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https://www.courtlistener.com/api/rest/v3/opinions/5283890/ | Newell, J.,
filed a dissenting, statement to the denial of Respondents’ Motion for Rehearing.
This Court entered a show cause order for Respondents David Dow and Jeffrey Newberry to appear before this Court to explain their untimely pleadings in Ex parte Paredes, No. WR-61,939-01. At the hearing, both respondents appeared without independent counsel; they did not provide sufficient detail explaining the delay between their conversation with their client and their subsequent work on his case. Based upon the information provided, this Court held both respondents in contempt. This Court sanctioned Respondent Dow by suspending his practice before this Court regarding any new clients for a period of one year based upon a previous warning from this Court that any further violation's of Miscellaneous Rule 11-003 could result in up to a one-year suspension of practice before this Court. This Court ordered Respondent Newberry to pay a fine in the amount of $250.00, but probated the fine for one year such that the Court would dismiss the fine if Respondent Newberry did not violate Rule 11-003 within that period.1
Through his newly retained counsel, Respondent Dow urges this Court to grant rehearing to reconsider our decision to hold him in contempt, as well as the sanction imposed, due to its impact upon his representation of existing clients in federal court. I would grant rehearing and withdraw this Court’s sanction pending a thorough consideration of the issues Respondent Dow’s counsel raises in his motion for rehearing. I would also order an affidavit from Paredes’s original state habeas counsel, Michael Gross, to provide information regarding his communications with Respondent Dow concerning the post conviction filings in this case, as well as attorney Gross’s explanation for why his client affirmatively requested that Gross forgo what Respondent Dow claims was a “compelling” Wiggins Claim, consequently, I Dissent To This Court’s Denial of the Motion for Rehearing.
. Respondent Newberry does not appear to take issue with this Court’s order. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283891/ | OPINION
Opinion by
Justice Perkes1
This case involves the suspension of surface water rights along the Brazos River Basin. Appellant Texas Commission on Environmental Quality (TCEQ) appeals a summary judgment order in a suit for declaratory judgment rendered in favor of appellee Texas Farm Bureau.2 By two issues, TCEQ argues the district court erred in holding that sections 36.1 through 36.8 of Title 30 of the Texas Administrative Code3 are invalid because: (1) the district court misinterpreted the statute authorizing the creation of the agency rules; and (2) TCEQ has the general authority to protect the public health, safety, and welfare. We affirm.
I. BACKGROUND
TCEQ is charged with administering and enforcing the water-rights regime in Texas. See Tex. Water Code Ann. § 5.013 (West, Westlaw through 2013 3d C.S.). One of the primary concepts of Texas water law is the doctrine of prior appropriation. Under the doctrine, the possessor of a more senior water right has priority over junior water right holders. Id. § 11.027. Appropriative rights are formally recognized in permits. Id. § 11.121. These permits include specific calendar dates, called priority dates, which establish the holder’s place in the line of users. Id. § 11.141. The holder of the permit with the earliest date on a given stream is said to be the most senior, the holder of the permit with the next earliest date the next most senior, and so forth. TCEQ’s jurisdiction encompasses water rights including issuing new permits and exercising discretionary authority to enforce existing rights. Id. § 5.013.
In 2011, the Texas Legislature- enacted water code section 11.053, clarifying TCEQ’s authority to administer water *267rights in times of drought or emergency shortage. Id. § 11.053. Pursuant to this new statute and water code sections 5.013, 5.102 and 5.103, TCEQ adopted the “Drought Rules”, which allow the agency in times of drought or emergency shortage to suspend certain water rights in order to allow a senior holder to obtain water. See 30 Tex. Admin Code § 36.3 (West, Westlaw through 40 Tex. Reg. No. 1152). The Drought Rules, however, also include a provision that allows the executive director not to suspend certain junior rights — e.g., those held by cities and power generators — based on public health, safety, and welfare concerns. See id. § 36.5(c).
TCEQ adopted the Drought Rules in April 2012 and first applied them in the Brazos River Basin (the “Brazos”) in late 2012 and early 2013. In response to severe drought, Dow Chemical Company (“Dow”), which holds senior water rights in the lower Brazos near the Texas coast, notified TCEQ that it was making a “senior call” (also known as a “priority call”) on water in the Brazos. A senior call occurs when the holder of a senior water right demands that the holders of more junior water rights cease their use so that the senior holder may exercise its right. In that regard, the senior holder asks TCEQ to take enforcement action against junior rights to protect the senior right.4
In response to Dow’s senior call, TCEQ’s executive director issued a series of orders. The executive director suspended the use of water rights with a priority date junior to Dow’s priority date. As permitted in Section 36.5(c) of the Drought Rules, however, TCEQ’s executive director elected not to suspend the use of certain water rights designated for use as municipal water supplies or for electric power generation, based on public health, safety and welfare concerns.
TCEQ commissioners thereafter modified the executive director’s order by requiring junior water rights holders who were not suspended to provide the following information to TCEQ within 14 days (30 days for the long-term plans): (1) reports on the non-suspended junior’s daily water use (rates and amounts of water diversion, purpose and place of use); (2) information demonstrating that the non-suspended junior had made reasonable efforts to obtain alternate supplies; and (3) information on what the non-suspended junior had done to identify long-term additional or alternate water supplies.5
Texas Farm Bureau and two individual plaintiffs filed suit challenging the validity of TCEQ’s Drought Rules and seeking a declaratory judgment under Section 2001.038 of the Texas Government Code.6 See Tex. Gov’t Code Ann. § 2001.038 (West, Westlaw through 2013 3d C.S.). The district court, after hearing cross-motions for summary judgment, declared the Drought Rules invalid for the following two reasons:
(1) The rules exceed TCEQ’s statutory authority because they allow exemption of preferred uses from curtailment or suspension order, and such exemptions are not in accordance with the priority of water rights established by Texas Water Code § 11.027; and
(2) Exemption of junior water rights from a priority call and curtailment or suspension order is not author*268ized by TCEQ’s police power or any general authority to protect the public health, safety, or welfare.
II. Statutory Construction
By its first issue, TCEQ argues the district court erred in holding that the Drought Rules are invalid, and contends that the district court misinterpreted section 11.053 of the Texas Water Code. Specifically, TCEQ asserts that: (1) the district court failed to give proper deference to the agency’s interpretation of the statute; (2) the district court’s interpretation is unreasonable and renders section 11.053 meaningless; and (3) the legislative history supports TCEQ’s statutory interpretation.
A. Standard of Review
We review the granting of a motion for summary judgment de novo. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.2013). In moving for traditional summary judgment, a party must show there is no issue of material fact and it is entitled to judgment as a matter of law. See Tex. Rule Civ. Proc. Ann. 166a(c) (West, West-law through 2013 3d C.S.). When both parties move for summary judgment, the non-prevailing party may appeal both the grant of the prevailing party’s motion as well as the denial of its own motion. See Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996). When the district court grants one party’s motion and denies the other party’s motion, the reviewing court should determine all questions presented and render the judgment that the court below should have rendered. Comm’rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997); City of Fort Worth v. Cornyn, 86 S.W.3d 320, 322 (Tex.App.—Austin 2002, no pet.).
In their cross-motions for summary judgment, the parties raised questions of law that must be determined through statutory construction. “We review questions of statutory construction de novo.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). Our fundamental objective in interpreting a statute is “to determine and give effect to the Legislature’s intent.” Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex.2012); accord, Molinet, 356 S.W.3d at 411. In turn, “[t]he plain language of a statute is the surest guide to the Legislature’s intent.” Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex.2012). “We take the Legislature at its word, and the truest measure of what it intended is what it enacted.” In re Office of Attorney Gen., 422 S.W.3d 623, 629 (Tex.2013). “[Ujnambiguous text equals determinative text,” and “ ‘[a]t this point, the judge’s inquiry is at an end.’” Id. (quoting Alex Sheshunoff Mgmt. Servs., LP. v. Johnson, 209 S.W.3d 644, 652 (Tex.2006)); see In re Lee, 411 S.W.3d 445, 450-451 (Tex.2013).
It is inappropriate to resort to rules of construction or extra-textual information to construe a statute when its language is clear and unambiguous. Id. “This text-based approach requires us to study the language of the specific section at issue, as well as the statute as a whole.” Id. When construing the statute as a whole, we are mindful that “[i]f a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.” Tex. Gov’t Code Ann. § 311.026(a) (West, Westlaw through 2013 3d C.S.). However, in the event that any such conflict is irreconcilable, the more specific provision will generally prevail. Id. § 311.026(b); see also In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 470-71 (Tex.2011). Further, in the event of an irreconcilable conflict between two statutes, generally “the statute latest in date of enactment prevails.” Tex. Gov’t Code Ann. § 311.025(a); see Lee, 411 S.W.3d at 450-451. Construction of a stat*269ute by an administrative agency charged with its enforcement is entitled to serious consideration, as long as the construction is reasonable and does not contradict the plain language of the statute. Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993). This standard is applicable to both issues in this case, as each deals with statutory construction and interpretation.
B. Applicable Law
Section 11.053 of the Water Code reads as follows:
(a) During a period of drought or other emergency shortage of water, as defined by commission rule, the executive director by order may, in accordance with the priority of water rights established by Section 11.027:
(1) temporarily suspend the right of any person who holds a water right to use the water; and
(2)temporarily adjust the diversions of water by water rights holders.
(b) The executive director in ordering a suspension or adjustment under this Section shall ensure that an action taken:
(1) Maximizes the beneficial use of water;
(2) Minimizes the impact on water rights holders;
(3) Prevents the waste of water;
(4) Takes into consideration the efforts of the affected water rights holders to develop and implement the water conservation plans and drought contingency plans required by this chapter;
(5) To the greatest extent practicable, conforms to the order or preferences established by Section 11.024; and
(6) Does not require the release of water that, at the time the order is issued, is lawfully stored in a reservoir under water rights associated with that reservoir.
(c)The commission shall adopt rules to implement this Section, including rules:
(1) Defining drought or other emergency shortage of water for the purpose of this Section; and
(2) Specifying the:
a. Conditions under which the executive director may issue an order under this Section;
b. Terms of an order issued under this Section, including the maximum duration of a temporary suspension or adjustment under this Section; and
c. Procedures for notice of, an opportunity for a hearing on, and the appeal to the commission of an order issued under this Section.
Tex. Water Code Ann. § 11.053. This section references two additional sections of the water code, 11.027 and 11.024. Section 11.027 states that “[a]s between appropriators, the first in time is the first in right”, whereas section 11.024 prioritizes water users based on the nature of use. Id. § 11.027; see id. § 11.024.7
Pursuant to its authority under section 11.053(c), TCEQ adopted the Drought Rules, which contain the following clause: “The executive director may determine not *270to suspend a junior water right based on public health, safety, and welfare con-cerns_” 30 Tex. Admin. Code § 36.5(c). In this regard, we look to the statutory language to determine whether section 11.053 allows TCEQ to deviate from the “first in time, first in right” principle of section 11.027. See Tex. Water Code Ann. § 11.027.
C. Analysis
TCEQ contends section 11.053 is ambiguous and therefore the agency’s statutory construction is entitled to deference. The apparent ambiguity is between the language “shall ensure” in 11.053(b) and “in accordance with” found in 11.053(a). TCEQ reasons that it is impossible to ensure the 11.053(b) objectives are met if the agency must always follow the strict priority doctrine stated in 11.053(a). TCEQ interprets section 11.053 as requiring the agency to consider the mandatory factors identified in 11.053(b) which may result in some departure from the strict application of time priority.,
In support of its argument, TCEQ cites Railroad Commission of Texas v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex.2011). In that case, Citizens sought judicial review of the Texas Railroad Commission’s decision to grant a permit to a company to operate commercial injection wells for disposal of gas and waste. Id. at 622. At issue was the Commission’s definition of “public interest”, which is not defined by statute. Id. at 621. The Texas Supreme Court held that the .term “public interest” was “anything but clear and unambiguous” and further concluded that the agency’s interpretation was reasonable and therefore entitled to deference. Id. at 628.
Deference to an agency’s interpretation is permissible, however, only if the meaning of the section or statute in question is not clear. Meno v. Kitchens, 873 S.W.2d 789, 792 (Tex.App.—Austin 1994, writ denied); see Moore, 845 S.W.2d at 823; Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 273 (1944). Thus, to' give weight to TCEQ’s interpretation of Section 11.053, we must first conclude that the statute is ambiguous. This we cannot do.
The meaning of the statutory language is clear. Section 11.053(b) states that the factors noted apply to suspensions or adjustments under this section. See Tex. Water Code Ann. § 11.053(b). The entire section of 11.053 must be accomplished in accordance with the priority of water rights established by section 11.027. See id. § 11.053(a). No specific language was included that would allow TCEQ to depart from the time priority of 11.027; rather, the statute expressly states the opposite. See id. The agency’s interpretation would allow senior water rights holders to be suspended before their junior counterparts, which is inconsistent with the plain meaning of the statute. As such, we decline to defer to TCEQ’s interpretation.8 See Citizens, 336 S.W.3d at 622; City of Plano v. Pub. Util. Comm’n, 953 S.W.2d 416, 421 (Tex.App.—Austin 1997, no pet.).
In addition to arguing that we must defer to its interpretation, TCEQ argues that the district court’s interpretation of section 11.053 is unreasonable because it renders the statute meaningless and incapable of execution. The district court concluded that the Drought Rules adopted under section 11.053(c) exceed the statutory authority because TCEQ must determine suspensions “in accordance with” the “first in time” principle found in section *27111.027. See Tex. Water Code Ann. § 11.053(a).
TCEQ argues that the legal and practical effect of the district court’s interpretation is that TCEQ has little more than the authority to enforce priorities. Instead, according to TCEQ, the purpose of section 11.053 is to allow the agency to consider the factors of 11.053(b) and “strike a balance” between enforcing priorities and exacerbating a situation in which there are public health, safety and welfare concerns. TCEQ asserts that section 11.053(b) requires the agency to base suspension orders on factors other than seniority and points to the fifth factor of 11.053(b) which states that the executive director shall ensure that any suspension or adjustment “to the greatest extent practicable, conforms to the order of preferences established by section 11.024.”9 According to TCEQ, because of this phrase, it is not practical to require the agency to comply with strict priority when applying section 11.053(b)(5). It asserts that if the agency must comply with strict time compliance, then a small community hospital would have its appropriation suspended or adjusted before a recreational fishing pond.
We are required, first and foremost, to follow the plain meaning of the statute. See Crosstex Energy Serv., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 388 (Tex.2014). The Legislature chose specific language in each subsection of 11.053. The qualifier “in accordance with” as it pertains to section 11.027 is not the same qualifier as “to the extent practicable” as it pertains to section 11.024. A plain reading of the statute indicates that the Legislature intended for the priority sys-tern established under section 11.027 to take precedence in any type of suspension or adjustment. The mere fact that a policy seems unwise or inconsistent with other policies does not justify a departure from the plain meaning of a legislative mandate. Meno, 873 S.W.2d at 792; see R.R. Comm’n v. Miller, 434 S.W.2d 670, 672 (Tex.1968). Similarly, it is not the court’s role to examine microscopically the Legislature’s intent when interpreting a clear statutory command. Meno, 873 S.W.2d at 792.
TCEQ’s argument further fails to consider the existing statutory scheme for dealing with emergency appropriations. Section 11.139 of the Water Code allows TCEQ to divert water to meet urgent public health and safety needs. See Tex. Water Code Ann. § 11.139. Section 11.139 gives the executive director the power to grant an emergency request for a diversion from a user. See id. While it may seem that the Drought Rules incorporate this authority, the rules give TCEQ the additional power to identify public health, safety, and welfare concerns and to divert water solely at the discretion of the executive director. Though section 11.139 is fundamentally different than section 11.053, it appears the Legislature did provide a mechanism for emergency appropriations based on urgent public health and safety concerns.
Additionally, TCEQ is not precluded from adopting rules that comply with both the 11.053(a) first in time principle and the 11.053(b) factors. As appellee notes, section 11.053(b) establishes . guidelines for TCEQ’s exercise of authority by requiring TCEQ to balance certain factors when ordering a suspension or adjustment. To *272the extent TCEQ argues that it must strike a balance between the 11.053(b) factors and 11.027 priorities, we disagree. As we previously noted, the plain language of 11.053(a) states otherwise. We conclude the district court correctly found that section 11.053(a) requires TCEQ to apply the section 11.053(b) factors within the framework of “first in time, first in right.” See In re Lee, 411 S.W.3d at 450-451. We overrule TCEQ’s first issue.
III. Agency AuttioRIty 10
By its second issue, TCEQ complains that the district court erred in concluding that “[e]xemption of junior water rights from a priority call and curtailment or suspension order is not authorized by TCEQ’s police power or any general authority to protect the public health, safety, or welfare.” TCEQ asserts that the district court’s conclusion runs counter to the policies and duties identified by the Legislature, the State Constitution, and the courts.
A. Applicable Law
The powers of an agency inchide the powers delegated by the Legislature in clear and express statutory language, together with any implied powers that may be necessary to perform a function or duty delegated by the Legislature. GTE Sw., Inc. v. Pub. Util. Comm’n, 10 S.W.3d 7, 12 (Tex.App.—Austin 1999, no pet.). When the Legislature expressly confers a power on an agency, it also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties. Pub. Util. Comm’n v. City Pub.. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex.2001). An agency may not, however, exercise what is effectively a new power, or a power contradictory to the statute, on the theory that such a power is expedient for administrative purposes. Id. We defer to the agency’s interpretation of its own powers only if that interpretation is reasonable and not inconsistent with the statute. Id.; see Brazoria County v. Tex. Comm’n on Envtl. Quality, 128 S.W.3d 728, 734 (Tex.App.—Austin 2004, no pet.); Moore, 845 S.W.2d at 823.
B. Analysis
As previously discussed, section 11.053 specifically makes all drought curtailment rulemaking or enforcement actions subject to the prior appropriation doctrine. TCEQ identifies several statutory and one constitutional provision that purport to give TCEQ general power to act in the public interest. See Tex. Const, art. 16 § 59(a) (describing the conservation and development of natural resources as public rights and duties); Tex. WateR Code Ann. §§ 11.134(b), 11.024,12.014.
The cited water code sections, however, pertain to TCEQ’s authority when acting on new water permits and authorizing new appropriations. See Tex. Water Code. Ann. §§ 11.134(b), 11.024, 12.014. None of the statutes or the constitutional provision cited by TCEQ give the agency the general authority to suspend water rights after they have been issued. TCEQ also identifies general policy declarations found in water code sections 5.013, 5.102, and 5.103. See Tex. WateR Code Ann. §§ 5.013, 5.102-.103. As Texas Farm Bureau notes, however, courts have consistently rejected appeals to statements of the general purpose of a statute as implicit declarations of broad authority when the *273Legislature has elsewhere expressly set forth the bounds of an agency’s authority with specificity. See GTE Sw. Inc., 10 S.W.3d at 12.
We may not make such an inference unless these grants of regulatory authority will themselves be defeated absent an attendant authority to decide curtailments and suspensions based on public health, safety, and welfare concerns. See id. TCEQ has made no such claim. While we recognize TCEQ’s authority to manage and regulate the state’s scarce water resources, such authority must not exceed its express legislative mandate. See id. We conclude that TCEQ’s police power and general authority does not allow TCEQ to exempt junior preferred water rights from suspension based on public health, safety, and welfare concerns. Rather, section 11.053 specifically sets forth the limits of the agency’s powers in times of drought. See Pub. Util. Comm’n, 53 S.W.3d at 316. Accordingly, we overrule TCEQ’s second issue.
IV. Conclusion
We affirm the judgment of the district court.
. Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has been transferred to this Court from the Third Court of Appeals in Austin, Texas. See Tex. Gov't Code Ann. § 73.001 (West, Westlaw through 2013 3d C.S.).
. Also included as appellees are Frank Voile-man, Frank Destefano, David and Mary Bal-lew, Ron and Sherie Burnette, Sam Jones, Theodore and Mary Kallus, Glen Marecek, John Gaulding, and Charles and Katherine Harless.
.These sections are referred to as the "Drought Rules." See 30 Tex. Admin. Code Ann. §§ 36.1— 36.9 (West, Westlaw through 2013 3d C.S.). It is the interplay between the Drought Rules and the Texas Water Code that is at the heart of this lawsuit.
.In keeping with water rights jargon, senior water rights holders will frequently be referred to as "seniors" and junior water rights holders as "juniors.”
. The original order and all amendments expired when Dow rescinded its senior call.
. After the suit was filed, numerous other individuals joined as plaintiffs.
. Section 11.024 states that "[i]n order to conserve and properly utilize state water, the public welfare requires not only recognition of beneficial uses but also a constructive pub-lie policy regarding the preferences between these uses.... " Tex. Water Code Ann. § 11.024 (West, Westlaw through 2013 3d C.S.).
. Since section 11.053 is unambiguous, there is no need to consider extra-textual information. See In re Lee, 411 S.W.3d 445, 450-51 (Tex.2013).
. Section 11.024’s hierarchy of preferences for appropriations are: (1) domestic and municipal purposes; (2) agricultural and industrial uses; (3) mining and mineral recovery;
(4) hydroelectric power; (5) navigation; (6) recreation and pleasure; and (7) other beneficial uses. See-Tex. Water Code Ann. § 11.024.
. TCEQ’s second issue also concerns statutory construction; therefore, the standard of review is the same as the first issue. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283892/ | M. MICHAEL KINARD, Judge |, Appellant Karen Hubbard appeals from the Arkansas Board of Review (Board) decision denying her unemployment benefits upon finding that she was discharged from her last work for misconduct in connection with the work.1 On appeal, Hubbard argues that the Board’s decision is not supported by substantial evidence. We agree and reverse this finding. The Board’s decision also found that Hubbard was not eligible for benefits from May 11, 2014, through August 5, 2014, under Arkansas Code Annotated section 11 — 10—507(3)(A) (Repl. 2012) because she was not available to perform suitable work due to a childcare situation. Hubbard does not challenge this portion of the decision, and the denial of benefits for these weeks' is affirmed. 12Hubbard was employed as a customer-service associate at Walmart for over seven years until she was discharged in May 2014 for selling alcohol to a customer prior to 7:00 a.m. in violation of company policy. Paula Burns, the store manager, testified that Hubbard had received training regarding the company’s policies on the sale of alcohol. Hubbard was working the self-checkout line the day of the incident and testified that this was her first time working before 7:00 a.m. as a cashier since the store had started selling alcohol. When a customer attempting to purchase beer scanned the item, the register displayed a message stating that the “item cannot be found.” Hubbard called a supervisor for assistance. When no one came to assist her and the line behind the customer grew, Hubbard decided to manually key in the price of the beer and complete the sale. She testified that she considered the fact that the customer was not a minor and that it was not a day when alcohol sales were prohibited; she thought that the barcode was simply not scanning correctly. Shortly thereafter, a supervisor arrived and informed Hubbard that the beer did not scan because it was not yet 7:00 a.m. Hubbard refunded the purchase price and retrieved the beer before the customer left the store.2 Burns testified that Hubbard manually overrode the safeguard in place to prevent the sale of alcohol at certain times. Hubbard testified that the register did not indicate that the item could not be sold, but instead informed her that the item was not found. Hubbard said that any item in the store will generate this message if the barcode is not working properly. | sThe Board concluded that Hubbard had committed an “intentional violation of the employer’s known and reasonable rules” and was discharged for misconduct. A person shall be disqualified from receiving unemployment benefits if it is determined that the person was discharged from his or her last work for misconduct in connection with the work. Ark. Code Ann. § 11 — 10—514(a)(1) (Supp. 2013). The employer has the burden of proving by a preponderance of the evidence that an employee engaged in misconduct. Spencer v. Director, 2014 Ark. App. 479, 2014 WL 4635672. “Misconduct,” for purposes of unemployment compensation, involves (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior the employer has a right to expect of its employees, and (4) disregard of the employee’s duties and obligations to the employer. Id. Our appellate jurisprudence makes clear that to constitute misconduct, there must be the element of intent. Id. Misconduct requires more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Id. To constitute misconduct, there must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id. We review the Board’s findings in the light most favorable to the prevailing party and affirm the Board’s decision if it is supported by substantial evidence. Price v. Director, 2013 Ark. App. 205, 2013 WL 1232103. Substantial evidence is.such relevant evidence that a reasonable mind might |4accept as adequate to support a conclusion. Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision it did based upon the evidence before it. Id. Our function on appeal, however, is not merely to rubber stamp decisions arising from the Board. Id. In Price, the appellant worked for a bank and forgot to place a hold on a check in violation of a known policy. We held that her conduct amounted to an isolated instance of ordinary negligence or unsatisfactory conduct that did not establish wrongful intent or evil design. We conclude that Hubbard’s policy violation is a similar isolated instance of negligence where the required proof of intent is lacking. Therefore, we reverse the disqualification of benefits based on the finding of misconduct. We remand for further proceedings as necessary based on Hubbard’s eligibility to receive benefits under Ark. Code Ann. § 11-10-507(3)(A). Affirmed in part; reversed and remanded in part. Abramson and Vaught, JJ., agree. . The Board denied Hubbard’s application for appeal from the decision of the Appeal Tribunal; therefore, for purposes of judicial review, the Tribunal’s decision serves as the decision of the Board. See Ark. Code Ann. § 11 — 10— 525(f) (Repl. 2012). . Hubbard reported that the customer returned after 7:00 a.m. and purchased the beer. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/577964/ | 956 F.2d 1165
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Kenneth L. WILLIS, Petitioner-Appellant,v.Edward L. COHN, Superintendent Indiana State Reformatory,Respondent-Appellee.
No. 91-1308.
United States Court of Appeals, Seventh Circuit.
Submitted Feb. 6, 1992.*Decided March 10, 1992.
Before RIPPLE and MANION, Circuit Judges, and ROBERT A. GRANT, Senior District Judge**.
ORDER
Kenneth Willis was convicted of robbery and conspiracy to commit robbery in 1985. His conviction was upheld on appeal and his petitions to the Supreme Court of the United States were denied. Willis then filed a habeas corpus petition under 28 U.S.C. § 2254 alleging, inter alia, that statements used against him had been obtained through police coercion in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that the state trial court erred in neglecting to hold a sua sponte hearing as to the voluntariness of his statements. See United States v. Taylor, 374 F.2d 753 (7th Cir.1967). The district court denied this petition without a hearing. It held that the state appellate court had rejected petitioner's claims because of a procedural default, thereby precluding federal review because the default was an independent and adequate state ground for the decision. Memorandum and Order at 17-18. The district court also held that there was no need to hold a sua sponte hearing on the voluntariness of the confession. Because we disagree with the district court on the procedural default issue, we must remand the case for further proceedings. Therefore, we do not reach the issue of whether a hearing was necessary.
The question in this case is whether the state appellate court, in considering Willis's direct appeal, sufficiently indicated that its decision as to the voluntariness of his confession rested on the independent and adequate state ground of procedural default and thus barred federal review. The state court opinion at issue here is styled Willis v. State, 510 N.E.2d 1354 (Ind.1987). The key segment of that opinion reads as follows:
At trial, officer Hawkins testified that Appellant [Willis] wanted to "walk away" from these charges in exchange for information on the location of Samuel Ricketts. The deal was refused. Appellant claims this testimony violated his Miranda rights because his "confession" was procured through violence and threats.
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While an accused's confession may not be procured through violence or threats which overcome his free will, the admissibility of a statement is determined by examining the totality of the circumstances to establish whether the statement was given voluntarily. Wagner [v. State], 474 N.E.2d at 484; Tawney v. State (1982), Ind., 439 N.E.2d 582. There is no indication here that Appellant's statements were the result of the attack by the unknown officer. Appellant was described as agitated, but signed a waiver of his rights and attempted to strike a deal with the police. Further, Appellant failed to object to this testimony when offered by Officer Hawkins. Our conclusion is that Appellant's statements were voluntary and admissible.
510 N.E.2d at 1359 (emphasis added).
The district court focused on the highlighted language in this excerpt as proof that procedural default was an independent and adequate state ground for rejecting Willis's Miranda claim. The court reasoned that the use of "further" indicated that the state court was treating procedural default as a separate issue, representing a distinct, independent ground for its decision. Otherwise, the district court believed, the sentence would be irrelevant. Memorandum and Order at 16-17. Petitioner contests this reading; respondent agrees with the district court and urges us to look at the opinion as a whole, which clearly applied procedural default rules to other issues and even stated the general rule that failure to object to testimony waives the issue on appeal. Willis, 510 N.E.2d at 1356, 1358-59. Respondent argues that we may infer that the state court was applying the procedural default rule to the confession.
The governing legal rule is clear: "[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (internal quotation omitted) (emphasis added). Based on concerns for comity and federalism, this rule guides federal courts in discerning whether a state court decision was based on an independent and adequate state law ground. If such a state ground exists, federal review would be superfluous. Coleman v. Thompson, 111 S.Ct. 2546, 2552-54 (1991). We must presume that there is not an independent and adequate state law ground for a state court's decision when it " 'fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.' " Id. at 2557 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)).
To make a "clear and express statement," the state court "must not only rely on the procedural default, it must actually state that it is doing so and that other grounds are reached only in the alternative." Rose v. Lane, 910 F.2d 400, 402 (7th Cir.), cert. denied, 111 S.Ct. 515 (1990); Rogers-Bey v. Lane, 896 F.2d 279, 282 (7th Cir.), cert. denied, 111 S.Ct. 93 (1990). If an opinion includes such a statement, a state court may freely address federal issues without sacrificing the independence and finality of its decision. Harris, 489 U.S. at 264 n. 10. But when it addresses federal issues without including such a statement, the state court interjects ambiguity and opens the door to federal review. Id. at 266 n. 13 ("It is precisely with regard to such an ambiguous reference to state law in the context of clear reliance on federal law that Long permits federal review of the federal issue."). Writing in Coleman, Justice O'Connor explained the value of the Harris presumption and why it must be applied even in cases where the availability of an independent state ground is clear.
1
In cases in which the Long and Harris presumption applies, federal courts will conclude that the relevant state court judgment does not rest on an independent and adequate state ground. The presumption, like all conclusive presumptions, is designed to avoid the cost of excessive inquiry where a per se rule will achieve the correct result in almost all cases.... The Long and Harris presumption works because in the majority of cases in which a state court decision fairly appears to rest primarily on federal law or to be interwoven with such law, and the state court does not plainly state that it is relying on an independent and adequate state ground, the state court decision did not in fact rest on an independent and adequate state ground. We accept errors in those small number of cases where there was nonetheless an independent and adequate state ground in exchange for a significant reduction in the costs of inquiry.
2
111 S.Ct. at 2558 (emphasis added); accord Rogers-Bey, 896 F.2d at 282 (noting the formalism of the rule, but recognizing its countervailing benefit of relieving federal courts from the difficult task of discerning a state court's unapparent intent). Elsewhere, Justice O'Connor has also discussed the policies behind the "plain statement" requirement.
3
Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court's refusal to decide cases where there is an adequate and independent state ground.... [The plain statement requirement] obviates in most instances the need to examine state law in order to decide the nature of the state court decision, and at the same time will avoid the danger of our rendering advisory opinions. It also avoids the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this court. We believe such an approach will provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law.
4
Long, 463 U.S. at 1040-41 (footnote omitted). Federal courts are perfectly willing to defer to state court judgments on state law, but the price of this deference is diligence. State courts must scrupulously abide by the rules and expressly indicate that a decision rests on state law and other grounds are mere alternatives. Rose, 910 F.2d at 402. Rogers-Bey is instructive. In that case the state court found the petitioner's claim that hearsay evidence had prejudiced his trial was waived because his counsel failed to make a contemporaneous objection. However, the court went on to consider the merits of the constitutional claim, concluding that the admission of the statement was not plain error. Rogers-Bey, 896 F.2d at 280. Obviously the state court had based its decision on two distinct grounds--but it failed to indicate whether the federal ground was merely an alternative holding. We held that there was no independent and adequate state ground because "[t]he impact of Harris ... is that the state's reliance on the procedural foreclosure must be stated, and it must be stated in plain language." Id. at 282. Absent such plain language, federal review is available.
5
We now turn to an application of those principles to the case. Although it cites Indiana cases in discussing the voluntariness of petitioner's statements, the state court's opinion here plainly involves federal law because the bulk of the discussion concerns federal law, focusing on petitioner's rights under Miranda v. Arizona, 384 U.S. 436 (1966), and applying the well-developed "totality of the circumstances" test for voluntariness. See, e.g., Smith v. Duckworth, 910 F.2d 1492 (7th Cir.1990). In such circumstances, the Harris presumption that the decision did not rest on an adequate and independent state ground applies unless the state court "clearly and expressly" indicated that its judgment rested upon a state procedural bar. Harris, 489 U.S. at 264. The instant case presents a paradigm situation where the state court could have insulated its decision but failed to do so. The state court's opinion is sprinkled with findings of procedural default on discrete points, demonstrating that the court knew how to make its reliance on state law plain and that it realized that it must do so with regard to each issue. While the reference to petitioner's failure to object to the challenged testimony might possibly have been a shorthand indication that, like the others, this claim too was barred by procedural default, a shorthand statement is not enough. As we have noted, when a state court is unclear we must not, under the applicable Supreme Court precedent, guess at its intentions. Rogers-Bey, 896 F.2d at 282; see Caldwell v. Mississippi, 472 U.S. 320, 327-28 (1985) ("The mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied upon the procedural bar as an independent basis for its disposition of the case.").
6
The state court's sentence, "Further, Appellant failed to object to this testimony when offered by Officer Hawkins," coming as it did after two sentences discussing indications of the voluntariness of the statements, could also be a statement of a third in a series of reasons why the petitioner's statements were voluntary: that his failure to object made it more likely that even he never thought the statements were coerced. Were we nevertheless to read into the state court's opinion, giving it the benefit of the doubt and finding an independent state law ground of procedural default when the real import of the sentence was otherwise, we would run the risk of denying federal review of a bona fide constitutional claim. If the state's court's analysis was actually entirely substantive--and erroneous--then our denial of review based on a misinterpretation of the state opinion would erroneously deprive the appellant of federal review. Harris and Coleman direct us to avoid this hazard; the burden is on the state court to be clear, not on us to decide what is "close enough." The only clear holding in this case was that the challenged statements were voluntary and admissible; any conclusion as to procedural default was far from obvious. Willis, 510 N.E.2d at 1359.
7
Because the state court's opinion appears to be based on or entwined with federal law, and there is no clear statement otherwise, the federal claim in this case is not barred. Therefore the district court had jurisdiction over Willis's claim and this case must be remanded on the issue of the voluntariness of his confession. We wish to be clear that we decide only that there is no procedural bar to the district court's reaching the merits. Indeed, we recognize that the court has already considered many of the circumstances surrounding the challenged statements in its discussion of whether the trial court was obligated to hold a sua sponte hearing as to their voluntariness. Our only directive on remand is that the district court squarely confront the issue of the voluntariness of Willis's confession.
8
REVERSED and REMANDED.
*
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal has been submitted on the briefs
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The Honorable Robert A. Grant, of the Northern District of Indiana, is sitting by designation | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5283895/ | BART F. VIRDEN, Judge h Travelers Casualty and Surety Company of America (Travelers) and Tycor Industries LLC (Tycor) appeal the circuit court’s order for Tycor to pay Cummins Mid-South LLC (Cummins) $59,115.14 plus costs, interest, and attorney’s fees on the grounds that (1) the language of the lien release was ambiguous, (2) Cummins did not waive its right to recover on the bond, and (3) Tycor was unjustly enriched. This appeal follows. On appeal, Tycor asserts that the terms of the release were unambiguous, and that Cummins waived its right to payment under the bond by signing the release. Additionally, Tycor asserts that Cummins is not entitled to recover under the doctrine of unjust enrichment because the existence of a contract bars such recovery. We agree, and we reverse the circuit court’s order. |⅞1. Facts Tycor, a general contractor, bonded by Travelers, subcontracted with ARC Electrical (ARC) for installation and electrical work on the Armed Forces Reserve Center project (project). ARC purchased a generator from Cummins. ARC began to have problems performing, and Tycor fired ARC before the job was completed. On August 3, 2011, John Virden1 of Tycor contacted Nick Grandison, a project manager at Cummins, to ascertain if any money was owed for supplies relating to the project. Initially, Grandison ■ told Virden that Cummins was paid in full. However, on September 20, 2011, Cummins contacted Tycor and explained that it had made a mistake and their records showed that Ty-cor actually owed $59,115.14 for the generator. It was undisputed that Tycor had assumed the liabilities of ARC regarding this job. Tycor took no action. In November 2011, Tycor received written notice that a $2,748.16 bill from a September 2, 2011 service call on the generator had gone into collection. The invoice showed the date of the service call, the parts and labor charges, plus various charges related to the repair of the part. On December 1, 2011, Tycor paid the bill with a check dated December 1, 2011, and wrote “Paid in Full-RE: Armed Forces Res. Ctr.” Ty-cor prepared the release, which was dated December 13, 2011. It was entitled “SUBCONTRACTOR/MATERIALMAN ' UNCONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT,” and was signed by Cummins’s chief financial officer, Mark Whitehead. It contained the statement “covers the full and final payment of the |scontract amount for labor, services and equipment, or material furnished on the job of Armed Forces Reserve Center.” Whitehead testified he handled unpaid accounts as a part of his job, regularly signing lien waivers and that he signed the release drafted by Tycor. He explained that he did not contact Tycor to discuss the release. Whitehead testified that he knew what a final lien waiver was, and he knew that if he signed it, Cummins was not going to get paid any more on that project. He testified that he did not check to see if any money was owed by Tycor on the job. Three more times in January 2012, the generator required repair, which Cummins provided. ■ The total bill for the three service calls was $6,794.64, which Tycor paid. However, for these repairs, Cummins prepared its own lien release, specifically noting that the generator itself had not been paid for. On March 28, 2012, Cummins submitted a notice of subcontractors claim against the contractor’s bond for the amount of the generator, transfer switch, and start-up materials. Travelers denied the claim based on the execution of the lien release. On July 2, 2012, Cummins filed a complaint against Tycor and Travelers, asking for payment for the generator, interest, and attorney’s fees. Tycor filed a motion to dismiss with its answer, which the circuit court denied. II. The Circuit Court’s Order On March 7, 2014, the circuit court entered an order finding that Cummins did not waive its bond claim on the grounds that the language of the first release was ambiguous and did not indicate it was payment for anything other than the service call. The circuit court found that the language was ambiguous, considering extrinsic evidence, and construed the |4terms of the lien release in favor of Cummins: [Tjhere was nothing in the proof, circumstantial or otherwise, to indicate that Cummins knew that by accepting the check for $2,748.16 that it was releasing its right to be paid for the generator. The definition of waiver requires full knowledge of material facts and an action which is inconsistent with the right or intention to rely upon the right. A waiver requires consideration.... There was nothing [in the lien release] to indicate that it [the check] was consideration for payment of the generator purchased by ARC. The circuit court found that “Cummins provided the generator and was never paid for it” and hence, Tycor was unjustly enriched. Specifically, the circuit court found Tycor was unjustly enriched in the amount of $59,115.14 by its “retention of the generator at the work site ... for the project owner, and the failure of the bonding company to pay for it.” The circuit court also found that Cum-mins could recover under the bond based on Tycor’s unjust enrichment: The purpose of the bond under A.C.A. section 18-44-501, et seq. was to provide for unforeseen eventualities. Tycor was obligated to provide the generator under the overall set of contracts, and for Ty-cor to not pay for it is a windfall benefit to Tyeor[.] The circuit court denied Tycor’s defensive claims of detrimental reliance, estop-pel, and payment on the ground that Tycor did not meet its burden to assert the defenses. In its final finding, the circuit court found that the bond should have covered the generator: “The purpose of the statute requiring a bond for public works projects is to provide for payment of subcontractors of materialmen in cases such as this.” The circuit court awarded Cummins $59,115.14 plus costs, 12% penalty, prejudgment and postjudgment interest, and attorney’s fees. IJIL The Lien Release The release at issue in this appeal is a type of contract between the parties and is interpreted pursuant to the rules of contract interpretation. Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 371, 255 S.W.3d 424, 429 (2007). The first rule of contract interpretation is to give to the language employed the meaning that the parties intended. Id. If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 297, 57 S.W.3d 165, 169 (2001). Whether ambiguity exists is ordinarily a question-of law for courts to resolve. Machen v. Machen, 2011 Ark. App. 47, 380 S.W.3d 497. An issue involving a question of law is reviewed de novo. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Machen, supra. We must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Id. Our supreme court has set forth the function of the court when there is a question concerning the clarity of the terms of a contract: [W]here there is a dispute as to the meaning of a contract term or provision, be it an insurance or other contract, the trial court must initially perform the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties rely on disputed extrinsic evidence to support their proposed interpretation. As Justice George Rose Smith explained, “[t]he construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence.” Thus, where the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is the trial court’s duty to make such a determination as a | f,matter of law. Elam, 346 Ark. at 297, 57 S.W.3d at 169-70 (internal citations omitted). After careful examination of the lien release written by Tycor and signed by Cummins, we hold that the trial court erred in finding its language ambiguous, and we reverse. We cannot say that the language of the lien release is ambiguous, looking only on the face of the document. The release is entitled at the top of the document: “SUBCONTRACTOR/MATERIALMAN UNCONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT.” It contains the statements that the release “covers the full and final payment of the contract amount for labor, services and equipment, or material furnished on the job of Armed Forces Reserve Center.” The release clearly sets forth that the person who signs the document waives any bond right he or she may have: “[T]he undersigned hereby releases and waives any mechanics’ lien, stop notice, or bond right he/she/it has on the said job.” The language is clear that Cummins releases any bond right it may have against Tycor concerning the Armed Forces Reserve Center job. There is no ambiguity, and therefore no call to look beyond the plain language of the contract. We hold that the circuit court erred in finding the language of the release ambiguous, and on this point, we reverse. IV. Waiver and Unilateral Mistake Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits, and it, may occur when one, with full knowledge of the material facts, does something that is- inconsistent with the right or his intention to rely upon it. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005). Whether a waiver occurred is a question of intent, which is usually a question of fact. Beal Bank S.S.B. v. Thornton, 70 Ark. App. 336, 19 S.W.3d 48 (2000). Therefore, on the issue of waiver, we do not reverse the circuit court’s finding of fact unless it is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Essential Accounting Sys., Inc. v. Dewberry, 2013 Ark. App. 388, 428 S.W.3d 613. A contractual stipulation can only be withdrawn on grounds for nullifying a contract, meaning fraud or misrepresentation. Bishop v. Bishop, 60 Ark. App. 164, 961 S.W.2d 770 (1998). There can be no rescission on account of the mistake of one party only, where the other party was not guilty of any fraud, concealment, undue influence, or bad faith, and did not induce or encourage the mistake, and will not derive any unconscionable advantage from the enforcement of the contract. Lowell Perkins Agency, Inc. v. Jacobs, 250 Ark. 952, 469 S.W.2d 89 (1971). A unilateral mistake is a-subjective matter and a court will not reform or rescind a contract involving a unilateral mistake except where fraud is involved. Foshee v. Murphy, 267 Ark. 1047, 593 S.W.2d 486 (1980). The fact that a party entered into an agreement which later appeared improvident to him or her is no ground for relief. Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994). In Fitzwater v. Lambert and Barr, Inc., 539 F.Supp. 282 (W.D.Ark.1982), the court addressed the issue of unilateral mistake and release. In that case, the plaintiffs were driving when they were struck from the rear by a vehicle driven by an employee of the defendant. A few months after the accident, the plaintiffs signed a release settling their claims and |sreleasing the defendants from any claims stemming from the accident, known or unknown. The release also stated that the extent of the injuries of the plaintiffs was unknown at the time they signed the release. The plaintiffs noted on the release that they read and understood that the document settled all claims. Later, as other injuries arose from the accident, the plaintiffs filed a claim asserting mutual mistake, among other claims. The court found that the plaintiffs made a unilateral mistake, and there was no evidence of fraud on the part of the defendants. In its discussion, the court set forth the nature of unilateral mistake and how it relates to waiver: The evidence is undisputed that the plaintiffs read the release. It is beyond question that plaintiffs knew the character of the release and understood the consequences of executing it. The release is clear, plain, simple, and unambiguous in all respects. It may indeed be true that plaintiffs failed to appreciate the seriousness of the injury, but startlingly clear hindsight will not render the acts of one laboring under erroneous foresight void ab initio. That plaintiffs’ signing of the release was perhaps unwise, and in retrospect unfortunate, is not sufficient to avoid it. Id. at 291 (internal citations omitted). The facts in the present case are analogous. The terms of the release are unambiguous, as discussed above. The document is signed by Whitehead, who holds a master’s of business administration from Kellogg University, and at the time of trial had been the CFO at Cummins Mid-South for fourteen years where he specialized in credit-related administration, specifically handling aging accounts receivable. Prior to that, he had worked at Cummins, Inc. (a related business that led to the formation of Cummins Mid-South) for eight years. At trial, he testified that he signed releases in the everyday course of his work, that he understood the nature of release forms, and that he understood signing a release waived any claim Cummins would have on that job. He testified that he read the |9waiver and release before he signed it, but did not contact anyone at Tycor before he signed it. Furthermore, Cummins put on no evidence that Tycor defrauded Cummins into .signing the release, and in its order the circuit court did not make any finding of fraud on Tycor’s part necessary to assert unilateral mistake as a defense. Instead, the circuit court erroneously relied upon its finding of ambiguity in the language of the release and construed the language of the release based on extrinsic evidence. The circuit court’s construction of the lien led to its erroneous finding that waiver did not occur. The unambiguous language of the release informed Whitehead that the right to recover on the bond, a right known to him to exist, was waived upon signing, and unilateral mistake without a showing of fraud on the part of Tycor does not allow Cummins to rescind the release. Thus, we hold that the circuit court erred in finding that Cummins did not waive its right to recover on the bond, and on this point we reverse. V. Unjust Enrichment Tycor asserts on appeal that the circuit court erred in finding that Cum-mins was able to recover under the doctrine of unjust enrichment. We agree, and we reverse. In the present case, the issue of whether the doctrine of unjust enrichment applies is a question of law. Generally, the standard of review on appeal from a bench trial is whether the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Hall v. Bias, 2011 Ark. App. 93, 381 S.W.3d 152. However, a circuit court’s conclusion on a question of law is reviewed de novo and is given no deference on appeal. Id. Unjust enrichment is.an equitable doctrine. First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005). It is the principle that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). However, the concept of unjust enrichment has no application when an express written contract exists. Id. In Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 612, 210 S.W.3d 101, 112 (2005), our supreme court addressed the issue of whether an express contract applies to claims against third parties. The court followed the Second Circuit Court of Appeals which held that it is a “settled principle” that “the existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi-contract for events arising out of the same subject matter.” See U.S. E. Telecomm., Inc. v. U.S. W. Commc’n Servs., Inc., 38 F.3d 1289, 1296 (2d Cir.1994). Our supreme court also noted that in U.S. East Telecommunications the Second Circuit held, “[A] subcontractor could recover from a landowner, even when a separate contract exists between the subcontractor and general contractor, if the owner has agreed to pay the general contractor’s debt or if the circumstances surrounding the parties’ dealings can be found to have given rise to an obligation to pay.” Id. at 1298. However, in the present case, as in Servewell, there, is no evidence of any such agreement, therefore, this exception is not applicable. The general rule is that one cannot recover in quasi-contract when an express contract exists, and governs the matter in the present case. See Servewell, 362 Ark. at 612, 210 S.W.3d at 112. A written |ncontract for the purchase and installation of the generator existed between ARC and Cummins; therefore, Cummins is barred from asserting the doctrine of unjust enrichment. Therefore, as a matter of law, we hold that the circuit court erred in applying the equitable remedy of unjust enrichment in light of the existing contract, and we reverse on this point. Reversed. Gruber and Glover, JJ., agree. . John Virden is not related to Judge Bart F. Virden. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283896/ | KENNETH S. HIXSON, Judge | ¶ Appellant Steve Humbert appeals from the termination of his parental rights to his two sons, C.H. and M.H., who are ages seven and six respectively.1 On appeal, Steve argues that there was insufficient evidence to support the termination. We affirm. We review termination of parental rights cases de novo. Willingham v. Ark. Dep’t of Human Servs., 2014 Ark. App. 568, 2014 WL 5382622. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark.Code Ann. § 9-27-341 (Supp. 2013); M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). This case was initiated on September 23, 2013, when appellee Department of Human Services (DHS) filed an ex parte motion for emergency custody. Attached to the motion was an affidavit by a DHS caseworker stating that DHS had taken an emergency hold of both children after a report had been made to the child-abuse hotline stating that the children’s mother, Nycole, had been using methamphetamine and crack cocaine in a hotel room in the presence of the children. Steve was reportedly buying the drugs for Nycole. The caseworker went to Steve and Ny-cole’s residence to inquire about the report, and Nycole admitted that she had recently used cocaine. Nycole then tested positive for THC, methamphetamine, and cocaine, and Steve refused a drug screen. Based on these circumstances, the trial court entered an ex parte order for emergency custody on the same day DHS filed its petition.2 The children remained in DHS custody until November 6, 2013, when the trial court entered an order placing the children in their father’s custody. That order provided that all of the children’s visitation with their mother must be supervised by DHS. The trial court ^entered an adjudication order on November 12, 2013, wherein it found the children to be dependent-neglected based on parental unfitness and neglect due to Nycole’s illegal drug use. The adjudication order stated that Steve had passed his drug screen, had a job and a place to live, and that placement of the children with him was in the children’s best interest. The adjudication order reiterated that Nycole shall not have contact with the children unless DHS was present. On January 21, 2014, DHS filed an emergency motion for an ex parte change of custody of the children from Steve back to DHS. The emergency motion was based on Steve allowing the children to visit Ny-cole without DHS supervision in violation of the trial court’s orders. An attached affidavit by a caseworker stated that DHS had made an unannounced visit to Steve’s apartment and found Steve and the boys there with Nycole. DHS attempted to drug screen Nycole, but she refused. Upon speaking with the boys, the boys disclosed that they had been seeing their mother on almost a daily basis since they had come to live with their father from foster care. The boys indicated that their mother had watched over them while their father was at work, that she had taken them on outings while their father stayed home, and that she frequently spent the night at the apartment. The boys stated that their parents often argued, which scared them. C.H. stated that his father had told him not to tell anyone that the boys were seeing their mother or else they would get taken away again. The caseworker stated that there was no furniture in the apartment and little food. Based on this information, the trial court granted DHS’s motion for an emergency change of custody on the same day that the motion was filed. |4Steve was terminated from his employment on May 23, 2014, after he tested positive for methamphetamine on a hair-follicle drug screen. On June 12, 2014, the trial court entered a permanency-planning order changing the goal of the case from reunification to termination of parental rights and adoption. In the permanency-planning order, the trial court noted that Nycole continued to use illegal drugs and had not maintained stable housing or employment. The order stated that Steve continued to be enmeshed with Nycole, had not diligently applied himself to counseling, had not addressed his anger issues, and that his lack of credibility made it impossible to assess his compliance with the court’s prior orders to maintain employment and refrain from using illegal drugs. DHS filed a petition to terminate the parental rights of both parents on July 22, 2014. The termination hearing was held on September 19, 2014. On September 26, 2014, the trial court - entered an order terminating the parental rights of both parents. The trial court found by clear and convincing evidence that termination of parental rights was in the children’s best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) & (ii) (Supp. 2013).- With respect to Steve, the trial court also found clear and convincing evidence of one statutory ground. Specifically, pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a), the trial court found that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of the juveniles in the custody of their father was contrary to the | juveniles’ health, safety, or welfare and that, despite the offer of appropriate family services, the father had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate his circumstances that prevented the placement of the juveniles in his custody. The trial court made specific findings that Steve had been terminated by his employer for testing positive for methamphetamine; that he had refused to submit to random weekly drug screens; that he was homeless and unemployed; that he had failed to demonstrate stability or the ability to protect the boys and keep them safe; and that he had no desire to participate in counseling. Lori Johnson, the DHS caseworker assigned to this case, testified at the termination hearing. Ms. Johnson stated that the children’s mother had made no progress during the pendency of the case and was unstable and continued to use illegal drugs. Ms. Johnson further testified that Steve had not made substantial, measurable progress. Ms. Johnson expressed concern because Steve had no stable housing or employment, did not have a car, and had missed numerous scheduled drug screens leading up to the termination hearing. Ms. Johnson also testified that at one time the children’s mother disclosed to Ms. Johnson that she and Steve had been using drugs together. Ms. Johnson testified that the boys are highly adoptable. She recommended termination of both parents’ parental rights so that the children could be adopted. Steve testified on his own behalf, and he stated that he was homeless and living with a friend. Steve did not have a permanent job, but he said he had done some work through a temporary agency over the past month. Steve stated that he had never used 16methamphetamine, although he acknowledged that when he got fired from his previous job as a truck driver it was his fault. The only reason Steve lost that job was due to testing positive for methamphetamine. Steve testified that he was extremely close with his children and had a great relationship with them before they were taken into DHS custody. Steve stated that he thought he could get a permanent job and an apartment in a few months. He also stated that, if the children were returned to him and the court ordered no contact with their mother, he would follow that order. In this appeal, Steve challenges the sufficiency of the evidence supporting termination of his parental rights. He argues that there was an absence of evidence that termination of his parental rights was in the children’s best interest, and also that the single statutory ground found by the trial court was not met. In support of his argument, Steve cites Benedict v. Arkansas Department of Human Services, 96 Ark. App. 395, 242 S.W.3d 305 (2006), where we stated that if there is still reason to believe there can be a positive, nurturing parent-child relationship, the law favors preservation, not severance, of natural familial bonds. Appellant also cites Arkansas Code Annotated section 9-27-341(a)(4)(B) (Supp. 2013), which provides, “The court shall rely upon the record of the parent’s compliance in the entire dependency-neglect case and evidence presented at the termination hearing in making its decision whether it is in the juvenile’s best interest to terminate parental rights.” Steve contends that, by making its decision in a vacuum and not considering his compliance throughout the entire dependency-neglect case, the trial court violated the above statutory requirement. |7Steve concedes that he was not able to take custody of his children at the time of the termination hearing, but he blames his instability on one failed drug test (which he claims was questionable) that caused him to lose his job as a truck driver. Steve asserts that during the pendency of this case he was mostly in compliance with the case plan and had demonstrated stability and the ability to care for the boys prior to his unfortunate dismissal from his job. His children had only been out of his custody for a total of about nine months when the termination hearing was held, and Steve contends that it would have been in the children’s best interest to allow him more time to regain his stability so he could again provide a stable home for them. Steve specifically takes issue with the trial court’s finding that he was indifferent to remedying the subsequent issues or rehabilitating his circumstances. To the contrary, Steve claims that throughout the case he demonstrated a genuine interest in maintaining custody of the boys, and that at the time of the termination hearing he was working toward that goal. For these reasons, Steve asks that the trial court’s order terminating his parental rights be reversed. On this record, we conclude that the trial court did not clearly err in finding that termination of Steve’s parental rights was in the children’s best interest. Although Steve denied methamphetamine use, it is undisputed that he lost his job after testing positive for methamphetamine, and he missed multiple drug screens scheduled by DHS including the last six preceding the termination hearing. The children’s mother, Nycole, disclosed to a caseworker that she and Steve had used drugs together. And when Steve had been given custody of the children, he exposed the children to their drug-addicted mother on a daily basis |sin direct violation of the trial court’s orders. By his own admission, at the time of the termination hearing Steve was homeless, had no vehicle, and had no steady job. Based on these facts, the trial court could reasonably conclude that there was the potential for harm if the children were returned to their father’s custody. Moreover, there was evidence that the children were highly adoptable. We further conclude that the trial court did not clearly err in basing the termination on the “other factors” statutory ground. Due to the aforementioned factors, there were other issues that arose after this case began that demonstrated that the return of the children to Steve’s custody would be contrary to their health, safety, or welfare. And given the evidence of Steve’s drug use and avoidance of drug screens, his propensity to subject the children to their drug-addicted mother in contravention of court orders, and his homelessness and instability, we find no clear error in the trial court’s determination that Steve had manifested indifference to remedying the subsequent issues. We have held that a child’s need for permanency and stability may override a parent’s request for additional time to improve the parent’s circumstances, Dozier v. Arkansas Department of Human Services, 2010 Ark. App. 17, 372 S.W.3d 849, and this principle is applicable in this case. We hold that the trial court’s decision to terminate appellant’s parental rights was not clearly erroneous. Affirmed. Kinard and Glover, JJ., agree. . The parental rights of the children’s mother, Nycole Fargo, were also terminated, but she is not a party to this appeal. . At the time the emergency custody order was entered, Steve was the putative father of the boys. However, three days later an order was entered establishing his paternity. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283897/ | *325OPINION OF THE COURT BY
JUSTICE VENTERS
A Barren Circuit Court jury found Appellant, Dennis James Trigg, guilty of first-degree trafficking in a controlled substance and possession of drug paraphernalia. Appellant was sentenced to twenty years’ imprisonment for the trafficking charge and assessed a $500.00 fine for the drug paraphernalia charge. On appeal, he asserts that: (1) the Commonwealth im-permissibly introduced an incriminating oral statement that had not been disclosed to Appellant pursuant to RCr 7.24(1); (2) the trial court erred when it allowed testimony commenting on Appellant’s pre-ar-rest silence; and (3) the $500.00 fine should be vacated. For the. following reasons, we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Two suspects arrested for illegal drug possession in Glasgow, Kentucky, told police that they had purchased crack cocaine from Appellant. In response, Glasgow police officers obtained a warrant to search the residence at 514 East College Street, believing it to be Appellant’s home. When Officers Mike Burton, Nick Houchens, and others arrived.at the scene to execute the warrant, Appellant opened the door. He remained on the premises throughout the three-hour search. His mother apparently owned the home, but she was passed out on a couch surrounded by liquor bottles.
During the search, police examined á man’s suit coat that was hanging in a bedroom closet. In the pocket of the coat, they found wrapped in a sock a quantity of crack cocaine, two boxes of razor blades, a pill, and cash totaling $920.00. They also found $336.00 and a box of plastic sandwich bags under the bed in the same room. Consequently, Appellant was arrested.
Appellant did not testify at trial, but through the' testimony of friends and relatives he presented a defense that he did not reside in his mother’s East College Street home, that he lived mainly at the homes of his girlfriend and his father, that he stayed with his mother only when stormy weather threatened because she was afraid of storms,1 and that the items found during the search did not belong to him.
During Officer Houchens’s testimony, the prosecutor asked if at any time during the search, Appellant ever said, “Look, I don’t even live here,” or words to that effect. Appellant’s objection to that question was overruled, and the prosecutor asked again if Appellant ever said during s the search, “This isn’t where I live, this isn’t my residence.” Houchens responded that Appellant had not said anything to that effect.
The same inquiry was directed to Officer Burton. He agreed that Appellant never denied that he lived at the searched premises. The Commonwealth also asked Burton why he thought the bedroom where the contraband was found belonged to Appellant. Burton responded that during the search he asked Appellant whose room it was, and Appellant admitted that it was his. Appellant’s trial counsel objected to that testimony because this incriminating statement was not disclosed by the Commonwealth during pre-trial discovery. The trial court overruled Appellant’s objection.
Ultimately, the case went to jury and Appellant was convicted of trafficking in a controlled substance (cocaine) and possession of drug paraphernalia. He was acquitted on another charge, possession of *326hydrocodone. Appellant was sentenced as noted above. This appeal followed.
Appellant presents three arguments on appeal. First, he contends that the admission of an incriminating statement, which the Commonwealth had not disclosed during discovery, rendered him unable to prepare an adequate defense. Second, he asserts the Commonwealth’s use of his silence during the search violated his Fifth Amendment privilege against self-incrimination. Finally, Appellant also argues that the $500.00 fíne should be vacated. We address each argument in turn.
II. THE COMMONWEALTH’S FAILURE TO DISCLOSE APPELLANT’S INCRIMINATING STATEMENT REQUIRES REVERSAL
We first consider Appellant’s argument that his trial was fundamentally flawed when the trial court allowed the introduction of evidence that Appellant told police that the bedroom in which the contraband was found was “his” room. Specifically, Appellant contends this evidence should have been excluded from the trial because, in violation of RCr 7.24(1), the Commonwealth had failed to disclose the statement during pre-trial discovery. The Commonwealth denies that RCr 7.24(1) was violated and asserts in the alternative that any error associated with admission of the undisclosed statement was harmless. We agree with Appellant and now hold that his convictions must be reversed.
RCr 7.24(1) provides in pertinent part that prior to trial, “the attorney for the Commonwealth shall disclose the substance, including, time, date, and place, of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness.... ” The Commonwealth first contends that RCr 7.24 is not implicated here because Appellant’s oral incriminating statement was not “known by the attorney for the Commonwealth” in advance of the trial. The Commonwealth notes that the prosecutor had not, prior to trial, asked the police investigators how they had determined which bedroom was Appellant’s, and thus never learned of Appellant’s statement until its fortuitous revelation at trial. We have no reason to doubt that. This is not a matter of prose-cutorial misconduct and it is not claimed to be such.
However, our case law is clear: the Commonwealth cannot claim ignorance in order to avoid an RCr 7.24(1) violation. We have held that when a testifying law enforcement officer knows of a significant statement that was made, that knowledge is properly imputed to the Commonwealth, regardless of whether the prosecuting attorney had actual knowledge of the statement. Anderson v. Commonwealth, 864 S.W.2d 909, 912 (Ky.1993). In the context of evaluating a similar discovery violation involving RCr 7.26(1), requiring the disclosure of witness statements, we said in Anderson:
It is no answer to say the Commonwealth [sic] Attorney is “unaware” of a statement, if the statement was taken by the investigating officer in charge of the case. In such circumstances the knowledge of the detective is the knowledge of the Commonwealth. The Commonwealth’s Attorney should advise the police that such evidence must be produced, and, he bears the same responsibility for producing the statement as would pertain if it were in his file.
Id. at 912-13; see also Ballard v. Commonwealth, 743 S.W.2d 21, 22 (Ky.1988) (holding that a defendant had been denied due process when the Commonwealth failed to disclose during discovery an ex*327culpatory report unknown to the Commonwealth’s Attorney but known by an investigating officer who served as a witness for the Commonwealth).
Exclusion of the suddenly revealed evidence, at least in this case, would not be unfairly prejudicial to the Commonwealth. The Commonwealth’s Attorney was prepared to prove his case without it; excluding the evidence simply leaves the prosecutor with the same evidence he expected to present when the trial started. If the police officers did not regard Appellant’s statement as sufficiently important to alert the Commonwealth’s Attorney of its existence prior to trial; and if, prior to trial, the Commonwealth’s Attorney did not ask the officers what statements Appellant had made during the search, then we must presume that the probative value of the evidence is low relative to its prejudicial effect. Little harm comes to the Commonwealth’s case by its exclusion. At worst, the prosecutor is consigned to presenting the evidence that he intended to presént when the trial started.
However, the prejudicial effect upon the defendant of a sudden, mid-trial revelation of what is tantamount to a confession is manifest. Its propensity to undermine his prospects for a fair trial cannot be casually regarded or summarily dismissed. Prejudice is apparent in two ways.
First, as we held in Chestnut v. Commonwealth, “[t]he Commonwealth’s ability to withhold an incriminating oral statement through oversight, or otherwise, should not permit a surprise attack on an unsuspecting defense counsel’s entire defense strategy. Such a result would run afoul of the clear intent of RCr 7.24(1).” 250 S.W.3d 288, 296 (Ky.2008).
In Chestnut, the defendant was linked to a burglary only by circumstantial evidence until the Commonwealth was allowed to introduce a previously undisclosed oral statement allegedly made by the defendant implicating himself in the crime. Id. at 298-99. We held that failure to disclose the incriminating statement violated RCr 7.24(1) and “fatally underminefd]” and “gutted” the defendant’s entire defense. Id. at 297, 299. As such, we concluded that the trial court abused its discretion in admitting the statement, and we reversed the defendant’s conviction. Id. at 299; see also Grant v. Commonwealth, 244 S.W.3d 39 (Ky.2008) (holding that the Commonwealth’s failure to disclose a tape recording of an incriminating jailhouse telephone conversation rendered the defendant unable to make a well-informed decision about whether to testify and constituted reversible error).
But “undermining” the planned defense is not the only prejudicial effect arising from the admission of undisclosed self-incriminating statements. The fundamental fairness implicit in RCr 7.24(1) is our recognition that when the government claims that the defendant’s own words should convict him, the defendant must have adequate notice so that he can present his own evidence (1) refuting the testimony that he made the inculpating statement; or (2) explaining the context in which the statement was made to dispel its incriminating impact. That will typically require effective cross-examination of the witness revealing the statement, and pretrial inquiry of other witnesses who may have a different perspective on the making of the alleged statement.
It is universally acknowledged that “[t]he opportunity for cross-examination ... is critical for ensuring the integrity of the fact-finding process. Cross-examination is ‘the principal means by which the believability of a witness and the truth of his testimony are tested.’ ” Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (quoting Davis v. *328Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). The credibility of a witness’s memory about what was supposedly said months earlier by a criminal suspect must be fairly subject to challenge. Inquiry by effective cross-examination or by pre-trial investigation into circumstances surrounding the putative statement is all the more important when the statement was not recorded nor otherwise memorialized.
RCr 7.24(1) entitled Appellant to know in advance of trial that the Commonwealth would present testimony attributing to him a self-incriminating statement. Without the fair notice required under RCr 7.24(1), the accused individual who is suddenly confronted with the claim that he made incriminating remarks must cobble together a make-shift response or allow the testimony to go unchallenged. Either way, Appellant’s counsel was unfairly hindered in his ability to prepare and present a proper defense and to effectively challenge the accuracy of the testimony through cross-examination.
The statement attributed to Appellant was the only direct evidence that tended to establish his possessory interest in the suit coat hanging in the closet and thus, to the contraband found in the coat pocket. Neither of the two individuals who told police that Appellant had sold them cocaine identified the house at 514 East College Street as Appellant’s residence. Moreover, Appellant presented several witnesses who testified that he lived elsewhere and his driver’s license stated that his home address was 506 South Franklin Street, Glasgow, Kentucky, which was his father’s home around the block from 514 East College Street. The coat was not introduced into evidence; nor was there any evidence establishing its size or that it would even fit Appellant. It was the Commonwealth’s duty under RCr 7.24(1) to learn of Appellant’s incriminating statement and to disclose the substance, time, place, and date of it to Appellant’s counsel. The failure to perform this duty was a discovery violation.
This Court has held that “a discovery violation serves as sufficient justification for setting aside a conviction when there is a reasonable probability that if the evidence were disclosed the result would have been different.” Chestnut at 297. Additionally, we have held that when an undisclosed statement makes it doubtful that defense counsel would have proceeded in the same manner: at trial, then reversal is required. Id. at 298; Akers v. Commonwealth, 172 S.W.3d 414, 417-18 (Ky.2005). Furthermore, “absent the protections of RCr 7.24(1), there is nothing to curb the errant prosecutor who may strategically violate the rule in an attempt to surprise a defendant with an undisclosed statement.” Chestnut at 298. Here, the nondisclosure rendered defense counsel unable to make a well-informed decision about the most appropriate defense strategy, and there is a reasonable probability that defense counsel would not have pursued the same theory had he been apprised of Appellant’s alleged statement. See Id. at 297-98. Thus, pursuant to the Chestnut and Grant line of cases, we hold that the trial court abused its discretion in admitting the undisclosed statement, and that the error was not harmless. Consequently, reversal of Appellant’s conviction is necessary.
Having reversed on these grounds, we will examine Appellant’s remaining allegations of error only to the extent they are likely to recur on retrial.
III. TESTIMONY OF APPELLANT’S SILENCE DURING THE SEARCH OF THE RESIDENCE WAS IMPROPER
In the preceding section, we addressed the admission of testimony re*329garding' what Appellant said to officers during the search. Because it may arise upon retrial, we now address the admission of testimony regarding what Appellant did not say to officers during the search — that is, his silence.
Over Appellant’s objection, police officers were permitted to testify that, despite Appellant’s presence during the three-hour search, he never told the officers, “Look, I don’t even live here,” or “This isn’t where I live, this isn’t my residence;” or any other words disclaiming his residence upon those premises.2 Appellant argued to the trial court that this use of his silence as an admission of guilt violated his constitutional right to remain silent. The trial court overruled Appellant’s objection and further addressed the admissibility of the officer’s testimony with this comment:
It is, you know, if somebody ... it is somewhat unusual if someone came to my house and said, ‘we got a search warrant here to search your house,’ I think I would probably say, ‘But it ain’t my house.’
Appellant’s claim that this use of his silence violated his rights under the Fifth Amendment rests largely upon Green v. Commonwealth, 815 S.W.2d 398, 400 (Ky.1991), where we held that despite the defendant’s failure to invoke his right to remain silent, it was error for the Commonwealth to comment on his silence after he was placed under arrest by police. Id. at 399. Green, however, involved post-arrest circumstances in which the right to remain silent had clearly attached. Here, Appellant had not been arrested and he was not in police custody during the relevant time period. Green is, at best, a difficult fit.
The Commonwealth relies upon the opinion of the United States Supreme Court in Salinas v. Texas, — U.S. -, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013) and this Court’s opinion in Baumia v. Commonwealth, 402 S.W.3d 530, 536 (Ky.2013). Neither of those cases serves well as a precedent for resolving the issue at hand. Baumia involves a pre-arrest and pre-Mi-randa warning situation but unlike the instant case, the defendant in Baumia did not remain silent. She very audibly and colorfully announced her refusal to speak to police. It was that vocal invocation of her right to remain silent, and not her silence, that we held could not be used as evidence of her guilt. Id. at 536.
Citing to Salinas, the Commonwealth argues that the use of Appellant’s pre-arrest, pre-Miranda warning silence as substantive evidence of guilt was permissible because he never put officers on notice that, by remaining silent during the search, he was invoking his Fifth Amendment right. That position rests exclusively upon Justice Alito’s opinion in Salinas, joined by only two other justices: “It would have been a simple matter for [the defendant] to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.” Salinas, 133 S.Ct. at 2180. The opinion of three justices does not establish a precedent.3
*330Justices Thomas and Scalia, concurring with Justice Alito in result only, concluded that “Salinas’ claim would fail even if he had invoked the [Fifth Amendment] privilege because the prosecutor’s comments regarding his precustodial si-, lence did not compel him to give self-incriminating testimony.” Id. at 2184. “When a fragmented Coupt decides a case and no single rationale fexplaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds!.]’ ” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).
The “narrowest grounds” explaining the result in Salinas is not readily apparent: three justices agree that the Fifth Amendment was not violated because the defendant did not expressly invoke the right, while two say it was not violated because, under the particular facts of the case, the defendant did not have a Fifth Amendment right.
We have not previously addressed the Fifth Amendment implications of using a defendant’s silence under the circumstances before us in this case, and neither has the United States Supreme Court.4 We are, however, able to resolve the issue on more preferable, non-constitutional grounds, in accordance with the principle that constitutional adjudication should be avoided unless it is strictly necessary for a decision in the case.5
Regardless of the constitutional implications of the testimony that Appellant remained silent during the search, like every other form of evidence, to gain admission at trial the testimony had to satisfy the applicable rules of evidence. The only evi-dentiary rule providing for the introduction of silence' as an admission of guilt is the common law doctrine of adoptive admissions by silence, now codified in Kentucky law as KRE 801A(b)(2).6 The trial court’s analysis of Appellant’s objection— “if someone came to my house and said, ‘we got a search warrant here to search your house,’ I think I would probably say, ‘But it ain’t my house.’ ” — is a clear manifestation of the doctrine of adoptive admissions. In this case, however, an essen*331tial prerequisite for the application of the rule is missing.
KRE 801A(b)(2) provides, in pertinent part:
(b) Admissions of parties. A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the statement is offered against a party and is:
(2) A statement of which the party has manifested an adoption or belief in its truth[.]
Of critical importance in applying the rule is this: it is not the silence itself that constitutes the “statement” to he admitted into evidence. The “statement” that the rule admits into evidence is the audible expression of another person, “the declarant,” whose statement the defendant heard and to which the defendant’s silence “manifested an adoption or belief in its truth.”
For example, Marshall v. Commonwealth, 60 S.W.3d 513, 521 (Ky.2001), holds that “[w]hen incriminating statements are made in the presence of an accused under circumstances that would normally call for his denial of the statements, and it is clear that the accused understood the statements, yet did not contradict them, the statements are admissible as tacit, or adoptive admissions.”
To qualify as an adoptive admission through silence under KRE 801A(b)(2), the defendant’s silence must be a response to “statements [of another person, the declarant] that would normally evoke denial by the party if untrue.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.20[3][b] at 597 (5th ed. 2013) (citing Commonwealth v. Buford, 197 S.W.3d 66, 73-73 (Ky.2006)). We explained in Buford:
[S]everal conditions must be satisfied before a statement can be attributed to a party because of silence. A statement may not be admitted as an adoptive admission unless it is established that the party heard and understood the statement and remained silent. Additionally, a statement is not admissible if conditions that prevailed at the time of the statement deprived the party of freedom to act or speak with reference to it.
197 S.W.3d at 74.
Therefore, under the rule, silence is admissible only in conjunction with the accusatory out-of-court statement, because it is only in the context provided by the out-of-court statement that any meaning can be ascribed to the silent response. Without the declarant’s antecedent statement, the corresponding silence is devoid of any meaning at all. Silence derives its meaning and its evidentiary relevance only in context provided by the out-of-court statement that preceded it.
The Commonwealth concedes in its brief that Appellant’s failure to disclaim an interest in the premises being searched, i.e., his silence, was not a response to any accusatory or incriminating “statement” made in his presence.7 The admission of Appellant’s silence, in the absence of a declarant’s statement to which Appellant’s silence might fairly be regarded as an incriminating response, is a misapplication of KRE 801A(b)(2). Here, the jury was allowed to infer culpability simply because Appellant did not protest the execution of a search warrant or disavow his interest in the searched premises. See RobeRT G. *332Lawson, The Kentucky Evidence Law Handbook § 8.20[3][a] at 597, quoting Griffith v. Commonwealth:
When accusatory or incriminating statements are made in the presence and hearing and with the understanding of the accused person and concerning a matter within his knowledge, under such circumstances as would seem to call for his denial and none is made, those statements, and the fact that they were not contradicted, denied, or objected to, become competent evidence against the defendant. They derive their competency from the theory and upon the broad principle that the statements were impliedly ratified and adopted by the accused as his own and constituted a tacit admission on his part though an inaudible one.
250 Ky. 506, 63 S.W.2d 594, 596 (1933) (emphasis added). Without the “accusatory or incriminating statements,” there is nothing that one’s silence may be said to have “impliedly ratified and adopted as his own.” If silence in the absence of an accusatory or incriminating prefatory comment is deemed to have meaning and relevance, then every person at the scene of a crime and every person detained or arrested by police must immediately proclaim his innocence so that his failure to do so or his silence will not later be construed as a confession.
Professor Lawson’s treatise warns that “[s]ilence with respect to a statement will always have some ambiguity, which creates a need for cautious use of the concept and' thoughtful’ consideration of the circumstances surrounding that silence.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.20[3][b] at 597. “[B]ecause of the powerful nature of such evidence, and the dubious reliability associated with it, trial judges should guard against any possible abuse and hold the admissibility of such evidence to exacting standards.” Buford, 197 S.W.3d at 75 (Lambert, C.J., concurring).
We agree with the Commonwealth that questioning the police officers about their observation of Appellant’s demeanor and appearance during the search was permissible. But, the use of Appellant’s silence under the theory that his failure to spontaneously protest the search by disclaiming his interest in the premises is indicative of guilt violates KRE 801A(b)(2), and is not otherwise admissible under the Rules of Evidence. Upon retrial, Appellant’s silence during the search shall not be used as an admission of his residence upon the searched premises.
IV. THE IMPOSITION OF THE FINE
The trial court imposed upon Appellant a fine of $500.00 for the misdemeanor offense of possession of drug paraphernalia. Appellant’s final argument is that the imposition of the fine was error because he had been determined to be an indigent, or a “needy” person, under KRS Chapter 31, and therefore, in accordance with KRS 534.040(4), the imposition of the fine was error. KRS 534.040(4) (“Fines required by this section shall not be imposed upon any person determined by the court to, be indigent pursuant to KRS Chapter 31.”).
The issue was not preserved for appellate review; however, Appellant argues that preservation is unnecessary, citing Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky.2010). Because we reverse Appellant’s convictions on other grounds, the fine is necessarily vacated. Nevertheless, we draw attention to Spicer v. Commonwealth, 442 S.W.3d 26 (Ky.2014), in which we recently clarified Travis with respect to the failure to preserve perceived error in the imposition of court *333costs upon person’s claiming to be a “poor person.” In Spicer, we explained:
If a trial judge was not asked at sentencing to determine the defendant’s poverty status and did not otherwise presume the defendant to be an indigent or poor person before imposing court costs, then there is no error to correct on appeal. This is because there is no affront to justice when we affirm the assessment of court costs upon a defendant whose status was not determined. It is only when the defendant’s poverty status has been established, and court costs assessed contrary to that status, that we have a genuine “sentencing error” to correct on appeal [despite lack of preservation].
Id. at 35.
The same analysis is applicable to the imposition of fines upon persons determined to be indigent, or “needy” under KRS 31.120 (listing factors to be considered in determining whether a person is “needy”). Unless the imposition of a fine upon an indigent or “needy” person is apparent on the face of the judgment or is in obvious conflict with facts established in the record (such as plainly having been found indigent at all stages of the trial proceedings), we do not regard it as a sentencing error that is renewable on appeal in the absence of preservation.
The indigent defendant is obligated to challenge the imposition of a fine that is contrary to KRS 534.040(4), and failure to do so will foreclose appellate review unless the error is apparent on the face of the judgment, or his indigency at the time of sentencing is otherwise plainly established in the record.
V. CONCLUSION
Based upon our conclusion that the trial court abused its discretion by allowing the Commonwealth to introduce an incriminating statement that had not been disclosed to Appellant pursuant to RCr 7.24(1), we reverse Appellant’s convictions and vacate the judgment. Accordingly, we remand the case to the Barren Circuit Court for further proceedings consistent with this opinion.
