "collected, assembled, or maintained” in those accounts or that there is any difference between the three terms that is significant to the issue of whether the official-capacity e-mails are public information. Instead, he focuses on whether the official-capacity e-mails were collected, assembled, or maintained for Bexar County and whether Bexar County owns or has a right of access to the official-capacity e-mails. Thus, we use the terms “collected, assembled, or maintained” interchangeably for purposes of this opinion, along with the terms "held” or "retained.”
. This meaning is consistent with the definition provided by the Legislature when it amended the PIA in 2013. The term "official business" had not been defined in the prior version of the statute. In the amended version of the statute, " '[ojfficial business' means any matter over which a governmental body has any authority, administrative duties, or advisory duties.” See Act of May 24, 2013, 83rd Leg., R.S., ch. 1204, § 2, sec. 552.003, 2013 Tex. Sess. Law Serv. 3012, 3013 (West) (adding definition of "official business”) (current version at Tex. Gov’t Code § 552.003(2-a)).
. The Commissioner also asserts in his reply brief that he has never admitted that the requested e-mails related to his official capacity as a county commissioner or Chairman of the Metropolitan Planning Organization relate to or were used in the transaction of official business of Bexar County. We note that his counsel conceded at the summary-judgment hearing, when pressed on the issue by the trial judge, that the Commissioner never unequivocally stated in any response or pleading that there were no existing communications in his personal accounts related to official business of the County, Precinct 4, or the Metropolitan Planning Organization. It is unclear why the Commissioner continues to equivocate about the existence of responsive e-mails on appeal. ' It is hot the Attorney General's or the requestor’s burden to prove that responsive e-mails exist. If the Commissioner has no e-mails related to the transaction of official business in his personal e-mail accounts, then there would have been no need for him to file suit seeking declaratoiy relief from the Attorney General’s rulings requiring the information to be released. Thus, we proceed on the assumption that the Commissioner has e-mails related to the transaction of official business in his personal e-mail accounts.
. The Commissioner argues that the Local Government Records Act is based on an understanding that the governing body is in physical possession of the local government record and therefore has a responsibility to ■ maintain the record in accordance with the Act’s provisions. See generally Tex. Loc. Gov't Code §§ 201.001-205.010. He contends that if a local government record is in private possession, the record is not automatically subject to the PIA, like other local government records. Instead, he suggests that some affirmative step must be taken by the governing body to establish access to informa- > tion and that the governing body must follow the procedures in Section 202.005 of the Local Government Code to recover the record. See id. § 202.005 (establishing process by which governing body may petition district court for return of local government record if person in possession refuses to deliver record on demand). However, Section 202.005 applies only to "any local government record in private possession created or received by the local government the removal of which was not authorized by law." Id. § 202.005(a) (emphasis added). None of the parties to this case suggest that the Commissioner’s decision to conduct County business in personal e-mail accounts was not authorized by law. Thus, Section 202.005 neither applies to this case, nor leads to the conclusion that a local government record must be in the governing body’s physical possession to be subject to the PIA.
. The County had also raised the issue of common-law privacy in its requests for letter rulings. In the County’s first request for a letter ruling from the Attorney General, it explained that it had not submitted a representative sample of responsive e-mails contained in the Commissioner’s personal e-mail accounts because of the County's conclusion that the Commissioner has a legitimate expectation of privacy in his home and home computer and because no probable cause existed for a search and a warrantless search would violate his rights under the United States and Texas Constitutions. The County claimed no exceptions to disclosure, however, arguing only that the information was not "public information" as defined by the PIA. In the County’s second request for a letter ruling from the Attorney General, it reiterated its reasoning for not submitting a representative sample of documents, but it also asserted a number of exceptions to disclosure. One of those asserted exceptions was Section 552.101. See Tex. Gov’t Code § 552.101. The County stated that it believed that this exception protected information "held confidential under case law as it pertains to common-law privacy.”
. In fact, the Court specifically declined to establish the scope of a government employee’s privacy expectations in electronic communications. City of Ontario, Cal. v. Quon, 560 U.S. 746, 759, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010). Instead, it determined that the search of Quon’s pager was reasonable, even assuming Quon had a reasonable expectation of privacy, id. at 756-57, 764-65, 130 S.Ct. 2619, explaining that "the extent of an expectation is relevant to assessing whether the search was too intrusive,” id. at 762, 130 S.Ct. 2619.
. The Commissioner makes a variety of arguments to the effect that his County Commissioner’s office is a separate governmental body from the County, and therefore, the County does not own or have a right of access to information collected, assembled, or maintained by his office. Bexar County is a governmental body and the Commissioner is a County officer who brought this lawsuit on the County's behalf. Having determined that the requested information is held for the County, which owns it, we need not decide whether the Commissioner individually is a governmental body or whether his County' Commissioner’s office is a separate govem-mental body from the County. See Tex. R.App. P. 47.1. Likewise, we need not determine whether each individual county commissioner's office is part of the larger governmental body that is the Bexar County Commissioners Court and whether information held by the Commissioner is his official County government role is information held "by" a governmental body, as opposed to "for” a governmental body that owns it. See Tex. Gov't Code § 552.003(l)(A)(ii) (defining "a county commissioners court in the state” as a "governmental body”); see also Tex. R.App. P. 47.1.
. The full provision reads as follows:
[EJmployees have no right to privacy with regard to e-mail or Internet access, except as may be provided by state or federal law. Subject to such laws, the Office/Department Official has the right to view an employee’s e-mail, Internet access records, and all other communications and documents sent, received, accessed, transferred, generated or downloaded on County owned and leased computer equipment. This rule applies to personal email accounts that have been accessed using County resources. For security and network maintenance purposes, authorized individuals within the Office/Department may monitor equipment, systems and network traffic at anytime. The Office/Department reserves the right to audit networks and systems to ensure compliance with this policy.
This language is found in all four of the policies cited by the Commissioner with one slight exception. Three of the policies were in place at the time of the Attorney General’s rulings. The fourth policy is a revised policy, which the Commissioners Court passed and approved on June 29, 2010, approximately one month after the Attorney General first ruled that the requested e-mails are public information. The revised version omits the sentence, “This rule applies to personal email accounts that have been accessed using County resources.”
. In a related argument on appeal supporting his proposed interpretation of the definition of "public information,” the Commissioner also asserts that interpreting the PIA and the Local Government Code to require the public-information officer to collect and review potentially responsive information held in a personal e-mail account is an absurd result that violates individual privacy interests and implicates public officials’ and employees’ Fourth Amendment right to be protected from unreasonable searches. See U.S. Const, amend. IV. As noted previously, however, to comply with the requests we are considering in this case, the PIA requires the Commissioner, as the public-information officer for his own office, to search his personal e-mail accounts for responsive e-mails and make the information available for public inspection or copying. Tex. Gov’t Code § 552.203(1); see also id. § 552.353 (establishing penalties for public-information officer's failure or refusal to provide access to public information). Reviewing and producing copies of his own emails raises no privacy or constitutional concerns. On rehearing, the Commissioner urges that he would have to turn over all of his personal e-mails for a determination by the Attorney General about which e-mails are public information. We reiterate that he is only required to provide responsive e-mails.
. Both Hearst and the Attorney General submitted affidavits in support of the reasonable*780ness of their attorneys’ fees, and the Commis'sioner does not challenge the reasonableness of those fees on appeal.
. The Commissioner’s remaining arguments also fail. The Attorney General sought fees under Section 552.323(b), not Section 552.323(a), so the Attorney General’s position *781in Hearst's suit for writ of mandamus is irrelevant to the appropriateness of- the trial court’s award of fees to the Attorney General under Section 552.323(b). The Commissioner’s remaining argument — that Hearst is not entitled to fees because its mandamus petition named only the Commissioner, who is not a-governmental body — -misrepresents Hearst's pleading. As all the pleadings by all the parties in this suit state, in addition to bringing suit in his individual capacity, the Commissioner brought the suit on behalf of the County, as County Commissioner Precinct 4. Hearst’s petition was filed against the sole plaintiff in the suit, the Commissioner, in both his stated capacities. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/588923/ | 972 F.2d 1218
Jerry WHITE, Petitioner-Appellant,v.Harry K. SINGLETARY, Secretary, Florida Department ofCorrections, Respondent-Appellee.
No. 90-3629.
United States Court of Appeals,Eleventh Circuit.
Sept. 3, 1992.
Billy H. Nolas, Julie D. Naylor, Ocala, Fla., for petitioner-appellant.
Richard B. Martell, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before KRAVITCH, EDMONDSON and BIRCH, Circuit Judges.
EDMONDSON, Circuit Judge:
1
Jerry White was convicted of robbing a grocery store and shooting to death a customer. The murder conviction and the sentence of death were affirmed. White v. State, 446 So. 2d 1031 (Fla.1984). White later filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The motion was denied following an evidentiary hearing. The denial was affirmed. White v. State, 559 So. 2d 1097 (Fla.1990).
2
White then petitioned the Florida Supreme Court for writ of habeas corpus; the court denied White's petition. White v. Dugger, 565 So. 2d 700 (Fla.1990). Pursuant to 28 U.S.C. § 2254, White filed for a writ of habeas corpus in the Middle District of Florida. Without holding an evidentiary hearing, the district court order denied White relief.
I.
3
White claims that he received ineffective assistance of counsel during the guilt phase and the sentencing phase of his trial. For White to prevail on this claim, he has the burden to establish two components: that his trial counsel's performance was deficient and that this performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland held that in evaluating whether a trial counsel's performance was deficient, the counsel's performance must be evaluated for "reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. at 2065. The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Id. at 689, 104 S.Ct. at 2065. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.
A. Guilt Phase
1. Voluntary Intoxication Defense
4
White asserts that his trial counsel was ineffective for failing to present the defense of voluntary intoxication because evidence existed that White was drunk at the time of the crime. White insists that many witnesses commented on White's drunken state and that a blood alcohol level taken at the hospital several hours after the crime was nearly double the legal limit under Florida's DUI statute. Had such a defense been presented, White claims, the jury might have found that he lacked the intent required for robbery or the premeditation necessary for first-degree murder.1
5
In Harich v. Dugger, 844 F.2d 1464 (11th Cir.1988) (en banc), we previously addressed this kind of issue. In Harich, defendant took the stand and testified that, although he was with the victim the evening of the murder, he was innocent of wrongdoing. Id. at 1470. He also indicated that he was under the influence of drugs and alcohol that evening. Armed with these facts, the defense counsel adopted the defense strategy of asserting chiefly factual innocence. Id. As in the present case, defendant in Harich suggested later that defense counsel should have employed the alternative defenses of voluntary intoxication. The Harich court held, however, that defendant must prove that the approach taken by defense counsel would have been used by no professionally competent counsel and that the approach taken by counsel was one which did not fall "within the objective yardstick that we apply when considering the question of ineffectiveness of counsel." Id. at 1470-71. The Harich court specifically noted that "[a]lthough inconsistent and alternative defenses may be raised, competent trial counsel know that reasonableness is absolutely mandatory if one hopes to achieve credibility with the jury." Id. at 1470. The Harich court concluded that suggesting to the jury that Harich was so drunk that he could not have intended the consequences of his acts would have totally undermined the position by Harich himself when he testified.2 Id.
6
In the present case, White's trial counsel testified at the evidentiary hearing that he rejected intoxication as a defense because it was inconsistent with the deliberateness of White's actions during the shootings. White had the presence of mind before the robbery to park his car in a direction which accessed a speedy getaway. White brought a gun with him into the store. Once inside the store, White escorted both his victims into the freezer in the back of the store and shot them in the back of their heads. White evidently brought along a set of clothes to change into after the robbery. These acts are hardly consistent with a person so impaired as to be unable to form the intent required for committing the crime charged. Thus, nothing was shown in this case to prove that White's counsel's decision not to raise the voluntary intoxication defense was beyond the range of reasonable professional judgment. As we said in Harich, "[a] competent attorney completely informed in the intoxication defense and faced with a defendant advocating his factual innocence could well have taken action identical to counsel in this case." Id. at 1471.3
7
2. Counsel's Alleged Incapacity at the Time of Trial
8
White claims that his attorney, Emmett Moran, was ineffective because Moran was under the influence of drugs and alcohol during the guilt and penalty phase of White's trial. The state trial court conducted an extensive hearing on this issue in 1986.
9
In Meeks v. Singletary, 963 F.2d 316, 319 (11th Cir.1992), we noted that "[i]t is well established that a habeas petitioner is entitled to an evidentiary hearing on a claim if he or she alleges facts that, if proved at the hearing, would entitle petitioner to relief." The Meeks court stressed, however, that "an evidentiary hearing may not be required if a state court has made findings as to those very facts." Id. In such an instance, the state court's factual findings would be entitled to a presumption of correctness as set out in 28 U.S.C. § 2254(d).
10
Evidence that Moran--at the time of White's trial in 1982--was intoxicated, through the use of alcohol and drugs, was presented at the state court evidentiary hearing. Evidence was also presented to the contrary: the trial prosecutor specifically testified that Moran had not been intoxicated at the time of the trial; and Moran himself, vehemently denied the allegations. The state court judge who presided over the hearing made a specific finding that attorney Moran "was not under the influence of any intoxicant during the trial" and stated that White failed to present credible evidence to the contrary. The Supreme Court of Florida affirmed the trial court's determination. White, 559 So. 2d at 1099. After reviewing the record, the district court concluded that the state court was justified in finding counsel was under the influence of neither alcohol nor drugs during his representation of White. Because White failed to prove an exception to the presumption of correctness owed by federal courts to state courts, we will not disturb the district court's finding.
11
White also contends that Moran suffered serious health problems which affected his ability to render effective assistance of counsel. Although it is undisputed that Moran had health problems, the district court specifically found that none made his legal assistance constitutionally ineffective. See Messer v. Florida, 834 F.2d 890, 897 (11th Cir.1987) (a tired trial attorney is not necessarily an ineffective attorney); King v. Strickland, 714 F.2d 1481, 1489 (11th Cir.1983) (same). Again, we accept the district court's findings.
3. Counsel's Handling of Voir Dire
12
White complains that counsel was ineffective for failing to object to the excusal for cause of those jurors who were reluctant to impose the death penalty. White also insists that counsel was continually confused as to the number of peremptory challenges allotted to him and was incompetent when he allowed jurors who had read about the case to become jurors.
13
The record reflects that the five prospective jurors who were excused for cause due to their views on the death penalty had all stated that they were unalterably opposed to the death penalty and would not impose the death penalty under any circumstances. In Straight v. Wainwright, 772 F.2d 674 (11th Cir.1985), we held that it cannot be assumed that veniremen opposed to the death penalty could have been persuaded to change their positions due to a rehabilitation effort on the part of defense counsel. Because it cannot be assumed that counsel could have changed the strong opinions of these prospective jurors, White's contention that counsel was ineffective for failure to rehabilitate is meritless.
14
White complains that Moran was confused about the number of peremptory challenges he had available. The record indicates that the trial judge erroneously advised White's counsel that counsel was out of peremptory challenges. White argues that the court's mistake "confused" defense counsel.4 The court, however, realized the mistake the next day and told counsel that he had one peremptory challenge left. Counsel then used this challenge. No prejudice resulted to White as the trial judge allowed both parties to backstrike up until the time the jury was sworn. White, therefore, has shown neither deficient performance on this claim nor prejudice. See Strickland, supra.
15
White next says that counsel should have allowed no jurors to sit who had read about the case. In Bertolotti v. Dugger, 883 F.2d 1503, 1521 (11th Cir.1989), we held that if jurors can lay aside preconceptions and base their verdict on the evidence adduced at trial, they need not be completely unaware of the facts of a given case. The jurors who had read about the White case indicated that they maintained no preconceived opinions about the case. Thus, according to Bertolotti, these jurors did not need to be excused, and thus counsel was not ineffective for failing to excuse them. Once again, therefore, White has not sustained his burden of proof on this claim or showed prejudice. See Strickland, supra.