All sitting. Minton, C.J., Abramson, Barber, Keller, and Noble, JJ., concur. Cunningham, J., concurs in result only.
. Police testimony confirmed that the weather was stormy on the night of the search.
. In contrast with the inference suggested by the Commonwealth, it is entirely plausible that an innocent person in Appellant’s position would not disclaim residency if the police were searching where he did not live, lest they abandon the misguided search and refocus their attention upon his true residence.
. See 20 Am.Jur.2d Courts § 138. ("A plurality opinion is said not to be a binding precedent, or, by a related view, to be nonbinding, but of limited precedential value as to the holding but not as to the rationale.”); and 21 C.J.S. Courts § 198, ("The principles enunciated in an opinion do not constitute binding precedent if a majority of the court concurred *330merely in the result, but not in the opinion on a particular issue.”) See also J.A.S. v. Bushelman, 342 S.W.3d 850, 853 (Ky.2011) ("[I]f a majority of the court agreed on a decision in' the case, but less than a majority could agree on the reasoning for that decision, the decision has no stare decisis effect.")
.The facts of Salinas differ from the instant case in at least one critical aspect. In Salinas, the' defendant voluntarily went to the police station to answer police questions about a crime, and in doing so he waived his right to remain silent. Then, only after the questioning became accusatory and discomfiting did he suddenly reverse course and decline further comment. In contrast, Appellant's "silence” occurred during a compulsory search of the premises upon which he was located; his silence was not preceded by his consent to a voluntary interview.
. "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Stephenson v. Woodward, 182 S.W.3d 162, 168 (Ky.2005) (quoting Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944)).
. In Salinas, Justice Alito concluded that Salinas's silence was admissible as a party’s admission by silence under Fed. Rule of Evid. 804(b)(3): "Statements against interest are regularly admitted into evidence at criminal trials [...] and there is no good reason to approach a defendant’s silence any differently.” Id., at 2183.
. The Commonwealth makes this concession to emphasize the point that Appellant’s silence was not the effect of any "official corn-pulsion” keeping Appellant silent during the search. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283898/ | OPINION
DIXON, Judge:
■ Appellants, Tracy and Tammy Acuff, appeal pro se from an order of the Kenton Circuit Court granting summary judgment in favor of Appellee, Wells Fargo Bank, N.A., in this mortgage foreclosure action. For the reasons set forth herein, we conclude that summary judgment was premature and thus remand the matter to the trial court for further proceedings.
In October 2003, the Acuffs obtained a loan from Provident Funding Associates, LP, to purchase a home in Covington, Kentucky. To evidence the loan, Tammy Acuff executed a note in favor of Provident in the amount of $295,000. Both Acuffs executed a mortgage on the property in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Provident. In July 2010, the Acuffs ceased making payments on the loan and thereafter sought to obtain a loan modification agreement. During one of the hearings in the trial court, Tracy Acuff explained that Wells Fargo, as the mortgage servicer, had informed the Acuffs that they needed to be ninety-days in default before a loan modification was a possibility.
Inexplicably, however, on October 2, 2010, Wells Fargo filed the instant foreclosure action in the Kenton Circuit Court seeking enforcement of the Acuffs’ note and mortgage. The Complaint asserted that Wells Fargo was the current holder of both the note and mortgage. Attached to the complaint were copies of the mortgage between the Acuffs and MERS, and the note between the Acuffs and Provident. Significantly, however, an additional page *337had been added to the note that contained the following endorsements:
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The Aeuffs responded to the complaint by challenging Wells Fargo’s standing to bring the foreclosure action. Although the Aeuffs acknowledged that Wells Fargo was the servicer of their note, they disputed that it was the actual holder of the note and pointed out that Wells Fargo had only attached a copy of such. Further, the Aeuffs argued that the added endorsement page lacked any identifiable information connecting it to their note, such as the date of transfer, “property address, loan number, parcel identification number, or borrower’s name.” Finally, the Aeuffs contended that there was no evidence that MERS had assigned the mortgage to Wells Fargo.
Two months after filing the initial complaint, Wells Fargo filed an amended complaint again asserting that it was the holder of the note and mortgage. Attached to the amended complaint was a copy of an assignment of the Aeuffs’ mortgage from MERS to Wells Fargo that had been executed on October 26, 2010, and filed of record with the Kenton County Clerk on November 4, 2010.
In October 2011, Wells Fargo filed a motion for summary judgment. However, the Aeuffs thereafter filed a Chapter 7 Bankruptcy petition in United States Bankruptcy Court for the Eastern District of Kentucky and, due to the automatic stay, Wells Fargo was required to withdraw its motion and move the bankruptcy court for relief from the stay. Such relief was granted in December 2011, and Wells Fargo thereafter again moved the trial court for summary judgment and an in rem judgment against the property, since the Aeuffs’ personal liability on the debt had been discharged in the bankruptcy.
In response to the renewed motion for summary judgment, the Aeuffs filed a motion to dismiss for lack of standing on the grounds that Wells Fargo was not the holder of both the note and mortgage at the time it filed the foreclosure action because MERS had not yet assigned the mortgage to Wells Fargo. In addition, the Aeuffs responded to Wells Fargo’s motion for summary judgment arguing that genuine issues of material fact existed as to whether Wells Fargo was the holder of the note. The Aeuffs again pointed out that Wells Fargo had only produced a copy of the note and that such was insufficient to prove ownership.
Both parties’ motions were referred to the Master Commissioner who, on April 11, 2012, entered a report and recommendation that the Aeuffs’ motion to dismiss be denied and that summary judgment be granted in favor of Wells Fargo. The Commissioner determined that the endorsement in blank by Wells Fargo Home Mortgage converted the note into bearer paper, and that transfer of possession was sufficient to transfer the rights under the note. KRS 355.3-109. Thus, the Commissioner found that Wells Fargo established it was thé holder of the note as evidence by the attachment of a copy of the note to the Complaint.
The Aeuffs thereafter filed objections to the Commissioner’s findings claiming that (1) the endorsement on the note was undated and lacked information; (2) produc*338tion of only a copy of the note did not prove that Wells Fargo was in possession of the original note; (3) an internet web search indicated that Fannie Mae was the actual owner of the note and Wells Fargo was only the servicer; and (4) Wells Fargo had failed to respond to the Acuffs’ qualified written request under the Real Estate Settlement Procedures Act for production of the original note.
On June 12, 2012, the trial court accepted the Commissioner’s recommendation and entered an in rem summary judgment and order of sale in favor of Wells Fargo. This appeal ensued. Additional facts are set forth as necessary.
Our standard of review on appeal of a summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” CR 56.03. The trial court must view the record “in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). Summary judgment is proper only “where the movant shows that the adverse party could not prevail under any circumstances.” Id.
On appeal, the Acuffs argue that the trial court erred in finding that Wells Fargo had standing to pursue the foreclosure action because it has never proven that it is the holder of the note and it was not the holder of the mortgage at.the time the action was filed. The Acuffs also challenge the trial court’s jurisdiction to hear the case as well as the validity of Wells Fargo’s amended complaint. After reviewing the record and applicable law, we are of the opinion that a genuine issue of material fact exists as to Wells Fargo’s status as the holder of the original note at the time the foreclosure action was initiated. As such, we conclude that summary judgment was inappropriate.
CR 17.01, provides, in pertinent part, that “[ejvery action shall be prosecuted in the name of the real party in interest, but a personal representative ... may bring an action without joining the party or parties for whose benefit it is prosecuted. -Nothing herein, however, shall abrogate or take away an individual’s right to sue.” In Harris v. Jackson, 192 S.W.3d 297, 303 (Ky.2006), our Supreme Court held that “[t]he real party in interest is one who is entitled to the benefits of the action upon the successful termination thereof. Stuart v. Richardson, 407 S.W.2d 716, 717 (Ky.1966); Brandon v. Combs, 666 S.W.2d 755, 759 (Ky.App.1983). A real party in interest then, is a person, or entity, which wins, or loses, dependent upon the resolution of the questions.” Accordingly, the benchmark for standing is “a judicially recognizable interest in the subject matter.” City of Louisville v. Stock Yards Bank & Trust, Co., 843 S.W.2d 327, 328 (Ky.1992). The interest of a party must be a present or substantial interest as distinguished from a mere expectancy. Ashland v. Ashland F.O.P. No. 3, Inc., 888 S.W.2d 667, 668 (Ky.1994); see also Plaza B.V. v. Stephens, 913 S.W.2d. 319, 322 (Ky.1996). Finally, “[t]he issue of standing must be decided on the facts of each case.” Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 202 (Ky.1989). A determination of whether Wells Fargo is the real party in interest hinges upon *339whether it was the holder of the note and requires an examination of the applicable provisions of Kentucky’s Uniform Commercial Code, KRS Chapter 355.
Generally, in foreclosure cases, the real party in interest is the current holder of the note and/or mortgage. KRS 355.1-201(2)(u)(l) defines a “holder” in relevant part, as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession!/]” The copy of the note Wells Fargo attached to its complaint contained an additional page with a special endorsement from Provident to Wells Fargo Home Mortgage, as well as a blank endorsement by Wells Fargo Home Mortgage. The master commissioner herein correctly observed that “[w]hen endorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specifically endorsed.” KRS 355.3-205(2); See also KRS 355.3-201(1). The official commentary to KRS 355.3-201 explains that negotiation “always requires a change in the possession of the instrument because nobody can be a holder without possessing the instrument, either directly or through an agent.” As the Tenth Circuit Court of Appeals in In re Miller, 666 F.3d 1255, 1263-64 (10th Cir.2012) noted,
“Possession is an element designed to prevent two or more claimants from qualifying as holders who could take free of the other party’s claim of ownership.” Georg v. Metro Contractors, Inc., 178 P.3d 1209, 1213 (Colo.2008).... “With rare exceptions, those claiming to be holders have physical ownership of the instrument in question.” Id. ... In the case of bearer paper such as the Note, physical possession is essential because it constitutes proof of ownership and a consequent right to payment.
In his report and recommendation, the master commissioner relied upon the decision in Stevenson v. Bank of America, 359 S.W.3d 466 (Ky.App.2011),'which is factually similar to the instant case. Therein, the Stevensons claimed that Bank of America (“BAC”) was not the real party in interest and thus did not have standing to bring a foreclosure action because the assignment of their mortgage to BAC was not filed until after the foreclosure action was initiated. A panel of this Court disagreed, finding that the timing of the assignment was irrelevant because BAC was also in possession of the Stevenson’s original promissory note:
Stevenson contends BAC did not have standing because the assignment of mortgage was not filed until after the initiating complaint. Thus, Stevenson believes BAC merely had an expectancy of an interest when it filed the complaint. ...
The record reflects [the original holder of the note] endorsed the note in blank, transforming it into a bearer paper pursuant to KRS 355.3-109, and that BAC obtained rights to the note and the accompanying mortgage in August of 2009. BAC asserted that it was the holder of the note and was in possession of the original note. In support of its position, although it had previously produced exact copies of the documents, BAC produced the original note and mortgage before the Master Commissioner and Stevenson was permitted to inspect the documents. BAC noted that the assignment of mortgage was executed solely for the purpose of memorializing the transaction and updating the public records. The Master Commissioner was satisfied that BAC was, in fact, the holder of the note and entitled to maintain the instant action as the real party in interest.
*340Contrary to Stevenson’s contention, the assignment of mortgage was not the - document which transferred enforcement rights on the note to BAC, and the date of its execution is immaterial to the case at bar. Pursuant to KRS 355.3-201(2), “negotiation” means “a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.... If an instrument is payable by bearer, it may be negotiated by transfer of possession alone.” Stevenson fails to comprehend that when the note was' endorsed in blank it became a bearer instrument and no assignment was necessarily required to transfer the right to collect and enforce the note. Mere possession of the original note was sufficient. Because BAC was lawfully in possession of the original note, clearly it was entitled to enforce the obligations secured thereby and was the real party in interest in the litigation below.
359 S.W.3d at 469-70. What is significant, yet distinguishable from the instant case, is that the master commissioner in Stevenson ordered BAC to produce the original note for inspection. Id. at 468. Thus, there was no question that BAC was in physical possession of the note. The master commissioner herein essentially ignored such fact, commenting that there was “nothing in the court record establishing that the Acuffs ever asked for production of the original note.” 1
Our review of the record indicates that the Acuffs challenged Wells Fargo’s possession of the note beginning with their answer. Clearly, whether Wells Fargo is the real party in interest is an issue that has been present since this case’s inception. Admittedly, Wells Fargo attached a copy of the Acuffs’ note to its foreclosure complaint. However, the blank endorsement on the note is contained on a separate page, not numbered in correspondence to the note itself, and contains no identifying information that establishes that it is indeed related to the note. Furthermore, we would be remiss if we did not point out that Wells Fargo asserted in its initial complaint that it was the holder of both the Acuffs’ mortgage and note when, in fact, the mortgage was not assigned until several weeks after the complaint was filed. While Stevenson holds that such is not dispositive of Wells Fargo’s standing if it possessed the original note at the time the foreclosure action was commenced, it does further raise a genuine issue of material fact as to Wells Fargo’s status of a “holder” at the commencement of the action.
It is well-settled that a party seeking foreclosure must establish by sufficient evidence ownership or the right to otherwise collect the debt. However, whether or under what circumstances it is necessary for that party to produce the original note involved in a mortgage foreclosure is much more unclear. Necessity of Production of Original Note Involved in Mortgage Foreclosure — Twenty-First Century Cases, 86 A.L.R.6th 411 (2013). Contrary to the master commissioner’s report, we believe the Stevenson decision supports the proposition that where, as here, a plaintiff attempts to enforce bearer paper as the holder thereof and a defendant raises an issue as to actual possession *341of the original note, the purported holder has a duty to establish such as required by Kentucky’s U.C.C.
As the party moving for summary judgment, it was incumbent upon Wells Fargo to demonstrate that there existed no genuine issues of material fact. Steel-vest, 807 S.W.2d at 480. We must conclude that the evidence in the record, as it currently stands and viewed in the light most favorable to the Acuffs, is insufficient to establish whether Wells Fargo was the holder of the Acuffs’ original note and thus, the real party in interest at the time the foreclosure action was filed. Because genuine issues of material fact existed, the trial court erred in granting summary judgment.
For the foregoing reasons, the Kenton Circuit Court’s in rem judgment and order of sale is reversed and this matter is remanded for further proceedings consistent with this opinion.
ALL CONCUR.
. On January 28, 2012, the Acuffs did, in fact, file a qualified written request with Wells Fargo for production of the original promissory note. Inexplicably, it does not appear that such document was filed of record or even brought to the attention of the master commissioner until the Acuffs filed their exceptions to his report. Wells Fargo has never responded to the request for production. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283901/ | Order
Per Curiam
Following a jury trial, Dequan Hawkins appeals from his convictions for second degree murder and armed criminal action. Hawkins contends the circuit court erred in overruling his objection to the jury’s request to replay a witness’s videotaped interview during deliberations, because the videotape was testimonial and unfairly bolstered the witness’s statement. After a thorough review of the record, we find no error and affirm the judgment of convictions. 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/5283902/ | ORDER
PER CURIAM:
Following a jury trial, Marcus Smith was convicted in the Circuit Court of Clay County of second-degree (felony) murder, unlawful use of a weapon, and two counts of armed criminal action. Smith appeals. He argues that the circuit court erred in: simultaneously finding him guilty of both felony murder and unlawful use of a weapon, in violation of the merger doctrine and his right not to be twice put in jeopardy for the same offense; failing to instruct the jury on voluntary manslaughter; admitting as an exhibit a firearm which was not used in the offense; and failing to grant his motion for acquittal due to the insufficiency of the evidence. 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 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283903/ | ORDER
PER CURIAM.
Charles Bolden appeals from the probate court’s judgment entered after a jury trial committing him to secure confinement in the custody of the Missouri Department of Mental Health as a sexually violent predator. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court did not abuse its discretion in excluding certain expert opinion testimony. Whitnell v. State, 129 S.W.3d 409, 413 (Mo.App.E.D.2004). 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/5284179/ | Order
Per Curiam:
Mr. Carlos Kapel Henderson appeals the judgment of the Circuit Court of Boone County, Missouri, denying, after an evidentiary hearing, Mr. Henderson’s motion for post-conviction relief pursuant to Rule 24.035. Because a published opinion would serve no jurisprudential purpose, we have instead provided a memorandum of law to the parties explaining our ruling. We affirm the judgment. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283904/ | ORDER
PER CURIAM
Moorlands Holdings, LLC (“Moorlands”) appeals from the judgment of the trial court that dismissed its cause of action for breach of contract and that granted summary judgment in favor of the Metropolitan St. Louis Sewer District (“MSD”) on Moorlands’ claim for inverse condemnation.
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/5283906/ | ORDER
PER CURIAM
Richard A. Leonard, Jr. (Defendant) appeals from the judgment upon his convictions for one count of first-degree assault, in violation of Section 565.050, RSMo 2000,1 one count of first-degree robbery, in violation of Section 565.020, and two counts of armed criminal action, in violation of Section 575.015. The trial court sentenced Defendant to four life sentences, 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/5283907/ | ORDER
PER CURIAM
Daniel McKay (Defendant) appeals the trial court’s order and judgment entered following remand from this Court for an evidentiary hearing to determine whether the State could rebut the presumption of prejudice caused by the delay in bringing Defendant to trial and whether Defendant’s right to a speedy trial was violated. We affirm.
We have reviewed the briefs of the parties and the record on appeal and have determined that an extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283910/ | ORDER
PER CURIAM.
Glen Scott Evans appeals from the trial court’s judgment entered upon a jury verdict finding him guilty of second-degree murder. We have reviewed the briefs of the parties and the record on appeal and find no error, plain or otherwise. 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 Criminal Procedure 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283911/ | ORDER
PER CURIAM.
James Stampley appeals the judgment entered upon a jury verdict convicting him of one count of first-degree burglary and one count of felony stealing. We find no error has occurred. •
No jurisprudential purpose would be served by a written opinion. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283912/ | ORDER
PER CURIAM.
Cornelious A. Jones appeals from the trial court’s judgment convicting him of first-degree robbery. We have reviewed the briefs of the parties and the record on appeal and conclude the State presented sufficient evidence to support the trial court’s judgment. State v. Beam, 334 S.W.3d 699, 707 (Mo.App.E.D.2011). 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 Criminal Procedure 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285678/ | OPINION OF THE COURT BY
JUSTICE KELLER
Dianne Carson first filed an application for retirement disability benefits in November 2007. Based on the recommendation of a hearing officer, the board of trustees of .the Kentucky ■ Retirement Systems (KERS)1 denied ■ Carson’s claim. Carson did not seek judicial review of KERS’s order, choosing instead to file a second application in October 2009. Based on a recommendation of a different hearing officer, KERS again denied Carson’s claim. Carson sought judicial review and the Franklin Circuit Court reversed and remanded with instructions for KERS to consider all of the medical evidence Carson submitted. The Court of Appeals affirmed. We granted discretionary review to ad*137dress KERS’s arguments that the circuit court and the Court of Appeals misapplied the doctrine of res judicata, and that Carson had not properly preserved that issue. Having considered the record and the ar: guments of the parties, we affirm, albeit with somewhat different reasoning.
I. BACKGROUND.
Carson began working for the office of Disability Determination Services as a Disability Adjudicator and became a member of KERS on August 15, 1997. Her job, which was sedentary, required her to review applications for Social Security disability benefits. On November 27, 2007, Carson filed an application for disability retirement benefits stating that: she had a heart attack on April 17, 2007; she suffered from congestive heart failure; and, as a result of her heart condition, she suffered from muscle pain, weakness, and “extreme fatigue.” Because of these conditions, Carson felt that she could no Iqnger perform “any occupation for remuneration or profit.” Carson noted that she had attempted to return to work part-time in October 2007, but was only able to do so for two days. Her last date of paid employment was March 21, 2008, giving her approximately ten and -a half years of service.
In support of her claim, Carson filed medical records from her cardiologist indicating that she suffered from non-ischemic cardiomyopathy, shortness of breath, wheezing, and fatigue. Based on test results from several echocardiograms, the physician noted that Carson had an ejection fraction that was 30-35% of normal. Furthermore, because of Carson’s arrhythmia, her cardiologist implanted an Implantable Cardioverter Defibrillator (ICD), a pacemaker designed to control Carson’s heart rate and to shock her heart if it stops beating.
KERS submitted Carson’s application to Drs. Kimbal, Growse, and McElwain for an initial review. All three physicians recommended denying Carson’s claim. Drs. Kim-bel and Growse opined that Carson could return to, work. Dr. McElwain questioned whether Car son. had congestive heart failure, and he believed Carson’s cardiomyo-pathy might have pre-existed her employment. . Carson then submitted additional medical records. After review of those records, Drs. Growse. and McElwain again recommended denial. However,, Dr. Kim-bel stated he needed additional information about Carson’s failed return to work attempt and her treatment thereafter. Carson then requested a hearing.
Following that hearing, the hearing officer submitted,findings of fact, conclusions of law and a recommended order, finding that the objective medical evidence did not support Carson’s claim of permanent disability. In doing so, the hearing .officer noted that: at least one cardiologist questioned whether Carson had congestive heart disease; her injection fraction had improved following her April 2007 heart attack; her heart rate and rhythm were under control with the ICD; and her complaints of fatigue decreased when she had her ICD optimized. Based on the preceding, the hearing officer recommended that Carson’s claim be denied, Carson then filed detailed exceptions to the hearing officer’s recommended order. However, KERS adopted that recommendation without change and denied Carson’s claim.
As noted above, rather than seek judicial review of KERS’s order, Carson filed a second application for benefits. In that application, Carson alleged that she suffered from myocarditis, fibromyalgia, and chronic fatigue syndrome, which cause constant fatigue, shortness of breath, and “flu like pain throughout [her] body.” Carson also submitted medical records from several *138cardiologists, a rheumatologist, and a pain management-physician.
KERS submitted these records to Drs. Mullen, Keller2, and Strunk. Drs. Mullen and Keller recommended denial of Carson’s claim. In support of his recommendation, ' Dr. Mullen noted Carson’s cardiac and chronic pain conditions had improved. Dr. Keller stated that he saw no objective evidence to support Carson’s claim of fi-bromyalgia and chronic' fatigue syndrome, and he could find no opinion from' a cardiologist that Carson could not. work. Dr. Strunk, on the other hand, opined that Carson‘was disabled by her cardiomyopa-thy. However, he also noted that her condition could improve to the point that she could return to work. Based on the physicians’ reports, KERS notified Carson that it had again denied her claim.
Carson filed a request for a hearing and additional medical evidence regarding treatment she received before and after her last paid day of work. Included in those records were reports from two physicians indicating that she is incapable of work because of her chronic pain and cardiac conditions, and a report from a psychologist indicating she had begun therapy to help cope with pain and anxiety. At the -hearing, Carson testified- that she cannot return to work and that her fatigue and pain had increased since the first hearing.
Following the hearing, the hearing officer ordered the parties to file position statéments. In its statement, KERS argued that, because Carson had' not appealed the previous denial, the finding that she was not disabled was final and therefore binding under the doctrine of res Judicata. In the alternative, KERS argued that Carson had not met her burden of proving “permanent incapacity from sedentary employment.” Carson argued that res judicar ta did not apply because- Kentucky Revised Statute (KRS) 61.600(2). provides for a reapplication and reconsideration of a claim if the second application is “accompanied by new objective medical evidence.” Additionally, Carson argued that the medical evidence clearly indicated that she had neither the physical nor psychological capacity to return to work.
The hearing officer, in his findings of fact, conclusions of law, and recommended order, set forth, verbatim, the findings the initial hearing officer had made regarding the medical evidence Carson submitted in support of her first application. The hearing officer then reviewed the medical evidence that Carson submitted in support of her second application and recommended, denial of Carson’s claim.
Carson filed exceptions to the hearing officer’s recommended order “incorporating by reference her Position Statement and Reply Statement as if fully set forth [tjherein.” Carson also specifically argued that the hearing officer failed to make a determination regarding her residual functional capacity and her credibility. KERS adopted the hearing officer’s recommendation and denied Carson’s claim.
Carson then filed a complaint in Franklin Circuit Court, seeking judicial review of KERS’s order. In her brief to the circuit coprt, Carson argued that KERS had improperly applied the doctrine of res judica-ta using it to bar any consideration of the medical records filed as part of the initial application. KERS argued that Carson had not properly preserved the issue of res judicata because she had not raised it in her exceptions. KERS also argued that its initial findings were binding and it had appropriately applied the doctrine of res judicata. '
*139The circuit court reversed and remanded for further proceedings. In doing so, the court found that reconsideration of previously filed medical evidence is not foreclosed by res judicata. - Furthermore, the court found that KRS 61.600(2) requires KERS to consider the totality of the evidence submitted when reconsidering a claim. Therefore, the court remanded this matter to KERS for a proper consideration of all of the medical evidence. KERS appealed and the Court of Appeals affirmed. This appeal followed.
KERS raises three issues' on appeal: whether its decision was supported by evidence of substance; whether the circuit court and the Court of Appeals appropriately applied the doctrine of res judicata to Carson’s second application; and whether Carson properly preserved the issue of res judicata.
II. STANDARD OF REVIEW.
Although the parties, in particular KERS, have argued at length that this appeal concerns the- doctrine of res judica-ta, we disagree. This appeal primarily concerns the appropriate review KERS must undertake when an employee files á reapplication for retirement disability benefits pursuant to KRS 61.600(2). That 'issue, which is dispositive, is one of statutory interpretation that we review de novo. Saint Joseph Hosp. v. Frye, 415 S.W.3d 631, 632 (Ky.2013).
III. ANALYSIS.
A. Preservation.
KERS argues that Carson failed to properly preserve the application of the doctrine of res judicata in her exceptions, and notes that neither the circuit court nor the Court of Appeals addressed this issue.3 Carson argues that she adequately preserved the issue through incorporation by reference of her Position Statement and Reply Statement in her Exceptions. As noted above, and as explained below, the issue herein does not involve the5 doctrine of res judicata. That being noted, we be-lieye that Carson adequately preserved the actual-issue.
KERS is correct that, if a party fails to file exceptions, that party is limited to seeking judicial review of only “those findings and conclusions contained in. the agency head’s final order that .differ from those contained in the- hearing officer’s recommended order.” Rapier v.' Philpot, 130 S.W.3d 560, 564 (Ky.2004). However, Carson did file exceptions in which she stated that:. “While the Recommended Order explains away Claimant’s impairments through lack of objective medical evidence and various other methods, the objective medical evidence of record was ignored .... ” Whether the hearing, officer should have and did ignore the medical evidence ■from Carson’s first application is precisely the issue. Thus, albeit not as artfully as possible, Carson did preserve that issue for judicial review. Because Carson did preserve the issue, we need, not address whether incorporation by reference of pri- or. arguments in a party’s exceptions is adequate to preserve an issue. However, we would recommend strongly against relying on that practice.
B. Application of Res Judicata.
The rule of res judicata is an affirmative defense which operates to bar repetitious suits involving the same cause of action. The doctrine of res judi- . cata is formed by two subparts: 1) claim *140preclusion and 2) issue preclusion. Claim preclusion bars a party from re-litigating a -previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action. Issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action.
Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky.1998)(in-ternal citations and footnote omitted).
If res judicata applied to this action, Carson would have been barred from filing a second application that was based on the same claim as her first application. However, KRS 61.600(2) requires KERS to accept an employee’s timely filed “reapplication based- on the same claim of incapacity” 'and to- reconsider the claim “for disability if accompanied by new objective medical evidence.” Thus, the statute specifically forecloses the application of res judicata to claims such as Carson’s.
We note KERS’s argument that “[t]he statute embodies the core element of res judicata that a different outcome is only warranted' when new evidence is introduced sufficient to change the issue of whether permanent incapacity exists under KRS 61.600.” We' do not understand what KERS means by “chang[ing] the issue of whether permanent 'incapacity exists;” however, the statute makes no reference to outcomes or to the sufficiency of the evidence. That being noted, we agree with what we believe KERS is arguing, which is that a claimant cannot obtain different outcomes by simply re-submitting the same objective medical evidence for a second review.
‘ The question then is, what review must KERS undertake when an employee appropriately files a second application based on the same claim. KRS 61.600(2) states that KERS shall reconsider the claim. “Reconsider” means “[t]o discuss or take up (a matter) again.” Black’s Law Dictionary (10th ed. 2014). Thus, based on the plain meaning of the statute, KERS must take up the issue of disability again. To do so, KERS-must review the objective medical evidence previously filed in conjunction with the new objective ■ medical evidence filed as part of the reapplication proceedings. KERS cannot, as the hearing officer did herein, simply reiterate the previous findings and state that it is “bound by the findings of the Board of Trustee’s (sic) Report and Order as to all evidence considered in the course of the first application concerning Claimant’s job and condition(s).’-’ Doing so does not amount to reconsidering the claim.
We note KERS’s argument that, because Carson did not seek judicial review of its first determination, res judicata should apply. However, KRS 61.600(2) does not limit an employee’s ability to file a second application nor does it limit KERS’s reconsideration of such an application to claims that have been judicially reviewed. Furthermore, KRS 61.600(2) requires that any reapplication be filed within twenty-four months of the date of last paid employment. Requiring an employee to' seek judicial review, before reapplying would effectively nullify the reapplication process.
We look to Carson’s reapplication as an example because she did not seek judicial review of her first application. Carson filed her second application on October 21, 2009. KERS denied the application on May 13, 2011 and Carson sought review in the Franklin Circuit Court, which did not render it's opinion and order until February 4, 2013. The appeal process from that opinion and order has taken more than three years. If that had been Carson’s first application, her twenty-four months in which to reapply would have long since expired. We recognize that nothing in the statute *141would prevent an applicant from seeking judicial review of an initial application while simultaneously filing a second application. However, doing so would put both parties at risk of receiving irreconcilable decisions from KERS and/or the courts, which would be a waste of judicial and agency time and resources.
Because this case is being remanded for KERS to undertake the correct review of the evidence, we do not address whether the 'evidence' was sufficient to support KERS’s decision.
IV. CONCLUSION.
The decision of the Court of Appeals is affirmed and this matter is remanded to KERS. On remand, KERS shall fully reconsider the evidence Carson filed with her first application and consider the evidence she filed with her reapplication. KERS shall then render a decision based on all of the evidence.
All sitting. All concur.
. Carson was a member of the Kentucky Employees Retirement System, which is administered by the board of trustees of the Kentucky Retirement Systems. We use the initials KERS rather than KRS to avoid confusion with initials used to designate the Kentucky Revised Statutes.
. Dr. William Keller is not related to Justice Michelle M. Keller.
. Although KERS takes exception to the circuit court and Court of Appeals ignoring this issue, we find no evidence in the record that KERS sought f&ther review by either court through either a motion to alter, amend, or vacate,- or a petition for rehearing. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285679/ | OPINION OF THE COURT BY
JUSTICE KELLER
Charles Wimberly filed an application for disability retirement benefits with the Kentucky Retirement Systems (KERS),1 A hearing officer recommended that Wim-berly’s application be.denied and, before KERS could render a final decision, Wim-berly filed a second application- pursuant to Kentucky Revised Statute (KRS) 61.600(2). Following the recommendation of another hearing officer, KERS denied that application. Wimberly sought re view by the Franklin Circuit Court ■ which reversed KERS, and KERS appealed to the Court of Appeals, which affirmed the circuit court. We granted discretionary review to address the parties’ arguments regarding the application of the doctrine of res judi-cata and to determine whether the consumption of alcohol is or can be a preexisting condition. Having reviewed the record and the arguments of the parties, we affirm.
I. BACKGROUND.
Wimberly, who worked as a bus driver for the Transit Authority of River City (TARC), became a KERS covered employee in 1991. As part of his job, Wimberly drove various buses, which required him to occasionally assist disabled passengers with their packages and wheelchairs. In October 2001, Wimberly suffered a concussion when he was involved in a work-related motor vehicle accident. Because of post-concussion symptoms, Wimberly was taken off work. In March of 2002, while he was still off work, Wimberly went to the Caritas Medical Center emergency room complaining of chest pain and shortness of breath. Dr. Kenny, who treated Wimberly at Caritas, noted that Wimbérly admitted “to heavy alcohol abuse in the past” and that “he still drinks at least a cáse of beer a week.” Based on this history and his examination of Wimberly,"Dr. Kenny made a diagnosis of severe biventricular failure of unknown etiology with differential diagnoses of ischemic or metabolic cardiomyo-pathy, possibly ássociated with alcoholism or diabetes. Dr. Kenny and one of his partners, Dr. Schoen, continued to treat Wimberly for his heart condition, noting at various times that the condition was idiopathic, possibly alcohol induced, or possibly related to Wimberly’s Type 2 diabetes.
On February 7, 2003, Wimberly filed his first of two applications for disability-retirement benefits. In that application he listed his disabling conditions as heart failure, diabetes, headaches, itching, foot numbness, dizziness, and vision problems. KERS submitted Wimberly’s application and medical records to Drs. Keller2 and McElwain for review, and both recommended that Wimberly’s claim be denied. Based on the recommendations of Drs. Keller and MeEÍwain, KERS "denied Wim-berly’s application. Wimberly submitted additional medical records and Drs. Keller and McElwain conducted a second review, both again concluding .that the claim should be denied. KERS again followed the physicians’ recommendations and de*144nied Wimberly’s claim. Wimberly then asked for a hearing.
Prior to the hearing, Wimberly filed numerous medical records. The most significant of those records were: a statement from Dr. Scheon in May 2003 indicating that Wimberly could drive his own car but would probably never be able to drive commercially again; a statement from Dr. Kenny indicating that Wimberly should not drive a bus or do any other dangerous occupational activities; several statements regarding Wimberly’s alcohol consumption or lack thereof; and at least one hospital admission for treatment of an episode of syncope (fainting).
On December 12, 2003, Wimberly testified before a hearing officer that: his job was stressful; he worked in extreme weather conditions; he began treating for his diabetes in 1998 or 1999; he had undergone laser surgery on both eyes; he started drinking in 1972 but does not consider himself to be a heavy drinker, drinking one to three beers a week; and he has an irregular heartbeat, shortness of breath, and dizziness. Based on Wimberly’s testimony and the medical records, the hearing officer recommended that Wimberly’s claim be denied. In doing so, the hearing officer made two relevant findings: Wim-berly’s diabetes and cardiac conditions predated his membership in KERS; and Wim-berly was not totally and permanently incapacitated from his job duties. We note that, while the hearing officer mentioned Wimberly’s alcohol consumption, he did not maké any specific findings regarding its relationship to Wimberly’s medical conditions. Wimberly filed exceptions, arguing in pertinent part that the hearing officer erred because there was no evidence that Wimberly’s cardiomyopathy and diabetes pre-existed his covered employment and that “alcohol use does not rise to the level of a ‘bodily injury, mental illness, disease, or condition’ as required by statute-_”
Approximately a month after filing his exceptions, and nearly two months before KERS issued a final order. denying his first application, Wimberly filed his second application. In support of his second application, Wimberly filed additional medical records showing that he continued to receive treatment for cardiomyopathy and diabetes. The records also indicate that Wimberly: underwent eye surgeries for diabetic macular edema in 2004; was hospitalized for treatment of chest pain and shortness of breath in 2004; and had undergone carpal and cubital tunnel release surgeries in 2004. At KERS’s request, Drs. Keller and McElwain again reviewed Wim-berly’s medical records and again recommended denial. Based on those recommendations, KERS denied Wimberly’s second application, and Wimberly requested a hearing.
Prior to the second hearing, Wimberly filed additional evidence. In an October 26, 2004 letter, Dr. Schoen stated that Wim-berly could continue driving his personal car but that he was not able to drive commercially. Dr. Schoen also stated that, although records indicated Wimberly was a heavy drinker, Wimberly denied being an alcoholic and stated that family members would support that assessment. Finally, Dr. Schoen stated that there could be other causes for Wimberly’s cardiomyopa-thy, including hypertension and diabetes, and he concluded that the etiology of that condition was unclear. Dr. Kenny stated that Wimberly and family members stated that Wimberly never drank to excess and that Wimberly had never had any problems with alcohol abuse. As did Dr. Schoen, Dr. Kenny stated that there are multiple possible causes for Wimberly’s cardiomyopathy, and he could not “say that alcohol consumption directly caused *145any of this presentation that ‘ [Wimberly] had in the past.” Wimberly also filed a statement from the benefits coordinator at TARC, indicating that Wimberly had never tested positive for alcohol or drugs while employed there.
Drs. Keller and McElwain reviewed this additional evidence and again recommended denial. Based on those physicians’ reports, KERS denied Wimberly’s claim.
Wimberly then requested a second hearing and introduced one additional pertinent medical record. Dr. Arnett, Wim-berly’s general practitioner, stated that Wimberly’s 1990 liver function test was normal and his 1998 abdominal CT scan showed no liver abnormalities. These findings suggested that Wimberly was not a heavy drinker. They also suggested that a 1990 gallbladder ultrasound that showed evidence of either cirrhosis or hepatocellu-lar disease “had [probably] been ... misinterpreted as suggesting cirrhosis.”
At the second hearing, Wimberly again testified about his job duties, noting that the job was often stressful. He stated that he could not drive because of his bouts of dizziness and his inability to handle the stress. Additionally, he noted that he had undergone five eye surgeries and that a sixth had been scheduled because he continued to have blurred vision. Wimberly stated that he does drive his personal vehicle short distances, but he avoids the highway because of his dizziness. Wimberly’s wife testified that she does most of the driving because her husband is “not alert enough” to drive. She does not believe he could drive a bus, and he does not have the strength to help passengers board a-bus.
Following the hearing, the hearing officer rendered a report recommending that Wimberly’s claim be denied. In doing so', the hearing officer noted that the evidence from the initial application had been admitted into evidence, and he adopted that evidence “due to the fact that [Wimberly] did not appeal that decision.”-It does not appear that the hearing officer conducted any independent review of that evidence. The hearing officer then stated that he would not consider Wimberly’s carpal tunnel syndrome or his diabetic retinopathy because both conditions were diagnosed after Wimberly’s date of last-paid employment. The hearing officer, then made the following pertinent findings of fact:
Claimant’s primary argument is an' attempt to show that his diabetes and alcohol use were not pre-existing conditions. However, he has failed to provide any additional medical evidence to show that his conditions would prevent him from performing the duties of a Coach Driver for TARC as previously determined in the first decision.
Claimant’s condition at the time of the second application had improved based on the medical information submitted as compared to the information provided at the first hearing.
The undersigned Hearing Officer cannot make a finding as to whether or not his use of alcohol is an indirect cause of his cardiac condition,'- except for the fact that Dr. Kenny so indicated initially. All of the evidence submitted is substantially after his last date of paid employment and, as noted by counsel for the. Retirement Systems, is now an' attempt to change records based on statements of the Claimant without objective evidence.
It is found that the Claimant’s heart condition has improved substantially and, accordingly, while Dr. Schoen says that the Claimant cannot drive commercially, he has not set forth any basis for this opinion, and further allows him to drive privately, which still would jeopardize the traveling public, as well as the Claimant.
*146The Claimant has failed to set forth objective medical evidence to support his application for disability retirement benefits.
KERS remanded this matter to the hearing officer with instructions for him to “make specific findings regarding whether or not any of the Claimant’s condition preexisted his membership ... in the Systems.” On remand, the hearing officer noted that his predecessor found that Wimberly’s treating physicians noted throughout the record that his cardiac condition was likely the result of alcohol use, “which predates his membership in the systems.” Based-on the preceding, the second hearing officer found that Wimberly’s use of alcohol, “which existed prior to his initial employment date, indirectly, if not directly, affected- his cardiac condition, as, evidenced by” previous findings and “statements of doctors prior to the second hearing ....” The hearing officer stated that he could not determine from the record whether Wimberly’s diabetes preexisted his employment; however, he stated that condition did not prevent Wimberly from performing his duties.
Wimberly filed exceptions specifically arguing that res judicata did not apply to this claim and that adopting prior findings without any meaningful review defeated the purpose of KRS 61.600(2). Wimberly also argued there was no evidence -his diabetes pre-existed his employment and that his diabetes would disqualify him from operating as a commercially licensed driver. Despite Wimberly’s exceptions, KERS adopted, the hearing officer’s findings and recommendations and denied Wimberly’s claim. Wimberly then appealed to the circuit court.,;
The circuit court initially held that, based on res judicata, a claimant is barred from re-litigating the same facts and issues, Therefore, KERS’s refusal to consider the evidence Wimberly filed with his first application was appropriate. Furthermore, the court determined that there was substantial evidence to support denial of Wimberly’s claim. Wimberly filed a motion to vacate and amend, which the circuit coyirt granted. In doing so, the court noted that strict application of res judicata would render KRS 61.600(2) meaningless. The court then found that KERS improperly applied the law regarding pre-existing conditions because alcohol consumption is not a condition. Furthermore, the court found that Wimberly clearly met his burden of proof because all of his treating physicians, and even his employer, agreed that he should not operate a commercial vehicle. Finally, the court found that Wim-berly’s ability to drive his own vehicle “in no way indicates an ability to perform the duties of his former position as a Coach Operator.” KERS filed a motion to alter, amend, or vacate, which the court denied. KERS then appealed to the Court of Appeals, which affirmed, and we granted KERS’s motion for discretionary review.
II. STANDARD OF REVIEW.
Analysis of the issues raised by KERS requires us to apply differing standards of review. Therefore, we set forth the appropriate standard when we analyze each issue.
III. ANALYSIS.
A., Res judicata.
KERS argues that the Court of Appeals did not properly apply the doctrine of administrative res judicata. However, as we note below, the issue before us actually involves the extent of the review KERS is obligated to undertake when an employee files a reapplication for disability benefits pursuant to KRS 61.600(2). That issue is one of statutory interpretation that *147we review de novo. Saint Joseph Hosp. v. Frye, 415 S.W.3d 631, 632 (Ky.2013).
The rule of res judicata is an affirmative defense which operates to bar repetitious suits involving the same cause of action. The doctrine of res judicata is formed by two subparts: 1) claim preclusion and 2) issue preclusion." Claim preclusion bars a party from re-litigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action. Issue preclusion bars the parties from re[-]litigating any issue actually litigated and finally decided in an earlier action.
Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky.1998) (internal citations and footnote omitted).
As the circuit court "and the Court of Appeals both noted, a strict application of res judicata to this action would have barred Wimberly from filing a second application that was based on the same claim as his first application. However, KRS 61.600(2) requires KERS to accept an employee’s timely filed'“reapplication based on the same claim of incapacity” and to reconsider the claim “for disability if accompanied by new objective medical evidence.” Thus, the statute specifically forecloses a strict application of res judicata to claims such as Wimberly’s, >
However, KRS 61.600(2) does not completely abrogate res judicata in disability-retirement claims. As KERS notes, one function of res judicata is to prevent “repeat litigation [of] the same claims with the same set of facts.” The requirement that a reapplication be accompanied by new objective medical evidence prevents a claimant from attempting to obtain a different outcome by simply re-submitting the same objective medical evidence for a second review. However, that is the extent of res judicata’s impact because, once reapplication is appropriately made, KERS is required to reconsider the claim.
The question then is, what review must KERS undertake when an employee appropriately files a second application based on the same claim. As noted above, KRS 61.600(2) states that KERS shall reconsider the claim. “Reconsider” means “[t]o discuss or take up (a matter) again.” Black’s Law Dictionary (10th ed. 2014). Thus, based on the plain meaning of the statute, KERS must take up the issue of disability again. To do so, KERS must review the objective medical evidence previously filed in conjunction with the new objective medical evidence- filed as part of the reapplication proceedings. KERS cannot, as the hearing officer did herein, simply state that the evidence from the first application is “adopted ... due to the fact that [Wim-berly] did not appeal” the first denial. Doing so does not amount to reconsidering the claim.
We note KERS’s argument that “[t]he Court of Appeals merely gave cursory ac-knowledgement to the doctrine of administrative res judicata, and then made the application of the, doctrine irrelevant by holding that the smallest modicum of new evidence reopens the old evidence to reconsideration.” .However, if the application of res judicata is essentially irrelevant in this situation, that irrelevancy comes from KRS 61.600(2), not the Court of Appeals. Furthermore, the statute does not specify how much “new objective medical evidence” is needed only that some is needed. In 2000, the legislature deleted the requirement that a reapplication had to be accompanied by “evidence of a substantial change in the person’s condition,” a clear indication that “the smallest modicum of new evidence” is sufficient to require reconsideration of a claim.
Finally, we agree with KERS that “[t]he Court of Appeals ... erred when it held *148that the Hearing Officer’s recommendation reflected his consideration of the evidence from the first application.” As KERS notes, the hearing officer simply stated that certain records had been filed “and then began his review of the evidence with the records submitted as part of the second application.” Simply stating that certain records have been filed does not satisfy the statutory requirement for KERS to reconsider a claim upon reapplication. To satisfy that requirement, KERS must review the initial evidence in conjunction with the new evidence, when addressing a reapplication. Thus, the review of Wimberly’s reapplication was not sufficient.
B. Substantial evidence.
KERS made two findings when it denied Wimberly’s claim: (1) his preexisting abuse of alcohol contributed, at least indirectly, to his cardiac condition; and (2) he had not met his burden of proving that he is disabled. KERS argues that the circuit court and the Court of Appeals erred when they concluded that neither of these findings were supported by evidence of substance.
A covered employee is entitled to disability-retirement benefits if he has shown that he is mentally or physically unable to perform “the job from which he received his last paid employment.” KRS 61.600(3)(a).
The party with the burden of proof on any issue has the burden of going forward and the ultimate burden'of persuasion as to that issue. The ultimate burden of persuasion in all administrative hearings is met by a preponderance of evidence, in the record. Failure to meet the burden of proof is grounds for a recommended order from the hearing officer.
KRS 13B.090(7). As fact finder, KERS is afforded great deference with regard to “ ‘its evaluation of the evidence heard and the credibility of witnesses .. .’ including its findings and conclusions of fact.” Kentucky Retirement Systems v. Brown, 336 S.W.3d 8, 14 (Ky.2011)(citing Kentucky State Racing Comm’n v. Fuller, 481 S.W.2d 298, 308 (Ky.1972)). When KERS denies a claim, the party seeking benefits must establish on appeal that the evidence was “so compelling that no reasonable person could have failed to be persuaded by it.” Brown, 336 S.W.3d at 14-15 (citing McManus v. Kentucky Retirement Systems, 124 S.W.3d 454 (Ky.App.2003)). With the preceding general principles in mind, we address KERS’s sufficiency of the evidence arguments.
1. Pre-existing abuse of alcohol.
An employee is not entitled to benefits if his inability to perform the job from which he last received paid employment is the direct or indirect result of a “bodily ■ injury, mental illness, disease, or condition which pre-existed membership in the system.” KRS 61.600(3)(d). “In reaching its determination whether a condition is pre-existing, the Kentucky Retirement Systems must base its decision under the guidance of KRS 61.600(3), which requires the evaluation of ‘objective • medical evidence.’ ” Brown, 336 S.W.3d at 14. Objective medical evidence means:
reports of examinations or treatments; medical signs 'which are anatomical, physiological, or psychological abnormalities that can be observed; psychiatric signs which are medically demonstrable phenomena indicating specific abnormalities of behavior, affect, thought, memory, orientation, or contact with reality; or laboratory findings which are anatomical, physiological, or psychological phenomena that can be shown by medically acceptable laboratory diagnostic techniques ....
*149KRS 61.510(33). KERS argues that its findings regarding Wimberly’s pre-existing alcohol abuse and its impact on his cardiac condition are supported by substantial evidence. We disagree.
The record herein contains several - statements by Drs. Schoen and Kenny that Wimberly had a history of heavy drinking, which Wimberly denied. Although both physicians said that Wimberly’s heavy drinking occurred in either the past or the remote past, neither of them stated that it occurred before Wimberly began his covered employment. Furthermore, although both physicians said at various times that Wimberly’s cardiomyopathy could be the result of his consumption of alcohol, neither stated that alcohol consumption was the definitive cause. Finally, KERS has pointed to no objective medical evidence in this record that Wimberly was a’ heavy drinker or when that drinking began. The only objective medical evidence that remotely supports KERS’s position is a notation about cirrhosis in a 1990 gallbladder ultrasound. However, as Dr. Arnett explained: Wimberly had a normal liver function test in 1990 and a 1998 abdominal CT scan showed no liver abnormalities; the 1990 ultrasound was not a definitive test of the liver and it raised the possibility of hepatocellular disease as well as cirrhosis; and there is no evidence that, if Wimberly had cirrhosis in 1990, it was caused by alcohol abuse: Therefore, the finding by the hearing officer that pre-existing alcohol abuse indirectly caused Wimberly’s heart • condition is not supported by evidence of substance.
We note that KERS raises additional issues with regard to preservation and the application of Brawn .to Wimberly’s claim. Based on the preceding we need not address those issues. However, we note that Wimberly did argue that alcohol use does not rise to the level of bodily injury, mental illness, disease, or condition in his exceptions following rendition of the initial hearing officer's recommendation. ’ Therefore, even though we need not address it, whether alcohol use is a condition or a behavior was preserved.
Furthermore, we note KERS’s invitation to give consideration to the dissent in the Court of Appeals opinion regarding, alcoholism as a pre-existing. condition. We agree with the dissent, in part, that any conclusion that alcohol abuse cannot be a pre-existing condition as a matter of law is erroneous. Although, there is not sufficient proof to make that case here, that does not mean the case could not be made under another set of facts.
However, we note that reliance on the Diagnostic And Statistical Manual of Mental Disorders^5th Ed., 2013) (DSM-5) by the dissent in the Court of Appeals opinion to support its conclusion that Wim-berly had an alcohol use disorder was misplaced for at least four reasons. First, nothing from the DSM-5 was ever entered into evidence. Second, “[a] medical treatise .., written in the abstract ... is never sufficient to qualify as objective medical evidence ” absent an opinion from a medical expert linking the treatise to objective medical evidence. Broim, 336 S.W.3d at 17. Third, the DSM-5 is designed for use by mental health professionals. Fourth, the article cited by the. dissent regarding alcohol use disorder (National Inst. On Alcohol Abuse and Alcoholism (http://pubs.maaa. nih.gov/publications/dsmfactsheet/dsmfact. pdf)(June 2015)3 indicates that the DSM-5 criteria necessary to diagnose alcohol use disorder primarily concern the impact of alcohol consumption on a person’s social, work, and. home life, not the amount of *150alcohol consumed.4 Although there is evidence that, Wimberly consumed a significant amount of . alcohol, there is no evidence that Wimberly’s alcohol consumption had any negative impact on his social, home, or work life. Therefore, any reliance on the DSM-5 is misplaced in this matter.
2. Disability.
The hearing officer recommended denial of Wimberly’s claim because Wim-berly “failed to provide' any additional fnedical evidence to show that his conditions would prevent him from performing the duties of a Coach Driver for Tare as previously determined in the first decision,” As stated above, on a reapplication, KERS is required to reconsider a claim by reviewing the evidence filed with the initial application as well as the evidence filed with the second application. It is clear from the hearing officer’s recommendation that he did not review the medical evidence filed with the first application, and KERS admits as much in its brief. To remedy that shortcoming, we can follow one of two paths. We can remand this matter for an appropriate review. Or we can affirm the findings of the Court of Appeals and the circuit court that there is no evidence of substance to support KERS denial of Wimberly’s claim. We choose the latter.
As noted above, we only reverse a denial of a claim by KERS if the evidence of disability is so overwhelming, that no reasonable person could reach the conclusion to deny. Brown, 336 S.W.3d at 14-15. Wimberly presented objective medical evidence that he suffers from congestive heart failure as a result of cardiomyopa-thy, and he has a history of treatment for syncope. His treating physicians have opined that, with these conditions, he is unable to drive commercially. Pursuant to the Code of Federal Regulations (CFR) a person is not qualified to operate a commercial vehicle if he has “a current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure.” 49 C.F.R. § 391.41(b)(4).5 This regulation supports TARC’s position that Wimberly cannot return to work as a driver until he is released by a physician to do so. It also supports Wimberly’s testimony during the second hearing that, although he retained his commercial driver’s license at the time of his first hearing, he had not sought to renew it. Furthermore, these regulations belie the hearing officer’s conclusion and KERS’s argument that, because Wimberly was released to drive his own car, he could drive a city bus for eight hours a day. As noted in 49 C.F.R. § 391.43(f)(1): a “medical examiner must be aware of the'rigorous physical, mental, and emotional demands placed on the driver of a commercial motor vehicle.” A person who is driving his or her own car is not subject to these regulations and» unless employed as some type of courier, does not *151drive eight hours a day.. Faced with the preceding evidence, no reasonable person would have failed to be convinced of Wimberly’s disability. See Brown., 336 S.W.3d at 14-15.
Finally, although we recognize that KERS does not have the burden of proof with regard to the existence of Wimberly’s disability, we would be ■ remiss if we did not also review the medical reports KERS filed/As set-forth above, Drs. Keller and McElwain conducted four reviews of Wimberly’s medical records. Following his first three reviews, Dr. Keller stated that Wimberly’s conditions were related to his diabetes, which pre-existed Wimberly’s covered employment. Following his fourth review, Dr. Keller stated that the onset date of Wimberly’s diabetes was “a matter of considerable conjecture and debate.” Having found that his first three opinions were based on conjecture, Dr. Keller stated that Wimberly’s cardiomyopathy had improved to the point that Wimberly could return to work as a TARC driver. We note that Dr. Keller did. not address TARC’s opinion that Wimberly could not return nor did he address' whether Wim-berly would pass the physical examination necessary to renew 'his commercial driver’s license.
Following his first review,. Dr. McElwain stated that Wimberly’s congestive heart failure had been successfully treated and reversed. Furthermore, because he saw no “description of total and permanent disability,” Dr. McElwain recommended- denial. However, as noted above, the standard for disability is whether an employee can perform the job from which he received his last paid employment, not total and permanent disability. Following his second review, Dr. McEl-wain noted that- a physician had stated Wimberly could not drive, but that there was no justification for that opinion.. This ignores Wimberly’s diagnosis of cardiom-yopathy that followed extensive objective testing and the syncope Wimberly suffered as a result of that condition, which forecloses commercial driving. Furthermore, as did Dr. Keller, Dr. McElwain ignored TARC’s opinion that Wimberly could not return and he did not address whether Wimberly would pass the physical examination necessary to renew his commercial driver’s license. Following his third review, Dr. McElwain stated that he could not determine when Wimberly’s diabetes began but that his alcohol abuse was “in the remote past” which “would certainly appear to place it prior to his reemployment date of September 1, 1991,” As noted above, there is no evidence, objective or otherwise, that dates when Wimberly’s alleged alcohol abuse began, and the objective evidence does not support any finding of alcohol abuse. Following his filial review, Dr. McElwain again recommended denial noting an “absence of a description of total and permanent disability.” Thus, Dr. McElwain’s opinions were based on a misunderstanding of the law and the facts.
These opinions by Drs. McElwain and Keller, which were at best-moving targets, would not have swayed' any reasonable person faced with the overwhelming evidence to the contrary, that Wimberly is not disabled. Therefore, based on the entirety of the record, we agree with the circuit court and the Court of Appeals that the evidence compelled a finding in Wim-berly’s favor.
IV. CONCLUSION.
For the reasons set forth above, we affirm the Court of. Appeals.
All sitting. All concur.
. Wimberly was a member of the County Employees Retirement System, which is administered by the board of trustees of the Kentucky Retirement Systems. We use the initials KERS rather than KRS to avoid confusion with initials used to designate the Kentucky Revised Statutes.
. Dr. William Keller is not related to Justice Michelle M. Keller,
. We note that the article cited by the dissent was updated in July 2016.
. The DSM-5 factors include: drinking more than and longer than intended; the inability to cut down or' stop drinking; being sick or getting other aftereffects; the inability to think of nothing but drinking; drinking interfering with family, job, or school; having trouble with family or friends because of drinking; foregoing other activities in order to drink; getting into dangerous situations because of drinking; having had a memory blackout; continuing to drink although doing so increases depression or adds to another health problem; having to increase the amount of alcohol consumed to get the same effect; and having withdrawal symptoms.
. Pursuant to 601 ,KAR 1:005 Section 3(l)(b)2,a., a city bus driver must pass the medical examination set forth in 49 C.F.R. 391. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283913/ | ORDER
PER CURIAM
Jaron Sims appeals from the judgment entered upon a jury verdict convicting him of one count of the class C felony of assault in the second degree1 and one count of the class D felony of resisting or interfering with arrest.2 On appeal, Sims contends the court erred in: (1) allowing testimony during trial that the automobile he was driving had been stolen in an unrelated carjacking; (2) denying his motion for judgment of acquittal, because the State failed to prove that he was guilty of resisting or interfering with arrest; and (3) allowing testimony from a lay witness concerning the speed of the vehicle that Sims was traveling in when it collided with another vehicle.
We have reviewed the briefs of the parties and the record on appeal. We find no reversible error. No jurisprudential purpose would be served by a written opinion. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.
The judgment is affirmed pursuant to Missouri Supreme Court Rule 30.25(b).
. In violation of section 565.060, R.S.Mo. (Cum.Supp. 2006).
. In violation of section 575.150, R.S.Mo. (Cum. Supp. 2009). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283914/ | ORDER
PER CURIAM
Darnell Clemons (Defendant) appeals from the judgment upon his convictions following a jury trial for one count of forcible rape, in violation of Section 566.030, RSMo 2000,1 and one count of *485kidnapping, in violation of Section 565.110.2 The trial court sentenced Defendant as a prior offender to consecutive terms of life imprisonment on the rape conviction and fifteen years’ imprisonment on the kidnapping conviction. 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 $rth 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.
. The State also initially charged Defendant with one count of armed criminal action, in violation of Section 571.015, and one count of Class B felony kidnapping, in violation of Section 565.110. Prior to trial, however, the State filed its Memorandum of Nolle Prosequi electing not to proceed on those counts. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283915/ | GARY W. LYNCH, J.
Fowler Land Company, Inc., and the Margaret Leist Revocable Trust (individually “Fowler” and “Leist,” respectively, and collectively “property owners”) appeal the trial court’s judgment affirming the decision of the Missouri Land Reclamation Commission (“Commission”) upholding the approval by the Missouri Department of Natural Resources Land Reclamation Program (“Program”) of Alternate Fuels, Inc.’s (“AFI”) application filed in 2011 to revise Permit No. 1991-02 (“2011 Permit Revision”). Property owners claim the Commission had no legal authority to uphold the 2011 Permit Revision without their consent to the creation of the water impoundments envisioned by the permit revision and that they never gave such consent. Finding that the Commission ignored and failed to apply and follow 10 CSR § 40-6.060(4)(E).5, which requires property owners’ consent for the creation of such water impoundments, we reverse the Commission’s decision and remand with directions to deny AFI’s application for the 2011 Permit Revision.
Factual and Procedural Background
The Commission is a Missouri instrumentality or agency created and domiciled for administrative purposes with the Department of Natural Resources. Section 444.520.1 It is authorized to administer and enforce the Missouri Surface Coal Mining Law, sections 444.800 to 444.970 and its implementing regulations (“Missouri SCML”), as well as the orders and permits issued under that law.
The Program is a Missouri governmental instrumentality or agency, which under the supervision of its director and the Commission, implements the Missouri SCML on behalf of the Commission.
AFI is a coal mining company and is now a debtor pursuant to Title 11 U.S.C. Chapter 11, and Christopher Redmond (“Trustee”) is its duly appointed trustee in bankruptcy.2 AFI previously mined coal in Barton County under Permit No. 1991-02 (“Original Permit” or “1991 Permit”) issued by Program under the Missouri SCML, which authorized coal mining in a permitted area that included, among others, property owners’ land. Property own*504ers leased their land to AFI for the purpose of allowing mining to occur.
As part of its application for the Original Permit, 10 CSR § 40-6.050(10) required AFI to submit a reclamation plan that contained a detailed description of the proposed land use following reclamation of the land within the proposed permit area, including a description of any land use different from the pre-mining land uses and the information necessary to approve an alternative post-mining land use under 10 CSR § 40-3.130. The Original Permit included a reclamation plan prescribing each aspect of the reclamation required of AFI with respect to property owners’ land, as required by the Missouri SCML. Continental Insurance Company and Continental Casualty Company (collectively “Continental”) acted as one of AFI’s sureties for reclamation under the Original Permit and its reclamation plan.
The pre-mining land use of Fowler’s land consisted of 15 acres of prime farmland, 55 acres of cropland, 15 acres of' pasture, and 25 acres of undeveloped land. The Original Permit provided for post-mining land use of Fowler’s land as follows: 15 acres of prime cropland, 69 acres of pasture, 11 acres of water, and 15 acres of wildlife habitat. During the application process, Fowler consented to the permanent establishment of an 11-acre water impoundment in the center of the western portion of the Fowler land. This was the only final water impoundment on Fowler’s land approved by the Original Permit.
The pre-mining land use of Leist’s land subject to the Original Permit consisted of 95 acres of pasture land and 41 acres of undeveloped pre-mined land (with 2 acres of water included in the 41 acres of undeveloped pre-mined land). The Original Permit provides for post-mining usage of the Leist land as follows: 90 acres pasture, 41 acres of pasture pre-mined land (containing approximately 1/3 acre of water), and 5 acres of wildlife habitat.
AFI conducted mining operations under the Original Permit from approximately March 1993 to late 1996. In mining the permitted area and as a result of its un-permitted and unauthorized change in mining methods, AFI constructed, without Fowler’s consent, four water impound-ments either partially or wholly located on Fowler’s land. These impoundments are identified as FWI 6-7 (8.8 acres),3 FWI-8 (2.3 acres), Pond No. 4 (1.9 acres), and Pond No. 5 (2.4 acres). Ponds Nos. 4 and 5 are generally located in the area in which the single 11-acre water impoundment was to be located as authorized by the Original Permit, but FWI 6-7 and FWI-8 are not. The total post-mining result is that AFI created 15.4 acres of water on the Fowler land in four different water impoundments of which only 4.3 acres, in two separate ponds, is located within the single 11-acre water impoundment area authorized in the Original Permit.
AFI’s unauthorized change in mining methods also created, without Leist’s consent, two water impoundments either partially or wholly located on Leist’s land, identified as Pond No. 001 (1.7 acres)-and FWH (4 acres), for a total of 5.7 acres of water. The Original Permit authorized and contemplated only a one-half-acre water impoundment on Leist’s land in the location of Pond 001.4
*505The Program initiated formal enforcement actions against AFI in response to AFI’s construction of each of these six unauthorized water impoundments, as well as other permit violations.5 In 1995, AFI submitted a proposed permit revision (“1995 Permit Revision”) requesting a change in its reclamation plan to reflect the change in the nature and direction of its mining operations, which would result in a change in post-mining land uses. In its 1995 Permit Revision application, AFI sought to revise the Original Permit to leave in place the six water impoundments presently located on property owners’ land as permanent water impoundments. The Commission attempted to work with AFI to approve the 1995 Permit Revision and engaged in numerous rounds of comments, as well as enforcement actions, for several years. In December 2002, the Program denied AFI’s 1995 Permit Revision because AFI had not obtained property owners’ consent to the creation of the water impoundments. This denial was not appealed.
In June 2011, AFI filed a second application for a revision of the Original Permit (“2011 Permit Revision”). In its application, AFI claimed that the Commission exceeded its authority when it denied AFI’s 1995 permit revision request because AFI could not obtain property owners’ consent for the six permanent water impoundments as they existed post-mining.
Relying upon 10 CSR § 40-3.130(3) and 10 CSR § 40-6.070(4)-(5), the Program provided an opportunity to consult with the property owners, Fowler and Leist, and at their request an informal conference was held on September 29, 2011. Property owners did not appear in person, but relied upon written comments to the' proposed 2011 Permit Revision submitted through their counsel. In those comments objecting to the proposed permit revision, property owners asserted, among other things, that
10 CSR 40-6.060(4)(E).5, specifically applicable to revision of permits, provides, in relevant part, as follows:
Issuance of Permit. A permit for the mining and reclamation of prime farmland may be granted by the director if s/he first finds, in writing, upon the basis of a complete application, that ... [t]he aggregate total prime farmland acreage has not decreased from that which existed prior to mining. Water bodies, if any, to be constructed during mining and reclamation operations must be located within the post-reclamation nonprime farmland portions of the permit area. The creation of any such water bodies must be approved by the regulatory authority and the consent of all affected property owners within the permit area must be obtained.
Property owners also alleged that neither Fowler nor Leist had given consent for the creation of the six unauthorized water im-poundments. And, specifically in reference to 10 CSR § 40-6.060(4)(E).5, property owners reminded the Program that it “is bound to the terms of its own rules and regulations and cannot ignore or violate them.”
On December 2, 2011, the Program director (“Director”) approved the 2011 Permit Revision, finding that AFI’s application complied with all of the requirements of 10 CSR § 40-6.090(4) and 10 CSR § 40-*5063.130(3). At the same time, Director responded in writing to property owners’ comments objecting to the proposed permit revision. In regard to 10 CSR § 40-6.060(4)(E).5, Director stated, in toto:
The [property owners] also cite to 10 CSR 40-6.060(4)(E).5 in support of their argument. This regulation contains requirements applicable to permit applicants who intend to reclaim prime farmland to the postmining land use of cropland. This authority is .found at 10 CSR 40 — 6.060(4)(B) and (E). It provides that as part of the issuance of a permit “the creation of [water bodies within the post-reclamation nonprime farmland portions] must be approved by the regulatory authority and the consent of all affected property owners within the permit area must be obtained.” Ms. Leist did not have any prime farmland on her property prior to mining, so this regulation does not apply to her. The Fowler Land Company had 15 acres of prime farmland, but this acreage, amount will not change as a result of the proposed permit revision. Consequently, the regulation at 10 CSR 40-6.060 does not apply here. Even if this regulation did apply, it is clear from Program files that at the time of the issuance of Permit No. 1991-02, [Fowler] approved the creation of 10 acres of water impoundments on the Fowler property. A 1995 affidavit signed by Fowler approved 11 acres of water to be left on the property as part of the reclamation. Margaret Leist specifically approved no less than 5 acres of water impoundment to be created on her property in 1993. In a September 22, 1995 affidavit, she approved 4 acres for water. The proposed permit revision will result in 15.4 acres of water im-poundment on the Fowler property and 5.7 acres of water impoundment on the Leist property. This results in a difference of less than 6 acres from the originally approved acreages for water im-poundments for both landowners.
In accordance with the provisions of 10 CSR § 40-6.080(l)(A), property owners timely filed an appeal to the Commission of the Program’s decision approving the 2011 Permit Revision. In its complaint on appeal, property owners expressly challenged Director’s “finding that the increase in acreage and the change in location of the water impoundments does not violate ... 10 CSR 40-6.060(4)(E).5.” In their answers to property owners’ complaint, the Program, AFI, and Continental admitted that the Program “concluded in the Director’s Findings that the current permit revision applications are consistent with ... 10 CSR 40-6.060(4)(E).5[,]” and specifically denied that this regulation required “landowner consent for the permit revisions at issue in this case.”
In its written decision, the Commission upheld the Program’s approval of the 2011 Permit Revision. Without any mention of 10 CSR § 40-6.060(4)(E).5 or any of its provisions in its decision, but rather expressly relying only upon 10 CSR § 40-3.130(3),6 the Commission held that
The regulatory requirement that [Program] consult with the landowner does *507not mean that [Program] must obtain the landowner’s consent before it can approve a permit revision. The Commission finds the [sic] AFI met each of the requirements set forth in 10 CSR 40-6.130(3)[sic] and more specifically, the Commission finds that AFI [sic] adequately consulted with the landowners before approving AFI’s application for the 2011 Permit Revision. The Commission, therefore, upholds [Program’s] decision to approve the 2011 Permit Revision because it was reasonable, based on substantial and competent evidence, and not arbitrary and capricious.!7]
Property owners timely filed a petition for review of the Commission’s decision in the Circuit Court of Barton County. In their petition, property owners alleged that the Commission’s decision was unlawful in that the Commission ignored 10 CSR § 40-6.060(4)(E).5, its own regulation. The trial court entered its judgment affirming the Commission’s decision, and property owners timely appealed.
Applicable Legal Principles
Upon appeal of an administrative ■ decision, we review the decision of the administrative agency rather than the decision of the circuit court. Klein v. Mo. Dep’t of Health & Senior Servs., 226 S.W.3d 162, 164 (Mo. banc 2007). “When the agency’s decision involves a question of law, the Court reviews the question de novo.” Stone v. Mo. Dep’t of Health & Senior Servs., 350 S.W.3d 14, 20 (Mo. banc 2011).
“Rules duly promulgated pursuant to properly delegated authority have the force and effect of law and are binding on the agency adopting them.” State ex rel. Stewart v. Civil Serv. Comm’n of City of St. Louis, 120 S.W.3d 279, 287 (Mo.App.2003) (citing State ex rel. Martin-Erb v. Mo. Comm’n on Human Rights, 77 S.W.3d 600, 607 (Mo. banc 2002)). Accordingly, a court can compel an agency to follow its own rules. State ex rel. Stewart, 120 S.W.3d at 287. “ ‘Once an • agency exercises' its discretion and creates the procedural rules under which it desires to have its actions judged, the agency denies itself the right to violate those rules.’ ” Id. (quoting Martin-Erb, 77 S.W.3d at 608 n. 6). “ ‘Administrative agencies, just as the general public, are bound by the terms of *508rules promulgated by them.’ ” State ex rel. Stewart, 120 S.W.3d at 287 (quoting Kabir v. Dep’t. of Social Servs., 782 S.W.2d 706, 708 (Mo.App.1989)).
Discussion
Property owners raise eight points on appeal. In their third point, they contend, among other reasons, that the Commission misapplied the law by ignoring its “own regulation under 10 CSR § 40-6.060(4)(E).5.”8 We agree. Because the resolution of this point is dispositive of the appeal, we need not reach or address any other points.
The parties stipulated to the Commission and it found that property owners never gave their consent to the creation of the six water impoundments in the sizes, locations, or configurations as proposed by AFI in its application for the 2011 Permit Revision. The Program recognized and acknowledged this lack of consent when it relied upon it in 2002 as the basis to deny AFI’s application for the 1995 Permit Revision, which involved the same six water impoundments. The legal issue before the Commission, therefore, in order to determine the propriety of the Program’s approval of the 2011 Permit revision, was whether property owners’ consent was legally required, as maintained by the Program in denying the 1995 Permit Revision, or not legally required, as maintained by the Program in approving the 2011 Permit Revision.9 Without any mention or discussion of 10 CSR § 40-6.060(4)(E).5, as raised by property owners in their complaint for review, the Commission decided that property owners’ consent was not required and that the Program was only required under 10 CSR § 40-3.130(3) to consult with property owners before approving the 2011 Permit Revision. This decision failed to address and ignored the express, clear, and plain language of 10 *509CSR § 40-6.060(4)(E).5.10
The Commission’s regulations are codified in ten chapters under Division 40 of Title 10 of the Code of State Regulations. Chapter 6 addresses “Permitting Requirements for Surface ... Coal Mining and Reclamation Operations.” This chapter applies to permit revisions as well as to the original issuance of a permit. 10 CSR § 40-6.090(4); see section 444.840. AFI, as the applicant for a permit revision, had the burden of establishing that its application was in compliance with all the requirements of the regulatory program. 10 CSR § 40-6.090(4)(E).
Section 60 of Chapter 6 is directed toward “Requirements for Permits for Special Categories of Surface Coal Mining and Reclamation Operations.” 10 CSR § 40-6.060. Subsection (4) of that section regulates the special category entitled “Prime Farmlands.” As relevant here, “[f]or purposes of this section ... revision of the permit shall mean a decision by the regulatory authority to allow changes in the method of mining operations within the original permit area [.]” 10 CSR § 40-6.060(4)(A).l (emphasis added). According to AFI’s application, the proposed 2011 Permit Revision sought the approval for changes in the method of mining operations within the original permit area that resulted in the creation of the six water impoundments at issue. As to the scope of section 60, it “applies to any person'who conducts or intends to conduct surface coal mining and reclamation operations on prime farmlands historically used for cropland.” 10 CSR § 40-6.060(4)(B). AFI falls within this scope because it intended to and did conduct surface coal mining and reclamation operations on prime farmlands in the permitted area under both the Original Permit and as alleged in its application for the 2011 Permit Revision. For those falling within its scope, this section has additional requirements for “[a]ll permit applications for areas in which prime farmland has been identified within the proposed permit area” 10 CSR § 40-6.060(4)(C) (emphasis added). Also, “[before any permit is used for areas that include prime farmland [,]” Director is required to consult with the state conservationist. 10 CSR § 40-6.060(4)(D).4 (emphasis added). Finally, subsection E of section 60 provides, in relevant part:
Issuance of Permit. A permit for the mining and reclamation of prime farmland may be granted by the director if s/he first finds, in writing, upon the basis of a complete application, that—
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5. The aggregate total prime farmland acreage has not decreased from that which existed prior to mining. Water bodies, if any, to be constructed during mining and reclamation operations must be located within the post-reclamation nonprime farmland por*510tions of the permit area. The creation of any such water bodies must be approved by the regulatory authority and the consent of all affected property owners within the permit area must be obtained.
10 CSR § 40-6.060(4)(E).5 (emphasis added).
The Commission has defined “permit area” as meaning “the area of land indicated on the approved map submitted by the operator with his/her application, which area of land shall be covered by the operator’s bond and shall be readily identifiable by appropriate markers on the site[.]” 10 CSR § 40-8.010(l)(A).66. It is uncontested here that the six water impoundments at issue are on property owners’ lands located within the permit area of the Original Permit and AFI’s application for the 2011 Permit Revision.
The Commission has also defined “im-poundment” as meaning “all water ... holding structures and depressions, either naturally formed or artificially built.” 10 CSR § 40-8.010(l)(A).49. The Commission has not, however, defined a water body. In the absence of a regulatory definition, we turn to the ordinary meaning of the word “body.” See Natural Res., Inc. v. Mo. Highway & Transp. Comm’n, 107 S.W.3d 451, 453 (Mo.App.2003) (ordinary meaning of a word is usually derived from the dictionary when a word used in a regulation is not defined therein). The dictionary definition of the noun form for “body” is “a mass of matter distinct from other masses <a ~ of water>[.]” Merriam-Webster’s Collegiate Dictionary 11th edition (2005). Comparing the regulatory. definition of “impoundment” with the ordinary dictionary definition of “body,” a water impoundment describes the structure holding a distinct mass of water, which is a water body. The six water impoundments at issue here, therefore, hold “water bodies” as that term is used in 10 CSR § 40-6.060(4)(E).5.
Moreover, these six water bodies were “constructed during mining ... operations” and are all “located within the post-reclamation nonprime farmland portions of the permit area,” as regulated and required by 10 CSR § 40-6.060(4)(E).5. 11 (Emphasis added). As such, their creation required not only Program approval, but also required that “the consent of all affected property owners within the permit area must be obtained.” 10 CSR § 40-6.060(4)(E).5. AFI’s creation of these water bodies on property owners’ land within the permit area obviously affected property owners and under the express, clear, and plain provisions of 10 CSR § 40-6.060(4)(E).5, their consent to such creation was required.
The Commission’s reliance upon 10 CSR § 40-3.130(3) to decide otherwise is misplaced. 10 CSR § 40-3.130 establishes “Postmining Land Use Requirements.” The general rule is that “[a]ll affected *511areas shall be restored in a timely manner to either (A) [conditions that are capable of supporting the uses which they were capable of supporting before any mining; or (B) [h]igher or better uses achievable under criteria and procedures of this rule.” 10 CSR § 40- 8.130(1) (emphasis added). If higher or better uses are contemplated under (B), then 10 CSR § 40-8.180(8) establishes the applicable criteria and procedures under the rule. It provides:
(3) Criteria for Alternative Postmining Land Uses. Higher or better uses may be approved by the regulatory authority as alternative postmining land uses after consultation with the landowner or the land management agency having jurisdiction over the lands, if the proposed uses meet the following criteria:
(A) There is a reasonable likelihood for achievement of the use;
(B) The use does not present any actual or probable hazard to public health or safety, or threat of water diminution or pollution;
(C) The use will not—
1. Be impractical or unreasonable;
2. . Be inconsistent with applicable land use policies or plans;
3. Involve unreasonable delay in implementation; or
4. Cause or contribute to violation or federal, state or local law.
10 CSR § 40-3.130(3) (emphasis added).
All of the evidence before the Commission supported that the post-mining uses for property owners’ land contemplated under the Original Permit fell under (A)— “uses which [the lands] were capable of supporting before any mining.” 10 CSR § 40-3.130(1). There is no evidence in the record before the Commission supporting that the six post-mining water impound-ments proposed by AFI in its application for the 2011 Permit Revision fell under (B) — “higher or better uses[.]” Id In that context, 10 CSR § 40-3.130(3) is not applicable to AFI’s application for the 2011 Permit Revision. The Commission, therefore, misapplied it in relying upon it as the legal basis for its decision affirming the Program’s approval of the 2011 Permit Revision.
Moreover, even if the water impound-ments were considered higher or better uses and 10 CSR § 40-3.130(3) was applicable, none of its provisions purport to limit or restrict the special permitting requirements of 10 CSR § 40-6.060(4) for' the special category of prime farmland within the permit area, as is the case here. The Commission, therefore, rather than relying upon one regulation and ignoring the other, should have required the Program to comply with both in approving the 2011 Permit Revision. In other words, before approving the-2011 Permit Revision, the Program was required to not only consult with property owners about higher or better uses as provided in 10 CSR § 40-3.130(3), but to also obtain property owners’ consent to the creation of the six water bodies in the nonprime farmland portions of the permit area as required by 10 CSR § 40-6.060(4)(E).5 because of the special situation created by the existence of prime farmland within the permit area.
Because its activities under its application for the 2011 Permit Revision involved prime farmland within the permit area, AFI was brought within the'scope of 10 CSR § 40-6.060. The requirements of 10 CSR § 40-6.060(4)(E).5, therefore, were applicable to the 2011 Permit Revision. It requires that any water bodies be located within the post-reclamation nonprime farmland portions of the permit area, and it also requires that “[t]he creation of any such water bodies must be approved by the regulatory authority and the consent of all affected property owners within the *512'permit area must be obtained.” Because the six water impoundments at issue here hold water bodies, their creation on Fowler’s and Leist’s respective properties within the permit area required their consent. AFI’s application for the 2011 Permit Revision should not have been approved without such consent, and the Commission misapplied the law in upholding the Program’s approval of it. Property owners’ third point is granted.
Decision
The trial court’s judgment affirming the Commission’s decision upholding the Program’s approval of the 2011 Permit Revision is reversed, and the case is remanded. The trial court is directed to enter a new judgment, consistent with this opinion, reversing the Commission’s decision and remanding the case back to the Commission with directions to the Commission to enter a new order, consistent with this opinion, denying AFI’s application for the 2011 Permit Revision.
NANCY STEFFEN RAHMEYER, J., concurs
DON E. BURRELL, J., concurs
. All statutory references are to RSMo 2000, unless otherwise indicated.
. Differentiating between AFI and Trustee is not critical or necessary to the resolution of the issues in this appeal. For clarity and continuity of thought, therefore, this opinion will refer to AFI even when those actions were taken by Trustee following AFI becoming a debtor in bankruptcy.
. Acreages shown in parentheticals following the identifier for each water impoundment indicate the number of acres the water im-poundment covers on just Fowler’s land and Leist’s land, respectively.
. The record sometimes refers to the size of this water impoundment as one-third of an acre and sometimes as one-half of an acre. The difference, however, is immaterial to the resolution of any issue in this appeal.
. For an explanation of the enforcement process, see State ex rel. Nixon v. Alternate Fuels, Inc., 181 S.W.3d 177, 179 (Mo.App.2005).
. Quoted by the Commission in its decision, 10 CSR § 40-3.130(3) provides:
(3) Criteria for Alternative Postmining Land Uses. Higher or better uses may be approved by the regulatory authority as alternative postmining land uses after consultation with the landowner or the land management agency having jurisdiction over the lands, if the proposed uses meet the following criteria:
(A) There is a reasonable likelihood for achievement of the use;
(B) The use does not present any actual or probable hazard to public health or safety, or threat of water diminution or pollution;
(C) The use will not—
*5071. Be impractical or unreasonable;
2. Be inconsistent with applicable land use policies or plans;
3. Involve unreasonable delay in implementation; or
4. Cause or contribute to violation or federal, state or local law.
(Italicized emphasis added by Commission in its decision and underlined emphasis added by this Court). The Commission’s decision did not address or discuss in any respect whether or how any of the post-mining water impoundments authorized by the 2011 Permit Revision were “higher or better uses’’ than the pre-mining land uses recognized in the Original Permit. During oral argument, the Commission’s and AFI’s counsels were unable to direct us to any regulation, and we have found none, that establishes a hierarchy of land uses upon which to make a determination as whether one particular use is "higher or better” than another particular use.
. After initially referencing and quoting 10 CSR § 40-3.130(3) in this section of its decision, the Commission then twice refers and cites to 10 CSR 40-6.130(3) (emphasis added). Because no 10 CSR § 40-6.130 exists', we conclude that in the context of this section of its decision, such references and citations were typographical errors and were intended by the Commission as a reference and citation to 10 CSR § 40-3.130(3). Similarly, in the quoted paragraph from this section, the Commission refers to "AFI” as having consulted with the landowners. In its findings of fact earlier in its decision, however, the Commission found that the "Program” had consulted with the landowners.
. No respondent mentioned or otherwise addressed this regulation in its responding brief. Although a respondent is not required to file a brief, and therefore, not required to respond to any issue raised by an appellant and suffers no penalty for failing to do so, we are left to adjudicate property owners' point without the benefit of whatever argument might have been raised. Erskine v. Dir. of Revenue, 428 S.W.3d 789, 790 n. 1 (Mo.App.2014).
. “Within the context of the landowner consultation issue,” the Commission found a 2008 Cole County Circuit Court judgment to be "persuasive authority” supporting its decision that property owners' consent to the creation of the six water impoundments at issue was not required for the approval of the 2011 Permit Revision. This circuit court judgment arose out of AFI’s appeal of the Commission's 2004 decision to revoke its permits, including the Original Permit, and forfeit the bonds securing those permits. Property owners were not parties to this action. In its judgment, the circuit court found:
There was a good faith effort on the part of AFI and others on its behalf to comply with the Surface Coal Mining Law and the supporting Regulations and rules. The evidence does not demonstrate any willful violations or unwarranted failures to comply with the Surface Coal Mining Law and Regulations.
Based upon these findings, the Cole County Circuit Court held that AFI had sufficiently shown cause why its permits should not be revoked. The circuit court partially premised these findings upon its legal conclusion, without any analysis of the Commission’s regulations, that the Program exceeded its authority in denying the 1995 Permit Revision for lack of property owners’ consent because "there is no statute or regulation authorizing this requirement.” This judgment was not appealed. The circuit court’s failure to support this legal conclusion with any legal analysis of the Commission’s regulations, especially the permitting requirements of 10 CSR §§ 40-6.010 — .120 and the express landowner consent provisions of 10 CSR § 40-6.060(4)(E).5, as fully discussed infra, deprives its judgment of any persuasiveness in this Court.
. In addition to raising and maintaining the applicability of 10 CSR 40-6.060(4)(E).5 at each step in the administrative and judicial review processes, property owners have similarly raised and maintained that landowner consent is required for the creation of all water impoundments because such impound-ments do not maintain the approximate original contour of the land as required by section 444.855.2. While the Commission’s decision ignored the former issue, it expressly addressed the latter issue, holding that the 2011 Permit Revision “returns the permitted land to its approximate original contour.” Property owners also challenge this holding in their third point in this appeal. We need not reach or decide this larger issue and its applicability to the creation of all water impoundments because of our holding, infra, that 10 CSR § 40-6.060(4)(E).5 applies to the creation of the six water impoundments at issue here due to the existence of prime farmland within the permit area, thereby requiring property owners’ consent to their creation regardless of whether they changed the approximate original contour of the land.
. The requirement that water bodies be located "within the post-reclamation nonprime farmland portions of the permit area," (emphasis added) expressly refutes any notion that 10 CSR § 40-6.060 only applies to prime farmland, as advanced by Director in his response to property owners’ objections to AFI's application for the 2011 Permit Revision. By reserving certain uses to "nonprime farmland" portions of the permit area, this section logically and necessarily applies to and seeks to regulate the entire permit area within which prime farmland is located. This logic is reinforced by this section’s additional requirements for ”[a]ll permit applications for areas in which prime farmland has been identified within the proposed permit area” 10 CSR § 40-6.060(4)(C) (emphasis added), and the requirement that Director consult with the state conservationist "[bjefore any permit is used for areas that include prime farmland." 10 CSR § 40-6.060(4)(D).4 (emphasis added). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283916/ | OPINION
Brandon 0. Gibson, J.,
delivered the opinion of the Court,
in which Frank G. Clement, Jr., P.J.’, M.S., and Andy D. Bennett, J., joined.
This is the second appeal before this Court involving the minor child at issue. In 2010, the child’s mother sought assistance in caring for the child after she lost her job. She signed a power of attorney and authorization of temporary guardianship stating that the child would reside with another couple for approximately six months. During that period, the couple filed a petition alleging that the child was dependent and neglected and seeking temporary custody of her. The juvenile court found the child dependent and neglected and granted custody to the couple. The mother appealed to the circuit court, which found no clear and convincing evidence of dependency and neglect and ordered the juvenile court to reunify the child with the mother. On appeal, this Court affirmed the decision of the circuit court. Despite these holdings, the child was never reunified with the mother. The couple with the child filed a petition in the juvenile court to terminate the mother’s parental rights on four grounds. The juvenile court found clear and convincing evidence of abandonment and persistent conditions and determined that it was in the child’s best interest to terminate the mother’s parental rights. The mother appealed. We find no clear and convincing evidence of grounds for termination of the mother’s parental rights and accordingly reverse and remand this matter to the juvenile court for the entry of an order that implements a plan to expeditiously reunite the child with her *541mother. Having found that the trial court erred in terminating Mother’s parental rights, we dismiss the termination petition, reinstate Mother’s parental rights, vacate the juvenile court orders concerning visitation and guardianship, and designate the current custody and guardianship orders as temporary in nature.
I. Facts & Procedural History
This case has a lengthy but significant factual and procedural history. Kathryn S. (“Mother”) gave birth to a daughter, Alysia, in December 2006. At the time, Mother was married to the child’s father, who was serving in the military. However, Mother and the child’s father were separated for the majority of her pregnancy and for extended periods after the birth of the child. The child’s father did not visit or support her after her first birthday. He and Mother eventually divorced, his parental rights were terminated, and that decision is not at issue on appeal. This case only involves Mother’s rights.
By the summer of 2010, Mother and three-year-old Alysia were living in a pub-lie-housing apartment in Waverly, Tennessee. Mother was working and also taking college courses in Clarksville, Tennessee. However, Mother’s car “broke down,” which caused her to lose her job and rendered her unable to attend her college courses. Alysia was scheduled to begin a Head Start program in the coming weeks, and Mother was unable to take her to the necessary appointments for immunizations. Mother felt that she was having a “nervous breakdown” and sought help from someone she trusted, Charlene S., who was the ex-wife of Alysia’s father and the mother of Alysia’s half-sister. Charlene agreed to care for Alysia temporarily while Mother looked for work and attempted to find another vehicle. Charlene’s home was in Dickson, Tennessee, about 45 minutes away from Mother’s home in Waverly. Charlene came to Mother’s home to retrieve Alysia and her suitcase on June 9, 2010.
A few days later, Charlene informed Mother that she was allowing Alysia to attend vacation bible school with Charlene’s close friends, the Mitchells, while Charlene worked during the daytime. Unbeknownst to Mother, Alysia began spending the night with the Mitchells at their home in Smyrna, Tennessee, rather than staying the night at Charlene’s home in Dickson.
Also within days of Alysia leaving Mother’s home, the Tennessee Department of Children’s Services (“DCS”) contacted Mother. • Alysia’s grandfather (Mother’s father) had reported concerns to DCS about Mother’s living conditions and possible drug use. Alysia briefly returned to Mother’s home when Mother met with a DCS case worker on or about June 13, 2010. The case worker did not observe any concerns during that home visit. She determined that Alysia appeared to be in good health, with no marks or bruises, and she did not observe any environmental concerns in the home or evidence of drug or alcohol use. Mother informed the case worker that Alysia was staying with a family friend.
Mother attended a meeting at a DCS office on June 18, 2010. Charlene also attended the meeting, but the Mitchells did not. During this meeting, Mother signed a standard DCS form entitled “Power of Attorney for Care of a Minor Child.” This document listed Charlene as the child’s “caregiver” and authorized her to enroll the child in extracurricular activities, to obtain medical and dental treatment for the child, and to provide for the child’s food, lodging, housing, recreation and travel. Mother also signed a second document, entitled, “Power of Attorney *542Authorization of Temporary Guardianship.” Mrs. Mitchell obtained this form from the Internet and edited it to suit her needs because the Mitchells were planning to travel with Alysia in the near future. She faxed the document to Charlene prior to the meeting. The document stated,
I, the Parent/Guardian of the Child hereby grant temporary guardianship to the Temporary Guardian for the period from the 10 day of June 2010 and expiring on the 1 day of January-2011.1
The Mitchells were listed as the temporary guardians, with only a telephone number and email address listed for their contact information. The document stated that the parent acknowledged that the child would “reside” and “may travel reasonably” with the temporary guardians. It also authorized the temporary guardians to make daily decisions regarding the child’s activities, childcare, and school placement, to administer treatment for minor injuries or illnesses, and to act in loco parentis for the child in circumstances necessitating medical treatment. According to Mother, Charlene explained to her that this document was necessary to enable Alysia to stay with the Mitchells for vacation bible school and daytime child care while Charlene was working, but, according to Mother, Charlene said that Alysia would be staying at Charlene’s house at night. One of the DCS caseworkers told Mother that signing the document was “the right step” because Mother had no vehicle or transportation that would enable her to reach Alysia in the event of an emergency. Although Mother understood that Alysia would be staying with Charlene only for a few weeks, Charlene told Mother to date the power of attorney for a later date just in case something happened.
Also during the June 18 meeting, Mother, Charlene, and the DCS caseworkers signed a “Non-Custodial Permanency Plan.” The plan identified Charlene as the “resource mom.” It listed as “desired out-comets]” that- Mother would be able to care for herself and Alysia, would continue to have a bond with the child, and would be drug-free. As “action steps” to achieve these goals, the plan directed Mother to complete an alcohol and drug-assessment, follow its recommendations, and submit to random drug screens; apply for a free federal phone and maintain contact with DCS; obtain legal income; maintain stable housing; and call and visit Alysia. Mother took a drug screen that same day, which tested positive for marijuana. The noncustodial permanency plan was never submitted to a court for ratification.2
According to Mother, in the days and weeks following the June 18, 2010 DCS meeting, she called Charlene and Mrs. Mitchell in attempts to see Alysia, but they gave her “one excuse after another” as to why they could not bring Alysia to Mother. Toward the end of July, Mother learned that Alysia was actually living with the Mitchells rather than merely staying with them during the day. In August, Mother called the Mitchells and informed them that she was coming to get Alysia. Mrs. *543Mitchell told Mother “that was not a possibility” and that it was her understanding that Mother was not allowed to retrieve Alysia. Mother did not know the Mitch-ells’ address. She went to the police department on three occasions in an attempt to get help in retrieving her daughter, to no avail. The police department refused to assist Mother because DCS was involved. DCS records also demonstrate that Mother also contacted the department on several occasions to report that the Mitchells would not allow her to get her child. The caseworker assigned to Mother’s case was apparently out of the office for three weeks during this time, so Mother was unable to obtain assistance from her. Mother was told to wait until her caseworker returned to the office. Mother did take a second DCS drug screen on August 24, which she passed. She also completed an alcohol and drug assessment at a private facility at her own expense.
According to Mother, she was eventually told that Charlene and the Mitchells were bringing Alysia to meet her at a certain fast food restaurant, but none of them arrived as planned. Instead, Mother was met by a process server, who served her with a petition for dependency and neglect. The petition was filed by the Mitchells on August 26, 2010, in the juvenile court of Rutherford County, alleging that Alysia was dependent and. neglected and seeking an award of temporary custody to the Mitchells.
Shortly thereafter, on September 13, 2010, the Mitchells reported to DCS that Alysia told them that her seven-year-old half-sister (Mother’s other daughter) “licked her bootie” while in Mother’s care.3 Separate forensic interviews of the two children were completed at a child advocacy center. The case was reviewed by a child protective investigative team, which included a member of law enforcement, a representative of the district attorney general’s office, a representative from juvenile court, the DCS case worker assigned to Mother’s case, a representative of the child advocacy center, and two other individuals whose position is not clear from the record. On or about October 5, 2010, the investigative team unanimously agreed that the allegations should be classified as unfounded. The investigative team concluded that there was no basis for prosecution and that no follow-up services were necessary. Accordingly, DCS closed its file on the allegation of sexual abuse. However, the Mitchells took Alysia to a sexual assault center where she began counseling.
Following a probable cause hearing, by order entered October 14, 2010, the Rutherford County Juvenile Court found “probable cause to believe that [Alysia] is dependent and/or neglected and is in need of supervision from the Court.” The order gave the Mitchells temporary custody and awarded Mother supervised visitation and pre-scheduled monitored telephone calls with the child. On October 19, 2010, Mother met with DCS caseworkers again and signed a “Family Permanency Plan.” The plan stated that when DCS responded to the initial call, it found Mother’s home “in good condition with no concerns for Alys[i]a.” The plan noted that Mother had signed a power of attorney to allow Charlene to care for Alysia while Mother looked for a job. The plan stated as a permanen,cy goal that the child would remain with Mother with services, and it set a goal target date of February 2011. Mother passed a third DCS drug screen that day. *544Another home visit was also conducted by DCS that day, and according to the case worker, everything in the home looked “perfectly fíne.” Days later, when DCS learned that custody had been placed with the Mitchells by the Rutherford County Juvenile Court, it closed its case without notifying Mother of that decision.
The juvenile court held three adjudicatory hearings on the dependence and neglect petition in October and November 2010. On November 14, 2010, Mother began monthly supervised visitation with Alysia at the Exchange Club in Murfreesboro, Tennessee, which was roughly two hours from Mother’s home. Despite Mother’s efforts to visit and/or regain custody of Alysia, this supervised visit was the first time Mother saw Alysia since June. The first visit went well, according to the records from the Exchange Club. Alysia separated easily from Mrs. Mitchell when Mrs. Mitchell left. During the visit, Alysia “showed affection towards [Mother] by hugging her and telling her she loved her at the beginning and the end of the visit.” Mother and Alysia played games and interacted. They had appropriate conversations, and all conversations were positive. Mother was described as “focused” and “connected,” and the visit monitor said Mother “actively listened” as Alysia “talk[ed] freely.” According to the monitor, Alysia “appeared at ease with [Mother] during the visit as evidenced by smiling, playing and laughing.”
Alysia turned four years old on December 9, 2010. On December 15, 2010, the juvenile court ordered Mother to pay $596 per month in child support to the Mitch-ells. Mother and Alysia had another supervised visit at the Murfreesboro Exchange Club on December 16. Again, Alysia separated easily from Mrs. Mitchell. She hugged Mother at the beginning and end of the visit. When Mother told Alysia she loved her, Alysia did not respond. However, Alysia smiled and laughed as she played and shared toys with Mother, and Mother “had a smile on her face during the entire visit.” At the next visit on January 13, 2011, Alysia again “appeared at ease” with Mother and smiled and played with her. Alysia showed affection to Mother. She sat in Mother’s lap, and when Mother told Alysia she loved her, Alysia “responded in kind.” Mother brought some items to give to Alysia, but the supervisor informed her that all gifts had to be sent directly to Mrs. Mitchell pursuant to a recent court order, so the items were taken and returned to Mother at the end of the visit.
By order entered January 21, 2011, the juvenile court found Alysia to be a dependent ' and neglected child. The juvenile court removed Mother’s superior parental rights and awarded the Mitchells custody and full decision-making authority. The juvenile court gave Mother limited supervised visitation at the Murfreesboro Exchange Club (one visit per month for one hour) and one fifteen-minute telephone call per week with the child. In its ruling from the bench, the juvenile court found that Mother’s credibility was “absolutely zero,” that the Mitchells and their supporting witnesses had shown “great credibility,” and that the finding of dependency and neglect was proven by clear and convincing evidence pursuant to Tennessee Code Annotated section 37-l-102(b)(12)(F) and (G).4 The juvenile court specifically found *545that the evidence supporting a finding of dependency and neglect included Mother’s “constant lies,” testimony that Alysia was present in the home when Mother and her friend would smoke marijuana, “immoral” photographs Mother posted on her MySpace profile, and the fact that Mother “totally abandoned” Alysia by leaving her with Charlene and by not visiting Alysia once she knew Charlene left her with the Mitchells.
Mother appealed this finding to circuit court.5 On March 3, 2011, Alysia’s grandparents (Mother’s parents) filed a motion to intervene requesting that they be allowed to file a separate petition for dependency and neglect regarding Alysia. This was permitted by agreed order. The circuit court conducted de novo hearings on the Mitchells’ and the grandparents’ petitions over the course of four days between April and June 2011.6 Mother, Charlene, Mrs. Mitchell, Mr. Mitchell, the grandmother, and the grandfather testified. At the close of the proof, the circuit court judge made several findings and rulings from the bench. At the outset, the circuit court found that the juvenile court had exceeded its authority in granting the disposition of custody of Alysia to the Mitch-ells, as they were non-parents, and no one had conducted a study of their home to determine if they were qualified to receive care of the child. Next, the circuit court addressed the substance of the allegations of dependency and neglect. The judge acknowledged that Mother “had some serious problems” in June of 2010 when she ceded temporary custody of Alysia to non-parents, and it recognized that the petitioners had presented “some proof’ regarding Mother’s allegedly immoral conduct. However, the court found there was no showing that Mother’s alleged immorality had any impact on the child. The court explained:
So I think what’s really happened here, the Mother realized she couldn’t take care of the child for a while and sought help. She didn’t take care of her problems right away, and still has prob-. lems. I don’t think there’s any issue but she still has problems. But I don’t think that falls under the category of dependent/neglect which would remove her superior rights as a parent under these particular circumstances. There has got to be some clear and convincing evidence that really takes away her superi- or rights as a parent in this situation, I think. And I just don’t think it’s here.
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*546So, I’m going to order that this matter be remanded back to juvenile court.... Obviously, this child has some issues in getting re-united with her Mother because of the time that’s been involved and the matters that have been going on with the various care providers and counselors. I haven’t heard all of that yet, but certainly there are some issues there. So, the juvenile court can consider that.
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So, I think re-unification is appropriate, but there still has to be some work to make that happen.
By order entered August 19, 2011, the circuit court dismissed both petitions for dependency and neglect, set aside the juvenile court’s January 21, 2011 order, and reinstated Mother’s superior parental rights. The order stated that the juvenile court did not have authority to grant custody to the Mitchells. It also found no clear and convincing evidence of dependence and neglect. The circuit court concluded that “reunification with the Mother is appropriate,” and it directed the juvenile court “to consider, prepare, and implement a plan to resolve the pending custody matter with a view toward reunification of the child, Alysia [S.], with her Mother, Kathryn [S.], in a manner that minimizes trauma to said child.” The circuit court recalculated Mother’s child support obligation and reduced it to $293 per month to be paid until reunification.7
On August 10, 2011, which was after the circuit court’s oral ruling but nine days before the entry of the written order, the Mitchells filed a petition to terminate Mother’s parental rights.8 The petition was filed in the juvenile court of Rutherford County, before the same juvenile court judge who previously made the finding of dependency and neglect. The petition sought termination of Mother’s parental rights so that the Mitchells could adopt Alysia. The petition alleged four grounds for termination: substantial noncompliance with a permanency plan, pursuant to Tennessee Code Annotated section 36-1-113(g)(2); persistent conditions after removal of a child by order of a court for six months, pursuant to subsection (g)(3); failure to make reasonable and consistent payments for the support of a child, pursuant to subsection (g)(9)(A)(ii); and returning the child would pose a risk of substantial harm, pursuant to subsection (g)(9)(A)(v). When the termination petition was filed on August 10, Mother had not made a child support payment in four months and three days. The record con*547tains no indication that Mother had been advised that failure to make child support payments could result in termination of her parental rights.
On August 22, 2011, Mother filed a motion asking the juvenile court to “consider, prepare and implement a plan to resolve the pending custody matter involving [Aly-sia] with a view towards reunification of the child with her Mother in a manner that minimizes trauma to the child,” consistent with the circuit court’s August 19 order. On or about September 19, 2011, the Mitchells appealed the circuit court’s order in the dependency and neglect case to the Court of Appeals.
The juvenile court appointed a guardian ad litem for Alysia. On September 80, 2011, the juvenile court held a hearing to determine “how to proceed” based on the circuit court’s order requiring reunification (which was on appeal) and the petition for termination filed by the Mitchells. The juvenile court directed the parties and the guardian ad litem to begin the process of selecting a counselor for Alysia. The court ruled that it would consider the recommendations of the counselor in determining how Mother’s visitation should be exercised. Pending further orders, the court ruled that Mother would be allowed supervised visitation with Alysia at the Murfreesboro Exchange Club two times per month for a maximum of two hours, at Mother’s expense. The court instructed the guardian ad litem to attend the next visit “to address the reluctance of Alysia” to visit.
Mother had her first two-hour supervised visit on October 11, 2011. Alysia separated easily from Mrs. Mitchell and did not hesitate to enter the visitation room. Alysia began interacting with Mother, laughed and smiled as they played, and hugged Mother. Mother used appropriate verbal redirection and instruction with Alysia when necessary and “focused her attention exclusively on Alysia throughout the visit.” The next supervised visit occurred for two hours on October 22, 2011. Alysia separated easily from Mrs. Mitchell. She ran to Mother and gave her a hug. She sat in close proximity to Mother as they played, sat in Mother’s lap as they read books, and smiled at Mother throughout the visit. Mother was “focused and connected” during the visit and had appropriate conversations with Alysia.
The juvenile court held another hearing on November 3, 2011. The court ruled that Mother would be allowed supervised visits at the Exchange Club every other Saturday for three hours. It also granted Mother a visit on Alysia’s upcoming birthday, on December 9. However, the court denied Mother’s request for unsupervised parenting time. The juvenile court appointed Dr. Jennifer Hanket to “evaluate Alysia [S.] and Kathryn [S.] to determine what approach should be used to implement the Order” from circuit court. Later that day, after the hearing, Mother and Alysia were scheduled to have another supervised visit at the Murfreesboro Exchange Club, but the visit was cancelled by the Exchange Club when Mother did not arrive early as required by Exchange Club policies. Mother called and reported that she “got turned around in Murfreesboro” after leaving court, and Mrs. Mitchell confirmed that she had spoken with Mother and was aware that she had gotten lost. However, the Exchange Club refused to make an exception to its early arrival policy and rescheduled the visit for the upcoming Saturday.
The rescheduled visit took place on November 5, 2011, for 90 minutes. Alysia separated easily from Mrs. Mitchell and entered the room without hesitation. Aly-sia hugged Mother and sat in her lap as *548they watched a movie. Mother and Alysia played in the floor together throughout the visit. A three-hour supervised visit occurred on November 19, 2011. Alysia appeared at ease by engaging in conversation and playing with Mother. She showed affection by hugging Mother. They played games and had lunch together. Mother asked Alysia about a package she mailed to her recently, but Alysia said she did not receive it.
Mother and Alysia had another three-hour visit on December 3, 2011, but the monitor ended the visit five minutes early. Mother and Alysia laughed and played in the floor as they painted but had a few conversations that the monitor deemed inappropriate. First, Alysia initiated a conversation about her grandmother and cousins, which was impermissible under the Exchange Club’s rules, and Mother engaged in the conversation rather than redirecting her. Later, Mother told Alysia how much she loved and missed her and that she cried “happy tears” every day because they were not together. Again, Mother was instructed to change the subject. Finally, five minutes before the visit was supposed to end, Alysia called Mother “Silly Katie,” and Mother asked her to call her “Mommy.” Alysia began to argue with Mother about this, and the monitor decided to end the visit. Alysia was crying as she was taken from Mother’s arms. Mother told Alysia she loved her, and Aly-sia said she loved Mother too. Alysia “reache[d] out” to hug Mother again but was removed from the room.
On December 9, 2011, Alysia’s fifth birthday, she and Mother had a one-hour supervised visit. Alysia was reluctant to leave Mrs. Mitchell and said she did not think visiting was “a good idea.” As the supervisor and the guardian ad litem were encouraging Alysia, Mrs. Mitchell remained by the door and was asked to leave three times. She did not encourage or discourage Alysia from visiting. Alysia began to cry and scream for Mrs. Mitchell. After Mrs. Mitchell left, Alysia stopped crying and agreed to visit Mother with “minimal prompting.” She “immediately went to [Mother’s] arms” and hugged her when she entered the visitation room. Alysia was excited about her birthday cake and the birthday gifts from Mother. Aly-sia and Mother sat in the floor and played together. Alysia hugged Mother at the end of the visit. The next three-hour visit on December 17 went well. Alysia separated easily from Mrs. Mitchell. Mother and Alysia played and did arts and crafts Mother brought for the visit. Alysia smiled, hugged, and kissed Mother.
The.juvenile court held a hearing on December 20, 2011, and Mother orally moved to increase her visitation with a view toward reunification, 'in accordance with the circuit court’s August 19, 2011 order. The juvenile court denied Mother’s request for unsupervised parenting time but granted her additional supervised visitation. Beginning January 1, 2012, visits were scheduled every Tuesday for 90 minutes in addition to two Sundays per month for two hours during the months of Janu.ary and February. Mother was allowed to call Alysia once per week at a specified time.
Mother and Alysia had 90-minute visits on Tuesday, January 3 and January 10, 2012. They smiled, laughed, and played, but Alysia did not return Mother’s hugs, and she wiped her face after Mother kissed her. A Sunday visit was scheduled for January 15, 2012, but the visit was cancelled when Mother did not arrive at the appointed time. Mother was contacted by the Exchange Club, and she told them that she “mixed up her Sundays” and thought she had visited the previous Sunday. The records indicate that Mother *549was “distressed” and apologetic, and she said she would be present for the upcoming visit that Tuesday.. A 90-minute visit took place on Tuesday, January 17. Alysia laughed and played with Mother but did not hug, kiss, or tell Mother she loved her.
On January 18, 2012, the Mitchells filed a motion to modify the visitation schedule. They noted that Mother failed to appear for the January 15 visitation at the Exchange Club and the November 3, 2011 supervised visit (after the court hearing) without prior notice. They acknowledged Mother’s explanation that she got “lost” after leaving court on November 3, but they implied that this was untrue because Mother had been to the Exchange Club and to court on previous occasions. The Mitchells also claimed that Mother failed to call Alysia at the appointed time on December 24, 2011, and sent a text message four hours later stating that she forgot. Thus, the Mitchells claimed that the current schedule of visitation and telephone calls was not in Alysia’s best interest.9
Mother and Alysia visited on January 24 and January 29, 2012. Alysia separated easily from Mrs. Mitchell. Alysia was talkative and responded to Mother’s questions. During one visit, Alysia smiled, laughed, and played with Mother outside, and during the other visit, she sat in Mother’s lap and hugged Mother “on her back” while watching a movie. She allowed Mother to hug and kiss her but did not return Mother’s hugs or respond when Mother said she loved her.
On January 30, 2012, the Mitchells amended their previous motion and sought to “terminate and limit” Mother’s visitation and telephone calls. They alleged that during Mother’s January 21 telephone call with Alysia, the child informed Mother on more than one occasion that she did not want to talk to Mother, and before Mother hung up the phone, they overheard her say that she “hate[d] those moth-erf* * * * * The Mitchells cancelled a visit scheduled for January 31, 2012, due to illness of the child.
At a supervised visit on February 7, 2012, Alysia was reluctant to leave Mrs. Mitchell. Mrs. Mitchell did not encourage or discourage Alysia. However, the visit monitor separated Alysia and Mrs. Mitchell, and the visit proceeded as usual. .Aly-sia and Mother talked, made crafts, and played outside together. During one game, Alysia yelled “Mommy” in reference to Mother. Again, however, Alysia did not return Mother’s hugs or respond when Mother told Alysia she loved her. During a February 12 visit, Alysia separated easily from Mrs. Mitchell. She smiled while playing with Mother and hugged Mother upon arriving at the visit, but she did not hug Mother at the end of the visit. Before leaving, Mrs. Mitchell complained that Mother had sent gifts home with Aly-sia the past couple of visits, and she claimed that a recent court order prohibited Mother from sending gifts home with *550Alysia. When Mrs. Mitchell and Alysia arrived for the next visit on February 14, Mrs. Mitchell reiterated that Mother was not supposed to send gifts and movies home with Alysia. The program director quickly interrupted Mrs. Mitchell due to Alysia being present and because of the confrontational and conflictual tone of Mrs. Mitchell’s voice. During the visit, Alysia laughed' and played with Mother and jumped on her back during a game of hide and seek. She sat in Mother’s lap and also wanted a piggyback ride. When Mother told Alysia she loved her, Alysia smiled and said “uh huh.”
On February 14, 2012, the juvenile court held a hearing on the Mitchells’ motion to terminate and limit Mother’s parenting time and phone calls. The court found that Mother exhibited very poor judgment by allowing Alysia to hear profane language during the January 21 telephone call, and therefore, the court reduced Mother’s telephone visitation to every other week. The court also reduced Mother’s supervised visitation to every other Sunday for two hours. In addition to the every other Sunday visitation, the court set specific visitation times for Mother for Easter, Alysia’s spring break, and two other dates. The order provided that Mother could not bring any gifts to her visits with Alysia except during the Easter visit. Subsequently, the juvenile court entered an amended order that eliminated the paragraph about Mother having visitation every other Sunday but retained the provision regarding visitation for Easter, spring break, and the like. However, one portion of the amended order continued to reference “the every other Sunday visitation described above,” so it is not clear from the record whether Mother was supposed to have supervised visitation every other Sunday after the entry of this order.10 Mother and Alysia visited on the two dates specifically mentioned in the order, February 20 and March 8, 2012. Alysia separated easily and entered the visitation room without hesitation. She laughed and played with Mother but did not respond to hugs or say “I love you.”
On March 13, 2012, an agreed order was entered that recognized Mother’s and the guardian ad litem’s concerns that Alysia still had not begun counseling directed at aiding with the reunification effort. The agreed order stated that Alysia’s behavior had been digressing and that it was vital that she receive therapy to aid in the reunification effort. The order stated that Dr. Jennifer Hanket would provide therapy to Alysia and testify as necessary in the pending proceedings. The order noted that Mother had been declared indigent and did not have the financial means to pay for the therapy, and it stated that a request for payment would be submitted to the Administrative Office of the Courts.
On March 20, 2012, Mother and Alysia had a 90-minute supervised visit during Alysia’s spring break. They laughed and played throughout the visit, and Alysia initiated physical contact with Mother on numerous occasions by asking her to play “airplane” by holding her and twirling her around the room. Alysia did not pull away when Mother hugged her, and Alysia gave Mother a “butterfly kiss.”
■Alysia began therapy with Dr. Hanket on March 29, 2012. Mother and Alysia visited again on April 6, 2012, fpr Easter. *551They decorated and hid eggs and had lunch together. At the end of the visit, Alysia hugged Mother and told her she loved her. Unfortunately, this was Aly-sia’s last visit with Mother for several months. A May 18 record from the Exchange Club indicates that the program director contacted the guardian ad litem to determine the status of Mother’s visitation, and the guardian ad litem reported that Mother was to have “no contact” with Aly-sia until Alysia’s therapist said it was “ok.” According to the Exchange Club record, Alysia did not want to see Mother, and Dr. Hanket told the court that Alysia’s wish should be “honored for various psychological reasons.” The guardian ad litem informed the Exchange Club that she did not anticipate any more visits for several months, as the trial on the Mitchells’ termination petition was set for December 2012.
Several months later, on September 4, 2012, the guardian ad litem filed a “Motion for Reinstatement of Mother’s Visitation.”11 According to the motion, Dr. Hanket believed that it was in the best interest of the child for visitation with Mother to immediately be reinstated and to occur twice monthly for three hours per visit. The motion noted there were “no security concerns” for Alysia’s safety when visiting Mother. Because of the lack of safety concerns, and because visits at the Exchange Club “went well,” Dr. Hanket recommended transferring the supervision of visits to another program that would provide “a more natural setting” for visits. Following a hearing on November 26, 2012, an agreed order was entered setting forth the parties’ agreement that Betsy Crow, “a licensed attorney with specialized guardian ad litem training,” would supervise visitation “due to the absence of supervised visitation providers.” The agreed order provided that Dr. Hanket would set the parameters of the supervised visitation such as location, frequency, and the length of the visits. All costs of the supervised visitation were to be paid by Mother. Mother was permitted telephone contact with Alysia every other Monday.
The first visit supervised by Ms. Crow took place on December 5, 2012, at a church in a preschool classroom. Dr. Hanket attended the visit as well. According to Ms. Crow’s report, Alysia smiled at Mother when she walked in but took about 30 minutes to “warm up” to her. Once they started interacting, Alysia seemed comfortable with Mother. She repeatedly ran to Mother and allowed Mother to lift her as if she was an airplane. Alysia “loved the game and laughed a great deal” and also allowed Mother to tickle her. Alysia styled Mother’s hair in a ponytail and again seemed comfortable with the physical interaction. After this, “[t]he visit seemed to turn more positive and interactive.” Alysia moved close to Mother and leaned against her as she played with Mother’s phone. Mother told Alysia she missed her and Alysia said, “I missed you too.” To celebrate Alysia’s sixth birthday the following week, Alysia opened birthday gifts from Mother and ate cupcakes. When Mother and Alysia were told that the visit would end in fifteen minutes, Aly-sia immediately packed up her belongings, but then she turned to Mother and asked *552if they could play longer. Alysia wanted to climb on Mother’s shoulder and said she remembered doing that with Mother in the past. When Mother mentioned that it had been a long time since she had seen Alysia, the child asked, “Why did it take that long?” At the end of the visit, Mother asked for a hug, but Alysia did not respond and appeared uncomfortable. Overall, Ms. Crow described the visit as “positive” and said that the interactions were appropriate. Ms. Crow believed that the visit actually went “very well,” considering that several months had elapsed since Mother’s last visit. However, Ms. Crow said she was “taken aback” when she realized that Alysia wore a necklace to the visit that read, “I love my mommy and daddy.” Ms. Crow considered this to be inappropriate under the circumstances and discussed the issue with the guardian ad litem.
On December 17, 2012, Mother and Aly-sia had a supervised visit with Ms. Crow at a bowling alley. Prior to the visit, Alysia told Ms. Crow that her parents told her that she would not get in trouble for visiting Mother. She then stated that she was supposed to be careful of “bad people.” Alysia said Mother was a bad person because Mother used to spank her. During the visit, Alysia and Mother bowled, and Alysia laughed and yelled “go Kathryn” when it was Mother’s turn to bowl. They had dinner there and engaged in appropriate conversation. They sang Christmas songs and danced. When it was time to leave, Mother picked up Alysia to hug her, and Alysia squirmed away and ran to a corner. She would not respond to Mother thereafter. Ms. Crow described this interaction as “disturbing” to Alysia and “upsetting” to Mother. Still, though, she considered the overall nature of the visit as “positive” and said that it went “very well,” as everyone appeared to have a good time. Ms. Crow said she and Alysia were discussing the visit afterward, until the Mitchells arrived, and then Alysia “immediately said, 1 don’t want to talk about it.’” Alysia then told the Mitchells that “she didn’t want to have to talk about this when they left because it would give her nightmares.”
The next visit supervised by Ms. Crow occurred at a “discovery center” in Mur-freesboro on January 9, 2013. Alysia said hello to Mother and seemed eager to play. Alysia laughed a lot and seemed very engaged with Mother. According to Ms. Crow, Mother “did a good job generally ‘parenting’ Alysia” during the visit and demonstrated “appropriate and effective parenting” when redirecting Alysia. Mother was instructed to let Alysia initiate physical contact, and she was “very cooperative” in response to the suggestion. Alysia did initiate physical contact several times by taking Mother’s hand and guiding her to things, moving closer to Mother, sitting in her lap, and placing her hand on Mother’s arm. About ten minutes before the visit ended, Alysia used her “safe sign” and told Ms. Crow she was ready to go. Ms. Crow said she would call the Mitchells, but Alysia told her to wait and returned to playing with Mother. When the visit ended, Mother told Alysia she loved her, and Alysia replied, “I love you too,” but then she covered her mouth and said, “no I don’t.” Ms. Crow described Alysia’s initial response as a “reflex” and believed that Alysia regretted saying it because she appeared “a little distressed.”
The final visit supervised by Ms. Crow occurred on January 26, 2013. Alysia greeted Mother by saying hello and at first seemed a little uncomfortable. Mother and Alysia began jumping in a bounce house together and then skated together for the rest of the visit. With 15 minutes left in the visit, Alysia used her safe sign and said she was ready to go. When Ms. *553Crow asked if anything happened, Alysia said no and that this was the “best visit I have had with her.” She said she wanted to leave because she was going bike riding with her parents. Alysia then went to play a video game with Mother, and they played until the end of the visit. Mother asked for a high-five when Alysia left, but Alysia declined. Ms. Crow was of the opinion that all of the visits she supervised were positive but said that this one went “exceptionally well.” According to Ms. Crow, Mother was very respectful and cooperative during the visits, she followed every instruction Ms. Crow gave her, she arrived and departed at the appointed times, and Ms. Crow “never saw anything inappropriate” from Mother.
At a hearing on January 28, 2013, the parties announced their agreement to have future visitation supervised by the Kymari House. The first visit supervised by the Kymari House took place at a children’s activity center in Smyrna, Tennessee, on March 9, 2013. When the supervisor met with Alysia prior to the visit, Alysia was hesitant and said she did not want to visit Mother. The supervisor asked her to try it for a few minutes, and Alysia agreed. Alysia and Mother talked about Alysia losing a tooth, then they played outside together and painted. When it was time to leave, Mother told Alysia she loved her. Alysia said, “I love you ... wait a minute,” then said “Bye” and walked to the door. The supervisor felt that the transition period before and after the visit was “challenging” for Alysia. Overall, however, he thought the visit went well, as Alysia responded to Mother and interacted with her. For reasons discussed below, this was the final visit Mother and Alysia had.
The next week, on March 15, 2013, Dr. Hanket was deposed. During the deposition, Dr. Hanket estimated that it would take 18 to 24 months to successfully reunify Mother and Alysia, but perhaps less depending on the child’s reaction to reunification. Dr. Hanket also testified that if visitation did not start to improve, reunification with Mother would be less likely.
The next visit was scheduled for March 23, 2013, at the Kymari House. Alysia refused to enter the building. She stepped out of the Mitchells’ vehicle and spoke with the supervisor, who asked Alysia to participate several times, but she continued to refuse. The visit never took place because it was the policy of the Kymari House to “not force” a child to visit. The visit supervisor said he did not try to convince Alysia that she “should” visit Mother; he simply tried to assure her that she would be in a safe and comfortable environment. The supervisor did not hear the Mitchells make any comments. At the next two visits on April 1 and April 20, 2013, Alysia again refused to enter the building. She told the supervisor that Mother lied and was mean to her. Alysia insisted that she did not want to visit and said “that’s never going to change.” The guardian ad litem suggested asking the Mitchells to leave the premises to see if Alysia would visit with Mother after they left, but the Kymari House refused to implement this suggestion. The Kymari House refused to schedule any further visits because of Alysia’s refusal to participate.
On April 11, 2013, this Court issued its opinion in the Mitchells’ appeal of the circuit court’s decision to dismiss the petition for dependency and neglect. See In re Alysia M.S., No. M2011-02008-COA-R3-JV, 2013 WL 1501710, at *7 (Tenn.Ct.App. Apr. 11, 2013). We reviewed the evidence the Mitchells presented before fhe circuit court regarding the alleged sexual abuse by Alysia’s half-sister, the allegedly immoral postings from Mother’s social networking pages, Mother’s history of unstable housing and employment, and Mother’s *554use of marijuana in the past. We concluded that the evidence pertaining to these issues did not rise to the level of clear and convincing evidence of dependency and neglect. Accordingly, we affirmed the circuit court’s decision to dismiss the petition for dependency and neglect.
The trial on the Mitchells’ petition to terminate Mother’s parental rights began on May 10, 2013, and was tried over the course of six days. The juvenile court heard testimony from Mother, Mr. and Mrs. Mitchell, the DCS caseworker who was assigned to Mother’s case in 2010, Alysia’s former therapist from the sexual assault center, Alysia’s current therapist (Dr. Hanket), another therapist who counseled Alysia’s half-sister, the visitation supervisor from the Kymari House, attorney Betsy Crow, Mother’s husband, Mother’s mother and father, Mother’s former attorney, and his paralegal. The parties also introduced several volumes of testimony from the juvenile and circuit court dependency and neglect proceedings.
By the time of trial, Alysia had been living with the Mitchells for about two years and eleven months. She was six years old. Mother had remarried and was expecting twins. She had maintained steady employment for eighteen months. She worked at a restaurant for one year and then went to work at a gas station, where she remained employed at the time of trial. Mother testified that she had been living at her current residence for about 18 months and that she and her husband could financially provide for Aly-sia. They lived in a trailer home on a two-acre property owned by his family.
Mother testified that she had attempted to comply with the plan entered by DCS by stabilizing her home and employment situation and becoming drug-free. Mother testified that she had not used drugs in nearly three years. Mother had completed two alcohol and drug assessments, at her own expense, and she had been attending weekly “celebrate recovery” meetings for the past three years. Mother’s most recent drug and alcohol assessment found that she had a low probability of a substance abuse disorder and that no treatment was needed.- Nevertheless, Mother voluntarily enrolled in several classes at the intervention facility where she was assessed, including a 12-step alcohol and drug program, a 24-step female domestic violence program, and a 10-step parenting program, and she completed all of these programs. Mother also completed an eight to ten hour parenting class at a state university on her own accord.
The caseworker from DCS, Shirley Reed, testified about DCS’s involvement with Mother and Alysia. She stated at the outset that she had not been in contact with Mother in about three years. She emphasized that DCS never removed Aly-sia from Mother’s care and said that it had no grounds to do so. She testified that she and/or another DCS worker visited three residences where Mother lived, and they were all suitable homes with no concerns. Ms. Reed was asked if there was ever “any reason why the child could not have lived with [Mother]” throughout DCS’s involvement in the case, and Ms. ,Reed responded, “No.” Ms. Reed described the “non-custodial” plan signed by Mother and Charlene at the initial meeting with DCS in June 2010. She testified that it was her understanding, from that initial meeting, that Alysia was staying with Charlene and that she would be returning to Charlene’s house after she finished church camp. She said, “for the longest of times, we thought [Alysia] was with Charlene,” but later they discovered she was actually staying with the Mitchells. Ms. Reed testified that Mother called DCS stating that she wanted Alysia returned to *555her. Ms. Reed said that a DCS supervisor, who was not familiar with the situation, advised Mother to wait until Ms. Reed got “back to the office.” Ms. Reed was also- aware that Mother attempted to get help from the police. Ms. Reed testified that she informed Mrs. Mitchell by telephone that DCS did not have custody of the child and did not have any restrictions keeping Alysia from her mother. Mrs. Mitchell informed Ms. Reed that she and her husband intended to pursue custody of Alysia, and Ms. Reed told Mrs. Mitchell that “basically they were taking her child from her unnecessarily.”
Ms. Reed testified that Mother worked with DCS and “was doing what we had asked her to do.” She was of the opinion that Mother had a stable home with no concerns. She said Mother took every drug screen that DCS requested and passed both follow-up drug screens. She noted that Mother completed a drug assessment at her own expense. Ms. Reed testified that DCS closed its case completely when the Mitchells were awarded temporary custody of Alysia around October of 2010. Ms. Reed said that DCS was “totally out of the case” from that point forward and that the permanency plan was rendered “null,” ending Mother’s responsibility to meet its goals. However, she said that Mother “had done — pretty much following what we had asked her to do” prior to DCS closing the case. Ms. Reed was a member of the child protective investigative team that investigated the allegation of sexual abuse by Alysia’s half-sister, and she said the team classified the allegation as unfounded and determined that no follow-up services were necessary. She said the forensic interviewers who interviewed Alysia and her half-sister were “specialists in that field.” The therapist who treated Alysia’s half-sister testified that she saw the child for three sessions, and the half-sister appeared to be a happy, normal, well-adjusted child with no concerning issues.12
Lori Myers, the licensed clinical social worker and “registered play therapist” who counseled Alysia at the sexual assault center, also testified. The Mitchells initially took Alysia to the sexual assault center in September 2010, soon after they reported to DCS that Alysia said her half-sister “licked her bootie.” Again, Alysia was three years old at the time. Ms. Myers testified that she saw Alysia one to two times per month, with a few breaks from therapy, until February 2012, for a total of 87 sessions. Ms. Myers acknowledged that she does not interview children to determine whether they have been the victims of abuse and said that would be the role of forensic interviewers. She testified that she could not say whether the alleged sexual abuse in this case did or did not happen. However, because Alysia made a disclosure of her sister touching her private parts, Ms. Myers counseled Alysia about safe and unsafe touching and ways to be assertive. Ms. Myers testified that she observed increased behavioral issues and anxiety-related behavior, such as aggression, from Alysia around times of increased visitation. Ms. Myers talked with, Alysia about judges and attorneys and told her that sometimes adults are responsible for making decisions for children. Ms. Myers told Alysia that she was living with the Mitchells “because that was where all the individuals had decided was the safest place for her at this time.” When asked *556about Alysia’s recent refusal to visit Mother, Ms. Myers said she taught Alysia that she had a right to state her thoughts and feelings, but that she should also be respectful of adults and their decisions. Ms. Myers never worked with Alysia on issues pertaining to reunification with Mother. Ms. Myers ended her therapy with Alysia when Alysia began seeing Dr. Hanket for counseling regarding reunification.
Dr. Hanket is a licensed clinical psychologist in private practice. Her first session with Alysia was March 29, 2012, just days before Alysia’s last visit with Mother at the Exchange Club. Dr. Hanket met with Alysia 21 times and described her as a sweet, bubbly, and very happy child. She said when Alysia talked about Mother she would reflect ambivalence, anger, or sadness. Dr. Hanket and Alysia discussed Mother missing telephone calls and Aly-sia’s anger pertaining to that issue. According to Dr. Hanket, Alysia said Mother was mean to her because she used to spank her all the time. However, Dr. Hanket did not consider the spanking Aly-sia described to have been inappropriate in any way.13
Dr. Hanket also met with Mother six to eight times. She said Mother followed her recommendations and did everything that was asked of her. She said Mother “has not given me any cause for concern.” Dr. Hanket never met with Mother and Alysia together in her office, but she did supervise one visit with attorney Betsy Crow on December 5, 2012, when visitation resumed months after the visits at the Exchange Club ended. She described the visit much like Ms. Crow did in her notes. She said Alysia took about 30 minutes to warm up to Mother. After that period, they played together and shared a snack, Alysia styled Mother’s hair, and they appeared to have fun together and interact in a loving manner. Dr. Hanket’s notes reflected that Mother was good at finding activities to do with Alysia, she responded appropriately when the Mitchells were mentioned, and she exhibited good parenting skills. During the visit, Alysia told Mother she missed her and asked why it took so long for them to be able to visit. Near the end of the visit, Alysia said, “Let’s get a few more minutes together.” Before leaving, Alysia “again became very detached” and would not return Mother’s hug and she “automatically” said “I loye you” in response to Mother saying it. Dr. Hanket said Alysia “showed a lot of disturbances about having said that to [Mother]” during her next therapy session. Specifically, Alysia claimed she lied when she told Mother she missed her and loved her, and she was afraid she would be in trouble for telling a lie. Dr. Hanket testified, “my thoughts were that she feels torn. She feels as though she has to choose one party over the other. And that certainly would be anxiety-provoking for anybody.”
Dr. Hanket was aware that Alysia began refusing to visit with Mother on March 23, 2013, about six weeks before the termination trial began. This was eight days after Dr. Hanket gave her deposition in this case and testified that reunification would be unlikely if visits did not go well. (Mrs. Mitchell was present at the deposition.) Dr. Hanket said she “[did] find that odd” that Alysia consistently participated in visits with Mother prior to the deposition and stopped immediately thereafter. At a session with Dr. Hanket on March 26, Alysia was unusually excited and “proud” of the fact that she had told the visit supervisor she did not want to visit with *557Mother and was not required to visit. Dr. Hanket recalled discussing the situation with the guardian ad litem and advising her that Alysia should not be forced to visit because she feared that it “would really set her back a number of steps in terms of her feeling that empowerment.” Dr. Hanket also said, however, that a child should not be the ultimate decision maker in this case.
Around this time, Alysia also started to exhibit behavioral problems at home and at school. During Dr. Hanket’s last visit with Alysia, on April-28, she observed “a dramatic change” in Alysia. Alysia was disobedient, “very hyper, very upset, just couldn’t control herself, couldn’t calm herself down, she was throwing toys at me, things she had never done before.” Dr. Hanket asked Alysia if she was upset about not seeing Mother, and Alysia responded, “Why would I feel that way?” However, Dr. Hanket was very concerned that Alysia actually felt torn. Dr. Hanket acknowledged the possibility that Alysia loves Mother and also loves the Mitchells. Dr. Hanket said, “I believe she has some type of allegiance or feeling for her mother still at this. time.” Alysia had another session scheduled with Dr. Hanket on May' 7, just three days before trial began, but she did not appear for the appointment.
Dr. Hanket acknowledged her previous estimation, during her deposition, that reunification of Alysia and Mother would probably take between 18 and 24 months. Because of Alysia’s subsequent refusal to visit, Dr. Hanket’s current estimation as to a timeline for reunification was “closer to certainly the 24-month mark if not even longer than that.” She said it would be a “long process” and that Alysia would have to “buy-in” to make it successful. Dr. Hanket acknowledged the possibility that reunification “would never happen successfully.” She said “reunification becomes increasingly difficult the longer this goes on” and that it could take two more years “if we do it the way I want to[.]” Dr. Hanket opined that it would be traumatic to Alysia if she was simply “torn away” from the Mitchells without a very slow approach. On the other hand, she testified that it would not be in Alysia’s best interest “to continue floating like this” for the next few years. Dr. Hanket said that introducing Alysia to Mother’s current husband could present additional issues, but on the other hand, it could also benefit Alysia and Mother to have a male figure in the home. Dr. Hanket testified that the half-sister’s frequent presence in the home would also impact Alysia’s ability to feel safe and secure.
Dr. Hanket initially said that she had not seen any evidence of coaching in this case. However, she later conceded that she had expressed several concerns to the guardian ad litem about possible coaching.14 One such issue involved Alysia telling Dr. Hanket that the Mitchells made her call them “mommy” and “daddy.” Dr. Hanket said, “Alysia told me that she was — and she used the word ‘forced’ to call the Mitchells ‘mommy’ and ‘daddy.’ ” Dr. Hanket said that this could be a form of coaching. When asked if there were other forms of coaching that concerned her, Dr. Hanket described an incident when Alysia was discussing Mother missing a telephone call, and she said, “Katie lied.” Dr. Hank-et asked Alysia how she knew that Katie lied, and “[Alysia] stated that the Mitchells had told her that Katie lied.” Dr. Hanket acknowledged that telling the child that Mother lied could impede reunification. *558Dr. Hanket also said that if the Mitchells were not ensuring that Alysia received the letters and packages Mother sent, that could be another instance of building a barrier to reunification.15
In addition, Dr. Hanket acknowledged that Alysia’s decision making process could have been influenced by such things as the vacations she takes with the Mitchells and the material things they are able to provide financially. She said, “one of the issues related to reunification is that Aly-sia is having to go potentially in between very different environments. There are things that she’s able to enjoy with Mr. and Ms. Mitchell that she may not be able to enjoy with [Mother]. And that is certainly something.” Dr. Hanket said there is “a difference for [Alysia] in terms of environments and what each set of parents is able to provide for her. And I think for her, that’s an issue.” She also acknowledged that the Mitchells refusal to spank Alysia could sway her decision. In fact, during one of their last sessions, Dr. Hanket and Alysia discussed that Alysia would eventually live either with the Mitchells or with Mother; Alysia said her life with the Mitchells was better because of her “beautiful clothes,” and her life with Mother was worse because Mother spanked her.16
Finally, Dr. Hanket acknowledged her deposition téstimony, given less than two months before trial, about her opinion as to terminating Mother’s parental rights:
Q. Our trial date is May the 10th. Okay?
A. Okay.
Q. And the gravity of the situation is a mother, her parental rights are on the line here. There’s no going back. Once they’re terminated, they’re terminated. Of course, there can be an appeal. But I’m saying on date, they’re terminated. There is no more reunification. There’s no more plans. There’s no more therapy to work towards reunification. Are you going to be prepared that day to give an opinion that [Mother] never sees her daughter again, never works towards reunification again, and I think you said have family therapy and counseling all working together. None of that will be possible that day. Her rights are terminated at the end of this trial. It’s over with. I think [the guardian ad litem] is asking you, are you prepared to do that — testify to that that day? I just want to quantify that question.
A. I did not — it was not my understanding that that was what court in May was for. So, no, because — no. Because we won’t have had a chance to give it everything we’ve got. I hate to say that, because I hate that this has gone on for Alysia for three years and now it may go on howev*559er many more. But if — yeah. I mean, if I’m going to have to testify to potentially terminate rights in May, no,. I will not be ready to do that.
Due to Alysia’s subsequent refusal to visit, Dr. Hanket testified that the only option she could envision for resuming Mother’s visitation would be if Alysia was forced to visit, and Dr. Hanket had “pretty significant concerns with doing that.” When asked if this would be similar to forcing a child to attend a practice or church event, Dr. Hanket said the difference here is that Alysia apparently does not feel “emotionally safe” with Mother, for whatever reason. She noted'that Mother’s attempts to elicit affection from Alysia made the child “very uncomfortable” but also recognized that Mother had “correctfed]” and “remedied” that issue during the supervised visits after a discussion with Ms. Crow.
Much of the testimony at trial centered on whether 'Mother willfully failed to support Alysia during the four months immediately preceding the filing of the termination petition on August 10, 2011.17 Mother admitted that she did not make a monetary child support payment to the Mitchells during that four-month period, which spanned from April 10 until August 9.18 Mother’s last child support payment prior to the four month period was on April 7, 2011; in the amount of $200. Mother testified that she was working at a temporary staffing agency during the relevant time period and that she accepted every job she was offered through the agency.
Mother testified that she worked, through the staffing agency, from March 27 until May 10 at a lighting factory, making $9.00 to $9.25 an hour for 30 to -38 hours per week. Mother testified that the staffing agency “held back” her first paycheck from her employment, and then she received a paycheck every other week. She said she did not use any of the funds from her employment at the factory to pay child support because she was “so far behind” on her bills. Mother had been employed only sporadically since Alysia left in June 2010. Mother testified that she did not receive a paycheck during the entire month of June 2011. She testified that her next job lasted about one week, from June 27 until July 1, and it was also through the staffing agency. At this job, Mother worked at another factory spraying bathtubs with fiberglass. She worked approximately thirty hours and earned $7.25 per hour. Mother testified that she used her paycheck from this employment to pay bills that were past due, and she also used some of the money to buy school clothes for Alysia. She testified that she sent Alysia three to four outfits, shoes, socks, underwear, and vitamins. Mother did not have another job during the month of July. Mother’s next job began on August 8, just two days before the termination petition was filed, and it lasted until September 5. This job was also through the staffing agency, so she did not receive a paycheck for this work during the four-month period. Mother initially testified that this job was at a clothing factory, but when she *560was asked to list her employment history again, later in the trial, she testified that she worked on these dates at a factory called “Rio,” and that she had been unable to remember the name of the factory when she testified “the other day.”
Mother testified that she began sending gifts and letters to Alysia soon after Alysia went to stay with Charlene. According to Mother, she asked the Mitchells about sending school supplies for Alysia, and the Mitchells told her they would take care of it. She said the Mitchells also told her, when the court proceedings began, that there was no need to send them child support payments and that she should use the money to pay for the cost of supervised visitation. Mr. Mitchell testified that he did tell Mother at the initial probable cause hearing in juvenile court that he and his wife did not need Mother’s child support and that “we wanted her to keep that, apply it to her visits, use it to get her life back on track.” Mrs. Mitchell similarly testified that she and her husband told Mother that they did not need or want money from Mother because they could support Alysia without it, and they wanted Mother to use it for the cost of supervised visitation.19
Despite these instructions, Mother testified that she sent packages containing clothing and other items through the mail to the Mitchells’ post office box and with the guardian ad litem whenever it was permitted. According to Mother, when she would ask Alysia about items that were sent, Alysia would say that she did not receive them. Mother testified that the post office returned some of the items she sent as unclaimed, and she introduced as exhibits two of the unclaimed parcels reflecting numerous dates of attempted delivery. Mother testified that the items she sent over the years included gifts, cards, pictures, clothing, personal effects, toys, Christmas gifts, Easter dresses, Valentine’s Day gifts, school supplies, underwear, shampoo, and vitamins. Mrs. Mitchell testified at trial that she set up the post office box specifically for receipt of Mother’s packages and mail. She acknowledged receiving various packages, cards, and letters from Mother over the years. However, with regard to the unclaimed packages, Mrs. Mitchell said that she did not check the post office box regularly and that Mother was supposed to send her a text message when she needed to check it.
Mother conceded that she missed a few phone calls with Alysia but claimed that it was because of work meetings and the fact that she could not have a phone at work. Mother acknowledged th'at she and Alysia do not have conversations when she calls. Instead, Mother asks Alysia numerous questions hoping to get a response, and Alysia repeats, “I don’t want to talk to you. I don’t want to talk to you. I don’t want to talk to ydu.” She said Alysia did talk with her on the phone “a little bit” in 2011, but since then, Alysia had consistently stated that she did not want to speak to Mother. Mother acknowledged that Aly-sia did not want to come to their last three supervised visits, but she claimed that all of the previous visits went well. When Mother was asked about Alysia being in a stable home with the Mitchells for the past three years, she said, “That’s because the legal procedures have taken that long. It’s not because I haven’t fought for her that long.” She said she was willing to do “whatever it takes” to be reunited with Alysia. Mother believed that she could be reunited with Alysia but said that it would require hard work, consistency, therapy, and cooperation. Mother expressed her opinion that the juvenile court should -have *561allowed Alysia to see her family, come to Mother’s home, or at least have visitation in some type of home environment. Mother also testified that she asked Dr. Hanket on numerous occasions to meet with her and Alysia together for some type of joint therapy, and yet that never occurred.
Mother’s current husband (“Husband”) also testified. He said he had been working at Rio, which he described as an ammunition factory, for about four years. During cross-examination by the Mitchells’ attorney, Husband was asked whether Mother worked at Rio during the same time that Husband worked there. Husband said she did. When asked how long Mother worked at Rio, he responded, “Maybe four months, five months.... Could have been longer.”20 Counsel for the Mitchells asked if this employment occurred in and around the middle of 2011, and Husband said he could not remember. When asked about Mother’s periods of unemployment, he said he did not “keep up with time and stuff like that.” Husband testified that he thought Mother moved into his trailer two to three years ago or “somewhere around in that area.”
Mother’s mother was asked about Mother’s employment situation during the spring and summer of 2011, and she said that Mother had a hard time finding a job and meeting her expenses during that period. During cross-examination by the Mitchells’ counsel, the following exchange occurred:
Q. And in the spring and summer of 2011, that’s when your daughter was working at Rio for about four months. Correct?
A. I don’t know exactly when it was she worked there. I know she worked at Rio, but I couldn’t tell you — I lose track, so—
Q. She worked there for many months — at least a few months, not many months.
A. I know she worked there, yes.
Q. So four or five, if that’s what her husband testified to, that would be approximately to the best of your knowledge. Correct?
A. Well, yeah.
Q. Do you know why your daughter would have come to court and said she only worked at Rio for one month?
A. No.
On re-direct, Mother’s mother was asked:
Q. In the summer of 2010 — or summer of 2011, the spring of 2011, if [Mother] testified that she worked at Rio a month, would that not be more accurate than what Mr. Edwards testified to?
A. It could be. Like I said, I’m not sure how long she worked there. I do know she worked there though.
Q. You don’t know how long she worked there?
A. Oh, I have no — I don’t. I can’t remember how long she had worked there for.
When Mother’s father was asked about Mother’s employment situation in the spring and summer of 2011, he said Mother “couldn’t find nothing nowhere” because “[t]he economy and everything was doing so bad in our area that temporary services, nobody had nothing available.” • He remembered that Mother worked at Rio through the temporary employment service at some point, and he estimated that she worked there “[a]bout two or three months maybe.” When asked if that em*562ployment would- have been “about the spring/summer of 2011,” he said, “Yes, it would be.”
Mother’s father acknowledged that he complained to DCS about Mother’s living situation in June 2010 and later filed the intervening petition for dependency and neglect.21 However, he said that he and Mother had since reconciled their differences, and Mother had corrected her circumstances by establishing a stable home and employment and becoming drug-free.
The trial court entered a written order on October 23, 2013, incorporating by reference a letter ruling sent by the judge to the attorneys. The letter ruling set forth the four grounds for termination alleged in the Mitchells’ petition: substantial noncompliance with a permanency plan, pursuant to Tennessee Code Annotated section 36 — 1—113(g)(2); persistent conditions, pursuant to subsection (g)(3); failure to support, pursuant to subsection (g)(9)(A)(ii); and returning the child to the parent would pose a risk of substantial harm to the physical or psychological welfare of the child, pursuant to subsection (g)(9)(A)(v). However, when ruling on grounds for termination, the court only addressed two issues: “abandonment by failure to support” pursuant to subsection (g)(1) and persistent conditions pursuant to' subsection (g)(3). The juvenile court found that both of these grounds for termination were proven by clear and convincing evidence. The court then continued with a best interest analysis and determined by clear and convincing evidence that it was in the best interest of Alysia to terminate Mother’s parental rights. The order granted full guardianship rights to the Mitchells and provided that they “may proceed in seeking adoption of the minor child to allow the child the permanency she so greatly deserves.” The written order stated that “any and all remaining claims of the parties unless specifically addressed herein are dismissed with prejudiced [sic] to make this a Final Order permitting Petitioners to immediately adopt said child.” Mother timely filed a notice of appeal.
II. Issues Presented
Mother frames the issue on appeal simply as whether the trial court erred in finding that her parental rights should be terminated. Similarly, the Mitchells state the issue as whether the trial court properly terminated Mother’s parental rights. For the following reasons, we reverse the decision of the juvenile court and remand for the entry of an order that implements a plan to expeditiously reunite Alysia with her mother.
III. Standard of Review
“A biological parent’s right to the care and custody of his or her child is among the oldest of the judicially' recognized liberty interests protected by the due process clauses of the federal and state constitutions.” In re J.C.D., 254 S.W.3d 432, 437 (Tenn.Ct.App.2007); In re Audrey S., 182 S.W.3d 838, 860 (Tenn.Ct.App.2005). Although the parent’s right is fundamental and superior to the claims of other persons and the government, it is not absolute. In re J.C.D., 254 S.W.3d at 437. A parent’s right “continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or *563termination.” Id.; see also In re M.J.B., 140 S.W.3d 643, 653 (Tenn.Ct.App.2004).
In Tennessee, proceedings to terminate a parent’s parental rights are governed by statute. “Parties who haye standing to seek the termination of a biological parent’s parental rights must prove two things.” In re Audrey S., 182 S.W.3d at 860; see also In re 140 S.W.3d at 653. First, they must prove the existence of at least one of the statutory grounds for termination, which are listed in Tennessee Code Annotated section 36-1 — 113(g). Id. Several grounds for termination are listed in subsection (g), but the existence of any one of the grounds enumerated in the statute will support a decision to. terminate parental rights. In re Angela E., 303 S.W.3d 240, 251 (Tenn.2010); In re S.R.C., 156 S.W.3d 26, 28 (Tenn.Ct.App.2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn.Ct.App.2004). Second, the petitioner must prove that terminating parental rights is in the child’s best interest, considering, among other things, the factors listed in Tennessee Code Annotated section 36 — 1—113(i). In re Audrey S., 182 S.W.3d at 860. In light of the constitutional dimension of the rights at stake in a termination proceeding, the person seeking to .terminate these rights must prove all the elements of the case by clear and convincing evidence. In re Bernard T., 319 S.W.3d 586, 596 (Tenn.2010) (citing Tenn.Code Ann. § 36 — 1—113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 808-09 (Tenn.2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002)). In sum, in order to terminate parental rights, a trial court must determine by clear and convincing evidence not only the existence of at least one of the statutory grounds for termination, but also that termination is in the child’s best interest. In re Adoption of Angela E., 402 S.W.3d 636, 639 (Tenn.2013); In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn.2006).
Because of this heightened burden of proof in parental termination cases, on appeal we must adapt our customary standard of review as set forth in Tennessee Rule of Appellate Procedure 13(d). In re Audrey S., 182 S.W.3d at 861. First, we review each of the trial court’s specific factual findings de novo in accordance with Rule 13(d), presuming the finding to be correct unless the evidence preponderates against it. In re Adoption of Angela E., 402 S.W.3d at 639. Second, we must determine whether the facts (either as found by the trial court or as supported by the preponderance of the evidence) amount to clear and convincing evidence that one of the statutory grounds for termination exists. Id. at 639-40. Whether a statutory ground has been proven by the requisite standard of evidence is a question of law to be reviewed de novo with no presumption of correctness. In re R.L.F., 278 S.W.3d 305, 312 (Tenn.Ct.App.2008) (citing In re B.T., No. M2007-01607-COA-R3-PT, 2008 WL 276012, at *2 (Tenn.Ct.App. Jan. 31, 2008)).
IV. Discussion
A. Grounds for Termination
1. Willful Failure to Support
The Mitchells’ petition to terminate parental rights alleged “[t]hat Mother has failed to pay support for a period in excess of four (4) months pursuant to T.C.A. § 36-l-113(g)(9)(A)(ii).”22 However, the grounds for termination listed in section *56436-1-113(g)(9) only apply to persons who are “not the legal parent or guardian” of the child at the time of filing of the termination petition. See Tenn.Code Ann. § 36—1—113(g)(9)(A). The definition of “[l]egal parent” includes “[t]he biological mother of a child.” Tenn.Code Ann. § 36-1102(28)(A). Accordingly, “[t]he grounds for termination in Tenn.Code Ann. § 36-1113(g)(9) cannot be used to terminate the rights of a person who is a child’s biological parent, legal parent, or putative biological father at the time the termination petition is filed.” In re Bernard T., 319 S.W.3d 586, 599 (Tenn.2010) (citing In re D.A.H., 142 S.W.3d 267, 272-73 (Tenn.2004)). “The grounds for terminating the rights of a person who is a child’s biological parent, legal parent, or putative biological father are found in Tenn.Code Ann. § 36—1—113(g)(1)—(8), (10).” Id. (emphasis added).
In this case, the Mitchells could not use the grounds listed in subsection (g)(9) to terminate Mother’s parental rights. The alleged ground of failure to support pursuant to section 36-1-113(g)(9)(A)(ii) was inapplicable. However, during trial, both sides appeared to proceed under the assumption that the termination petition alleged abandonment by willful failure to support pursuant to section 36—1—113(g)(1), which does apply to biological parents. Throughout the trial, the judge heard testimony about Mother’s circumstances during the four-month period prior to the filing of the termination petition, which, as explained below, is the focus of the inquiry for willful failure to support pursuant to section 36—1—113(g)(1). The Mitchells’ attorney specifically cited “abandonment” and its definition in section 36-1102 in his closing argument, and Mother’s attorney discussed the applicability of this ground as well. Moreover, on appeal, Mother’s brief analyzes the ground of abandonment under subsection (g)(1), stating, “[t]he grounds for termination alleged and relied upon in the instant case, are as follows: (1) Abandonment by the parent or guardian, as defined in § 36-1102....”
“A ground for termination not included in the petition can be properly found if the ground was tried by implied consent.” In re Johnny K.F., No. E2012-02700-COA-R3-PT, 2013 WL 4679269, at *8 (Tenn.Ct.App. Aug. 27, 2013) (citing In re: Anthony R., No. M2012-01412-COA-R3-PT, 2013 WL 500829, at *4 n. 5 (Tenn.Ct.App. Feb. 8, 2013)); see, e.g., In re Adoption of Angela E., 402 S.W.3d 636, 640 n.3 (Tenn.2013) (finding that the ground of abandonment by willful failure to support was tried by consent).
The strict application of procedural requirements in cases involving the termination of parental rights requires that before there can be a finding that a ground for termination not alleged in the petition was tried by implied consent, the record must be clear that such ground indeed was tried by implied consent.
In re Johnny K.F., 2013 WL 4679269, at *8. The record before us demonstrates that Mother consented to the ground of abandonment by willful failure to support being tried by the trial court. Therefore, we will proceed to consider the merits of . this issue.
The first ground for termination listed in the termination statute, and the one most frequently relied on, is abandonment. In re Audrey S., 182 S.W.3d 838, 862 (Tenn.Ct.App.2005). For purposes of terminating parental rights, there are five alternative definitions of abandonment listed in Tennessee Code Annotated section 36—1—102(1) (A) (i)—(v). Pursuant to the first definition, which is the one relevant to this case, “abandonment” means that:
*565For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the par-entis) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the childf.]
Tenn.Code Ann. § 36 — 1—102(1)(A)(i). Abandonment can be established by showing that a parent either willfully failed to visit or willfully failed to support the child during the relevant time period. In re Christopher M., No. W2010-01410-COA-R3-PT, 2010 WL 4273822, at *10 (Tenn.Ct.App. Nov. 1, 2010) (citing In re Adoption of McCrone, No. W2001-02795-COA-R3-CV, 2003 WL 21729434, at *10 (Tenn.Ct.App. July 21, 2003)).
Willful failure to support or to make reasonable payments toward support means “the willful failure to provide more than token payments toward the support of the child.” Tenn.Code Ann. § 36-1-102(1)(D). Token support payments are not sufficient to preclude a finding of willful failure to support. Token support is support that “under the circumstances of the individual case, is insignificant given the parent’s means.” Tenn.Code Ann. § 36-1102(l)(B). In termination proceedings, “the term ‘token support’ is a term of art.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *11 (Tenn.Ct.App. Jun. 3, 2003). A finding that support was “insignificant” in light of the parent’s “means” must be based on evidence regarding both the parent’s actual financial support of his or her child and the parent’s “means.” Id. “In the context of token support, the word ‘means’ connotes both income and available resources for the payment of debt.” In re Adoption of Angela E., 402 S.W.3d at 641 (citing In re Z.J.S., 2003 WL 21266854, at *11 n.24; Black’s Law Dictionary 1070 (9th ed. 2009)). “The definition of token support itself requires consideration of the circumstances of the individual case.” In re K.C., 2005 WL 2453877, at *9 (citing Tenn.Code Ann. § 36-l-102(l)(B)).
The willful failure to visit, support, or make reasonable payments toward the support of the child must have occurred in the four months immediately preceding the filing of the termination petition currently before the court. In re D.L.B., 118 S.W.3d 360, 366 (Tenn. 2003). Here, it is undisputed that Mother did not submit any monetary child support payments to the Mitchells during the four month period. When the petition was filed, Mother had not made a monetary child support payment in four months and three days. The central issue on appeal regarding Mother’s failure to pay child support is whether her actions were willful. “The requirement that the failure to visit or support be ‘willful’ is both a statutory and' a constitutional requirement.” In re Adoption of Kleshinski, No. M2004-00986-COA-R3-CV, 2005 WL 1046796, at *17 (Tenn.Ct.App. May 4, 2005). Therefore, the element of willfulness is essential and central to the determination of abandonment. In re M.L.D., 182 S.W.3d 890, 896 (Tenn.Ct.App.2005); In re C.M.C., No. E2005-00328-COA-R3-PT, 2005 WL 1827855, at *6 (Tenn.Ct.App. Aug. 3, 2005). Willfulness in the context of termination proceedings does not require the same standard of culpability as is required by the penal code, nor does it require that the parent acted with malice or ill will. In re Audrey S., 182 S.W.3d at 863; see also In re S.M., 149 S.W.3d 632, 642 (Tenn.Ct.App. 2004). Rather, a parent’s conduct must have been willful in the sense that it con*566sisted of intentional or voluntary acts, or failures to act, rather than accidental or inadvertent acts. In re Audrey S., 182 S.W.3d at 863. “A parent cannot be said to have abandoned a child when his failure to visit or support is due to circumstances outside his control.” In re Adoption of Angela E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H., 215 S.W.3d at 810 (holding that the evidence did not support a finding that the parents “intentionally abandoned” their child)).
Willfulness of a parent’s con-, duct depends on the parent’s intent, and intent is seldom capable of direct proof. In re Audrey S., 182 S.W.3d at 864 (citing In re Adoption of S.M.F., No. M2004-00876-COA-R9-PT, 2004 WL 2804892, at *8 (Tenn.Ct.App. Dec. 6, 2004)). Triers-of-faet lack the ability to peer into a person’s mind to assess intentions or motivations and must infer intent from circumstantial evidence, including the parent’s actions or conduct. Id. Because testimony may be critical to the determination of whether a parent’s conduct was willful, trial courts are best situated to make ¿ determination of willfulness. In re D.L.B., 118 S.W.3d at 367. The question of intent or willfulness depends on the totality of the circumstances, and the facts must be applied to the standard definition of willfulness. V.D. v. N.M.B., No. M2003-00186-COA-R3-CV, 2004 WL 1732323, at *6 (Tenn.Ct.App. July 26, 2004). “Whether a parent failed to visit or support a child is a question of fact. Whether a parent’s failure to visit or support constitutes willful abandonment, however, is a question of law.” In re Adoption of Angela E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H., 215 S.W.3d at 810). This Court reviews questions of law de novo with no presumption of correctness. Id.
In the trial court’s letter ruling, it made specific findings when analyzing the ground of abandonment by willful failure to support. At the outset, the court noted “the litany of proceedings during which Mother requested modification of her visitation schedule due to her work requirements.” “Specifically,” the court said, efforts were made to accommodate Mother’s work schedule during hearings on September 30, 2011, and June 15, 2012. On appeal, we have no transcript of the aforementioned hearings that would enable us to review Mother’s statements about her work schedule. The written order from the September hearing fails to mention any testimony and states that the court ruled “[u]pon argument of counsel and a review of the file as a whole.” In any event, however, Mother’s representations about her day-to-day work schedule in September 2011 and June 2012 would not shed any light on whether she had the ability to support Alysia during the relevant time frame between April 10 and August 9, 2011. The letter ruling further stated,
In the proceeding at bar, the Mother again came before the Court, with variations of places of employment, work schedules, and compensation that are inconsistent with that of her own witnesses, let alone her prior sworn testimony before this Honorable Court. However, regardless of Mother’s choice as to her version of her employment history among the variety of those presented before the Court, Mother cannot deny that she has been employed; received compensation for her employment; • and chosen. to pay her debts, except for any funds for which she is morally and legally obligated to provide for the benefit of the minor child.
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Therefore, the Court finds that the Mother[’s] ... failure to provide for the Child’s support during the statutory *567time period as set forth in T.C.A. §§ 36-1-113(g)(1) and 36-l-102(l)(A)(i) is, in fact, “willful”. As such, the Court finds by clear and convincing evidence that the Motherfs] ... parental rights shall be terminated as to the Child for [her] abandonment by failure to support.
As we explained above, Mother testified that she worked for the temporary staffing agency during the entire four-month period at issue, which spanned from April 10 until August 9, 2011. Mother’s last child support payment prior to the four month period was on April 7, 2011, in the amount of $200. Mother testified that she accepted every job she was offered through the staffing agency. Mother testified that jobs were “very, very limited” where she lived and that it was even more difficult to find a job during the summer months because of college students returning home. She testified that she applied for jobs “all over the place,” including two restaurants, other temporary employment services, grocery stores, Wal-mart, and different clothing stores. Mother testified that she went to a career center and sought advice, and she completed online applications for work in surrounding counties. Mother claimed she did “everything [she] could to find work” and that she “did the best that [she] could” by working at the staffing agency.