4. Counsel's Handling of the Trial
16
White presents an exhaustive list of what he views as counsel's errors at trial, stressing that counsel failed to elicit appropriate information from several of the state's witnesses. What White cites as "errors," however, simply constitute counsel's trial strategy. At the state court evidentiary hearing, the court concluded that counsel purposely chose a rambling style to confuse witnesses and, in turn, to raise doubt in the minds of the jury. White, 559 So. 2d at 1100. The district court agreed with the state court's conclusion and specifically noted that the "rambling, 'confused' approach was employed by trial counsel in an effort to make the state's evidence appear disjointed and to emphasize any reasonable doubt in the jurors' mind."
17
Apart from the rambling style of defense counsel, White has failed to point out what testimony gleaned from the state's witnesses would have changed the outcome of the trial. In Aldrich v. Wainwright, 777 F.2d 630 (11th Cir.1985), we held that the prejudice requirement under Strickland is never satisfied where petitioner fails to indicate what information defense counsel should have discovered and what impact such information would have had on impeachment of state witnesses. Once again, therefore, White has failed to satisfy the requirements of Strickland on this claim of ineffective assistance.5
18
5. Counsel's Handling of the Suppression Motion
19
White also contends that trial counsel rendered ineffective assistance in his handling of a suppression motion during the trial. White, while at a hospital, gave a statement to the police to the effect that he had entered the store when no one else was there and had been shot by a black man. The issue at the state court suppression hearing was whether White's statement, which was used only for impeachment, was voluntary. White claims he was given Demoral before making the statement, and insists that counsel should have introduced expert testimony at the state suppression hearing about the effects of Demoral. White also contends that trial counsel's announcement to the jury that he was moving to suppress the statement, represented deficient conduct. Although the district court addressed the issue of the admissibility of White's statement and found it to be properly admitted, the district court did not specifically address this claim of ineffective assistance of counsel.
20
White's medical records introduced into evidence indicated that White was given an injection of Demoral fifteen minutes after the police took his statement. The record contains journal entries which, in sequential order, list the arrival of the detectives, the reading to White of his Miranda rights, and then the administration of Demoral. No evidence was ever presented that White was given any drug before his interview with the police. Thus, if White's trial counsel had tried to present expert evidence on the effects of Demoral, such evidence would have been disregarded because it was irrelevant.
21
6. Counsel's Alleged Disloyalty to his Client
22
White contends that his counsel made a number of racist statements, as well as other comments which could be interpreted as disparaging remarks about him. White claims his representation was thus tainted by his counsel's racist attitudes and flagrant disloyalty.
23
The district court made extensive findings and flatly rejected White's claim of disloyal counsel. Rather than being disloyal, it appears counsel did much to insure White's acquittal.6 We adopt the district court's findings of fact on this issue as not clearly erroneous and therefore reject White's claim of ineffective assistance of counsel on this issue.7
B. Sentencing Phase
24
White argues that he received ineffective assistance of counsel during the sentencing phase of his trial. He contends that his counsel at sentencing was unprepared to put on an effective defense.
25
1. Counsel's Alleged Failure to Prepare and Present
Background Information in Mitigation
26
White says that trial counsel failed to conduct an adequate investigation into his background and history, resulting in the deprivation of powerful evidence in mitigation which could have been used at the penalty phase of trial. He claims that as a result he was denied effective assistance of counsel.
27
While "[i]t should be beyond cavil that an attorney who fails altogether to make any preparations for the penalty phase of a capital murder trial deprives his client of reasonably effective assistance of counsel by any objective standard of reasonableness," see Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.1985), it is unclear how detailed an investigation is necessary to provide a defendant with the effective assistance of counsel. Strickland only requires that counsel's actions fall within the wide spectrum of what can be considered reasonable assistance of counsel.
28
In Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir.1989), we recognized that:
29
[g]iven the finite resources of time and money that face a defense attorney, it simply is not realistic to expect counsel to investigate substantially all plausible lines of defense. A reasonably competent attorney often must rely on his own experience and judgment, without the benefit of a substantial investigation, when deciding whether or not to forego a particular line of defense without substantial investigation so long as the decision was reasonable under the circumstances.
30
In the present case, counsel had spoken with family members in preparing for the penalty phase. After concluding his investigation, counsel called five witnesses to testify at the penalty phase, including White's uncle, mother and fiance. They testified to the hardships of White's life: the deaths of White's father and stepfather, being raised by his mother alone, the health problems he had, and his trouble with alcohol. They also testified about White's good character.
31
At the state court evidentiary hearing on whether counsel was ineffective for failing to investigate further into White's background, the same witnesses who had testified at the initial penalty phase proceeding testified again. Much of the identical testimony was presented at this time, only in greater detail.8 We cannot say that every reasonable and fully informed attorney would, in the context of this case, have presented at the penalty phase more testimony on the hardships of the White family. See Bertolotti, 883 F.2d at 1519 ("[B]ecause the evidence itself has substantial internal weaknesses, we question whether counsel would have presented the evidence to the jury had counsel possessed it."). Nor can we say that deciding not to dwell on the hardship testimony deprived White of effective assistance of counsel. White's counsel's strategy for the penalty phase was to present White in the best possible light and to avoid contradicting White's trial testimony. Thus, he tailored the evidence presented at the penalty phase to fit his strategy. We cannot say that White's trial counsel strategy was unreasonable.
32
White insists, however, that, under the law, his counsel should have investigated further to uncover as much evidence in mitigation as possible. Unlike the case of Cunningham v. Zant, 928 F.2d 1006, 1017 (11th Cir.1991), in which we faulted trial counsel for failing to present any evidence to the jury on defendant's minimal schooling, on his poverty-stricken socioeconomic background, or on the fact his father died when he was five, in the present case, White's counsel did bring in evidence of White's difficult upbringing. In Blanco v. Singletary, 943 F.2d 1477, 1501 (11th Cir.1991), we held that counsel was ineffective because he failed personally to seek out any witnesses specifically for sentencing. Again, however, the present case can be distinguished because White's counsel did find and call five witnesses to testify on his behalf at the penalty phase. Although "[a] lawyer can almost always do something more in every case ... the Constitution requires a good deal less than maximum performance." Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir.1992). In this case, counsel did enough. See id.
33
White's counsel in this case investigated White's background and presented at the penalty phase that evidence which he thought would be most helpful. White, therefore, has failed to show how his counsel's actions deprived him of effective assistance of counsel. In addition, White failed to show how he was prejudiced by his counsel omitting the additional background information from the penalty phase. See Strickland, supra.
34
2. Counsel's Alleged Failure to Present Evidence of
Intoxication in Mitigation
35
White contends that counsel failed to present expert testimony about the effects of White's intoxication. As discussed above, counsel did present some evidence of White's intoxication during the sentencing phase of the trial.
36
Both White's uncle and mother testified at the sentencing hearing that White "shouldn't drink" because he suffers from blackouts. White insists, however, that reasonably competent counsel would necessarily have presented expert testimony on White's history of intoxication and intoxication at the time of the offense.9
37
Once again, we are presented with a question of judgment for counsel. It was counsel's strategy not to dwell on the intoxication issue for principally two reasons: (1) the evidence contradicted the trial testimony that defendant acted in self-defense--such a contradiction might well have antagonized the jurors, and (2) the general disdain which jurors hold for drunkenness as an excuse for violent behavior. Counsel's rationale is reasonable. Therefore, the first requirement under Strickland has not been met.
38
3. Counsel's Alleged Mishandling of his Client's Prior Convictions
39
The last issue which White raises with respect to errors at the penalty phase is counsel's handling of White's earlier convictions. White contends that the underlying convictions, pursuant to which the trial court found the aggravating circumstance of prior violence under Fla.Stat. § 921.141(5)(d), were replete with constitutional error.
40
White does not specify the constitutional errors, but merely states that several guilty pleas which were used in part to support the prior violent felony aggravating factors were not knowingly and voluntarily entered. The district court correctly held that this claim is procedurally barred and that White has alleged neither cause nor prejudice. Even on the merits, the district court concluded that White failed to allege with specificity the particular error which allegedly inflicted his prior felony convictions.
II.
41
White claims that his death sentence must be reversed due to an alleged violation of Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990). On direct appeal, the Florida Supreme Court struck the "pecuniary gain" aggravating factor as constituting improper "doubling" with another aggravating factor and struck the "cold, calculated and premeditated" aggravating factor as unsupported by the evidence. White v. State, 446 So. 2d 1031, 1037 (Fla.1984). The state supreme court held that only two aggravating factors properly applied: that White had a previous felony conviction and that the homicide occurred during the commission of a robbery. Id. White argues that his case should have been remanded for resentencing because the jury's recommendation was "tainted" by the presentation of improper aggravating factors.
42
Both on direct appeal and when White presented this claim to the Florida Supreme Court in his 1990 habeas corpus petition, that court noted that "[w]hen there are one or more valid aggravating factors which will support a death sentence, in the absence of any mitigating factor(s) which might override the aggravating factors, death is presumed to be the appropriate penalty." White, 446 So. 2d at 1037; White, 565 So. 2d at 702. In White's case, there were two remaining aggravating factors and no mitigating factors.10 In the 1990 habeas corpus proceeding, the Florida Supreme Court applied the harmless error analysis and concluded that "the trial court's ruling would have been the same beyond a reasonable doubt even in the absence of the invalid aggravating factors." White, 565 So. 2d at 702 (emphasis added).
43
In Clemons, the Supreme Court approved of the use by state courts of "harmless error" analysis to cure a trial court's erroneous application of aggravating factors in death penalty cases. In a recent case, Sochor v. Florida, --- U.S. ----, 112 S. Ct. 2114, 119 L. Ed. 2d 326 (1992), however, the Supreme Court declined to accept an implied harmless error analysis after a state court had struck an invalid aggravating factor: the Court seemed unconvinced that a harmless error analysis had actually been applied by the state supreme court. See id. ("Since the Supreme Court of Florida did not explain or even 'declare a belief that' this error was harmless beyond a reasonable doubt 'in that it did not contribute to the [sentence] obtained,' the error cannot be taken as cured by the State Supreme Court's consideration of the case.").
44
In the present case, when White first contested the faulty aggravating factors, the Florida Supreme Court found that the record supported the finding that defendant was engaged in the commission of a robbery when the murder occurred and found that defendant had never even disputed that he was previously convicted of a felony involving the use or threat of violence to the person. White, 446 So. 2d at 1037. The Florida Supreme Court then specifically noted that the death penalty was appropriate given the existence of these two aggravating factors and the absence of mitigating factors. Id. When White presented this claim to the Florida Supreme Court in his later 1990 habeas corpus petition, that court wrote this:
45
White claims that this Court violated Clemons when it affirmed his death sentence after invalidating two of four aggravating factors. In affirming White's sentence on direct appeal, we stated:
46
When there are one or more valid aggravating factors which will support a death sentence, in the absence of any mitigating factor(s) which might override the aggravating factors, death is presumed to be the appropriate penalty.
47
White, 446 So. 2d at 1037. Regardless of this language, we are convinced that this Court properly applied a harmless error analysis on direct appeal. To remove any doubt, we again apply this analysis and conclude that the trial court's ruling would have been the same beyond a reasonable doubt even in the absence of the invalid aggravating factors.
48
White, 565 So. 2d at 702. The Florida Supreme Court was cautious, and it has expressly engaged in harmless error analysis. The Florida Supreme Court concluded, beyond a reasonable doubt, that White would not have escaped the death sentence.
49
Especially given the absence of mitigating factors here, the Florida Supreme Court has written enough and has acted on the question of harmless error in accord with Sochor and Clemons. Having looked at the record, we accept Florida's judgment and affirm the district court's denial of relief for this claim.
III.
50
As his final claim for relief, White submits that his death sentence should be reversed because the jury instructions at the penalty phase and certain arguments by the prosecutor impermissibly shifted the burden of proof to the defense. In particular, White refers to the court's instructions to the jury that in rendering their advisory sentence, they must determine "whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist." White never raised this issue on direct appeal; he presented this matter to the state courts for the first time in his 1990 habeas corpus petition. And the Florida Supreme Court found this claim procedurally barred. White, 565 So. 2d at 703.
51
In Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989), the Supreme Court held that procedural default by a federal habeas petitioner bars consideration of a federal claim on habeas review if the "last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." As noted above, the Florida Supreme Court addressed the precise issue presented here and expressly found it procedurally barred. White, 565 So. 2d at 703. White has demonstrated no "cause" for such default such that a consideration on the merits is required to prevent a "miscarriage of justice," nor has he shown "actual prejudice" from the alleged constitutional defect in the jury instructions. Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661, 2668, 91 L. Ed. 2d 434 (1986). Therefore, we affirm the district court's order.
52
For all the reasons stated above, we AFFIRM the judgment of the district court.
53
KRAVITCH, Circuit Judge, concurring in part and dissenting in part:
54
I concur with the majority opinion affirming the denial of habeas relief on White's claims relating to his conviction. I dissent, however, from that portion of the opinion that affirms denial of habeas relief on the sentencing claim.
55
Four aggravating factors and no mitigating factors were submitted to the jury during the penalty phase of White's trial. On direct appeal, the Florida Supreme Court struck two of these aggravating factors: (1) the "cold, calculated and premeditated" factor because it was not supported by the evidence, and (2) the pecuniary gain factor because it constituted improper "doubling." Two aggravating factors remained intact: (1) White's previous felony conviction and (2) the fact that the homicide was committed during the course of a robbery.
56
Despite invalidating half of the aggravating factors charged against White, the Supreme Court of Florida upheld White's death sentence because "death is presumed to be the appropriate penalty" when one or more valid aggravating factors remain and there are no mitigating factors. On habeas, the Florida Supreme Court recognized the Clemons requirement that a reviewing court must either (1) reweigh the factors or (2) apply a harmless error analysis before upholding a death sentence based in part on invalid aggravating factors. The Court stated that "regardless" of the language in its prior opinion, it had nevertheless engaged, at that time, in an appropriate harmless error analysis. "[T]o remove any doubt," however, the Court stated that it had reapplied the harmless error analysis and concluded that "the trial court's ruling would have been the same beyond a reasonable doubt even in the absence of the invalid aggravating factors."
57
The majority believes that these bareboned statements by the Florida Supreme Court are sufficient to meet the requirements of Sochor and Clemons, supra at 1226. I disagree. In both of these opinions, the Supreme Court indicated that a reviewing court must do more than merely state the magic words "harmless error." An individual's Eighth Amendment rights to an individualized trial are not fulfilled unless a reviewing court engages in a thorough analysis which can only be exhibited by an explanation of a court's reasons for finding harmless error.
58
In three recent cases, the U.S. Supreme Court has indicated that, in a weighing state like Florida, a court reviewing a death sentence following an invalidation of one or more aggravating factors must explain its reasons for finding harmless error. In Sochor, the Court stated that:
59
Since the Supreme Court of Florida did not explain or even declare a belief that this error was harmless beyond a reasonable doubt ... the error cannot be taken as cured by the State Supreme Court's consideration of the case.
60
--- U.S. at ----, 112 S. Ct. at 2123 (emphasis added). This excerpt indicates that a reviewing court's upholding of a death sentence will only be appropriate where (1) the court makes the specific finding that the "error [of permitting an invalid aggravating factor to go to the jury] was harmless beyond a reasonable doubt" and (2) the court explains why it made this finding.
61
Indeed, Justice O'Connor specially concurred in Sochor solely to stress this point. In her concise opinion she stated that:
62
before a federal constitutional error can be held harmless, the reviewing court must find "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."... This is a justifiably high standard, and while it can be met without uttering the magic words "harmless error," see ante [U.S. at ----, 112 S.Ct.] at 2122-2123, the reverse is not true. An appellate court's bald assertion that an error of constitutional dimensions was 'harmless' cannot substitute for a principled explanation of how the court reached that conclusion.
63
Id. --- U.S. at ----, 112 S. Ct. at 2123 (O'Connor, J. concurring).
64
The Sochor opinion merely reiterated the standard already set forth in Clemons. In Clemons, the court held that upon invalidation of an aggravating factor, a reviewing court may engage in a harmless error analysis or reweigh the remaining aggravating and mitigating factors itself, rather than send the case back to a jury for resentencing. When the prosecution has stressed, however, the invalid factor during the sentencing hearing, a reviewing court must justify its finding of harmless error with a "detailed explanation based on the record." Clemons, 494 U.S. at 753, 110 S.Ct. at 1451. As in Clemons, White's prosecution stressed the invalid factor during sentencing, arguing that:
65
the defendant was convicted of a capital felony or homicide [which] was committed in a cold, calculated and premeditated manner. Not only that it was premeditated murder, but that it was in a cold, calculated manner. I ask you to again consider the facts of the case that are before you. You have convicted the defendant of armed robbery and murder, I suggest the evidence clearly shows that it was committed in a cold and calculated manner, execution style, that both of these men were marched into the back room, and that the defendant did shoot those two men to death. You can consider the evidence also, the shooting of Mr. Alexander, as well as the gun being pointed at Pamela Tehani and her father, Henry Tehani, and the trigger being pulled on the gun twice on them. That shows how cold and calculated this crime was. I suggest to you the defendant planned it to the extent that he went in with a loaded revolver in his pants for the purpose of committing armed robbery, and he went in without a mask, and he had no intention whatsoever of having any eyewitnesses testify against him, including James Melson, who was shot to death.
66
Because the prosecution stressed the invalid "cold, calculating and premeditated" factor to the jury, the reviewing court was obligated by Clemons to justify a holding of harmless error with a "detailed explanation based on the record." Clemons, 494 U.S. at 753, 110 S.Ct. at 1451.
67
In Stringer v. Black, --- U.S. ----, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992), as well, the Supreme Court indicated that Clemons does not allow reviewing courts to give cursory attention to a defendant's sentence after an aggravating factor has been invalidated. Although Clemons holds that an appellate court in a weighing state need not send a case back for resentencing after an aggravating factor has been invalidated, the Supreme Court has "not suggested that the Eighth Amendment permits the state appellate court in a weighing State to affirm a death sentence without a thorough analysis of the role an invalid aggravating factor played in the sentencing process." Id. --- U.S. at ----, 112 S. Ct. at 1136 (emphasis added). To the contrary, the Court "require[s] close appellate scrutiny of the import and effect of invalid aggravating factors." Id. Consequently, "a reviewing court in a weighing State may not make the automatic assumption that such a factor has not infected the weighing process." Id. --- U.S. at ----, 112 S. Ct. at 1137.
68
In this case, even more than in Clemons and Stringer, "close appellate scrutiny" was required to determine whether the introduction of the invalidated factors was harmless beyond a reasonable doubt. Here, the "cold, calculated and premeditated" aggravating factor was invalidated due to insufficient evidence. In contrast, Clemons and Stringer involved death penalties based, in part, on an "especially heinous" factor found to be unconstitutionally vague under Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988). The complete inapplicability of the cold, calculated and premeditated factor, rather than an invalidation based on form, makes the prosecutor's error here worse than those in Clemons and Stringer. Whereas the reviewing courts in these cases could have justifiably upheld the sentence by finding that, "beyond a reasonable doubt the result would have been the same had the especially heinous aggravating circumstance been properly defined in the jury instructions," Clemons, 494 U.S. at 754, 110 S.Ct. at 1451, the Florida Supreme Court here had the more difficult task of finding that the presentation of an unsupported and consequently irrelevant factor was harmless, a finding that required not only "close appellate scrutiny" but a detailed explanation as well.
69
As evidenced above, Sochor, Clemons and Stringer indicate that in weighing states, a state supreme court's review for harmless error must contain more than a mere assertion that the introduction of that factor was harmless. The reviewing court must provide some reasoning for its holding. In White's case, the assertion of harmless error was particularly "bald" given the circumstances of the unsupported holding. The Florida Court failed the Clemons test by stating, in its first opinion, that death should be "presumed" to be the appropriate sentence because at least one aggravating factor remained. In its second opinion addressing this issue, the Florida Court again failed to explain its reasoning, baldly asserting that (a) the court properly applied the harmless error test in its first decision and (b) that in any case, re-analysis leads again to the conclusion that any error was harmless.
70
Because I believe that the state court did not make sufficient findings under Sochor, Clemons, and Stringer, I must dissent from that portion of the majority's opinion that affirms White's sentence.
1
Under Florida law, voluntary intoxication is a defense to first degree murder when the intoxicant renders the defendant incapable of forming the intent to commit the crime. See Gardner v. State, 480 So. 2d 91 (Fla.1985)
2
In Harich, during defendant's testimony, he recounted details about what he did and where he went. The jury did not believe his testimony, rejecting it in favor of the testimony of the victim who survived
3
White took the stand at his trial and offered a story of factual innocence based on self-defense. See White, 446 So. 2d at 1035
4
That counsel immediately noticed the mistake and was "confused" about the court's incorrect accounting supports the alertness and effectiveness of counsel
5
In his brief, White mentions other alleged failures on the part of counsel, including counsel's failure to object to the government's exhibits, to certain comments made by the prosecution, and to the trial court's failure to instruct the jury on the lesser-included offenses. White also contends that his trial counsel was ineffective for failing to preserve certain claims for review. Trial counsel explained that in many of these instances he made a tactical decision not to antagonize the jury by raising an objection. Also, White is entitled to no relief on these claims because no prejudice was shown so as to merit relief under Strickland
6
White also claims that by the time the trial reached the penalty phase, his counsel was indifferent to his client's fate. The district court found and concluded, however, and we agree, that the adversarial process was very much alive. During his closing argument, counsel vigorously argued that White should not receive the death penalty. White has failed to show indifference
7
A federal appellate court may set aside a district court's findings of fact only if they are "clearly erroneous." Amadeo v. Zant, 486 U.S. 214, 223, 108 S. Ct. 1771, 1777, 100 L. Ed. 2d 249 (1988)
8
At the state court evidentiary hearing one fact that was discovered that had not been used at the penalty phase of White's trial related to White's early life when his family lived in poverty. When White committed the crime underlying this case, he was 33. An informed, reasonable lawyer could choose to omit this evidence because it was so remote in time and hardly unique. See Bertolotti v. Dugger, 883 F.2d 1503 (11th Cir.1989) (defense counsel was found to have provided effective assistance on claim that counsel overlooked evidence of defendant's traumatic childhood, where counsel interviewed defendant's parents)
9
Although an expert could have testified, it is important to note that such an expert would have been subject to cross-examination and forced to explain how White's alleged intoxication was consistent with White's story about his crime and his thoughtful actions surrounding the crime. See Bertolotti, 883 F.2d at 1517 (counsel's failure to present equivocal psychiatric testimony, which would have been subject to substantial impeachment, not prejudicial)
10
On direct appeal, the Florida Supreme Court addressed White's contention that the trial court ignored certain mitigating factors including intoxication. White, 446 So. 2d at 1036. The Florida Supreme Court noted that "[t]he record reflects that the court expressly considered the evidence that appellant had been drinking alcoholic beverages before the crime." Id. The Florida Supreme Court was satisfied that the trial court carefully considered the evidence presented at both stages of the trial and that the trial court appropriately found that no mitigating circumstance existed. Id. We do not second guess state courts on questions of fact such as whether the evidence showed enough intoxication to justify mitigation. Here Florida says that White did not prove intoxication to the point of mitigation, and we see no compelling reason to think Florida was wrong. Cf. Daugherty v. State, 419 So. 2d 1067, 1071 (Fla.1982) (within trial court's discretion to determine whether sufficient evidence exists of a particular mitigating circumstance) | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283853/ | ORDER
PER CURIAM.
Vincent Henderson (Movant) appeals the judgment of the Circuit Court of St. Louis County denying his Rule 29.15 motion for post-conviction relief. Movant claims that the motion court erred in denying, after an evidentiary hearing, his claim that trial counsel was ineffective for failing to adequately advise him of the risks of rejecting the State’s plea offer and proceeding to trial.
We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court’s decision to deny Movant’s Rule 29.15 motion after an evi-dentiary hearing was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for *463the use of the parties setting forth the reasons for our decision. .
We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283854/ | ORDER
PER CURIAM
Eagle Pines Community Services Association, Inc. (“Eagle Pines”) appeals from the trial court’s grants of summary judgment in favor of David and Yelena Reduzzi (“Reduzzis”) on the respective Motions for Summary Judgment of the Reduzzis and of Eagle Pines. Finding no error, we affirm.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.
The judgment of the trial court is affirmed in accordance with Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/588470/ | 972 F.2d 344
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Weldon D. WAITES, Defendant-Appellant.
No. 91-5043.
United States Court of Appeals,Fourth Circuit.
Argued: June 5, 1992Decided: July 31, 1992
John McMahon Young, Columbia, South Carolina, for Appellant. Gregory Poole Harris, Assistant United States Attorney, Columbia, South Carolina, for Appellee.
John S. Simmons, United States Attorney, Columbia, South Carolina, for Appellee.
Before HALL and NIEMEYER, Circuit Judges, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.
PER CURIAM:
OPINION
1
Weldon Waites appeals his convictions, which followed a plea of guilty, and his sentence on multiple counts of conspiracy, bank fraud, false statements, and money laundering. We dismiss certain challenges to Waites' sentence, and affirm in all other respects.
I.
2
The scheme that led to these convictions began in October, 1986. Weldon Waites owed money to H. P. Stephenson, and Stephenson was threatening Waites with physical harm and exposure of some shady financial dealings. Waites enlisted the assistance of his girlfriend Angela Swartz, a vice-president of Republic National Bank in Columbia, South Carolina. Swartz had the Bank issue a $5,500 cashier's check to Waites, which he used to pay off Stephenson. To cover the check, Waites and Swartz conspired to issue a larger check, and then another, and another. Soon more and more money was floating on the kited checks.
3
The amount of money involved grew too large to float, and Waites and Swartz began creating fraudulent loans to paper the lost money. They enlisted three compatriots to help, so that all of the loans would not be going directly to Waites. New loans were repeatedly made, with the proceeds going to pay old loans, and to support a luxurious lifestyle for Waites.
4
Like most such schemes, the conspiracy eventually collapsed under its own weight, but what a weight it attained-the Bank had been defrauded of $2,785,195.94.
5
Waites, Swartz, and three others were indicted on June 20, 1990, and charged with 29 counts of conspiracy, bank fraud, false statements, and money laundering. Waites, Swartz, and two of their three coconspirators pled guilty to several of the counts. Waites was sentenced to 80 months in prison, and Swartz to 48 months.
6
Waites appeals.
II.
7
Waites argues that he was entitled to a downward departure for substantial assistance. The government made no motion for such a departure. Absent a governmental promise to make the motion in a plea agreement, this circuit's rule had been that the government's decision was unreviewable. United States v. Wade, 936 F.2d 169 (4th Cir. 1991). Recently, however, the Supreme Court reviewed Wade on certiorari. Though it affirmed our judgment, the Court held that district courts do have the power to review the government's decision not to move for the substantial assistance departure to ensure that the government's action does not have an unconstitutional motive. Wade v. United States, 112 S.Ct. 1840, 1844 (1992).
8
Waites was prepared to put on evidence of his substantial assistance, but the district court ruled that it had no power to grant the departure without the government's motion. Wade shows that this reasoning was flawed; however, we need not remand. Waites' proposed showing-that he in fact substantially assisted-is, as a matter of law, not a basis on which the district court may review the government's decision. No degree of assistance, standing alone, creates a governmental duty to make the motion. Id. ("[A]lthough a showing of assistance is a necessary condition for relief, it is not a sufficient one.").
III.
9
Waites' principal coconspirator, Swartz, wound up with a 48month sentence, almost three years shorter than Waites'. This disparity was caused by (1) the government making, and the district court granting, a substantial assistance motion for Swartz, and (2) Waites' four-level enhancement for being the "organizer or leader" of the activity, which exceeded a two-level enhancement Swartz was assessed for breach of trust. Waites argues that, even if his guidelines sentence was correctly computed, sentences among equally-culpable conspirators should be identical. His supposed authority for this proposition is United States v. Campuzano, 905 F.2d 677 (2nd Cir.), cert. denied, 111 S.Ct. 363 (1990). Campuzano has nothing to do with downward departures to equalize sentences. In Campuzano, two drug conspirators were convicted of the same crimes, and the guidelines' "relevant conduct" was the same for each. However, the two probation officers who prepared the presentence reports came up with different "drug weights." The district court simply adopted the lower estimate of drug weight and used it to set the same base offense level for both defendants. The Second Circuit did not disturb this eminently sensible ruling.
10
Several circuits have held that defendant may not challenge a guidelines sentence based on a coconspirator's lesser sentence. See United States v. Goff, 907 F.2d 1441, 1447 (4th Cir. 1990) (collecting cases). As in Goff, however, we need not decide whether a district court has the authority to depart in these circumstances. The district court ruled that Waites had failed to prove by a preponderance of the evidence that the supposed mitigating circumstance was present. Though we assume for purposes of argument that the district court has the discretion to eliminate coconspirator sentencing disparity through a downward departure, we cannot review his refusal to do so. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 111 S.Ct. 65 (1990).
IV.
11
In U.S.S.G. § 5K2.12, the Sentencing Commission concedes that it could not adequately take into consideration the proper effect that should be given to crimes committed under duress, coercion, or as the result of blackmail. Accordingly, the Commission authorized departures where serious duress, coercion, or blackmail gave rise to the criminal conduct.
12
Waites argues that the district court erred in failing to grant him a § 5K2.12 departure. The government concedes that a few of the fraudulent loans and cashier's checks were obtained so that Waites could pay a debt he owed Stephenson, who had threatened Waites.
13
However, the government emphasizes that Stephenson committed suicide in February, 1989, but the bank fraud perpetrated by Waites and Swartz continued and escalated.
14
As we stated above, the district court's refusal to downwardly depart, where it results from an exercise of discretion rather than an incorrect application of the guidelines or a mistaken belief that the court is without authority to depart, is unreviewable. Bayerle, 898 F.2d 28.1
V.
15
When they were indicted, Waites and Swartz went to attorney Fedor and engaged him to represent them. Both wanted to plead guilty to all charges. Fedor undertook to represent both.
16
At arraignment, the magistrate exhaustively warned Waites and Swartz about the perils of multiple representation, as required by Fed. R. Crim. Pr. 44(c). Fedor stated on the record that both were adamant about wanting him to represent them, and that he had them sign documents saying that he had apprised them of the risk of a conflict. However, Fedor felt that the interests of Waites and Swartz would not conflict, and both clients told the magistrate that they wanted to continue the multiple representation.
17
At Waites' sentencing, Swartz was called as a witness concerning Stephenson's blackmailing of Waites. The district court scolded Fedor a bit about putting himself in such a position. Fedor, however, stated that he believed Swartz' story would support Waites, and there would be no actual conflict of interest. Two other attorneys were present representing Waites, including Young, his current counsel.2 Young, not Fedor, examined Swartz.
18
Waites now asserts that he was denied effective assistance of counsel, because his attorney labored under an actual conflict of interest that adversely affected his performance. See Cuyler v. Sullivan, 446 U.S. 335 (1980); United States v. Tatum, 943 F.2d 370 (4th Cir. 1991). He maintains that there may have been questions Fedor would have asked Swartz but for his multiple representation, though he gives no clue as to what they were. Fedor's multiple representation did not hamper Young's examination of Swartz-Fedor did not object to any questions in his capacity as Swartz' attorney. Swartz simply testified about Stephenson's "vicious" personality and the money he received from the proceeds of the scam. She did not testify against Waites in any fashion.
19
We decide all too many cases involving multiple-representation conflicts of interest-so easily avoided, but so intractable once created. Within broad limits, however, we do not shield an intelligent, informed defendant from the untoward consequences of his decision to share counsel with a codefendant. The right to conflict-free counsel may, under most circumstances, be waived, and the thoroughness of the magistrate's cautions to Waites and Swartz places a significant obstacle in Waites' path. There are, on the other hand, extraordinary situations in which the attorney's conflict causes such a breakdown of the adversary system that justice is mocked. In such a case, the district court must prohibit the multiple representation and the affected attorney must stand aside. E.g., Hoffman v. Leeke, 903 F.2d 280 (4th Cir. 1990) (defendant's trial counsel negotiated a cooperation agreement for defendant's coconspirator, under which coconspirator became star witness against defendant). Waites' case does not compare to the appalling conflict of interest in Hoffman.
20
In short, we see no actual conflict of interest adversely affecting Fedor's performance in this record. If there is some sort of hidden conflict between Waites' and Swartz' interests, it can be developed in a habeas case. See Tatum, 943 F.2d at 379 ("Typically the competency of counsel is best left for collateral review....").