Mother testified that she worked, through the staffing agency, at a lighting factory from March 27 until May 10, making $9.00 to $9.25 an hour for 30 to 38 hours per week. This equates to about six weeks of employment. Although this period of employment began prior to the four-month period, the staffing agency “held back” Mother’s first paycheck, and then paid her every two weeks, so Mother would have received her first paycheck from working at the lighting factory during the four-month period. By our calculation, Mother earned somewhere between $270 and $351 per week, before taxes were withheld, during that time ($9 x 30 hours; $9.25 x 38 hours). Mother testified that her paycheck from the lighting company, for a two-week period, was about $450. She testified that she did not use any of the funds from the three paychecks she received while working at the lighting factory to pay child support because she was “so far behind” on her bills. Since Alysia left in June 2010, Mother had worked at several jobs, but none lasted longer than a matter of weeks.23 She worked “an hour or two a week” at a church, then worked part-time at a catering business helping with four to five parties during the holidays, then about eight weeks at an Apple-bee’s until the car she had purchased with a friend “broke down,” and then a couple of weeks at another restaurant.
Mother testified that her monthly bills during the four-month period included $320 for rent, $120 for insurance, $60 for the water bill, $120 to $140 for the electric *568bill, $300 for groceries and household items, and an unspecified amount for her telephone bill. Mother was also responsible for paying the cost of supervised visitation with Alysia, which was $15 an hour. In addition, she was attempting to pay her attorney’s fees in the ongoing dependency and neglect trial, which was held in circuit court over the course of four days between April and June 2011, all during the four-month period. Mother did not have a vehicle at the time, so she was paying someone to take her to and from visitation with Alysia in Murfreesboro, to and from the court hearings in Murfreesboro, and to her place of employment when she did not walk. Mother testified that she had about $300 in monthly travel expenses for attending court in Murfreesboro, which was apparently about two hours from Mother’s home. Mother testified that she was trying to save some money to buy a car so that she would have reliable transportation to her visits, her court dates, and her job, because the person transporting her caused her to be late to a visit in Mai*ch 2011. In May 2011, Mother purchased a car and assumed a $200 per month car payment. She also paid for car insurance.
On May 10, 2011 Mother said the lighting factory “laid us off’ because the temporary workers were no longer needed. Mother testified that she did not receive a paycheck during the entire month of June. She testified that her next job was at a factory spraying bathtubs with fiberglass. It lasted less than one week, from June 27 until July 1, and it was also through the staffing agency. She worked approximately thirty hours and earned $7.25 per hour. By our calculation, this would total $217 before taxes were withheld. Mother testified that she used her paycheck from this employment to pay bills that were past due, and she also used some of the money to buy school clothes for Alysia. She testified that she sent Alysia three to four outfits, shoes, socks, underwear, and vitamins. ■ At trial, Mrs. Mitchell was asked whether she received clothing for Alysia from Mother during the four-month period, and she said she could not recall. Aside from this job ending July 1, Mother did not have another job during the month of July. Nevertheless, she completed the parenting classes at the state university on or about July 30, 2011, at her own expense. On August 2, 2011, Mother took the drug and alcohol assessment at a private facility, at her own expense.
Mother’s next job through the staffing agency began on August 8, 2011 just two days before the termination petition was filed, and it lasted until September 5. She earned $7.25 an hour at this job. Mother initially testified that this job was at a clothing factory, but on a later date during the trial, when she was asked to describe her employment history again, she testified that she worked on these dates at a factory called “Rio” and said that she had been unable to remember this factory during her previous testimony. Either way, Mother would not have 'received a paycheck from this employment prior to the end of the four-month period on August 9 because her first paycheck from each job was “held back” by her employer. Mother made a $700 child support payment on September 16, 2011.
In sum, Mother provided detailed and compelling testimony that she did the best that she could to support Alysia, while also attempting to comply with the DCS plan and court orders, and she testified that she did not “intentionally” fail to make monetary child support payments. When the trial court summarized each witness’s testimony in its letter ruling, the court acknowledged Mother’s testimony that her employment during the four-month period was temporary and sporadic and that she.. did not make child support payments be*569cause she utilized her income to pay. bills and because the Mitchells had previously told her not to pay them child support. When summarizing the testimony of Mother’s husband, the trial court said Husband testified that Mother had “more consistent periods of employment” and “worked at the same place as him for a rather lengthy period[.]” Notably, however, the trial court did not make a finding that Mother was employed at Rio at any point, especially during the four month period at issue. We find the evidence about Mother’s employment at Rio neither clear nor convincing.
As we explained above, at the trial in May 2013, Husband was asked if Wife had worked at Rio during his four years of employment there, and he said that she did. He estimated that she worked there f “[m]aybe four months, five months.... Could have been longer.” He was asked if this employment occurred in and around the middle of 2011 but said he could not remember.24 When asked about Mother’s periods of unemployment, he said he did not “keep up with time and stuff like that.” Mother’s mother was asked whether she remembered Mother’s employment situation during the spring and summer of 2011, and she said that Mother had a hard time finding a job and meeting her expenses during that period. She could not remember when or how long Mother worked at Rio. When Mother’s father was asked at trial about Mother’s employment situation in the spring and summer of 2011, he said Mother “couldn’t find nothing nowhere” because “[t]he economy and everything was doing so bad in our area that temporary services, nobody had nothing available.” He remembered that Mother had worked at Rio through the temporary employment service at some point in the past, and he estimated that she worked there “[ajbout two or three months maybe.” When asked if that employment would have been “about the spring/summer of 2011,” he said, ‘Tes, it would be.”
The testimony of Mother’s husband and her parents does cast doubt on whether Mother worked at Rio for one month, as she claimed, two or three months as her father testified, or four to five months as her husband testified. However, even assuming that Mother worked at Rio for longer than she claimed, there is no clear evidence that this period of employment at Rio corresponded with the four-month period preceding the filing of the termination petition, from April 10 to August 9, 2011. Mother testified that she began working at Rio on August 8, two days before the termination petition was filed. Therefore, it is reasonable to assume that the duration of Mother’s employment at Rio occurred after the four-month period at issue and that she was compensated for this employment after the four-month period.25 Even -though Mother’s father testified that1 Mother worked at Rio “about two or three months maybe” sometime “about the spring/summer of 2011,” this testimony is far from certain. Piecing all of this testimony together does not prove that Mother worked at Rio during the four-month period, received her paycheck from that employment during the four-month period, and therefore had the capacity to pay monetary child support during the four-month period but willfully failed to do so.
*570When summarizing the testimony of the witnesses, the trial court also stated that “contrary to Mother’s assertions, [her husband] testified that Mother has worked consistently while he has known her with the exception of a 6-7 month period.” We find no such testimony by the husband. He actually testified as follows:
Q. During the time that you have known [Mother], does she appear to be a hard-working individual?
A. Yes, sir.
Q. Has she ever gone any long periods of time without a job?
A. Yes, sir.
Q. When?
A. There for a minute she didn’t have a job for about six to eight months.
Q. Do you know about when that was?
A. No, sir. I don’t keep up with time and stuff like that. I’m just a working guy, you know?
Husband said that over the past three years, Mother had “looked for jobs and looked for jobs.” From our reading of Husband’s testimony, he said that Mother had experienced periods of unemployment and that one such period lasted six to eight months. He did not say that Mother “worked consistently” while he had known her with the exception of that one period.
Although the trial court noted the inconsistencies in the witnesses’ testimony about Mother’s employment history, the court did not make any express findings about Mother’s employment. Instead, the court found that
regardless of Mother’s choice as to her version of her employment history among the variety of those presented before the Court, Mother cannot deny that she has been employed; received compensation for her employment; and chosen to pay her debts, except for any funds for which she is morally and legally obligated to provide for the benefit of the minor child.26
Simply finding that Mother worked and was compensated at some point during the four-month period does not, by itself, mean that she had the ability to pay child support. The trial court did not make any findings regarding Mother’s income, nor did it mention Mother’s expenses.
The trial court found that Mother “failed to pay a cent during the statutory time frame that the Court must consider” and ,failed to pay even “token support for the benefit of the child during the four months preceding the filing of the Petition.” It is worth noting that in January 2011, Mother was told to stop bringing gifts for Alysia to -the supervised visits. Nevertheless, the records from the Exchange Club indicate that on April 14, 2011, at the beginning of the four-month period, Mother “brought several items” to her supervised visit with Alysia, including a “My Littlest Pet Shoppe container with numerous small toys inside, an Ice Age DVD, a small puzzle, a box of fruit snacks unopened, and a camera.” The monitor again advised Mother “that per the court order, she is not to bring any gifts to the visits,” and “per agency policy, she is not to bring food into the visits.” The items were removed from the area and returned to Mother at her departure. The trial court failed to *571mention these items or the school clothing that Mother sent to Alysia during the four-month period, which included several new outfits, shoes, socks, underwear, and vitamins.27
We also recognize that the Mitch-ells told Mother not to pay them monetary child support. Mrs. Mitchell testified, “We actually asked her not to pay, so that she would be able to do the things that she was saying she needed to do[.]” Mr. Mitchell also testified, “we wanted her to keep that, apply it to her visits, use it to get her life back on track.” During the pivotal four-month period, Mother did just that, directing her limited financial resources toward regaining custody of Aly-sia. She paid for the cost of supervised visits. She paid someone to transport her to and from visits and to and from court hearings. She paid for a drug and alcohol assessment recommended by DCS. She paid for parenting classes. She attempted to obtain reliable transportation and establish a stable home.28 She was in the midst of a four-day trial on the dependency and neglect petition and paying attorney’s fees incurred in that litigation. Mother used all of these funds in an attempt to comply with the responsibilities established by DCS and by the courts so that she could be reunited with Alysia. Mother was aware that the Mitchells were financially stable and that Alysia’s needs were being met. The Mitchells had previously informed her that they could provide for Alysia without monetary support from Mother. We also note that Mother had never been advised of the criteria and procedures for terminating her parental rights or the definition of abandonment.
*572We find the facts of this case quite similar and comparable to the facts in In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn.2007). In that case, a Chinese couple placed their four-week-old child in temporary foster care while they attempted to regain financial stability. Id. at 797. A year later, they filed a petition seeking to regain custody of the child from the foster parents. Id. at 800. During these proceedings, the parents went four months without visiting the child due to the animosity between the parties and prior police involvement. Id. at 801-802. The foster parents filed a petition to terminate the parental rights of the parents on the ground of abandonment by willful failure to visit. Id. at 802. The supreme court held that the trial court erred in finding a willful failure to visit “because the undisputed evidence show[ed] that there was animosity between the parties and that the parents were actively pursuing custody of [the child] through legal proceedings during the four-month period immediately preceding the filing of the petition for termination of parental rights[.]” Id. at 796. The court held that the evidence before it did not support a finding that the parents “intentionally abandoned” the child. Id. at 810.
Although the case befox-e us involves a parent’s failure to support rather than failure to visit during litigation, we believe the holding of A.M.H. on the issue of willful or intentional abandonment is instructive. Hei'e, Mother was actively pursuing litigation to regain custody of Alysia throughout the four-month period, and she was spending a substantial portion of her limited financial resources to do the things that DCS and the juvenile court instructed her to do. The evidence does not support a finding that Mother willfully or “intentionally abandoned” Alysia.
“As a question of law, the trial court’s ruling that the facts of this case sufficiently support the termination ground of willful abandonment [is] reviewed de novo with no presumption of correctness.” In re Adoption of A.M.H., 215 S.W.3d at 810. “To prove the ground of abandonment, a petitioner must establish by clear and convincing evidence that a parent who failed to visit or support had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not doing so.” In re Adoption of Angela E., 402 S.W.3d at 640. “Clear and convincing evidence” has been defined as “evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Id. (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002)). It produces a firm belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be established. In re Audrey S., 182 S.W.3d at 861. The evidence in this case falls short of meeting that standard. The evidence presented by the Mitchells simply does not produce a firm belief or conviction, in our minds, that Mother, during the four month period, had the capacity to support Alysia, made no attempt to do so, and had no justifiable excuse for not doing so. We hold that the evidence in this case does not support a finding that Mother intentionally abandoned Alysia, and we therefore reverse the trial court’s finding that this ground for termination was proven by clear and convincing evidence.
2. Substantial Noncompliance with a Permanency Plan
The next ground for termination alleged in the Mitchells’ petition is found in Tennessee Code Annotated section 36 — 1— 113(g)(2) and applies when “[t]here has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan pur*573suant to the provisions of title 37, chapter 2, part 4.” Tennessee Code Annotated section 37-2-402(9) defines a “permanency plan” as “a written plan for a child placed in foster care with the department of children’s services or in the care of an agency as defined in subdivision (3) and as provided in„§ 37-2-403.” Here, Alysia was not placed in foster care with DCS or in the care of an agency. Mother signed a “noncustodial” plan on the same date that she signed the power of attorney, and she signed a “family permanency plan” just days before DCS closed it case. However, these plans do not meet the statutory definition of a permanency plan. Because this ground for termination only applies when a parent fails to comply with “the statement of responsibilities in a permanency plan pursuant to the provisions of title 37, chapter 2, part 4,” Tenn. Code Ann. § 36-1113(g)(2), we find it inapplicable to this case. Cf. In re Kaleb N.F., 2013 WL 1087561, at *21 (refusing to apply the ground of substantial noncompliance with a permanency plan when the child was “safety-placed” with a neighbor, and the parent signed a “Family Services Plan” with DCS that was not the type of “permanency plan” that could servé as the basis for terminating parental rights).
In any event, however, we find that Mother substantially complied with the responsibilities set forth in the plans, with little to no assistance from DCS. She was required to become drug-free, take an alcohol and drug assessment and drug screens, maintain contact with DCS, obtain legal income, maintain stable housing, and call and visit Alysia. We agree with Ms. Reed’s opinion that, for the most part, Mother completed what DCS. asked of her. Mother continued her attempts to comply with the plan, at her own expense, even after DCS closed its case. For all these reasons, we find no clear and convincing evidence of substantial noncompliance with a permanency plan.29
3. Persistent Conditions
The Mitchells’ petition to terminate Mother’s parental rights also alleged *574the ground commonly referred to as “persistent conditions” found in Tennessee Code Annotated section 36 — 1—113(g)(3). This ground for termination exists when:
The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child’s safe return to the care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship greatly diminishes the child’s chances of early integration into a safe, stable and permanent home[.]
TenmCode Ann. § 36 — 1—113(g)(3). In order to terminate parental rights, there must be clear and convincing evidence of each of these elements. In re Valentine, 79 S.W.3d at 550.
Considering the unique circumstances of the case before us, we find the ground of persistent conditions inapplicable. The first prerequisite for the applicability of this ground is that “[t]he child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months.” TenmCode Ann. § 36-1 — 113(g)(3). Because the statute refers to the original “conditions which led to the child’s removal” and to “other conditions” which in all reasonable probability would cause a child to be subjected to “further abuse and neglect,” Tenn.Code Ann. •§ 36-1 — 113(g)(3) (emphasis added), we have held that this ground for termination applies “only where the prior court order of removal was based on a judicial finding of abuse or neglect.”30 In re Audrey S., 182 S.W.3d at 872. Here, the only judicial finding of dependency and neglect was by the juvenile court, and that finding was set aside by the circuit court. This Court affirmed the circuit court’s decision to dismiss the petitions for dependency and neglect. The Mitchells do not cite any authority for the notion that an erroneous judicial finding of dependency and neglect, which is later reversed, can serve as the basis for terminating parental rights on the ground of persistent conditions. In fact, we would be unable to find the persistence of “conditions which led to the child’s removal or other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect,” TenmCode Ann. § 36-1-113(g)(3)(emphasis added), when we have previously held that Alysia was not subject to conditions that rendered her dependent or neglected in the first place. Because there was never a valid finding of dependency and neglect in this case, we conclude *575that the Mitchells cannot rely on the ground of persistent conditions.
4. Risk of Substantial Harm
The final ground for termination asserted by the Mitchells was that returning the child to Mother would pose a risk of substantial harm, pursuant to Tennessee Code Annotated section 36-l-113(g)(9)(A)(v). The trial court’s final order did not specifically analyze this ground for termination, but the Mitchells ask this Court to review the facts and determine whether this ground was proven. As discussed above, the grounds listed in subsection (g)(9) cannot be used as a basis for terminating the parental rights of a biological parent, such as Mother. Therefore, we find this ground inapplicable despite the lack of findings by the trial court.
Because we conclude that there are no grounds for terminating Mother’s parental rights, we do not reach the best interest of the child analysis.
B. Proceedings on Remand
“When [an appellate court] reverses a lower court’s termination of parental rights in a contest between parents and non-parents for custody, we usually remand the case to the trial court for the preparation and implementation of a plan to return custody of the child to the parent.” In re Adoption of A.M.H., 215 S.W.3d at 811. The authorization of temporary guardianship Mother executed in favor of the Mitchells expired by its terms on January 1, 2011. Because Mother’s voluntary relinquishment of custody was entered as a temporary measure with the full intent that custody would be returned to her, she is entitled to superior rights to custody when compared to the Mitchells as non-parents. See id. at 811-12. With regard to the proceedings that should take place on remand, we again find guidance in the supreme court’s decision in In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn.2007). There, the daughter of the Chinese couple had been in the custody of the foster parents since she was an infant. Legal proceedings began when she was one year old, and by the time of the proceedings before the supreme court, the child had been in the custody of the foster parents for more than seven years. Six of those years elapsed after the parents’ first unsuccessful legal filing to regain custody. Id. at 796-97. During the proceedings before the trial court, a clinical psychologist was appointed to evaluate the child who, at that time, had not seen her parents in over a year. He reported that the child considered the foster parents her “psychological parents” and concluded that a child who experiences loss in early childhood is at a greater risk of developing serious psychological disorders. Id. at 803-804. After the supreme court reversed the trial court’s decision to terminate the parents’ parental rights, it addressed who was entitled to custody of the child on remand. The court explained:
Under the superior rights doctrine, “a natural parent may only be deprived of custody of a child upon a showing of substantial harm to the child.” In re Askew, 993 S.W.2d 1, 4 (Tenn.1999). Therefore, the determination of a custodial dispute between a parent and a non-parent rests on a determination of whether there is substantial harm threatening a child’s welfare if the child returns to the parents. Only then may a court find a sufficiently compelling justification for the infringement of the parents’ fundamental right to raise a child as they see fit. See id. at 3.
Here, the only evidence of substantial harm arises from the delay caused by the protracted litigation and the failure of the court system to protect the par*576ent-child relationship throughout the proceedings. Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers cannot constitute the substantial harm required to prevent the parents from regaining custody.31 We have previously rejected the contention that when a child has been in the custody of a non-parent for a significant period of time, a lesser standard may be applied in determining whether parental rights may be terminated. In re Swanson, 2 S.W.3d [180,] 188 n.13 [(Tenn. 1999)]. “Such a standard would increase the likelihood for delaying cases in order that the child remain” in the custody of the non-parent. Id. The same reasoning applies in this situation.
Additionally, we note that the testimony concerning the general conditions in China is not relevant to a finding of substantial harm. Financial advantage and affluent surroundings simply may not be a consideration in determining a custody dispute between a parent and a non-parent. See Hawk [v. Hawk], 855 S.W.2d [573,] 582 [ (Tenn. 1993) ] (“[M]ere improvement in quality of life is not a compelling state interest and is insufficient to justify invasion of Constitutional rights.”) (internal quotation marks and citation omitted). The evidence at trial showed that the parents have overcome many obstacles to achieve financial stability and are ably taking care of their other two children. Given the lack of evidence of a threat of substantial harm to A.M.H. if she is returned to her parents, we conclude that physical custody of A.M.H. must be returned to the parents.
Id. at 812-13. Having found that the trial court erred in terminating the parents’ parental rights, the supreme court dismissed the termination petition, reinstated the parents’ parental rights, vacated the juvenile court and chancery court orders concerning visitation, and designated the current custody and guardianship orders as temporary in nature. The court directed the juvenile court on remand “to consider, prepare, and implement a plan to resolve the pending custody matter with a view toward reunification of A.M.H. with her natural parents [] in a manner that minimizes trauma to the child.” Id.
In Alysia’s case, the final orders in the dependency and neglect proceedings held that the juvenile court was not authorized to grant disposition of custody to the Mitchells and that there was no basis for a finding of dependency and neglect. Accordingly, the circuit court held that reunification with Mother was appropriate, and, finding the case analogous to A.M.H., the circuit court likewise instructed the juvenile court to “consider, prepare and implement a plan to resolve the pending custody matter with a view toward reunification of the child ... with her Mother, Kathryn S[.], in a manner that minimizes trauma to said child.” On remand, however, the juvenile court appeared extremely hesitant to reunify Mother and Alysia. This record provides no basis for such hesitation, other than the general concern that exists in all reunifications following a lengthy separation, which is the concern that a change in custody may be difficult for the child. Using the language of the supreme court in A.M.H., we emphasize to the juvenile court that “[e]vidence that [Alysia] will be harmed from a change in custody because she has lived and bonded *577with the [Mitchells]” during the pendency of the litigation does not “constitute the substantial harm required to prevent [Mother] from regaining custody.” Id. at 812. In addition, this young child cannot be the one to decide whether she will visit or be reunited with Mother. See, e.g., Carter v. Carter, No. M2013-00193-COA-R3-CV, 2013 WL 5568360, at *3 (Tenn.Ct.App. Oct. 7, 2013) (“This Court is aware of no authority for permitting a child to have the discretion to decide when and whether to spend time with a parent.”).
We are troubled by the facts of this case and the proceedings to this point. As at least one of our predecessors said, “[t]he termination of parental, rights ... is just as final as a death sentence.” Tennessee Dep’t of Human Services v. Riley, 689 S.W.2d 164, 172 (Tenn.Ct.App.1984) (Nearn, J., dissenting). In this case, DCS found no reason to remove Alysia from Mother. Yet the juvenile court required Mother to have only supervised visitation with her child, when the child was living in a home that had never been inspected with non-family members who, by all indications, were never even subjected to background cheeks.
On appeal, Mother expressed concern that even if this Court reverses the termination of her parental rights and remands the case, once again, for reunification, “the child will not be reunified with mother under the trial court’s authority.” Thereafter, when the Mitchells filed their brief on appeal in their postures as appellees, they attached to their brief a “Final Order of Adoption” indicating that they adopted Alysia by order of the chancery court for Rutherford County on June 9, 2014, while this appeal was pending. The chancery court’s order of adoption recognizes that Mother’s parental rights were terminated and states that “the Juvenile Court- exhorted Plaintiffs to proceed quickly with this adoption.” The order states that Mother was not entitled to notice of the adoption, proceeding because her parental rights were terminated. The order waived the statutory six-month waiting period and immediately granted the adoption and changed Alysia’s first and last name.32 According to Mother, she was unaware of the adoption proceeding until she received the appellees’ brief on appeal with the attached order. She claims that this order “demonstrate^] the lengths that the [Mitchells] will go to usurp the authority of this Honorable Court to obtain their goal.” Furthermore, Mother claims that the juvenile court judge’s decision to encourage an immediate adoption demonstrates that she cannot act impartially in this case. In her reply brief, Mother asked this Court to require the appointment of a special judge to oversee any proceedings on remand.33
As Mother’s attorney conceded at oral argument, she has not filed a motion for recusal pursuant to Tennessee Supreme Court Rule 1013. Rule 1013 expressly provides that “[t]he procedures set out in this Rule shall be employed to determine whether a judge should preside over a case.” Tenn. S.Ct. Rule 1013. Given the mandatory language of this Rule, we de*578cline to consider whether the juvenile court judge should be recused at this june-■ture, but our holding does not preclude Mother from seeking such relief in accordance with that Rule. Moreover, should the juvenile court deny a Tenn. S. Ct. Rule 10B motion for recusal, our ruling does not preclude Mother from seeking an immediate appeal as provided in that rule.
V. Conclusion
For the aforementioned reasons, we remand this matter to the juvenile court for the entry of an order that implements a plan to expeditiously reunite Alysia with her mother. Having found that the trial court erred in terminating Mother’s parental rights, we dismiss the termination petition, reinstate Mother’s parental rights,34 vacate the juvenile court orders concerning visitation, and designate the current custody and guardianship orders as temporary in nature. Costs of this appeal are taxed to the appellees, Mr. and Mrs. Mitchell, for which execution may issue if necessary.
. The portion of the document underlined herein was handwritten in the original in the record.
. By statute, parties to a permanency plan "for any child in foster care” must be provided with a copy of the criteria and procedures for terminating parental rights, including the definitions of "abandonment.” Tenn.Code Ann. § 37-2-403(a)(2)(A). This provision is "designed to inform parents, before they engage in conduct constituting abandonment, of the potential consequences of that conduct.” In re K.C., No. M2005-00633-COA-R3-PT, 2005 WL 2453877, at *10 (Tenn.Ct.App. Oct. 4, 2005). Alysia was not placed in foster care, so DCS did not advise Mother of the criteria and procedures for terminating parental rights.
. Alysia’s half-sister went to stay with Mother’s parents in June 2010, when Alysia went to stay with Charlene.
. Tennessee Code Annotated section 37 — 1— 102(b)(12) lists ten grounds upon which a court may find a child dependent and neglected. Pursuant to subsection (F), a child is dependent and neglected when the child "is in such condition of want or suffering or is under such improper guardianship or control as to injure or endanger the morals or health of such child or others.” Pursuant to subsection (G), a child "[w]ho is suffering from *545abuse or neglect” is a dependent and neglected child.
. Around this time, in February and March 2011, Mother had two more supervised visits with Alysia. At the February visit, Alysia sat in Mother’s lap and seemed comfortable doing so. She allowed Mother to hug and kiss her but did not reciprocate the hugs and kisses, and she "wiped off” one kiss from Mother. At the March visit, however, Alysia smiled and laughed as she played with Mother and did not show any discomfort when Mother initiated affection. Alysia "responded in kind when [Mother] told her that she loved and missed her,” and she "was receptive to giving [Mother] a hug when she asked at the end of the visit.”
. In April 2011, Alysia refused to participate in a supervised visit after she arrived and was told that another individual would be supervising the visit. Alysia said that she wanted to go home and did not want to visit Mother, so she was not required to visit.
Mother had another supervised visit with Alysia on June 9, 2011. When Alysia arrived and was asked about visiting Mother, Alysia said she was ready to go and ran into the visitation room where Mother was waiting. Mother hugged and kissed Alysia and told her how much she loved her, and Alysia said "I love you too.” She did not return Mother's hugs, and she wiped off Mother’s kisses, but she smiled and played with Mother.
. Apparently, the juvenile court had not included Alysia’s father's income and his support obligation in its calculation.
. Mother and Alysia had another supervised visit on July 14, 2011. When Alysia arrived, she said she did not want to visit with Mother. Mrs. Mitchell and the supervisor spoke privately, and Mrs. Mitchell said that Alysia was working with a therapist on expressing herself. According to the supervisor, Mrs. Mitchell said "that if [Alysia] did not want to visit we needed to listen and respect that decision.” The supervisor asked to speak to Aly-sia in private. When he asked Alysia about visiting Mother, Alysia said she was ready and literally ran to the visitation room, where she said, "Mama” and "embraced” Mother. Aly-sia also said she missed Mother. The supervisor returned to inform Mrs. Mitchell of this development, and Mrs. Mitchell "clearly disagreed” with his actions and claimed that he had ignored Alysia.
The next visit was scheduled for August 11, 2011. When Alysia arrived, she said she did not want to visit. The supervisor said "I really want you to have the visit,” and Mrs. Mitchell responded, "you can’t say that.” Alysia was not required to visit with Mother. While Mother was waiting for the visit, however, a process server attempted to serve her with the termination petition, and the Exchange Club called the police. Alysia missed the September 2011 visit due to illness.
. On January 20, 2012, the juvenile court held a hearing on the Mitchells' motion to modify visitation. Because Mother missed the two visits on January 15 and November 3, and did not call at the appointed time on December 24, the court reduced Mother's visitation to "every other weekend for a couple of hours on Saturdays.” However, a written order memorializing this decision was not entered until April 11, 2012. Also on April 11, the court entered a “Supplemental Order for Visitation” stating that a previous order failed to include specific dates for visitation and "therefore it is necessary for this Supplemental Order for Visitation be filed.” The April 11 Supplemental Order was entered nunc pro tunc to February 14, 2012. Therefore, it is not clear whether the first April 11 order was ever followed by the parties.
. Mother and Alysia did complete supervised visits on the four specific dates referenced in the order, for Easter, Spring Break, and the two other days. However, no other visits took place at the Exchange Club thereafter. Mother would later testify that the judge "set no more up after that.” At some point, the Murfreesboro Exchange Club also stopped offering the service of supervising visitation.
. Also during these proceedings, the Mitch-ells filed a petition for contempt against Mother for failure to pay child support and asked the trial court to incarcerate Mother for thirty days. The petition alleged that Mother failed to pay child support for three months while the termination petition was pending. Because the contempt proceeding involved a time period outside the four-month time frame that governs our analysis in this case and because it has not been raised as an issue on appeal, we will not discuss the contempt proceeding further in this opinion.
. The therapist worked at a child advocacy center'and "99 percent” of her work was on child sexual abuse cases. However, she acknowledged that it was not her role to conduct a forensic interview of the half-sister in order to determine whether abuse had in fact occurred.
. Alysia said Mother spanked her with an open hand, and according to Dr. Hanket, Alysia "denied that the spanking left any bruises or marks or pain for an extended period of time."
. Dr. Hanket and the guardian ad litem even discussed the possibility of moving Alysia into foster care if they could prove that the Mitch-ells were coaching her, but Dr. Hanket did not feel that "it rose to that level.”
. Dr. Hanket also skid there "was an issue” regarding whether Mr. and Mrs. Mitchell had possibly "coached [Alysia] into making that allegation” of sexual abuse regarding her half-sister. Dr. Hanket said Alysia continually stated that “she told them; they did not tell her.” But, Dr. Hanket said that Alysia would not "open up” about the accusation or go into detail with her.
. Dr. .Hanket said Alysia's discussion of spanking was a recurrent theme during their therapy, and her description of Mother spanking her "all the time” did not seem realistic. Alysia also told Dr. Hanket that her father spanked her all the time. Dr. Hanket tried to "dig deeper" but “was never able to get past just that she was spanked all the time.” Dr. Hanket was asked whether this raised a "red flag” for her and suggested that, perhaps, someone was telling Alysia that she was spanked. She replied, "I mean, that’s certainly partly why I kept coming back to it.”
. In their briefs on appeal and during oral argument, the parties stated that the termination petition was filed on August 22. From our review of the record, however, it appears that the termination petition was stamped as filed on August 10, and the trial court's letter ruling confirms that the petition was filed on August 10. The parties’ confusion may have arisen due to the fact that the table of contents in the technical record reflects that the petition was filed on August 22.
. We note that the circuit, court trial on the dependency and neglect petition was held over the course of four days between April and June 2011.
. Mr. Mitchell earned a six-figure salary, and the Mitchells had no children.
. As discussed earlier in this opinion, Mother testified that she worked at Rio through the staffing agency from August 8 until September 5, 2011.
. As noted above, Alysia’s half-sister went to live with Mothers parents in June 2010, when Alysia went to stay with Charlene. Mother’s parents adopted the half-sister, but by the time of trial, the half-sister was staying with Mother and her husband every weekend and during the week when Mother was off work.
. This ground for termination states that it applies if "[t]he person has failed, without good cause or excuse, to make reasonable and consistent payments for the support of the child in accordance with the child support guidelines promulgated by the department pursuant to § 36-5-101.” Tenn.Code Ann. § 36-1-113(g)(9)(A)(ii).
. We recognize that the statutory definition of "abandonment'' requires us to focus on the "period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights!.]” Tenn.Code Ann. § 36 — 1—102(1 )(A)(i). However, in determining whether a parent’s conduct was "willful,” it may become necessary in a given case to evaluate events occurring prior to the start of the four month period. Events occurring prior to the four month period may bear on the "willfulness” of the parent’s conduct during the four month period. See In re Alex B.T., No. W2011-00511-COA-R3-PT, 2011 WL 5549757, at *6 (Tenn.Ct.App. Nov. 15, 2011) ("courts often consider events that occurred prior to the relevant period to determine if there was interference with the biological parent's attempts to visit or support the child”); see also In re Keri C., 384 S.W.3d 731, 748- (Tenn.Ct.App.2010) (explaining that the parent’s conduct prior to the four month period is "relevant background and context for the necessarily fact-intensive evaluation” of the parent's conduct during the four month period).
. Mother and her current husband married in December 2012, but they had been in a relationship for nearly three years.
. According to the Mitchells’ brief on appeal, “there is no dispute that [Mother] worked at [the lighting factory] from March 2011 through May 10, 2011, and then June 27 through July 1, 2011 at [the factory where she sprayed bathtubs].”
. The trial court’s letter ruling also discussed testimony from a witness named "Randy Cothan” and said he "appeared before the Court and presented testimony regarding the period of time he resided with the Mother and Father in 2010.” Based on this testimony, the court concluded that Mother and Alysia’s father "squandered resources that could have been utilized to support the child.” The record on appeal contains no testimony by an individual named "Randy ‘ Cothan” at the termination trial. Therefore, we will not consider the trial court’s discussion of this testimony.
. Early in the proceedings, Mother sent packages for Alysia containing clothing that was not new, and the guardian ad litem had a discussion with Mother about sending only appropriate items. After that discussion, Mother sent only new clothing and new shoes to Alysia. At trial, Mother testified that she had “a lot” of clothing for Alysia that she "wasn’t able to give to her at her visits or anything else.” Mother also testified that every time she asked the Mitchells about sending supplies for Alysia, they told her that "she was fine.”
When assessing the willfulness of a parent’s failure to pay child support, we have said that the failure of a child’s foster parents to ask for monetary support, coupled with their "rebuff” of the parent’s inquiry about specific items that were needed, and the parent's provision of in-kind support during visits were "part of the constellation of facts that must be considered to assess willfulness.” In re Kaleb N.F., No. M2012-00881-COA-R3-PT, 2013 WL 1087561, at *23 (Tenn.Ct.App. Mar. 12, 2013).
. We note that in its letter ruling, the trial court found that "Mother has continued to pay rent on a vacant trailer throughout these proceedings, including the period when she failed to provide support for the child.” Mother testified at trial that she was renting a trailer before she moved to the trailer owned by her current husband, and after she moved, she kept her furniture and belongings at the former residence until her lease expired because she could not afford to "buy [her] way out of the lease,” and it was cheaper to continue paying the rent. Accordingly, we do not find that Mother wasted funds on a vacant trailer that she could have used to pay child support.
We have also considered the fact that Mother owned a vacant house trailer throughout these proceedings, where she planned to live when she could find an affordable lot. Mother paid $600 in cash for the tráiler when Alysia still lived with her. Under the circumstances of this case, we find that Mother’s ownership of this asset does not provide clear and convincing evidence that she had the capacity to pay child support and willfully failed to do so. Compare In re Adoption of Angela E., 402 S.W.3d at 639 (finding no clear and convincing evidence of willful failure to support despite the fact that the father was a physician who was in the process of constructing a new home currently, worth $300,000 to $400,000, in which he had invested $600,000, and which was not subject to a lien in any amount).
. The trial court’s letter ruling mentioned that this ground was alleged in the petition. However, it did not analyze the applicability of this ground for termination. After discussing the grounds of abandonment and persistent conditions, the trial court simply stated that “any remaining claims unless specifically addressed are dismissed.” Tennessee Code Annotated section 36-1-113(k) requires trial courts to enter an order making specific findings of fact and conclusions of law no later than 30 days after a termination hearing. Our supreme court has stated that " 'given the importance of establishing the permanent placement of a child who is the subject of a termination of parental rights proceeding, the trial court should include in its final order findings of fact and conclusions of law with regard to each ground presented.' " In re Angela E., 303 S.W.3d 240, 251 (Tenn.2010) (quoting In re D.L.B., 118 S.W.3d 360, 367 (Tenn.2003)). Accordingly, the court of appeals has repeatedly directed trial courts to issue written orders with the requisite findings and conclusions on all grounds whether they have been requested to do so or not. Id. We have routinely remanded contested termination cases to the trial court for failure to make findings of fact and/or conclusions of law. See, e.g., In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *3 (Tenn.Ct.App. Nov. 25, 2003) (remanding because the trial court omitted factual findings underlying its conclusion that grounds for termination did not exist); but see White v. Moody, 171 S.W.3d 187, 192 (Tenn.Ct.App.2004) (declining to vacate a trial court's judgment for inadequate best-interest findings because the case had already been remanded twice, thus prolonging the litigation by three years). In this case, the trial court made no findings regarding substantial noncompliance. However, we have addressed the ground in this opinion because this case has been delayed far too long already, and we find the ground clearly inapplicable regardless of the lack of particularized findings by the trial court.
. The ground of persistent conditions may apply even where the child was not removed from the biological parent by DCS. In re Adoption of AMH, No. W2004-01225-COA-R3-PT, 2005 WL 3132353, at *80 (Tenn.Ct.App. Nov. 23, 2005) rev’d on other grounds 215 S.W.3d 793 (Tenn.2007); In re K.C., No. M2005-00633-COA-R3-PT, 2005 WL 2453877, at *12 (Tenn.Ct.App. Oct. 4, 2005). However, as the Court held in Audrey S., the prior court order removing the child must have been based on a judicial finding of dependency, neglect, or abuse. Therefore, "while it is possible that the persistent conditions ground for termination may apply in cases where the child is not removed by the state, the order directing the change in custody must be prompted by a finding of dependency, neglect, or abuse.” Id. at *81.
. The supreme court noted that such evidence may be relevant to the manner of implementing the transition in custody from the non-parents to the parents and to the possible allowance of visitation with the non-parents.
. Counsel for the Mitchells was questioned about the adoption proceeding during oral argument before this Court. She stated that the Mitchells informed the chancellor about this pending appeal in the termination proceeding, and the chancellor proceeded with the adoption proceeding, without notice to Mother, after cautioning them that "this may get overturned.”
. Mother also asked for an award of attorney's fees "given the course of conduct of the appellees and their counsel.” Finding no statutory or contractual basis for such an award, we decline to award Mother attorney’s fees.
. Reinstatement of Mother's parental rights necessarily requires the subsequent adoption to be set aside, and the Mitchells are directed to take necessary steps to have the adoption set aside, | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283917/ | Justice Devine
delivered the opinion of the Court.
The Texas Citizens Participation Act (TCPA)1 protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them. Tex. Civ. Prac. & Rem. Code §§ 27.001-011. The protection consists of a special motion for an expedited consideration of any suit that appears to stifle the defendant’s communication on a matter of public concern. Id. § 27.003. In reviewing that motion, the trial court is directed to dismiss the suit unless “clear and specific evidence” establishes the plaintiffs’ “prima facie case.” -Id. § 27.005(c). When applying the Act’s requirement for clear and specific evidence, however, the courts of appeals disagree about the role of circumstantial evidence.
Some courts hold that only direct evidence is relevant when considering a motion to dismiss under the Act, while others have concluded that relevant circumstantial evidence must also be considered. The court of appeals here considered circumstantial evidence, and we agree that clear and specific evidence under the Act includes relevant circumstantial evidence. 411 S.W.3d 530, 546 (Tex.App.-Fort Worth 2013). We further agree, generally, with the court of appeals’s disposition of the proceedings below and accordingly deny all relief requested here.
I. Background and Procedural History
Steven and Shyla Lipsky own several acres in Weatherford, Texas. In 2005 they drilled a well on their property to a depth of about two hundred feet to provide water to a cabin and boathouse. In 2009 they finished a house on the property, connecting the well to their new home. That same year, Range Resources Corporation and Range Production Company drilled two gas wells about a half-mile from the Lipskys’ property.
A few months after moving into their new home, the Lipskys experienced mechanical problems with their well. They contacted a well-servicing company, which identified the problem as “gas locking,” a condition typically associated with an excess of natural gas in the ground water. A submersible pump’s ability to transport water from a well can be affected when too much gas is in the water.
*585Concerned about the gas in their well water, the Lipskys contacted local health officials who referred them to Alisa Rich, an environmental consultant with Wolf Ea: gle Environmental. After tests, Rich confirmed the presence of methane and other gases in the well. About this time, Lipsky made a video of himself lighting gas escaping from a garden hose attached to his well. To produce this effect, Lipsky connected the hose to a vent on his water well. He shared his video with the Environmental Protection Agency (EPA) and the media, which reported on the flammable nature of Lipskys water well. He also complained about the gas in his well to the Texas Railroad Commission. Lipskys own investigation led him to believe that Range, the oil and gas operator closest to his property, had some responsibility for contaminating his ground water.
Both the EPA and Railroad Commission began investigating Lipsky’s complaints. The EPA initially concluded that Range’s production activities had contributed to the gas in the Lipskys’ well water and that the situation could be hazardous to health and safety. The federal agency ordered Range to provide the Lipskys potable water and to install explosivity meters at their property.
The Railroad Commission completed its investigation a few months later. Although invited to participate in the Commission’s evidentiary hearing, the Lipskys declined. The Commission thereafter concluded that Range’s operations in the area were not the source of the contamination. Lipsky immediately denounced the Railroad Commission’s decision in the media and continued to blame Range, pointing to the EPA’s action and his expert’s opinions.
The Lipskys thereafter sued Range and others involved in developing their residential area. As to Range, they alleged that its fracking operations near their property were negligent, grossly negligent, and a nuisance. They asserted that Range’s operations contaminated their water well, causing the water to become flammable and their home uninhabitable. Range answered the suit and moved to dismiss all claims as an improper collateral attack on the Railroad Commission’s ruling. Range also filed a counterclaim against the Lipskys and a third-party claim against Rich (the Lipskys’ environmental consultant) alleging defamation, business disparagement, and a civil conspiracy. The Lipskys and Rich responded by moving to dismiss Range’s counter-attack as an improper attempt to suppress their First Amendment rights guaranteed under the Constitution and protected by the Texas Citizens Participation Act. Tex. Civ. Prac. & Rem. Code § 27.005.
The trial court granted Range’s motion to dismiss, agreeing that the Lipskys’ claims were an improper collateral attack on the Commission’s determination. The court also declined to dismiss Range’s claims against the Lipskys and Rich by denying their motions to dismiss under the Texas Citizens Participation Act. The Lipskys and Rich attempted an interlocutory appeal from this latter ruling, but the court of appeals dismissed the appeal for want of jurisdiction.2 See Lipsky v. Range *586Prod. Co., No. 02-12-00098-CV, 2012 WL 3600014, at *1 (Tex.App.-Fort Worth Aug. 23, 2012, pet. denied) (mem. op.). The court, however, allowed the challenge to proceed as an original proceeding. 411 S.W.3d at 536. Meanwhile, the EPA withdrew its administrative order against Range without explanation. See Joint Stipulation of Dismissal Without Prejudice, United States v. Range Prod. Co., No. 3:11-CV-00116-F (N.D.Tex. Mar. 30, 2012).
The court of appeals thereafter determined that the Texas Citizens Participation Act required the dismissal of Range’s claims against Lipsky’s wife, Shy-la, and his environmental consultant, Rich, and that the trial court had accordingly abused its discretion in not dismissing those claims. 411 S.W.3d at 554. The court further determined that the TCPA did not similarly require dismissal of all of Range’s claims against Lipsky.3 Id. at 546. The court of appeals granted mandamus relief to Lipsky’s wife and consultant, while denying similar relief to Lipsky, prompting both Lipsky and Range to seek mandamus relief in this Court. In their respective petitions, Lipsky argues that the TCPA required the trial court to dismiss all claims against him also, while Range argues that the .TCPA did not require the dismissal of any claims. The Lipsky petition accordingly concludes that the trial court abused its discretion in failing to grant his TCPA motion. The Range petition, on the other hand, concludes that the court of appeals abused its discretion in granting mandamus relief to Lipsky’s wife, his environmental consultant, and Lipsky himself (in part) because the TCPA did not require it.
II. The Texas Citizens Participation Act
As already mentioned, the Texas Citizens Participation Act or TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. See House Comm, on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a special procedure for the expedited dismissal of such suits. A two-step process is initiated by motion of a defendant who believes that the lawsuit responds to the defendant’s valid exercise of First Amendment rights. Under the first step, the burden is initially on the defendant-movant to show “by a preponderance of the evidence” that the plaintiffs claim “is based on, relates to, or is in response to the [movant’s] exercise of:. (1) the right of free speech;4 (2) the right to petition;5 or (3) the right of association.”6 *587Tex. Civ. Prac. & Rem. Code § 27.005(b). If the movant is able to demonstrate that the plaintiffs claim implicates one. of these rights, the second step shifts the burden to the plaintiff to “establish[ ] by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005(c).
In determining whether the plaintiffs claim should be dismissed, the court is to consider the pleadings and any supporting and opposing affidavits. Id. § 27.006(a). Moreover, the motion to dismiss ordinarily suspends discovery, id. § 27.003(c), although the statute leaves the possibility for a court to order limited discovery for “good cause” as it relates to the motion itself, id. § 27.006(b). Within defined time limits, the court must then rule on the motion and must dismiss the plaintiffs claim if the defendant’s constitutional rights are implicated and the plaintiff has not met the required showing of a prima facie case. Id. § 27.005. The determination is to be made promptly, ordinarily within 150 days of service of the underlying legal action. See id. §§ 27.003(b), .004(a), .005(a).
In this proceeding, only the second step is at issue-the question being whether the plaintiff has met its burden of “establishing] by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005(c). The parties disagree about the evidentiary burden this language imposes. Lipsky argues that the phrase “clear and specific evidence” elevates the evidentiary standard, requiring Range to produce direct evidence as to each element of its claim. Range, on the other hand, argues that circumstantial evidence and rational infer-enees may be considered by the court in determining whether clear and specific evidence exists and that the TCPA’s prima-facie-case requirement does not impose a higher or unique evidentiary standard. The dispute mirrors a similar disagreement among the courts of appeals.
Some courts, focusing on the requirement of “clear and specific evidence,” have interpreted the statute to require a heightened evidentiary standard, unaided by inferences. See Shipp v. Malouf, 439 S.W.3d 432, 439 (Tex.App.-Dallas 2014, pet. denied); Young v. Krantz, 434 S.W.3d 335, 342-43 (Tex.App.-Dallas 2014, no pet.); KBMT Operating Co. v. Toledo, 434 S.W.3d 276, 282 (Tex.App.-Beaumont 2014, pet. granted); Farias v. Garza, 426 S.W.3d 808, 814 (Tex.App.-San Antonio 2014, pet. filed); Rio Grande H2O Guardian v. Robert Muller Family P’ship, Ltd., No. 04-13-00441-cv, 2014 WL 309776, at *2 (Tex.App.-San Antonio Jan. 29, 2014, no pet.) (mem. op.); Sierra Club v. Andrews Cnty., Tex., 418 S.W.3d 711, 715 (Tex.App.-El Paso 2013, pet. filed); Alphonso v. Deshotel, 417 S.W.3d 194, 198 (Tex.App.-El Paso 2013, no pet.); Fitzmaurice v. Jones, 417 S.W.3d 627, 632 (Tex.App.-Houston [14th Dist.] 2013, no pet.); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex.App.-Houston [14th Dist.] 2013, pet. denied). Implicit in these decisions is the assumption that circumstantial evidence is not sufficiently “clear and specific” to satisfy the statutory burden. Other courts, focusing on the prima-facie-ease language, have concluded that the statute permits the court to draw rational inferences from circumstantial evidence when determining whether the plaintiff has met its threshold factual burden. See Schimmel *588v. McGregor, 438 S.W.3d 847, 855 (Tex.App.-Houston [1st Dist.] 2014, pet. denied); Combined Law Enforcement Ass’ns of Tex. v. Sheffield, No. 03-13-00105-CV, 2014 WL 411672, at *10 (Tex.App.-Austin Jan. 31, 2014, pet. filed) (mem.op.); Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex.App.-Houston [1st Dist.] 2013, pet. denied); In re Lipsky, 411 S.W.3d at 539.
The statute does not define “clear and specific evidence,” but the courts that have interpreted the phrase to impose a heightened evidentiary standard have purportedly found support in the case law. Those courts invariably rely on two cases predating the Act for the proposition that “clear and specific evidence” means “evidence unaided by presumptions, inferences or in-tendments.” See, e.g., Sierra Club, 418 S.W.3d at 715 (citing McDonald v. Clemens, 464 S.W.2d 450, 456 (Tex.Civ.App.-Tyler 1971, no writ) and S. Cantu & Son v. Ramirez, 101 S.W.2d 820, 822 (Tex.Civ.App.-San Antonio 1936, no writ)); Rehak Creative Servs., 404 S.W.3d at 726 (relying on same two cases).
Both cases involved fraud claims. In McDonald, the trial court granted summary judgment on the fraud claim, and the appellate court affirmed, concluding no material fact issue existed as to one or more of the claim’s essential elements. McDonald, 464 S.W.2d at 456. The court noted that the summary judgment could not be reversed on the presumption of fraud but rather required the existence of a fact issue raised by more than mere conjecture:
As to appellants’ claim of fraud, the burden was upon them to raise a fact issue as to its existence by competent evidence. This burden could not be discharged in the absence of a showing that all of the elements of actionable fraud were present. Mere conjecture or evidence which does not necessarily tend to that conclusion is insufficient. Charges of fraud must be established by clear and specific evidence unaided by presumptions, inferences or intendments. Until or unless fraud is proved, the presumption is in favor of the fairness of a transaction and specific acts of fraud must be both alleged and proved by appellants in response to appellee’s motion for summary judgment.
Id. (emphasis added).
The context establishes that the court was not attempting to define “clear and . specific evidence” to exclude circumstantial evidence or to require only direct evidence to create a fact question. Such a definition would, of course, have been erroneous “[s]ince intent to defraud is not susceptible to direct proof [and] invariably must be proven by circumstantial evidence.” Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986). Similarly, the court in S. Cantu & Son did not define “clear and specific evidence” to exclude circumstantial evidence but instead said that fraud could not be inferred from the “vague, indefinite, and inconclusive” testimony of interested witnesses.7
Circumstantial evidence can, -of course, be vague, indefinite, or inconclusive, but it is not so by definition. Rather, *589it is simply indirect evidence that creates an inference to establish a central fact. See Felker v. Petrolon, Inc., 929 S.W.2d 460, 463-64 (Tex.App.-Houston [1st Dist.] 1996, writ denied). It is admissible unless the connection between the fact and the inference is too weak to be of help in deciding the case. Tex. R. Evid. 401-02. The common law has developed several distinct evidentiary standards, but none of these standards categorically rejects the use of circumstantial evidence.
The applicable evidentiary standard is generally determined by the nature of the case or particular claim. Criminal cases require proof beyond a reasonable doubt, a near certainty, whereas civil cases typically apply the preponderanee-of-the-evidence standard, that is, a fact-finder’s determination that the plaintiffs version of the events is more likely than not true. Some civil claims, including some defamation claims, elevate the evidentiary standard to require proof by clear-and-convincing evidence. Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex.2002). This standard requires that the strength of the plaintiffs proof produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations. Id. at 597.
Clear and specific evidence is not a recognized evidentiary standard. Although it sounds similar to clear and convincing evidence, the phrases are not legally synonymous. The Legislature well understands the elear-and-convincing-evidence standard and uses that standard when it so intends. See, e.g., Tex. Civ. Prac. & Rem. Code §§ 18.033(c), 41.001(2), 41.003(b), (c), 134A.004(b), 147.122.8 But even were we to assume that the Legislature intended to apply the elear-and-convincing standard in this statute, the statute would still not exclude circumstantial evidence.
All evidentiary standards, including clear and convincing evidence, recognize the relevance of circumstantial evidence. In fact, we have acknowledged that the determination of certain facts in particular cases may exclusively depend on such evidence. See, e.g., Bentley, 94 S.W.3d at 596 (noting, in a defamation case, that claims involving an element of a defendant’s state of mind “must usually [ ] be proved by circumstantial evidence”). Circumstantial evidence may be used to prove one’s case-in-chief or to defeat a motion for directed verdict, and so it would be odd to deny its use here to defeat a preliminary motion to dismiss under the TCPA. That the statute should create a greater obstacle for the plaintiff to get into the courthouse than to win its case seems nonsensical. See Carreras v. Marroquin, 339 S.W.3d 68, 73 (Tex.2011) (noting that we “interpret statutes to avoid an absurd result”).
The TCPA’s purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits. See Tex. Civ. Prac. & Rem. Code § 27.002 (balancing “the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law” against “the rights of a person to file meritorious lawsuits for demonstrable injury”). To accomplish its purpose, the Act endorses a summary process, requiring judicial review of the pleadings and limited evidence, typically within 150 days following service. Tex. Civ. Prac. & Rem. Code *590§§ 27.003(b), .004(a), .005(a); Jennings, 378 S.W.3d at 526. To defeat an appropriate TCPA motion to dismiss, the opponent must establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c).
As discussed, neither the Act nor the common law provides a definition for “clear and specific evidence.”9 Words and phrases that are not defined by statute and that have not acquired a special or technical meaning are typically given their plain or common meaning. FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 633 (Tex.2008). The words “clear” and “specific” in the context of this statute have been interpreted respectively to mean, for the former, “ ‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the latter, “ ‘explicit’ or ‘relating to a particular named thing.’ ” See KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex.App.-Houston [1st Dist.] 2013, pet. denied) (quoting Black’s Law Dictionary 268, 1434 (8th ed.2004)).
The statute, however, requires not only “clear and specific evidence” but also a “prima facie case.” In contrast to “clear and specific evidence,” a “prima facie' case” has a traditional legal meaning. It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207, 209 (1940). It is the “minimum quantum of evidence necessary to support a rational inference that the. allegation of fact is true.” In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.2004) (per curiam) (quoting Tex. Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex.App.-El Paso 1994, writ denied)).
The TCPA’s direction that a claim should not be dismissed “if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question” thus describes the clarity and detail required to avoid dismissal. Tex. Civ. Prac. & Rem. Code § 27.005(c) (emphasis added). Courts are further directed to make that determination early in the proceedings, typically on the basis of the pleadings and affidavits. But pleadings that might suffice in a case that does not implicate the TCPA may not be sufficient to satisfy the TCPA’s “clear and specific evidence” requirement.
Our procedural rules merely require that the pleadings provide' fair notice of the claim and the relief sought such that the opposing party can prepare a defense. See Tex. R. Civ. P. 45 & 47. Even the omission of an element is not fatal if the cause of action “may be reasonably inferred from what is specifically stated.” Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993). Moreover, under notice pleading, a plaintiff is not required to “set out in his pleadings the evidence upon which he relies to establish his asserted cause of action.” Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494-95 (Tex.1988). But the TCPA requires that on motion the plaintiff present “clear and specific evidence” of “each essential element.”
Fair notice of a claim under our procedural rules thus may require something less than “clear and specific evidence” of each essential element of the claim. Because the Act requires more, mere notice pleading — that is, general allegations that merely recite the elements of *591a cause of action — will not suffice. Instead, a plaintiff must provide enough detail to show the factual basis for its claim. In a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss.
Though the TCPA initially demands more information about the underlying claim, the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence. In short, it does not impose a higher burden of proof than that required of the plaintiff at trial. We accordingly disapprove those cases that interpret the TCPA to require direct evidence of each essential element of the underlying claim to avoid dismissal. With that understanding of the Act’s requirements, we turn to pleadings and evidence in this case.
III. Steven Lipsky’s Petition
Range sued Steven Lipsky, alleging defamation, business disparagement, and civil conspiracy. The court of appeals found no evidence of a civil conspiracy, but some evidence of the other claims, concluding “that the trial court did not abuse its discretion by denying Steven Lipsky’s motion to dismiss Range’s defamation and business disparagement claims.” 411 S.W.3d at 547. Contrary to the court of appeals’s opinion, Lipsky argues that no clear and specific evidence shows he defamed Range or disparaged its business. He concludes then that the trial court should have granted his motion to dismiss pursuant to the TCPA.
Business disparagement and defamation are similar in that both involve harm from the publication of false information. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex.2014). The respective torts, however, serve different interests. Whereas “defamation actions chiefly serve to protect the personal reputation of an injured party, [ ] a business disparagement claim protects economic interests.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex.2003). Business disparagement or “injurious falsehood applies to derogatory publications about the plaintiffs, economic or commercial interests.” 3 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 656, at 615 (2d ed.2011). The tort does not seek to redress dignitary harms to the business owner, but rather redresses aspersions cast on the business’s commercial product or activity that diminishes those interests. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766-67 (Tex.1987).
A corporation or other business entity that asserts a claim for defamation may assert an additional or alternative claim for business disparagement if it seeks to recover economic damages for injury to the business. Burbage v. Burbage, 447 S.W.3d 249, 261 n.6 (Tex.2014). Impugning one’s reputation is possible without disparaging its commercial interests and vice versa. Depending on the circumstances, then, a plaintiff may have a claim for defamation, or for business disparagement, or both.10
*592
A. Business Disparagement (Injurious Falsehood)
To defend against Lipsky’s dismissal motion, Range’s burden under the TCPA was to “establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c). “To prevail on a business disparagement claim, a plaintiff must establish that (1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages11 to the plaintiff.” Forbes, 124 S.W.3d at 170 (citing Hurlbut, 749 S.W.2d at 766). Lipsky contends that the trial court should have dismissed Range’s business-disparagement claim because no evidence established that his remarks caused Range any special or economic damages.
The court of appeals disagreed. It concluded that an affidavit from Range’s senior vice president was sufficient proof of Range’s damages, at this stage, to defeat Lipsky’s motion to dismiss. See 411 S.W.3d at 547 (noting that the affidavit “provided the' trial court with minimum but sufficient facts, at this stage , in the litigation, to raise a rational inference, and therefore serve as prima facie proof’ of Range’s losses).
Range’s vice president averred in general terms that Lipsky’s statements caused Range to suffer “direct pecuniary and economic losses and costs, lost profits, loss of its reputation,-and loss of goodwill in the communities in which it operates ... in excess of three million dollars.”12 The court of appeals concluded that the affidavit, “by stating that Range had suffered direct economic losses and ‘lost profits,’ ” was sufficient “to raise a rational inference ... that Range lost ‘trade or other dealings’ as a result of statements made by Steven Lipsky.” Id. (quoting Hurlbut, 749 S.W.2d at 767).
Lipsky argues, however, that the affidavit is conclusory and therefore insufficient to satisfy the TCPA’s requirement of “clear and' specific evidence,” and we agree. Bare, baseless opinions do not create fact questions, and neither are they a sufficient substitute for the clear and specific evidence required to establish a prima facie case under the TCPA. See Elizondo *593v. Krist, 415 S.W.3d 259, 264 (Tex.2013) (“Conclusory statement[s] ... [are] insufficient to create a question of fact to defeat summary judgment.”); City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex.2009) (holding conclusory, baseless testimony to be no evidence). Opinions must be based on demonstrable facts and a reasoned basis. Elizondo, 415 S.W.3d at 265. We accordingly disagree with the court of appeals that general averments of direct economic losses and lost profits, without more, satisfy the minimum requirements of the TCPA. Although the affidavit states that Range “suffered direct pecuniary and economic losses,” it is devoid of any specific facts illustrating how Lipsky’s alleged remarks about Range’s activities actually caused such losses. See, e.g., Burbage, 447 S.W.3d at 262 (noting that a jury could not reasonably infer that cancellations for a funeral home business were caused by defamation when any number of reasons could have caused the cancellations).
Range, however, asserted not only business disparagement but also defamation. Corporations and other business entities have reputations that can be libeled apart from the businesses they own, and such entities can prosecute an action for defamation in their own names. See Waste Mgmt. of Tex., 434 S.W.3d at 147, 150-51 & n.35 (recognizing that a corporation, as owner of a business, may sue for defamation that injures its reputation). Moreover, a corporation or other business entity asserting a claim for business disparagement may also assert additional or alternative claims for defamation to recover non-economic general damages such as injury to reputation that are not recoverable on a business-disparagement claim. Id. at 155-156 & n.81. We turn then to Range’s defamation claim and Lipsky’s complaint that the trial court should have also dismissed it.
B. Defamation
Defamation’s elements include (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998); see also Waste Mgmt. of Tex., 434 S.W.3d at 146 n.7. The status of the person allegedly defamed determines the requisite degree of fault. A private individual need only prove negligence, whereas a public figure or official must prove actual malice. WFAA-TV, Inc., 978 S.W.2d at 571. “Actual malice” in this context means that the statement was made with knowledge of its falsity or with reckless disregard for its truth. Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex.2000). Finally, the plaintiff must plead and prove damages, unless the defamatory statements are defamatory per se. Waste Mgmt. of Tex., 434 S.W.3d at 162 n.7.
Defamation per se refers to statements that are so obviously harmful that general damages may be presumed. Hancock, 400 S.W.3d at 63-64. General damages include non-economic losses, such as loss of reputation and mental anguish. Id. Special damages, on the other hand, are never presumed as they represent specific economic losses that must be proven. Id. at 65-66. And even though Texas law presumes general damages when the defamation is per se, it does not “presume any particular amount of damages beyond nominal damages.” Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex.2012) (per curiam). Any award of general damages that exceeds a nominal sum is thus reviewed for evidentiary support. Burbage, 447 S.W.3d at 259; see also Bentley, 94 S.W.3d at 606-07 (criticizing award - of mental anguish damages in defamation per *594se case because it was excessive and beyond any figure the evidence supported).
(1) The Falsehoods
Lipsky complains that the trial court should have dismissed the defamation claim against him because Range failed to establish the defamatory nature of his alleged statements. The court of appeals listed the following published statements as potentially defamatory to Range:
• Range’s drilling went under the Lip-skys house while omitting that Range’s wellbore was over a mile below the surface;
• the Lipskys’ well no longer pumped water (when it actually could);
• the Lipskys had found unnatural detergents in the water;
• the Lipskys could not live in their • home (although they continued to do so);
• Range would eventually “own” the Lipskys’ home (which implied that Range was responsible for contaminating the Lipskys’ water source and would be liable for doing so);
• Range was politically powerful and had prevailed with the Railroad Commission through corruption, even though the Railroad Commission had considered extensive evidence to support its deci- ' sion and the Lipskys had not participated in the Railroad Commission’s hearing;
• the Lipskys could literally light their water on fire, and the water was unsafe to drink;
• Range’s drilling operations contaminated the water (even though the Railroad Commission had found that the operations had not); and
• Range treated the Lipskys like “criminals.”
411 S.W.3d at 545 (footnotes omitted). Lipsky argues that these statements are not defamatory either because they are true, do not explicitly refer to Range, are unverifiable statements of opinion, or are statements subject to a bona fide scientific dispute. Lipsky made these statements to the media and to his family and friends, as well as to the EPA, the Parker County Appraisal Review Board, and the Texas Railroad Commission.
“It is well settled that the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person’s perception of the entirety of a publication and not merely on individual statements.” Bentley, 94 S.W.3d at 579 (internal quotation marks omitted). While some of the statements may, in isolation, not be actionable, in looking at the entirety of Lipsky’s publications the gist of his statements were that Range was responsible for contaminating his well water and the Railroad Commission was unduly influenced to rule otherwise.
The Commission’s investigation coincided with the EPA’s, beginning in August 2010, after Lipsky complained to the Abilene District Office about gas in his water well. That month, the Commission collected water and gas samples from the Lip-skys’ well, asked Range to test the mechanical integrity of its wells, and further obtained a gas analysis from Range’s operations for comparison with the gas in the Lipskys’ well. After comparing the respective gas samples, the Abilene District Office found them to have “distinct characteristics,” but the Commission nevertheless continued its investigation.
Meanwhile, the EPA decided that Range’s two gas wells were an “imminent and substantial endangerment to a public drinking water aquifer,” and issued an Emergency Administrative Order to that effect on December 7, 2010. The next day, *595the Commission issued its Notice of Hearing, inviting the EPA and the Lipskys to participate in an evidentiary hearing on the cause of the aquifer’s contamination. Neither the EPA nor the Lipskys chose to participate, however.
After hearing testimony on the groundwater investigation and Range’s operations in the area, as well as expert testimony on geology, hydrogeology, mi-croseismic analysis, hydraulic fracturing, geochemical gas fingerprinting, and petroleum engineering, the Commission’s hearing examiners concluded that Range’s gas wells had not contributed to the contamination of any domestic water wells. The examiners concluded instead that the Strawn formation was the most likely source of the gas in the Lipskys’ well.
The Strawn is a shallow formation, lying directly beneath the Trinity aquifer at a depth of 200 to 400 feet. There had been gas production from the Strawn in the mid-1980s about a mile from Range’s current wells. Range’s two wells, however, did not produce from the Strawn. They were instead completed in the Barnett Shale, a formation lying more than a mile below the aquifer. And although Range used hydraulic fracturing of the Barnett Shale to extract its gas, the examiners found that this caused no communication with the aquifer, as nearly a mile of rock remained between the highest fracture point and the aquifer. The examiners further confirmed the mechanical integrity of Range’s wells, finding its production casings properly cemented and in compliance with the Texas Commission on Environmental Quality’s recommendations for water quality protection. The examiners noted that gas contamination in water wells throughout the county had occurred since at least 2008, several years before Range drilled the two wells in question.
Adopting the examiners’ findings and conclusions, the Railroad Commission signed its final order on March 22, 2011. Afterward, Lipsky was quoted in news articles to state that the Commission’s decision was “ridiculous,” the product of a “corrupt system,” and that “it was kind of sad.” Although he had not participated in the hearing, he referenced the earlier EPA order and his own expert, who suspected that the contamination resulted from Range’s nearby drilling. Thus, despite the Commission’s conclusions to the contrary, Lipsky continued to maintain that Range was responsible for contaminating the aquifer and his domestic water well. The court of appeals concluded that there was some evidence of a defamatory statement concerning Range sufficient to defeat Lip-sky’s TCPA motion to dismiss, and we agree. His statements were not presented as opinion but were “sufficiently factual to be susceptible of being proved true or false.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990).
(2) The Damages
Lipsky also argues that the trial court should have dismissed Range’s defamation claim because no evidence established that his remarks caused the company specific damages. The court of appeals again disagreed. It concluded that the affidavit from Range’s senior vice president, which discussed Range’s losses in very general terms, was sufficient to defeat Lipsky’s TCPA motion to dismiss. See 411 S.W.3d at 547. As we have already determined, the vice president’s affidavit was insufficient proof of Range’s special damages for purposes of the TCPA.
Range argues, however, that it did not have to submit proof of special damages as part of its defamation claim because Lipsky’s statements were defamato*596ry per se. When an offending publication qualifies as defamation per se, a plaintiff may recover general damages without proof of any specific loss. Hancock, 400 S.W.3d at 63-64. Thus, if Lipsky’s remarks concerning Range are actionable per se, then any failure in proof as to special damages is irrelevant. In other words, if such losses are not an essential element of Range’s defamation claim, they can have no bearing on Lipsky’s dismissal motion under the TCPA. See Tex. Civ. Prag. & Rem. Code § 27.005(c).
The common law distinguishes defamation claims as either per se or per quod.13 Hancock, 400 S.W.3d at 63. Defamation per se refers to statements that are so obviously harmful that general damages, such as mental anguish and loss of reputation, are presumed. Id. at 63-64. Defamation per quod is defamation that is not actionable per se. Id. at 64. Defamation per se is itself broken down into separate categories of falsehoods. Accusing someone of a crime, of having a foul or loathsome disease, or of engaging in serious sexual misconduct are examples of defamation per se. Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.App-Waco 2005, no pet.). Remarks that adversely reflect on a person’s fitness to conduct his' or her business or trade are also deemed defamatory per se. Hancock, 400 S.W.3d at 66. And whether a statement qualifies as defamation per se is generally a question of law. Id.
Range argues that Lipsky’s remarks in this case were defamatory per se because they reflected on Range’s fitness and abilities as a natural gas producer. To qualify as defamation per se under this category the disparaging words must affect the plaintiff in some manner that is peculiarly harmful to the plaintiffs trade, business, or profession and not merely upon the plaintiffs general characteristics. See id. at 66-67 (noting that a statement injures one in his profession when it would “adversely affect his fitness for the proper conduct” of the business). Range submits that by being falsely branded as a polluter and a threat to public health and safety, Lipsky has portrayed Range as incompetent, even reckless, as a gas producer, thereby injuring the company’s reputation.
Environmental responsibility is an attribute particularly important to those in the energy industry — none more so than ' natural gas producers, such as Range, who employ horizontal drilling and hydraulic fracturing in their business. Accusations that Range’s fracking operations contaminated the aquifer thus adversely affect the perception of Range’s fitness and abilities as a natural gas producer. As defamation per se, damages to its reputation are presumed, although the presumption alone will support only an award of nominal damages. Salinas, 365 S.W.3d at 320. Pleading and .proof of particular damage is not required to prevail on a claim of defamation per se, and thus actual damage is not an essential element of the claim to which the TCPA’s burden of clear and specific evidence might apply. Although Range’s affidavit on damages may have been insufficient to substantiate its claim to special damages, it was not needed to defeat Lipsky’s dismissal motion because Range’s defamation claim was actionable per se. The trial court accordingly did not abuse its discretion in denying Lipsky’s motion to dismiss.
IV. Range’s Petition
The court of appeals concluded that the TCPA required the dismissal of *597Range’s business-disparagement and defamation claims against Shyla Lipsky and Alisa Rich because no evidence showed that either party published any false statements about Range concerning contamination of the aquifer in general or the Lipsky well in particular. 411 S.W.3d at 547-49. The court also concluded that the TCPA required the dismissal of Range’s civil conspiracy claim because no evidence established that the Lipskys and Rich agreed to defame Range, an essential element of Range’s civil-conspiracy claim as pled. Id. at 551. In its petition, Range seeks reinstatement of its defamation and business-disparagement claims against Shyla Lip-sky, as well as reinstatement of its civil-conspiracy claim against all defendants.
Range complains that the court of appeals failed to give it the benefit of rational inferences drawn from the voluminous evidence it presented. It argues that Rich had a history of publicly blaming drilling, in general — and Range in particular — for contaminating the environment and that she devised a “strategy” to get the EPA to investigate the Lipsky contamination claim, which she documented in an email to the Lipskys. Range further complains that Rich played a role in the distribution of Lipsky’s “misleading” garden hose video in furtherance of the conspiracy to defame and disparage Range.
The court observed, however, that Rich, although mentioning Lipsky’s video to the EPA, had not used it to mislead the agency but rather explained that the hose had been attached to the well vent. 411 S.W.3d at 551. The court found no evidence that Rich participated in distributing the video to the media or contributed to media reports about “water being lit on fire.” Id. The court of appeals considered the evidence of Rich’s alleged predisposition but concluded it was not clear and specific evidence that “Rich had conspired with the Lipskys to blame Range on this occasion.” Id. The court further considered the email documenting Rich’s “strategy,” but found it to be no evidence of a conspiracy to defame or disparage Range. Instead, the court observed that the email focused “on the contamination of the Lip-ksys’ well and on executing a plan to trigger an investigation into the contamination rather than on blaming Range or pursuing an action against Range for the contamination.” Id.
We agree that no clear and specific evidence establishes a prima facie case that Shyla Lipsky or Alisa Rich published any defamatory remarks concerning Range or conspired with Steven Lipsky “to publicly blame Range for the contamination.” Id. The court of appeals accordingly did not abuse its discretion in holding that the TCPA required the dismissal of Range’s claims against Steven Lipsky’s wife and environmental consultant and Range’s conspiracy claim against all parties.
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The respective petitions filed in this Court by Steven Lipsky and by Range Production Co. and Range Resources Corp. are denied.
. See Act of May 18, 2011, 82nd Leg., R.S., ch. 341, § 1, 2011 Tex. Gen. Laws 961 (stating that "Act may be cited as the Citizens Participation Act”).
. At the time, the courts of appeals disagreed about whether the Texas Citizens Participation Act granted an interlocutory appeal from a signed order denying dismissal. Compare Jennings v. WallBuilder Presentations, Inc., 378 S.W.3d 519, 524-29 (Tex.App.-Fort Worth 2012, pet. denied) (rejecting interlocutory appeal), with San Jacinto Title Servs. of Corpus Christi, LLC. v. Kingsley Props., LP., 452 S.W.3d 343, 349 (Tex.App.-Corpus Christi 2013, pet. denied) (accepting interlocutory appeal); see also Justice Nora Longoria & Nathaniel Beal, "What Is A SLAPP Case?" Interlocutory Appeals and the Texas Citizens' *586Participation Act, 26 APP. ADVOC. 390, 395-96 (2014). The Legislature has since clarified that an interlocutory appeal is permitted from any interlocutory order denying a motion to dismiss under the TCPA. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(12); see also Miller Weisbrod, L.L.P. v. Llamas-Soforo,- S.W.3d -, -, 2014 WL 6679122, at *6 (Tex. App.-El Paso 2014, no pet.). Although an interlocutory appeal is clearly the appropriate remedy going forward, we nevertheless consider the issues presented here in the context of the original mandamus proceedings filed in this Court.
.The court of appeals concluded that the trial court should have dismissed the civil conspiracy and aiding and abetting claims against all defendants, including Steven Lipsky. Id. at 551-52.
. The "right of free speech” refers to communications related to "a matter of public concern” which is defined' to include an issue related to: "(A) health or safety: (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace.” Id. § 27.001(3), (7)(A)-(E).
. The "right to petition” refers to a wide range of communications relating to judicial, *587administrative, or other governmental proceedings. Id. § 27.001(4).
. The “right of association” refers to people "collectively expressing], promoting], pursuing], or defending] common interests.” Id. § 27.001(2).
. The court wrote:
Charges of fraud must be established by clear and specific evidence, which may not be aided by presumptions or inferences, or intendment. The evidence and findings of the representations complained of in this case are vague, indefinite, and inconclusive, and, moreover, are so qualified by the testimony of appellee and her sister-indaw, upon which her case rests, as to rob them of the implications of active fraud necessary to destroy a written contract.
S. Cantu & Son, 101 S.W.2d at 822.
. The phrase "clear and specific evidence” appears in only three statutes. See Tex. Civ. Prac. & Rem. Code ⅜ 22.025, 27.005(c); Tex. Code Crim Proc. art. 3811, § 6. "Clear and specific showing” appears in two others. See Tex. Civ. Prac. & Rem. Code § 22.024; Tex. Code Crim Proc. art. 3811, §§ 4(a), (c), 5(a).
. Before the TCPA’s enactment, the phrase appeared in two reported cases. See McDonald, 464 S.W.2d at 456; S. Cantu & Son, 101 S.W.2d at 822. Since its enactment, the phrase has appeared in over thirty reported cases tied to a discussion of the statute.
. Professor Dobbs offers a number of examples of commercial disparagement or trade libel that are not strictly speaking defamatory in the sense of dignitary harm:
[A] publication that says the defendant’s product is poisonous and contaminates the land or [ ] one that says the plaintiff's wood products are inferior and will not stand up.... A false statement that the ratings of the plaintiff’s radio show are too low to justify continuing the show.... [A] publication falsely stating the price the plaintiff
*592charges for his goods [or] that the plaintiff is no longer carrying on a business or has insufficient funds to continue in business.
3 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 656, at 618-19 (2d ed.2011) (footnotes omitted).
. Special damages are synonymous with economic damages and, are distinguishable from general damages. General damages are recoverable under a defamation claim for non-economic losses, such as loss of reputation and mental anguish. Hancock v. Variyam, 400 S.W.3d 59, 65 (Tex.2013).
. The court of appeals quoted from the vice president’s affidavit as indicated below:
As a direct and proximate result and consequence of the ... false, disparaging, and defamatory public statements made by Steven Lipsky ... regarding Range and its operations, Range's business and reputation have been harmed.... The numerous false, disparaging, and defamatory public statements made by Mr. Lipsky ... have caused Range to be associated in the public as a polluter of water and the environment, and nothing could be further from the truth.
.. .As a direct and proximate result and consequence of the false, disparaging, and defamatory statements made by Mr. Lipsky ..., Range has suffered direct pecuniary and economic losses and costs, lost profits, loss of its reputation, and loss of goodwill in the communities in which it operates. To date, the damages suffered by Range as a direct and proximate result and consequence of the conspiracy and ... defamatory public statements made by Lipsky and Rich are in excess of three million dollars.
411 S.W.3d at 546-47 (omissions in original).
. The common law distinction between defamation per se and per quod has been criticized as anachronistic and has been abandoned in some jurisdictions, but Texas has not abandoned this distinction. See Waste Mgmt. of Tex., 434 S.W.3d at 146 & nn.8-9. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283918/ | OPINION
ANN CRAWFORD McCLURE, Chief Justice.
Appellants, Unit 82 Joint Venture, Five Star Holding Company, Inc., Five Star Holding Management, L.L.C., and 1320/1390 Don Haskins, Ltd., appeal from the trial court’s orders determining that the ancillary receivership did not violate a bankruptcy stay and terminating the ancillary receivership and discharging the receiver because the ancillary receivership expired by statute on March 24, 2013. For the reasons that follow, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
On May 28, 2010, this court issued an opinion and judgment which vacated the judgment of the trial court and dismissed the suit below because we concluded that the ancillary receivership violated a bankruptcy stay which arose when Mediacopy, a California Corporation (M-CA), declared bankruptcy. Unit 82 Joint Venture v. Mediacopy Texas, Inc., 349 S.W.3d 42 (Tex.App.-El Paso 2010). The Texas Supreme Court disagreed because it concluded there was a fact issue as to whether M-CA had an interest in any of the warehouse property sold by the ancillary receiver and it held that we should have abated the appeal to allow the application of the automatic stay to be determined by the trial court. Evans v. Unit 82 Joint Venture, 377 S.W.3d 694, 694-95 (Tex.2012). Consequently, it reversed our judgment and remanded the cause directly to the trial court to resolve the fact issue. Id. The trial court conducted an evidentiary hearing on March 12, 2013 to determine whether M-CA owned an interest in any of the warehouse property sold by the ancillary receiver. The parties submitted a substantial amount of testimonial and documentary evidence on the contested fact issue. As we did in the prior opinion, we begin by identifying the parties and one non-party to the appeal. Five Star Holding Company, Inc. (Five Star) owns a 200,-000 square foot warehouse located at 1390 Don Haskins Drive in El Paso, Texas (the El Paso Premises). It is a member of Five Star Holding Management, L.L.C. As will be discussed in more detail below, Five Star leased the El Paso Premises to M-CA in 1997 and it later transferred its interest in the lease to 132Ó/1390 Don Has-kins, Ltd. Five Star Holding Management is the general partner of 1320/1390 Don Haskins. For convenience, we will refer to these parties collectively as Appellants except where it is necessary to identify them individually.1
Robb Evans is the primary receiver appointed by a California Superior Court and is the ancillary receiver appointed by the trial court. M-CA'and Mediacopy Texas, Inc. (MTI) are subsidiaries of Infodisc Global Holdings, Inc. (Infodisc). M-CA is not a party to the suit below or to this appeal. In 1997, M-CA, MTI, and Infod-isc were in the business of replicating DVDs for movie studios and duplicating VHS videotapes.