21
Waites' challenge to the district court's refusal to downwardly depart is dismissed; in all other respects, the convictions and sentence are affirmed.
AFFIRMED IN PART AND DISMISSED IN PART
1
The government caustically points out that Waites has not shown how Stephenson coerced him into defrauding the bank of $55,000 to purchase a condominium, $119,000 to purchase a 36-foot boat, $20,000 for partial payment on a Corvette for his daughter, or $5,000 for Rolex watches
2
By mentioning the presence of unconflicted co-counsel, we do not intend to imply any retreat from our holdings in United States v. Tatum, 943 F.2d 370, 379 (4th Cir. 1991), and Hoffman v. Leeke, 903 F.2d 280, 287 (4th Cir. 1990), that the efforts of unconflicted co-counsel do not ordinarily purge the prejudice caused by an actual conflict of interest | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283856/ | ORDER
PER CURIAM
M.A.H.S. (“Mother”) appeals the trial court’s judgment modifying a custody decree awarding M.J.H. (“Father”) sole physical and legal custody of the couple’s son, A.H., age 11 at the time of the judgment, and restricting Mother’s visitation with A.H. to four consecutive hours of supervised visitation every other weekend.
We have reviewed the briefs and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.
We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283857/ | OPINION
CLIFFORD H. AHRENS, Judge
J&J Industrial Supply appeals the trial court’s judgments in favor of the Department of Social Services Family Support Division after J&J failed to comply with income withholding orders.1 This appeal presents questions of first impression in Missouri as to whether a child support obligor should be joined as a party in an action against his employer for income withholding violations and whether the employer can challenge the evidence supporting the underlying order. We resolve both *480.questions in the negative and affirm the trial court’s judgments.
Background
J & J is a recycling services business in the City of St. Louis. Between 2006 and 2010, the Division served J & J with five orders to withhold income for child support owed by J & J employee Charles White. White did not contest the orders. J & J remitted payment to the Division approximately monthly, combining White’s and other employees’ withholdings into one check to the Division. Neither J & J nor the Division contacted the other with questions or concerns regarding compliance. From 2006 to early 2013, J & J withheld and paid to the Division $18,856.96 out of $57,832.50 owed, leaving a deficit of $39,003.54.
In March 2013, the Division filed two petitions under § 454.505 RSMo seeking recovery of the difference. J & J moved to join White as a necessary party, but the trial court denied the motion. At trial on both petitions, the Division adduced its internal records itemizing White’s child support arrearages. The Division’s witness, Mark Sheiper, explained how the Division issues and enforces withholding orders. He testified that payments are allocated according to federal guidelines and that, in over 21 years at the Division, he had seen distribution mistakes “extremely rarely.” . J & J’s owner, Gerald McArthur, testified that he attempted to comply with the Division’s orders but wasn’t certain whether he succeeded or how the Division allocated his combined payments. He conceded that he never called the Division for verification or guidance as the orders invite employers to do. Although McArthur testified that White never asked him to withhold less than the amount ordered, White testified that he did ask McArthur not to withhold the full amount “because, if he had, I wouldn’t be able to live.”
The trial court found that J & J failed to comply with the Division’s orders without legal justification or excuse and entered judgments for the Division and against-J & J for a combined total of $39,003.54. The court also explained that White was not a necessary party because the action is based on J & J’s failure to comply with the Division’s orders under § 454.505 and not on White’s own liability for child support. Finally, the court noted that its judgments did not prejudice J & J’s claim against White for unjust enrichment or other relief.
J & J appeals and asserts that the trial court erred by: (1) denying its motion to join White as a necessary party and (2) accepting the Division’s statements of arrears as sufficient evidence.
Standard of Review
This court will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. Banc 1976). Additional principles guiding our standard of review are set forth below as relevant to the issues.
Discussion
Statutory Framework
Section 454.505 creates the framework for employer wage withholding in satisfaction of an obligor-employee’s child support obligation. The clear public policy objective reflected in the language and mechanics of § 454.505 and its federal mandate (42 U.S.C. § 666) is to ensure full and timely payment of financial support for the welfare of the obligor’s children. Cf. Hamid v. Kansas City Club, 293 *481S.W.3d 123 (Mo.App.W.D.2009) (public policy reflected in § 454.505.10 encourages payment of child support). The statute creates the following procedures.
After a child support order is entered, the Division issues an income withholding order directing an employer to withhold a specific amount from an employee’s wages. § 454.505.1. The employee receives a copy of the order, which also advises that the employee has 30 days to contest the order based on mistakes of fact as to the identity of the obligor or the amount of the withholding (but not the amount of child support actually owed). § 454.505.3. In an administrative hearing to contest the withholding on those limited grounds, certified copies of the underlying court order of child support and the Division’s statement of arrearages constitute prima fade evidence that the Division’s withholding order is valid and enforceable. Id. An obli-gor-employee may not obtain relief from the withholding by paying the overdue support. Id.
Employers may combine multiple obli-gors’ withholdings into one check to the Division with a corresponding itemization. § 454.505.12. An employer’s withholding obligation continues until the Division directs otherwise, even if the obligor-em-ployee has fully paid his arrears. § 454.505.6. Finally, as required by federal law mandating employer liability to the state for failure to withhold income as ordered,2 § 454.505.8 creates a statutory cause of action against employers for failure to comply with the Division’s income withholding orders. It states:
An employer or other payer who fails or refuses to withhold or pay the amounts as ordered pursuant to this section shall be liable to the party holding the support rights in an amount equal to the amount which became due the parent during the relevant period and which, pursuant to the order, should have been withheld and paid over. The director is hereby authorized to bring an action in circuit court to determine the liability of an employer or other payer for failure to withhold or pay the amounts as ordered. If a court finds that a violation has occurred, the court may fine the employer in an amount not to exceed five hundred dollars. The court may also enter a judgment against the employer for the amounts to be withheld or paid, court costs, and reasonable attorney’s fees.
Here, the trial court rendered judgments for the amounts not withheld and paid ($39,003.54), but it did not impose the statutory penalty, court costs, or attorney fees.
Joinder
For its first point, J&J contends that the trial court erred by denying its motion to join White as a necessary party under Rule 52.04. As relevant here, the Rule states that “a person shall be joined in the action if ... the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may ... leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.” Rule 52.04(a)(2)(ii).3 J & J ar*482gues that the court’s refusal to join White as a party left J & J subject to a substantial obligation, also resulting in a windfall for White.
In support of its position, J & J cites J.M.L. v. C.L., 536 S.W.2d 944 (Mo.App. 1976). In that paternity action between a mother and her paramour, the appellate court held that her husband — the presumptive father — should have been joined as a necessary party because he clearly had an “interest relating to the subject of the action,” i.e., the child. Id. at 946. J & J argues that White similarly had an interest in the subject of the action in that the underlying child support obligation and its beneficiaries (the children) were White’s.
The Division counters that White isn’t a necessary party because the Division’s petition under § 454.505 isn’t based on White’s liability for child support, like the father’s interest in J.M.L., but rather on J & J’s independent statutory liability as an employer for failing to comply with the Division’s income withholding orders. Thus, the Division explains, White has no direct interest or claim in this case and therefore is not a necessary party.
Indeed, the statute unambiguously imposes liability directly on employers as required by federal law (42 U.S.C. § 666(b)(6)(C)) and does not contemplate obligor-employees as co-defendants. § 454.505.8. An obligor’s only possible role in a withholding case is, within 30 days of the Division’s issuance of a withholding order, to contest the identity of the obligor or the amount of the withholding stated in the order in an administrative proceeding. § 454.505.3. White didn’t contest the orders here, and in any case J & J’s liability under § 454.505 is entirely its own. Moreover, contrary to its argument, J & J is not left subject to multiple inconsistent judgments as contemplated in the Rule 52.04(a)(2)(ii). Rather, J & J is subject to a single judgment, indemnification for which remains available in an action against White for unjust enrichment, as the trial court noted. The trial court did not err in denying J & J’s motion to join White as a necessary party. Point I is denied.
Evidence
For its second point, J & J contends that the trial court erred by accepting the Division’s arrearage statements as prima facie evidence supporting its case. Specifically, J & J complains that it had no opportunity to verify the accuracy of the Division’s orders and was therefore deprived of due process. J & J continues that, even accepting the Division’s evidence, J & J succeeded at refuting it, so the trial court’s judgments were unsupported.
As the Division correctly notes, J & J didn’t raise its constitutional due process challenge at trial, so the issue isn’t preserved for appellate review. Mayes v. St Luke’s Hospital of Kansas City, 430 S.W.3d 260 (Mo.2014). Even if it were, . the challenge is unfounded on every level. J & J actually received the withholding orders, which contained thorough instructions and an invitation to contact the Division for additional guidance to ensure compliance. A court cannot look favorably *483upon an employer that does not read or comply with court orders. Dunahee v. Chenoa Welding & Fabrication, Inc., 273 Ill.App.3d 201, 209 Ill.Dec. 898, 652 N.E.2d 438 (1995) (upholding $100/day employer penalty for failure to withhold). As previously observed, only White had standing to contest the accuracy of the orders in an administrative hearing pursuant to § 454.475, and he didn’t. J & J as garnishee has no standing to attack the validity of the Division’s withholding orders, derived from final, enforceable child support orders. J&J concedes as much in its brief. J & J’s only role was to comply. By analogy, the Division refers to employer liability under § 143.241 (income tax withholding) and garnishee liability under Chapter 525. Although the garnishee is a third party in relation to the underlying judgment, it nonetheless has a duty not to obstruct enforcement of the judgment. Board of Regents for Southwest Missouri State University v. Harriman, 857 S.W.2d 445, 451 (Mo.App.S.D.1993). The duty of the garnishee is to stand neutral and abide by the court’s judgment. Id. Due process requires notice and an opportunity to be heard. State ex rel. Nixon v. Peterson, 253 S.W.3d 77, 82 (Mo.2008). J & J received due process in the present action in that it received notice of the Division’s petitions under § 454.505.8 and an opportunity to be heard in the circuit court, where the Division adduced its records (admissible under § 454.539) establishing that J&J had neglected to withhold and pay the amounts required.
Getting to the preserved point, J & J asserts that, even accepting the Division’s evidence for its prima facie case, J & J successfully rebutted that evidence such that the trial court’s judgment is not supported by the record. This argument falls to our standard of review. The appellate court doesn’t re-evaluate the evidence; we defer to the trial court on factual issues, view the evidence in a light most favorable to the judgment, and disregard evidence to the contrary. Sauvain v. Acceptance Indem. Ins. Co., 437 S.W.3d 296, 303 (Mo.App.W.D.2014). J & J’s only rebuttal evidence was Sheiper’s cross-examination testimony that mistakes are possible (but extremely rare) and White’s testimony that his tax refunds had been intercepted by the state. J&J could not establish an actual mistake in the calculation of White’s arrearages; and even if it had, such evidence is still irrelevant to J & J’s withholding liability, which is distinct and essentially strict. The statute is clear that an employer must withhold the precise amounts stated in the withholding order regardless of other payments by the obligor. See § 454.505.3 (“The obligor may not obtain relief from the withholding by paying the overdue support. The employer ... shall withhold ... the amount specified in the order ... ”) and § 454.505.6 (“An order ... shall be ... binding upon any employer ... until further order of the director.... No order to withhold shall be terminated solely because the obligor has fully paid arrearag-es.”).
Thus, relevant rebuttal evidence .would be of the sort tending to prove that an employer did fully comply with the Division’s withholding orders (e.g., payment records specifying correct amounts). On that question, McArthur conceded that he combined payments without itemizing, didn’t know whether he successfully complied with multiple withholding orders, and never contacted the Division for confirmation. Although McArthur claimed ignorance in that the Division never advised him of his errors before filing its petitions, the statute imposes no such burden on the Division. See Dunahee, 273 Ill.App.3d at 209, 209 Ill.Dec. 898, 652 N.E.2d 438 (reasoning that such a burden should not be *484placed on the agency when the employer has the means to verify its own compliance).
On the whole record, the trial court’s finding that J & J failed to comply with the Division’s orders is supported by substantial evidence and is not against the weight of the evidence. Point II is denied.
Conclusion
The trial court’s judgments are affirmed.
Lawrence E. Mooney, P.J., concurs.
Lisa Van Amburg, J., concurs.
. The Division’s five withholding orders are the subject of two circuit court cases (1322-FC01005 and 1322-FC01006), appealed as ED101158 and ED101159, and consolidated.
. 42 U.S.C. § 666(b)(6)(C) states: "The employer must be held liable to the State for any amount which such employer fails to withhold from income due an employee following receipt by such employer of proper notice under subparagraph (A), but such employer shall not be required to vary the normal pay and disbursement cycles in order to comply with this paragraph.”
. The entirety of Rule 52.04(a) states as follows: A person shall be joined in the action if: (1) in the person’s absence complete relief cannot be accorded among those already par*482ties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283859/ | Justice Johnson
delivered the opinion of the Court.
Southwestern Bell Telephone, L.P. doing business as AT & T Texas (AT & T), a public utility company with facilities attached to a city bridge designated to be *581demolished, sought a declaratory judgment that the Harris County Flood Control District must bear the costs of relocating AT & T’s facilities pursuant to Texas Water Code § 49.228. The trial court determined that the District was not responsible for the relocation costs and the court of appeals affirmed.
We conclude that the District made the relocation necessary within the contemplation of § 49.223. We reverse in part and affirm in part the judgment of the court of appeals.
I. Background
The Harris County Flood Control District is a governmental agency created pursuant to the Texas Constitution. Tex. Const, art. XVI, § 59(b); Act of May 15, 1937, 45th Leg., R.S., ch. 360, 1937 Tex. Gen. Laws 714. Its “rights, powers, privileges, and functions” include “devis[ing] plans and constructing] works to lessen and control floods.” Act of May 15, 1937 § 2e.
The governing body of the District, the Harris County Commissioners Court, adopted the Brays Bayou Flood Damage Reduction Plans in order to widen and deepen the Brays Bayou Channel and thereby reduce flooding around the Bayou. Project Brays calls for the creation of several water detention basins and the destruction of thirty bridges spanning Brays Bayou. The channel could have been widened without demolishing the bridges by widening all of the channel except those portions where the bridges attach, but the District elected to widen the entire channel, which required demolishing and reconstructing the bridges. Destruction of the bridges requires the utilities bn the bridges to be relocated. Texas Water Code § 49.223 requires that relocation of utility facilities be done at the sole expense of the District when the District’s exercise of power “makes necessary” such relocation. Tex. Water Code § 49.223(a).
Project Brays calls for demolition and reconstruction of bridges controlled by the City of Houston, so the District and the City entered into the Brays Bayou Flood Damage Reduction Plan Interlocal Agreement, detailing the responsibilities of each entity. The Interlocal Agreement encompassed two projects, but only Project I is at issue in this case. Under Project I, the District agreed to “design, construct, replace, extend, or modify” a number of the bridges the City controlled. One pertinent aspect of the Interlocal Agreement is Section 8, whereby the City, after receiving notice from the District, would issue relocation notices to third parties such as public utility companies, instructing that they relocate their facilities from a bridge right-of-way at the third parties’ own expense. The relevant language of the agreement is:
The District may require the modification and/or relocation of facilities owned by one or more third parties to Construct Project I bridges and utilities, including but not limited to public utility companies. Where the City has the right to require a public utility company or other third party to .modify and/or relocate its facilities at its own cost, the City shall designate the District as the City’s project manager, and upon written request by the Director of the District made to the Director of Public Works and Engineering, direct the public utility company or other third party to modify and/or relocate its facilities in conjunction with the construction of Project I, at no cost to the City or to the District.
AT & T owns telecommunication facilities on the Forest Hill Street Bridge, which Project Brays designated for destruction. Therefore, as adopted by the *582District, Project Brays requires that AT & T’s facilities be relocated.
After numerous correspondences between AT & T, the City, and the District, the District’s Flood Control Director contacted Michael Marcotte, Director of the Department of Public Works and Engineering for the City. Per the Interlocal Agreement, Marcotte was requested to have the City direct AT & T to relocate its facilities from the Bridge without cost to the City or the District. The City then sent AT & T a letter indicating that if AT & T failed to relocate its facilities, the City would relocate them and assess the costs against AT & T. See Houston, Tex., Code of Ordinances ch. 40, art. XVIII, § 40-393(a) (2005).
AT & T sued the City, Marcotte in his official capacity, and the County Commissioners in their official capacities, seeking an injunction preventing the removal of its facilities from the Bridge and a declaratory judgment that § 49.223 of the Texas Water Code requires the District to bear any relocation costs resulting from Project Brays. The Commissioners responded by filing pleas to the jurisdiction and the remaining parties filed cross-motions for no-evidence and traditional summary judgments.
The trial court granted the Commissioners’ plea to the jurisdiction and summary judgment to Marcotte and the City. The court of appeals affirmed. Sw. Bell Tel. L.P. v. Emmett, 401 S.W.3d 826 (Tex.App.-Houston [14th Dist.] 2013). The appeals court reasoned that the relocation costs sought by AT & T were riot clearly ■within the statute’s purview because the District was not shown to have made the relocation necessary, due in large part to (1) the City’s involvement in Project I and (2) the testimony of Project Brays’s Manager that the bridge had not been demolished yet and it could be left intact, resulting in the channel remaining narrow at the bridge crossing. Id. at 838, 840.
In this Court, AT & T contends that the court of appeals misconstrued § 49.223 by failing to give effect to the plain meaning and purpose of the statute, relying instead on Air Liquide America Corp. v. United States Army Corps of Engineers, 359 F.3d 358 (5th Cir.2004), where the United States Court of Appeals for the Fifth Circuit interpreted a different Texas statute. Further, AT & T maintains that the District “made necessary” the relocation of its facilities within the meaning of § 49.223 because (1) the statute does not mandate that the District be the sole cause of relocation before it is responsible for expenses of relocation, (2) the District has the power to devise and implement flood control plans, and (3) the District adopted the version of Project Brays requiring the demolition and reconstruction of the Bridge, so the availability of another plan leaving the Bridge in place does not lessen the District’s role in necessitating relocation of AT & T’s facilities if they must be relocated as a result of Project Brays.
In support of the trial court’s decision the District argues that § 49.223 is inapplicable because (1) “it was the City — not the District — that ‘made necessary the relocation’; and (2) it was the City — not the District — that exercised the power to direct AT & T to move its wires.” In order for the District to be responsible for relocation expenses, the District principally contends, its exercise of power must be sufficient in and of itself to “make necessary” relocation, and because the City is a home-rule municipality, the City has exclusive jurisdiction over the roadways and bridges and the bridge could not be destroyed without its consent. Therefore, its argument goes, any exercise of power by the District is insufficient to authorize and *583make necessary the relocation of the facilities, absent the City’s acquiescence.
The Commissioners contend that AT & T failed to allege any conduct by them that would serve to waive their immunity. Thus, they assert that the trial court correctly granted their collective plea to the jurisdiction.
The primary issue before us is whether the District’s exercise of power will make necessary the relocation of AT & T’s facilities if and when the Bridge is demolished, essentially (1) whether the district exercised one of its powers, and (2) whether that exercise of power will make relocation of AT & T’s facilities necessary. Although ordinarily we would first consider whether the Commissioners have governmental immunity from suit, which would implicate the trial court’s subject matter jurisdiction, we begin by considering the proper construction of Texas Water Code § 49.223. That is because whether the Commissioners’ conduct constitutes ultra vires actions that falls within an exception to governmental immunity depends on what the statute required of the District. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex.2004) (recognizing instances where jurisdictional analysis will require the examination of the merits of the cause of action); Gattis v. Duty, 349 S.W.3d 193, 206 (Tex.App.-Austin 2011, no pet.).
II. Discussion
A. Standard of Review
We review summary judgments de novo. When faced with competing summary judgment motions where the trial court denied one and granted the other, we consider the summary judgment evidence presented by both sides, determine all questions presented, and if the trial court erred, render the judgment the trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).
B. Texas Water Code § 49.223
Under the common law, a utility company must relocate facilities located in a public right-of-way at its own expense. Sw. Bell Tel., L.P. v. Harris Cnty. Toll Rd. Auth., 282 S.W.3d 59, 62 (Tex.2009) (citing Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S. 30, 34, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983)). However, the common law only controls in the absence of legislative action. Cf. State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737, 741 (1960) (recognizing that absent the State’s assumption of part of the expense, utility owners bear the financial burden of relocating facilities on public rights-of-way).
Section ' 49.223(a) of the Texas Water Code provides:
In the event that the district or the water supply corporation, in the exercise of the power of eminent domain or power of relocation or any other power, makes necessary the relocation ... of any road, bridge, highway, railroad, electric transmission line, telegraph, or telephone properties, facilities, or pipelines, all necessary relocations ... shall be done at the sole expense of the district or the water supply corporation unless otherwise agreed to in writing. Such relocation shall be accomplished in a timely manner so that the project of the district or the water supply corporation is not delayed.
Tex. Water Code § 49.223(a) (emphasis added). Where a- statute appears to depart from the common law and seeks to impose liability, “the statute will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its *584purview.” Smith v. Sewell, 858 S.W.2d 350, 354 (Tex.1993). Accordingly, in the absence of a statutory definition of “made necessary,” we will ascribe to the text its plain meaning. See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex.2014) (“We construe a statute’s words according to their plain and common meaning unless they are statutorily defined otherwise, a different meaning is apparent from the context, or unless such a construction leads to absurd results.”). Statutory construction also requires us to take statutes as we find them, understanding that the Legislature purposefully selected the words chosen. See.id.
With these principles in mind we look to the plain meaning of the precise text chosen by the Legislature. Black’s Law Dictionary defines “make” as “to cause (something) to exist.” Black’s Law Dictionary 1099 (10th ed. 2014). Likewise, Webster’s Dictionary defines “make” as “cause to exist or happen.” Webster’s New Universal Unabridged Dictionary 1161 (1996 ed.). Turning to the same sources for an understanding of the plain meaning of “necessary,” we determine it to be something that is essential or needed for some purpose. See id. at 1283-84 (defining “necessary” as “being essential, indispensable, or requisite”); BLACK’S, supra, at 1192 (“That is needed for some purpose or reason.”). Accordingly, we must determine whether the District’s exercise of its power caused the need for AT & T’s facilities to be relocated.
The Act of May 15, 1937 outlines the powers of the District. As noted earlier, the District is charged with designing plans and constructing works to manage flood waters. Section 2 of the Act, entitled “Added Powers,” includes “[t]o cooperate with, or to contract with, the City of Houston ... in relation to surveys, the acquisition of land or right of ways, the construction or maintenance of projects or parts thereof or the financing of the same in connection with any matter within the scope of this Act.” Act of May 15,1937 § 2. The District exercised its enumerated power to contract with the City of Houston when it entered into the Interlocal Agreement.1
Section 8 of that agreement required the City to name the District as its Project Manager. The agreement in turn provides that the District, as the Project Manager, has the power to require the City to send notice of relocation upon its written request: “[T]he City shall designate the District as the City’s project manager, and upon written request by the Director of the District made to the Director of Public Works and Engineering, direct the public utility ... to relocate its facilities in conjunction with the construction of Project I.” (emphasis added). As a result of the District’s power to contract with the City of Houston, the District, through the exercise of such power, gained contractual authority to require the City to send notice to relocate AT & T’s facilities.
Furthermore, the degree of the District’s involvement in causing the bridge demolition, thereby requiring the relocation of AT & T’s facilities, is highlighted by the fact that apart from Project Brays the City had no intent to remove or reconstruct the bridge. Absent the District’s flood control plan, the bridge would not have been scheduled to be demolished and AT & T would not need to relocate its facilities. So, the District caused the relocation of the facilities to become necessary by adopting Project Brays and contracting *585with the City to effectuate it. Therefore, the District made necessary the relocation of AT & T’s facilities within the meaning of § 49.223.
The court of appeals held that relocation of AT & T’s facilities was not necessary, focusing on testimony that the channel could still be widened without removal of the bridge. But the availability of an alternate plan that was never adopted is irrelevant to whether the actual plan adopted by the District “makes necessary” relocation. If the mere availability of other plans was the standard, no .District plan might ever make relocation necessary. Further, if the District changes its plan and the bridge is not demolished so AT & T’s facilities are not required to be relocated, then an expense will not be borne by anyone; the District’s fate as to the relocation expenses is in its own hands.
The District cites the Fifth Circuit’s decision in Air Liquide as support for its contention that the statutory “made necessary” language is met only when the District’s exercise of power is solely sufficient to necessitate the relocation. It asserts this is not the case here because the City has exclusive control of the bridges within its jurisdiction. We disagree both with the District’s analysis of Air Liquide and its exclusive power argument.
Air Liquide concerned the cost allocation for the relocation of a pipeline under the Houston Ship Channel. Id. at 360. The channel was to. be widened as a joint project of the U.S. Army Corps of Engineers and the Port of Houston Authority. Id. The case addressed both a different Texas Water Code section (mandating the Port pay relocation costs if the relocation was “required”), and identified that Texas law was not controlling, relying instead on the federal Rivers and Harbors Act of 1899. Id. However, the case bears some resemblance to the instant case because the Corps issued removal notices to the pipeline owners at the Port’s request. Id. at 361. Given that circumstance, the Fifth Circuit scrutinized the Port’s lack of power, stressing that the cooperation agreement between the Corps and the Port “did not require the Corps to exercise its permit authority; and it certainly did not empower the Port to mandate the Corps to require pipeline relocation.” Id. at 363.
The power the Port lacked in Air Liq-uide resides in the District under the facts before us. The City and the District have an agreement through which the District can require the City to issue relocation notices to utilities and ostensibly spare the District the expense of relocating their facilities. Given that state of facts, Air Liquide supports the contention that the District’s exercise of its contractual authority led to the City’s issuance of the relocation demand and notice.
Even if this Court determines as it did that the situation at hand is clearly within the purview of § 49.223, Marcotte and the Commissioners next argue, such an interpretation is untenable because it conflicts with Texas Utilities Code § 54.203(c)2 and a City of Houston ordinance.3 But Texas *586Water Code § 49.223 requires the District to pay for relocation while Texas Utility Code § 54.203(c) requires the utility owner to pay vis-a-vis the City. There is no contention here that the City is responsible for relocation costs. In fact, the parties have signed a Rule 11 Agreement- to the effect that the City is not responsible for relocation costs. So, as applied to the matter before us, no conflict exists between a statute providing that as between a district and a utility, the district pays, and a statute providing that as between a municipality and a utility, the utility pays. Nor does the fact that the City has elected to finance the widening of the Bridge as part of the District’s Project Brays change our view. Where the City merely finances an addition to a previously planned and adopted District project that requires the relocation of a utility’s facilities, the partnering of the two entities does not serve to override the text and intent of Water Code § 49.223 or create a conflict with Utilities Code § 54.203.
As for the alleged conflict between the Houston Ordinance and Water Code § 49.223, we find the answer in the explicit language of a latter section of the same article of the Ordinance. Section 40-397 states: “Nothing in this subsection shall preclude the application of funds from sources other than the city to the payment of relocation expenses on behalf of the owner of a facility.” Houston, Tex., Code of Ordinances ch. 40, art. XVIII, § 40-397(f). As such, even had there been a conflict, the language illustrates that Water Code § 49.223’s requirement that the District pay the utilities’ costs is entirely permissible and even contemplated by the Ordinance.
Finally, we address the Commissioners’ contention that if § 49.223 requires the District to pay for relocation of the facilities, it is unconstitutional as applied. The Commissioners argue that § 59 of Article XVI of the Texas Constitution, under which the District was organized as a conservation and reclamation district, does not contemplate expending district tax funds for relocation of public utilities’ facilities. We disagree.
We recognized in State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737, 743 (1960), that legislative acts mandating payment to a utility for the relocation of its facilities do not contravene the Constitution as long as “the statute creating the right of reimbursement operates prospectively, deals with the matter in which the public has a real and legitimate interest, and is not fraudulent, arbitrary or capricious.” We identified uninterrupted or minimally interrupted utility services as being vital to the public’s welfare:
Utilities are necessary adjuncts of the public welfare. Their business operations and their property have been subject to special legislative treatment for many years ... In the present context, uninterrupted service during and after the completion of the ... project is vital. Where removal of facilities is necessary, *587it is important that relocation be as expeditious and controversy-free as possible. That end is intimately related to the achievement of the overall public purpose.
Id. at 745 (quoting Wilson v. City of Long Branch, 27 N.J. 360, 142 A.2d 837, 847 (1958)). Because the relocation of AT & T’s facilities concerns a matter of public interest and is appropriate to the District’s flood control purpose, § 49.223’s allocation of district funds to accomplish relocation of those facilities for the District’s Project Brays is not unconstitutional as applied here. Tex. Const, art. XVI, § 59 (“[T]he Legislature shall pass all laws as may be appropriate thereto.”).
Because the District exercised one of its powers and made relocation of AT & T’s facilities necessary, the relocation costs come within the provisions of § 49.223. Thus, the trial court erred by granting summary judgment in favor of the City and the court of appeals erred by affirming that judgment.
We next consider the claim that Mar-cotte and the Commissioners have immunity. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003) (“Because the trial court’s order does not specify the grounds for its summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious.”).
C. Ultra Vires Claims
Governmental immunity implicates a court’s jurisdiction and serves to protect political subdivisions of the state from both suit and liability. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex.2012). While a legislative waiver of governmental immunity is usually required for suit against a governmental entity, “an action to determine or protect a private party’s rights against a state official who has acted without legal or statutory authority is not a suit against the State that sovereign immunity bars.” City of El Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex.2009) (quoting Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997)). Such claims must be brought against the state actor in her official capacity because the State and its subdivisions remain immune. Id. at 373. And while a suit for injunctive and declaratory relief brought against an officer in her official capacity is not shielded by immunity from suit, the available relief is restricted because “the suit is, for all practical purposes, [a suit] against the [governmental entity],” and the governmental entity is generally immune from claims for retrospective monetary relief. Id. at 374. However, as we identified in Heinrich, while declaratory judgment claims seeking “retrospective monetary [relief] are generally barred by immunity,” claims for prospective payment in accord with a statutory obligation are not necessarily barred. Id. at 374. For the ultra vires exception to immunity to apply, it must be proved that the state actor either failed to perform a ministerial task or acted without legal authority. Id. at 372.
Ministerial acts are those “where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex.1994). Discretionary acts on the other hand require the exercise of judgment and personal deliberation. See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex.2004).
1. Commissioners’ Plea to the Jurisdiction
Where a plea to the jurisdiction challenges the pleadings, as the Com*588missioners did below, a reviewing court must determine whether the party asserting jurisdiction has alleged facts that affirmatively demonstrate or negate the trial court’s subject matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). This determination is a question of law, which we review de novo. Id.
AT & T alleged that the Commissioners acted ultra vires by their clear and extended refusal to accept responsibility for repayment of AT & T’s relocation costs and by directing the City to send the relocation notice. AT & T urges that such clear repudiation of the District’s statutory obligation is in violation of their duty and that declaratory relief is not barred by immunity even though it would compel prospective payment. We agree.
The Commissioners argue that AT & T has not alleged that they have taken actions placing them within the ultra vires exception to immunity. But the Commissioners sidestepped AT & T’s attempts to work out an agreement for the District to bear the relocation costs of the facilities for a number of years by refusing to respond to correspondences requesting a written costs agreement. The District eventually responded by instructing the City to send a notice to AT & T directing it to relocate its facilities at its own expense. If AT & T relocated its facilities and then sought reimbursement from the District, its claim — whether styled as one for damages or declaratory relief — would run afoul of the District’s governmental immunity because AT & T would be seeking retrospective monetary relief. The Commissioners’ execution of the letter directing the City to send the relocation notice overtly evidenced their refusal to comply with Water Code § 49.223’s requirement that the District pay the utilities’ costs by affirmatively acting in a manner that was intended to force AT & T to bear the relocation costs. The Commissioners’ actions unequivocally demonstrated their intent not. to comply with the statute. AT & T’s only viable option for enforcement of § 49.223 at that point was to bring suit seeking a declaratory judgment and prospective relief as to the. District’s obligations under the statute.