On December 19, 1997, Five Star Holding Company (Five Star) entered into a “standard net industrial lease” with M-CA as tenant. The lease is for approximately 10.6 acres of land and a 200,000 square *620foot building to be constructed at 1280 Don Haskins in El Paso, Texas (the El Paso Premises).2 According to the lease, Five Star was responsible for constructing the building. Five Star also entered into letter agreements to loan M-CA the sum of $485,000 for the purpose of constructing certain tenant improvements at 1280, 1290, and 1390 Don Haskins.
On January 8, 1998, MTI, not M-CA, entered into a “Tax Abatement Agreement” with the City of El Paso.3 Under the Tax Abatement Agreement, the City of El Paso agreed to abate 50% of the assessed value of the 200,000 square foot building MTI proposed to construct at 1280 Don Haskins (referred to as.Phase One)4 and to abate 25% of the assessed value of eligible personal property to be installed by MTI in this city-designated reinvestment zone. In exchange, MTI agreed to construct improvements, install certain personal property, identified as operator workstations, office furniture, computer equipment, telephone equipment, office equipment, and distribution machines, and to create and maintain a minimum level of professional, administrative, and labor employment positions for a period of five years. Jerry Ayoub, on behalf of Five Star Holding Company, signed the Tax Abatement Agreement and thereby expressly consented to it.
On October 17, 2000, M-CA entered into a construction contract with F-Star Development, L.P., to construct, install, and complete tenant improvements at 1390 Don Haskins.5 The record is not clear when construction was completed or the exact date when M-CA and MTI began operating the video replicating business at the El Paso Premises, but according to sworn documents filed by M-CA in the bankruptcy court in 2004, M-CA had ceased acting as an operating entity by 2001. From that point forward, its primary business was the leasing of property for its own benefit and for its affiliated corporate entities in the United States.
In August 2003, Infodisc and MTI entered into a credit agreement with the International Commercial Bank of China, Los Angeles Branch (ICBC) and two other banks, whereby the banks agreed to loan these two companies up to $30 million, $20 million of which would be used to repay existing indebtedness and the remainder would be used as working capital. MTI and Infodisc borrowed more than $16,000,000 and executed promissory notes and a security agreement which gave ICBC a security interest in tangible and intangible personal property, including all machinery, equipment, and fixtures located at borrowers’ facilities.
Like many other American businesses, M-CA, Infodisc, and MTI experienced sig-*621nifieant financial difficulties in 2003 and 2004. Infodisc and MTI defaulted on the credit agreement and promissory notes and ICBC filed suit on November 30, 2004, in the Superior Court of California, Los Angeles County, Los Angeles. The petition included a claim for breach of the credit agreement and the promissory notes and sought to recover more than $12,895,000. ICBC also requested the appointment of a receiver. On January 13, 2005, the California Superior Court, with the agreement of MTI, Infodisc, and ICBC, entered a stipulated order appointing a receiver, Robb Evans, to liquidate MTI’s assets. Because some of MTI’s assets were located in El Paso, Texas, ICBC filed a verified petition and application for appointment of an ancillary receiver in the 327th District Court. The trial court entered a stipulated order on March 24, 2005 appointing Evans as the ancillary receiver. At about the same time, the California Superior Court approved Maynards Industries, Ltd. (Maynards) as the receiver’s agent to liquidate the assets.
In 2004, M-CA became delinquent on the lease payments for the El Paso Premises and Appellants gave M-CA notice of intent to lockout M-CA from the premises. In response, M-CA filed a Chapter 11 bankruptcy petition on October 22, 2004. On November 5, 2004, M-CA filed its Schedules of Assets and Liabilities (Schedules) and Statement of Financial Affairs (SOFA). On Schedule B, M-CA listed all of its personal property. M-CA’s personal property includes landlord security deposits for 1280 Don Haskins ($30,000) and 1390 Don Haskins ($30,750), and prepaid rent for 1390 Don Haskins ($66,909). Schedule B also includes a small amount of machinery, equipment, and supplies, some of which was leased. None of the property sold by the Ancillary Receiver in 2005 appears on Schedule B.
M-CA made statements in its bankruptcy filings which indicated it no longer operated out of the leased facilities in El Paso and its affiliates instead operated out of those facilities. For example, M-CA filed a motion in the bankruptcy court on December 21, 2004 seeking an extension of time in which to either assume or reject the lease for the El Paso Premises. MCA supported the motion with the sworn declaration of its Chief Financial Officer, Paul Westphal, who stated: “[M-CA] itself primarily manages an office facility in Cul-ver City, California and manufacturing and warehousing facilities, utilized by its 'affiliates, in El Paso, Texas, for which it is the lessee.” Westphal also stated that M-CA sought to extend the time within which to assume or reject the lease for the El Paso Premises because the property serves as M-CA’s affiliates’ main manufacturing and warehouse facility in Texas and the vast majority of the affiliates’ inventory is stored on the premises. Westphal further represented that without the property, MCA’s affiliates could not operate their business.
M-CA also informed the bankruptcy court about the California suit against In-fodise and MTI and the receivership, and it disclosed that its affiliates were working with the receiver to liquidate assets owned by MTI. In its second status report filed on March 9, 2005 in the bankruptcy court, M-CA reported the following:
7. In the initial stages of this case, the Debtor undertook significant efforts to evaluate the feasibility of continuing both the Debtor and its affiliates as going concerns, and the feasibility of a sale of the assets of the Debtor and its affiliates as going concerns. However, during late January 2005, two of the Debtor’s affiliates (Infodisc Global Holding, Inc. and Mediacopy Texas, Inc.) which are borrowers under a credit *622agreement with the International Commercial Bank of China (‘ICBC’) as agent, entered into a stipulation for the appointment of a State Court receiver (the ‘Receiver’) in an action filed by ICBC in the Superior Court for the County of Los Angeles.
8. The Debtor’s affiliates have been working collaboratively with the Receiver and ICBC to sell assets and liquidate the business enterprises of Debtor’s affiliates. Moreover, the Debtor has actively engaged in discussions and negotiations with its landlords to provide sufficient time in the leased facilities to enable the Debtor’s affiliates, the Receiver, and ICBC time to facilitate such liquidation efforts. The Debtor has received post-petition funding through its affiliates to cover its lease and other costs.
M-CA filed a second motion seeking an extension of time in which to either assume or reject the lease for the El Paso Premises and it asked the bankruptcy court to extend the time until June 30, 2005. M-CA stated that the lease dated December 19, 1997 between Landlord and the Debtor, concerns the lease of certain property located at 1390 Don Haskins, El Paso, Texas (the “1390 Property”). Further, the motion alleged that the 1390 Property is the site in which substantial equipment of M-CA’s affiliates is located and MTI owned the equipment used in the manufacturing of DVDs and in the production of recordings on DVDs. The motion also echoed what M-CA had reported in its second status report, namely, that it was cooperating with MTI and the Receiver in arranging an. auction of the equipment located at the 1390 Property. M-CA stated 'that the receiver Evans had completed detailed schedules of the manufacturing equipment, office computers and servers, and the manufacturing components (tape, polycarbonate cases, and media) held by MTI in order to arrange for the sale of these assets. It supported its motion with a declaration prepared by Evans and his detailed schedule of the MTI property he intended to sell. Evans stated in his declaration that upon his appointment as the primary receiver in the California case, he immediately undertook the task of marshalling the assets of the receivership estate and pursuing the steps necessary to collect and sell or liquidate the assets of MTI and he had completed detailed schedules of the manufacturing equipment, office computers and servers, and the manufacturing components held by MTI in order to arrange for the sale of these assets. Evans attached a true and correct copy of this inventory to his declaration.
Five Star Holding Company and 1320/1390 Don Haskins objected to the second extension motion on the grounds that M-CA did not own any assets and the property to be sold by the receiver was owned by M-CA’s affiliates, not M-CA. As noted by ICBC in its brief, Five Star and 1320/1390 Don Haskins stated several times in the objection that MTI owned the property. The bankruptcy court granted M-CA’s motion and extended the time until June 30, 2005.
The receiver’s auction and private sale were scheduled to be. held on June 15, 2005. On June 1, 2005, Appellants intervened in the receivership proceedings and asserted numerous third party claims against MTI, ICBC, Evans, and Maynards. The trial court denied Appellants’ request for a restraining order to prevent the private sale and public auction, and the receiver, through its agent, conducted the auction and sales. According to the receiver’s report, a total of $7,573,896.46 was received from the liquidation of the assets of MTI through liquidation sales, auction *623sales, and inventory sales. The receiver vacated the El Paso Premises on July 27, 2005. On August 29, 2005, ICBC took a default judgment against MTI and Infod-isc in the California case for damages in the amount of $18 million.
Following the hearing, the trial court entered an order concluding that there had been no violation of the automatic bankruptcy stay. At the request of the ancillary receiver, the trial court also entered an order confirming the ancillary receiver’s final accounting, terminating the ancillary receivership, directing the ancillary receiver to transfer the remaining ancillary receivership to the receiver appointed in the California receivership, and discharging the ancillary receiver. The trial court entered written findings of fact and conclusions of law in support of both orders.
DENIAL OF A JURY TRIAL
In Issue One, Appellants contend that the trial court erred by denying them a jury trial on the fact issue whether MCA had an interest in any of the warehouse property sold by the ancillary receiver. As noted by ICBC, Evans, and Maynards, it has long been the rule in Texas that the right to trial by jury does not extend to receivership proceedings. Henry v. Masson, 333 S.W.3d 825, 848 (Tex.App.-Houston [1st Dist.] 2010, no pet.); Bergeron, v. Sessions, 561 S.W.2d 551, 555 (Tex.Civ.App.-Dallas 1977, writ ref'd n.r.e.); Moody v. State, 538 S.W.2d 158, 161 (Tex.Civ.App.-Waco 1976, writ ref'd n.r.e.), Ferguson v. Ferguson, 210 S.W.2d 268, 269 (Tex.Civ.App.-Austin 1948, writ ref'd n.r.e.); McHenry v. Bankers’ Trust Co., 206 S.W. 560, 572 (Tex.Civ.App.-Galveston 1918, writ ref'd). Receivership property is in the custody of the law; consequently, its management and control rests exclusively in the court. See Henry, 333 S.W.3d at 848. Jury intervention would impermissibly transfer control and management of the receivership from the court to the jury. Id. The fact issues resolved by the trial court relate exclusively to whether M-CA had an interest in any of the receivership property, and as such, these facts issues do not pertain to any of Appellants’ third party claims. Consequently, Appellants did not have a right to a jury trial on these fact issues. Issue One is overruled.
TRIAL COURT’S ABILITY TO DETERMINE ITS JURISDICTION
In Issues Two and Nine, Appellants argue, in effect, that the trial court did not have jurisdiction to determine whether it had jurisdiction in the first place, and therefore, it “could not ‘bootstrap’ itself into having subject matter jurisdiction by making findings of fact and conclusions of law to create it.” Appellants reason that the trial court lacked jurisdiction to enter either order challenged on appeal. Appellants do not cite any authority in support of their argument. It is fundamental that courts always have jurisdiction to determine their own jurisdiction. Heckman v. Williamson County, 369 S.W.3d 137, 146 n. 14 (Tex.2012); Houston Municipal Employees Pension System v. Ferrell, 248 S.W.3d 151, 158 (Tex.2007); Harris County v. Sykes, 136 S.W.3d 635, 642 (Tex.2004). Issues Two and Nine are overruled.
THE JURISDICTIONAL ORDER
In Issues Three through Eight, Appellants challenge the trial court’s order determining that the ancillary receivership did not violate the bankruptcy stay. More specifically, Appellants argue that the evidence does not support Findings of Fact A through E and Conclusions of Law 1, 2, 4, *624and 5 are both unsupported by the evidence and erroneous. .
The Standard of Review
The parties agree that the trial court’s fact findings' should be reviewed for legal and factual sufficiency of the evidence supporting those findings while the court’s conclusions of law are subject to de novo review. A trial court’s findings of fact in a bench trial have the same force and dignity as a jury’s verdict and are renewable for legal and factual sufficiency of the evidence under the same standards as applied in reviewing a jury’s findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991); Boerschig v. Southwestern Holdings, Inc., 322 S.W.3d 752, 764 (Tex.App.-El Paso 2010, no pet.). In conducting a legal sufficiency review, we consider evidence in the light most favorable to the trial court’s findings and indulge every reasonable inference that would support them. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005); Boerschig, 322 S.W.3d at 764. We credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. City of Keller, 168 S.W.3d at 827. We will sustain a legal-sufficiency or “no evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.
When reviewing the factual sufficiency of the evidence to support the trial court’s fact finding, we consider and weigh all of the evidence and will “set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In conducting our review under both the legal and factual sufficiency standards, we are mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony, and that it is within the trier of fact’s exclusive province to resolve any conflicts in the evidence. City of Keller, 168 S.W.3d at 819.
An appellate court reviews a trial court’s conclusions of law as legal questions; consequently, a conclusion of law is reviewed under the de novo standard. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). Although a trial court’s conclusions of law may not be challenged for sufficiency of the evidence, we may review the legal conclusions drawn from the facts to determine whether the conclusions are correct. Id. If an appellate court determines that a conclusion of law is erroneous, but it also finds the trial court rendered the proper judgment, the incorrect conclusion of law does not require reversal and the appellate court must sustain the judgment on any legal theory supported by the evidence. Id.
The Trial Court’s Fact Findings
The trial court made the following findings of fact:
A. None of the property of the receivership estate created upon the appointment of Receiver in this action and none of the property thereafter sold by the Receiver pursuant to the orders of this Court constituted property of the estate (‘Bankruptcy Estate Property’) in the bankruptcy case then pending in the United States Bankruptcy Court for the Central District of California *625(‘Bankruptcy Court’) captioned In re Mediacopy, a California corporation, Case No. LA-04-32508 SB (U.S.Bankr.Ct., C.D.Cal.) (‘Bankruptcy Case’).
B. The debtor (“California Debtor”) in the Bankruptcy Case consented to the filing of the Ancillary Petition, to the use by the Receiver of the premises at issue in this action (“Subject Premises”) and to the on-site auction sales by the Receiver authorized by the orders of this Court.
C. Before the filing of the Verified Petition and Application for Appointment of Ancillary Receiver (the ‘Ancillary Petition’) that commenced this action, the Bankruptcy Court and the relevant parties in interest in the Bankruptcy Case — including the Intervenors — were ■ notified in writing by the California Debtor that the California Debtor had consented to the appointment of the Receiver, to the use and occupancy by the Receiver of the premises that are at issue in this action (‘Subject Premises’) and to the on-site auction sales of the property at issue in this action (‘Subject Property5) that the Receiver then intended to conduct and eventually conducted; and neither the Bankruptcy Court nor any party in interest-including the Intervenors — objected to such appointment, use, occupancy or on-site auction sales on the ground that any of those activities constituted or would constitute a violation of the automatic stay.
D. After having been notified in writing that the California Debtor had consented to the appointment of the Receiver, to the use and occupancy by the Receiver of the Subject Premises and to the on-site auction sales of the Subject Property that the Receiver then intended to conduct and eventually conducted, the Bankruptcy Court entered an order pursuant to 11 U.S.C. § 365 extending by six months the deadline by which the California Debtor would be required to assume or reject the lease by the California Debtor of the Subject Premises and the Bankruptcy Court did so in order to facilitate the Receiver’s use, occupancy and planned on-site auction sales.
E.Neither the filing of the Ancillary Petition, any order issued by this Court nor any of the activities of the Receiver in connection with the Subject Premises or Subject Property constituted an act to obtain possession or control of, or constituted an act to create or enforce any lien against, any Bankruptcy Estate Property; nor did any such act affect Bankruptcy Estate Property.
The Trial Court’s Conclusions of Law
Appellants challenge only five of the trial court’s eight conclusions of law. Conclusion of law 1 is the same as Finding of Fact E. Conclusions of law 2, 4, and 5 are as follows:
2. The property sold by the Receiver was not Bankruptcy Estate Property.
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4. The Receiver’s use and occupancy of the Subject Premises did not constitute a violation of the automatic stay because such use and occupancy was consented to by the California Debtor and, under either or both of 11 U.S.C. § 363(b) or 11 U.S.C. § 363(c) was a proper use of Bankruptcy Estate Property.
*6265. Even if, for the sake of argument, the Debtor’s consent to the receivership proceedings in this (or in the related California receivership case) were to have effected a sale or use of any Bankruptcy Estate Property that was not authorized by the Bankruptcy Code or the Bankruptcy Court, such sale or use would not have constituted a violation of the automatic stay because the California Debtor consented to the Receiver’s use of the Subject Premises and to the Receiver’s sale of the property located in or at the Subject Premises. [Citation omitted].
Analysis
The critical fact question before the trial court was whether M-CA owned an interest in any of the property sold by the ancillary receiver. Appellees presented evidence showing that MTI, not M-CA, owned the property sold by the ancillary receiver.
Appellants argue that the evidence is insufficient to support the trial court’s findings because MTI was never a party to the December 19, 1997 lease for the El Paso Premises and M-CA never assigned or sub-let the lease to MTI. The trial court correctly concluded that the mere fact that M-CA was the tenant named in the lease does not necessarily lead to the conclusion that it owned any tangible personal property or fixtures located in the El Paso Premises.6 M-CA’s status as the named tenant does not control the fact question before the trial court.
Appellants focus much of their argument on various provisions of the December 19, 1997 lease. Paragraph 6 of the lease provided that M-CA would occupy and use the El Paso Premises exclusively for its light manufacturing business. Paragraph 20 of the lease prohibited MCA from assigning or subletting the lease unless it first obtained Landlord’s consent and written permission. The evidence showed, however, that M-CA had by 2001 ceased its operating activities and MTI and Infodisc conducted the manufacturing operations in the El Paso Premises. These provisions do not prohibit M-CA from permitting its affiliates from using the premises. Even if these provisions could be construed as prohibiting M-CA from permitting MTI and Infodisc from using the El Paso Premises, M-CA’s actions might be construed as a breach of the lease but these provisions do not control the determination whether M-CA owned an interest in the property sold by the ancillary receiver.
Appellants also direct our attention to Section 26 of the December 19, 1997 lease which addresses surrender, holding over, and successors. This provision states that upon the termination of M-CA’s right to possession of the El Paso Premises, it would surrender the premises and remove all of its inventory, personal property, and trade fixtures, and any trade fixtures or tenant improvements not so removed by M-CA would be deemed abandoned, and all tenant improvements would remain in the premises as the property of landlord. Relying on this provision, Appellants reason that “at all times pertinent to this case, the trade fixtures and tenant improvements in the premises were the property of either M-CA or Landlord.” This assertion is erroneous because M-CA’s right to possession of the El Paso Premises was not terminated. The ancillary receivership order entered by the trial court effected a voluntary transfer of M-CA’s right of possession to the ancillary receiver. Thus, Section 26 of the lease is inapplicable.
*627Appellants next argue that the ancillary receiver’s inventory shows that all of the listed property belonged to M-CA, not MTI. Appellants are correct that the heading on the ancillary receiver’s inventory states “Media Copy Inc.” Appellants suggest that this heading necessarily refers to M-CA, but neither M-CA nor MTI is known as “Media Copy Inc.” The heading is confusing when read in isolation from the remainder of the document, but the ancillary receiver clearly states in his sworn declaration that he had created an inventory of the manufacturing equipment, office computers and servers, and the manufacturing components held by “Mediaco-py Texas” in order to arrange for the sale of these assets, and Exhibit A appended to his declaration is a true and correct copy of the inventory he had created for this purpose. The trial court could have reasonably concluded that the ancillary receiver’s inventory sets forth the property of MTI, not M-CA.
Having reviewed the evidence in the light most favorable to the trial court’s fact finding, we conclude that the evidence is legally sufficient to support the court’s finding that M-CA did not have an interest in any of the property sold by the ancillary receiver. We have also reviewed the evidence related to this same finding under the factual sufficiency standard and conclude that it is not contrary to the overwhelming weight of the evidence. Given that M-CA did not have an interest in any of the property sold by the ancillary receiver, the trial court correctly concluded that the property sold by the ancillary receiver was not bankruptcy estate property and the ancillary receivership did not violate the automatic stay of the California bankruptcy case involving M-CA. Issues Three, Four, Seven, and Eight are overruled. It is unnecessary to address Issues Five and Six which pertain to the trial court’s determination that M-CA consented to the appointment of the ancillary receiver and to the ancillary receivership.
THE TERMINATION ORDER
In Issues Ten and Eleven, Appellants challenge the trial court’s order terminating the ancillary receivership and discharging the receiver. They contend that the termination order should be vacated because the ancillary receivership expired by statute on March 24, 2013.
The Standard, of Review
The- appointment or termination of a receivership is within the sound discretion of the appointing court. Gilles v. Yarbrough, 224 S.W.2d 720, 722 (Tex.Civ.App.-Fort Worth 1949, no writ). Consequently, a trial court’s decision to terminate a receivership is reviewed under the abuse of discretion standard. CitiMortgage, Inc. v. Hubener, 345 S.W.3d 193, 195-96 (Tex.App.-Dallas 2011; no pet.). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles, such that its ruling was arbitrary or unreasonable. Id., 345 S.W.3d at 196, citing Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007).
Order Extending the Receivership
In Issue Ten, Appellants argue that the termination order should be vacated because the receivership it terminated had expired by operation of law. Further, Appellants assert that the evidence does not support the trial court’s finding of fact that the order appointing the ancillary receiver was signed on March 24, 2005 and this receivership expired by statute on March 24, 2013. Appellants also challenge the trial court’s conclusion of law that the receivership was extended but expired on March 24, 2013.
*628Appellants contend that the receivership expired by operation of law on March 24,-2008 because the ancillary receiver did not file his application to extend the receivership until January 14, 2009. Section 64.072 of the Civil Practice and Remedies Code provides that, except as permitted by the statute', a court may not administer a corporation in receivership for more than three years after the date the receiver is appointed, and the court shall wind up the affairs of the corporation within that period. Tex.Civ.Prac. & Rem.Code Ann. § 64.072(a)(West Supp.2014). Subsection (b) authorizes a court to extend the duration of a corporate receivership if: (1) litigation prevents the court from winding up the affairs of the corporation within three years; or (2) the receiver is operating the corporation as a going concern. Tex.Civ.Prac. & Rem.Code Ann. § 64.072(b). A court is authorized to extend the receivership for an additional five years. Tex. CivPrac. & Rem.Code Ann. § 64.072(d). On January 14, 2009, the ancillary receiver filed an application to extend the receivership pursuant to § 64.072(b)(1) because ongoing litigation prevented the court from winding up the affairs of MTI. The trial court granted the application on February 18, 2009 and extended the ancillary receivership until the litigation was concluded or for an additional eight years whichever occurred first.
In Bayoud v. Bayoud, 797 S.W.2d 304, 309 (Tex.App.-Dallas 1990, writ denied), a receivership of a corporation continued for more than three years and the record did not include an application by the receiver to extend the receivership or an order granting the application. The Dallas Court of Appeals held that the provisions of Section 64.072 requiring an application for extension, notice to the parties, and a hearing on the matter are procedural in nature and judgments rendered without observance of statutory requirements which are purely procedural are not void, and are instead, merely voidable. Id. The court of appeals concluded that the appellants had waived any error because they failed to object when the receivership expired that the requirements of Section 64.072 had not been met. Id.
In the instant case, the record does not reflect that Appellants objected in 2008 when the ancillary receivership expired and they did not object when the ancillary receiver filed his application to extend the receivership. Further, the trial court’s order granting the application recited that all attorneys of record were provided with notice of the hearing on the application to extend the duration of the ancillary receivership and “[n]o responses ... were filed.” Appellants’ objection to the extension of the receivership raised for the first time on appeal is untimely. Bayoud, 797 S.W.2d at 309. Further, even if the duration of the receivership had expired, the trial court had jurisdiction to wind up the receivership and discharge the receiver. Bayoud, 797 S.W.2d at 310; Humble Exploration Company, Inc. v. Walker, 641 S.W.2d 941, 945 (Tex.App.Dallas 1982, no writ). Issue Ten is overruled.
No Record of the Hearing
In their final issue, Appellants argue that the evidence is insufficient to support three findings of fact made by the trial court in connection with the termination order. The trial court found as follows:
1. The Ancillary Receiver has discharged the duties imposed by the Order Appointing Ancillary Receiver and the subsequent orders of this Court except for the final distribution of the funds from the assets liquidated through the ancillary receivership.
*6292. There were no objections made to any periodic reports prepared by the ancillary receiver within ten (10) days of providing the periodic reports as set forth in the Order Appointing Ancillary Receiver.
3. The Ancillary Receiver’s final accounting and report of administration was presented and confirmed by the court including approval of all unpaid 'expenses of the ancillary receivership through the date of the March 14, 2013 hearing. The Court overruled all objections presented by Intervenors.
The record before us does not include the reporter’s record of the hearing conducted by the trial court on March 14, 2013 on the ancillary receiver’s motion to confirm his final accounting and terminate the receivership. Generally, in an appeal with only a partial reporter’s record, we must presume the omitted portions of the record are relevant and support the trial court’s judgment. Feldman v. Marks, 960 S.W.2d 613, 614 (Tex.1996); Sedona Pacific Housing Partnership v. Ventura, 408 S.W.3d 507, 514 (Tex.App.-El Paso 2013, no pet.). An exception to the general rule is set forth in Texas Rule of Appellate Procedure 34.6(c), but Appellants did not comply with the requirements of this rule. See Tex.R.App.P. 34.6(c). Consequently, we will apply the general presumption that the missing portions of the record support the challenged fact findings and the termination order. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex.2003); Sedona Pacific, 408 S.W.3d at 515. Issue Eleven is overruled. Having overruled each issue presented on appeal, we affirm the judgment of the trial court.
.' Unit 82 Joint Venture entered into a lease agreement with Mediacopy Texas, Inc. (MTI) for real property located on Rojas Drive in El Paso, Texas. It intervened in the ancillary receivership proceeding and filed a claim against MTI for breach of the lease agreement. This cause of action appears to be unrelated to the other appellants' claims.
. The original lease stated the address of the premises as 1280 Don Haskins but the parties subsequently entered into an addendum which amended the lease to reflect the correct address as 1390 Don Haskins.
. The Property Redevelopment and Tax Abatement Act authorizes taxing units to create a reinvestment zone for commercial-industrial tax abatement purposes. Tex.Tax Code Ann. § 312.001-.403 (West 2008 and Supp.2014).
. As part of this same Tax Abatement Agreement, MTI also agreed to construct a 262,500 square foot building at 1290 Don Haskins which is referred to as Phase Two in the Tax Abatement Agreement.
.The record reflects that Jerry Ayoub is the president of F-Star Management, L.L.C. which is the general partner of F-Star Development. As noted in our prior opinion, Ay-oub is also the president of Five Star Holding Company, the manager of Five Star Holding Management, L.L.C., and an authorized representative of 1320/1390 Don Haskins, Ltd.
. Appellants did not challenge this conclusion of law. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283919/ | OPINION
David Puryear, Justice
Gulf Chemical and Metallurgical Corporation brought suit under Texas Tax Code Chapters 112 and 171 to recover $1,357,920 in franchise taxes that it paid for tax years 2005, 2006, and 2007. After the parties agreed to an order bifurcating the non-jury trial, the trial court tried the issue of whether the methodology that Gulf sought to use in calculating its franchise tax apportionment factor for the years at issue was proper. The trial court found that Gulfs methodology was not proper and entered a final judgment concluding that Gulf was not entitled to any refund. Gulf appeals. We will reverse the trial court’s judgment and remand this cause for further proceedings to determine the amount of refund to which Gulf is entitled.
BACKGROUND
Gulf performs environmental disposal and recycling services for oil refineries by processing their spent fuel catalyst, recovering the precious metals contained therein, and selling the metals at a profit. According to the deposition of Gulfs controller, Jeffrey Masters, Gulf charges a “service payment” or “environmental fee” to each refinery customer and, as part of the same transaction, provides the customer with a discount in the form of ■ a “metal purchase payment” or “metals credit,” which functions as a form of profit-sharing from the metal sales with the customer. Masters explained that even though the two amounts are identified separately on invoices, Gulf considers them as comprising one transaction, and the amounts are “netted” together in determining whether the customer owes Gulf or Gulf owes the customer, depending on the quantity and value of the metals contained in each receipt of spent catalyst.
Masters testified that the “whole purpose” of Gulfs business is to extract and sell the precious metals from the spent catalyst and that without the metal extraction and sale, its “environmental reclamation services” would be “a losing proposition.” He referred to Gulfs acquiring the spent catalyst as a “purchase” from the refineries and noted that Gulfs general ledger tracks the service payments and metals credits separately for internal “management reporting pur*745poses” and “tracking costs.”1 Despite these separately tracked “trial balance” accounts, Masters testified that there is a difference between “management reporting” and “financial reporting.” Management reporting, he explained, is used for internal purposes, while financial reporting must comply with generally accepted accounting principles (GAAP) and is used for federal and external reporting. Masters testified that under GAAP the service payments and metals credits should be “netted” together to determine Gulfs gross revenue.
Several contracts between Gulf and its customers were submitted as joint exhibits at trial. One contract representative of those in effect for the years at issue specified that Gulfs customer would pay it a “treatment charge of U.S. $[redacted amount] per ton [of spent catalyst] less metal credits based on the ‘As Received Weight’ of the spent catalyst.” Gulf agreed to “apply a credit for content of primary metals contained in the spent catalyst” and that the “metals credit shall be credited [to customer] to offset the treatment charge.”2 The contract further specified that Gulf would submit “one invoice to [customer] by the 15th of every month along with a statement showing ... quantity of spent catalyst processed, metals credits, processing fee, [and] net fee owing by [customer] or payment to [customer].”
Also admitted as joint exhibits were reports of independent auditors reviewing Gulfs financial statements for each of the three tax years. Under a heading entitled “Revenue Recognition,” these reports represented that Gulf “records environmental sales revenue, net of estimated metals credits, when the spent catalyst has been delivered to [Gulfl’s plant” and that “[f]or those sales under specified customer agreements, which have variable contingent pricing components, net revenue, if any, related to the variable contingent component is not recognized until such time as the price is fixed and determinable.”
Gulfs expert witness, CPA Lester Sprouse, testified that GAAP governs corporations using the accrual method of accounting, which method is appropriate for Gulfs type of business and which method Gulf used during the tax years at issue.3 He also testified that the “metals credits” Gulf provides to' its refinery customers must be considered “allowances” or “sales incentives” under GAAP because they operate as “contra-revenue” to reduce gross receipts. In other words, as a corporation using the accrual method and subject to GAAP, Gulf should net the metals credits with the service payments in determining gross revenue rather than consider the sum total of the service payments as gross revenue.
In reviewing Gulfs federal income tax returns for the three years, Sprouse identified a non-material, “presentation” error in which Gulf erroneously included the metals credits on line 2 of its form 11204 *746as “cost of goods sold” rather than as an “allowance” on line 1, which would have reduced its “gross receipts” entered on line l.5 Sprouse averred that not only would it have been “appropriate” for Gulf to have deducted the metals credits before determining gross revenue, but because Gulf was using the accrual method and following GAAP, the metals credits “should have been netted in [Gulfs] gross receipts” on line 1. However, Sprouse testified that the way a corporation “presents” its gross receipts on form 1120, even if erroneous, does not “change” the accounting method it uses in its business or affect GAAP’s treatment of allowances. With respect to this particular error, Sprouse noted that there was no need or incentive for Gulf to amend its federal tax returns because there would have been no difference in its ultimate tax liability (because the metals credits were deducted elsewhere from taxable income) and, therefore, “no reason” to amend; amendment would merely constitute an added expense.
The trial court also admitted as a joint exhibit an abstract issued by the Emerging Issues Task Force (EITF) which, according to Sprouse, is a subcommittee of the American Institute of Certified Public Accountants and Financial Accounting Standards Board. Sprouse explained that this abstract, known as EITF 01-09, became effective in 2002. See Emerging Issues Task Force Issue No. 01-09, Accounting for Consideration Given by a Vendor to a Customer (Including a Reseller of the Vendor’s Products) (abstract), ¶ 9. EITF 01-09 specifies that its purpose is to “codify and reconcile [certain issues addressing] the accounting for consideration given by a vendor to a customer.” It further states that “cash consideration (including a sales incentive) given by a vendor to a customer is presumed to be a reduction of the selling prices of the vendor’s products or services and, therefore, should be characterized as a reduction of revenue when recognized in the vendor’s income statement.” Sprouse explained that as soon as EITF abstracts are issued, “they become GAAP,” and that EITF 01-09 specifically applies to the metals credits here, which operate as sales incentives, requiring them to be netted against gross receipts. The Comptroller did not rebut Sprouse’s or Masters’s testimony.
The main issue at the bench trial was whether, for Texas franchise tax purposes, Gulf should be permitted to report as “gross receipts” the amount of each service payment, netted with each corresponding metals credit, or whether it must report the full total of service, payments, without adjustment for the metals credits. This is a significant distinction, as the amount of franchise tax that Gulf owes is directly affected by the “apportionment factor,” which at all relevant times was computed using a corporation’s “gross receipts.” 6 Act of May 7, 1999, 76th Leg., R.S., ch. 184, § 2, sec. 171.106(a), 1999 Tex-. Gen. Laws 651, 652 (amended 2006) (current version at Tex. Tax Code § 171.106) (providing formula to apportion taxable capital and taxable earned surplus to this state, where gross receipts are component) (hereinafter Former Tex. Tax Code § 171.106); Act of May 25, 1993, 73d Leg., R.S., ch. 546, § 8, sec. 171.1121(a), *7471993 Tex. Gen. Laws 2043, 2044 (amended 2006) (current version at Tex. Tax Code § 171.1121) (providing definition of gross receipts for taxable earned surplus) (hereinafter Former Tex. Tax Code § 171.1121).7
This dispute initially arose when the Comptroller audited Gulf for tax years 1997-2000, a period for which the Comptroller did not permit Gulf to report its gross receipts on a netted basis and which determination Gulf challenged in two lawsuits, which were settled by an agreed judgment. Gulf argues that since EITF became effective in 2002, the metals credits are now indisputably “allowances” that operate to reduce gross receipts. However, knowing the Comptroller’s position on the netting of the service payment and metals credit from its prior audit and seeking to avoid incurring a penalty and interest, Gulf calculated and paid its franchise taxes without netting the amounts but concurrently filed a refund claim to recover the amount it claims it overpaid. After the bench trial, the trial court agreed with the Comptroller and concluded that Gulf is not entitled to net the amounts and, therefore, is not entitled to any refund.
STANDARD OF REVIEW
While Gulf makes several arguments supporting its contention that the trial court erred in making its determination that Gulf is not entitled to a refund, its issues on appeal stem from the trial court’s construction of relevant Tax Code provisions and Comptroller rules, which are legal questions we review de novo. See 7-Eleven, Inc. v. Combs, 311 S.W.3d 676, 683 (Tex.App.-Austin 2010, pet. denied). When resolving an issue of statutory construction, we must first and foremost follow the plain language of the statute. General Motors Corp. v. Bray, 243 S.W.3d 678, 685 (Tex.App.-Austin 2007, no pet.). Under the plain meaning rule, if a statute is clear and unambiguous, it should be given its commonly understood meaning without resort to extrinsic aids of statutory construction. Id. Where a word appearing in a statute or rule is undefined by the legislature or governing agency, the word is given its plain and common meaning. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). Only if the statutory language is ambiguous do we defer to an agency’s construction. See Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747 (Tex. 2006). Administrative rules are ordinarily construed in the same manner as statutes. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999); 7-Eleven, 311 S.W.3d at 683. Unless a rule is ambiguous, we follow the rule’s clear language; when there is vagueness, ambiguity, or room for policy determinations in a rule, we defer to the agency’s interpretation unless it is plainly inconsistent with the language of the rule. BFI Waste Sys. of N. Am., Inc. v. Martinez Envtl. Grp., 93 S.W.3d 570, 575 (Tex.App.-Austin 2002, pet. denied).
We review a trial court’s conclusions of law de novo, Botter v. American Dental Ass’n, 124 S.W.3d 856, 860 (Tex.App.-Austin 2003, no pet.), and do not defer to the trial court on questions of law, Perry *748Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008). For mixed questions of law and fact, we defer to the trial court’s factual determinations if supported by the evidence but review its legal determinations de novo. Bramará, v. State, 12 S.W.3d 6, 30 (Tex.1999).
DISCUSSION
This dispute pits form against substance. Gulf argues, essentially, that the substance of these transactions governs, and that we must characterize the metals credits as GAAP does. In determining the Texas apportionment factor, Gulf asserts, the rules of the accrual method of accounting should take precedence over a nonbinding, non-material “presentation error” on its federal tax returns. The Comptroller rejoins that Gulf is bound by the way it characterized the metals credits on its federal tax returns and may not attempt to “retroactively change” its accounting method merely to reduce its franchise tax liability. We disagree with the Comptroller that Gulf is attempting to “change” its accounting method or that, in this case, Gulf is bound by its characterization of the metals credits on its federal tax returns. We agree with Gulf that the characterization of the metals credits turns on the substance of the transactions, and that, based on this record, the metals credits must properly be considered “allowances” under Texas tax law and should operate to • reduce gross receipts.
During the years at issue, section 171.1121 of the Tax Code defined “gross receipts” as “all revenues reportable by a corporation on its federal tax return, without deduction for the cost of property sold, materials used, labor performed, or other costs incurred, unless otherwise specifically provided in this chapter.” Former Tex. Tax Code § 171.1121(a). Former section 171.1121 further provided that “a corporation shall use the same accounting methods to apportion taxable earned surplus as used in computing reportable federal taxable income.” Id.
The Comptroller’s Rule 3.557 in effect for the applicable period similarly provided that “gross receipts” means “all revenues that are recognized under the methods used for federal income tax purposes for the tax reporting period without deduction for the cost of property sold, materials used, labor performed, or other costs incurred, unless otherwise specifically provided for in this section or Tax Code, Chapter 171.” 28 Tex. Reg. 1218 (2003), repealed by 38 Téx. Reg. 5109 (2013) (former 34 Tex. Admin. Code § 3.557) (Comptroller of Pub. Accounts, Earned Surplus: Apportionment) (hereinafter Former Rule 3.557) (emphasis added). Former Rule 3.557(e) further specifically provided that' “sales returns and allowances that a seller allows reduce gross sales of the seller in the computation of gross receipts.” Id.(e)(31).8 Therefore, we are left to de*749termine whether the “metals credits” at issue qualify as “allowances” as contemplated by the applicable regulations, which is a legal determination we review de novo.9 See Botter, 124 S.W.3d at 860. If so, Gulf is entitled to a refund.
Courts have not had occasion to construe Former Rule 3.557’s use of the term “allowance,” and neither the Tax Code nor the Comptroller’s regulations provide a definition for the term. Therefore, we consider its ordinary, common meaning. See McIntyre, 109 S.W.3d at 745. Allowance is defined as a “deduction,” Black’s Law Dictionary 89 (9th ed.2009), and “a reduction from a list price or stated price (as one granted on used products turned in or because of previous credit),” Webster’s Third New Int’l Dictionary 58 (2002). These definitions and the use of the term “allowance” in Former Rule 3.557 imply a transaction between two parties wherein the seller (of goods or services) “allows” the buyer a credit or reduction against an original or stated price.
The uncontroverted evidence in the form of (1) the contracts between Gulf and its customers, (2) the professional auditors’ reports of how and when Gulf records revenue in its financial statements, and (3) the testimony of Masters and Sprouse leads us to conclude that the metals credits must be defined as allowances, contrary to the trial court’s findings that there was “no evidence” that the metals credits constitute allowances. Specifically, the governing contracts provided that the two fees would be netted and invoiced together and contemplated instances when Gulf would actually receive no payment (i.e., no receipt or revenue) from its customer but would, rather, pay the customer for the value of the metals contained in the spent catalyst. Once Gulf received the spent catalyst from its customer, under the applicable contracts and as Masters explained Gulfs operations, Gulf was entirely responsible for processing the catalyst, extracting the metals, computing the amount of metals credit, and invoicing the customer for the difference between the service payment and metals credit, if any. With respect to the invoiced transactions wherein the metals credit exceeded the contracted service payment, Gulf would recognize no revenue and receive no payment from its customer. When the contracted service payment exceeded the metals credit, Gulf would recognize revenue, but only in the amount of the difference between the two amounts. Under these circumstances, the metals credits must be considered allowances as a matter of law. Accordingly, Gulf must be permitted to exclude from its computation of gross receipts any transactions in which its issuance of a “metals credit” exceeded its receipt of a “service payment” and, for transactions in which the service payment exceeded the metals credit, net together the service payment and metals credit to determine gross receipts.
Additionally, we consider persuasive case law from the Tax Court of the United States that directs courts to look to the substance of a transaction rather than its *750form when determining whether an adjustment should properly be considered an allowance. In Pittsburgh Milk, the Tax Court considered whether a corporation’s sales of milk at illegally discounted prices should be used to compute gross sales or whether the fictitious higher prices entered in the corporation’s books should be used. Pittsburgh Milk Co. v. Commissioner, 26 T.C. 707, 708 (1956). The Tax Court held that, notwithstanding the illegal nature of the sales, the gross sales must be computed using the agreed net prices rather than the fictitious higher prices. Id. It reasoned that “each type of transaction must be analyzed with respect to its own facts and surrounding circumstances,” and that the “actual facts, not bookkeeping entries, control the determination of taxable income.” Id. at 717. The “test” to be applied is, “What did the parties really intend, and for what purpose or consideration was the allowance actually made? Where, as here, the intention and purpose of the allowance was to provide a formula for adjusting a specified gross price to an agreed net price, and where the making of such adjustment was not contingent on any subsequent performance or consideration from the purchaser, then, regardless of the time or manner of the adjustment, the net selling price agreed upon must be given recognition for income tax.purposes.” Id.; see also State v. Shell Oil Co., 747 S.W.2d 54, 56 (Tex.App.-Austin 1988, no writ) (franchise tax statute contemplates that tax be determined upon corporation’s “true financial condition” and holding that corporation was entitled to exclude from its calculation of taxable capital its “contra-asset” accounts, consisting of amortized unproductive leaseholds, because such accounts were not available for use by company and including them would “project a distorted view of the taxpayer’s financial condition”). We believe that this reasoning is sound, applies to the facts in this case, and requires a determination that the metals credits were allowances.10 Furthermore, this reasoning aligns with contemporary GAAP principles on the treatment of sales incentives and other consideration given by a vendor to a customer as explained in EITF 01-09.
CONCLUSION
We hold that the “metals credits” at issue in this case constitute “allowances” *751under Former Comptroller Rules 3.557 and 3.549 and that, therefore, Gulf was entitled to a refund of franchise taxes by adjusting its computation of gross receipts to account for these allowances. The trial court erred in determining otherwise, and we reverse its final judgment and remand this cause for further proceedings, in accordance with this opinion, to determine the amount of refund to which Gulf is entitled.
. The service payments are tracked as “Environmental Income” in account # 7000010, while the metals credits are tracked as "Environmental Expenses” in account #7120010. For each tax year at issue, the total of “Environmental Expenses" exceeded the total of "Environmental Income."
. This contract was admitted as joint trial exhibit no. 22, entitled "Services Agreement # 4600001907,” executed by Husky Oil Operations, Ltd. and Gulf on January 1, 2005.
. On its federal income tax returns for the three years at issue, Gulf "checked the box” for the accrual method of accounting.
. Form 1120 is the standard federal income tax return form for corporations.
. Line 1 on form 1120 requires the entry of (a) "Gross receipts or sales,” (b) "Less returns and allowances,” (which space Gulf left blank) for a total (c) "Bal[ance].”
. The franchise-tax statutes and the Comptroller's rules governing Gulf’s liability for the tax years at issue in this case have been amended or repealed since Gulf filed its tax returns. Therefore, we cite to the versions in effect during the relevant years.
. Former section 171.106(a) provided that a corporation's taxable earned surplus and taxable capital “are apportioned to this state to determine the amount of tax imposed under Section 171.002(b)(1) [providing franchise tax rates] by multiplying the taxable earned surplus [or taxable capital] by a fraction, the numerator of which is the corporation’s gross receipts from business done in this state ... and the denominator of which is the corporation’s gross receipts from its entire business.” Act of May 7, 1999, 76th Leg., R.S., ch. 184, § 2, sec. 171.106(a), 1999 Tex. Gen. Laws 651, 652 (amended 2006) (current version at Tex. Tax Code § 171.106).
. Similarly, the applicable Comptroller Rule applying to the determination of gross receipts for the apportionment of taxable capital specifically excluded “allowances” from gross receipts. See 25 Tex. Reg. 12627 (2000), adopted 26 Tex. Reg. 1873 (2001), repealed by 38 Tex. Reg. 5109 (2013) (former 34 Tex. Admin. Code § 3.549(e)(35)). The amount of franchise tax due was determined during the applicable years by a calculation necessitating two components: "net taxable capital” and “net taxable earned surplus.” See Act of Aug. 12, 1991, 72d Leg., 1st C.S., ch. 5, § 8.031, see. 171.002, 1991 Tex. Gen. Laws 134, 154 (amended 2006) (current version at Tex. Tax Code § 171.002) (providing rates and formula for computation of franchise tax due). Because the parties’ briefs focus on whether the metals credits reduce gross receipts for purposes of earned surplus, our discussion will reference the applicable statutes and rules addressing earned surplus. However, our analysis and holding will equally apply to the issue of whether the metals credits reduce *749gross receipts for the taxable-capital component of the franchise-tax calculation.
. The trial court made findings of fact and conclusions of law, several- of which Gulf challenges on appeal in addition to its first issue contending that the trial court erred in determining that it is not entitled to a refund based on netting the two trial balance accounts. The trial court's findings of fact nos. 9 and 10 found that Gulf offered “no evidence” that the metals credits “constituted an allowance” or "should be treated as an allowance.” Its corresponding conclusion of law determined that the metals credits do not "qualify” as allowances under the Comptroller's applicable rules.
. Contrary to the spirit of Pittsburgh Milk, the evidence that the Comptroller cites elevates form over substance: (1) the federal tax returns that Gulf filed for each of the three years in which it failed to characterize the metals credits as allowances and (2) the "trial balance sheets” in which Gulf internally "tracked” the metals credits (as "environmental expenses”) separately from the service payments (as "environmental income”). However, the legal determination of whether the metals credits constitute allowances under Texas law cannot turn on the labeling of such credits in Gulf's internal books or tax forms but must turn, rather, on the substance of the transactions. Additionally, the Comptroller does not cite any authority rendering Gulf's characterization of the metals credits on its federal tax returns as binding on its determination of gross receipts for the franchise tax. Although the Comptroller contends that by attempting to reduce its gross receipts by these "allowances” Gulf is unlawfully and retroactively "changing its accounting method” from the method it used in "computing reportable federal taxable income,” we do not . consider Gulf's non-material error on its federal return as reflective of a "different accounting method” from the accrual method its witnesses testified it has used at all relevant times. However, even if Gulf could be considered to be “changing” its accounting method by seeking to exclude from its gross receipts the metals credits, the Tax Code explicitly permitted a corporation to change its accounting method "used to cálculate gross receipts” once every four years, without consent of the Comptroller. See Act of May 25, 1993, 73d Leg., R.S., ch. 546, § 8, sec. 171.1121(a), 1993 Tex. Gen. Laws 2043, 2044 (amended 2006) (current version at Tex. Tax Code § 171.1121). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283920/ | CLIFF HOOFMAN, Judge | Appellants Raymond and Patricia Edwards appeal from the circuit court’s denial of their motion for custody of their granddaughter, M.A.E., who had been adjudicated dependent-neglected and placed in the custody of appellee, the Arkansas Department of Human Services (DHS). On appeal, appellants argue (1) that their appeal was timely pursuant to Rule 2(c) of the Arkansas Rules of Appellate Procedure — Civil1 and (2) that there was insufficient evidence that the order denying them custody of M.A.E. was in her best interest. Because the circuit court’s order did not comply with Arkansas Rule of Civil Procedure 54(b), we dismiss the appeal without prejudice for lack of a final, appealable order. M.A.E. (12/26/07), along with her two brothers, A.E. (2/27/04) and M.E. 12(11/18/05), were removed from the custody of their parents, Trish Edwards and Bruce Allen, in March 2011 due to environmental neglect. The children were adjudicated dependent-neglected on May 3, 2011, and the case goal was set as reunification with the parents. Appellants, the children’s maternal grandparents, filed a motion to intervene in the case, which was granted on July 6, 2011. Appellants filed a motion for custody of all three children on May 9, 2012, arguing that the children were currently placed in separate foster homes and that it was in their best interest to be placed together in appellants’ custody. A petition to terminate parental rights was filed on November 13, 2012. A.E. and M.E. were temporarily placed with appellants on June 20, 2013, while M.A.E. remained in the same foster home where she had initially been placed. However, the siblings participated in court-ordered supervised visitation with each other once per week. After a hearing held on November 4, 2013, the circuit court granted permanent custody of A.E. and M.E. to appellants but reserved ruling as to the placement of M.A.E., finding that it was in her best interest at that time to remain in foster care and continue in the custody of DHS. A second hearing on appellants’ motion for custody of M.A.E. was held on April 30, 2014. DHS and the attorney ad litem recommended that appellants’ motion for custody be denied based on evidence that M.A.E. had been adversely impacted by visits with her brothers and that she did not wish to live with appellants. Appellants, however, testified that it was in M.A.E.’s best interest to live with them and claimed that DHS, the attorney ad litem, and M.A.E.’s foster parents had engaged in systematic efforts to sever the child’s ^relationship with her biological family so that she could be adopted by her foster parents. After hearing all the evidence, the circuit court found that, while appellants were good people that loved and cared for M.A.E. deeply, it was not in the child’s best interest, nor was it best for her health, welfare, and safety, to be placed in appellants’ custody. The court noted that it based this decision on M.A.E.’s testimony, as well as the testimony of the other witnesses. The court ordered that sibling visitation cease immediately, as it was not in the children’s best interests, and that M.A.E. was to remain in her current foster home. In the written order entered on July 31, 2014, the circuit court stated that appellants were dismissed from the case and that this was a final hearing on their motion for custody of M.A.E., with a termination hearing date to be set.2 By agreement of the parties, the court also included an Arkansas Rule of Civil Procedure 54(b) certificate indicating that there was no just reason for delay and that the judgment was final. Appellants filed a notice of appeal from this order on August 26, 2014, and an amended notice of appeal was filed on August 27, 2014. Appellants first argue on appeal that them notice of appeal from the July 31, 2014 order was timely, even though it was not filed within the shortened twenty-one-day time period required for notices of appeal in dependency-neglect cases under Arkansas Supreme Court Rule 6-9 (2014). They assert that this appeal was not from one of the orders specifically listed |4in Rule 6-9 and that it was therefore governed by Arkansas Rules of Appellate Procedure — Civil 2(c) and 4(a) (2014). We do not address this issue, however, nor do we reach the merits of appellants’ second argument on appeal concerning whether the denial of their motion for custody was in M.A.E.’s best interest, as we hold that the appeal must be dismissed for lack of a final, appealable order. The issue of whether an order is final is a jurisdictional matter, and it is one that this court must consider even if the parties do not raise it. May Constr. Co. v. Town Creek Constr. & Dev., 2010 Ark. App. 711, 2010 WL 4254455; Foreman v. Ark. Dep’t of Human Servs., 78 Ark. App. 48, 82 S.W.3d 176 (2002). An order or judgment is not considered final if it does not adjudicate all of the claims or all of the rights and liabilities of all parties in a case. Ark. R. Civ. P. 54(b) (2014); Ark. R.App. P.-Civ. 2(a)(ll) (2014). Where multiple parties or claims are involved, a trial court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by factual findings, that there is no just reason for delay and upon its express direction for the entry of final judgment. Ark. R. Civ. P. 54(b)(1). If the court makes such a determination, it must execute a certificate in compliance with the requirements of Rule 54(b). Stouffer v. Kralicek Realty Co., 81 Ark. App. 89, 98 S.W.3d 475 (2003). Here, as appellants themselves agree, the denial of their motion for custody was not one of the orders specifically listed as a final, appealable order in Arkansas Supreme Court Rule 6-9(a) or Arkansas Rule of 15Appellate Procedure — Civil 2(c). In addition, it was not a final order awarding custody that is immediately appealable pursuant to Arkansas Rule of Appellate Procedure — Civil 2(d), as it instead maintained M.A.E.’s placement in the foster home pending a subsequent termination hearing. Because the dependency-neglect case involving M.A.E. continued, not all of the claims or rights of all of the parties had been adjudicated at the time of the July 31 order. Recognizing that this order was not a final, appealable order, appellants requested that the circuit court execute a Rule 54(b) certificate. While the circuit court did include a Rule 54(b) certificate in its July 31 order, we conclude that it was not in compliance with the requirements of the Rule. We have stated that the trial court must include specific factual findings in its order explaining why a hardship or injustice would result if an immediate appeal is not permitted. Kowalski v. Rose Drugs of Dardanelle, Inc., 2009 Ark. 524, 357 S.W.3d 432; Stouffer, supra. The Rule 54(b) certificate in this case states as follows: Upon the basis of the foregoing factual findings, the court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the court has and does hereby direct that the judgment shall be a final judgment for all purposes. The court does refer to the factual findings contained in its prior order; however, these findings state only that appellants are dismissed from the case and that the hearing was a final hearing as to their motion for custody. The order does not include specific findings or facts establishing that a hardship or injustice is likely to occur in the absence of an immediate appeal. Kowalski, supra. Further, while the parties did discuss the need for a Rule 54(b) certification at the conclusion of the hearing, such discussions on the record alone are insufficient to cure a defective certification, as the factual findings must be set out in the circuit court’s order. Id. Thus,- the Rule 54(b) certificate in this case is ineffective to certify | (¡the appeal as final, and we therefore dismiss the appeal without prejudice. Appeal dismissed without prejudice. Vaught and Brown, JJ., agree. . Appellees, DHS and the attorney ad litem on behalf of the minor children, filed a joint motion to dismiss the appeal on January 7, 2015. We denied the motion on January 28, 2015. . In their addendum, appellants have also included the circuit court's subsequent August 28, 2014 order granting the petition to terminate parental rights with respect to M.A.E. However, appellants did not amend their notice of appeal to designate that they were appealing from the order of termination. Thus, we cannot consider this order in our decision. See Hall v. Ark. Dep’t of Human Servs., 101 Ark. App. 417, 278 S.W.3d 609 (2008). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283921/ | M. MICHAEL KINARD, Judge | ¡Appellant Calvin Ivory filed a negligence suit against appellee Woodruff Electric Cooperative Corporation after a fire destroyed Ivory’s house. He alleged that Woodruff was negligent in the maintenance of its electric poles, lines, and transformers located near his property in that Woodruff had refused to exercise ordinary care by taking measures to prevent known wildlife in the area from interfering with the electrical equipment. Ivory claimed that this allowed a squirrel to interfere with the electrical equipment, which caused the fire that destroyed his property. Ivory also alleged that he was entitled to recover damages under the theory of res ipsa loquitur. The trial court granted summary judgment to Woodruff. Ivory now appeals, arguing that the trial court erred in determining that Woodruff did not owe him a duty and that res ipsa loquitur did not apply. We find merit in his first point and reverse and remand. In its motion for summary judgment, Woodruff argued that, as a matter of law, it had |2no legal duty to foresee or protect against harm caused by squirrels. Wood-ruff also argued that Ivory could not recover under res ipsa loquitur because Woodruff did not maintain control over all of the instrumentalities that led to the fire, including the squirrel and the vacant lot where the fire originated, and the injury occurred absent any negligence on its part. Ivory responded 'to the motion, and both parties attached excerpts from the deposition of Carl Horton, Woodruff s vice president of member services. Horton testified that one of Woodruffs goals was to provide safe electrical service. He said that the fire was caused when a squirrel got on the transformer and created a fault current by touching either the top of the bushing or the wire next to the bushing. This caused a line to burn and fall to the ground dropping molten metal. A grass fire started that burned across a lot to Ivory’s house. Horton testified that a critter guard is a device that can be put on transformers to try to keep animals from making contact with the bushing. He said that the transformer where the fire started did not have a critter guard because it was not Wood-ruffs standard practice to put critter guards on all transformers. Woodruff did put critter guards on transformers that had a history of wildlife-related outages, but this location had never had a wildlife-related outage. Woodruffs newer model transformers were equipped with critter guards and protective covered wire that prevented many contacts from animals and tree limbs. This location . did not have covered wire. Horton said that electric companies know that squirrels can cause a fault current and that it was “pretty common” for a squirrel to cause an outage. He said that those outages | .¡sometimes cause the power lines to spark, and the lines can burn and fall to the ground. Horton said that it was not necessarily true that Ivory’s house would not have burned if this transformer had a critter guard because critter guards are not one hundred percent effective in preventing animals from causing damage. Horton said that this transformer was in compliance with all of Woodruffs policies as well as the requirements of the National Electric Safety Code, the Public Service Commission, and the Rural Utilities Service. The trial court found that Woodruff did not have a duty to protect Ivory from damage caused by wild animals under these circumstances. The court also found that the doctrine of res ipsa loquitur did not apply because Ivory’s real- and personal-property damage was not caused by an instrumentality that was under the exclusive control of Woodruff.. Summary judgment is to be granted by the circuit court only when it is clear that there are no genuine issues of material fact to be litigated. Clark v. Transcontinental Insurance Co., 359 Ark. 340, 197 S.W.3d 449 (2004). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave’ a material fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Ivory argues that the trial court erred in ruling that Woodruff did not owe a duty to him. He contends that Woodruff undertook a' duty to provide safe electrical services to him, |4noting Horton’s statement that this was a goal of Woodruffs. Citing cases from other jurisdictions for the principle that a property owner has no legal duty to guard against damages caused by wild animals, Woodruff argues that, as a matter of law, it did not have a duty to protect Ivory from the damage caused by the squirrel. Woodruff notes that Ivory did not cite a single statute, case, or regulation that imposes a duty to install a critter guard on the transformer. The question of what duty, if any, is owed a plaintiff alleging negligence is always a question of law and never one for the jury. Central Oklahoma Pipeline, Inc. v. Hawk Field Services, LLC, 2012 Ark. 157, 400 S.W.3d 701. An electric company has a duty to inspect and maintain its power lines in proper and safe working order. Clark, supra. Prior decisions involving actions against electric companies in Arkansas are fairly consistent in holding that it is the duty of those utilities to exercise ordinary and reasonable care in the erection and maintenance of power lines. Id. (citing Stacks v. Arkansas Power & Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989)). Electric companies, however, are not insurers against accident or injury and are not held liable for injuries that cannot be reasonably foreseen. Id. (citing Arkansas Power & Light Co. v. Lum, 222 Ark. 678, 262 S.W.2d 920 (1953)). In Bellanca v. Arkansas Power & Light Co., 316 Ark. 80, 870 S.W.2d 735 (1994), an employee of appellee activated the electrical power at appellant’s mobile home, at appellant’s request, and also turned the switches on in the breaker box. Appellant was making electrical repairs and did not want the breaker switches turned on. A box sitting on an electric stove inside the mobile home ignited when the breaker switch was- turned on, and the residence | sand its contents were damaged. Appellant filed suit, and appellee filed a motion for summary judgment, which was granted. The supreme court noted that there was, without question, a duty to act reasonably when supplying power, and it reversed with regard to the existence of a duty. The supreme court held that the trial court erred in limiting its holding to deciding as a matter of law that there was no duty to inspect the customer’s premises prior to activating service and ignoring that there was a broader duty of reasonable care in supplying power. The supreme court held that whether activation of appellant’s breaker switches constituted a breach of the duty of reasonable care was a question of fact to be left to the finder of fact. Here, while Ivory did not present evidence of a regulation requiring critter guards in these circumstances, this ignores the broader duty of reasonable care. Although a party’s compliance with industry or statutory-safety standards is proper evidence on the question of negligence, it is not conclusive because it is not necessarily a complete discharge of the party’s duties toward the public. Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W.2d 836 (1968); see also Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976) (discussing testimony that, aven though the specific standards of the National Electric Safety Code were complied with, these were minimum standards that were not practical for this particular installation). It is the duty of an electric company to use ordinary care to provide and install proper electrical service equipment, AMI Civ. 1401 (2014), and ordinary care is the care a reasonably careful person would use under circumstances similar to those shown by the evidence. AMI Civ. 303 (2014); Mangrum v. Pigue, 359 Ark. 373, 198 S.W.3d 496 (2004). We reverse and remand the order of summary judgment based on the existence of a duty as a matter of law. It will be up to the trier of fact to determine whether Woodruff breached its duty to Ivory, whether the occurrence was foreseeable, and whether the negligence, if any, was a proximate cause of Ivory’s damages. Clark, supra. Ivory also argues that the trial court erred in ruling that the doctrine of res ipsa loquitur was inapplicable. The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause is connected with an instrumentality in the exclusive control of a defendant. Johnson v. M.S. Development Co., LLC, 2011 Ark. App. 542, 386 S.W.3d 46. It applies where the evidence of the true cause is available to the defendant but not to the plaintiff. Id. The doctrine, when applicable, allows the jury to infer negligence from the plaintiffs evidence of circumstances surrounding the occurrence. Id. To invoke the doctrine of res ipsa loquitur, a plaintiff must show that (1) the defendant owes a duty to the plaintiff to use due care; (2) the accident is caused by the thing or instrumentality under the control of the defendant; (3) the accident that caused the injury is one that, in the ordinary course of things would not occur if those having control and management of the instrumentality used proper care; and (4) there is an absence of evidence to the contrary. Id. Ivory argues that Woodruff owed him a duty to provide safe electrical services; that the electrical equipment was under Woodruffs control; and that the fire would not have occurred had Woodruff exercised proper care and installed a critter guard. Woodruff argues that several instrumentalities that caused or contributed to the damage were not within its control or management, including the squirrel, the lot where the grass fire started, and the 17conditions that caused the fire to spread from the lot onto Ivory’s property. We agree that the doctrine of res ipsa loquitur does not apply here. The squirrel was clearly not within Woodruffs exclusive possession and control. Furthermore, this is not a case where the evidence of the true cause of the accident is available to the defendant but not to the plaintiff. We find no error in the trial court’s ruling on the applicability of res ipsa loquitur, but we reverse and remand the summary judgment on the claim for negligence. Reversed and remanded. Glover and Hixson, JJ., agree. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283922/ | RAYMOND R. ABRAMSON, Judge |! This is an appeal from the dismissal of a declaratory-judgment claim. On appeal, Farmers Insurance Exchange (“Farmers”) argues that the circuit court erred when it declared that Ray and Lanna Bradford’s homeowner’s insurance policy with Farmers covered an accident involving a boom lift. We affirm. Ray has a business of maintaining parking lots. In that business, Ray often changes light bulbs in light fixtures located on the lots, and to help him with this task, he purchased a JLG Model 450 articulated boom lift (“boom lift”). A boom lift is a machine that elevates a platform. In this case, the boom lift can reach up to forty-five feet, and the platform’s capacity is 500 pounds. It has a motor, four tires, and can be steered. It moves less than 4.5 miles per hour. |20n October 2, 2010, Ray and his brother, Jason Bradford, were using the boom lift at Ray and Lanna’s residence when the boom lift tipped over and Jason was injured. In response to the accident, a claim was filed under Ray and Lanna’s homeowner’s insurance policy issued by Farmers. Farmers then filed a declaratory-judgment complaint in the Independence County Circuit Court, asserting that Jason’s injury was excluded from coverage because the boom lift came within the policy exclusion regarding injuries sustained in the operation or use of motor vehicles.1 Ray and Lanna answered, denying that the policy exclusion applied. Jason also answered, denying that the exclusion applied and filing a counterclaim against Farmers. The relevant sections of Ray and Lan-na’s policy with Farmers state: DEFINITIONS [[Image here]] 17. Motor vehicle — means: a. any self-propelled vehicle or any self-propelled machine, whether operable or not, which is designed for movement on land or on land and in water, including by way of example but not limited to any type of automobile, hovercraft, or air cushion vehicle; b. parts, equipment, machinery, furnishings or accessories attached to or located in or upon such vehicle or machine described in subsection a. above; and c. any trailer or semi-trailer which is being carried on, towed by, or hitched for towing by a vehicle or machine described in subsection a. above [[Image here]] SECTION II — LIABILITY EXCLUSIONS [[Image here]] 15. Aircraft, motor vehicles, or watercraft. We do not cover bodily injury, property damage or personal injury arising from, during the course of or in connection with the ownership, maintenance, operation, use, occupancy, loading, or unloading, moving or movement, or entry or exit of any: [[Image here]] |sb. motor vehicle; However, this exclusion does not apply to: (1) a motorized golf cart not subject ' to motor vehicle registration: i. while on the golf course and used for golfing purposes, or ii. while in a private residential community, including its public roads upon which a motorized golf cart can legally travel, which is subject to the authority of a property owners association and contains the residence premises; (2) lawn, garden or farm equipment principally used on the residence premises; (8) recreational vehicles not subject to motor vehicle registration that are only used on the residence premises, including by way of example, all terrain vehicles; (4) any watercraft, camper, home or utility trailer not being towed by, attached to or carried on a motor vehicle; or (5) a motorized assisted living device designed to assist the disabled. The case proceeded to a bench trial on August 1, 2013, where the relevant facts were not disputed.2 Following the trial, on October 18, 2013, the circuit court entered a judgment, declaring that the motor-vehicle exclusion did not apply to the boom lift and dismissing Farmers’s complaint with prejudice. Specifically, the judgment stated: [T]he [cjourt finds, for the reasons articulated by Defendant Jason Bradford in his trial brief, that the motor vehicle exclusion is inapplicable to the occurrence described herein and therefore [Farmersj’s petition for declaratory judgment exonerating it from the duty to defend or indemnify Ray Bradford as regards any claims of Jason Bradford, should be and hereby is denied and [Farmersj’s petition should be and hereby is dismissed with prejudice. In his trial brief, Jason argued that the term “vehicle” in the Farmers policy is ambiguous. He further cited statutory and dictionary definitions of “vehicle” and asserted that the boom lift did not fit those definitions. DFarmers then filed a motion to reconsider or for a new trial. Farmers attached to its motion a tort complaint filed, by Jason against Ray in September 2013. The complaint alleged that Ray “caused the machine to move forward. After moving a few feet, the [boom lift] toppled over.” The complaint further alleged that Ray’s negligence caused “the machine to move when the boom was in a position above horizontal.” The circuit court denied Farmers’s motion to reconsider or for a new trial. Farmers filed a notice of appeal. On .October 8, 2014, this court dismissed Farmers’s appeal for lack of a final order because the circuit-court order dismissing the declaratory judgment did not dispose of Jason’s counterclaim. See Farmers Ins. Exch. v. Bradford, 2014 Ark. App. 537, 2014 WL 5035118. Following our dismissal, on November 7, 2014, the circuit court entered an order dismissing Jason’s counterclaim as moot. Farmers then filed a second notice of appeal on November 13, 2014. On appeal, Farmers asserts that the circuit court erred when it found that the motor-vehicle exclusion did not apply to the boom lift. In bench trials, the standard of review on appeal is whether the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Benefit Bank v. Rogers, 2012 Ark. 419, 424 S.W.3d 812. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Primus Auto. Fin. Servs., Inc. v. Wilburn, 2013 Ark. 258, 428 S.W.3d 480. However, we review questions of law de novo. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. Therefore, we review the circuit court’s factual findings for clear error and its interpretation of the law de novo. Robinson v. Villines, 2009 Ark. 632, 362 S.W.3d 870. Our law regarding the construction of insurance contracts is well settled. McGrew v. Farm Bureau Mut. Ins. Co., 371 Ark. 567, 268 S.W.3d 890 (2007); Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). The language in an insurance policy is to be construed in its plain, ordinary, and popular sense. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). Different clauses of an insurance contract must be read together and the contract construed so that all of its parts harmonize. Philadelphia Indem. Ins. Co. v. Austin, 2011 Ark. 283, 383 S.W.3d 815. Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. McGrew, 371 Ark. 567, 268 S.W.3d 890. If a provision is unambiguous, and only one reasonable interpretation is possible, this court will give effect to the plain language of the policy without resorting to the rules of construction. Id. If, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id. Our supreme court has applied the rule of construction of noscitur a sociis when interpreting language in an insurance policy. See Union Bankers Ins. Co. v. Nat’l Bank of Commerce of Pine Bluff, 241 Ark. 554, 408 S.W.2d 898 (1966). Noscitur a sociis in “literal translation means ‘it is known from its associates’ and in practical application means that a word may be defined by an accompanying word.” Weldon v. Sw. Bell Tele. Co., 271 Ark. 145, 146, 607 S.W.2d 395, 396 (1980). | Jn this case, Farmers argues that the circuit court erred in finding that the motor vehicle exclusion did not apply to the boom lift because, in making its decision, the court relied upon various statutory and dictionary definitions of motor vehicle.3' Farmers asserts that the circuit court should have relied solely upon the policy definition of motor vehicle, and had it done so and given the definition’s words their ordinary meaning, then the court should have found that the motor-vehicle exclusion applies to the boom lift. Farmers’s argument that the circuit court should not have relied on statutory and dictionary definitions of motor vehicle has merit. In Nationwide Mut. Ins. Co. v. Worthey, our supreme court noted that when an insurance policy includes a definition, the policy definition controls the court’s analysis. 314 Ark. 185, 861 S.W.2d 307 (1993) (citing Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437 (8th Cir. 1986) (holding that where a term is defined in the policy, the court is bound by the policy definition)). However, any reliance on those definitions by the circuit court does not warrant reversal in this case because the motor-vehicle definition in the Farmers policy is ambiguous. The Farmers policy defines motor vehicle as “any self-propelled vehicle or any self-propelled machine, whether operable or not, which is designed for movement on land or on land and in water, including by way of example but not limited to any type of automobile, hovercraft, or air cushion vehicle.” This definition lends itself to more than one reasonable interpretation.1 |7Specifically, one can read the definition to exclude all self-propelled vehicles and machines that are designed for a means of conveyance. The definition’s examples — automobile, hovercraft, and air-cushion vehicle — suggest this interpretation. Or, as Farmers claims, the definition can be read to exclude any self-propelled vehicle and machine that can move on land or on land and in water. Because an ambiguity exists in the Farmers policy, we must apply the interpretation that favors the insured in these circumstances, and in doing so, agree with the circuit court that the motor-vehicle exclusion did not apply to the boom lift. Accordingly, we affirm the circuit court’s decision. While we recognize that the circuit court decided this case on a different theory, this court sustains a circuit court’s ruling when it reached the right result. Bushong v. Garman, Co., 311 Ark. 228, 843 S.W.2d 807 (1992). Affirmed. Gladwin, C.J., and Harrison, J., agree. . Farmers also argued that Jason’s injury was excluded because the accident occurred in connection with Ray’s business. However, Farmers abandons that argument on appeal. . The parties disputed the reason why Jason and Ray were using the boom lift at the time of the accident. However, they agree this disputed fact is not relevant to the issue on appeal. . Farmers assumes that the circuit court relied on statutory and dictionary definitions because in the judgment the court stated that it made its decision "for the reasons articulated by [Jason] in his trial brief,” and Jason's trial brief cites statutory and dictionary definitions of "vehicle.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283923/ | KENNETH S. HIXSON, Judge | Appellant Jerry Cossey suffered an admittedly compensable low-back injury on August 9, 1993, while working for appellee Pepsi Beverage Company, as he was moving a case of Pepsi in a convenience-store cooler. At that time, Cossey was in his mid-thirties. He was treated conservatively for an extended period of time, and eventually he was issued an eleven-percent anatomical impairment rating, which is not at issue on appeal. At issue in the current appeal is Cossey’s entitlement to additional medical treatment for pain management and to wage-loss benefits in excess of the anatomical impairment rating. The administrative law judge found that Cossey was entitled to additional medical treatment and to twelve-percent in wage-loss disability benefits. On de novo review by the Commission, it found that Cossey | awas not entitled to any additional medical treatment but that Cossey was entitled to twenty-five percent wage loss disability.1 Cossey appeals, and Pepsi cross-appeals. Cossey contends that there lacks substantial evidence to support denial of his request for additional medical treatment in the form of pain management, and that ’ there lacks substantial evidence to support the inadequate award of wage-loss disability benefits. Pepsi cross-appeals, contending that there lacks substantial evidence to support any award of wage-loss disability benefits. We affirm on direct appeal and on cross-appeal. In reviewing Commission decisions, we view the evidence in the light most favorable to the Commission’s decision and affirm it if it is supported by substantial evidence. Hill v. Treadaway, 2014 Ark. App. 185, 433 S.W.3d 285. Substantial evidence exists, if reasonable, minds could reach the Commission’s conclusion, and we will not reverse unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. Questions concerning the credibility of witnesses and weight of evidence, as well as the probative value of any medical evidence, are for the Commission to decidé. Id. The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and translate into findings of fact only those portions of the testimony that it | adeems worthy of belief. Id. When the Commission denies benefits because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Howell v. Scroll Techs., 343 Ark. 297, 35 S.W.3d 800 (2001). The first issue on appeal concerns the denial of Cossey’s request for additional medical treatment in the form of pain management. Arkansas Code Annotated section ll-9-508(a) requires employers to provide medical services that are reasonably necessary in connection with the compensable injury. A claimant bears the burden to establish by a preponderance of the evidence that the treatment is reasonable and necessary and bears a causal connection to the work injury; it is a question of fact. Cole v. Commerce & Indus. Ins. Co., 2009 Ark. App. 617, 2009 WL 3153322. A claimant may be entitled to additional treatment after the healing period has ended if it is geared toward management of the compensable injury. Santillan v. Tyson Sales & Distribution, 2011 Ark. App. 634, 386 S.W.3d 566. Here, the question is focused on whether there is a causal connection between the 1993 injury and the present need for pain management treatment. We hold that substantial evidence supports the finding that Cossey failed to prove entitlement to additional medical treatment. Our review of the evidence shows that Cossey, now in his mid-fifties, began working for Pepsi in the late 1970s. As a route driver, he sold soft drinks, loaded a truck, and stocked shelves, which required lifting, bending, and stooping. It was undisputed that in August 1993, when Cossey was in his mid-thirties, he was stocking a convenience store cooler with cases |4of Pepsi when he experienced a “pop” in his back and the onset of low back pain. It was also undisputed that Cossey had a history of intermittent lumbar pain. Cossey at first saw the company doctor but then was referred to Dr. Standefer, a neurosurgeon. X-rays taken around the time of this work injury showed multilevel degenerative disc disease and some associated disc space narrowing, osteophyte formation, and focal disc protrusion in the lumbar levels. He had mild muscle spasms. It was a nonsurgical injury; he was treated with analgesic medication and muscle relaxers, as well as a work-hardening exercise plan to strengthen his low back. By December 1993, a functional capacity evaluation indicated that Cossey was capable of light work with some lifting restrictions. His physician opined in January 1994 that Cossey needed to avoid heavy lifting and repeated bending and probably should consider vocational training or higher education to enter into a different kind of work. With his multilevel lumbar disc disease, Cossey was expected to have low back pain and intermittent lower-extremity pain. Although given narcotic medication in the beginning, Dr. Standefer wanted Cossey to take as little as possible of that medicine and wean himself off of it. In May 1995, a follow up visit to the doctor showed substantial improvement in regard to pain in his low back. His physician prescribed a physical therapy regimen, massage therapy, and ultrasound therapy for about a month, although Cos-sey “feels that he is back to his baseline level of activity.” Cossey remained off work. Cossey was the subject of surveillance in the summer of 1995, and he was observed repeatedly bending, working on his vehicle, carrying heavy objects, and weed-eating his yard. |sIn October 1995, Cossey followed up with his doctor where his condition was deemed unchanged from prior months, having “done reasonably well.” He was noted to be taking classes at Wes-tark. He was recommended to use over-the-counter anti-inflammatory medication and to be careful with lifting and bending. Dr. Standefer noted that prior radiographic studies showed “findings consistent with degenerative disc disease at multiple levels,” which was sufficiently severe “to account for his pain.” In January 1996, he. was assessed a ten-percent permanent partial impairment rating by Dr. Stande-fer. Over the next several years, Cossey would return for a follow up examination with his physician, who consistently recommended conservative care for his nonsurgical low-back pain. The treatments included epidural steroid injections, exercise programs, and over-the-counter medications as needed. Another functional capacity evaluation in 2000 indicated that Cossey could perform light duty in a part time capacity. In 2002, Dr. Standefer opined that his chronic back pain was based on his underlying degenerative changes. By June 2003, Cossey was seen for an independent medical evaluation by Dr. Knox. At that time, Cossey was forty-four years old. Dr. Knox gave Cossey an eleven-percent anatomical impairment rating. Intermittent steroid injections were given to Cossey in his lumbar spine. His primary physician opined in February 2007 that Cossey was not able to work in any capacity. This opinion did not change through 2009, although the pathology was noted to be long-standing degenerative disc disease. Another independent medical review was done on Cossey in October 2009 by Dr. Calhoun. At that point, Cossey was fifty years old. Dr. Calhoun reviewed Cossey’s care |f,and treatment over the years for degenerative disc disease. Dr. Calhoun believed that Cossey would need chronic narcotics and other medications for his pain. Another physician saw Cossey in 2011, offering to provide non-narcotic conservative care for his chronic low back pain, but Cossey rejected that doctor’s care. In November 2012, Dr. Cannon saw Cossey for chronic pain, and Dr. Cannon prescribed narcotic and non-narcotic medications. In October 2013, Cossey saw Dr. Mar-timbeau for yet another independent medical evaluation, who opined that Cossey had chronic low back pain “secondary to a multilevel degenerative osteoarthritis of the lumbosacral spine from Ll-2 to L5-S1.” When asked whether the current need for treatment was reasonable and medically necessary for his August 1993 injury, Dr. Martimbeau opined that all the treatment and diagnostic medications over the previous twenty years was related to the chronic degenerative condition and not the work-related strain of his lumbar spine. Dr. Martimbeau opined that none of the medications Cossey was currently taking were necessary for the original lumbar strain. Dr. Martimbeau later opined that Cossey should have been able to return to work in May 1995, albeit with no heavy lifting. Cossey had not worked in twenty years, since his time with Pepsi. He received monthly social security disability benefits as well as retirement from Pépsi, totaling over $2500 per month. He had not looked anywhere for work since 1993, although he stated that he asked for a less strenuous job with Pepsi many years prior but was not offered one. He quit his college course work prior to completing a business degree. Cossey also admitted that he |7had a vehicle accident in 2008 that hurt his back; he settled that case for payment of his medical bills and $12,000. Cossey filed a workers’ compensation claim for wage-loss benefits in excess of the eleven percent whole body impairment rating and for additional medical treatment to include pain management. Pepsi responded that it had paid all reasonable and necessary medical treatment related to the 1993 compensable injury, that if any treatment was needed it was causally related to a pre-existing and unrelated medical condition, and that no wage loss was warranted. The Commission found that Cossey was at maximum medical improvement (“MMI”) in January 1996, when Cossey was first given an impairment rating. Despite his having reached MMI, the Commission noted, Pepsi continued to provide conservative care for years thereafter. The Commission found Dr. Martimbeau’s opinions were entitled to great weight in making its finding that appellant’s 1993 muscle strain had long since healed and did not require ongoing medical treatment. The Commission found that all the medical records were consistent in recognizing that appellant suffered a chronic, progressive, unrelated degenerative disease, which was the cause for the need for treatment. The question of reasonable and necessary treatment in relation to a compensable injury is a question of fact for the Commission to resolve, and we hold that there is substantial evidence of record to support the denial of additional medical treatment as not related to his 1993 work injury. Compare Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. 