The next question is whether the Commissioners’ anticipatory refusal to comply with the statute qualifies as a ministerial act ór was undertaken without legal authority, placing the conduct within the ultra vires exception to governmental immunity.
Section 49.223 mandates that the District will bear the costs of relocation where exercise of the District’s power makes such relocation necessary:
In the event that the district or water supply corporation, in the exercise of the power of eminent domain or power of relocation or any other power, makes necessary the relocation ... of any road [or] bridge ... all necessary relocations ... shall be done at the sole expense of the district or water supply corporation unless otherwise agreed to in writing.
Tex. WateR Code § 49.223(a). The use of the word “shall” evidences the mandatory nature of the duty imposed, and the statute provides under what circumstances the District is to bear the expense. Cf. Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996) (concluding that an employee’s actions were not ministerial because a classroom discipline plan required deliberation and was discretionary where the mandate failed to instruct, among other things, which conduct required discipline and when and where to discipline the students). The statute also contains no indication that the District is to conduct any form of review, deliberation, or judgment • in exercising its payment obligation. In *589other words, if the District’s exercise of power made necessary the utilities relocation, the statute requires the District to bear the relocation costs. See McLane Co. v. Strayhorn, 148 S.W.3d 644, 650 (Tex. App.-Austin 2004, pet. denied) (finding immunity barred suit because the statute granted discretion to the comptroller to determine the adequacy of collateral when it stated “similar types of collateral acceptable to the comptroller.”); Tex. Racing Comm’n v. Marquez, No. 03-09-00635-CV, 2011 WL 3659092, at *5 (Tex.App.-Austin Aug. 19, 2011, no pet.) (mem.op.) (concluding that director did not have discretion to not docket an administrative appeal where relevant administrative, code stated: “If after a reasonable time the proceeding cannot be settled through agreement, the executive secretary shall refer the matter to SOAH”). Thus, because § 49.223 imposes a purely ministerial duty upon the District, the Commissioners had no discretion in determining whether the District would pay the relocation expenses, and they failed to perform the ministerial task of authorizing payment. Under such circumstances their conduct in requesting the City to issue notices of relocation constituted ultra vires acts in contravention of their ministerial duty to cause the District to bear the costs of relocating AT & T’s facilities. Therefore, the trial court had jurisdiction over AT & T’s claims against the Commissioners and the trial court erred by granting the Commissioners’ plea to the jurisdiction.
Further, AT & T is entitled to declaratory relief that payment of its relocation expenses by the. District is required by § 49.223. Although that declaration essentially is a requirement for prospective relief against the District, the District’s immunity does not shield it from such relief. See Heinrich, 284 S.W.3d at 368-69.
2. Marcotte’s No-Evidence Motion for Summary Judgment
Where a no-evidence motion for summary judgement is granted, as Mar-cotte’s was, a reviewing court will sustain the summary judgment if “(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003).
In his summary judgment motion, Marcotte contended that governmental immunity insulates him from this suit because, as AT & T’s pleadings alleged, he was acting in accordance with a City of Houston Ordinance when he sent the relocation notice and threatened to remove the facilities and assess the costs against AT & T. As stated earlier, the ultra vires exception to immunity only applies where a government actor fails to perform a ministerial task or acts without authority of law. Heinrich, 284 S.W.3d at 370. Neither of these instances are present here. It is undisputed that Marcotte’s actions conformed with the Houston Ordinance. The undisputed facts establish that Marcotte acted with authority of law and that the ultra vires exception is inapplicable as to him. Accordingly, we affirm the trial court’s grant of no-evidence summary judgment as to Marcotte.
III. Disposition
We reverse the court of appeals’ judgment to the extent it affirms the trial court’s judgment denying AT & T’s,motion for summary judgment, grants summary judgment in favor of the City, and grants *590the Commissioners’ pleas to the jurisdiction. We affirm that part of the judgment in favor of Marcotte.
We remand the case to the trial court for further proceedings consistent with this opinion.
Justice Brown did not participate in the decision.
. The District contends that it also acted pursuant to its power of relocation. However, because we determine that it exercised its authorized powers in contracting with the City for contractual authority to require the City to act, we need not reach that argument.
. § 54.203. Service in Annexed or Incorporated Area
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(c) The governing body of a municipality may require a certificated telecommunications utility to relocate the utility’s facility at the utility’s expense to permit the widening or straightening of a street by:
(1) giving the utility 30 days’ notice; and
(2) specifying the new location for the facility along the right-of-way of the street.
Tex. Util. Code § 54.203(c).
. Sec. 40-393. Relocation required.
(a) Whenever the city engineer determines, in the exercise of sound engineering judgment, that a facility should be relocated for the accomplishment of a public works project, the *586owner of the facility shall relocate the facility at the owner's sole expense in accordance with this article. In the event that an owner’s failure to timely relocate a facility in accordance with this article causes the city to incur expenses, damages or losses, including loss of grant funds, for any resulting delay, the owner of the facility shall be responsible for the city’s expenses, damages or losses.
(b) It shall be the policy of the city to design public works projects to minimize the relocation of facilities, but the city shall not be obligated to design a public works project to avoid facility relocation and the determination of the city engineer of the appropriate design of the public works project shall be final.
Houston, Tex., Code Of Ordinances ch. 40, art. XVIII, § 40-393. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283881/ | ORDER
PER CURIAM
Jeffrey Weinhaus (“Appellant”) appeals from a jury verdict finding him guilty of: possession of morphine and marijuana, in violation of Section 195.202, RSMo (2011); assault of a law enforcement officer in the first degree, in violation of Section 565.081; and armed criminal action, under Section 571.015 relative to Appellant’s actions toward Sergeant Henry James Folsom. We have reviewed the briefs of the parties and *917the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283884/ | ROBERT G. DOWD, JR., Judge
Stephen S. Adams, III, as Trustee of the Stephen S. Adams, III Revocable Trust (“Adams”), appeals from the trial court’s grant of summary judgment. Edwin For-bush (“Forbush”) cross-appeals. We affirm in part and reverse and remand in part.
Stephen S. Adams, III, is an individual residing in California and is the trustee of the Adams Trust. Forbush and Adams are the sole owners of Midtown Partners and Associates, Inc. (“Midtown”), a Missouri corporation. Forbush owns 510 shares of common stock representing a 51% ownership interest in Midtown, and Adams owns 490 shares representing a 49% ownership interest. Midtown was formed for the purpose of acquiring a Harley-Davidson dealership. In October of 2007, Midtown acquired the Fairfield Cycle Center (“Fairfield”), a Harley-Davidson dealership in Vacaville, California.
In 2009 and 2010, Forbush made multiple term loans to Midtown. From 2009 to 2011, Adams also made term loans to Midtown. Forbush and Adams have also caused Midtown and Fairfield to borrow money from both the Private Bank of St. Louis and Harley-Davidson to finance the operation of Fairfield. As of December of 2013, the outstanding balances on the terms loans Forbush made to Midtown were approximately $1,275,000, and the outstanding balances on the loans Adams *3made to Midtown were approximately $57,000. Substantial loans also remain with the Private Bank of St. Louis, and the terms of those loans prohibit the payment by Midtown and Fairfield of subordinate loans like those of Forbush and Adams without the consent of the Private Bank of St. Louis.
Midtown is governed by a cross-purchase agreement1 dated June 18, 2007, which places certain restrictions on the transfer of any shares of common stock in Midtown. The cross-purchase agreement provides that after three years, either shareholder may make an offer to purchase the shares of common stock owned by the other shareholder upon the “terms and conditions and at the price” set forth in a written offer. When such an offer to purchase is made, the offeree must either accept the offer or must purchase the of-feror’s stock at the same price and on the same terms and conditions as in the offer- or’s offer.
On June 25, 2013, Forbush elected to exercise the Texas Shootout Provision by delivering a written offer letter and stock purchase and sale agreement to Adams, offering to purchase Adams’s stock for $100 per share with the following conditions: Forbush shall repay all of the outstanding balance of the voluntary loans made by Adams; Forbush shall release or indemnify Adams from any personal guarantees of company debt in accordance with Section 9.19 of the cross-purchase agreement; Forbush shall provide Harley-Davidson with written notice and a complete explanation of the proposed stock transfer and change in ownership of the company and obtain the prior written approval from Harley-Davidson for the stock transfer and ownership change pursuant to the general conditions of the dealer contract; Forbush shall provide Adams a one-year consulting agreement; Forbush shall be entitled to approve company expenditures requested by Adams between the date of the offer and the closing date, which approval shall not be reasonably withheld; and a failure or refusal to respond to- Forbush’s offer shall constitute an acceptance of the offer.
On July 12, 2013, Adams sent a letter purporting to respond to Forbush’s offer. The letter stated Adams elected to buy Forbush’s stock at the price of $100 per share. But Adams refused to pay the voluntary loans made by Forbush and claimed Forbush’s proposed' purchase and sale agreement adds additional terms and conditions contrary to the cross-purchase agreement.
Forbush subsequently filed a petition for declaratory judgment against Adams. Forbush claimed the cross-purchase agreement created a valid contractual obligation requiring Adams to either accept For-bush’s offer or purchase Forbush’s stock at the purchase price and on the same terms and conditions as contained in For-bush’s offer. Thus, Forbush requested that the trial court declare his offer to Adams was valid and enforceable under the cross-purchase agreement. Further, Forbush requested a declaration that Adams’s attempt to vary the terms of the offer constitutes a failure to respond to the offer. In the alternative, Forbush requested that if the court finds the repayment of the voluntary loans or any other material term or condition in the offer is invalid or unenforceable, the court should declare the offer is null and void in its entirety. Forbush also requested attorney fees, costs, and expenses as the prevailing party.
*4Adams then filed an answer and a counterclaim for declaratory relief. In his counterclaim, Adams argued, among other things, that the “terms and conditions” language in the Texas Shootout Provision relates only to the purchase price of the stock and not to extraneous matters like personal loans and consulting agreements. Adams requested that the court declare Forbush’s offer is valid to the extent it contains terms offering to purchase Adams’s stock at a designated price, but that the additional consideration requiring company repayment of debt and a consulting agreement are not comprehended by a correct reading of the Texas Shootout Provision and must be disregarded. Adams also requests that the trial court declare Adams is the purchaser of Forbush’s stock pursuant to the Texas Shootout Provision and that Adams must cause Midtown to cause Fairfield to release or indemnify Forbush from all personal guarantees of the debt of Midtown and Fairfield.
Forbush filed an answer to Adams’s counterclaim. Forbush also filed a motion for summary judgment, arguing the terms of the cross-purchase agreement are unequivocal and required Adams to accept the offer or agree to purchase Forbush’s shares at the “purchase price and on the same terms and conditions” contained in the offer and his refusal to do so violated the agreement. Thus, Forbush contended the trial court should declare as a matter of law Forbush’s offer was consistent with the terms of the cross-purchase agreement and was fully enforceable.
The trial court entered its judgment partially granting summary judgment and finding Forbush’s offer included, as a material part, the personal repayment or guaranty of corporate debt to the parties, which was not allowed under the Texas Shootout Provision. As a result,' the trial court held Forbush’s ■ offer did not trigger the buyout agreement. Therefore, it found Forbush’s unaccepted offer was void. The trial court also found because Forbush asked for this relief as an alternative, neither party prevailed and it did not award any attorney fees.
Adams then filed a motion to reconsider and clarify the trial court’s judgment. In this motion, Adams requested that the trial court award him attorney fees as the prevailing party. Adams also asked for clarification regarding which parts of For-bush’s offer wére outsidé the buyout agreement and what effect the judgment had on his counterclaim.
The trial court subsequently issued an amended order and judgment in which it clarified its earlier judgment by stating the following terms were outside the scope of the Texas Shootout Provision of the cross-purchase agreement and unenforceable: (1) requiring a buyer to repay or cause to repay loans advanced by shareholders of the company; (2) requiring a buyer to personally guarantee seller’s guarantees of company bank debt; and (3) requiring a buyer to offer seller a consulting agreement. As a result, the trial court concluded Forbush’s offer was void in its entirety and Adams had no offer to counter or accept. Thus, the trial court dismissed Adams’s counterclaim without prejudice. The trial court also concluded there was no prevailing party and denied any attorney fees. This appeal follows.
Appellate review of a trial court’s grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will review the record in the light most favorable to the party against whom judgment was entered. Id. We accord the non-mov-ant the benefit of all reasonable inferences from the record. Id. The criteria on appeal for testing the propriety of summary *5judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. We will uphold summary judgment on appeal only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id.
In his cross-appeal, Forbush argues the trial court erred in determining that the terms and conditions were outside the scope of the cross-purchase agreement and therefore unenforceable in that the Texas Shootout Provision unequivocally provides that a shareholder shall have the right to make an offer to purchase another shareholder’s stock upon the terms and conditions and at the price set forth in the offer. In his first point, Adams argues the trial court erred in holding that Adams’s acceptance of Forbush’s stock purchase offer made under the parties’ previously negotiated cross-purchase agreement was of no force and effect because under the contract, Adams should have had the opportunity to accept just that portion of For-bush’s offer that did not include additional, extraneous conditions in that those conditions were outside the scope of the Texas Shootout Provision of the cross-purchase agreement. Because both of these points deal with the validity of the offer, we will address them together.
The relevant provision in this case provides as follows:
9.18 Russian Roulette (aka Texas Shootout) Provision. Notwithstanding any provision contained herein to the contrary:
(a) Any shareholder (“Offeror”) shall have the right to make an offer to purchase the shares of Stock owned by any other Shareholder upon the terms and conditions and at the price set forth in the Offeror’s offer. The Shareholder receiving the Offer- or’s offer (“Offeree”) must either accept the Offeror’s offer or, alternatively, the Offeree must purchase the Offeror’s shares of stock within sixty (60) days after receiving the Offer- or’s offer at a purchase price and on the same terms and conditions contained in the Offeror’s offer.
The interpretation of a contract is a question of law. Systemaire, Inc. v. St. Charles County, 432 S.W.3d 783, 787 (Mo.App.E.D.2014). The cardinal rule of contract interpretation is to ascertain the parties’ intentions and to give effect to that intention. Id. Intent is to be determined from the contract alone and not based on extrinsic or parol evidence, unless the contract is ambiguous. Id. The terms of a contract are read as a whole to determine the intention of the parties and are given their plain, ordinary, and usual meaning. Lehmann v. Bank of America, N.A., 427 S.W.3d 315, 320 (Mo.App.E.D.2014).
The issue here is how to construe the phrase “upon the terms and conditions and at the price set forth in the Offeror’s offer,” which appears in the Texas Shootout Provision. Adams contends that the phrase “terms and conditions” means payment terms, terms related to security if a promissory note were contemplated, representations about the seller’s good title, and when the closing of the transaction would occur. Forbush. maintains there is no reason to restrict the meaning of .“terms and conditions” in this manner, and the trial court erred by stating the following terms were outside the scope of the shootout provision of the cross purchase agreement and unenforceable: (1) requiring a buyer [Forbush] to repay or cause to repay loans advanced by shareholders of the company; (2) requiring a buyer [Forbush] to personally guarantee seller’s [Adams] guarantees of company bank debt; and (3) requiring a *6buyer [Forbush] to offer seller [Adams] a consulting agreement.2
First, we note that the phrase “terms and conditions” is being interpreted as part of the Texas Shootout Provision. Thus, in reading the contract as a whole and giving the terms their ordinary and usual meaning, we must first look at the general intent of the Texas Shootout Provision.
Closely-held business ventures often contain buy-sell provisions in their operating agreements. These provisions provide an exit mechanism for owners who no longer wish to participate in the business venture. One method of providing this exit mechanism is through a so-called Texas Shootout Provision, where one owner names a price and the other owner is compelled to either purchase the first owner’s shares or sell his own shares at the named price. Richard R.W. Brooks, Claudia M. Landeo, and Kathryn E. Spier, Trigger Happy or Gun Shy? Dissolving Common-Value Partnerships with Texas Shootouts, 41 RAND J Econ 649 (2010). Because the person naming the price can be forced to either buy or sell, he or she must act honestly. Id. at 650.
Texas Shootout Provisions have been described as follows:
when two parties enter a joint venture, they recognize that, at some point, one or the other will want to terminate the arrangement. When neither faces any liquidity constraints and both are equally able to run the business, they may agree at the outset that as soon as one of them wants to terminate the venture, she can put a value on the business and the other has the choice to buy or sell the business at this price. This way of dissolving a joint venture is called a “Texas Shootout.”
Douglas G. Baird and Donald S. Bernstein, Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain, 115 Yale Law Journal 1930, 1953 (June, 2006). As can be seen from these descriptions, Texas Shootout Provisions are intended to provide a fair method of valuing the stock so that a joint venture can be discontinued. Their general purpose does not necessarily include winding up and separating all of the parties’ business entanglements, but rather they are merely a means to ensure the parties are able to come up with a fan-buyout price in an expedient manner.
Thus, recognizing that Texas Shootout Provisions generally are focused on price, the next question is whether the particular provision in this case is meant to be construed differently. In other words, does the Texas Shootout Provision’s reference to “terms and conditions” indicate it can encompass “terms and conditions” unrelated to the price? The cross-purchase agreement in this case does not support such a construction. The very next provision after the Texas Shootout Provision in the cross-purchase agreement deals with personal guaranties of corporate obligations. It provides:
9.19 Personal Guaranty of Corporate Obligations. If any Shareholder now or hereafter personally guarantees any corporate obligations or becomes a co-maker of any obligations of any of the Corporations indebtedness, then prior to Closing the Corporation shall take rea*7sonable steps to relieve such Transferring Shareholder from said obligations and personal guarantys by either renegotiating said obligations, or, failing this after a good faith effort, executing a written instrument thereby agreeing to indemnify and hold harmless such Transferring Shareholder, his or her heirs, successors and assigns.
Thus, the cross-purchase agreement contemplates that when one shareholder is transferring his shares, the parties might have other entanglements such as loans and guarantees. Section 9.19 ensures those obligations would be satisfied.
Because Texas Shootout Provisions are focused on setting a fair buyout price and nothing in the cross-purchase agreement indicated the Texas Shootout Provision in this case was meant to encompass anything beyond that, we find the additional terms and conditions in Forbush’s offer were not contemplated by the Texas Shootout Provision. Therefore, Forbush .submitted a non-conforming offer to Adams when he offered to purchase Adams’s stock for $100 per share with the following conditions: Forbush shall repay all of the outstanding balance of the voluntary loans made by Adams; Forbush shall release or indemnify Adams from' any personal guarantees of company debt in accordance with Section 9.19 of the cross purchase agreement; Forbush shall provide Harley-Davidson with written notice and a complete explanation of the proposed stock transfer and change in ownership of the company and obtain the prior written approval from Harley-Davidson for the stock transfer and ownership change pursuant to the general conditions to the dealer contract; Forbush shall provide Adams a one-year consulting agreement; Forbush shall be entitled to approve company expenditures requested by Adams between the date of the offer and the closing date, which approval shall not be reasonably withheld; and a failure or refusal to respond to Forbush’s offer shall constitute an acceptance of the offer.
Although Forbush’s offer did not conform to the dictates of the Texas Shootout Provision and thus, did not trigger such provision, Adams could have, nonetheless, accepted the nonconforming offer. As a result, the offer was not void as the trial court found. The parties need not be confined to the dictates of the Texas Shootout Provision in winding up their business.
However, having concluded that Forbush’s offer was non-conforming,' but not void, we must determine the effect of Adams’s purported acceptance. While Adams responded to Forbush’s offer, his response attempted to alter the terms and conditions of the offer by simply excluding them. If a purported acceptance adds or alters the terms of the proposition made, neither party is bound. Londoff v. Conrad, 749 S.W.2d 463, 465 (Mo.App.E.D.1988). Where the purported acceptance introduces new or variant terms, the purported acceptance amounts to a counteroffer and rejection of the original offer. Id. Thus, Adams’s offer to buy Forbush’s stock was a valid counteroffer, but, being a counteroffer, was also not in conformance with the Texas Shootout Provision. For-bush could have accepted or rejected the counteroffer without obligation under the Texas Shootout Provision. However, For-bush did neither; Adams’s counteroffer was set for a closing on August 23, 2013, and that closing did not take place. As a result, Adams’s counteroffer has expired.
Thus, neither party exercised its rights under the Texas Shootout Provision, and there are no open offers from either party. The trial court did not err in determining that the terms and conditions unrelated to the price were outside the scope of the Texas Shootout Provision of the cross-pur*8chase agreement. Further, the trial court did not err in holding that Adams’s purported acceptance of Forbush’s stock purchase offer was of no force and effect. As noted above, Adams did not actually accept Forbush’s offer, but rather offered a counteroffer that expired without being accepted. Points denied.
In his second point, Adams argues the trial court erred in declaring that “in the event Harley Davidson does not approve either of the parties as a buyer, a Court could determine whether an alternative condition is reasonable in terms of the Shootout Provision” because the approval of Harley-Davidson is an extraneous condition that should have been listed in the Amended Order as a condition outside the scope of the Shootout Provision and because the declaration falls outside the scope of the declaratory judgment act in that it does not address a present controversy, does not provide the parties any relief from their legal uncertainty and does not establish the rights and duties of the parties.
Having found above that only terms and conditions related to price were proper under the Texas Shootout Provision, we find the trial court should have listed the approval of Harley-Davidson as an extraneous condition in its judgment. Therefore, the trial court erred in including this declaration in its judgment. Point granted.
In his third point, Adams argues the trial court erred in refusing to award attorney fees to Adams because he is the prevailing party in that the trial court ruled against Forbush’s primary claim and Forbush cannot rely on inconsistent, diametrically opposed claims in his pleadings as a means to nullify his opponent’s contractual right to an attorney fee award. We agree.
Whether a trial court has authority to award attorney’s fees is a question of law, which we review de novo. Desu v. Lewis, 427 S.W.Sd 843, 844 (Mo.App.E.D.2014). When a contract provides for payment of attorney’s fees and costs expended to enforce the contract, a trial court is required to award such fees and costs to the prevailing party. Id. at 844-45. We have defined a “prevailing party” for purposes of a contractual award as the party prevailing on the main issue in dispute, even though not necessarily to the extent of its original contention. Id.
The cross-purchase agreement provides: 9.13 Attorneys’ Fees and Related Costs of Litigation. In the event either party shall seek to enforce the terms of this Agreement via litigation, then the non-prevailing party in any such litigation proceedings shall pay all court ordered costs and expenses (including reasonable attorneys’ fees) incurred by the prevailing party in connection with the enforcement hereof, at the trial, and appellate levels.
Forbush requested a declaration that his offer was valid and enforceable or, in the alternative, if the court finds the repayment of the voluntary loans or any other material term or condition in the offer is invalid or unenforceable, the court should declare the offer is null and void in its entirety. We have found neither of those possibilities fit the situation here. As noted above, Forbush made a valid offer, but it did not conform to or trigger the Texas Shootout Provision. Thus, Forbush’s offer was neither valid and enforceable within the context of the Texas Shootout Provision, nor was it completely invalid or unenforceable. Therefore, we find Forbush did not prevail on his claims here.
On the other hand, Adams claimed he should have had the opportunity to accept just that portion of Forbush’s offer relat*9ing to the stock price, not including the additional, extraneous conditions. However, Adams’s response amounted to a counteroffer, which was not permitted under the Texas Shootout Provision. Thus, it was also not in conformance with the Texas Shootout Provision, and Adams was not permitted to purchase Forbush’s stock at the price set by Forbush. However, Adams did succeed in arguing that For-bush’s offer included terms and conditions that were extraneous to the Texas Shootout Provision. Thus, we find Adams was the prevailing party.
Therefore, the trial court did not err in determining that the terms and conditions unrelated to the price were outside the scope of the Texas Shootout Provision and that part of the judgment is affirmed. The trial court also did not err in holding that Adams’s purported acceptance of For-bush’s stock purchase offer was of no force and effect and that part of the judgment is affirmed. The trial court did err in failing to declare the approval of Harley-Davidson was an extraneous condition outside the scope of the Texas Shootout Provision and that part of the judgment is reversed and remanded for such a declaration to be entered. Lastly, we also remand to the trial court for a determination as to the proper amount of Adams’s costs and expenses including reasonable attorneys’ fees.
Kurt S. Odenwald, P.J. and Lawrence E. Mooney, J., concur.
. The cross-purchase agreement includes a Russian Roulette (aka Texas Shootout) Provision. We will refer to it as the Texas Shootout Provision.
. We note both Forbush and Adams rely on cases from other jurisdictions to support their construction of the phrase "terms and conditions.” However, as recognized by the parties, those cases are not controlling authority. Further, because we are interpreting a unique contract here, we decline to rely on the construction courts in other jurisdictions have given to provisions in other contracts. We also note there are no Missouri cases dealing with a similar provision. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/593032/ | 977 F.2d 594
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Jason C. ZIPPERIAN, Defendant-Appellant.
No. 92-30017.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 22, 1992.*Decided Sept. 29, 1992.
Before GOODWIN, D.W. NELSON and REINHARDT, Circuit Judges.
1
MEMORANDUM**
2
Jason C. Zipperian appeals his conviction, following a plea of guilty, for one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(a)(1) and one count of possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). Zipperian contends that the district court erred by denying his motion to suppress the firearm discovered during his arrest. Zipperian argues that his arrest and seizure and the seizure of the firearm were unconstitutional. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
3
We review de novo the district court's denial of a motion to suppress, and we uphold the district court's findings of fact unless they are clearly erroneous. United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1504 (9th Cir.1988).
4
A warrantless arrest must be supported by probable cause. United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir.1990); United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir.1989), cert. denied, 111 S.Ct. 80 (1990). The determination of probable cause is a mixed question of law and fact which we review de novo. Hoyos, 892 F.2d at 1392; United States v. Smith, 790 F.2d 789, 791 (9th Cir.1986).
5
In cases of mistaken identity, if "the police have probable cause to arrest one party, and [if] they reasonably mistake the second party for the first party, then the arrest of the second party is a valid arrest." Hill v. California, 401 U.S. 797, 802 (1971). The reasonableness of the mistaken identity centers on whether there was sufficient probability, not certainty, that the officers were arresting the correct person. Id. at 804. In a valid mistaken identity arrest, the police are entitled to do what the law would have allowed them to do had they arrested the correct person. Id. Incident to a lawful arrest, a police officer may conduct a contemporaneous warrantless search of the arrestee and the area within his immediate control. Chimel v. California, 395 U.S. 752, 763 (1969); United States v. Anderson, 813 F.2d 1450, 1455 (1987); United States v. Burnette, 698 F.2d 1038, 1049 (9th Cir.), cert. denied, 461 U.S. 936 (1983).
6
Here, the Anchorage Police Department arrested Zipperian under the mistaken belief that he was Gary Lott, an individual for whom the police had a valid arrest warrant. Zipperian argues that, based on the differences in their appearance, it was unreasonable for the police to mistake him for Lott. Zipperian and Lott are both young African-American males with medium builds. The main differences between them are their height and skin complexion; Lott was described in the arrest warrant as being 6'2" with medium to dark skin, and at the suppression hearing, Zipperian was found to be 5'9" with light skin.
7
In addition to the physical description in the arrest warrant, the police had photocopies of photographs of Lott and of two vehicles driven by Lott, as well as information that Lott was armed and dangerous and that he kept a pit bull in the back seat of his car for protection. The night of Zipperian's arrest, a police officer spotted a car parked in front of an apartment that matched the description of one of the cars associated with Lott. He saw a young African-American male, who matched Lott's general description, next to the car. The officer also noticed that the car had no license plates and that there was a pit bull in the back seat. Believing he had located Lott, he called for reinforcements.
8
When the officers knocked on the front door of the apartment, Zipperian attempted to leave through the back door carrying a small bag. When he re-entered the apartment, two officers saw him drop the small bag and head in their direction. They ordered him to stop, and, believing that he was Lott, they subdued and handcuffed him. The officers searched the small bag and discovered a firearm devoid of a serial number. Zipperian and the other occupants of the apartment informed the officers that he was not Lott, and the officers discovered an identification card on Zipperian that had his correct name on it. Nevertheless, the officers arrested Zipperian under the mistaken belief that he was Lott.
9
Despite the differences in height and skin tone, the circumstances surrounding the arrest, including the physical similarities between Zipperian and Lott, the matching descriptions of the car and the pit bull, the fact that the arrest occurred at night, and the actions of Zipperian, are sufficient for the district court to have found that the mistake in identity was reasonable. See Hill, 401 U.S. at 804-05. This reasonable mistake in identity combined with the warrant for Lott's arrest validate Zipperian's arrest. See id. at 802. In addition, the contemporaneous search that revealed the presence of the firearm was a valid search. See Chimel, 395 U.S. at 763; Anderson, 813 F.2d at 1455; Burnette, 698 F.2d at 1049. The district court properly denied Zipperian's motion to suppress the firearm.
10
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283885/ | ORDER
Defendants Wyneta and Kristy Fish-back appeal from a final judgment of the Circuit Court of Clark County: 1) granting Plaintiffs William and Doreen Bergman a ten-foot prescriptive easement, and 2) denying the Fishbacks damages for trespass and injunctive relief against the Bergmans. In their first three points on appeal the Fishbacks argue the trial court erred in granting the Bergmans a prescriptive easement because they failed to establish that their use of the disputed alley was adverse in that: 1) the Bergmans believed they had permission to use the alley; 2) they believed the disputed tract was a public alley; and 3) until 2002, when Wyneta Fishback acquired the property, the owners of 470 West Clark Street were related to the Bergmans and had an amicable relationship with them. In their fourth point, the Fishbacks contend the trial court erred in not awarding them damages and in failing to enter an-injunction against the Bergmans.
We have reviewed the briefs of the parties and the record on appeal and find the claim of error to be without merit. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.
We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283886/ | ORDER
PER CURIAM
J.R.M. (“Mother”) appeals the judgment of the trial court terminating her parental rights to the minor child S.K.M. On appeal, Mother contends the court erred in terminating her parental rights because:- (1) Mother has a disease, drug addiction, which is treatable and prevents her from complying with the requirements set forth by the court or care for S.K.M.; (2) the court failed to provide Mother’s attorney with her new address before trial; and (3) there is insufficient evidence to support the court’s findings within the meaning of section 211.447.5(2), R.S.Mo. (2000), that Mother: has a chemical dependency that cannot be treated, is physically and financially able to provide care and support for the child, and does not have a mental condition.
We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. However, we have provided the parties with an unpublished memorandum that sets forth the reasons for our decision.
We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283887/ | ORDER
PER CURIAM
Ceral L. Robinson (Defendant) appeals from the judgment upon his convictions by a jury for one count of statutory sodomy in the first degree, in violation of Section 566.062, RSMo 2000,1 one count of child *40molestation in the first degree, in violation of Section 566.067, and one count of sexual misconduct involving a child, in violation of Section 566.083. The trial court sentenced Defendant to seventeen-years’ imprisonment, fifteen-years’ imprisonment, and two-years’ imprisonment, to be served concurrently. We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).
. Unless otherwise indicated, all further statutory references are to RSMo 2000 as amended. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283888/ | Alcala, J.,
filed a statement dissenting from the denial of rehearing.