153, 426 S.W.3d 539. We affirm the denial [sof additional medical treatment as not reasonably necessary in relation to the 1993 work injury. This brings us to Cossey’s second point on appeal, where he contends that the Commission should have awarded him greater than twenty-five percent in wage-loss disability benefits, over and above his permanent partial impairment rating. Pepsi disagrees that any wage-loss benefits were warranted or proved by Cossey, cross-appealing that finding. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Wal-Mart Assoc., Inc. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683. When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. Id. The Commission is charged with the duty of determining disability based upon consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, work experience, motivation, post-injury income, demeanor, and credibility. Miller v. White Hall Sch. Dist., 2010 Ark. App. 460, 2010 WL 2195749. Here, the Commission awarded Cossey twenty-five percent in wage-loss disability benefits, more than that awarded by the administrative law judge. The Commission recognized that Cossey was middle aged, had work experience primarily in the manual labor fields, but also noted that functional evaluations over the years showed his capacity to work in light duty with lifting restrictions. The Commission considered the evidence dating back to 1995 that appellant was observed performing strenuous yard work and other physical activities for his own purposes, and it deemed Cossey not credible in his assertion that helncould not attend college or sit or stand due to his 1993 work injury but was more likely disinterested in returning to any appropriate suitable employment. Cossey contends that his compensable low-back injury suffered in 1993 has more seriously affected his present ability to earn a meaningful wage. Cossey specifically asserts that there is evidence of record to support a greater wage-loss disability award. On the other hand, Pepsi contends that Cossey is not wage disabled at all due to his 1993 work injury. This, as always, is a fact-intensive inquiry in which all the specific facts of this claimant’s age, abilities, education, physical and mental limitations, motivation, and demeanor and any other factor deemed relevant are to be considered. Ark.Code Ann. § ll-9-519(e). See also R.L. Landscaping v. Jones, 2010 Ark. App. 304, 374 S.W.3d 761; Maulding v. Price’s Utility Contractors, Inc., 2009 Ark. App. 776, 358 S.W.3d 915. Given this fact-intensive inquiry, and viewing the evidence in the light most favorable to the Commission’s decision as we must, we hold that reasonable minds could conclude that appellant was entitled to twenty-five percent wage-loss disability in excess of his permanent partial impairment. Compare Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005). Affirmed on direct appeal and on cross-appeal. Kinard and Glover, JJ., agree. . This was a divided opinion of the Commission. Accompanying the majority opinion, there. were two concurring-in-part-and-dissenting-in-part opinions. One Commissioner agreed that no additional medical treatment was warranted, but disagreed that any wage loss was warranted. Another Commissioner disagreed on the denial of additional medical care and asserted that the wage loss award was warranted and should have been seventy-five percent. Regardless, our court reviews the majority decision of the Commission. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283924/ | RITA W. GRUBER, Judge h Michael Webb has complied with our order to supplement the record before us, see Webb v. State, 2014 Ark. App. 637, 2014 WL 5849234, and we now address the merits of his appeal. On November 15, 2010, the circuit court sentenced Webb to three years’ probation on, his negotiated plea of guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia — Class C felonies. In a sentencing order entered on December 2, 2013, his probation was revoked and he was sentenced to concurrent terms of six years’ imprisonment on each count. Webb appeals the revocation, raising two points. He contends (1) that the court’s finding that he violated terms of his probation was clearly against the preponderance of the evidence and (2) that his due-process rights were violated because the court considered matters not contained in the State’s petition to revoke.1 We affirm. | gWebb’s probation was subject to written conditions, and the circuit court provided him the opportunity to have his record expunged if he successfully completed drug court. On August 8, 2013, the State filed a petition to revoke his probation based on violations of the following conditions: “# 1 Laws, # 5 Weapons, # 6 Controlled Substances, # 14 Fines, # 15: Court costs, # 16 Public Defenders Fee, and #23 Additional Costs.” A violation report that accompanied the petition further specified: 1. Not commit any felony, misdemeanor or other criminal offense punishable by confinement in jail or prison. On August 6, 2013, Webb was arrested for the offenses of Driving on Suspended License, Theft by Receiving — 2 cts, and Possession of Firearm by Certain Persons in Stuttgart, Arkansas. 5. Not purchase, own, possess, or control any deadly weapons [or] firearms. According to reports received from the Stuttgart Police Department, on August 6, 2013, Webb was in possession of a Smith & Wesson .38 Revolver Stainless. 6. Not possess, buy, consume, sell or distribute any alcoholic beverages, or controlled substances. Do not enter places where alcoholic beverages or controlled substances are used, sold or permitted. Webb tested positive for THC on 7/29/2011. 14.Pay a fine in the amount of $100.00, payment to be made to the Drew County Sheriff’s Office at the rate of $_ per month, and pay $5.00 monthly installment fee to the sheriff’s office for each month you have a fine balance. Webb has failed to make any payments to the sheriffs office as directed on this account. 15. Pay $165.00 Court Costs to the Sheriff’s Office. Webb has failed to [make any] payments on this account as directed. 16. Pay $100.00 Public Defender fee to the Sheriffs Office. Webb has failed to make any payments on this account as directed. 23. Additional Conditions: $250.00 DNA Fee, $20.00 Booking Fee, $125.00 Drug Crime Fee Webb has failed to make any payments on this account as directed. I?,The State presented the following testimony at the revocation hearing, conducted on December 2, 2013. Webb’s probation officer, Sharon Anderson, testified that she became involved in the case after he was arrested in Stuttgart, Arkansas, for driving on a suspended license, theft by receiving, and possession of a firearm. She testified that although Webb made no payments on his court-ordered obligations and tested positive for THC in July 2011, the Stuttgart “incident” was the only reason the revocation petition was filed. The circuit court noted, “Clearly, we’re here because of what happened in Stuttgart.” Sgt. Kyle Stokes of the Stuttgart Police Department testified that on August 6, 2013, he made a traffic stop of a car that Webb was driving, in which Webb’s friend Tracy Wright was the sole passenger. According to Sergeant Stokes, Webb was arrested for driving on a suspended license and police conducted an inventory search of the vehicle before towing it. There was a .38 revolver under the front passenger seat and a small, locked safe in the back seat; officers detected the strong smell of marijuana emanating from the safe, which “had a combination and possibly a key, too.” Capt. Dean Mannis of the Tri-County Drug Task Force testified that the safe was in plain view in the back seat and that a check of the revolver’s serial number revealed that the firearm had been stolen in Jacksonville, Arkansas. When Captain Mannis asked Webb about the safe, he replied that he did not have a key, did not know what was in the safe, and “was just making a delivery for somebody.” After obtaining a search warrant and opening ‘the safe with a screwdriver, Captain Man-nis discovered what he suspected to be cocaine and marijuana. Webb, who had $460 cash on his person, was jailed on charges of theft by receiving and felon in possession of a firearm. |4The State concluded its case, and the court asked Webb if he wished to present his own proof. Webb responded, “[BJefore I do, I would move ..., since it was not alleged in the revocation petition anything about possession of drugs or any charges relating to drugs, that the Court disregard any testimony about the safe.... It’s not alleged in the revocation petition at all.” The following colloquy then occurred: The Court: Well, why didn’t you make your objection [on cross examination] when you started bringing it out? You didn’t think about it then; you thought about it just then. The objection would have probably been overruled. The police report that you were furnished, did it have anything about drugs in it? Defense Counsel: No. [[Image here]] Prosecutor: Your Honor, it talks about the safe had a strong odor of marijuana coming from it. The Court: Okay. That’s all I need to hear. Defense Counsel: But it does not say he was arrested for— The Court: It doesn’t matter if he was arrested for it. The police report puts you on notice— [[Image here]] The Court: If you had had any — If you had wanted to, you’d call the officer long before now and ask him, “What did you find?” Defense Counsel: The police report said he was arrested for theft by receiving and firearm by a certain person. It does not say anything about being arrested for any type of drugs or what was found in any safe. The Court: But drugs were smelled in the car. I’m saying, it just can’t come as a complete surprise to you. What would you have done differently in this case, if he would have put it in big, bold caps, “And by the way, they found some pot in the safe,” how would you have tried this case any differently? You wouldn’t have; and you |sknow it and I know it. Thank you. You’re overruled. In the case for the defense, Tracy Wright testified that the gun was his and that Webb was unaware of its being in the vehicle. Webb also testified, denying any knowledge that the gun or drugs were in the vehicle, which belonged to his brother. He said that he did not enroll in a drug-court program because it would have caused him to lose his job, and he explained that the money he was carrying at the time of his arrest came from a workers’ compensation check for a recent injury. The court found that both Webb and Wright were in constructive possession of a firearm and of drugs. The court noted that the gun whs found under the passenger seat where Wright was riding; that Webb was driving the car, allegedly owned by his brother; and that with respect to the drug, or drugs, in the backseat and in .the safe ... there was the smell of marijuana in the vehicle and marijuana was found in the safe. Further, Mr. Webb was found in possession of a substantial amount of cash: four hundred and something dollars. It may have come from a workers’ comp, check. But of course if he was working, he wouldn’t have been getting a workers’ comp, cheek. But there’s no proof that he, here today, other than his testimony, unsupported, that he was working at the time or receiving' any pay stubs. He certainly was not paying anything he owed to the State because he’s behind on all of that. Hadn’t made any payments. ... And the stuff I heard on the stand is a bunch of baloney today. ... And what this Court is faced with is just not failure to pay fees and stuff. I’ve got drugs, and firearm, and a substantial amount of cash. And I think two years, if you’re caught in that situation — With three in the car, four in the car, six in the car, it' doesn’t matter, you’re the driver — it’s your brother’s car — and you’re streetwise and you know what’s going on. Three years is not enough when you’ve got a stolen gun, drugs— And you’ve already been given every opportunity in the world to straighten up and fly right — and you’ve got cash on you. On these findings, the circuit court concluded that Webb had violated condition No. 1, which required that he not commit any felony, misdemeanor, or other criminal offense | (¡punishable by confinement in jail or prison. The court then stated, “I don’t need to make any findings on' any other conditions.” Webb’s probation was revoked, and he was sentenced to six years’ imprisonment in the Arkansas Department of Correction. I. Whether the Court’s Finding that Webb Violated Terms of His Probation Was Clearly Against the Preponderance of the Evidence In revocation proceedings, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2013). Evidence that may not be sufficient to convict can be sufficient to revoke due to the State’s lower burden of proof. Newborn v. State, 91 Ark. App. 318, 210 S.W.3d 153 (2005). A circuit court’s finding in revocation proceedings will not be reversed on appeal unless it is clearly against the preponderance of the evidence. Id. Because the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Boyd v. State, 2014 Ark. App. 336, 2014 WL 2442998. Constructive possession may be implied when contraband is in the joint control of the accused and another. Risper v. State, 2012 Ark. App. 658, at 4, 2012 WL 5834650. Joint occupancy alone is insufficient to establish possession or joint possession; the State must also prove that the accused exercised care, control, and management over the contraband and that the accused knew the matter possessed was contraband. Id. There must be some other factor linking the accused to the contraband, such as whether it is in plain view, whether it is found with the accused’s personal effects, whether it is found on the same side of a car seat where the accused was sitting or in near proximity, and whether the accused is the owner of the automobile or |7exercises dominion and control over it. Id. at 4-5. Webb argues that there was no evidence of additional facts and circumstances indicating that he had knowledge and control over the gun found under the passenger seat or the drugs that were locked in the safe in the back seat. However, the evidence is as follows. The safe was in plain view in the back seat of the car Webb was driving, and the stolen gun was under the passenger seat next to him. A noticeable odor of marijuana was emanating from the safe, which he admitted that he was delivering. He was on probation for possession of marijuana with intent to deliver and for possession of drug paraphernalia, supporting the circuit court’s statement that he was “streetwise,” and he was carrying a significant sum of money. Although Webb and his passenger claimed that Webb had no knowledge of the gun under the seat, the trial court found their testimony not to be credible. Again, the credibility of witnesses and the weight of testimony are matters for the trial court rather than the appellate court. Boyd, supra. The facts and circumstances of this case, as determined by the trial court, are such that we cannot say that the court clearly erred in finding that Webb constructively possessed the gun and the safe, or that — based upon the smell in the car — he knew that the safe contained marijuana II. Whether Webb’s Due-process Rights Were Violated Because the Court Considered Matters Not Contained in the Petition to Revoke Webb argues on appeal, as he did to the trial court, that the petition to revoke did not notify him of the allegation regarding possession of drugs in the car. We agree, noting that the allegation that he violated condition No. 1, regarding “laws,” was based only on his arrest for driving on a suspended license, two counts of theft by receiving, and possession of a | «firearm by certain persons. However, because the court did not clearly err in finding that Webb constructively possessed the revolver under the passenger seat — a finding that independently supports the violation of conditions — the lack of notice regarding drugs does not require reversal.2 Affirmed. Gladwin, C.J., and Glover, Hixson, and Brown, JJ., agree. Abramson, Virden, Kinard, and Hoofman, JJ., dissent. . The State responds that the court did not err by finding that Webb violated terms of his probation; it does not respond to the second point. . The better course for the circuit court to have taken, particularly in light of evidence that Webb tested positive for THC and failed to make court-ordered payments, would have been to additionally make findings and base the revocation decision on violation of other conditions. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283926/ | RAYMOND R. ABRAMSON, Judge | Jennifer Steele appeals from the order of protection filed September 10, 2013, in Pulaski County Circuit Court, granting a two-year protective order to John Lyon.1 On appeal, Steele argues that the trial court erred by allowing Lyon to testify when he was not listed as a witness and by not considering her argument that Lyon had other remedies outside the Domestic Abuse Act, Arkansas Code Annotated § 9-15-101 (“The Act”). She also contends that the trial court erred in allowing certain testimony and that there was insufficient evidence to support the ruling in favor of Lyon. We affirm. The parties dated roughly eight months, but never lived together. After their relationship ended, the parties ran into each other at a parade and had an altercation. Lyon claimed that he received numerous text messages from Steele harassing and threatening him. |2He filed a petition for an order of protection under the Act on June 5, 2013, and an ex parte order was granted with a hearing set for June 27, 2013. The hearing was held, but continued until August 29, 2013. The final order of protection was entered on September 10, 2013. On September 16, 2013, Steele filed a notice of appeal. On September 20, 2013, she filed a “Brief in Support of Motion for Relief Pursuant to Rule 59 and/or Rule 60” to amend the order to reflect that she did not own or carry a firearm; it was granted on October 17, 2013. Steele filed a motion to extend time for filing the record on appeal on December 11, 2013. The record was lodged with this court on January 16, 2014. Over a year later and after several other extensions, this matter is now before us again. On appeal, Steele argues that the trial court erred in allowing Lyon to testify even though he was not listed as a witness in discovery and in admitting certain evidence during his testimony. However, Steele provides no citation to authority or convincing argument in its support. It is well established that we will not consider an argument when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. See Yankaway v. State, 366 Ark. 18, 22, 233 S.W.3d 136, 139 (2006); Hollis v. State, 346 Ark. 175, 179, 55 S.W.3d 756, 759-60 (2001); Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). Steele’s second point on appeal is that the trial court erred in ruling that the case fell within the scope of the Domestic Abuse Act. On August 29, 2013, as a preliminary motion, Steele moved for the court to dismiss the case for lack of jurisdiction over the subject matter. She argues that this was clearly a case in which other adequate remedies existed outside the Domestic Abuse Act in which to address Lyon’s complaint. Steele cites the general assembly’s [ointent of the statute and asserts that the legislature did not envision this Act would be used as it was under circumstances like this case presents. Steele argues that there is no pattern in the instant case of any domestic abuse nor is there a pattern of threats. She cites the following language of the statute: The General Assembly hereby finds that this chapter is necessary to secure important governmental interests in the protection of victims of abuse and the prevention of further abuse through the removal of offenders from the household and other injunctive relief for which there is no adequate remedy in current law. Ark. Code Ann. § 9-15-101. Steele contends that Lyon used an adequate remedy by calling the police on June 2, 2013 — the day of the incident. She maintains that because Lyon advised the police as to what happened when the parties saw each other at the Conway Pride Parade, and told them that he had received a text that Steele intended to kill herself, that there was an adequate remedy other than filing an order of protection, and as such, the Domestic Abuse Act is not applicable to the instant case. Her interpretation and application of the statutory language is inaccurate. The sentence in the statute does not mean that a petitioner who alleges domestic abuse or the threat of domestic abuse is precluded from seeking an order of protection if he or she could also seek other remedies, such as criminal charges or civil damages. Steele also contends that the statute does not apply in this case because the parties never lived together and only dated for roughly eight months. The Act’s purpose does not in any way indicate that it should be utilized only when there are no other adequate remedies or that the parties must reside together. Arkansas Code Annotated Section 9-15-103 defines “family or household member” to include anyone in a past or present dating relationship regardless of whether they live together. This court reviews issues of statutory interpretation de novo. Claver v. Wilbur, 102 Ark. App. 53, 280 S.W.3d 570 (2008). In reviewing issues of statutory interpretation, a court will determine the meaning and effect of a statute first by construing the statute just as it reads, “giving the words their ordinary and usually accepted meaning in common language.” Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 550, 65 S.W.3d 867, 872-873 (2002). When the statute’s language is clear and unambiguous, there is no need to look further and apply the rules of statutory construction. Id. This court has previously ruled that a relationship “clearly comes within the definition of the applicable statute”, even when the parties dated for less than two months. Pablo v. Crowder, 95 Ark. App. 268, 274, 236 S.W.3d 559, 563 (2006). Here, it is clear that the,statute is applicable in this case. Lyon and Steele were in a dating relationship for eight months, and the fact that Lyon had other remedies available to him does not preclude him from seeking relief under the statute. Steele’s next argument on appeal is that the trial court erred in allowing Lyon’s Exhibit 1, a series of text messages, into evidence. A circuit court’s decision to admit evidence will not be reversed absent a manifest abuse of discretion. Laswell v. State, 2012 Ark. 201, 17, 404 S.W.3d 818, 828. The abuse-of-discretion standard “is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or without due consideration.” Gully v. State, 2012 Ark. 368, 423 S.W.3d 569, 578 (quoting Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004)). Further, this court will not reverse a circuit court’s decision absent a showing of prejudice. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). Steele argues that the text messages should not have been admitted into evidence because: (1) the text messages did not have names on the documents, (2) the text messages |Bwere not a complete record of the communication between the parties, (3) the text messages were not the originals and were taken from a source that was not provided during discovery. We hold that the trial court did not err by allowing the exhibit into evidence because it had been properly authenticated. Further, Arkansas Rule of Evidence 1001(3) defines “original” as the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. If data are stored in a computer or similar device, an “original” includes any printout or other output readable by sight that accurately reflects the data. Ark. R. Evid. 1001(3). As such, the trial court did not abuse its discretion by allowing screenshots of the text messages taken from the phone to be admitted as evidence. Steele next argues that the trial court erred in allowing testimony by forcing her to read text messages into the record that she could not authenticate. This point on appeal fails for the same reason her first argument on appeal does. Steele does not cite any applicable statutory or case law to support her argument. We have long held that we will not consider an argument when the appellant presents no applicable authority or convincing arguments in its support. See Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005); Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004); Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003). Accordingly, we affirm the trial court’s decision on this point. Steele’s fifth and final point on appeal is that the trial court erred in ruling in favor of Lyon because there was insufficient evidence to support the ruling. Our standard of review following a bench trial is whether the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Newton v. Tidd, 94 Ark. App. 368, 231 S.W.3d 84 (2006). A finding is clearly erroneous when, although there is evidence to support it, the previewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Simmons v. Dixon, 96 Ark. App. 260, 240 S.W.3d 608 (2006). The appellate court gives due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Robinson v. Ford-Robinson, 362 Ark. 232, 236, 208 S.W.3d 140, 141 (2005). At the hearing, the trial court heard testimony from both sides, and it was well within the lower court’s discretion to weigh the credibility of each witness. Lyon testified that Steele sent forty-six text messages in one day and acted erratically. Lyon’s witness, Christina Harrison, confirmed Lyon’s belief that Steele was following him around at the Conway Pride Parade and testified that Steele was suicidal and had threatened to kill Lyon. Steele admitted that she “ran her mouth” to Lyon at the parade. When Steele raised her arm to adjust her sunglasses, Lyon told her not to hit the woman standing next to him, and grabbed her arm. Steele then hit Lyon. Lyon also testified that he continued to receive harassing text messages and offensive comments from Steele even after he had asked her to stop contacting him. Steele threatened to come to his apartment, and Lyon feared for his safety. From the testimony presented at the hearing, the trial court could reasonably find that Steele committed domestic abuse under the statute by inflicting fear of imminent physical harm, bodily injury or assault. There was'sufficient evidence for the trial court to find that an order of protection should be entered against Steele, and as such the circuit court’s decision was not clearly erroneous. Affirmed. Gladwin, C.J., agrees. Harrison, J., concurs. . This matter was previously before this court on February 11, 2015, and a supplemental addendum was ordered because it was not in compliance with Arkansas Supreme Court Rule 4-2(a)(8). See Steele v. Lyon, 2015 Ark. App. 70, 2015 WL 585490. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283928/ | CLIFF HOOFMAN, Judge | TAppellants Steven Wilson and Christina Wilson appeal from the Benton County Circuit Court’s August 21, 2014 decree of foreclosure and order granting motion for summary judgment in favor of appellee Arvest Bank.1 On appeal, appellants contend that (1) the trial court erred in granting summary judgment as there were contested issues of fact and |2the appellants met proof with proof and (2) the trial court erred in finding that appellee had complied with the federal statutes and regulations protecting homeowners on foreclosure. We affirm. Arvest Bank filed a petition for foreclosure on March 13, 2014, naming Steven J. Wilson, Jr.; Christina R. Wilson; James Alan Crouse; and the Department of Finance and Administration, State of Arkansas (DF & A) as respondents.2 The petition alleged that the Wilsons and Crouse owned the property in question as joint tenants with right of survivorship. They executed and delivered an adjustable-rate note and mortgage on September 22, 2008. Arvest Bank further alleged that they failed to pay the installments on time and that it was electing to declare the unpaid balance due in full and foreclose on the property pursuant to the terms of the note and mortgage. Additionally, Arvest Bank alleged that it gave written notice of the default and the right to cure the default. Arvest Bank stated that it was naming DF & A as a respondent to the extent that DF & A may have had an inferior interest in the property. Copies of the note and mortgage were attached to the petition. The Wilsons filed an answer on March 28, 2014, affirmatively pleading that after receiving notice, they tendered the payments due but were refused. Additionally, they raised the “affirmative defenses of estoppel, unclean hands, bad faith, failure to provide notice of services pursuant to 20 U.S.C. 1701x and such other defenses as may be ascertained through discovery.” DF & A filed an answer on April 9, 2014, stating that it had no interest in this matter and requesting that the action be dismissed as to it without prejudice. Arvest Bank |sresponded to requests for admission on May 7, 2014. Most notably, Arvest Bank denied that appellants attempted to make any' partial payments to reduce the amount of arrearages owed or that appellants were unable to obtain a definite amount that was owed. On May 27, 2014, Arvest Bank filed a motion for summary judgment and memorandum of supporting authorities. Arvest Bank alleged that there were no genuine issues of material fact in dispute and that it was entitled to judgment as a matter of law. In support, it attached an affidavit from Vicki Smith, the President of Arvest Bank, and copies of the note and mortgage. Smith stated in her affidavit that the Wilsons and Crouse executed a note and mortgage. Furthermore, they defaulted in making their payments despite the demand that they do so. As of May 16, 2014, $41,086.07 for principal, $908.68 for interest, $262.57 for late fees, and $119.00 for property inspections were outstanding. Additionally, Smith stated that the bank was also entitled to attorney’s fees in the amount of $5,966.50, title-work fees in the amount of $250.00, filing fees in the amount of $180.00, and service fees in the amount of $53.16. Appellants filed a response to the motion for summary judgment on June 10, 2014. They disputed appellee’s contention that there were no issues of material fact in dispute. Appellants argued that they contacted the Petitioner’s Arvest Bank upon numerous occasions in order to attempt to obtain an amount due on the loan ending in 6270 and were unable to obtain a correct, amount from any authorized representative of Arvest Bank. Further, each time the Separate Respondents called, months prior to litigation being initiated, they were informed that “attorney’s fees were accruing even as they spoke.” The Separate Respondents attempted, in good faith, to reinstate the loan, but were unable to do so, due to Arvest Bank’s refusal to tender in good faith a valid reinstatement amount. 14Appellants also alleged that some of the attorney’s fees were wrongfully assessed and that this wrongful assessment increased their difficulty to cure the arrear-age. Therefore, they alleged that there were three issues of material fact: (1) whether appellants properly tendered payment that would have brought the loan current, (2) whether the bank erroneously or maliciously added improper attorney’s fees to the balance owed in January that prevented appellants from making sufficient partial payments to bring them into compliance, and (3) whether the bank acted in bad faith by repeatedly misleading appellants and providing inconsistent information that prevented appellants from making the pi'oper payment. In support of their response, appellants attached an affidavit signed by both of them that stated in pertinent part: 2. That due to circumstances beyond our control, said mortgage did become in arrears; 3. That on October 4, 2013 a partial payment of $545.00 was made in good faith to Petitioner and was accepted and a partial payment was made on December 3, 2013 in the amount of $300.00 and was accepted by the Petitioner; 4. That the Respondents attempted to make a payment to the Petitioner in a good faith effort to pay the amount of arrearages and bring the account current and the payment was refused, further, the Respondents were told by a duly authorized representative of Arvest Bank that “even as they spoke attorney’s fees ■ were accruing.” 5. That the Respondents made several more good faith attempts to find out a reinstatement amount for the loan ending in 6270, were transferred to several different individuals and were never given a definite or accurate amount; 6. That the Respondents have paid into trust with Legal Aid of Arkansas, Inc. $2,000.00 and amount in excess of the arrears and payment due. Plaintiff has in bad faith added unnecessary and excessive fees to the arrearage, rather than allow the Respondents to bring the account current. Additionally, appellants attached a loan-history statement listing all the payments and charges | sthat occurred throughout the life of the loan, documents containing information about the property from the county assessor’s office, page two of the requests for admission from Arvest Bank, and page four of the mortgage. Arvest Bank filed a reply to the response on June 18, 2014, alleging that appellants failed to meet proof with proof after its prima facie showing of the debt. Appellants subsequently filed a response to Arvest Bank’s reply on July 1, 2014. In their response, appellants referenced federal regulation 12 CFR 1024.38(ii) and argued that Arvest Bank failed to provide timely or adequate information regarding a loan modification or the amount necessary to bring the loan current. Arvest Bank filed an amended reply to the response to motion for summary judgment on August 6, 2014. In addition to the arguments it previously made, Arvest Bank attached a series of letters and notices that were sent to appellants to show that it provided proper notice to appellants, yet the appellants failed to either bring the note current or accept any of the alternative work-out options that were available. A letter dated December 4, 2013, notified the Wilsons that the bank’s records indicated that the account was past due and that $1,030.03 was due plus any other future payments or late charges that might become due pending payment. The bank also provided a contact number and requested that appellants contact that number to resolve the issue. On January 8, 2014, Arvest Bank sent another letter. In this letter, Arvest Bank indicated that appellants owed a total amount of $1,282.97 plus any further payments or late charges that might become due. Additionally, the letter listed three other options that may have been available to appellants, including loan | ^modification, [short sale, or deed in lieu of foreclosure. lA phone number with instructions to ask lor the Loss Mitigation Department, ad-Iress, and email were provided in the let-ler. On January 31, 2014, Arvest Bank lent a letter indicating the payoff figures In the loan as it states was requested. Idditionally, another letter was sent on January 31, 2014, indicating that the loan las referred to an attorney for foreclosure lid providing the attorney’s contact infor-Bation with instructions that all transac-Bns would now need to be handled Brough that office. Finally, on March 31, Bl4, Arvest Bank’s attorney sent a letter ■ appellants’ attorney indicating that Ar-Kt Bank would reinstate the loan upon B/ment in the amount of $5,772.86, which included all the previous unpaid installments, late charges, inspection fees, miscellaneous fees, and attorney’s fees and costs. A hearing was held on August 11, 2014. In addition to the arguments made in the motion, responses, and replies, counsel for appellants alleged that appellants were in a position to make the loan current in either late January or early February but were unable to do so because Arvest Bank failed to provide the specific amount owed. Counsel for appellants also pointed to a loan-history statement and stated that the document was difficult to understand because it listed “unapplied” payments, and it was unclear what that meant. Therefore, counsel argued that there was a factual dispute over whether his clients were able to make payment and that the information from the bank did not “jive with what they understood] to be owed.” Furthermore, counsel for appellants argued that “federal banking regulations” made it clear that the bank had a duty to try “to engage in some sort of a workout” and that the bank here failed to accept payments from appellants and gave differing amounts that were [7owed on the loan. At the conclusion of the hearing, the trial court made the following oral ruling: All right. My memory from my bank representation days was these unapplied payments amount to charges to the account for funds not received, in effect. That’s what they are. So while it might be difficult for those of us not accustomed to this type of accounting or who are not accountants, I think that this is in order. I don’t believe that you’ve met proof with proof in this regard, Mr. Pretty-man. The amount due and owing was determined by this accounting, and as I heard it very clearly and by your own admission, there’s been no tender since January. And so I find that the motion is appropriate and I’m going to grant the motion. ■ Mr. Trantham, prepare me an order, have it to the Court within ten days with five days’ notice to Mr. Prettyman, and we’ll go from there. Subsequently, the trial court filed a decree of foreclosure and order granting motion for summary, judgment on August 21, 2014. Specifically, the trial court found that the note and mortgage provided that in the event installments of the principal were not paid, Arvest Bank could elect to make the entire unpaid principal installments with earned and unpaid interest immediately due and payable. Furthermore, if the bank employed an attorney for collection, appellants agreed to pay attorney’s fees. The trial court found that appellants were in default and that appellants were given written notice of the default and their right to cure the default. Additionally, the trial court found that appellants were not entitled to any setoffs, counterclaims, or defenses and that any would be totally without merit. Therefore, the trial court ordered and adjudged that the motion for summary judgment was granted and granted Arvest Bank the foreclosure decree. Furthermore, a notice of sale was filed on August 29, 2014. This appeal followed. Pursuant to Arkansas Rule of Civil Procedure 56 (2014), summary judgment is to be rendered in instances where “the pleadings, depositions, answers to interrogatories and 18admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of.law.” Once the moving party has established a prima facie entitlement to summary judgment, the non-moving party must meet “proof with proof’ and demonstrate the existence of a material fact. Allen v. Allison, 356 Ark. 403, 155 S.W.3d 682 (2004). This court’s review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id. However, the non-moving party must not rely solely upon allegations and denials in their pleadings but must instead provide some other affirmative proof that there are material issues of fact remaining once the moving party has established that they are entitled to judgment as a matter of law. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Killian v. Gibson, 2012 Ark. App. 299, 423 S.W.3d 98. On appeal, this court views all proof submitted in the light most favorable to the non-moving party, with any doubts or inferences resolved against the moving party. Allen, supra. Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). On appeal, appellants first contend that the trial court erred in granting summary judgment as there were contested issues of material fact and that the appellants met proof with proof. Specifically, appellants admit that they were behind in their payments. ■ However, they argue that they attempted to cure the arrearage and that appellee refused to accept their payment. I Additionally, they contest the amount of attorney’s fees that were assessed onl 13October 1, 2013, according to the loan-] history statement, and allege that tha $2,000 placed in their attorney’s trust acl count could have been used to pay thJ outstanding balance of $1,282.97 if that diii not include the October attorney’s fees ia the amount of $1,872.00. Appellants alsB question other entries in the loan-historB statement and argue that appellee did not explain what was meant by “unapplied payments.” Appellee contends that it provided appellants with notices indicating the amount due on the note and that appellants failed to bring the note current. Ap-pellee also contends that it provided sufficient evidence to establish its entitlement to summary judgment as a matter of law and that appellants failed to meet proof with proof as required. We agree. Here, the record contains numerous written letters and notices that were mailed to appellants, including specific amounts due and contact information to discuss the resolution of the outstanding balance. Furthermore, the loan documents included an acceleration provision, which required appellants, at appellee’s election, to make payment in full and permitted appellee to invoke any other remedies permitted by applicable law. Additionally, the documents provided that appellee was entitled to collect all expenses incurred, including reasonable attorney’s fees and costs. Smith’s affidavit indicated that appellants had defaulted. According to Ar-vest Bank’s response to requests for admission, appellee specifically denied .that appellants attempted to make partial payments or that they were unable to obtain a definite amount. Appellants even openly admit that the “mortgage did become in arrears,” according to their affidavit. Therefore, appellee provided sufficient prima facie evidence of entitlement to summary judgment, and appellants were required to meet proof with proof to |inshow that there were still issues of material fact in dispute. Although appellants argue that there were issues of material fact, each of their arguments relies on their contention that they could have brought the loan current had .it not been for appellee’s actions or lack thereof. However, appellants failed to provide specific proof in their affidavit. Even though the mortgage provided a provision that allowed appellants to reinstate the loan after acceleration, appellants failed to provide any specific proof that they could do so. Appellants’ affidavit merely restates their allegations in the pleadings that they attempted to make a payment but the payment was refused. However, appellants failed to state when they attempted to make a payment, how much they attempted to pay, how much they could have paid, at what point they would have been able to bring the loan current, or provide any other specific details as required under Rule 56. The only detail that they provided was that the bank representative stated that “even as they spoke attorney’s fees were accruing.” A letter in the record from Arvest Bank to appellants indicated that the matter was referred to an attorney by January 31, 2014. Furthermore, that letter indicated that all matters were to be discussed with the attorney assigned and provided the attorney’s contact information. While the affidavit also restates appellants’ allegations from their pleadings that they “were transferred to several different individuals and were never given a definite or accurate amount,” appellants failed to give any specific detail about their attempts. Additionally, while they alleged that they deposited $2,000 with their attorney at some point after he was retained, appellants failed to provide any specific information regarding when this money was |17 deposited and when they obtained the $2,000 that could have been applied to the loan. As our supreme court has recognized, “an affidavit stating only conclusions, but failing to set forth specific facts is insufficient to show there is a material issue of fact.” Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992). Thus, appellants failed to meet proof with proof to show that they could have paid an amount at any given time that would have been sufficient to reinstate the loan, and the trial court did not err in granting summary judgment. Appellants next contend on appeal that the' trial court erred in finding that the appellee had complied with the federal statutes and regulations protecting homeowners on foreclosure. Specifically, appellants cite and quote several federal regulations and argue that, had appellee complied with those regulations, appellants would have been able to bring the loan current and avoid foreclosure. Although appellants cite to several different regulations, only one regulation was cited and presented before the trial court — 12 C.F.R. § 1024.38.3 It is well settled that this court does not consider arguments raised for the first time on appeal; a party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made before the trial court. ' Yant v. Woods, 353 Ark. 786, 120 S.W.3d 574 (2003). To the extent appellants’ argument is preserved on appeal, the argument still fails for the same reason as in the first point on appeal. Appellants’ affidavit fails to provide |12any specific proof that they could have made payment that would have brought their loan current. Therefore, we affirm the trial court. Affirmed. Vaught and Brown, JJ., agree. . Appellants filed their initial timely notice of appeal on September 10, 2014, stating that they were appealing from the decree of foreclosure and order granting motion for summary judgment, but they érroneously stated that this order was entered on November 16, 2011, and filed on November 18, 2011. An amended notice of appeal was filed on September 17, 2014, correcting the inaccuracy. Thus, appellants timely appealed from the August 21, 2014 order. Subsequently, after the trial court filed an order denying a motion for stay pending appeal on September 23, 2014, appellants filed a second amended notice of appeal on November 18, 2014, stating that they were appealing from both the August 21, 2014 order and the denial of the motion for stay pending appeal. Because appellants ■filed their notice of appeal from the trial court's denial of the motion for stay pending appeal more than thirty days after the order was filed, the appeal is untimely as to that order. Ark. R. App. P.-Civ. 4(a) (2014). However, the parties do not contest the September 23, 2014 order in their arguments on appeal; therefore, appellants’ failure to timely appeal from the September 23, 2014 order is irrelevant to our discussion of the issues raised in this appeal. . Only Steven and Christina Wilson subsequently appealed. . 12 C.F.R. § 1024.38 generally provides that "[a] servicer shall maintain policies and procedures that are reasonably designed to achieve the objectives set forth in paragraph (b) of this section.” Paragraph (b) includes the objective of "[a]ccessing and providing timely and accurate information.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283929/ | OPINION OF THE COURT BY
CHIEF JUSTICE MINTON
A circuit court jury convicted George A. Luna of first-degree murder and first-degree arson for killing Debra Hendrickson and burning the trailer where she lived. The jury also found as a statutory aggra-vator that Luna murdered Hendrickson in the commission of first-degree robbery. As a result, Luna was sentenced to imprisonment for life without the possibility of probation or parole. Appealing the resulting judgment as a matter of right,1 Luna now presents a host of arguments for this Court’s consideration. We reverse Luna’s first-degree arson conviction and sentence but affirm Luna’s first-degree murder conviction and his sentence of life imprisonment without possibility of probation or parole.
I. FACTUAL AND PROCEDURAL BACKGROUND.
A neighbor arrived home around 8:00 on the evening of September 8, 2007, to find Debra Hendrickson’s trailer on fire. By the time firefighters arrived, the flames were so widespread they could not enter until water was applied, a situation known in firefighting parlance as a fully involved fire. The neighbor observed that Hen-*861drickson’s truck was gone and assumed she was not at home at the time. But Hendrickson lay dead inside. After the fire, her body was recovered from the debris.
A few months before the fire, Luna had taken up residence with Hendrickson, rent-free. The two had become acquainted several months earlier. A journeyman bricklayer by trade, Luna traveled as jobs required, returning to Hendrickson’s home and staying with her between jobs. As a result, Luna’s tenancy with Hendrickson was fairly sporadic, primarily on weekends.
Hendrickson and Luna, despite their living arrangement, and, according to Luna, Hendrickson’s repeated advances, were not romantically linked. Their relationship was reportedly filled with conflict. Hendrickson’s family and friends described various instances of physical abuse inflicted upon Hendrickson by Luna. Likewise, during his testimony at trial, Luna recounted examples of her physical abuse of him, including inflicting a gunshot and stab wound. And, as we will discuss in more detail below, Luna and Hendrickson engaged in various insurance-fraud schemes.
Earlier in the afternoon before the fire, Luna accompanied Hendrickson into Padu-cah, about 30 minutes from Hendrickson’s trailer in Marshall County, Kentucky. The two visited a couple of bars, ate, and drank beer. Before returning home, they stopped at a liquor store. According to Luna, Hendrickson encountered a potential boyfriend, and she told Luna the man would be coming over later that night. Hendrickson drove Luna home in her truck, a truck that Luna was allegedly in the process of buying from Hendrickson.
According to Luna, he was eager to see his daughter in Illinois, so upon returning home he began packing his clothes and tools to get on the road. Hendrickson waved from the front porch, beer in hand, as Luna pulled out of the driveway. Luna reached Paducah before he realized he had left his level in Hendrickson’s garage, so he turned around and drove back to Hen-drickson’s trailer.
Upon arrival, Luna did not enter the trailer but went directly to retrieve the level from the garage. As he returned to his vehicle, Luna thought he saw flames through a window in the trailer. According to Luna, he thought little of the flames. Supposing he was drunk and sensing things that were not there, he drove away. But while driving to Illinois, he called 911 several times to report a potential fire. While on the phone with the 911 dispatcher, Luna was unable to provide Hendrick-son’s address or even her surname, claiming he did not know it. Eventually, Luna hung up on the dispatcher, but then became belligerent with her when she called him back seeking more information.
At 7:34 on the evening of the fire, an Illinois State Trooper clocked Luna traveling through southern Illinois at 100 miles per hour. Luna was arrested there.
Following a short investigation and his extradition to Kentucky, Luna was indicted on charges of first-degree murder and first-degree arson. A jury trial conducted in 2008 resulted in Luna’s conviction of all charges and a sentence of life imprisonment. On appeal, we reversed that judgment and remanded for a new trial.2 On retrial, Luna was again tried for and convicted of first-degree murder and first-*862degree arson. Unlike the first trial, the Commonwealth sought a finding of statutory aggravators on retrial. The jury found aggravating circumstances and sentenced Luna to life imprisonment without possibility of probation or parole. The trial court entered judgment accordingly.
II. ANALYSIS.
Luna presents for our consideration on appeal twelve issues, each of which we discuss in turn.3
A. We Reject the Commonwealth’s Assertion that the Law-of-the-Case Doctrine Bars Consideration of a Number of Luna’s Issues on Appeal.
Before reaching Luna’s substantive attacks on his conviction, we address the Commonwealth’s attempt to rebut several of Luna’s arguments with the law-of-the-case doctrine. As a general matter, when referring to the law of the case, we are describing “a handful of related rules giving substance to the general principle that a court addressing later phases of a lawsuit should not reopen questions decided by that court or by a higher court during earlier phases of the litigation.”4 Within this handful of rules, one is of primary relevance for this case: “issues decided in earlier appeals should not be revisited in subsequent ones.”5 To this end, our case law has extended the law-of-the-case doctrine from only previously decided appellate issues to “decisions of the trial court which could have been but were not challenged in a prior appeal.”6
This extension of the doctrine is the gravamen of the Commonwealth’s response to Luna’s arguments. The Com- . monwealth’s view, taken to its end, would essentially preclude appellate review of any issue that was not objected to in Luna’s first trial. Our law-of-the-case jurisprudence, primarily Commonwealth v. Schaefer,7 at one point perhaps supported the Commonwealth’s position in the present case. But with our later decision in Brown, our jurisprudence clearly no longer stands for such a proposition.
With regard to earlier trial court rulings, the law-of-the-case doctrine only applies “where a ruling of law is made based on existing law and that ruling has gone unchallenged during the original appeal.”8 The issue must be presented to the trial court and the trial court must affirmatively rule in order to trigger the law-of-the-case doctrine. Here, of course, Luna has been before this Court previously, so the law-of-the-case doctrine is certainly potentially applicable. Fatal to the Commonwealth’s law-of-the-case argument, however, is its failure in the present . appeal to direct us to the record of Luna’s original trial where the trial court ruled on the merits of issues Luna now presents.9 *863Because the Commonwealth is attempting to use the law-of-the-case as a shield against Luna’s arguments, the Commonwealth bears the burden of showing its applicability.10
To apply successfully the law-of-the-case doctrine and bar Luna’s present issues, the Commonwealth must show that Luna’s present issues were not only presented to the trial court in the earlier proceeding but received an affirmative ruling from the trial court in that proceeding. Potential errors that passed unpreserved by contemporaneous objection and ruling in the earlier trial are not automatically cleansed by the law-of-the case doctrine for a reprise on retrial. Simply stated, if inadmissible evidence came in without objection and a ruling by the trial court in a first trial, a party opposing its admission at retrial must make an objection.
Thus, the Commonwealth’s reliance on Schaefer is misplaced. While nearly all of the issues presented by Luna involve evidence or issues that were present in the first trial, we are not provided with any indication that the trial court ruled on them in the first trial. We can appreciate the efficiency of the law-of-the-case doctrine in situations like the instant case where the evidence presented on retrial is substantially similar and nearly identical in the ease of some witnesses. But we should not promote reliance on the law-of-the-case doctrine out of simple convenience. Accordingly, we conclude that the law-of-the-case doctrine is not a bar to the consideration of Luna’s issues in the present appeal.
B. The Trial Court Properly Denied Luna’s Daubert Challenge to the Commonwealth’s Arson Investigator.
We must admit to a degree of confusion regarding Luna’s argument on this issue. Luna seemingly vacillates between arguing the science behind the arson investigator’s testimony is faulty to focusing on the conduct undertaken by the arson investigator in compiling his report to focusing solely on the conduct of the trial court. We are certain, however, that any error in the admission of the arson investigator’s testimony was harmless.
■ Luna’s argument seems to be presented on two fronts: (1) the trial court’s hearing conducted under Daubert v. Merrell Dow Pharmaceuticals, Inc.,11 was unfair because the Commonwealth did not produce its witness and (2) the hearing was cut short. In both the retrial and the original trial, the Commonwealth presented testimony from the same fire-and-explosives investigator from Kentucky’s Office of the State Fire Marshal. This testimony, built upon observations and analysis performed at the scene of the fire close in time to the fire’s extinguishment, centered on the arson investigator’s conclusion that the fire *864was “incendiary,” ie. intentionally set.12
When faced with the prospect of expert testimony under Kentucky Rule of Evidence (KRE) 702, the general outline of the trial court’s gatekeeping13 role is to ask whether the expert proposes to testify to scientific, technical, or other specialized knowledge that will assist the fact-trier in understanding or determining a fact in issue.14 This requires .the trial court to discern whether the proposed testimony is both relevant and reliable. Relevancy, in this context, has been repeatedly described as one of “fit”:
‘Fit’ is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.... The study of the phases of the moon, for example, may provide valid scientifie[, technical, or other specialized] ‘knowledge’ about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However, (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night.15
Reliability, on the other hand, focuses on the “validity of the reasoning and methodology upon which the expert testimony is based.”16 Taken together then, a trial court’s overall inquiry is “whether the reasoning or methodology underlying the testimony is scientifically valid and [ ] whether that reasoning or methodology properly can be applied to the facts in issue.”17 Whether a witness properly qualifies as an expert is within the scope of the trial court’s discretion. Accordingly, we review for an abuse of that discretion.18 Any factual determinations made when reviewing an expert’s reliability, however, we review for clear error.19
While there is no immutable rule that a trial court conduct a hearing on the admissibility of a potential expert’s testimony,20 rare is the situation where a hearing is not necessary. A trial court should refrain from ruling without the benefit of a hearing except in the narrow *865instance “when the record before it is complete enough to measure the proffered testimony against the proper standards of reliability and relevance.”21 Determining the admissibility of expert testimony on an inadequate record is an abuse of discretion.
Before the retrial, Luna filed a motion challenging the reliability of the arson investigator’s testimony under the requirements of Daubert. The trial court conducted a Daubert hearing to receive testimony on the science and methodology at issue.
First, Luna argues the Daubert hearing was improper because the Commonwealth was not forced to produce the arson investigator and the burden was effectively shifted to Luna because he was forced to produce witnesses first. Luna’s argument is both meritless and a mischar-acterization of the record. At the Daubert hearing, counsel for the Commonwealth noted that he and Luna’s counsel had agreed, to allow the Commonwealth to wait until the close of Luna’s proof before producing any witnesses. Practicality was the basis for this agreement: The Common-, wealth wanted to avoid bringing lab technicians and the arson investigator to Trigg County from Frankfort until their physical presence in the trial court was necessary. Whether this was an appropriate agreement of counsel is of little meaning. The point is, Luna’s counsel agreed to conduct the hearing in the order Luna now contends was erroneous. We obviously reject this notion.
Second, Luna contends the trial court abused its discretion by ending the hearing before mandating the Commonwealth produce witnesses. This argument is likewise meritless. Toward the end of Luna’s proof regarding the science used by the Commonwealth’s arson investigator, the trial court interrupted and inquired pointedly into Luna’s goal for the Daubert hearing. The trial court then concluded that there had been no proof put forward by Luna that called into doubt the science underlying the report of the Commonwealth’s arson investigator. In fact, all of Luna’s witnesses recognized the arson investigator used valid science, albeit not their preferred method. Luna now argues that without requiring the Commonwealth to produce the arson investigator to testify at the hearing, there was no way for the trial court to make a determination of whether the arson investigator had reliably applied his methodology to the facts of this case
We remind Luna that a Dau-bert hearing is not required. Of course, a trial court making a finding on an inadequate record abuses its discretion. But, important here, it is worth re-emphasizing that “the record upon which a trial court can make an admissibility decision without a hearing will consist of the proposed expert’s reports, affidavits, deposition testimony, existing precedent, and the like.”22 The trial court has more than just the testimony at a Daubert hearing at its disposal to determine the admissibility of expert testimony. Given the record, the trial court did not find it necessary to hear live testimony from the arson investigator himself.23 The arson investigator’s report, detailing his findings and methodology, was available to the trial court. That may have been sufficient to indicate the arson inves*866tigator reliably applied his methodology to the facts of this case, especially given the fact that no witnesses were produced challenging the arson investigator’s science as “junk science.” Most, if not all, of the issues Luna raises with regard to the trial court ending the hearing involve weight not admissibility.24 Furthermore, the trial court noted that Luna may still have an argument under KRE 403 — exclusion of otherwise relevant information substantially outweighed by danger of undue prejudice or confusing or misleading the jury— he just had not presented a sufficient argument under KRE 702.
Because controlling the order of a Daubert hearing rests within a trial court’s discretion, great leeway is warranted to allow the trial court to develop the record it needs to make a sound determination. The instant Daubert hearing may be considered unorthodox, but it cannot be considered arbitrary, unfair, or unsupported by sound legal principles, in light of the record and evidence.25
In any event, even if, for the sake of argument, we found error in the Dau-bert hearing conducted by the trial court here, that error would undoubtedly be harmless. To reach his “incendiary” conclusion, the arson investigator used a hydrocarbon detector, often called a “sniffer,” in an attempt to detect the presence of any accelerants, e.g. gasoline, kerosene. The problem, according to Luna, is a hydrocarbon detector is unreliable for purposes of Daubert. Luna’s witnesses at the Daubert hearing testified that while a hydrocarbon detector is a valid scientific device or technique, it reacts to far too many substances to provide any meaningful results. As one of Luna’s witnesses put it, the device is merely a gross survey tool. All involved agree that the hydrocarbon detector is not the gold standard in accel-erant detection. That award seems to go to gas chromatography-mass . spectrometry. But the arson investigator acknowledged at trial the device’s limitations— including the likelihood of false positives— and identified the hydrocarbon detector as only one factor in labeling the fire “incendiary.”
In fact, the Commonwealth’s arson investigator relied on a great deal of physical indicators at the scene, wholly outside the results he received from the hydrocarbon detector, to reach his conclusion. During his testimony, the arson investigator looked at the debris, the path traveled by the fire, the lack of significant “fire load”26 in the area where Hendrickson’s body was found, and the severe and localized damage to the floor where Hendrick-son’s body was found. He acknowledged that the hydrocarbon detector was incapa*867ble of indicating what hydrocarbon was detected, but rather, only that a hydrocarbon was present. For him, the device was only used to determine where to gather samples and send to the lab for better testing, ie. gas chromatography-mass spectrometry. Finally, the arson investigator gave a detailed rundown of the steps he goes through in investigating fires.27 These responses were elicited through both the Commonwealth’s direct and Luna’s cross-examination. Put simply, allowing the arson investigator to give an opinion as an expert — a status not actually disclosed to the jury — did not substantially sway the jury. We understand that labeling the fire “incendiary” was prejudicial to Luna, especially in light of the fact that no accelerants were ultimately found. But in light of the arson investigator’s testimony that acknowledged the limits of the hydrocarbon detector and identified various other reasons for labeling the fire incendiary, coupled with Luna’s cross-examination and presentation of witnesses tending to discredit the arson investigator, any Daubert error by the trial court was harmless.
C. Because Hendrickson’s Prior Statements Were not Hearsay, They Were Admissible.
The Commonwealth sought the admission of various statements made by Hendrickson to others regarding Luna’s abusing her and forcing her to participate in various schemes to defraud her insurance company. Luna argued the statements were inadmissible hearsay. Following a pre-trial hearing spanning two days, the trial court allowed the proffered statements to be admitted into evidence at trial, despite Luna’s objection. The ground for allowing these hearsay statements into evidence was the little-used exception to hearsay’s general rule of exclusion: KRE 804(b)(5), forfeiture-by-wrongdoing.
The various statements the Commonwealth sought to admit were discussed in detail at the two-day hearing on admissibility and are summarized below: ■
• Janice Level, Hendrickson’s sister, testified that Hendrickson informed her of various problems Hendrickson as having with Luna, that he had threatened her, and was just overall abusive to her.
• Bridget Dehart, a friend of Hendrick-son’s, testified that Hendrickson told her Luna wanted Hendrickson to report the Firebird on her insurance, that Luna forced her to drive him to Illinois at knifepoint, and that Luna assaulted her by pushing her into a coffee table and potted plant.
• Jerry Dehart, a friend of Hendrick-son’s, testified that Hendrickson told him about Luna pushing her into the coffee table and potted plant. Jerry also testified he worked on Hendrick-son’s truck once after she told him Luna had driven it, and he found that the fuses had been removed.
• Judy Brown, Hendrickson’s friend and co-worker, testified that Hendrickson told her Luna was dangerous and scared her. Hendrickson also told *868Judy, on the- Friday before her death, that she wanted to buy Judy’s truck so Luna would stop trying to get her vehicles and just go back to Illinois and leave her alone.
• Progressive Insurance agent Caleb McGrath testified that he initially talked to Hendrickson when she called about pursuing a theft and fire claim on her Pontiac Firebird. The next day, Hendrickson called him crying so much he could barely understand what she was saying. Hendrickson told McGrath that she wanted to come clean — Luna had coached to tell McGrath the car was stolen and to report the claim to Progressive. According to Hendrickson, Luna got her insurance information and reported the claim without her knowing after she told Luna she did not want to lie about the claim.
• Progressive Insurance agent Will Purdue testified that Hendrickson told him Luna told her to tell the police she was driving the Chrysler at the time of the wreck.
• Gary Seiavitch, a Progressive employee, worked on Hendrickson’s Chrysler claim. Hendrickson told Seiavitch that Luna had physically abused her and forced her to drive him to Illinois at knifepoint. Seiavitch also testified that Hendrickson showed him a bruise and indicated Luna hit her.
• Deputy Jason Ivey, Marshall County Sheriffs Department, asked Hendrick-son about filing charges on the Fire-bird, which was allegedly stolen and burned. Hendrickson refused and told Deputy Ivey she was scared.
• Officer Kelly Drew testified that he went to Hendrickson’s trailer looking for Luna for an unrelated matter. He observed injuries on Hendrickson and asked about how she got them. Hen-drickson told him that she had been assaulted by Luna and claimed to have already reported it.
• Deputy Brett Edwards testified that on August 30, 2007, he called Hen-drickson to follow up on a previous 911 call by Hendrickson. On the phone, Hendrickson told Edwards that if her trailer were to burn, Luna would be the one who did it. Hendrickson told' Edwards Luna had threatened to burn her trailer down and had made threats to kill her and burn her up in the trailer.
• The 911 call that served as the purpose for Edwards’s call to Hendrick-son was played for the jury. In it, Hendrickson states that while not emergency, she called just in case something happened to her trailer while she was at work the next day.
The general theme of the Commonwealth’s evidence was Luna’s pursuit of various insurance-fraud schemes in which Hen-drickson was at most a reluctant participant. Furthermore, Luna was a convicted felon in Illinois and the terms of his probation prohibited him from leaving Illinois. Yet, Luna came to Kentucky regularly where he was involved in various crimes. Luna involved Hendrickson by coercion— sometimes physical coercion — all the while violating terms of his felony probation. According to the Commonwealth then, Luna faced the possibility of multiple criminal sanctions or initiation of criminal proceedings as a direct result of Hendrick-son’s reporting him. Despite Luna’s coercion, Hendrickson eventually backed out and reported Luna to the authorities, which, perhaps along with Luna’s desire to acquire Hendrickson’s truck, motivated him to kill her.
In support of this theory, the Commonwealth put on a large amount of proof, *869summarized in the following timeline from the trial court’s order:
• In 2007, Luna was in the final stages of his involvement in an arson of his residence in Illinois, which occurred in December 2004 — the same fire for which Progressive Insurance later obtained a civil judgment against Luna on July 13, 2007. The next day, Luna set fire to his Firebird in Marshall County in order to collect on it from Progressive Insurance.
• Luna proceeded to pursue a claim on the Firebird through Hendrickson, who he was residing with at the time. Luna specifically enlisted her in the effort by having her falsely state to an insurance claims adjustor that she was, in fact, the owner of the Firebird and the car had been stolen from her. Her insurance was Progressive Insurance. Progressive, however, was suspicious and engaged in a closer investigation of the claim.
• During the entire time period of July 2006 through September 7, 2007, when Luna ultimately murdered Hendrick-son, Luna was under an order of probation supervision from Franklin
■ County, Illinois. Among other things, the conditions of the order required him to not violate any criminal statutes and to remain within the State of Illinois. . Luna did seek an exception for employment in June 2007.
• On July 17, 2007, Luna called Progressive to file a claim that his Firebird had been stolen. ■ On the same day, Hendrickson reported to Progressive that the Firebird had been stolen from her garage the previous weekend.
• On July 18, 2007, Hendrickson, crying and upset, contacted Progressive. She told the agent she was so upset that she could not go to work that day. Hendrickson informed the agent that the Firebird had not been stolen; in fact, Luna had taken it from her home on Saturday, July 14, 2007, and returned the same day without it, claiming the car caught on fire. Hendrick-son then told the agent that Luna had coerced her into filing a claim with Progressive by stating she was purchasing the Firebird from Luna. Hen-drickson said she did not want to pursue the claim, but Luna had taken her insurance card and reported it. Finally, Hendrickson told the agent that Luna was present while she made the original call to Progressive on July 17, but had left midway through the conversation. In a subsequent call on July 18, Hendrickson informed a Progressive agent that Luna had taken her Chrysler 300M to Illinois and she did not wish to pursue the claim on the Firebird. The notes taken by the agent during the call reflect Hendrick-son’s fear for her life and recount Hen-drickson informing the agent that Luna had physically assaulted her.
• On August 8, 2007, Luna was pulled over in Illinois while driving Hendrick-son’s Chrysler 300M and charged with driving on a suspended license. As a result, Luna was ordered to appear in court on September 11, 2007; and, based on this charge, the Franklin County (Illinois) prosecutor sought revocation of Luna’s felony probation and an arrest warrant on August 28, 2007.
• August 15, 2007: Luna contacted Progressive to pursue the fraudulent claim relating to the Firebird. According to the agent, Luna then put Hendrickson, who was audibly upset and uncontrollably crying, on the phone. Hendrickson told the agent she' was uncertain about what to do.
*870• Luna then stole Hendrickson’s Chrysler 300M, wrecked it, and proceeded to enlist her in pursuing a false insurance claim for that damage; specifically, Luna attempted to have Hendrickson inform the insurance company she was driving the car by herself when she wrecked it. Hendrickson went along with this plan at first, but quickly had misgivings and informed both Progressive and the Marshall County. Sheriffs Office that Luna had instructed her to lie. Luna was aware of Hen-drickson’s disloyalty.
• August 29, 2007: an officer with the Marshall County Sheriffs Office visited Hendrickson’s trailer to speak with Luna on an unrelated matter. While there, he observed visible injuries on Hendrickson, which were apparently inflicted by Luna according to Hen-drickson. Hendrickson also told the officer Luna had ordered her to vacate her home.
• September 7, 2007: Luna heard Hen-drickson tell how Luna had enlisted her in the insurance fraud schemes and that she had turned him into investigators. This was the day of Hen-drickson’s murder.
The Commonwealth’s arrangement of a timeline documenting Luna’s activity, both with Hendrickson and without, helped illustrate more clearly the schemes undertaken by Luna and Hendrickson. His partner through it all, Hendrickson was the only individual who could implicate Luna in any of these crimes. It nearly goes without saying that her betrayal would have weighed heavily on Luna.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.28 Contrary to the overarching lean toward admission throughout our evidence law, hearsay is generally not admissible unless the statement fits within an exception provided in our rules. Forfeiture-by-wrongdoing is one such exception based upon the timeless concept that an individual should not be permitted to profit or gain from improper conduct.
We have had little opportunity to mold the scope of the forfeiture-by-wrongdoing exception. In Parker v. Commonwealth, our most extensive treatment of KRE 804(b)(5) to date, we declared it was “no longer sufficient [ ] simply to show that a defendant caused the declarant’s absence; rather, the forfeiture-by-wrongdoing exception to the confrontation clause is applicable ‘only when the defendant engaged in conduct designed to prevent the witness from testifying.’ ”29 And we mandated trial courts to hold an evidentiary hearing before ruling on the admission of hearsay under the forfeiture-by-wrongdoing exception. At such a hearing, the proponent of the evidence bears the burden to show “good reason to believe that the defendant has intentionally procured the absence of the witness, after which the burden then shifts to the opposing party to offer credible evidence to the contrary.”30
Our decision in Parker relied heavily on Giles v. California,31 in which the Supreme Court interpreted the boundaries of the forfeiture-by-wrongdoing exception when dealing with ■ testimonial statements under the confrontation clause. According to the Supreme Court, when dealing with testimonial statements, the proponent of the *871evidence must prove the defendant intended to prevent the witness from testifying. This, of course, begs the question: what is required for nontestimonial statements?
Luna spent much ink attempting to highlight the distinction between non-testimonial and testimonial, statements for purposes of the forfeiture-by-wrongdoing exception. In the end, the distinction is of no real importance' because of the lan-. guage of KRE 804(b)(5).32 Hearsay will only be admissible under, the rule if offered “against a party that has engaged in or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.”
Recently, Michigan reached this same conclusion because of substantially similar language. In People v. Burns, the Michigan Supreme Court held that while “the United States Constitution does not prevent the states from crafting a forfeiture-by-wrongdoing exception for nontestimo-nial hearsay that does not require any proof of a defendant’s specific intent[,] but the plain language of our court rule in fact incorporates the specific intent requirement at issue in Giles.”33 The Giles Court even recognized this point with the federal rule’s language: “Every commentator we are aware of has concluded the requirement of intent [in FRE 804(b)(6) ] means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable.”34
Of great importance to our review of the trial court’s analysis is the fact that the Commonwealth’s burden to establish a basis for application of the exception was a preponderance of the evidence: “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.”35 Luna’s' opposition evidence attempted to highlight holes in the Commonwealth’s grand view of Luna’s crime, essentially creating reasonable doubt. But reasonable doubt can exist at this portion of the trial.36 The Commonwealth is not required to disprove all possible alternative theories or doubts that may exist; rather, it is only required to produce enough evidence to outweigh the evidence produced in opposition.
We will grant, though, that the Commonwealth’s presentation of evidence does seem to require intent to be inferred from Luna’s conduct. In Parker, we allowed this inference: “[T]he trial court — and later the jury-r-could certainly have reason*872ably inferred from all of the unique facts and circumstances of this case that Parker was motivated to kill Stephenson in order to prevent him from testifying[.]”37 While we also noted in Parker that this inference satisfied the requirements of Giles, we must admit that Giles is not clear on that point. In fact, the discussion between the majority and dissent in Giles seems to pivot on whether intent can be inferred from the defendant’s conduct, with the majority requiring evidence of specific intent and the dissent arguing intent can be inferred — so called knowledge-based intent.38
Perhaps this context is where the distinction between testimonial and non-testimonial becomes real. Giles and its specific-intent requirement govern only testimonial statements protected by the confrontation clause of the United States Constitution. Our evidentiary rule operates for nontestimonial statements and, as such, could be interpreted to allow an inference of intent. This inference has long been recognized in our law: “Whether a defendant actually has an intent to kill is a subjective matter[, but a] defendant may be presumed to intend the natural and probable consequences of his act[;] and thus a jury is entitled to find an intent to cause death from an act of which death is a natural and probable consequence.”39
This discussion is largely philosophical in this case, however, because even if we assume that the Commonwealth has not shown the specific intent of murder for the forfeiture-by-wrongdoing exception, the evidence is admissible because it is not hearsay. Indeed, no hearsay exception, forfeiture by wrongdoing or otherwise, is necessary as Hendrickson’s statements were not offered for the truth of the matter asserted, e.g. whether Luna actually abused her or made her drive him to Illinois at knifepoint. By introducing the statements, the Commonwealth' was not seeking to prove Luna actually did abuse Hendrickson. The statements were offered, instead, to paint a picture of why Luna may have been motivated to kill Hendrickson or how he planned to commit insurance fraud. As a result, the statements are less like hearsay and more akin to prior-bad-acts evidence offered for “some other purpose” as allowed under KRE 404(b).
KRE 404(b) operates to exclude “[e]vi-dence of other crimes, wrongs, or acts” which is admitted in an attempt “to prove the character of a person in order to show action in conformity therewith.” It is important to be vigilant with this type of evidence because it can be highly prejudicial, effectively convicting the defendant because of who he is rather than what he is charged with doing.40 Our rules recognize a narrow set of circumstances where prior-bad-acts evidence is admissible: (1) when offered for “some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”; or (2) if the prior-bad-acts evidence is “so *873inextricably intertwined with other evidence essential to the case that the separation of the two [] could not be accomplished without serious adverse effect on the offering party.”41
Here, the statements made by Hendrickson prior to her murder were offered for the purpose of motive, preparation, or plan. That does not end our inquiry, however. We must still make the general relevancy and probative-value determinations required of other evidence admitted at trial.42 The trial court did not make explicit findings on the record, but we find that error to be harmless, to the extent that it is error. First of all, the evidence is certainly relevant — the evidence makes the existence of Luna’s mental state and motive, a fact of consequence to the determination of the action more probable than it would have been without the evidence.43 The question then becomes, under KRE 403, whether the probative value of the evidence is substantially outweighed by the danger of undue prejudice. The simple answer is no. The evidence is, of course, prejudicial to Luna as all evidence of culpability is in a criminal proceeding. The evidence is not, however, unduly prejudicial because it is not unnecessary or unreasonable.44
Before both this Court and the trial court, Luna and the Commonwealth have disputed the issue under the forfeiture-by-wrongdoing exception. Neither party has argued Hendrickson’s statements were not hearsay. Of course, we can affirm a lower court’s decision on any grounds.45 Luna did not receive a fundamentally unfair trial as a result of the admission of Hendrickson’s statements.
D. Luna’s Conduct at the Illinois Police Station was Improperly Admitted.
At trial, the Commonwealth was permitted to introduce the following detailed account of an altercation Luna had with police while awaiting booking after being arrested. While handcuffed, Luna arose from his chair and began approaching a trooper who was seated in front of his computer. Another trooper noticed Luna’s advance and yelled, “Get back!” The seated trooper, much to his surprise, turned around to find Luna standing over him. In what can be considered an instinctual reaction, the trooper shoved Luna away from him. Luna lost his balance as a result of the trooper’s shove and tumbled backward, striking his head on a nearby bench. As Luna arose from the floor, he was highly agitated and began demanding to be bonded out, going so far as to threaten both the trooper and the trooper’s family if he were not bonded out. He was later transported to the hospital where he received four staples in his head to close his wound.
Luna challenges this account as highly prejudicial and irrelevant prior-bad-act evidence under KRE 404(b). Specifically, Luna asserts that the admission of the *874story characterized him as a dangerous and violent person prone to outbursts. The Commonwealth, on the other hand, counters that the evidence cannot be unduly prejudicial because it was admitted at the first trial without objection; and the evidence is not irrelevant because Luna’s being combative and aggressive is probative of his guilt. Furthermore, the Commonwealth compares the evidence of Luna’s altercation with Illinois police with evidence of flight, which is probative of guilt and admissible. We cannot accept any aspect of the Commonwealth’s argument.
We have already rejected the Commonwealth’s attempt to use the law-of-the-case doctrine so we will not discuss it further. And the Commonwealth’s attempt to analogize this altercation to flight is specious. Taken to its conclusion, the Commonwealth’s argument would essentially have us support the ridiculous notion that a defendant who flees from a crime into a neighboring state is in “flight” until the moment he is delivered into the hands of Kentucky authorities.
Luna was not on the run when the altercation occurred; instead, he was sitting in an Illinois police station, handcuffed. It is of no import that it was an out-of-state police station and the charged crime occurred in Kentucky. It cannot be argued that a defendant, under arrest, is fleeing from a crime simply because he demands to be released on bail. Moreover, the evidence of the altercation is not inextricably intertwined with the Commonwealth’s other evidence. The Commonwealth desired to introduce the altercation in order to explain why Luna was in the hospital when he made an incriminating statement to police. The details of the altercation, especially the threats made by Luna, are not necessary to provide that context.46 The trial court abused. its discretion in allowing the evidence to be admitted into evidence at trial.47
But admitting this evidence was harmless error. Luna’s statement to police and Luna’s own trial testimony included mentions of the police-station altercation, admittedly in less detail. Considering the amount of evidence supporting Luna’s role in Hendrickson’s murder, we do not believe this prior-bad-acts evidence substantially swayed the jury to convict Luna of first-degree murder or first-degree arson.
E. The Commonwealth’s Cross-Examination of Luna was Improper but not Reversible Error.
In our 2010 opinion, we held that the mention of various fires in Luna’s past was erroneous because there was no evidence indicating that Luna was responsible for the fires. Specifically, we held the mention of three previous fires at Luna’s residence in Illinois was erroneous. However, we did allow evidence of Luna’s garage and car fire because they were relevant to prove motive and knowledge of how to start a fire. At the instant trial, during cross-examination the Commonwealth asked Luna about these past fires.
*875During cross-examination of Luna, the Commonwealth asked Luna about three fires that occurred at Luna’s former residence in Illinois. In addition, the Commonwealth asked Luna about an apartment fire that occurred in the early 90s. That fire occurred at Luna’s building but Luna denied having anything to do with it. Likewise, Luna denied having anything to do with the previous fires at his home, with the exception of a fire in his garage, which he admitted to starting accidentally with a cigar after spilling some gasoline. Luna did acknowledge receiving insurance proceeds from the previous fires. The Commonwealth did not present any evidence Luna was responsible for the fires.
With regard to this issue, the record of the present trial presents two key facts that are different from the trial record we faced in 2010: (1) the Commonwealth did not call Robert Davis as a witness in the retrial; and (2) Luna took the witness stand in the retrial and testified on his own behalf. The former is noteworthy because Davis is the witness through which the Commonwealth introduced the Illinois fires we held to be erroneously admitted. The latter is noteworthy because Luna was given the opportunity to present his side of the story about not only what happened that fateful night, but also his history and his relationship with Hendrickson. But those differences aside, the fact remains that in our 2010 opinion we said unequivocally that the Illinois fires were irrelevant because the Commonwealth could not present sufficient evidence to allow the jury to conclude reasonably that Luna was responsible for them.48
That we are now dealing with the same Illinois fires49 wé previously held were inadmissible under KRE 404(b) is astounding. The Commonwealth is right in one— and only one — regard: our holding in 2010 did not prohibit the Commonwealth from cross-examining Luna on retrial or from mentioning the word “fire.” But the Commonwealth appears to believe that the only problem with the Illinois-fire evidence was that it was admitted in the first trial through Davis and that by not calling him on retrial any error is somehow eliminated.50
The Commonwealth’s arguments miss the point entirely. It was not simply the manner in which the Illinois-fire evidence was admitted, but the content,51 Indeed, KRE 404(b) is not designed to police how evidence is admitted, but rather what that evidence says about the defendant. Whether it is admitted through cross-examination or through Robert Davis, this evidence is inadmissible under KRE 404(b) because the evidence is insufficient for a jury to conclude reasonably that Luna set *876the past fires. We were clear, so we thought, in 2010 that the Commonwealth needed to introduce more evidence relating to Luna’s involvement in past fires. In a truly remarkable response to our directive, the Commonwealth has actually introduced less. Because of this, the evidence remains inadmissible and should not have been allowed.
Luna’s counsel made no timely objection during the Commonwealth’s questioning of Luna, with the exception of a single instance in response to the Commonwealth’s comment about the apparent irony of Luna formerly living on Coal Street in Illinois. Following that objection, the Commonwealth withdrew the question and Luna did not request a jury admonition.52 As a result, Luna relies primarily on a pre-trial objection for preservation of the admission of the prior-bad-acts evidence at trial.
We have recently observed that pre-trial objections are sufficient to preserve an issue for appellate review.53 And our evidence rules mandate this view: “A motion in limine resolved by order of record is sufficient to preserve error for appellate review.”54 Here, the Commonwealth presented notice of its intent to introduce prior-bad-acts evidence and Luna filed an objection. The basis for Luna’s objection was essentially what we held in 2010 — the Commonwealth’s evidence linking Luna to the prior fires was insufficient. In its initial order, the trial court ruled the evidence admissible after appropriately going through the Bell55 test and weighing the probativeness, relevancy, and prejudice of the evidence. Luna then filed a motion seeking reconsideration of the order and requesting more specific findings of fact. This subsequent order, in all candor, raises a degree of confusion regarding whether Luna’s allegation of error is properly preserved. The trial court essentially delayed ruling on the admission of the proposed evidence, noting that “this issue, like the rest of the issues before the court, will ultimately be determined at trial based upon the evidence presented.” Going further, the trial court held:
The court’s ruling on January 20, 2012 does not give the Commonwealth a free hand presenting its case with no constraints. The ruling simply puts defendant on notice that if the Commonwealth meets its burden based on the Supreme Court’s opinion from the first trial, it may then introduce evidence of the trailer and house fires. The prior ruling of the Supreme Court said the Commonwealth failed to meet its burden in the first case, but that does not serve to prohibit the Commonwealth from seeking to meet that burden in this trial. As for the court making specific findings, the court will do its job at the trial. The court does not believe defendant is entitled to such at this point.
The trial court’s reasoning unnecessarily engenders confusion because it. is not readily apparent if the trial court has truly resolved a motion in limine with an order of record as required by KRE 103(d). Rather, it seems the trial court has only postponed resolution of the motion. In *877light of our procedural and evidentiary rules this action makes little sense.
It is certainly within a court’s discretion, pending the introduction of more evidence, to delay ruling on a motion. That said, the delay of a ruling until the middle of trial is problematic and should be discouraged. As this case illustrates, it is difficult to link the prior bad acts to a party without essentially disclosing the prior bad acts. In nearly all material aspects, a delayed ruling becomes no ruling. Here, the trial court forbade the Commonwealth from introducing “evidence of the trailer and house fires” without first meeting its burden, which, of course, begs the question: how does the Commonwealth meet its burden without introducing some evidence of the trailer and house fires? It seems to us difficult to link a defendant to a prior bad act without mentioning the prior bad act.
Best practice, in our- opinion, dictates that a trial court conduct a hearing and make an affirmative ruling before trial.56 The proponent of prior-bad-act evidence under KRE 404(b) should be prepared to present sufficient evidence at the hearing to allow a jury to conclude reasonably that the opposing party — defendant, here — was the actor. A delayed ruling in this instance does little to promote the purpose of KRE 404(b), KRE 103(d), or motions in limine in general. Of course, if new evidence comes to light after the trial court’s ruling, a party may always request a trial court reconsider its ruling in light of the new evidence. This accomplishes the same objective the trial court sought here, but does so within the procedural framework we have built to protect parties’ rights.
An objection at trial would have made preservation more clear, of course, but its absence is not fatal in this particular instance. In any event, whether we consider Luna’s s pre-trial objection sufficiently preserved for appellate review is largely immaterial because the error is harmless for a several reasons. At most, the prior-bad-act evidence indicated that Luna had the knowledge necessary to start fires. But, Luna repeatedly denied association with the fires and gave reasonable explanations for his lack of participation. Evidence of Luna’s fire knowledge was not overly prejudicial given Luna’s admission that he did start the fire in his garage. The evidence at issue here, moreover, pertained primarily, if not solely, to Luna’s first-degree arson charge — a charge which we resolve in Luna’s favor later in this opinion. Mentioning previous fires has little, if anything, to do with murdering Hendrickson by striking her in the head with a blunt object.
Given the totality of the evidence indicating Luna’s guilt and the short period of questioning at issue, we do not find the Commonwealth’s cross-examination affected the judgment or the trial’s underlying fairness to a degree warranting reversal.
F. The Illinois Civil Judgment Against Luna was Properly Admitted.
Luna next challenges as error the trial court’s decision to allow the Common-*878wealth’s introduction of a civil judgment against Luna. The judgment, obtained by Progressive Insurance, stemmed from a prior fire at Luna’s residence in Illinois. Progressive paid under the policy shortly after the fire, but later filed a civil action against Luna and his then-fiancee. Eventually, on July 13, 2007, Progressive obtained a judgment for $11,527.72 because the insured parties were not entitled to coverage because of a misrepresentation during the policy application. The misrepresentation was made by Luna’s then-fiancee. The date of the judgment is important because it is the day before Luna’s Firebird burned, for which Luna fraudulently attempted to recover insurance proceeds.
Luna’s singular focus on the fact that he was not responsible for the misconduct ■ that led to the civil judgment is misguided. Liability is not why the judgment is relevant. The judgment is relevant for what it orders, and, more specifically, the financial implications of what it orders. Simply put, the judgment placed a financial burden on Luna. And we have acknowledged in various contexts that “the state of [a defendant’s] finances is relevant to whether he had a motive”57 to commit-the crime for which he is charged. That holds true with Luna. The judgment and its associated financial burden bolster Luna and Hen-drickson’s insurance-fraud scheme, which we have already discussed in detail as being relevant to Luna’s motive for murder.
Luna challenges the judgment’s relevance by arguing that he did not receive a copy of the judgment until discovery during trial for Hendrickson’s murder, so he could not have burned the Firebird with that judgment debt in mind. That may be true, but Luna’s purported .lack of knowledge does not affect the admissibility of the judgment. Instead, the possibility that Luna may not have known of the judgment goes to the weight the jury may decide to afford the judgment during its deliberation. Furthermore, the entry of the judgment did not serve to mislead the jury as Luna argues. The insurance fraud scheme, while complex at times, was a central point in the Commonwealth’s theory. Rarely will evidence directly pertaining to the central point of a theory in issue at trial mislead the jury. The opposite will virtually always be true. This case does not present one of those rare situations. There was no error in the trial court’s admission of the judgment.
G. Luna was Improperly Asked to Characterize the Testimony of Other Witnesses, but this Error was Harmless.
During cross-examination, the Commonwealth asked Luna a series of questions revolving around whether Luna believed the other witnesses at trial were lying. Luna argues he was deprived of a fair trial because of this line of questioning. We agree that the questioning was improper, to a degree, but find any associated error to be harmless to the extent it drew an objection. Of course, we do not find the error to be palpable.
We have consistently recognized as improper questioning that asks the witness to characterize another witness’s ostensibly divergent testimony as being untruthful.58 “Such a characterization places the witness in such an unflattering light as to potentially undermine his entire testimo*879ny.”59 Because of the Commonwealth’s mode of questioning here, it bears emphasizing again that “[cjounsel should be sufficiently articulate to show the jury where the testimony of the witnesses differ without resort to blunt force.”60 Admittedly, we have not yet found such a characterization to rise to palpable error under our RCr 10.26.
At trial, the following exchange between the Commonwealth and Luna took place:
Luna: I went to hand her the phone, and Deb was upset about the fact that her car had just been wrecked and about the fact that you know I was— my leg was infected and I was going to have to go, or had gone to the doctor, going to have to go.
Commonwealth: Go on. You can go on.
Luna: Oh, I’m done.
Commonwealth: So, she’s uncontrollable, she’s crying, she’s sobbing, you put her—
Luna: No, she wasn’t uncontrollable, but, he writes that in his notes that it was, he can tell that story if he wants.
Commonwealth: All right, well, between Caleb McGrath and the guy who’s on trial for murder, I think the guy on trial for murder has an incentive to kind of bend things his way, would you agree with that?
Luna: Um, shoot. Ill tell you maybe Caleb McGrath
has a reason, he’s a Progressive agent, I’ve had problems with Progressive they—
Commonwealth: It’s amazing.
Luna: Maybe they have a biased opinion, maybe there’s some bias—
Commonwealth: It’s amazing.
Luna: As a matter of fact, in his policy they said they had a previous policy ■with me, with Progressive, which is the one that I was sued over, so he did know about this—
Commonwealth: Right, you’re—
Luna: So— .
Commonwealth: You’re a suspicious person because you keep filing fraudulent claims with Progressive, it’s a reasonable assumption.
Luna: I’ve never filed a fraudulent claim with Progressive.
Commonwealth: You filed a claim on the shed fire after lying on their policy.
Luna: I never lied on anything. I never — you have the paperwork, you know—
Commonwealth: Marcia lied, everybody lies, everybody is lying but you.
Luna: Yeah, well you know I didn’t speak with people. You have the paper—
Commonwealth: Is everybody lying but you?
Luna: I don’t know what everybody’s doing.
Commonwealth: The Deharts, Bobby ■ Davis, these officers, Detective Hil-brecht, everybody coming in this . courtroom—
At this point, the defense roused to offer an objection to the questioning. The Commonwealth argued at the ensuing bench conference that Luna had opened the door to this line of questioning by testifying that Caleb McGrath was lying when he stated, “he can tell that story if he wants.” The trial court agreed and overruled the objection. Following the objection, the Commonwealth asked Luna: “So, everybody, all of these witnesses, I mean we *880have had over I don’t even know how many witnesses, over thirty witnesses, came in here and testified about their experience with you, and poor Deb Hen-drickson. And every one of them is out to get you? Is that right?” Luna replied, “That’s your story.”
We consider it fairly debatable whether Luna’s testimony that Caleb McGrath was telling a “story” constituted a comment on another witness’s veracity. But the defense failed to object in a timely fashion, rendering the issue unpreserved — at least the majority of the issue. Although we are troubled by the Commonwealth’s conduct of the cross-examination of Luna and cannot emphasize enough that blunt force is never an acceptable trial strategy, the error does not rise to the level of palpable, as we recognized in Moss.
The Commonwealth’s questioning did not create a palpable error. In fact, the error was harmless in light of Luna’s testimony. Having reviewed the trial, we believe there is not a “substantial possibility that the result would have been any different” 61 if the Commonwealth’s questioning as to the other witnesses’ testimony would not have occurred. On cross-examination, Luna was a combative witness and repeatedly retorted an iteration of “that’s your story” to questions from the Commonwealth rather than providing a substantive answer and repeatedly battled with the Commonwealth. Essentially, Luna challenged the majority of the Commonwealth’s questions as inaccurate, false, or simply theoretical. The general prohibition outlined in Moss of this type of questioning was designed to prevent a witness from being presented in an unflattering light from which he could not recover in the eyes of the jury. But, where a defendant places himself in an unflattering light with an overall combative tone, the impact of such questioning by the Commonwealth is somewhat mitigated. It becomes difficult to say with any reliability whether the Commonwealth’s questioning or the defendant’s own recalcitrance contributed to the jury’s verdict.62 Accordingly, we conclude that the Commonwealth’s conduct of the cross-examination, while improper, was not palpably erroneous. The Commonwealth’s questioning can be considered harmless in this context. Nor did the Commonwealth’s questioning “so in-fecte ] the trial with unfairness as to make [Luna’s] conviction a denial of due process.” 63
H. The Trial Court Properly Rejected Luna’s Alleged Alternative Perpetrator Theory.
Before trial, Luna filed a motion requesting permission to present evidence in support of an alleged alternate perpetrator (aaltperp). The trial court denied Luna’s motion, but Luna preserved the issue by offering avowal testimony. Luna now asserts the trial court erroneously denied his motion and denied his right to present a complete defense. We disagree.
Ingrained in both our law and recognized concepts of fundamental fairness is a defendant’s “right to introduce evidence that another person committed the offense with which he is charged.”64 *881So important is this right that a trial court may only interfere with it if the defense’s aaltperp theory is “unsupported, speculative, and far-fetched[, which] could thereby confuse or mislead the jury.”65 To be sure, the ability to present an aaltperp theory of the crime is a critical tool in the defense toolbox. But it is not so important that any mention of an aaltperp is sufficient to allow the evidence to come before the jury. As we have stated, “evidence is not automatically admissible simply because it tends to show that someone else committed the offense.”66 The possibility of confusing or misleading the jury is very real and must be closely monitored by the trial court.
To strike the balance between the defendant’s rights and presenting evidence in a manner in which the jury can digest, we have consistently demanded that, at the very least, opportunity and motive should be shown before evidence of an aaltperp theory comes before the jury.67 And that is the problem with the aaltperp evidence proffered by Luna. There was no substantive evidence indicating both opportunity and motive. Instead, Luna sought to. admit evidence that one of Hendrickson’s former boyfriends committed the crime. Hendrickson’s relationship with this boyfriend ended a few months before Luna moved in with her. .According to the evidence, the former boyfriend physically abused Hendrickson and even threatened her life at one point. Luna’s evidence tends to create more questions than answers. “In a homicide case,- a defendant is not entitled to parade before the jury every person who bore some dislike for the victim[,]”68 and that is all Luna did here.. The trial court appropriately exercised its discretion in denying Luna’s aaltperp theory.69
I. Luna did not Present Sufficient Evidence to Warrant an Intoxication or Extreme Emotional Disturbance Instruction.
Throughout this trial, we acknowledge the common thread of alcohol consumption. According to the evidence conflict coincided with alcohol consumption. In light of that, Luna now argues the trial court erroneously denied his request for an intoxication instruction. And considering Luna’s account of the struggle between him and Hendrickson before the fire, no doubt alcohol-fueled, Luna requested an extreme-emotional-disturbance instruction. The trial court denied that request as well, and Luna now challenges that denial as .error.70
As an initial matter, “[a] trial court is required to instruct on every theory of the case reasonably deducible from the evidence.”71 The trial court, in other words, has a duty to instruct on the whole *882law; that is, law “applicable to every state of the case covered by the indictment and deducible from or supported to any extent by the testimony.”72 With regard to an affirmative instruction, however, as voluntary intoxication and extreme emotional disturbance are, “some evidence justifying a reasonable inference of the existence of a defense”73 must be introduced. An affirmative instruction must be rejected if the evidence does not warrant it.
Dealing with Luna’s intoxication request first, KRS 501.080(1) states voluntary intoxication is only a defense if the intoxication “[negatives the existence of an element of the offense.” Of course, in the instant case, Luna seeks a voluntary intoxication instruction to negate the intent element of both first-degree murder and first-degree arson. Luna argues the jury could have reasonably believed he was too intoxicated to form the requisite intent and, accordingly, he was entitled to instructions for lesser charges.74
Our case law requires more than mere evidence of alcohol consumption. Instead, a voluntary intoxication instruction is appropriate “where there is evidence reasonably sufficient to prove that the defendant was so drunk that he did not know what he was doing.”75 Simple drunkenness is not sufficient; instead, a “more advanced degree of drunkenness” 76 is required.
Luna’s characterization of the events leading to Hendrickson’s murder presents no evidence he was so drunk that he did not know what he was doing. The evidence certainly indicates that Luna consumed an impressive amount of alcohol on the night in question; indeed, his blood alcohol content hours after Hendrickson’s murder was .209. To be sure, that reading was taken after Luna finished off a bottle of liquor when unable to find Hendrick-son’s pulse and continued to drink alcohol during his getaway to Illinois; and, more importantly, it indicates little with regard to Luna’s level of intoxication at the time of the murder. Luna offers no evidence of blacking out or otherwise succumbing to alcohol in a manner that makes him seem unaware of his conduct.77 The evidence points to the contrary, in fact. At trial, Luna provided a detailed account of the events leading up to Hendrickson’s murder and the alleged physical clash between him and Hendrickson. That account, discussed below, did not indicate intoxication to the point of negating an intentional mental state. To the contrary, Luna appeared in control of his mental faculties. Even though his testimony was filled with comments that he was drunk, we reiterate that without evidence of a more advanced *883drunkenness, a voluntary intoxication instruction is not warranted.
Similarly, Luna’s attempt to obtain an extreme-emotional-disturbance instruction is not warranted based on the evidence. To prove adequately extreme emotional disturbance, a defendant must offer evidence that he “suffered a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from an impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.”78 Extreme emotional disturbance may have its roots in the common law concept of heat of passion, but it long ago outgrew the stricture of that historic principle. Our jurisprudence now recognizes that “it is possible for any event, or even words, to arouse extreme mental or emotional disturbance.”79 While what constitutes the triggering event may be broadly construed, its impact on the defendant is not. The event must be so dramatic as to render the mind temporarily uncontrollable and pr.ovoke “an explosion of violence.”80
In short, Luna presents no evidence indicating an explosion of violence as a result of some triggering event. The absence of any indication Luna was temporarily unable to control his conduct is also fatal to Luna’s argument. The narrative Luna presented at trial may have supported a self-defense theory, but it certainly did not support extreme emotional disturbance:
Hendrickson became upset when Luna refused to go along with her plan to burn the trailer down. She then stabbed him in the leg with a paring knife, after which Luna retreated to the' bathroom, applied a bandage to the wound, and changed jeans. The stab-' bing was just the beginning, though. When Luna exited the bathroom, Hen-drickson had been looking through his cell phone and was now enraged over what she found. Hendrickson struck Luna in the face, bloodying his nose, and grabbed him by the hair. Luna was able to get free and returned to the bathroom to clean up blood yet again. Luna then heard Hendrickson yelling she would burn the place down and the click of a lighter. Hendrickson lit candles, wrapped them in an afghan, and dumped vodka all around. This is when she snapped. Hendrickson retrieved a handgun and attempted to fire at Luna, but the gun did not fire. Luna went toward her and they struggled over the gun — boom!—nothing but ringing in Luna’s ears. All Luna could think of “was not being with [his] kids, [and] them growing up without their dad.” As he continued to struggle with Hen-drickson, Luna grabbed a nearby whiskey bottle Hendrickson had thrown at him earlier. She rose up, yelling “I’m going to kill you!” The gun went off again. Luna swung the whiskey bottle and connected with the back of Hen-drickson’s skull. She collapsed to the floor, motionless.
At no point in Luna’s narrative does he describe his own temporary state of mind so enraged, inflamed, or disturbed as to overcome his judgment. In fact, Luna did not seem enraged, inflamed, or disturbed at all. If anything, he had complete control over his judgment as he *884notes all he could think of was dying and his children growing up fatherless. To prevent this outcome, Luna makes a decision, visceral perhaps, to fight back and get Hendrickson off of him and calmed down. In no way does this fall within the scope of extreme emotional disturbance. Accordingly, Luna did not present sufficient evidence to warrant an instruction on extreme emotional, distress. The trial court did not abuse its discretion.
Finally, the defense Luna offered at trial seemingly undercuts an intoxication or extreme emotional disturbance instruction being warranted. As Luna’s narrative illustrates, his primary, if not sole, theory of defense was self-defense, ie. hitting Hen-drickson with the whiskey bottle was justified because he feared for his life. That is consistent with his mind' becoming filled with thoughts of his children and dying. If anything, Luna acted with intention in protecting his life. He did not lose his mind because of some dramatic event and he was not so drunk that he did not know what he was doing. Luna’s testimony indicates, rather, he knew exactly what he was doing.
J. Luna was Entitled to a Directed Verdict on the First-Degree Arson Charge.
To be convicted of first-degree arson, codified in KRS 513.020, a person must start a fire or cause an explosion with “intent to destroy or damage a building” and the building must be “inhabited or occupied or the person has reason to believe the building may be inhabited or occupied” or “[a]ny other person sustains serious physical injury as a result of the fire or explosion or the firefighters as a result thereof.”
Luna’s argument is simple: Hendrick-son was dead from blunt force trauma to the head before the fire started, so Luna cannot be convicted of first-degree arson because Hendrickson was not “occupying” the trailer. The Commonwealth, in return, argues the evidence as to whether Hendrickson was dead before the fire or, perhaps more accurately, whether Luna had reason to believe she was dead is inconclusive, rendering a directed verdict inappropriate. Considering the evidence offered at trial, we must agree with Luna.
Our standard and method of review regarding a motion for directed verdict is deeply rooted and well understood. At trial, the court “must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given.”81 In making this determination, the trial court “must assume that the evidence for the Commonwealth is true, but reserv[e] to the jury questions as to the credibility and weight to be given such testimony.”82 On appellate review, however, a defendant is only entitled to a directed verdict “if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]”83 Faced with a directed-verdict motion, the Commonwealth must produce “more than a mere scintilla of evidence”84 to satisfy its burden.
Not a single witness offered any testimony at trial to suggest that Hendrickson was alive at the time of the fire. The *885Marshall County Coroner testified that he noticed compression skull fractures — different from heat fractures caused by fire— almost immediately upon entering the burned-out trailer. At the scene, he surmised the cause of Hendrickson’s death was blunt-force trauma to the head. The medical examiner that performed the autopsy bolstered that conclusion. Hen-drickson’s body had several indicators of blunt-force trauma: skull fractures, sub-dural hemorrhaging, and bruises to the brain away from the location of the skull fractures.85 There was no disagreement in the evidence that blunt-force trauma, not fire, caused Hendrickson’s death. More importantly, though, the autopsy revealed a notable absence of soot deposition in Hendrickson’s airways. The medical examiner testified unequivocally: there was no evidence Hendrickson was breathing when the fire was in close proximity for her to be breathing in smoke.
On this point, even if we assume the Commonwealth’s evidence to be true and draw all fair and reasonable inferences in the Commonwealth’s favor, we are constrained to reach the same conclusion: Hendrickson was dead before the fire. And the primary witnesses to prove that point were the Commonwealth’s own witnesses. Luna’s testimony was consistent with the findings of the coroner and medical examiner. He checked Hendrickson’s pulse several times, both at her neck and at her wrist, and was unable to find- a pulse. The Commonwealth disputes this aspect of Luna’s testimony and attempts to diminish it by placing find in scare quotes. This evidence is important because it would seem axiomatic that in order for an individual to be considered occupying a building for purposes of first-degree arson, that individual must be alive.
Finally, the Commonwealth argues that the evidence is inconclusive because the exact time of the fire is unknown, so while Hendrickson may have been dead before the fire was around her, she may have been alive at the start of the fire. Luna testified that Hendrickson lit some candles and wrapped them in an afghán before they engaged in their violent struggle, obviously indicating that Hendrickson was alive at the start of a fire. Whether that fire grew to become the fire is unknown.86 In support of this argument, the Commonwealth directs our focus to Bray v. Commonwealth,87 an arson case involving inconclusive evidence and rejecting the defendant’s directed-verdict motion.
The problem with the Commonwealth’s position is that it has the burden of proof.88 To be sure, the fire’s timeline *886is ambiguous, and, as can be typical with homicide cases, perhaps the only person who could provide insight into that time-line is the -victim. But it is the Commonwealth’s burden to produce evidence indicating Hendrickson was alive at the start of the fire and Luna set the fee aware of that fact. And the Commonwealth has produced no evidence to shed light on when the fee was started, not even a scintilla.
Perhaps highlighting the Commonwealth’s lack of evidence, the jury convicted Luna of first-degree arson but did not find that Hendrickson’s murder was committed during the commission of first-degree arson, the ostensible hand-in-glove statutory aggravator given the charges. For these reasons, Luna was entitled to a directed verdict on the first-degree arson charge.
This directed verdict does not, however, alter Luna’s sentence because the jury recommended a sentence of life imprisonment without benefit of probation or parole not for first-degree arson, but for first-degree murder committed in the commission of first-degree robbery. The..jury recommended twenty years’ imprisonment for the first-degree arson conviction, to be served consecutively with the life imprisonment sentence. Clearly then, a directed verdict on first-degree arson has no impact on Luna’s life imprisonment sentence.
K. Luna’s Trial was not Unfair Because of Cumulative Error.
Even if we find all the errors argued above by Luna to be harmless, Luna contends he is entitled to a new trial because the errors, when combined, render his trial unfair. The doctrine of cumulative error has been cautiously applied by this Court, reserving it only for situations “where the individual errors were themselves substantial, bordering, at least, on the prejudicial.”89 But,.“[w]here as in this case, ..., none of the errors individually raised any real question of prejudice, we have declined to hold that the absence of prejudice plus the absence of prejudice somehow adds up to prejudice.”90 While we must say that Luna’s trial was not error-free, at the same time, we cannot say any of the errors, “either individually or cumulatively, render the trial unfair.”91 Consequently, we reject Luna’s cumulative-error argument.
L. The Commonwealth did not Exhibit Prosecutorial Vindictiveness by Seeking Statutory Aggravators in Luna’s Second Trial.
Luna next contends that the Commonwealth exhibited prosecutorial vindictiveness by seeking statutory aggravators on remand when statutory aggravators were not sought for the first trial. This' decision, according to Luna, effectively punished him for exercising his constitutional rights and appealing his conviction. We disagree.
The United States Supreme Court first recognized prosecutorial vindictiveness under the broad concept of due process in North Carolina v. Pearce.92 In Pearce, the Court held that if a judge imposes a more severe sentence on a defendant after winning a new trial, “the reasons for his *887doing so must affirmatively appear” and “be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.”93 It is worth mentioning that Pearce involved sentencing by a judge. The Pearce holding was later narrowed in both Alabama v. Smith94 and Blackledge v. Perry.95 In Blackledge, the Court held that a defendant’s right to due process is “not offended • by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of vindictiveness.” 96
Generally speaking, there exist two methods through which prosecutorial vindictiveness may be shown: actual and presumptive. “Actual vindictiveness” -requires “objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights.”97 Luna does not argue that the Commonwealth acted with actual vindictiveness, but rather presumptive. In those situations where objective evidence of vindictiveness is lacking, as here, prosecutorial vindictiveness can be presumed depending on the apparent likelihood of vindictiveness. “Given the severity of such a presumption, however — which may operate in the absence of any-proof of an improper motive and thus may block a legitimate response to criminal conduct — the court has done so only in cases in which a reasonable likelihood of vindictiveness exists.”98
We do not find the current situation to present a reasonable likelihood of vindictiveness. No doubt, the prosecution has a sizable stake in obtaining a conviction and appropriately punitive sentence. But, the circumstances presented here do not indicate any reason for this Court to presume vindictiveness. First of all, the prosecution was different for Luna’s first trial and the trial at issue. A special prosecutor from the Attorney General’s office tried the case on remand. Looking at the case with fresh eyes and having the advantage of a prior trial, more time to review the record and prepare for the matter, the prosecutor in the retrial chose to proceed with statutory aggravators. The Commonwealth alleges that statutory aggrava-tors were not sought in the first trial because of time restraints.99 Luna filed a series of motions for continuance before the instant trial because his representation was in flux. Given the extra time, the Commonwealth decided to seek a conviction on statutory aggravators. Based on some statements by the Commonwealth before trial, Luna attempts to weave a conspiracy theory by arguing that the Commonwealth punished Luna for seeking the continuances and winning on appeal.. The evidence does not support this argument, at least not to a degree that warrants a presumption of vindictiveness.
*888Second, the Commonwealth did make the choice to pursue statutory aggravators, but did not make the choice to convict on them. As the Supreme Court of Mississippi noted:
Each aggravating circumstance had to be proven beyond reasonable doubt, and the jury was required to weigh the aggravating circumstances against the mitigating circumstances. The jury was not informed as to the long rocky road of Jordan’s trials, retrials and resentenc-ings. Therefore, any possible prosecu-torial vindictiveness that Owen had as the result of Jordan’s obtaining yet another resentencing was rendered impotent because it was the jury which decided that Jordan should be sentenced to death rather than life imprisonment without parole. The statutory safeguards in place in capital cases assured that the jury operated without the taint of prosecutorial vindictiveness.100
And as the Supreme Court has pointed out: “The potential for such abuse of the sentencing process by the jury is, we think, [de minimis] in a properly controlled retrial.”101 The distinction between judge sentencing and jury sentencing is an important one. Statutory aggravators have been a possibility in this action from the time Luna was indicted. The Commonwealth exercised its discretion in the first trial and did not pursue aggravators; but, on remand, counsel and deadlines changed, giving the Commonwealth both new perspective and more time to prepare its case. At bottom, though, Luna was indicted for a capital crime and was tried for a capital crime both times.
We see little evidence of vindictiveness in the Commonwealth’s conduct on remand.
M. Luna was not Entitled to a Directed Verdict on the Robbery Aggravator.
Finally, Luna contends the Commonwealth did not present sufficient evidence to convict Luna of murdering Hen-drickson in the commission of first-degree robbery. The evidence presented, according to Luna, required impermissible inferences built upon inferences for the jury to convict. We admit the evidence is was not overwhelming, but we disagree with Luna that the Commonwealth failed to satisfy its burden for the charge to reach the jury. The issue is unpreserved, and Luna requests we engage in palpable error review; but we find no error of any kind.
The Commonwealth introduced various pieces of evidence highlighting Luna’s need to acquire Hendrickson’s truck. Primarily, Luna’s employment dictated a method of transportation was critical. Luna testified that he drove to nearly all of his jobs, but did fly to some, depending, of course, on the jobs’ locations. The nature of his trade was such that he needed to be mobile so that he could respond quickly to the demands of the market, essentially going where the work was.
A friend of Hendrickson’s testified that Hendrickson wanted to buy her truck so that Luna would stop trying to get her vehicles. Luna seizes on this bit of testimony, alleging it demands the jury pile inference on top of inference. This allegation is centered on the fact Hendrickson’s friend used the word “vehicles” in her testimony instead of “truck.” According to Luna, the jury was then forced to infer that Hendrickson meant “truck.”
We recently detailed our inference-on-inference jurisprudence in South*889worth v. Commonwealth,102 Our rule barring a string of inferences is not absolute, “despite being stated in absolute terms. If that were the case, then the exercise of logic, which frequently employs inference-derived inferences, would not.be allowed to the jury.” 103 Instead, our rule is “intended to condemn inferences that build upon inferences in an unreasonable manner.”104 Luna is unable to direct our attention to any unreasonable strings of inferences. Yes,- Hendrickson’s friend did say “vehicles” instead of “truck,” but, considering the evidence presented at trial that the Firebird was burned by Luna and Hen-drickson’s Chrysler was wrecked by Luna, it is certainly not unreasonable for the jury to infer “vehicles” included “truck.” Notably, no evidence was put forth that Hen-drickson owned more vehicles than the Chrysler 300M and the truck.
When we assume the Commonwealth’s evidence to be true and view the evidence in a light most favorable to the Commonwealth, it is clear more than a mere scintilla of evidence was presented. There was no error, palpable or otherwise.
III. CONCLUSION.
The Commonwealth failed to present sufficient evidence indicating Hendrickson was alive, thereby occupying the trailer, before the start of the fire. Luna’s first-degree arson conviction, consequently, is reversed. Finding no error requiring reversal of the judgment, we affirm Luna’s first-degree murder conviction, however. .Luna’s sentence for first-degree murder committed during the commission of first-degree robbery, life imprisonment without possibility of parole or probation, is likewise affirmed. This matter is remanded to the trial court for entry of a new judgment consistent with this opinion.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venter's, JJ., sitting. All concur.
. Ky. Const. § 110(2)(b).
. See Luna v. Commonwealth, 2010 WL 4683564 (No. 2008-SC-000652-MR Nov. 18, 2010).
. Unless otherwise noted, all issues are properly preserved for our review.
. Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky.2010).
. Id.
. Id.
. 639 S.W.2d 776, 777 (Ky.1982) (noting that this Court is without “power on a second appeal to correct an error in the original judgment which either was, or might have been relied upon in the first appeal.”).
. Brown, 313 S.W.3d at 611 (internal quotation marks omitted).
. For example, the Commonwealth argues Luna's challenge to the admissibility of his altercation with a state trooper while in custody in Illinois is governed by the law of the case because (a) Luna did not object to the admission of this evidence at the first trial and (b) this Court included the altercation in our recitation of the facts in our 2010 opinion. This stretches the law-of-the-case doctrine beyond recognition, at least as we recognize it post-Brown. The Commonwealth fails *863to mention a previous objection or pre-trial motion or anything of the like ruled on by the trial court. And, it almost goes without saying that our mere mention of testimony or factual allegations now alleged to be inadmissible does not constitute an affirmative ruling of any sort - and does not invoke the law-of-the-case doctrine. Again, the law-of-the-case doctrine requires more than the mere opportunity for a trial court to rule; it requires that the trial court did rule.
. See, e.g., Commonwealth v. Jones, 283 S.W.3d 665, 670-71 (Ky.2009). We, of-course, are not now labeling the law-of-the-case doctrine as an affirmative defense but drawing a simple analogy. The party arguing the law-of-the-case applies bears the burden of proving its applicability.
. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. We note that the law-of-the-case might apply to this situation if the Commonwealth showed us that the trial court made a ruling under Daubert in the original trial on the reliability or qualifications of the arson investigator. But the Commonwealth has shown us nothing on this point from the original trial and our examination of the record of the original trial has failed to unearth a Daubert motion or hearing regarding this potential expert witness. Of course, the arson investigator did testily as an expert in the original trial, so we might presume the trial court’s tacit approval under Daubert. But lacking a clear indication in the record of the original trial, we are hesitant to extend the law-of-the-case to a point where it would apply to the present case.
. Daubert, 509 U.S. at 597, 113 S.Ct. 2786.
. Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 39 (Ky.2004).
. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky.2000) (alterations in original).
. Toyota Motor Corp., 136 S.W.3d at 39.
. Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786.
. Goodyear Tire, 11 S.W.3d at 577-78.
. Hyman & Armstrong P.S.C. v. Gunderson, 279 S.W.3d 93, 101-02 (Ky.2008) (“An appellate court's standard of review relative to a ruling on the reliability of scientific evidence under Daubert is whether the ruling is supported by substantial evidence.’’) (citing Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky.2004)).
. Commonwealth v. Christie, 98 S.W.3d 485, 488 (Ky.2002).
. Id. (quoting John v. Equine Srvs. P.S.C., 233 F.3d 382, 393 (6th Cir.2000)) (alteration omitted).
. Id. at 488-89.
. We note that the trial court had heard this same witness testify live about the same report in the original trial.
.Luna claims he was "unable to adequately challenge the reliability of [the arson investigator’s] conclusions based on his knowledge and handling of the device and any samples.” And, Luna complains that the trial court was unable to "make a ruling on the reliability of the detector device, the particular device at issue, or its actual use in this case.” Per Luna's constitutional rights, the lab technicians who handled the samples obtained by the arson investigator from Hendrickson's trailer were required to testify at trial and did so. Any mishandling of those samples or what those results indicate about the arson investigator’s chosen methodology does not go to whether the arson investigator should be qualified as an expert; instead, that evidence goes to the weight the jury may afford the arson investigator’s testimony.
. Moreover, there was "substantial evidence” to support the trial court’s rejection of Luna’s challenge to the arson's investigator. The trial court, accordingly, was not clearly erroneous in making that determination.
. Essentially the “fuel” of the fire, i.e. how much material is available for the fire to consume and grow.
. This rundown is important because part of Luna's argument seems to be a challenge to how the arson investigator worked the scene of the fire with the hydrocarbon detector. More than just a challenge to the reliability of the hydrocarbon detector, Luna is challenging the manner in which the arson investigator used the hydrocarbon detector. Of course, all that is required is that the trial court be presented with enough evidence to make a ruling — with regard to reliability, that is "substantial evidence.” Here, given all the information the trial court possessed, we have no trouble finding substantial evidence supporting the trial court’s ruling. The arson’s investigator’s process was calculated to lead to reliable results.
. See KRE 801(c).
. 291 S.W.3d 647, 668 (Ky.2009) (quoting Giles v. California, 554 U.S. 353, 359, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008)).
. Id. 668-69 (internal quotations omitted).
. 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).
. In certain situations, the distinction could still carry weight because harmless-error review for constitutional violations, e.g. confrontation-clause violation with testimonial evidence, is a step above the general concept of harmless error.
. 494 Mich. 104, 832 N.W.2d 738, 744-45 (2013).
. Giles, 554 U.S. at 367, 128 S.Ct. 2678 (internal quotation marks omitted).
. Black’s Law Dict. (6th ed.). A more detailed definition is offered in Black’s, 9th edition: "The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force: superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one sidé of the issue rather than the other.”
. We note that the Commonwealth’s failure to prove this theory of the crime at trial or its reliance on the alternative theory that Luna killed Hendrickson to steal her truck does not affect our determination regarding forfeiture-by-wrongdoing. As we pointed out in Parker, "the Commonwealth need [] only to satisfy the preponderance of the evidence standard in order for the evidence to be admissible, [therefore] the jury’s inability to find Parker guilty beyond a reasonable doubt of killing Stephenson does not alter our analysis!.]" Parker, 291 S.W.3d at 670 n.63.
. Parker, 291 S.W.3d at 670.
. Compare Giles, 554 U.S. at 359, 128 S.Ct. 2678 (“The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying.”) with Giles, 554 U.S. at 386, 128 S.Ct. 2678 (Breyer, J., dissenting) ("With a few criminal law exceptions not here relevant, the law holds an individual responsible for consequences known likely to follow just as if that individual had intended to achieve them.... This principle applies here.”).
. Smith v. Commonwealth, 737 S.W.2d 683, 689 (Ky.1987).
. See O'Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky.1982).
. KRE 404(b)(l)-(2).
. See KRE 401-04.
. KRE 401. Under KRE 404(b), the evidence is relevant for another purpose, i.e., motive, preparation, plan, or knowledge.
. See Peacher v. Commonwealth, 391 S.W.3d 821, 838 (Ky.2013) (citing Romans v. Commonwealth, 547 S.W.2d 128 (Ky.1977)).
. So. Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 926 (Ky.2013) ("[I]t is well settled that we are not bound by the analysis of the Court of Appeals and may affirm on any grounds supported by the record.”) (citing McCloud v. Commonwealth, 286 S.W.3d 780, 786 n. 19 (Ky.2009)).
. Generally speaking, we have repeatedly noted that evidence of prior threats or violence against some third party is the type of inadmissible character evidence KRE 404(b) seeks to avoid. See Driver v. Commonwealth, 361 S.W.3d 877, 886-87 (Ky.2012); Davis v. Commonwealth, 147 S.W.3d 709, 722 (Ky.2004).
. Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky.1994), outlines the three-pronged test trial courts must conduct in reviewing KRE 404(b) evidence. Trial courts must evaluate the proposed evidence in terms of: (1) relevance; (2) probativeness; and (3) its prejudicial effect. This evidence fails that test.
. Luna v. Commonwealth, 2010 WL 4683564 at *9 (No. 2008-SC-000652-MR Nov. 18, 2010).
. By “Illinois fires,” we refer to three previous fires involving one of Luna's prior residences.
. The trial court noted that it would remain vigilant and our 2010 opinion did not prohibit the evidence if the Commonwealth could present more evidence regarding Luna’s participation in the fires. This is a correct characterization of the 2010 opinion. The problem is, the Commonwealth introduced no additional evidence to show Luna set these prior fires.
.Regardless of how the evidence was admitted at Luna’s original trial, this point we made in 2010 rings true: ”[I]n the case at bar, the only evidence connecting Luna to the prior trailer and house fires in Illinois was that the fires occurred on his property. Accordingly, it was error to allow evidence of these two prior fires to be admitted in this trial.” Luna, 2010 WL 4683564 at *9. Clearly, it was not the manner in which the evidence came in, but the evidence itself that was problematic.
."Failing to request an admonition is generally regarded as trial strategy, and therefore waives the issue on appeal.” Sullivan v. Commonwealth, 2008 WL 4691944 (No. 2006-SC-000930-TG Oct. 23, 2008) (citing Ernst v. Commonwealth, 160 S.W.3d 744, 759 (Ky.2005); Hall v. Commonwealth, 817 S.W.2d 228, 229 (Ky.1991)).
. See, e.g., Lanham v. Commonwealth, 171 S.W.3d 14, 19-23 (Ky.2005).
. KRE 103(d).
. Bell, 875 S.W.2d at 882.
. We should note that Luna’s counsel is unable to avoid a degree of blame in this scenario. The propriety of the trial court’s order aside, Luna’s counsel should have, in the very least, insisted upon a ruling from the trial court upon reading the trial court’s apparent indication it would reserve its ruling until trial. It nearly goes without saying, but, as a practical matter, it is essential to obtain a ruling on a motion. This piece of wisdom is even more apparent when the ruling is ambiguous or unclear, as it was here. The ruling was not ambiguous, however, as a signal for Luna's counsel to be alert at trial. Luna's counsel, instead, sat idle as the evidence he had fought to exclude was repeatedly referenced before the jury.
. Emerson v. Commonwealth, 230 S.W.3d 563, 570 (Ky.2007); see also Adkins v. Commonwealth, 96 S.W.3d 779, 793 (Ky.2003).
. See, e.g., Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky.1997).
. Id.
. Id.
. Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky.1983).
. Though unpublished, we noted this difficulty in Stratton v. Commonwealth, 2007 WL 188998 (NO.2005-SC-000307 Ky. Jan 25.2007). On appeal for habeas, our decision in Stratton was affirmed by the Eastern District of Kentucky. Stratton v. Hall, 2010 WL 5922110, Civil No. 10-107-KKC-CJS (E.D.Ky. Dec. 28, 2010).
. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
. Beaty v. Commonwealth, 125 S.W.3d 196, 207 (Ky.2003) (quoting Eldred v. Commonwealth, 906 S.W.2d 694, 705 (Ky.1994)).
. Id. (internal quotation marks and alteration omitted).
. Id.
. See Hedgepath v. Commonwealth, 441 S.W.3d 119, 132 (Ky.2014) (citing Beaty, 125 S.W.3d at 208).
. Beaty, 125 S.W.3d at 208.
. We should note that Luna alleged other individuals may have committed the crime. The evidence linking these individuals — "Phillip” and the unknown man Hendrickson met in Paducah — was even moré tenuous than the evidence relating to Hendrickson's ex-boyfriend. We reject any notion that an aaltperp defense was warranted on the basis of these individuals as well.
. Both allegations of error are properly preserved by Luna. As such, we review under an abuse-of-discretion standard.
. Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky.2000).
. Callison v. Commonwealth, 706 S.W.2d 434, 437 (Ky.1986) (quoting Lee v. Commonwealth, 329 S.W.2d 57, 60 (Ky.1959)) (alteration and emphasis omitted).
. Fredline v. Commonwealth, 241 S.W.3d 793, 798 (Ky.2007) (quoting Grimes v. McAnulty, 957 S.W.2d 223, 226 (Ky.1997)).
. The trial court instructed the jury on lesser charges for both arson and murder.
. Harris v. Commonwealth, 313 S.W.3d 40, 50 (Ky.2010) (internal quotation marks omitted).
. Foster v. Commonwealth, 827 S.W.2d 670, 677 (Ky.1991).
. See, e.g., Colyer v. Commonwealth, 2009 WL 736001 (No. 2007-SC-000195-MR March 19, 2009) (“Appellant’s testimony that he drank heavily and used drugs on the day of the assault alone would not entitle him to an intoxication instruction if not for his testimony that he blacked out during the commission of the assaults.").
. Greene v. Commonwealth, 197 S.W.3d 76, 81 (Ky.2006) (quoting McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky.1986)) (alteration and internal quotation marks omitted).
. Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky.2000).
. Baze v. Commonwealth, 965 S.W.2d 817, 823 (Ky.1997).
. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).
. Id.
. Id.
. Id.
. According to the medical examiner, the location of the bruises was consistent with being struck in the skull with significant force while the head was free to move, i.e. Hen-drickson was not lying on the floor when struck. After being struck, physics takes over and the head continues to move as a result of the strike's force. Eventually the head’s motion comes to an abrupt end; the brain, however, continues its movement until encountering the skull. This is why the bruises to the brain are away from the skull fractures — the force was to the back right side and the bruises were in the front of the brain.
. Of note on this point, the Commonwealth’s arson investigator discredited Luna’s testimony that the candles wrapped up in the afghan could have been the ignition source for a fire of this magnitude. According to the arson investigator, candles in that situation would most likely have burned in a small area and burned out because they ran out of fuel, causing localized damage rather than the conflagration that engulfed the home.
. 68 S.W.3d 375 (Ky.2002).
. It is axiomatic that "the burden is on the government in a criminal case to prove every element of the charged offense beyond a rea*886sonable doubt and that the failure to do so is an error of Constitutional magnitude.” Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky.2002).
. Brown, 313 S.W.3d at 631.
. Id.
. Id.
. 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
. Id. at 726, 89 S.Ct. 2072.
. 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).
. 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
. Id. at 27, 94 S.Ct. 2098 (internal quotation marks omitted).
. United States v. Poole, 407 F.3d 767, 774 (6th Cir.2005) (quoting United States v. Dupree, 323 F.3d 480, 489 (6th Cir.2003)).
. Commonwealth v. Leap, 179 S.W.3d 809, 813 (Ky.2005) (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)).
. It is worth pointing out that statutory ag-gravators must be proven beyond a reasonable doubt so may require more time than is readily apparent.
. Jordan v. State, 786 So.2d 987, 1001-02 (Miss.2001).
. Chaffin v. Stynchcombe, 412 U.S. 17, 26, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).
. 435 S.W.3d 32 (Ky.2014).
. Id. at 45.
.Id. at 46 (emphasis added). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283930/ | OPINION OF THE COURT BY
JUSTICE KELLER
A Jefferson Circuit Court jury rendered a verdict in favor of the defendants in this medical negligence case, and the circuit court entered a judgment consistent with that verdict. The Court of Appeals reversed that judgment, holding that the trial court improperly admitted into evidence testimony from an expert that was not scientifically reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Before us, Dr. Richard C. Oliphant and Louisville Physicians for Women, PLLC (collectively Dr. Oli-phant),1 argue a number of issues; however, the majority of the issues arise from Dr. Oliphant’s contention that the Court of Appeals erred by substituting its findings for the trial court’s regarding the reliability of Dr. Goldsmith’s testimony. In the alternative, Dr. Oliphant argues that any error by the trial court was harmless. The Rieses argue to the contrary.
I. BACKGROUND.
At approximately 5:00 a.m. on January 20, 1997, Billie Jo Ries, who was 36 weeks pregnant, noted that she was bleeding vaginally. The Rieses went to Baptist East Hospital (the Hospital), where Billie Jo delivered a daughter, Lauren, by C-section at 6:59 a.m. Due to the loss of approximately one-third of her blood, Lauren suffered multiple organ failure and brain damage. As a result, Lauren, who was thirteen years old at the time of trial, is unable to care for herself. The Rieses cared for Lauren for the first twelve years of her life but, prior to trial, they determined that they could no longer do so. Therefore, they placed Lauren in a residential care center, the Home of the Innocents.
The Rieses filed suit against the Hospital, Dr. Oliphant, who delivered Lauren, and Dr. Robinson, the neonatologist who treated Lauren after her birth. At trial, the Rieses argued the majority of Lauren’s blood loss occurred after she arrived at the Hospital, and her injuries could have been prevented if she had been delivered earlier *893by Dr.. Oliphant, or if she had received appropriate treatment from Dr. Robinson after delivery. The Hospital, Dr. Oliphant, and Dr. Robinson argued that they complied with their respective standards of care. Furthermore, they argued that the majority of Lauren’s blood loss occurred before she arrived at the Hospital; therefore, they could not have prevented her injuries.
The expert witness whose opinion is the focus of the dispute herein is Dr. Jay Goldsmith, a neonatologist retained to testify on behalf of Dr. Robinson. Dr. Goldsmith testified twice by deposition before trial and live at trial. We summarize Dr. Goldsmith’s relevant testimony below.
During his first deposition, Dr. Goldsmith testified that, following a loss of blood, the cardio-vascular system takes fluids from other parts of the body to increase blood volume, a process known as equilibration. The fluids incorporated into the cardio-vascular system Through equilibration do not contain red blood cells; therefore, when equilibration occurs, the percentage of red blood cells in proportion to total blood volume decreases. According to Dr. Goldsmith, it takes two to four hours for blood volume to normalize through equilibration.
Based on his review of the medical records and a mathematical formula he devised, Dr. Goldsmith opined that Lauren lost approximately one-third of her blood volume at 5:00 a.m. In reaching that conclusion, Dr. Goldsmith relied on a report in the medical records that Billie Jo noticed a “gush” of blood at 5:00 a.m.; the absence of any report of significant bleeding in the medical records after Billie Jo arrived at the Hospital; his estimation of Lauren’s blood volume at birth; his estimation of her blood volume at 7:40 a.m.; the proportion of red blood cells relative to Lauren’s total blood volume at 7:40 a.m. compared to what that proportion should have been; and the time it takes to equilibrate. When questioned about the rate of equilibration, Dr. Goldsmith admitted that there were no studies on intrauterine human fetuses; however, there were studies involving animals and post-partum children and adults. At the request of the Rieses’ counsel, Dr. Goldsmith stated that he would attempt to find studies to support his mathematical formula. By agreement, the parties suspended Dr. Goldsmith’s deposition so that he could do so.
During his second deposition, Dr. Goldsmith testified that he had neither looked for nor found any studies indicating what the rate of equilibration is in an intrauterine human fetus. However, he stated that the rate of equilibration post birth in humans is a well-known and accepted medical fact. Dr. Goldsmith did admit that a faster intrauterine equilibration rate would mean that Lauren’s blood loss occurred closer in time to her birth than 5:00 a.m. Furthermore, he admitted that Lauren may have been able to take some blood from the placenta, but he believed that amount would have been negligible and would have had no impact.
At the final pre-trial conference the Rieses noted that Dr. Robinson, who had retained Dr. Goldsmith, had not disclosed Dr. Goldsmith’s mathematical' formula or the opinions he reached based on that formula prior to his first deposition. Therefore, the Rieses moved to exclude any testimony by Dr. Goldsmith about his mathematical formula and any conclusions he had reached based on that formula. The Rieses did not bring a Daubert challenge regarding the reliability of Dr. Goldsmith’s mathematical formula, although they reserved the right to do so at trial. The trial court overruled the Rieses’ motion, finding that, pursuant to Daubert, “all *894proposed expert opinion testimony is reliable and relevant.”
Prior to Dr. Goldsmith’s testimony at trial, which came on the fourteenth day of trial, the Rieses moved the court for a Daubert hearing regarding the reliability of Dr. Goldsmith’s mathematical formula. The Rieses argued that Dr. Goldsmith had never produced any studies or literature to support his opinion thát the equilibration rate in intrauterine human fetuses is the same as it is after birth. Therefore, his mathematical formula did not meet the Daubert standard.
In response, Dr. Robinson argued that it was too late in the litigation to raise this issue. Furthermore, Dr. Robinson filed studies2 involving the equilibration rate in intrauterine sheep fetuses, which she argued were consistent with Dr. Goldsmith’s testimony. The Rieses argued that these studies could not be relied on because they had not been produced before trial, even though Dr. Goldsmith’s first deposition had been suspended so that he could find support for his formula.
The court agreed with Dr. Robinson that the Rieses’ motion for a Daubert hearing was not timely. Furthermore, the court stated that, based on the arguments and the materials reviewed,3 Dr. Goldsmith’s testimony was “appropriate” and the Ries-es’ arguments went to the weight rather than the admissibility of Dr. Goldsmith’s opinions. Therefore, the court denied the Rieses’ motion. The court then granted the Rieses’ follow-up motion to exclude testimony by Dr. Goldsmith regarding any articles that had not been previously disclosed. Finally, the court granted the defendants’ motion to exclude any argument by the Rieses that Dr. Goldsmith’s mathematical formula was not supported by any scientific literature.
At trial, Dr. Goldsmith’s testimony was consistent with his deposition testimony regarding equilibration and the timing of Lauren’s blood loss. He also testified that Lauren’s kidney function tests, her decreased heart rate when she arrived at the Hospital and placental pathology findings supported his opinion that her blood loss occurred before she arrived at the Hospital.
In addition to Dr. Goldsmith, the defendants presented testimony at trial from Drs. Elliott, Ferrara, Puri, Bendon, Carter, and Barnes that Lauren’s blood loss occurred at home. Dr. Elliott stated that, *895based on his review of the medical records and the depositions, three velamentous blood vessels ruptured, the first rupturing at 5:00 a.m. when Billie Jo noticed vaginal bleeding containing bright red blood. According to Dr. Elliott,. the fact that the blood was bright red indicated it was fetal, not maternal blood, and if the ruptured vessel had continued to bleed, Lauren would have bled to death before she got to the Hospital. Therefore, he theorized that Lauren shifted in the womb and inadvertently put sufficient pressure on the ruptured vessel to stop the bleeding. Dr. Elliott stated that he believed the other two vessels ruptured during birth but that the damage to Lauren had already been done by that time. In support of his theory that the first vessel ruptured before Billie Jo got to the hospital, Dr. Elliott noted that one of the ruptured vessels had evidence of neutrophils, which také at least 20 to 40 minutes to appear following a rupture. Dr. Elliott recognized that equilibration takes place but, based on a ruling by the court, did not make any inferences regarding when Lauren’s bleeding occurred based on equilibration.
Dr. Ferrara, a defense expert neonatologist called by the Hospital, testified primarily regarding the standard of care for the Hospital. However, he also testified that he was more than 90% certain Lauren’s blood loss occurred at home.4
Dr. Puri testified that he believed Lauren suffered some blood loss and injury at home. However, he did not attempt to quantify when the majority of the blood loss occurred.
Dr. Bendon, the pathologist who examined the placenta and umbilical cord, testified that he found evidence of “mural neu-trophils” which indicate that Lauren had a ruptured vessel and began to bleed before delivery. He could not state with precision when the rupture occurred. However, he testified that:
[I]n order to get dilution, in order to get a low hematocrit, there has to be time for the baby to bring in more blood volume, more salt water, protein, whatever, from mom’s circulation to make up the blood volume, and that takes a period of time. In the fetal sheep, it will be, in most situations, completely reconstituted within six hours.
But if you bleed very, very suddenly, your hematocrit is going to be normal, your blood volume, your total volume of blood in your blood vessels will be decreased, but the percentage that are red cells compared to the percentage that is serum will be the same because — if you bleed rapidly.
So if somebody had had a serious trauma, cut an artery, and you take their hematocrit at that point, it will look normal even though they may have almost no blood. Then, if you give them fluid back, particularly Ringers lactate or something that will stay in the vascular *896system, then their hematocrit will fall because you’ve diluted it and their blood volume has come back up to its volume, but now it has fewer red cells in that volume, so the hematocrit is lower.
In this particular baby, there was some of both. There was constriction of almost all the large stem vessels, suggesting the total volume, at least in the placenta — of course, I can’t see the baby — in the placenta was decreased; yet in other areas there was evidence that the hematocrit was decreased, that some fluid had come from the placenta to the baby. So this wasn’t something that probably occurred minutes prior to delivery.
On the other hand, I really can’t tell you any precise timing except that it’s within those minutes to those six hours.
Dr. Carter, an expert retained by Dr. Robinson, testified that he believed that Lauren began bleeding at home at 5:00 a.m. as a-result of a velamentous vessel tear. He stated that Lauren survived by getting blood from the placenta; however, he also stated that the umbilical cord was prolapsed, which impeded the exchange of blood from Billie Jo to Lauren. According to Dr. Carter, the placenta retained some reserve of blood until approximately five minutes before birth because Lauren would have died in útero otherwise. Dr. Carter noted that the medical records, the pathology findings, and Lauren’s decreased hemoglobin, which indicated that she had suffered a 30% decrease in blood volume, supported his opinion regarding when Lauren began to bleed.
Dr. Barnes, who testified on behalf of Dr. Robinson, testified that Lauren suffered an acute blood loss and subsequent brain damage before she arrived at the Hospital. He based his opinion regarding the timing of the blood loss on Lauren’s brain scans, which were consistent with an acute rather than prolonged blood loss; Lauren’s low postpartum hematocrit; Lauren’s significantly decreased heart rate when Billie Jo arrived at the Hospital; and Billie Jo’s statement in the medical records that there was a “gush” of blood at home. Although he did not rely on it, Dr. Barnes noted the equilibration process can contribute to replacing lost blood volume.
On the other hand, the Rieses’ experts, Drs. Crawford, Phalen, and Brown, testified that Lauren’s blood loss had to have occurred either after she arrived at the Hospital or during delivery. According to Dr. Brown, Lauren would have died before she got to the Hospital if she had lost a significant amount of blood at home. Furthermore, he noted that Billie Jo stated that Lauren was moving when they got to the Hospital, which Lauren would not have been able to do following a significant blood loss at home. Dr. Brown also noted that the fetal monitor indicated at 6:05 that Lauren was not in significant distress, a finding he would not have expected if Lauren had lost 30% of her blood volume one hour earlier.
Dr. Crawford testified that Lauren’s blood loss occurred after she arrived at the Hospital, either just before or during birth. According to Dr. Crawford, if Lauren had lost 30% or more of her blood volume at 5:00 a.m., she would not have been moving when Billie Jo arrived at the Hospital. Furthermore, Dr. Crawford noted that Lauren’s heart rate as measured by the fetal monitor was low when she arrived at the hospital and then improved. That would not have occurred and Lauren would not have responded to chest' compressions if she had lost 30% of her blood volume before arriving at the Hospital. As to the bleeding Billie Jo experienced at home, Dr. Crawford believed that was maternal not fetal blood.
*897Dr. Phalen testified that Lauren had 15% nucleated red blood cells at birth, which indicated to him that Lauren’s blood loss occurred after she arrived at the Hospital. According to Dr. Phalen, if the blood loss had occurred at 5:00 a.m. he would have anticipated Lauren’s nucleated red blood cell percentage to have been twenty-five or more. In his deposition, but not at trial, Dr. Phalen testified that he disagreed with Dr. Goldsmith’s formula and noted that there are no known studies regarding intrauterine fetal blood loss and equilibration.
As previously noted, based on the preceding evidence, as well as testimony from nurses and the Rieses, the jury rendered a defense verdict. The Rieses appealed to the Court of Appeals, which reversed. In doing so, the Court of Appeals held that the trial court erred in admitting Dr. Goldsmith’s testimony about the rate of equilibration because “[t]here is simply no evi-dentiary objective source in the record to support the trial court’s finding that [Dr.] Goldsmith’s assumption and, thus, his mathematical formula were reliable.”' Ries v. Oliphant, 2011-CA-000100-MR, *12, 2012 WL 6632511 (Ky.App. December 21, 2012). The Court then determined that the error mandated reversal because “there exists a reasonable possibility that the jury verdict would have been different absent [Dr.] Goldsmith’s testimony concerning his mathematical formula.” Id. at *14.
As noted above, Dr. Oliphant appealed arguing the Court of Appeals impermissi-bly substituted its findings for the trial court’s regarding the reliability of Dr. Goldsmith’s testimony and the Court of Appeals erroneously determined that the error mandated reversal. We address each issue below.
II. STANDARD OF REVIEW.
In making the decision to admit or exclude expert testimony under Dau-bert the trial court must decide whether the testimony is reliable, a factual determination, and whether the testimony will assist the trier of fact in understanding or determining a fact in issue, an admissibility determination. Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky.2004). These two decisions are reviewed under different standards. Id. We review the trial court’s factual findings regarding reliability for clear error, while we review the trial court’s decision regarding admissibility for abuse of discretion. Id. A factual finding is clearly erroneous if it is not supported by “ ‘evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable [persons].”’ City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 854 (Ky.2013) (citing Owens-Corning Fiberglas Corporation v. Golightly, 976 S.W.2d 409, 414 (Ky.1998)). However, a trial court abuses its discretion only if its decision “ ‘was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’ ” Miller, 146 S.W.3d at 914 (footnote omitted). Finally, if the trial court committed error, we must determine whether that error was harmless. The standard for reviewing non-constitutional evidentiary errors is whether “the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.” Hashmi v. Kelly, 379 S.W.3d 108, 115 (Ky.2012), quoting Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky.2009). With these standards in mind, we address the issues raised on appeal.
III. ANALYSIS.
Pursuant to Kentucky Rule of Evidence (KRE) 702, expert witness testimony is admissible if it:
*898will assist the trier of fact to understand the evidence or to determine a fact in issue, [and then] a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
The trial court, without making specific findings of fact or law, determined that Dr. Goldsmith’s testimony about his mathematical formula was reliable and thus admissible under Daubert. The Court of Appeals determined that the trial court clearly erred when it found Dr. Goldsmith’s testimony reliable because the Court of Appeals could find no evidence in-the record to support that finding of reliability. The Court of Appeals’s opinion, in pertinent part, is set forth below:
In this case, the record'reveals that the Rieses filed a motion for a Daubert hearing regarding the admissibility of Goldsmith’s expert testimony concerning his “mathematical model and equilibration theory.” Therein, the Rieses argued that Goldsmith’s mathematical formula was scientifically flawed because he utilized an incorrect equilibration rate for a human fetus in utefo. Specifically, the Rieses pointed out that Goldsmith improperly utilized an equilibration rate of a human adult or child in his mathematical formula timing Lauren’s bleed between 5:00 a.m. and 5:15 a.m. Because the equilibration rate was an essential factor in Goldsmith’s mathematical formula, the Rieses claim that Goldsmith’s mathematical formula was scientifically flawed and unreliable.
In his depositional testimony, Goldsmith readily admitted to having no knowledge of any scientific study or of other objective source directly setting forth the equilibration rate of a human fetus in útero. While the rate of equilibration in an adult and child has been scientifically established, it was flatly admitted that the equilibration rate of a human fetus in útero is “impossible for medical science to determine.” Robinson’s Brief at 19.
As a result, Goldsmith assumed that the equilibration rate of a human fetus in útero was identical to the equilibration rate of a human adult/child and utilized the rate of equilibration in a human adult/child in his mathematical formula. In his deposition, Goldsmith based his assumption equating the rate of equilibration in a human fetus in úte-ro to that of a human adult/child upon the scientific fact that equilibration occurs in humans and upon sundry studies concerning the equilibration rate of animal fetuses in útero. Thus, Goldsmith’s assumption was not based upon his own independent research of the rate of equilibration of a fetus.
When an expert witness bases his opinion upon something other than his own independent research, such expert opinion may be still scientifically reliable “if supported by objective sources.” Burton v. CSX Transp., Inc., 269 S.W.3d 1, 9 (Ky.2008). Succinctly stated, to be reliable under Daubert, expert scientific testimony must be supported by “objective sources” if not based upon the expert’s own research. Burton, 269 S.W.3d at 9.
As hereinbefore pointed out, Goldsmith based his assumption that the rates of equilibration in a human fetus in útero and in a human adult/child were identical upon: (1) the general scientific fact *899that equilibration occurs in humans and (2) published studies concerning the ' equilibration rate of animal fetuses in útero. We address each seriatim.
The scientific fact that equilibration occurs in humans cannot serve as ,a basis of Goldsmith’s assumption equating the rates of equilibration in a human fetus in útero to that of a human adult/child. The scientific fact that equilibration occurs in humans is simply inconsequential to determining the rate of such equilibration for a fetus. There was no scientific foundation presented by Goldsmith to determine the rate of equilibration of a human fetus in útero that served as a basis of Goldsmith’s mathematical formula timing Lauren’s bleed.
As to the animal studies supporting Goldsmith’s assumption equating the rates of equilibration in a human fetus in útero to that of a human adult/child, Goldsmith only generally referred to such studies in his depositions and never put forth a particular study he used as support. Thus, no animal studies were ever specifically cited as a basis for Goldsmith’s assumption as to the rate of equilibration in a human fetus in útero. In response to the Rieses’ motion for a Daubert hearing, appellees cited to four scientific studies appearing in sundry medical journals. However, no medical expert offered an opinion as to the significance of these studies or whether these studies supported Goldsmith’s assumption. In fact, Goldsmith never stated that he utilized the proffered studies and never rendered an opinion upon such studies.
Upon examination of the record, there simply existed no “objective sources” of record supporting Goldsmith’s assumption that the rate of equilibration in a human fetus in útero is identical to the rate in a human adult/child. Burton, 269 S.W.3d at 9. Without an underlying objective basis, it is virtually impossible to determine the reliability of Goldsmith’s assumption and, thus, the reliability of his mathematical formula timing Lauren’s bleed.
Additionally, as to the traditional Dau-bert factors, Goldsmith’s assumption equating the rate of equilibration in a human fetus in útero to that of a human aduH/child admittedly has not been directly tested and has not been subject to peer review though publication. See Toyota Motor Corp., 136 S.W.3d 35. Also, the record plainly establishes thát Goldsmith’s assumption as to the equilibration rate of a human fetus in útero was rejected by some of his peers and, thus, raises a grave question as to its general acceptance by the scientific community.
This Court is ever cognizant of its limited role in reviewing a trial court’s ruling on a Daubert motion and concomitantly of the trial court’s unique position to determine both the reliability and relevance of expert testimony. Nevertheless, evidentiary boundaries do exist.
In this case, the admission of Goldsmith’s expert assumption that the equilibration rate of a human fetus in útero was identical to the rate of a human adult/child transgressed those boundaries. There is simply no evidentiary objective source in the record to support the trial court’s finding that Goldsmith’s assumption and, thus, his mathematical formula were reliable. See Burton, 269 S.W.3d 1. And, Goldsmith’s assumption equating the equilibration rate of a human fetus in útero to that of a human aduh/ehild is also lacking in scientific reliability when measured against the traditional Daubert factors. See Toyota Motor Corp., 136 S.W.3d at 40. Consequently, we are constrained to conclude that the trial court erred by finding *900Goldsmith’s testimony concerning his assumption as to the equilibration rate of a human fetus in útero reliable under Daubert. See Lukjan, 358 S.W.3d 33. Because the equilibration rate of an in útero human fetus was a critical factor in his mathematical formula timing Lauren’s bleed, the admission of Goldsmith’s testimony surrounding his mathematical formula constituted error.-
As set forth above, the trial court must make two basic determinations regarding the admissibility of expert testimony whether the testimony will assist the jury in determining a fact that is at issue; and whether the testimony is reliable. The parties presented a significant amount of evidence to establish when Lauren’s blood loss occurred. The defendants argued and presented evidence that Lauren’s blood loss occurred before the Rieses arrived at the hospital and that by the time the Rieses arrived at the hospital all of the damage to Lauren had been done. The Rieses argued the blood loss occurred after they arrived at the hospital and the damage to Lauren could have been prevented. As evidenced by the amount of proof taken on the issue, when Lauren’s blood loss occurred was a crucial fact at issue. Therefore, Dr. Goldman’s testimony was testimony that would assist the trier of fact in making that factual finding.
The second basic determination, whether Dr. Goldman’s testimony was reliable, is a more difficult issue. As the Court of Appeals correctly noted, Daubert sets forth a
non-exclusive list of factors to be considered by the trial court when determining the admissibility of an expert’s proffered testimony:
(1)whether the theory or technique can be and has been tested;
(2) whether the theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique’s operation; and
(4) whether the theory or technique has been generally accepted in the particular field.
See Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 39-40 (Ky.2004), as amended (June 14, 2004). A court may consider some or all of those factors or other relevant factors in making the determination to admit or exclude expert testimony. Id. at 40.
The trial court did not set forth which of the above factors or which other factors it relied on in making the determination to admit Dr. Goldsmith’s testimony.
While this Court would prefer trial courts to include findings of fact in their Daubert rulings, “failure to include those findings and conclusions is not automatically indicative of arbitrariness, unreasonableness, unfairness, or application of the wrong legal standard[,]” and “is not grounds for reversal.” Miller v. Eldridge, 146 S.W.3d 909, 921-22 (Ky.2004). “[T]he proper appellate approach when the trial court fails to make express findings of fact is to engage in a clear error review by looking at the record to see if the trial court’s ruling is supported by substantial evidence.” Id. at 922.
Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 101 (Ky.2008), as modified on reh’g (Nov. 26, 2008). The Court of Appeals undertook that approach and concluded that the trial court’s ruling was not supported by substantial evidence. We disagree.
*901Initially we note that Dr. Goldsmith’s theory regarding the rate of equilibration in a human fetus does not fit neatly within any of the above listed Daubert factors. As Dr. Goldsmith readily admitted, his theory regarding the rate of equilibration in human fetuses has not been and cannot be tested on human fetuses because doing so would result in the death or significant disability of the test subjects. However, that does not, as the Court of Appeals held, mean Dr. Goldsmith’s theory must automatically be excluded.
Because Dr. Goldsmith’s theory does not fall neatly within the factors set out in Daubert, we look to whether the reliability of that theory is otherwise, supported by the evidence. In his depositions, Dr. Goldsmith testified that the rate at which equilibration occurs in human adults and children is a well established fact. The Rieses’ experts did not dispute this. The only part of Dr. Goldsmith’s theory they disputed is whether the rate of equilibration is the same in a human fetus. In support of his theory, Dr. Goldsmith noted that studies involving sheep fetuses reveal a similar rate of equilibration, as did Dr. Bendon. Furthermore, Dr. Robinson attached articles to her response to the Rieses’s motion for a Daubert hearing which address the rate of equilibration in fetal sheep. The trial court took that evidence, the experts’ deposition transcripts, and thirteen days of trial testimony into consideration when it concluded that Dr. Goldsmith’s theory was sufficiently reliable to present to the jury.
The Court of Appeals stated that any reliance on the articles attached to the response to the motion for a Daubert hearing was misplaced because no medical expert offered an opinion regarding the significance of the articles. That is not completely accurate. It is true that no medical expert directly addressed the four articles in question. Furthermore, while the court could have held an evidentiary hearing regarding those articles, it was not required to do so. If the record before the trial court is “complete enough to measure the proffered testimony against the proper standards of reliability and relevance,” a hearing is not required. Commonwealth v. Christie, 98 S.W.3d 485, 488 (Ky.2002) (quoting Jahn v. Equine Services, P.S.C., 233 F.3d 382, 393 (6th Cir.2000)). Dr. Goldsmith and Dr. Bendon testified that studies of equilibration in fetal sheep exist and. those studies show the rate at which equilibration occurs. The court could read the articles submitted by Dr. Robinson and determine for itself whether they supported Dr. Goldsmith’s theory. It did not need expert testimony directly addressing the articles. The record regarding the articles was sufficiently developed; therefore, _the court was not required to hold an evidentiary hearing regarding the significance of the articles.
The Court of Appeals also stated that “no ‘objective sources’ ”, support Dr. Goldsmith’s theory, meaning that no test results on human fetuses exist. That is true. However, as noted above, no such objective sources could exist because causing fetal bleeding to test the rate of equilibration in a human fetus would not only be unethical and immoral but criminal. The fact that a theory cannot be tested directly on a human fetus does not mean that it lacks reliability. Because Dr. Goldsmith took what is known — the rate of equilibration in human adults and children and the rate of equilibration in sheep fetuses — and extrapolated that to human fetuses, his theory may be subject to question, but it does not mean that his theory is automatically unreliable. In fact, if we take the Court of Appeals’s opinion to its logical conclusion, no scientific theory regarding *902living humans would be reliable absent testing on living humans. If that is true, any and all automobile crash test results based on data collected from a crash-test dummy would be automatically unreliable. .However, that is not the case. We do not require engineers to strap live humans into an automobile and run that automobile into a wall to determine what is likely to happen to live humans in that situation. We permit scientists, using scientific principles, to extrapolate from the data they obtain from crash-test dummies and to post opinions about what would happen to a live human.
Third, the Court of Appeals states that Dr. Goldsmith’s theory is unreliable because “some of his peers” rejected it. Unanimity of opinion is not required in order for an expert’s opinion to be reliable. If that were the case, the court would have had to reject most, if not all, of the expert testimony herein and in nearly every other case with expert testimony. Disagreement by some, or even most, experts about the accuracy of a theory does not automatically render it unreliable. See Burton v. CSX Transp., Inc., 269 S.W.3d 1 (Ky.2008) (holding that an expert’s opinion may be deemed reliable if there is some objective source showing the expert’s conclusions are not totally inconsistent with the scientific method).
Therefore, we hold the trial court’s finding that Dr. Goldsmith’s theory was sufficiently reliable to submit to the jury was supported by evidence of substance, and the trial court did not abuse its discretion by admitting Dr. Goldsmith’s testimony.
Finally, we note that, even if the trial court had erred by admitting Dr. Goldsmith’s testimony, any such error was harmless.
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Kentucky Rule of Civil Procedure (CR) 61.01.
“A non-constitutional evidentiary error may be deemed harmless ... if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.” Winstead v. Com., 283 S.W.3d 678, 688-89 (Ky.2009). In máking that determination it is not whether there was other evidence sufficient to support the verdict, but whether the disputed evidence had a “substantial influence.” Id. at 689.
As we previously noted, when Lauren began to bleed was a significant issue in this case, and Dr. Goldsmith based his opinion about when Lauren began to bleed on a mathematical formula. However, that was not the only basis for Dr. Goldsmith’s opinion. He also noted that Lauren’s decreased heart rate when she was admitted to the hospital, her kidney function test results, and the pathology findings supported his opinion. Furthermore, Dr. Goldsmith was not the only physician who opined that Lauren’s bleed began at home. Dr. Elliott testified that Lauren began to bleed while at home based on Billie Jo’s report that the vaginal bleeding she noticed at home contained bright red blood, an indication the blood was fetal, not maternal and on the biopsy results showing evidence of neutrophils, which take 20 *903to 40 minutes to form following a rupture. Dr. Elliott also recognized that equilibration takes place but, based on the court’s ruling, could not give an opinion about when the bleeding occurred based on equilibration. Dr. Ferrara testified that he was more than 90% certain Lauren began to bleed at home. Dr. Puri, Lauren’s treating physician, testified that, based on the type of damage Lauren suffered, she had to have suffered some blood loss .at home. Dr. Bendon testified he could not specifically state when Lauren began to bleed but it “wasn’t something that probably occurred minutes prior to delivery.” He also testified about equilibration and that equilibration studies had been conducted on fetal sheep. Dr. Carter testified that he believed Lauren’s blood loss began at home at approximately 5:00 a.m. based on the decrease in Lauren’s blood volume, the pathology findings, and the medical records. Dr. Barnes believed that Lauren’s blood loss occurred at home based on Lauren’s low decreased heart rate when Billie Jo arrived at the hospital, her brain scans, her postpartum hematocrit, and Billie Jo’s statement in the medical records that she experienced a “gush” of blood at home. Furthermore, Dr. Barnes testified that equilibration can contribute to replacing blood volume. Finally, the medical records indicated that there was not a significant amount of blood, other than from Billie Jo’s C-section, while she was in the hospital.
Thus, there was sufficient evidence other than Dr. Goldsmith’s to support the jury’s verdict. The Court of Appeals concluded that admission of Dr. Goldsmith’s opinion was reversible error because Dr. Goldsmith used “mathematical certainty to resolve the complex factual issue of timing Lauren’s massive bleed” and the impact of his testimony could not be “overstated.” We disagree.
' Dr. Goldsmith was not the only expert who based his opinion on a mathematical formula. Dr. Phalen, one of the Rieses’ experts, calculated the percentage of Lauren’s nucleated red blood cells at birth and based his opinion that Lauren’s blood loss occurred at the hospital on that calculation. Furthermore, Dr. Goldsmith was but one of many experts who opined when Lauren’s blood loss occurred and but one witness in a trial that went from August 21, 2010 to September 28, 2010. In light of all of the evidence regarding when Lauren’s blood loss occurred, we cannot agree with the Court of Appeals that admission of Dr. Goldsmith’s testimony, if error, amounted to anything more than harmless error.
The other issues raised by Dr. Oliphant are inexorably intertwined with and dependent on the admissibility of Dr. Goldsmith’s testimony. Because we have held that there was no error in admitting Dr. Goldsmith’s testimony, and if there was error, it was harmless, we need not address any of those issues. However, the Rieses raised an issue on appeal to the Court of Appeals that the Court of Appeals did not address. Therefore, we remand to the Court of Appeals so that it can consider that issue.
IV. CONCLUSION.
Having reviewed the record and the arguments of the parties, we reverse the Court of Appeals and remand so that the Court of Appeals can consider the other issue raised by the Rieses on appeal.
Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., sitting. Minton, C.J.; Abramson, Cunningham and Noble, JJ., concur. Venters, J., concurs in result only by separate opinion.
. Dr. Robinson and her practice group, Neonatal Associates, were parties to the appeal before the Court of Appeals. However, they entered into a settlement agreement with the Rieses after the Court of Appeals rendered its opinion and are no longer parties to this appeal. Furthermore, we note that the Rieses named Baptist East Hospital as a defendant. However, the Rieses and the Hospital entered into an agreed order of dismissal, and the Hospital is not a party to this appeal.
. In her response, Dr. Robinson noted that four of the studies were reported in articles in the American Journal of Physiology — Regulatory, Integrative and Comparative Physiology, which she stated is a peer-reviewed journal.
. The court had the following available for review: the Rieses’ motions in limine and for a Daubert hearing; the responses to those motions filed by the defendants; the tran- • scripts from both of Dr. Goldsmith's depositions; and the transcript of the deposition of Dr. Phalen (the Rieses’ expert on neucleated red blood cells), who testified that he disagreed with Dr. Goldsmith’s formula. The court also had available for review the transcripts of the depositions of: Dr. Oliphant; Nancy Hamilton, R.N. (labor and delivery nurse at the Hospital); Beverly Clark, R.N. (nursery and postpartum nurse at the Hospital); Dr. Puri (Lauren’s treating physician); Billie Jo and Kevin Ries (Lauren's parents); Katherine O’Connell, M.N., R.N. (the Rieses’ nursing care expert); Dr. Bendon (the perinatal pathologist); Dr. Robinson; Karen Bennett Spillman, R.N. (nursery nurse at the Hospital); Laurie Bliven (blood bank supervisor at the Hospital); Sherry Grant McGrath, R.N. (labor and delivery nurse at the Hospital); Anna Kaelin (OB technician at the Hospital); David Gibson (the Rieses' vocational expert); Dr. Koontz (an OB/GYN expert witness for Dr. Oliphant); Wanda Henry (Lauren’s grandmother); Dr. Crawford (the Rieses’ neo-natology expert); and Dr. Barnes (Dr. Robinson’s expert pediatric neurologist). Finally, the court had the vantage point of having sat through thirteen days of trial testimony.
. We do not have Dr. Ferrara’s deposition transcript or his direct testimony from trial in the record. From what we have in the record, it appears that Dr. Ferrara testified at trial on the morning of September 21, 2010. The video from September 21, 2010 starts at 9:00:42 with the parties and the court discussing coverage by the press and various objections. That segment ends at 9:13:54. The video then skips to 11:16:46 with Dr. Robinson's counsel beginning his examination of Dr. Ferrara. Presumably, Dr. Ferrara’s testimony on direct examination took place between 9:14 and 11:16. Based on a question by counsel for Dr. Robinson, Dr. Ferrara gave several reasons for his opinion that Lauren’s bleed occurred before she arrived at the Hospital during direct examination by counsel for the Hospital. Furthermore, based on an objection during Dr. Ferrara’s testimony on redirect, it appears that Dr. Ferrara based his opinion, at least in part, on Dr. Bendon's testimony. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283931/ | VENTERS, J„
CONCURS IN RESULT ONLY:
I concur in the result reached by the Majority opinion but I disagree with its view regarding Dr. Goldsmith’s testimony. I am persuaded by the post-trial analysis and argument that the validity of Dr. Goldsmith’s mathematical model and equilibration theory was not adequately established pursuant to Daubert and KRS 702 so as to properly secure its admission into evidence. However, given the fact that it was not challenged on Daubert grounds until well into the trial, I cannot say that the trial court abused its discretion when it permitted the jury to hear Goldsmith’s opinion testimony. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283932/ | OPINION OF THE COURT BY
JUSTICE KELLER
The Jefferson Circuit Court granted summary judgment to Muluken Zeru, finding that Bonita Beaumont had not filed her complaint within the two year statutory period provided in Kentucky Revised Statute (KRS) 304.39-230(6). Beaumont appeals, arguing that the circuit court and the Court of Appeals incorrectly determined when her statutory period began to run. Having reviewed the record and the arguments of the parties, we reverse and remand.
I. BACKGROUND.
On April 24, 2008, Zeru ran a stop sign and struck Beaumont’s vehicle, causing significant physical injuries. Thereafter, Beaumont sought and received basic reparations/personal injury protection benefits (hereinafter PIP) from her insurer, Cincinnati Insurance Company (CIC).
On July 29, 2010, Beaumont’s attorney wrote to CIC to find out when CIC had made its last PIP payment. A representative from CIC responded and reported that CIC had made “a payment” on September 25, 2009 to Kentucky Orthopedic Rehabilitation. Beaumont filed her.com*906plaint on September 21, 2011, within two years of the date provided by CIC.
Thereafter, Zeru filed a motion for summary judgment arguing that Beaumont had not timely filed her complaint. In support of his motion, Zeru filed an August 13, 2009 letter from CIC to Jewish Hospital, stating that CIC was only making partial payment of the hospital’s bill because that payment exhausted Beaumont’s PIP benefits.
A review of CIC’s records revealed that the issue herein arose from a $400 check that CIC issued to Springhurst Physical Therapy (the assumed name of Kentucky Orthopedic Rehabilitation) on March 17, 2009. Springhurst lost that check and, although it is not clear how, notified CIC on or near September 15, 2009 of the lost check. CIC issued a stop payment order on the March 17, 2009 check and, on September 25, 2009, issued a replacement check.
The circuit court, without explanation, dismissed Beaumont’s claims with prejudice. The Court of Appeals, relying on Wilder v. Noonchester, 113 S.W.3d 189 (Ky.App.2003) and Wehner v. Gore, 2006 WL 2033894, 2005-CA-000689-MR (Ky.App.2006) affirmed the circuit court. In doing so, the Court of Appeals followed the precedent in Wilder that a PIP payment is made when the insurer issues a check and the precedent in Wehner that a replacement check does not constitute making payment. Therefore, the Court concluded .that the last payment was made in August 2009, when CIC sent a partial payment to Jewish Hospital.
II, STANDARD OJF REVIEW.
Statutory construction is a question of law, which we review de novo. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718 (Ky.2012).
In construing statutes, our goal, of course, is to give effect to the intent of the General Assembly. We derive that intent, if at all possible, 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 .... We presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts' to have meaning, and for it to harmonize with related statutes.
Id. quoting Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky.2011).
III. ANALYSIS.
KRS 304.39-230(6) provides in pertinent part that “[a]n action for tort liability ... may be commenced not later than two (2) years after ... the last ..; [PIP] payment made by any reparation obligor.... ” The legislature did not set forth in the Act what constitutes “payment,” and, although the Court of Appeals has dealt with this issue, this is a case of first impression for this Court.
Beaumont argues that we should look to KRS 355.3 et seq., the Uniform Commercial Code (UCC), to determine that payment by check has not been made until the check has been presented and honored, i.e. paid. Zeru argues that, because CIC made payments to Beaumont’s health care providers at her direction, the payment principles set forth in the UCC “simply do not provide a useful or relevant framework around which to build an approach for determining” when payment of PIP has been made. We disagree with this assessment by Zeru; however, we agree with Zeru that payment for PIP purposes occurs, in the normal course, when the reparation obligor issues a check.