On original consideration of this Court’s sua sponte motion to hold attorneys David Dow and Jeffrey Newberry in contempt, I was the sole dissenter from this Court’s order banning Dow from practicing in this Court for one year. In this Court’s order, I specified that, unlike this Court’s majority, I would hold Dow in contempt, assess a $1,000 fine ($500 for each of two pleadings), and place him on two years’ probation with the sole condition that he abide by this Court’s rules. That proposed punishment, which I determined was appropriate given the circumstances, was in compliance with Texas Government Code Section 21.002, which provides that the punishment for criminal contempt is confinement for no more than six months in jail and a fine not to exceed $500. See Tex. Gov’t Code § 21.002(b). Rather than abide by the Government Code’s punishment options for criminal contempt, this Court’s majority instead fashioned an alternative punishment: it banned Dow from practicing in this Court for a period of one year. Dow has filed a motion for rehearing challenging this Court’s contempt order by asserting that (1) under the Rule of Lenity, he did not violate the seven-day rule, but even if he did, this Court (2) imposed a punishment that was disproportionate, excessive, and unnecessarily harsh, and (3) exceeded its authority by suspending him for one year. I agree, at least in part, with Dow’s contentions. Here, Dow’s pleadings, which consisted of a subsequent application for a writ of habeas corpus, a motion to reconsider the applicant’s initial application for a writ of habeas corpus, and two motions to stay the execution, were all filed by 6:30 p.m. on October 21, 2014. Within two days, this Court denied relief on those pleadings, and the defendant was executed on schedule on October 28.1 conclude that, under a plain reading of the seven-day rule and applying the Rule of Lenity, Dow’s pleadings were arguably timely filed, and, on that basis, this Court should entirely withdraw its order of contempt. Alternatively, assuming that Dow violated the seven-day rule, and assuming that this Court has the inherent authority to ban Dow from practicing before it, I conclude that the one-year ban is unreasonable and excessive because Dow filed his pleadings under circumstances that do not demonstrate a flagrant disregard of this Court’s rule and in which this Court had an adequate amount of time to rule on the merits of those pleadings. I would grant Dow’s motion for rehearing and withdraw the contempt order.
I. Dow Did Not Violate the Essence of the Seven-day Rule Under Its Plain Language
Dow contends that his pleadings were timely filed pursuant to the Rule of Lenity. He notes that this Court’s Miscellaneous Rule 11-003 requires that pleadings requesting a stay of execution be filed seven days before an execution, and he contends that he filed the documents seven days before the scheduled execution.
This Court’s Miscellaneous Rule 11-003 provides,
*153Inmates'sentenced to death who seek a stay of execution or who wish to file a subsequent writ application or other motion seeking any affirmative relief from, or relating to, a death sentence must exercise reasonable diligence in timely filing such requests. A motion for stay of execution, or any other pleading relating to a death sentence, must be filed in the proper court at least seven days before the date of the scheduled execution date (exclusive of the scheduled execution date). A pleading shall be deemed untimely if it is filed in the proper court fewer than seven days before the scheduled execution date.
Here, Dow’s pleadings were filed on October 21, 2014, by 6:30 p.m., and the defendant was executed on schedule on October 28 after 6:00 p.m. Using a period of 24 hours per day as the calculable unit of time, Dow’s pleadings were thirty minutes late under the plain language of this rule. Under the plain language of the rule itself, therefore, I would not hold Dow in contempt for filing pleadings only thirty minutes late under circumstances in which this Court still had essentially seven days to consider the pleadings.
This Court’s decision to hold Dow in contempt, however, apparently stems from the example following Rule 11-003, which states, “For example, a request for a stay of execution filed at 8:00 a.m. on a Wednesday morning when the execution is scheduled for the following Wednesday at 6:00 p.m. is untimely.” That example changes the seven-day rule into an eight-day rule. Applying the example of Rule 11-003 to this case instead of the rule’s plain language, Dow’s pleadings should have been filed on October 20 by midnight, and, therefore, were about eighteen and one-half hours late.
Dow argues that the example attached to Rule 11-003 creates ambiguity in what would otherwise be a clear rule. According to Dow, excluding the ambiguous example attached to the rule, his pleadings were timely filed under the plain language of the rule, as it would normally be read under Rule 4.1(a) of the Texas Rules of Appellate Procedure. Rule 4.1(a) states,
The day of an act, event, or default after which a designated period begins to run is not included when computing a period prescribed or allowed by these rules, by court order, or by statute. The last day of the period is included, but if that day is a Saturday, Sunday, or legal holiday, the period extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.
Tex. R. App. P. 4.1(a). Dow observes that the method of counting in Rule 4.1(a) is consistent with the way time is computed in the federal courts. See Fed. R. Civ. P. 6(a)(1). He also asserts that the federal courts have a similar requirement that filings seeking a stay of execution be made at least seven days before an execution, but he asserts that the federal rule operates as it is expressly written and does not contain an ambiguous example similar to the one in Rule 11-003. See 5th Cir. R. 8.10.
I agree with Dow that, because he complied with the plain language of the rule itself in Rule 11-003, this Court has erred by holding him in contempt. I agree with him that the example provided for Rule 11-003 is inconsistent ' with the Texas Rules of Appellate Procedure with respect to how attorneys would normally interpret filing-deadline requirements. I further agree that, applying the Rule of Lenity to this case, Dow’s pleadings should be determined to have been timely filed. And, to the extent that an attorney from this Court may have orally told Dow that his pleadings were required to be filed by October 20, oral statements by this Court’s *154attorneys cannot alter the plain language of this Court’s written rules. Furthermore, to the extent that Dow previously acknowledged the lateness of his filings under the rule’s example, that admission should in no way diminish his argument on rehearing, now that he is represented by counsel, that under .the Rule of Lenity he did not actually violate the rule.1
The Rule of Lenity holds that, in the face of an ambiguous rule, courts should adopt the less harsh or punitive interpretation. See, e.g. Cuellar v. State, 70 S.W.3d 815, 821-22 (Tex.Crim.App.2002) (“[A] person is entitled to be informed of what the law commands or forbids.”) (Cochran, J., concurring); DeLay v. State, 443 S.W.3d 909, 928 (Tex.Crim.App.2014) (noting that Rule of Lenity applies to penal provisions outside the Penal Code). Although the procedural rule at issue here is not itself a penal rule, it is operating as one in this instance in that Dow has been held in criminal contempt. I would hold, therefore, that the Rule of Lenity is applicable, and I would consider whether Dow’s pleadings were timely under the seven-day rule, as written without the example that created the ambiguity.
Even applying the Rule of Lenity to this case, Dow’s pleadings were thirty minutes late, but that tardiness would not warrant holding him in contempt because contempt requires that conduct be flagrant. “The essence of ‘contempt’ is that the conduct obstructs or tends to obstruct the proper administration of justice.” Ex parte Taylor, 807 S.W.2d 746, 748 (Tex. Crim. App. 1991). Obstruction includes the “flagrant disregard” of a court order. Id. at 750. Here, Dow filed his pleadings seven days prior to the scheduled execution date, on October 21. Two days later, ’ this Court ruled on the matters raised in the pleadings, and the defendant was executed on schedule on October 28. The fact that this Court ruled quickly suggests that the matters presented in Dow’s pleadings were not so overly complicated that the delay impacted the defendant’s rights or prevented this Court from giving full consideration to those matters. I cannot conclude that the thirty-minute filing delay represents a flagrant disregard for this Court’s rules or that Dow’s conduct obstructed or tended to obstruct the proper administration of justice in this case.
At the hearing at which this Court held him in contempt, Dow was unrepresented by counsel, other than himself, and he did not argue the Rule of Lenity. Now, based on this argument as presented by substitute counsel in this motion for rehearing, I would hold that Dow is not in contempt of court because he did not violate the plain language of Rule 11-003.
To prevent future problems with Rule 11-003, this Court should either refer to it as the eight-day rule or remove the example that has caused this ambiguity. In any event, this Court should not hold any attorney in .contempt of court for filing a document seven days before a scheduled, execution as that period of time would *155ordinarily be calculated by attorneys under the rules of appellate procedure.
II. Alternatively, This Court’s Punishment is Excessive and Harsh
Dow’s motion for rehearing alternatively contends that this Court’s order banning him from representing defendants in this Court for one year constitutes an excessive and unnecessarily harsh punishment and interferes with the duty he owes to his clients. I agree. Under this Court’s present order, Dow is prohibited from representing defendants in this Court, including those defendants he is already representing, regardless of their desire to have him continue to represent them or their inability to find replacement counsel. And if this Court decides to make exceptions for Dow’s representation of certain clients, then this Court’s ban is not really a ban at all and effectively serves as no punishment. Applied inconsistently, the ban would not be excessive or harsh but would instead be entirely ineffective. In either case, a ban is an exceptionally bad-idea under the facts of this case.
Dow notes that he currently represents at least twelve death-sentenced Texas defendants in their federal habeas proceedings. Having been appointed in federal court to represent those defendants, Dow argues that, pursuant to federal statute, he is obligated to represent them “throughout every subsequent stage of available judicial proceedings, including ... all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures[,]”2 which he contends includes the need for him to return to this Court.
This Court’s contempt order required Dow to provide this Court with a list of cases currently pending before this Court or returnable to this Court for which he is the attorney of record, and Dow has not yet provided that list. Presumably, this Court would provide some accommodation for his representation of those clients, although that is not entirely clear to me at this stage, and this Court has not issued any order expressly stating whether Dow would be allowed to represent his clients from federal court in this Court or if those clients would be deprived of his representation in this Court, even over their objection. In any event, this is precisely why this Court erred by assessing a ban as punishment in this case. The ban interferes with the representation of clients who are most in need of counsel — those individuals who have been sentenced to death. The ban also interferes with the speedy resolution of post-conviction litigation so that victims’ relatives must wait even longer as the slow appellate wheels of justice grind to a halt. If enforced as it was originally set forth as a ban for a period of one year, then this ban is not good for defendants, relatives of victims, or the public perception of the judiciary. Equally as important, if this Court modifies its one-year ban to permit Dow to practice in this Court while representing his existing state-court and federal clients, then this Court’s punishment essentially becomes a ruse in that the punishment is a ban that isn’t a ban. That too diminishes the public perception of the judiciary by setting forth a punishment that becomes swallowed by the exceptions.
Because a ban is unworkable and unad-visable, upon finding Dow in contempt of court, this Court instead should have fined him $1,000 in accordance with the Government Code by fining him $500 for the late filing of the application for a subsequent writ and $500 for the late filing of the *156motion to reopen the initial writ. See Tex. Gov’t Code § 21.002(b). Furthermore, to ensure that Dow does not violate this Court’s rules going forward, this Court should instead, have sentenced him to ten days in jail, fully suspended and probated for two years with the sole condition that he not violate this Court’s rules during that period of time. This punishment, which is the punishment that I essentially set forth when this Court found-Dow in contempt, is appropriate under the circumstances of this case.
Apparently this Court opted for a suspension because Dow has once before been reprimanded for the same type of violation in this Court five years ago.3 But when he was on probation before he did not violate this Court’s rules. Furthermore, in the five-year period since the last show-cause hearing, Dow asserts that he has timely filed pleadings in this Court for five defendants with impending executions. As I discuss above, the violation in the present case stems from pleadings that this Court received seven days before the scheduled execution date and that this Court was easily able to resolve in about two days. Taking into consideration that the infraction here was either not a violation of this Court’s rules, or, at most, a slight infraction, combined with Dow’s compliance with this Court’s rules for a period of five years, these factors indicate that he has largely been complying with this Court’s' rules with respect to scheduled executions for an extended period of time. And they further constitute compelling evidence that, if he were placed on probation with the condition that he not violate this Court’s rules, he would abide by that condition. Furthermore, to the extent that this Court desires to elevate the punishment beyond what Dow received before, it could assess up to a $2,000 total fine based on a $500 fine for each of the four pleadings that he filed. Additionally, this Court could assess punishment at several days in jail, which I would permit him to serve through electronic monitoring, house arrest, or community service as set forth in Articles 42.035 and 42.036 of the Texas Code of Criminal Procedure. See Tex.Code CRim. Proc. art. 42.035, 42.036. A jail sentence and a fine would be most consistent with the type of punishment permitted by the Government Code and would not hinder Dow’s representation of defendants or negatively affect the speedy progression of the cases that the victims and their relatives deserve.
This Court’s contempt order also carries with it the possibility of a chilling effect on attorneys who might otherwise be willing to represent capital-murder defendants who are, facing execution and are in need of competent counsel. These inmates are usually indigent and rely on attorneys who are willing to represent them pro bono. These attorneys often are not brought into the case until some late stage prior to an execution, and they must review a voluminous record of prior litigation before filing any pleadings. While this Court’s rules requiring timely pleadings are necessary to ensure that those pleadings are given proper consideration, this Court should not so stringently enforce the rules so as to discourage pro bono representation of defendants.
*157III. This Court’s Authority to Punish Dow with a One-Year Ban
Because a court must control the way that proceedings are conducted, I disagree with Dow’s assertion that this Court would, in an appropriate case, lack the inherent authority to prohibit an attorney from appearing before it for a one-year period of time or longer as a sanction for contempt. A court has “all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue the writs and orders necessary or proper in aid of its jurisdiction.” Tex. Gov’t Code § 21.001(a). Furthermore, a “court shall require that proceedings be conducted with dignity and in an orderly and expeditious manner and control the proceedings so that justice is done.” See id. § 21.001(b). If an attorney is unable or unwilling to abide by a court’s rules, a court has the inherent power to disallow him from practicing before it.
Here, this Court’s Rule 11-003 is important to the proper consideration of pleadings relating to an impending execution. Federal courts have a similar seven-day rule. The purpose of these rules is to ensure that a defendant has an opportunity to raise any issues pertinent to the propriety of his impending execution while ensuring that judges have an adequate amount of time in which to consider those pleadings. Violations of this rule could harm a defendant by resulting in a judge having an inadequate amount of time to fully consider his pleading, or alternatively, could harm society by resulting in an unmeritorious stay of execution merely because a judge had an inadequate amount of time to consider a pleading. If an attorney were to habitually violate this rule or if he demonstrated a continuing unwillingness to abide by it, then this Court would be left with no choice but to disallow him from practicing before it. But the record here shows the opposite.
Five years ago, Dow was given a warning after violating the rule, and he has since abided by the rule for five years. In the present ease, he either did not violate the rule or his violation was de minimis. This Court’s authority to issue this punishment should not be conflated with the wisdom of this decision. While I disagree with Dow that this Court lacked authority to issue this sanction, I agree with him that the punishment was ineffective, unwise, excessive, unjust to victims, and chilling to defendants and other attorneys.
IV. Conclusion
I would hold that, under the Rule of Lenity, the record does not support this Court’s order finding Dow in contempt for failing to abide by this Court’s seven- or eight-day rule. Alternatively, I would hold that, rather than ban or pseudo-ban Dow from practicing in this Court for a one-year period, this Court should instead assess a $1,000 to $2,000 fine and impose a sentence of either three days of jail to be served though home confinement or two years’ probation with the sole condition that he fully abide by this Court’s rules. Because I strongly disagree with the propriety and effectiveness of this Court’s punishment, I must respectfully dissent.
. In his good-cause statement filed with this Court, Dow stated that "[flimely filing would have required the state court pleadings to be filed in this Court no later [than] last night (October 20) by midnight." He contended that he filed the pleadings "less than 20 hours after the midnight deadline.” Dow's statement reflects his understanding, at the time of filing, that under the rule’s example, his filings were late. His statement additionally reflects his understanding that, under the rule's example, the pleadings would have been due by midnight on October 20, as opposed to the Court's closing time of five p.m. Dow’s statements suggest that he was attempting to comply with the example in Rule 11-003, but, I conclude, should not be read as a concession that the Rule of Lenity is inapplicable based on the plain language of the rule itself.
. 18 U.S.C. § 3599(e).
. In June 2010, this Court determined that Dow had failed to show good cause for the untimely filing of a subsequent application for a writ of habeas corpus and a motion to stay an execution. In re Dow, No. WR-57,060-03, 2010 WL 2332420 (Tex.Crim.App. June 9, 2010). In its order issued after a show cause and contempt hearing, this Court stated that it would "take no action" at that time against Dow. Id. It further stated, however, that "should Dow again violate [the rule] without good cause, a sanction could result in a suspension from practicing before this Court.” Id. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284893/ | ORDER
Per Curiam:
Fentress Maurice Wilson appeals from a judgment entered upon a jury verdict convicting him of one count of statutory sodomy in the first degree, Section 566.062, RSMo Cum. Supp. 2014. We affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283889/ | Richardson, J.,
filed a dissenting statement to the denial of Respondents’ Motion for Rehearing
in which Johnson, J., joined.
With all due respect, borrowing from the wisdom of Abraham Lincoln, in most cases a lawyer “who represents himself has a fool for a client.” On the heels of being held in contempt by this Court, Respondents decided it might have been prudent to hire counsel to represent them on this matter. They have retained counsel and *158seek rehearing so that their newly retained counsel may present their defense in this matter. I would recommend granting the Respondents’ Motion for Rehearing for that purpose. | 01-04-2023 | 01-07-2022 |
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