As noted above., the MVRA does not set forth what constitutes payment when the *907reparations obligor issues a check to discharge its obligation; therefore, we must look elsewhere. As set forth in the UCC, • a check is “[a] draft ... payable on demand and drawn on a bank.” KRS 355.3-104(6)(a). “[I]f a ... check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, ... [and] suspension of the obligation continues until dishonor of the check or until it is paid or certified. Payment or certification of the check results in discharge of the obligation to the extent of the amount of the check.” KRS 355.3-310(2)(a). According to Beaumont, the preceding means that payment is not made until the obligation is discharged, ie. the date the check has been paid. However, this reading of the UCC, in the context of the MVRA, ignores the word “suspended.” We believe that a better reading of the UCC as applied to the MVRA is that, once the check has been paid, the obligation is no longer in suspension and' date of “payment” for MVRA purposes relates back to the date the suspension began, ie. the date the check was issued. This is in keeping with Wilder, which we believe was a sound decision. It provides the certainty that both parties say they seek and it provides a straight forward mechanism to use to determine when the statute of limitations begins to run — the PIP log. Furthermore, unlike relying on when the check was actually paid, the preceding does not require the parties to obtain banking records from the reparations obligor or from the recipient of the check. However, we cannot stop our analysis with the preceding, which works well when checks are issued, presented, and honored, because that is not what occurred here.
Here, a check was issued in March 2009 and, because the check was either lost or not delivered, that check was never presented or honored. According to Beaumont, that check therefore did not constitute payment and the earliest payment could have been deemed made was when the replacement check was issued. Zeru argues that, pursuant to the Court of Appeals in Wehner, the date the replacement check was issued is irrelevant and it is the date of the initial check that controls.
In Wehner, the reparations obligor issued the final PIP check on December 13, 2000 to a medical provider and then closed its file. The provider contacted the reparations obligor and stated that it either had not received the check or the check had been lost. The obligor stopped payment and issued a replacement check on August 13, 2001. Wehner filed her complaint on July 14, 2003. The trial court granted summary judgment in favor of the defendant because Wehner had not filed her complaint within two years of December 13,' 2000. The Court of Appeals affirmed, holding as follows:
Final payment is the date the last check is cut, dated, or “made.” That date was December 13, 2000. The August 13, 2001, check was not a check “made” for additional services, but a replacement check between [the provider] and [the obligor]. Payment on December 13, 2000, was final payment “made” as far as Wehner is concerned. There is no contrary authority, thus, we agree with the circuit court’s interpretation.
We disagree with the holding of the Court of Appeals in Wehner because it is internally inconsistent. The Court of Ap-. peals states that “the final payment is when the last check is cut, dated, or ‘made,’ ” but then concludes that the check dated August 13, 2001 was, apparently, “cut, dated, or ‘made” ’ on December 13, 2000. The Court of Appeals based this apparent conclusion on the fact that the *908August 2001 check was for services that had been rendered in December not for “additional services.” We find nothing in the MVRA that indicates the date payment is made is tied to when services were rendered.
We find the better analysis, in part, was made by the Pennsylvania Supreme Court in Romaine v. W.C.A.B. (Bryn Mawr Chateau Nursing Home), 587 Pa. 471, 901 A.2d 477 (2006). In Romaine, the Court was required to determine when final payment was made in a workers’ compensation case. The Court, after undertaking a lengthy analysis of Pennsylvania’s version of the UCC, concluded that issuance of a check is a conditional payment. Payment does not become final until the check is honored. Once a check has been honored, the date of payment relates back to the date the check was delivered. While we disagree that the date of a PIP payment relates to date of delivery, the general rule works for the vast majority of transactions because the vast majority of transactions unfold normally, ie. a check is issued, it is deposited in the recipient’s account, the issuer’s bank honors the check, and funds are transferred.
■ As noted above, this matter did not unfold normally; however, the same legal theory applies. When CIC issued a check for $400- to Springhurst in March 2009, that check suspended the obligation CIC had to pay Springhurst for services it rendered to Beaumont. However, because that check was either not received or was lost, Springhurst never presented it for payment, CIC did not thereby satisfy its obligation, and $400 remained in Beaumont’s PIP account. When CIC issued the September 2009 check, it did so to satisfy, its obligation to Springhurst, which remained outstanding. It was not until the September 2009 check was paid that the obligation was satisfied, thus the September 2009 check was the last “payment” of PIP. We recognize that this is contrary to the holding by the Court of Appeals in Wehner. However, we note that the Court of Appeals simply concluded, with no particular reasoning, that the date a payment is made with a replacement check relates back to the date of the original check. There is no basis in the MVRA for this conclusion and the Court of Appeals cited no basis elsewhere in the law for treating a replacement check differently from any other check. Furthermore, by treating a replacement check the same as any other check, we provide the certainty that both Zeru and Beaumont seek. The date of the last payment is the date the last check is sent, whether that check is the initial check or a replacement check.
We recognize Zeru’s arguments that: (1) timing payment to anything other than the insurer’s PIP log will wreak havoc and make it necessary for parties to invade the banking records of insurers and providers; (2) he should be able to rely on statements by Beaumont’s insurer that her PIP benefits were exhausted in August 2009; (3) he should not be disadvantaged because Beaumont’s insurer made an error; and (4) stare decisis requires us to follow the opinions of the Court of Appeals. We address each in turn.
Our holding does tie payment to the PIP log and does not necessitate the invasion of bank records by either party. It simply recognizes the reality that a check that is not presented and ultimately honored does not represent payment.
As to reliance on CIC’s “erroneous” statement, we find it somewhat ironic that Zeru argues he should be able to rely on CIC’s statement to Jewish Hospital but that Beaumont should not be able to rely on CIC’s statement to her. Furthermore, based on our holding today, CIC’s statement that it made a PIP payment in September was not erroneous.
*909We agree that Zeru should not be disadvantaged if CIC had made an error. Likewise, he should not be given an advantage based on any such error.
With regard to stare decisis, we are not bound by the opinions of the Court of Appeals, particularly by unpublished opinions of the Court of Appeals. Kentucky Rule of Civil Procedure (CR) 76.28(4)(c); Commonwealth v. Wright, 415 S.W.3d 606, 613 (Ky.2013). Furthermore:
“[T]he doctrine of stare decisis does not commit us to the sanctification of ancient [or relatively recent] fallacy.” While we recognize this Court should decide cases “with a respect for precedent,” this respect does not “require blind imitation of the past” or unquestioned acceptance ad infinitum. Rather, in many ways, respect for precedent demands proper reconsideration when we find sound legal reasons to question the correctness of ... prior analysis.
Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky.2002) (footnotes omitted and emphasis in original). As set forth above, we agree with the opinion of the Court of Appeals in Wilder, and thus show no disrespect for published precedent. We only disagree with the unpublished opinion of the Court of Appeals in Wehner, which may have some persuasive value but no precedential value. Thus our disagreement with that opinion also shows no disrespect for precedent.
IV. CONCLUSION.
For the foregoing reasons, we reverse the trial court’s summary judgment in favor of Zeru and remand for additional proceedings.
All sitting. All concur. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283933/ | OPINION
DIXON, Judge.
Appellant, Laurence Rider, appeals pro se from an order of the Knox Circuit Court denying his motion .to amend his sentence under CR 60.02. Finding no error, we affirm.
In October 2009, Appellant entered a guilty plea in the Knox Circuit Court to first-degree sexual abuse and kidnapping. Pursuant to the plea agreement, Appellant was sentenced to a total of fifteen years’ imprisonment and, upon release, would be required to register as a sex offender for a period of twenty years. Further, as required by KRS 532.043, the trial court imposed a five-year period of conditional discharge. Appellant subsequently filed two pro se motions for shock probation, both of which were denied.
On December 7, 2012, Appellant filed a pro se motion to amend his sentence pursuant to CR 60.02(e) and (f), arguing that the Supreme Court’s declaration in Jones v. Commonwealth, 319 S.W.3d 295 (Ky.2010) that KRS 532.043(5) was an unconstitutional violation of the separation of powers doctrine and the legislature’s subsequent amendment of such statute constituted a change in circumstances warranting the amendment of his sentence.
On December 26, 2012, the trial court entered an order denying Appellant’s motion, finding KRS 532.043(5) was not an ex post facto law and that it was the intent of the legislature that KRS 532.043, and its amendments apply retroactively. Appellant thereafter appealed to this Court as a matter of law.
On appeal, we review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App.2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky.1996). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). As such, we will affirm the trial court’s decision unless there is a showing of some “flagrant miscarriage of justice.” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983).
The version of KRS 532.043(5) under which Appellant was sentenced provided:
(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth’s attorney in the county of conviction. The Commonwealth’s attorney may petition the court to revoke the defendant’s conditional *911discharge and reincarcerate the defendant as set forth in KRS 532.060.
However, in Jones v. Commonwealth, 319 S.W.3d 295 (Ky.2010), the Kentucky Supreme Court held that KRS 532.043(5) violated the separation of powers doctrine by giving the judicial branch rather than the executive branch the power to revoke conditional discharge1 imposed after a period of incarceration:
The statutory mixture of the role of the judiciary within the role of the executive branch is fatal to the legislative scheme. Section 27 of the Kentucky Constitution creates three distinct branches of government, and Section 28 precludes one branch from exercising any power belonging to the other branches.
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The General Assembly can, consistent with the separation of powers doctrine, create a form of conditional release with terms and supervision by the executive branch. However, the statutory scheme runs afoul of the separation of powers doctrine when revocation is the responsibility of the judiciary. Once a prisoner is turned over to the Department of Corrections for execution of the sentence, the power to determine the period of incarceration passes to the executive branch.
Jones, 319 S.W.3d at 299-300 (footnote omitted). However, the Court specifically set forth that their “ruling [was] limited to KRS 532.043(5)[,]” and went on to opine that “[o]nly the revocation procedure established by this subsection is unconstitutional. Because subsection (5) is severable from the remainder of the statute, the statute’s other provisions remain in force.” Id. (footnote omitted).
Subsequently, in 2011 the legislature amended KRS 532.043 and placed revocation authority with the parole board:
(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing by the Division of Probation and Parole. Notice of the violation shall be sent to the Parole Board to determine whether probable cause exists to revoke the defendant’s postincarceration supervision and reincarcerate the defendant as set forth in KRS 532.060.
KRS 532.043(5). We agree with the trial court that the amendment to KRS 532.043(5) is clearly not an ex post facto law as it does not “reach[ ] back in time to punish acts which occurred before enactment of the law.” 16B Am.Jur.2d Constitutional Law § 690 (2013). See also Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky.2002), cert. denied, 538 U.S. 909, 123 S.Ct. 1481, 155 L.Ed.2d 230 (2003). The 2011 amendment to KRS 532.043(5) merely established a new procedure for adjudicating the revocation of conditional discharge. It did not create a new crime or enhance an existing crime, it did not in itself enhance the penalty for an existing crime, and it did not in any way alter the rules of evidence in regards to the offense charged.
Further, we find no merit in Appellant’s claim that because KRS 532.043(5) does not expressly declare the statute’s retroac-tivity, KRS 446.080(3) bars retroactive application to his sentence. The amendment to subsection (5) is nothing more than a procedural change in response to the Jones decision, reassigning the authority to revoke conditional discharge to the executive branch, or parole board, rather than the judiciary. See Rodgers v. Commonwealth, 285 S.W.3d 740, 741 *912(Ky.2009)(Procedures “are to be retroactively applied ... so that proceedings shall confirm, so far as practicable, to the laws in force at the time of such proceedings.”) The Jones Court explicitly held that only the enforcement provision in subsection (5) was unconstitutional and the remainder of the statute remained in full effect. 319 S.W.3d at 300.
In Baker v. Fletcher, 204 S.W.3d 589, 597 (Ky.2006), our Supreme Court explained, “Though it is clear that the General Assembly must expressly manifest its desire that a statute apply retroactively, magic words are not required. What is required is that the enactment make it apparent that retroactivity was the intended result.” Clearly, in enacting KRS 532.043 and its subsequent amendments the legislature expressed its intent to impose additional supervision requirements on individuals convicted of certain felonies. For this Court to interpret KRS 532.043 as lacking an enforcement mechanism would be not only contrary to legislative intent but also to our Supreme Courts reading of KRS 532.043(l)-(4) and (6) in Jones.
As the trial court noted, we are not to interpret statutes in such a manner that deprives them of their intended effect either by the addition or omission of language. Commonwealth v. Harrelson, 14 S.W.3d 541 (Ky.2000). We conclude that the trial court properly found that the 2011 version of KRS 532.043(5) is not an ex post facto law and it application herein does not warrant amendment of Appellant’s sentence.
The order of the Knox Circuit Court denying Appellant’s CR 60.02 motion is affirmed.
ALL CONCUR.
. The Jones Court clarified that the conditional discharge imposed under KRS 532.043 is a form of post-sentence conditional release unlike the conditional discharge under KRS Chapter 533, which is imposed in lieu of incarceration. 319 S.W.3d at 296, FN. 1. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285680/ | OPINION
THOMPSON, JUDGE:
Garth Kuhnhein, a resident of Kenton County, filed a class action complaint for a declaratory judgment declaring the assessment and collection of ad valorem taxes by the Northern Kentucky Area Planning Commission and the Northern Kentucky Area Planning Council (collectively NKAPC) is invalid because it no longer meets the requirements of an area planning commission as defined in Kentucky Revised Statutes (KRS) 147.610 and alleging the conversion of funds collected by the NKAPC. The Kenton Circuit Court granted summary judgment to the NKAPC ruling that the NKAPC is a viable legal political subdivision. After considering the parties’ arguments and the applicable law, we affirm because the NKAPC has not been dissolved pursuant to statute.
In 1960, the General Assembly enacted legislation permitting the creation of an area planning commission “[i]n any two (2) or more adjacent counties, one (1) of which has a city having a population of more than 50,000 and not more than 200,000 inhabitants as declared.by the last federal census[.]” KRS 147.610. Pursuant to statutory authority, a validly created area planning commission is a political subdivision “in perpetual existence, with power to.... levy an annual tax” for the purpose of defraying necessary and incidental expenses of the area planning commission. KRS 147.660(1). ’
The statutory scheme also provides the means for dissolving an area planning commission. KRS 147.620(3)' sets forth a process initiated by petition and voted on by the fiscal court and KRS 147.620(4) permits for dissolution of an area planning commission by referendum. Subsection (4)(i) provides: “Each member county of an area planning commission must follow the procedures defined herein, before such dissolution may take effect.”
The statute further states:
Any member county of an area planning'commission'may withdraw its membership after following the procedures defined herein. The commission shall continue to function after such withdrawals,, with its boundaries consisting of the remaining county members. No ■ county may withdraw from any commission unless, it satisfies its part of all contractual obligations assumed by the *154commission prior to the passage of its resolution.
KRS 147.620(4)0).
Pursuant to the newly enacted legislation, the NKAPC was formed in 1961 by adjoining Kenton and Campbell Counties. The City of Covington located in Kenton County with a population of more than 50,000 and several other Kenton County cities joined in the creation of the NKAPC.
Through the referendum process provided for in KRS 147.620(4), Campbell County withdrew from the NKAPC in 1984. Since Campbell County’s withdrawal, the NKAPC continues to operate as an area planning commission comprised of Kenton County and various cities within its territory and continues to assess and collect ad valorem taxes to fund its operations.
In 2011, a petition was circulated to dissolve the NKAPC and tendered to the Kenton Circuit Court Clerk. The clerk determined the petition did not meet the criteria set forth in KRS 147.620(4) for the question to be placed on the ballot. An action challenging the clerk’s rejection of the petition was filed in the Kenton Circuit Court. The circuit court agreed with the clerk’s decision to reject the petition. In an unpublished opinion, Metzger v. Summe, No. 2012-CA-001622-MR, 2013 WL 5045948 (Ky.App. Sept. 13, 2013), this Court affirmed.
During the pendency of the Metzger appeal, this action was filed. After cross-motions for summary judgment were filed, the Kenton Circuit Court issued a summary judgment ruling as a matter of law that the NKAPC currently .exists as a valid entity and dismissed the complaint with prejudice. This appeal followed.
The parties do not dispute the underlying facts. Therefore, our review of the issues presented is de novo. Interactive Gaming Council v. Commonwealth ex rel. Brown, 425 S.W.3d 107, 111 (Ky.App.2014). “Under de novo review, we owe no deference to the trial court’s application of the law to the established facts.” Id.
When conducting de novo review of a lower court’s construction of a statute, we are required to apply certain rules. “[T]he most commonly stated rule in statutory interpretation is that the ‘plain meaning’ of the statute controls. Moreover, Kentucky courts have steadfastly adhered to the plain-meaning rule ‘unless to do. so would constitute an absurd result.’ ” Alliance for Kentucky’s Future, Inc. v. Environmental and Public Protection Cabinet, 310 S.W.3d 681, 687 (Ky.App.2008) (quoting Executive Branch Ethics Commission v. Stephens, 92 S.W.3d 69, 73 (Ky.2002)).
Although presented in various sub-parts, the argument advanced by Kuhn-hein is readily summarized. He contends that although the NKAPC was validly formed in 1961, after Campbell County withdrew from the NKAPC and the City of Covington’s population dropped below 50,000 according the 2008 federal census, the NKAPC ceased to exist as a legally valid area planning commission and, therefore, lacked the power to assess and collect ad valorem taxes.
Kuhnhein points out planning units may consist of a city or county, acting independently in accordance with KRS 100.117; cities and them county, jointly, in accordance with KRS 100.121; or groups of counties and their cities, regionally, in accordance with KRS 100.123. He contends that the current NKAPC consisting only of Kenton County and various cities within its boundaries is not an area planning commission and cannot coexist with the Chapter 100 Kenton County Planning Commission.
There is no dispute that Kenton County alone could not form a valid area planning *155commission. However, the question is whether the existing NKAPC is a viable area planning commission with the power to assess and collect ad valorem taxes. The plain and unambiguous language contained in KRS 147.620 compels this Court to conclude that the NKAPC is a valid existing area planning commission.
The statute expressly states'that “[e]ach member of an area planning commission must follow the procedures defined herein, before such dissolution may take effect.” KRS ' 147.620(4)(i). To date, there has been no successful action taken either before the Kenton County Fiscal Court or by referendum to dissolve the NKAPC.
The General Assembly specifically provided that the unilateral withdrawal of a member of the area planning commission does not dissolve an existing commission when it stated “[t]he commission shall continue to function after such withdrawals, with its boundaries consisting of the remaining county members.... ” KRS 147.620(4)(j). While the statute refers to “members,” when construing a statute “a word importing the plural number only may extend and be applied to one (1) person or thing as well as to several persons or things.” KRS 446.020. Kenton County has never withdrawn ■ from the NKAPC and is a remaining member, ■
Contrary to the express statutory language, Kuhnhein requests this Court declare the NKAPC was dissolved in 1984 when Campbell County withdrew. While there may be some rational logic to his argument, the statute directs otherwise. The Courts have no.role in the dissolution of an area planning commission other than as provided for by KRS 147.620(3)(g), which permits a party aggrieved by a decision of the fiscal court in which a dissolution proceeding has been pursued to appeal to the circuit court.
If we were to accept Kuhnhein’s argument, our holding would be repugnant to the constitutional doctrine embodied in Sections 27 and 28 of the Kentucky Constitution that one branch of government cannot interfere with the authority of another coequal branch of government. See Legislative Research Com’n By and Through Prather v. Brown, 664 S.W.2d 907 (Ky. 1984). The power to create “subdivisions of the state for the purposes of government, is held everywhere to be political in its character, and necessarily exercisable by the legislative department alone[.]” Boone County v. Town of Verona, 190 Ky. 430, 227 S.W. 804, 806 (1921). Like the dissolution of a municipal, corporation, the dissolution of an area planning commission “is no less the exercise of a political power and must be exercised by the legislative department of the government, and is not a matter of judicial cognizance.” Id. The statutory language contained in KRS 147.620 plainly and unambiguously states that an area planning commission may be dissolved only by complying with the procedures contained in that statute and a county member’s withdrawal does not dissolve the commission. *
The same reasoning applies to Kuhnein’s suggestion that the NKAPC was dissolved when the City of Covington’s population dipped below 50,000. The NKAPC can only be dissolved as provided by statute.
For the reasons stated, the summary judgment of the Kenton Circuit Court is affirmed.
MAZE, JUDGE, CONCURS.
D. LAMBERT, JUDGE, DjSSENTS AND FILES SEPARATE OPINION. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283935/ | CAPERTON, Judge,
dissenting:
I respectfully dissent. I would find that denial of the tower’s advertised location, *921including the three proposed alternate locations, followed by the approval of an unadvertised location violated due process. A landowner reviewing the proposed locations of a tower may not have any objection to an advertised location and, thus, may not appear at the hearing or offer objection. However, the same landowner may well have objections to tower placement or construction in an unadvertised location. Failure to give notice is a violation of due process. I would reverse on this issue and remand for further hearing. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283936/ | OPINION
MAZE, Judge:
Appellant, Jimmy Stage, appeals from an order of the Jefferson Circuit Court denying his 2007 Motion to Vacate and to Declare the Law pertaining to the application of Kentucky Revised Statutes (KRS) 17.495, et seq., Kentucky’s Sex Offender Registration Act (hereinafter “SORA”). Finding no fault in the trial court’s conclusion that our Supreme Court’s previous decisions regarding SORA continue to control the issue on appeal, we affirm.
Background
The facts of this case are not in dispute. Only its procedural history requires a lengthy recitation. On June 9,1994, Stage pleaded guilty to sexually abusing his daughter. In exchange, he received a sentence of ten years’ imprisonment which took effect July 18, 1994. The trial court entered a Judgment of Conviction ten days later, thirteen days after Kentucky’s SORA became law.
Prior to Stage’s release from prison in 2000 and pursuant to a revised version of SORA, the trial court conducted a sex offender risk assessment, finding him to be at a “high risk” of recidivism and requiring him to register with the Justice Cabinet upon his release. Following a successful appeal of this finding, the trial court reassessed Stage in 2010 and again deemed him to be a “high risk” sex offender. As a result, Stage was required to register under SORA.
Stage appealed the result of his 2010 assessment to this Court, arguing that 2006 amendments to SORA, namely the title of the 2006 Act which amended it, rendered the law unconstitutional due to its retrospective and punitive effect. Following this Court’s dismissal of his appeal on the basis of standing, the Supreme Court vacated that decision and remanded to this Court, which in turn remanded to the trial court for further consideration in light of the then-recent Kentucky Supreme Court ruling in Commonwealth v. Nash, 338 S.W.3d 264 (Ky.2011). See Stage v. Commonwealth, 2012 WL 4464383 (Ky.App.2012)(2010-CA-000475-MR).
Concurrently with the above process, in 2007 Stage filed a Motion to Vacate and Declare the Law,' asserting that the 2006 amendments to SORA “corrected” the Supreme Court’s decision in Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky.2002), and rendered SORA punitive. Stage also argued that the General Assembly did not intend SORA to apply to him, as his offenses occurred prior to passage of the law.1 The trial court did not address the merits of Stage’s 2007 motion until 2013 due to the pendency of his other appeals.
At an evidentiary hearing on the motion, Stage conceded that developments in case law vitiated his argument regarding the 2006 amendments to SORA. Counsel continued to assert the illegality of SORA following the General Assembly’s 2011 amendments. The trial court later denied Stage’s motion, holding that Stage did not have standing to challenge the 2011 *923amendments due to its “extremely limited” scope and lack of retroactive intent. The court further held that Stage’s constitutional arguments failed. This appeal follows.
Standard of Review
The sole issue in this appeal concerns the construction and interpretation of a statute. As such, we review the trial court’s ruling concerning SORA, and the 2011 amendments to that law, de novo. See Commonwealth v. Davis, 400 S.W.3d 286, 288-89 (Ky.App.2013) (citing Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky.2007)).
Analysis
Stage’s sole argument on appeal is that the trial court misconstrued his argument and erroneously ruled that he did not have standing to challenge the 2011 amendments to SORA. More precisely, Stage argues that the 2011 amendments to SORA under House Bill (HB) 463 made it a punitive, and therefore impermissibly ex post facto, law.
We begin with the basic premise that ex post facto laws are inherently unconstitutional. See U.S. Const, art. I, § 10, cl. 1; Ky. Const. § 19. An ex post facto law is any law which criminalizes an act that was innocent when done, aggravates or increases the punishment for a crime as compared to the punishment when the crime was committed, or alters the rules of evidence to require less or different proof in order to convict than what was necessary when the crime was committed. Buck v. Commonwealth, 308 S.W.3d 661, 664 (Ky.2010) (citing Purvis v. Commonwealth, 14 S.W.3d 21, 23 (Ky.2000)); see also Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798). The key inquiry is whether a retrospective law is punitive in nature or whether it has some other stated purpose. Buck, id. (citing Martin v. Chandler, 122 S.W.3d 540, 547 (Ky.2003)).
Stage is not the first convicted sex offender to bring an ex post facto claim regarding SORA’s registration requirement. As SORA has evolved in the twenty years since its enactment, our appellate courts have repeatedly weighed in regarding the constitutionality of its provisions, as well as the various changes to those provisions. The first version of SORA required “any person eighteen (18) years or older at the time of the offense” convicted of certain sex crimes after July 15,1994, to register with Kentucky’s Justice Cabinet within fourteen days after his release. 1994 Kentucky Acts ch. 392, § 1. It applied to persons sentenced, pleading guilty, released from jail or prison, or on probation or conditional discharge after January 1, 1995. Id.
In 1998, amendments to SORA took effect. Among these amendments was a provision for risk assessments for sex offenders “individually sentenced or incarcerated after the effective date” of those changes. 1998 Ky. Acts ch. 606, § 401. These assessments were intended to determine the length of time after release that a sex offender would be required to register with the Justice Cabinet. The General Assembly eliminated these assessments two years later, instead basing the length of time a sex offender was required to register on the gravity of his offense. See .2000 Ky. Acts ch. 401, §§ 15-17.
Following the 2000 amendments to SORA, the Kentucky Supreme Court first passed constitutional judgment on its provisions. In the aforementioned case of Hyatt, the Court noted that similar registration requirements of other states “have consistently been held to be remedial measures, not punitive, and therefore do *924not amount to punishment or increased punishment.” 72 S.W.3d 566 at 571. Accordingly, the Court held that SORA’s designation of those who have committed sex offenses “is not a sentence or a punishment but simply a status resulting from a conviction[.]” Id. at 572.
In 2006, our General Assembly again amended SORA, specifically KRS 17.510. These amendments extended the period of non-lifetime registration from ten to twenty years and heightened the penalty for failure to register or providing false information to the Justice Cabinet. See 2006 Ky. Acts ch. 182, § 6. Despite the content and title (“AN ACT relating to sex offenses and the punishment thereof’) of the bill containing these amendments, the Supreme Court reaffirmed its holding in Hyatt, stating that “SORA is a remedial measure with a rational connection to the nonpunitive goal of protection of public safety[.]” Buck v. Commonwealth, 308 S.W.3d at 667.
In 2011, as part of a large-scale overhaul of Kentucky’s criminal code, the General Assembly amended SORA in a bill entitled, “AN ACT relating to the criminal justice system, making an appropriation therefor, and declaring an emergency.” See 2011 Ky. Acts ch. 2 (hereinafter referred to as “HB 463”). HB 463 modified KRS 17.510 and 17.520 to include a sex offender’s “postincarceration supervision” among the existing list of privileges a court may revoke for noncompliance with registration requirements.
On appeal, Stage asserts that the 2011 changes to SORA, namely the title of the act containing them, made SORA punitive and, therefore, impermissibly retrospective. In other words, Stage asks us to conclude that the General Assembly, through HB 463, rejected the Supreme Court’s three prior holdings and transformed SORA into a punitive law. We cannot oblige that request.
Stage points emphatically to the General Assembly’s use of the term “criminal justice system” in the title of HB 463. He argues that the inclusion of this term, defined by several sources as encompassing the punishment of criminals, signaled a punitive intent behind the changes HB 463 effected. See Black’s Law Dictionary 431 (9th ed.2009); American Heritage Dictionary, 430-31 (5th ed.2011). This is a tenuous reading of our General Assembly’s intent.
Of course, this Court is bound by the well-established rule that we must assign the words employed in a statute their ordinary meaning. See, e.g., Lynch v. Commonwealth, 902 S.W.2d 813, 814 (Ky.1995). However, the Supreme Court’s inclusion of the term “criminal justice system” in the title of HB 463 does not so automatically cast four words added to two statutes in a punitive light. In fact, the Supreme Court has rejected the same argument Stage now makes concerning SORA, holding that the title of an act, while helpful, is not solely determinative of the intent behind it. See Commonwealth v. Baker, 295 S.W.3d 437, 443 (Ky.2009). Hence, we look beyond the title of HB 463 for other evidence of the punitive intent Stage asserts was behind that bill.
An examination of HB 463’s changes to SORA reveals no evidence of the General Assembly’s wish to transform SORA into a law which punished, as opposed to merely monitored, sex offenders. The identical additions to both KRS 17.510 and 17.520 simply acknowledge that other portions of the same bill made a sex offender eligible for “postincarceration supervision” in addition to other custodial options, and that revocation of that privilege was now possible. Giving these words their plain meaning, the acknowledgment they make does *925nothing to change the effect of the law or to increase the punishment of a registrant. In short, the addition of these words to these statutes constitutes neither a substantial, nor a punitive change to SORA or its purpose.
We therefore reject Stage’s argument that the title of HB 463 alone is somehow indicative of the General Assembly’s punitive intent. At its core, this is a rehashed argument which our Supreme Court has previously rejected — see Hyatt, Nash, and Baker — even doing so in the face of seemingly more compelling indicia of legislative intent than the meager changes Stage now cites. See Buck. Accordingly, we conclude that the wisdom and reasoning the Supreme Court has previously employed in response to claims regarding SORA’s constitutionality must prevail again.
That the General Assembly employed the term “criminal justice system” in the title of HB 463 indicates little more than the inevitable relationship between that ambitious and sweeping piece of legislation and our system of criminal justice, a system constructed not only for the punishment of criminals but also for the achievement and maintenance of the public’s safety. To that end, SORA remains what it was prior to 2011 and what our Supreme Court has always professed it to be: “a remedial measure with a rational connection to the nonpunitive goal of protection of public safety[.]” Buck at 667.
Conclusion
For the reasons cited, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
. Though Stage raised this issue before the trial court, he seems to abandon it on appeal. Hence, we do not address the propriety of the trial court’s application of SORA to Stage. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283938/ | Order
Per Curiam:
Appellant, Late Model Auto Parts, Inc., appeals the trial court’s judgment assessing damages in favor of Respondent, Calvert’s Express Auto Sendee and Tire, for breach of contract for the failure to provide a functioning motor vehicle engine. Finding no error, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125579/ | Smith, J.:
By the first clause of her will, the testatrix gave the use of one-third of her estate, real and personal, to her son, James Jones, for his rise during his natural life, and then proceeded in the following words: “ From and after his decease the said one-third part shall revert to the general fund which I do hereinafter establish for the benefit of my grandchildren and great-grandchildren.” The second clause was as follows: “ Second. I give and bequeath the use of the remaining portion of property during the life-time of my son James Jones, to each and every one of my grandchildren, share and share alike,- in the use and interest thereof, and from and after the decease of my son, James Jones, I direct my executor, hereinafter nominated, to pay to each of my grandchildren the interest which shall have accumulated thereon to my said grandchildren, share and share alike, and therefrom and after the decease of my grandchildren, I direct my executor to pay the amount remaining, after paying all *8expenses of settlement and disbursements thereof, to each of my great-grandchildren, share and share alike, to have and to hold the same forever as their right and property, provided the children of my son George W. Jones shall provide for and care for the wants of their father and mother, during the term of the natural life of each, and in case the said children shall neglect to provide the natural needs and wants and necessaries of life of their said parents, then, ^.nd in that case, I do order the said legacy in payment to them to de,stopped, and the said payment shall revert to the general fund for the benefit of my other grandchildren and great-grandchildren as- hereinbefore mentioned. And I further direct my said executor to keep said general fund, before mentioned, secured and loaned upon real estate by bond and mortgage.”
The testatrix left real estate worth about $1,100, and personal property of the value of $5,000. She left two sons, James and George. James was unmarried at the time of the death'of the testatrix, but has since married and at the time of the trial had no issue.' -George was married and had three children, who are defend ants in this action, two of whom are the appellants. George was largely in debt and was insolvent. The defendants, James H., Charles and Sarah J. Clute, are the children of a deceased daughter of the testatrix, and the defendants William and Charles O. Clute, are children of James H. Clute, and great-grandchildren of the ■testatrix-.
- "It is claimed on the part of James Jones, that the intention of the testatrix, as manifested by the second clause of the will, was that no part of the estate should go to the great-grandchildren until after the death of all the grandchildren, and that an illegal suspension was thereby created. The learned judge who tried the case at Special -Term, was of the opinion, however, that the gift to the grandchildren was to each one in severalty, and not to them jointly, and in that we concur. (Savage v. Burnham, 17 N. Y., 561; Everitt v. Everitt, 29 id., 39; Stevenson v. Lesley, 70 id., 512; Monarque v. Monarque, 80 id., 320.) Thus construed, the provision does not work an illegal suspension, as on the death of each grandchild his share will pass directly to the great-grandchildren as absolute owners. As to the one-third of the estate given to James for life, the power of alienation of the real estate and -the absolute ownership of the *9personal property are not suspended for more than two lives in being, and as to the remaining two-thirds, the suspension is for one 'life only.-
It is further contended by the respondents that an illegal suspension may be produced by a breach of the provision contained in the second clause for the support of George W. Jones and his wife by their children, and in that view the special term judge concurred, and on that ground he held the entire will void so far as it undertook to dispose -of the estate. That conclusion seems to have been reached by assuming that on a breach of the condition by the children of George, their shares would pass to the other grandchildren, and at their death to the great-grandchildren, and thus the absolute ownership of the portion of the one-third of the estate given to James for life, which forms part of the three shares set apart for the three children of George, would be suspended in the event of a breach of the condition for a longer time than is allowed by law ; first, for the life of James ; secondly, from the death of James to the time of the breach ; and, thirdly, for the lives of the other grandchildren (three in number), for whose benefit such shares are to be held in casé of such breach.
But as we read the will the period of suspension would not be extended by a breach of the condition. The only effect of such breach would be to work a forfeiture of the remainder of the several life estates of George’s children, and to transfer such life estates to the other grandchildren. On the death of one of George’s children, the estate so forfeited by and transferred from him would cease. It would not endure during the lives of the other grandchildren as seems to have been assumed at Special Term. So that whether there be a breach or not, the ownership of the share of one of George’s children would not, in any event, be suspended for more than two lives, to wit, his own life and the preceding life of James.
In short, we think the proper construction of the will is that as to the third given to James, successive life estates are created, first in James in the entire third, next in the grandchildren in severalty in equal shares, remainder in each share on the death of its taker to the great-grandchildren absolutely, and that such remainder vested on the death of the testatrix, subject to open and let in after-born great-grandchildren.
*10One of the questions submitted is whether the title to the real and personal property is vested in the executor or in the administrator with the will annexed as a trustee under the will, or whether it is vested in the beneficiaries who are finally to receive the same. The title to the personal property is in the administrator with the will annexed, in trust for the purposes of the will. The title to the real estate, we conceive, is vested in the devisees, as already stated, subject probably to a power of sale to be implied from the provisions of the will. As the use of one-third of the real estate, as well as personal, is given to James during his life, no power to sell is created by the will until after his death, but the direction that on the happening of that event, the said third shall fall into the general fund established by the will, and that the executor shall keep said general fund invested in bond and mortgage, the income of which he is required to pay to the several legatees as therein specified, very clearly implies that the testatrix intended to clothe the executor with a power of sale, since without it he could not discharge the duties devolved upon him. And as the duty of selling was not left to his discretion, but was made imperative, we incline to the opinion that the power is vested in the administrator with the will annexed and so hold in this case, though the latter point is not well settled. (See Bain v. Matteson, 54 N. Y., 663, and cases there cited by Reynolds, Com.)
The judgment of the Special Term should be reversed, and a judgment ordered declaring the will valid and construing it as above indicated, with costs of the appellants and of the plaintiff to be paid out of the estate.
Talcott, P. J., and Hardin, J., concurred
So ordered. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125580/ | Smith, J.:
The complaint in the action contains two counts: One, for the rent of a farm owned by the plaintiff’s testator, Edward C. Marvine, and occupied by the defendant, and the other for the value of a quantity of manure removed by the defendant from said farm and for which he agreed to pay. At the trial the court held that there was no evidence to support the second count, and the case was submitted to the jury under the first count alone.
The learned judge before whom the case was tried, granted a new trial for what he regarded as an error in the reception of a single *12item of testimony. The principal issue between the parties was as to whether the defendant was in possession as the tenant of the testator or under a contract of purchase, and the issue was sharply contested. The plaintiff called a witness, Treat, who testified that he was present at an interview between Marvine, the testator, and the defendant, while the latter was in possession of the farm, in which the testator asked Price, the defendant, for some rent, and Price said he had the money in the bank ready to pay when he knew who to pay it to, but he had been forbidden to pay it to Mar-vine. The plaintiff was then permitted to prove by another witness, against the defendant’s objection to the immateriality of the •evidence, that for a considerable period, embracing the time of the aforesaid interview, Price had several hundred dollars on deposit in the bank referred to. Ve concur in the opinion of the learned judge, delivered at Special Term, that the latter item of •evidence was wholly immaterial, and that it was calculated to and probably did have a prejudicial influence with the jury, •and its reception was error. The fact that the defendant had money in bank had no legitimate tendency to show that he held the farm as tenant, or that he admitted that he so held. It-has sometimes been held that upon an issue of payment it is competent to show that the party had money with which the payment might have been made. (Dishno v. Reynolds, 17 Hun, 137.) In Nicholls v. Van Valkenburgh (15 Hun, 230) evidence was held .admissible that a person against whose estate a promissory note was presented, long overdue, was of ample pecuniary means at and after the date of the maturity of the note, by way of showing the improbability of its remaining overdue without a demand for its payment. And in Pontius v. The People (21 Hun, 328; aff’d in 82 N. Y., 339) evidence that a party was embarrassed in his pecuniary circumstances, and pressed by numerous debts was received by way of showing that he had not money to lend. Those cases and others similar are cited by the appellant’s counsel, but they do not authorize the position that the fact that a party has money in bank tends to show that he promised to pay it on a particular claim, or that it corroborates the testimony of declarations made by him to that effect.
In one other particular, also, we are inclined to think an error *13was committed at the trial. After the witness Treat had testified to the conversation between the deceased and Price, above detailed, the defendant was called as a witness in his own behalf, and was asked whether the conversation so testified to took place. The plaintiff objected to the question as incompetent and prohibited by section 829 of Code. The objection was sustained, and the defendant excepted. The cases of Brague v. Lord (67 N. Y., 495) and Kraushaar v. Meyer (72 id., 602) are cited to justify the ruling. In each of those cases the surviving party was called, in the first instance, to testify to a conversation between himself and the deceased, at which a third person was present, in respect to which no testimony had been given on the other side. Here, the plaintiff had called the third person to prove what took place in his presence between the defendant and the deceased. We think it was competent for the defendant to state whether the conversation testified to by Treat took place. * ■* *
The order appealed from should be affirmed, for the reasons above stated.
Talcott, P. J\, and Hardin, J., concurred.
Order appealed from affirmed. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125581/ | Smith, J.:
Judgment having been rendered in this action vacating the charter of the defendant, a plank-road corporation in the county of Steuben, and annulling the existence of the corporation for abuse of its powers, with costs, and an execution having been issued and returned unsatisfied, the plaintiff moved for an attachment or other process requiring the directors of the corporation to pay the costs, and from the order denying such motion the plaintiff appeals.
The motion was noticed and brought on subsequently to the 1st day of September, 1880, on which day chapter 215 of the Laws of 1880, known as the repealing act, took effect, and the principal question in the case is, whether there was then any statute in force giving a right to the relief asked for. Section M2 of the Code of *15Procedure provided for a judgment dissolving a corporation adjudged to have forfeited its corporate rights, by neglect, abuse or surrender. Section 443 was as follows : “ If judgment be rendered in such action against a corporation or against persons claiming to be a corporation, the court may cause the costs therein to be collected by execution against the persons claiming to be a corporation, or by attachment or process against the directors, or other officers of such corporation.” The next section provided for the appointment of a receiver of such corporation. A provision substantially the same as section 443, was contained in the Revised Statutes. (2 R. S., 585, § 50.) Under that provision it was held that the directors of a. corporate company, against which judgment of ouster had been pronounced, were incidentally responsible for the costs of the proceedings, although they had no direct agency in the defense of the suit, and they had no corporate funds in their hands. (The People v. Ballou and ors., 12 Wend., 277.) It was also held that the payment of such costs might be enforced by attachment. (Id.) Chapter 245 of the Laws of 1880 repealed section 50 of the Revised Statutes above referred to (Laws 1880, chap. 245, § 1, sub. 3), and also the sections of the Code above cited, which sections were originally adopted in chapter 438 of the Laws of 1849. (Laws 1880, chap. 245, § 1, sub. 26, last paragraph.) The Code of Civil Procedure retains substantially the provisions of sections 442 and 444 of the old Code (Code of Civil Pro., § 1801), but the provisions of section 443 are essentially modified and limited. What remains of that section is found in section 1987 of the new Code, which reads as follows: “ § 1987. Where final judgment in an action, brought as prescribed in this title, is rendered against a corporation, or persons claiming to be a corporation, the court may direct the costs to be collected by execution against any of the persons claiming to be a corporation, or by warrant of attachment, or other process, against the person of any director or other officer of the corporation.” The title of which that section is a part does not authorize actions against corporations to annul their charters for abuse or neglect of their powers. Actions of that nature are provided for by section 1798, which has its place in another title. Of the actions mentioned in sections 442 and 443 of the old Code, the only ones which are authorized by the title of the new Code, of *16which section 1987 is a part, are actions against individuals acting as a corporation within the State without being duly incorporated, or exercising within the State corporate rights, privileges or franchises not granted to them by the law of the State. (Sec. 1948, sub. 3.) In those actions only can the directors or other officers of a corporation be held liable to attachment or other process for the payment of costs under section 1987, so that if section 1987 applies to the present case, the motion to compel the directors of the defendant corporation to pay the costs of the action was properly denied for the want of power.
The question whether that section applies is not free from doubt. As has been said, the motion was noticed and brought on subse quently to the 1st day of September, 1880, at which time chapters 14 to 21, inclusive, of the new Code took effect. Section 1987 is in the sixteenth chapter. Subdivision 11 of section 3347 of the new Code provides that so much of chapters fourteen to twenty, inclusive, as regulates the proceedings to be taken in an action or special proceeding, and the effect thereof, applies only to an action or a special proceeding commenced on or after the 1st day of September, 1880, with certain exceptions therein specified, which do not affect this case. The new Code, however, left section 50 of the Revised Statutes, and section 443 of the old Code in force, but the repealing act, passed a few days afterwards (Laws 1880, ch. 245), repealed both of those sections and left no statute in force by which the directors can be charged, unless the case is saved by some of the exceptions contained in that act. The repeal effected by the first section of the act is subject to the following qualifications: Such repeal does not impair “ any proceeding in an action or a special proceeding had or taken pursuant to law” before said act took effect. (Sec. 3, subd. 1.) Nor does it affect “any other lawful act done, or right, defense or limitation, lawfully accrued or established,” before the act took effect. (Id., subd. 2.) Nor does it affect “ any offense committed, or penalty or forfeiture incurred,” before said act took effect, “ except that the proceedings in a civil action or special proceeding, brought by reason thereof, are subject to the provisions of the laws in force after said act took effect.” (Id., subd. 3.) The motion under review was not a proceeding “ had or taken ” before the act took effect. Was it made to enforce *17a right “ lawfully accrued or established ” before the act took effect ? Those terms seem to imply an absolute right, not resting in the discretion of the court. "Whatever right the plaintiff has to the relief sought by the motion, doubtless accrued when final judgment was rendered in the action. (Old Code, § 443; new Code, § 1987.) But is the right absolute ? The language of the statute is, “ the court may cause,” etc. (Id.) Where the provisions of a statute mean to impose a duty, the use of the word “may” is to be understood as imperative, but in other cases it is merely discretionary. (Cooke v. State National Bank of Boston, 50 Barb., 339.) Here no duty is imposed. Upon an application under this statute many circumstances may exist proper to be considered by the court. If the corporation possesses property out of which the costs may be made by means of an execution or 'through the instrumentality of a receiver, the court, in its discretion, may on that ground deny the motion. If it should appear that a minority of the directors had uniformly opposed the proceedings of the corporation out of which the costs had arisen and were in no way responsible for them, it can hardly be doubted but that the motion might properly be denied as to them. The right, resting in discretion, to some extent at least, cannot be regarded as “ lawfully accrued or established ” till the discretion of the court has been declared in its favor. Nor can the motion be treated as a “ special proceeding ” to enforce a “ penalty or forfeiture.” If it were such, it would then, by force of the third subdivision of section 3, be subject to the provisions of the laws in force after the repealing act took effect. The case, therefore, is not within either of the qualifications of the act (none of the other subdivisions of section 3 having any application to it), and if the foregoing exposition of the statute is correct, the case is not within the statute now in force.
The appellant relies upon the fact that the present motion is the renewal of one which was made for the like purpose in March, 1879, and was denied with leave to renew. That fact is of no moment so far as the questions above considered are concerned. The present motion is to be governed by the statute in force when it was made, the same as if it were the first .motion of its kind in the action.
For these reasons we are of the opinion that the motion to compel the directors to pay the costs was properly denied.
*18We see no reason for refusing the other branch of the motion, to wit, that the sum in the hands of the receiver be applied to the payment of the costs. We suppose that the statutes applicable to the distribution of moneys in the hands of the receiver, have reference to the proceeds of the property of the corporation which remain after the payment of the costs of the action or proceeding in which the moneys are realized. The costs are a charge upon the fund and have preference over debts owing by the corporation.
So much of the order appealed from as refuses an attachment or other process against the directors is affirmed, and so much as denies an order that the money in the hands of the receiver, arising from the sale of the property of the defendant, be applied towards the satisfaction o'f the judgment for costs herein, is reversed, and the motion to that effect is granted, without costs of this appeal to either party.
Talcott, P. J., and Hardin, J., concurred.
So ordered. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125582/ | Smith, J.:
In tbe year 1876, tbe plaintiffs and all tbe defendants, except John E. James, were patrons of a cheese factory located in Rem-sen, Oneida county, and delivered milk from their respective dairies at said factory, to be manufactured into cheese by the defendant James, he agreeing to manufacture all the milk received at said factory, during the cheese-making season for that year, into a “ number one” article of cheese; to furnish all the materials (except milk) required to manufacture the same, and to put it in fit shape to send to market, and to make all the sales, draw all the checks, do all the figuring, and make the dividends ; and for all said service and materials, he was to receive from said patrons one dollar and sixty cents for each 100 pounds of cheese so manufactured. It was also agreed that Evan Pugh, one of said patrons, was to see to or superintend the weighing of said cheese, at said factory, before it was shipped. The referee found that under that agreement there were taken to said factory during that year, by all of said patrons, 1,075,540 pounds of milk, and that the whole quantity of cheese which was or could have been made from’ said milk was 106,192 pounds, for which the defendant James should account. lie also found that James had fully accounted for the same, and had paid over to each of said patrons the amount due to him' on account thereof.
The principal question is whether, under the agreement, the defendant is entitled to an allowance made him by the referee for commissions paid to brokers who made sales of a portion of the cheese in New York and Htica. By the agreement, James was to make all the sales. He did in fact make sales at the factory or in its vicinity, but the cheese not disposed of in that way was sent by him to the New York and Htica markets, and there sold by brokers whom he employed and who remitted to him. Assuming that the disposition thus made of the cheese was necessary in order to find a market for it, and was according.to the ordinary usage, of which no question seems to be made, we are of the opinion that the defendant was entitled to the brokers’ commissions paid by him in addition to Ms own compensation of one dollar and sixty cents per 100 pounds'. He was to sell the cheese, and if it was necessary to seek distant markets for the purpose, it was not contemplated that *20he should go in person, since the duty of superintending the factory required him to be there; nor was he obligated to pay, at his own expense, the brokers necessai’ily employed to make such sales. He was clothed with full authority to use all the usual and appropriate means to accomplish the end, in the absence of express restriction. (Nelson v. Hudson River R. R. Co., 48 N. Y., 505 ; 1 Pars, on Cont., 72, 73; Story on Agency, §§ 73, 102, 103, 201.)
The appellants’ counsel contends that the respondent should be charged for certain sour cheese manufactured by him, but there is no evidence, and the referee has not found that the defendant was at fault in regard to it. True, he agreed to make a good article, but all that was required of him was to do the best he could with the materials furnished him, and if the cheese was sour without his fault, he was not liable.
It is claimed on the part of the appellants that the referee has fallen into some errors in respect to certain items of the account, but we have not been able to find any satisfactory evidence that such is the case.
The judgment should be affirmed.
Mullin, P. J., and Talcott, J., concurred.
Judgment affirmed. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125583/ | Smith, J.:
The action was brought to recover damages sustained by the plaintiff in consequence of defects in a certain bridge across the Genesee river, which, as she alleges, the county of Livingston was bound to repair. The principal question is whether the action will lie against the county. The river in its course between the towns of Geneseo and Leicester, is crossed by a highway leading from the village of Cuylerville, and at that point the bridge in question is located. In 1837, the legislature passed an act incorporating the Leicester Bridge Company for the purpose of building a toll bridge across the Genesee river at or near the point above indicated. (Laws 1831, chap. 388.) By the ninth section of the act it was provided that in case the bridge should be destroyed and not rebuilt as therein specified, the corporation should be dissolved, and (in the words of the act), “ the said bridge shall thereupon become a public bridge, and may be maintained at the expense of the county of Livingston.” The liability of the county to maintain the bridge, under that provision, was adjudged by this court in the case of Phelps v. Hawley and others., Comrs. of Highways, etc. (3 Lans., 160), and the decision was affirmed by the Court of Appeals (52 N. Y., 23). The ■question is whether the imposition of that duty upon the county by statute, gives a right of action against the county to any person sustaining injury by reason of a neglect of the duty.
The plaintiff’s counsel asserts the broad proposition that when a duty is imposed by law upon a public body or officer, an action will lie for a neglect to perform that duty in favor of a party injured by reason of such negligence. The cases cited by him were actions against municipal corporations for negligence in respect to some ministerial duty imposed upon them by the terms of their charter *22or assumed by them under its provisions. There is a distinction, in this respect, between municipal corporations created by charter and vested by the government with a portion of its sovereign power for their peculiar benefit, and counties and towns which, like assembly and senatorial districts, are mere political divisions organized for the convenient exercise of portions of the political power of the State. In the former class of cases, the surrender by the government of a portion of its sovereign power to the municipality, if accepted by the latter, has been regarded as affording a consideration for an implied undertaking, on the part of the corporation, to perform the duties imposed by the charter, a neglect of' which will render the corporation liable, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. ( Weet v. The Trustees of the Village of Brockport, 16 N. Y., 161 ; Conrad v. The Trustees of the Village of Ithaca, Id., 158; McCarthy v. The City of Syracuse, 46 id., 194, per Rapallo, J., p. 197.) The case of Conrad (supra) is one of those cited by the plaintiff’s counsel, and all the cases cited by him may be sustained upon the principle above stated. But we have not been referred to a case, and we are not aware of one, in which an action of this kind has been maintained against a county or town, unless the right of action was expressly given by statute. The fact that there is no precedent for the suit is strong evidence that no right of action exists. The case of Morey v. The Town of Newfane (8 Barb., 645), we regard as an authority adverse to the plaintiff. The well-reasoned opinion 'of Mr. Justice Samuel L. Selden in that case, has been referred to with approval by the Court of Appeals. (The People ex rel. Van Keunen v. Town Auditors, 74 N. Y., 316.) In several of the New England States the care of roads and bridges is vested in the several towns and the statutes expressly give an action against a town for neglect to repair, but the courts in those States hold that no action lies except by force of the statute giving it. (Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Chidsey v. Town of Canton, 17 Conn., 475 ; Reed v. Inhabitants of Belfast, 20 Maine, 246; Eastman v. Town of Meredith, 36 N. H., 284.) Numerous cases to the same effect are to be found in the reports of other States, to which it is unnecessary to refer.
We ai’e of the opinion that the county is not liable to a civil *23action, and that conclusion obviates the necessity of examining the other questions raised by the appellant’s counsel.
The judgment and order should be reversed.
Mullin, P. J., and Talcott, J., concurred.
Judgment reversed and new trial ordered, costs to abide event. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283940/ | ORDER
PER CURIAM:
This case involves a dispute between the ovmers of neighboring parcels of property on the Lake of the Ozarks, concerning the use of a boat dock and the existence of an easement along the waterfront to allow access to the dock. Following a bench trial, the circuit court found that an easement existed and that Donald Isaac and Mary Aten-Isaac had a legal right to use' the boat dock. Sandra and Robert Fleming, on whose property the dock is located, appeal; the Isaacs cross-appeal the circuit court’s award of only nominal damages for the Flemings’ denial of access to the dock. 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/5283941/ | GARYW. LYNCH, J.
Michael Younker, Brad Neckermann, Adam Chadek, and Amanda Chadek (collectively referred to as “Tenants”) appeal from the trial court’s judgment denying class certification and granting summary judgment on all claims in their petition in favor of Investment Realty, Inc., Michael Woessner, Linda Woessner, Curtis Baxter, Sarah Baxter, and Williamsburg Apartments, Inc. (collectively referred to as “Property Owners”).1 Tenants alleged in their petition that Property Owners improperly retained a portion of their lease deposits in violation of section 535.300.2 Property Owners moved for summary judgment asserting that the terms of Tenants’ lease agreements, which varied from the security deposit requirements of section 535.300, were controlling and that all lease deposits were handled according to the contractual terms in the lease agreements. The trial court, relying upon the uncontroverted fact of Property Owners’ compliance with such contractual terms, granted summary judgment in favor of Property Owners. Because compliance *3with the security deposit requirements imposed by section 535.300 is mandatory and cannot be contractually varied or altered and genuine issues of material fact exist as to whether Property Owners complied with such statutory requirements, the trial court’s judgment is reversed.
Factual and Procedural Background
The facts, set forth in the light most favorable to Tenants, see Binkley v. Am. Equity Mortgage, Inc., 447 S.W.3d 194, 196 (Mo. banc 2014), are as follows:
Tenants each signed a “Lease and Agreement” to lease separate residences in Rolla, Missouri, from Investment Realty.3 These agreements vary slightly in their exact language and the specific amounts of funds involved, but these differences aré irrelevant to the issues involved in this appeal. Relevant to this appeal, Tenants agreed to “keep the premises in as good order, condition, and repair as when ... first occupied.” The agreements also required Tenants to make an initial deposit ranging from $275 to $400 (the “lease deposit”).4 The agreements provided that a portion of the lease deposit ranging from $75 to $95 would be a nonrefundable “common area maintenance fee.” The agreements also authorized Investment Realty to expend the remaining lease deposit to repair damage done by Tenants or to fulfill any remaining rent obligations.
Tenants also signed an accompanying “Security Deposit Agreement” that further detailed how their lease deposits would be utilized. The Security Deposit Agreement stated that there was a $75 painting charge for each bedroom unit and a $75 initial carpet cleaning charge, with an additional charge of $25 per room and $10 per heavily stained area. Tenants separately initialed all of these provisions. The Security Deposit Agreement also specified that there should be no damage to the property beyond normal wear and tear, but “DIRT IN CARPETING OR ELSEWHERE, IS NOT NORMAL WEAR AND TEAR.” After their tenancies ended, Property Owners deducted no more than the full common-area maintenance fee, painting fee, and carpet-cleaning fee from Tenants’ lease deposits. Tenants were not charged any other fees, and the remaining funds from their lease deposits were refunded to them.
Tenants filed a petition against Property Owners alleging that the common-area maintenance fee, painting fee, and carpet-cleaning fee were amounts that would be “withheld in every instance” and were retained to remedy “ordinary wear and tear,” which is not allowed by section 535.300. As such, Tenants alleged that Property Owners were in violation of that statute. Tenants’ petition was brought as a class action on their- own behalf and on behalf of all others similarly situated. By separate motion, Tenants sought court certification of that class.
Property Owners filed a motion seeking “Summary Judgment in Whole,” asserting three legal reasons why summary judgment should be granted on all claims in *4the petition. The first two reasons are essentially the same and assert that Property Owners are entitled to summary judgment even if they did not comply with the terms of section 535.300 because they complied with the terms of the lease agreements and the contractual terms control regardless of any statutory requirements. The third and final reason asserted that Property Owners are entitled to summary judgment because they complied with the requirements of section 535.300 by expending in some manner or refunding all deposited funds.
In the alternative, Property Owners moved for partial summary judgment in two respects: (1) in favor of the individual property owners because they were not landlords as that term is used in section 535.300, and Investment Realty, Inc. was an independent contractor, and (2) on all claims outside the statute of limitations.
In its judgment, the trial court denied Tenants’ “Motion for Class Certification,” granted Property Owners’ “Motion for Summary Judgment In Full,” never reaching the issues related to the requested partial summary judgments, and made a determination that the applicable statute of limitations, if summary judgment were reversed, would be section 516.130.
Discussion
Tenants raise three points oii appeal. First, Tenants argue that the trial court erred in granting summary judgment because “there is no genuine dispute regarding the material fact that [Property Owners] withheld sums from [Tenants’] security deposits for reasons not allowed by [section] 535.300” ... “and/or there are genuine issues of material fact as to whether the sums withheld were allowed by [section] 535.300.” Second, Tenants argue that the trial court erred in denying class certification because all requirements of Rule 52.08 were met. Third, Tenants assert that the applicable statute of limitations is ten years, in accordance with section 516.110.
Genuine Issues of Material Fact of Property Owners’ Compliance with Section 535.300 Precluded Summary Judyment in Full
In reviewing a trial court’s grant of a motion for summary judgment, we employ a de novo standard of review. As such, we will not defer to the trial court’s decision, but rather, we will use the same standards the trial court should have used in reaching its decision to grant the motion for summary judgment. We view the record in the light most favorable to the party against whom judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record. The propriety of summary judgment is purely an issue of law.
Baca Chiropractic v. Cobb, 317 S.W.3d 674, 677 (Mo.App.2010) (internal citations and quotations omitted).
Summary judgment is appropriately granted when “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Rule 74.04.5 “ ‘A material fact in the context of summary judgment is one from which the right to judgment flows’ ” Cent. Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 319 (Mo. banc 2014) (quoting Goerlitz v. City of Maryville, 333 S.W.3d 450, 453 (Mo. banc 2011)). A genuine issue exists as to one of the material facts underlying the moving party’s right to summary judgment where the record contains competent *5evidence that demonstrates two plausible, but contradictory, accounts of an essential fact. Birdsong v. Christians, 6 S.W.3d 218, 222 (Mo.App.1999) (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993)). However, “ ‘[t]he key to summary judgment is the undisputed right to a judgment as a matter of law; not simply the absence of a fact .question.’ ” Birdsong, 6 S.W.3d at 223 (quoting Southard v. Buccaneer Homes Corp., 904 S.W.2d 525, 530 (Mo.App.1995)). Here, the trial court granted summary judgment in whole without specifying the basis for its decision. Nevertheless, “ ‘the trial court’s judgment may be affirmed on any basis supported by the record.’ ” Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d 556, 561 (Mo. banc 2014) (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 387-88).6
Tenants contend that a genuine dispute of material fact exists as to whether Property Owners used the lease deposit for reasons not allowed by section 535.300, which cannot be waived; therefore summary judgment in favor of Property Owners is inappropriate.7 We agree.
Section 535.300 provides:
1. A landlord may not demand or receive a security deposit in excess of two months’ rent.
2. Within thirty days after the date of termination of the tenancy, the landlord shall:
(1) Return the full amount of the security deposit; or
(2) Furnish to the tenant a written itemized list of the damages for which the security deposit or any portion thereof is withheld, along with the balance of the security deposit. The *6landlord shall have complied with this subsection by mailing such statement and any payment to the last known address of the tenant.
3. The landlord may withhold from the security deposit only such amounts as are reasonably necessary for the following reasons:
(1) To remedy a tenant’s default in the payment of rent due to the landlord, pursuant to the rental agreement;
(2) To restore the dwelling unit to its condition at the commencement of the tenancy, ordinary wear and tear-excepted; or
(3) To compensate the landlord for actual damages sustained as a result of the tenant’s failure to give adequate notice to terminate the tenancy pursuant to law or the rental agreement; provided that the landlord makes reasonable efforts to mitigate damages.
4. The landlord shall give the tenant or his representative reasonable notice in writing at his last known address or in person of the date and time when the landlord will inspect the dwelling unit following the termination of the rental agreement to determine the amount of the security deposit to be withheld, and the inspection shall be held at a reasonable time. The tenant shall have the right to be present at the inspection of the dwelling unit at the time and date scheduled by the landlord.
5. If the landlord wrongfully withholds all or any portion of the security deposit in violation of this section, the tenant shall recover as damages not more than twice the amount wrongfully withheld.
6.Nothing in this section shall be construed to limit the right of the landlord to recover actual damages in excess of the security deposit, or to permit a tenant to apply or deduct any portion of the security deposit at any time in lieu of payment of rent.
7.. As used in this section, the term “security deposit” means any deposit of money or property, however denominated, which is furnished by a tenant to a landlord to secure the performance of any part of the rental agreement, including damages to the dwelling unit. This term does not include any money or property denominated as a deposit for a pet on the premises.
(Emphasis added).
Ordinarily, an analysis of the application of this section should begin with a determination as to whether particular funds paid by a tenant to a landlord meet the subsection 7 statutory definition of a “security deposit.” We need not reach that initial issue and make that determination here, however, because Property Owners conceded at oral argument that the manner in which they treated and handled Tenants’ lease deposits, irrespective of the express provisions in the lease agreements, met the statutory definition requirements for those lease deposits to be considered a “security deposit” as defined in subsection 535.300.7.8 Therefore, our analysis here begins with determining whether a genu*7ine issue of material fact exists as to whether the non-refunded portions of Tenants’ security deposits were appropriately expended by Property Owners.
Property Owners’ Motion for Summary Judgment set forth two legal bases in favor of summary judgment and their proper expenditure of Tenants’ security deposits. First, Property Owners assert that “these transactions are not controlled by statute but instead controlled by contract. Parties to a contract are free to relinquish substantial rights, and [Tenants] contractually waived any rights under § 535.300 RSMo. by entering into a contract with potentially different terms.” In their brief, Property Owners give several examples of rights that they allege may be waived9 as part of their overarching argument “that statutes can never bar personal choices in most instances.”
In contrast, Tenants argue that section 535.300 is a consumer protection statute and waiver would be against public policy. In support of this argument, Tenants liken the security deposit statute to the Missouri statutes relating to merchandising and trade practices which have been described as “paternalistic in nature” such that they cannot be subject to waiver. See High Life Sales Co. v. Brown-Forman Corp., 823 S.W.2d 493, 498 (Mo. banc 1992) (quoting Electrical and Magneto Serv. Co., Inc. v. AMBAC Int’l Corp., 941 F.2d 660, 664 (8th Cir.1991)).
“The primary rule of statutory construction requires the Court to ascertain the intent of the legislature, considering the words in their plain and ordinary meaning.” Union Elec. Co. v. Dir. of Revenue, 799 S.W.2d 78, 79 (Mo. banc 1990). Section 535.300 “was enacted for the protection of both the landlord and tenant, is conducive to the public good, [] provides the tenant his exclusive remedy for the wrongful withholding of a security deposit[,]” and is to be liberally construed to effect that purpose. Battis v. Hofmann, 832 S.W.2d 937, 940 (Mo.App.1992). Tenants’ argument in favor of an intended consumer protection, paternalistic view of section 535.300 is persuasive because section 535.300 only applies to residential tenancies and section 535.300 uses plain and ordinary language that indicates the legislature did not intend for the parties involved in such tenancies to contractually alter the application of its provisions.
Section 535.300 uses the term “dwelling unit” four times to describe the property for which a security deposit is paid and held. Section 535.300; Prop. Exch. & Sales, Inc. v. King, 863 S.W.2d 12, 15 (Mo.App.1993). While this term is not defined in section 535.300, the definition for “dwelling unit” in section 441.500.6 has been held to be instructive. Prop. Exch. & Sales, Inc., 863 S.W.2d at 15. That section defines a “dwelling unit” as the “premises or part thereof occupied, used, or held out for use and occupancy as a place of abode for human beings, whether occupied or vacant.” Section 441.500.6, RSMo Cum. Supp. 2014.10 The use of this term in section 535.300 indicates that the legislature did not intend for it to apply to non-dwelling units, such as those involved in commercial tenancies. PDQ Tower Servs., *8Inc. v. Adams, 213 S.W.3d 697, 699 (Mo.App.2007). “ ‘The statute’s broad remedial purpose is to lay the groundwork for landlord-tenant relations and to provide a more equal footing for both. The nature of the landlord-tenant relationship requires such accountability.’ ” Id. (quoting Battis, 832 S.W.2d at 940). “This type of approach where the legislature protects the tenant from the landlord’s interests while preserving the landlord’s interests is usually limited to residential tenants.” PDQ Tower Servs., Inc., 213 S.W.3d at 699-700. Based upon these observations and that “[c]ommercial tenants usually are on equal footing with landlords,” the western district of our court held that section 535.300 was intended by the legislature to apply only to residential tenancies and not to commercial tenancies. Id. This limited application of section 535.300 also indicates an intent by the legislature to control a consumer relationship in a manner such that the requirements of the statute designed to protect a tenant’s interests cannot be contractually defeated by a landlord who may be in a superior bargaining position and with whom the tenant is not on equal footing. The legislature correspondingly protected the landlord’s interests in this type of consumer transaction, however, by exclusively limiting a tenant’s recovery for any violation to not more than twice the security deposit amount. See Prop. Exch. & Sales, Inc., 863 S.W.2d at 14-15 (stating section 535.300 is the exclusive remedy for tenants to recover security deposits); see also Battis, 832 S.W.2d at 940-41 (stating section 535.300 limits recovery to not more than twice the security deposit amount).
We now turn to the specific language used in section 535.300 that shows a legislative intent against contractual modification of its requirements. First, the third subsection of section 535.300 provides that the landlord may withhold from the security deposit only such amounts as are reasonably necessary to remedy a tenant’s default in the payment of rent; to restore the dwelling unit to its condition at the commencement of the tenancy, ordinary wear and tear excepted; and to compensate the landlord for actual damages sustained as a result of the tenant’s failure to give adequate notice to terminate the tenancy pursuant to law or the rental agreement. Use of the word “only” implies that the legislature intended to foreclose security deposits being used for any other purposes.
Second, the seventh subsection refers to funds “however denominated.” Section 535.300.7. This broad language indicates that the legislature intended to control security deposits regardless of the contractual language used in the lease. The implication is that once funds meet all the definitional components of a “security deposit” as set forth in this subsection, those funds cannot then escape the security deposit requirements set forth in section 535.300.
Finally, other states have security deposit statutes that specifically provide for parties to be able to contract otherwise.11 The legislature’s failure to include such a provision here does not bespeak permission to contract around the statute, but rather supports the legislature’s intent not to allow parties to do so.
*9For these reasons, we hold that the security deposit withholding requirements imposed by subsection 535.300.3 are mandatory and may not be varied or altered by contract between the landlord and tenant.12 Property Owners’ first asserted legal basis in support of summary judgment — that contract terms control over the provisions of section 535.300.3 — is not correct and, therefore, does not entitle Property Owners to summary judgment as a matter of law.
Property Owners’ second legal basis in support of summary judgment asserts that even if they cannot contract around the requirements of section 535.300.3 or Tenants cannot waive the protections therein, they are entitled to judgment as a matter of law because the statute was not violated. Property Owners argue that section 535.300.3 was not violated for two reasons.
First, Property Owners contend that because “ordinary wear and tear” was not defined within the statute, the parties may contractually define ordinary wear and tear in any manner they choose in the lease agreements.13 This argument fails because, although “ordinary wear and tear” was not given a statutory definition within section 535.300, the term has long been used in legal documents in Missouri, see e.g., Goddin v. Welton, 34 Mo. 448, 449 (1864), and its plain and ordinary meaning is commonly understood without further definition.
The existence of ordinary wear and tear is a factual determination made on a case-by-case basis. Monnig v. Easton Amusement Co., 27 S.W.2d 495, 497 (Mo.App.1930). In reviewing this factual determination on appeal, cases from Missouri long before the enactment of section 535.300 used various constructs to describe the common understanding of the ordinary meaning of what “ordinary wear and tear” is and what it is not. See Hughes v. Vanstone, 24 Mo.App. 637, 640-41 (1887) (“[a] tenant, unless the contract otherwise provides, ‘is merely required to keep the premises'in as good repair as he receives them, ordinary wear and tear and accidental injuries excepted. In other words, he is only so bound to so use the premises as not be guilty of voluntary waste. He is not bound to replace an old floor with a new one, or to rebuild a fallen chimney, or to put on a new roof, or to put in new sashes or doors in place of those that are worn out, nor to rebuild or repair premises accidentally destroyed or injured by fire or other cause not resulting from his negligence.’ Wood on Land. & Ten., sect. 368. And in the same section it is stated by the author that a tenant is not ‘called upon to make lasting or substantial repairs, as, to put on a new roof, or make what are called general repairs.’ ”); Thompson v. Cummings, 39 Mo.App. 537, 539 (1890) (“Marking and ploughing up young apple trees by cultivating a crop among them certainly ought not to be the ordinary “wear and tear’ of a farm rented for a *10year”); Blanchon v. Kellerstrass Distilling Corp., 200 Mo.App. 610, 208 S.W. 484, 487 (1919) (“mere general wear and tear from ordinary use”); Gralnick v. Magid, 292 Mo. 391, 238 S.W. 132, 134-35 (1921) (“[tjhese are the words which are found in the ordinary lease, regarding the ordinary wear and tear of leased premises; that is, such as the necessary painting to preserve the buildings against accidental breaking of glass, papering when necessary, or accidental or natural repairs of floors, doors, stairs, locks, hinges, etc., which need repairing because of the ordinary use and wear of the premises”); Courtney v. Ocean Accident & Guar. Corp., 346 Mo. 703, 142 S.W.2d 858, 861 (1940) (“Webster’s New International Dictionary defines the word ordinary as ‘belonging to what is usual; having or taking its place according to customary occurrence or procedure; usual, normal.’ The word extraordinary is defined by Webster as ‘beyond or out of the common order or rule; not of the usual, customary, or regular kind; not ordinary.’ ”); Ten-Six Olive, Inc. v. Curby, 208 F.2d 117, 122 (8th Cir.1953) (“The ‘good condition’ clause provided that the premises should be surrendered in as good condition as received, ordinary wear and tear excepted. It did not provide they should be returned in the same condition, or like condition”).
“The legislature is presumed to know the existing law when enacting a new piece of legislation.” Greenbriar Hills Country Club v. Dir. of Revenue, 47 S.W.3d 346, 352 (Mo. banc 2001). Given the long-standing common understanding as to the ordinary meaning of the phrase “ordinary wear and tear,” it did not need any further definition in section 535.300. Moreover, if parties were able to contractually redefine this term contrary to its ordinary meaning, it would frustrate the purpose of the statute and the legislative intent for enacting it, i.e., balancing the interests of landlords and tenants in a residential tenancy, as discussed infra.14 Property Owners, therefore, cannot demonstrate compliance with section 535.300.3 by contractually crafting their own definition of “ordinary wear and tear.”
Second, Property Owners argue that they complied with the requirements of section 535.300.3 because they either expended in some manner or returned all of Tenants’ security deposits. In support of that argument to the trial court, Property Owners relied on Battis v. Hofmann for the assertion that: “[A] cause of action under § 535.300, RSMo. can only lie for funds which are wrongfully withheld and which are neither returned to the tenant nor expended by the landlord.” After a thorough reading of Battis, we see no basis in it from which to conclude that a landlord may comply with section 535.300 by expending the lease deposit for any purpose. Rather, a logical view of section 535.300.3 and its use of the word “only,” as discussed infra, would yield a plain and ordinary meaning that a landlord may only expend funds for the express purposes set forth section 535.300.3.
*11On appeal, Property Owners re-characterize their Battis argument to assert that because carpet cleaning funds were withheld in Battis, the Battis court implicitly approved either that carpet cleaning was not expended for ordinary wear and tear or that lease terms are enforceable regardless of the terms of the statute. The sole issue presented to the Battis court was whether section 535.300 provides a mandatory penalty for retention of a security deposit beyond the thirty-day period prescribed by the statute for its return. Battis, 832 S.W.2d at 939. In resolving this issue, the Battis court did not implicitly approve any other issues that were not presented to it or that were not necessary to the resolution of the issue that was presented to it.
Property Owners were entitled to judgment as a matter of law only if the uncon-troverted facts demonstrated that there was no genuine issue of fact as to whether the non-refunded amounts of the Tenants’ security deposits were expended by Property Owners for one of the three purposes authorized by section 535.300.3. There are no facts in the summary judgment record supporting that Property Owners expended any part of the security deposits for the first or third authorized purposes under section 535.300.3. While the second purpose in that subsection authorizes Property Owners to expend security deposit funds “[t]o restore the dwelling unit to its condition at the commencement of the tenancy,” it also places an “ordinary wear and tear excepted” limitation on that authority. It was, therefore, incumbent upon Property Owners to demonstrate that, based upon the summary judgment record, there is no genuine issue of fact that the non-refunded security deposits were not expended to remedy “ordinary wear and tear.” They have failed to do so, primarily because they were focused upon demonstrating there was no genuine issue of fact that their expenditures were in accordance with the terms of the lease agreements.15 As discussed infra, the provisions in the lease agreements were immaterial as to whether Property Owners were entitled to summary judgment as a matter of law because their expenditure of Tenants’ security deposits were in accordance with the requirements of section 535.300.3. Tenants’ first point is granted, and the trial court’s judgment granting Property Owners’ motion for summary judgment in full is reversed.
Authority to Review Class Certifícation Denial is not Restricted to Supreme Court
In what Tenants characterize as an “excess of caution,” they sought to appeal the trial court’s denial of class certification in its judgment under section 512.020(3) and Rule 52.08(f) authorizing a permissive interlocutory appeal from an order granting or denying class-action certification16 and also under section 512.020(5) allowing an appeal as a matter of right from a final *12judgment.17 Permitting a section 512.020(3) and Rule 52.08(f) interlocutory appeal, however, is within the discretion of this Court. Section 512.020.3(a); Rule 52.08(f); State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 859 (Mo. banc 2008). Rule 52.08(f) directs that the method by which to obtain that permission is governed by Rule 84.035. In accordance with Rule 84.035, Tenants filed a petition for permission to appeal the denial of class certification. See Rule 84.035(a) and (b). Property Owners filed a response to that petition as allowed by Rule 84.035(c). By this court’s order exercising its section 512.020(3)(a) and Rule 52.08(f) discretion, Tenants’ petition for permission to appeal was denied.
In this section 512.020(5) appeal of the trial court’s final judgment that included the order denying Tenants’ motion for class certification, Property Owners contend that because Tenants’ Rule 84.035(a) petition for permission to appeal that denial of class certification as provided by section 512.020(3) and Rule 52.08(f) was denied by this court, further review of class certification is restricted to a petition for original remedial writ filed with the Supreme Court as required by Rule 84.035(j)18 and may not be addressed by this court in this appeal. This is because, Property Owners assert, without citation to any relevant legal authority, “[t]he price for allowing permissive interlocutory appeals [i]s giving up an appeal as a matter of right at the conclusion of the case.” Property Owners misconstrue the scope of Rule 84.035.
“ ‘The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists.’ ” Coca-Cola Co., 249 S.W.3d at 859 (quoting Riverside —Quindaro Bend Levee Dist. v. Intercont’l Eng’g Mfg., 121 S.W.3d 531, 532 (Mo. banc 2003), and citing Rule 81.01). The scope of Rule 84.035 must be read in context with the statutory authorization for a permissive interlocutory appeal in section 512.020(3), as implemented by Rule 52.08, of an interlocutory trial court order granting or denying class certification. Rule 52.08(c)(1) requires that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” Such an order is interlocutory until a decision is *13made on the merits of the case. See Rule 52.08(e)(1) (“An order under this Rule 52.08(c)(1) may be conditional and may be altered or amended before the decision on the merits.”). Section 512.020(3) and Rule 52.08(f) function to create the potential for an interlocutory appeal from an interlocutory order granting or denying class certification. Coca-Cola Co., 249 S.W.3d at 859. Nothing in either indicates that they function to impinge upon or foreclose any other statutorily granted right to appeal. In that context, the purpose of Rule 84.035 is to set forth the procedural manner in which a section 512.020(3) and Rule 52.08(f) interlocutory appeal is to be taken. Rule 84.035, therefore, does not impinge upon or foreclose any other statutorily created avenues of review, such as an appeal as a matter of right of a final judgment created by section 512.020(5). We conclude that Rule 84.035(j) only applies to the procedure for seeking review of an interlocutory order granting or denying class certification and has no application in the context of an appeal of a final judgment as a matter of right as granted by section 512.020(5).
In their briefs, Tenants and Property Owners address and discuss the relative merits of class certification and whether the class as proposed by Tenants meets the requirements under Rule 52.08. The trial court’s denial of class certification in this case, however, was not a reflection of the trial court’s decision on the merits of class certification. Rather, the trial court’s decision not to certify a class appears to flow from its recognition that if summary judgment was properly granted in favor of Property Owners, then no wrong can exist for which a class should be certified. Because we reverse the summary judgment decision for the reasons stated above, the denial of class certification erroneously premised upon that grant of summary judgment must also be reversed and the case remanded to the trial court for a Rule 52.08 merits-based decision on class certification in light of the mandatory requirements of section 535.300.3.
Ruling on Statute of Limitations Remains Interlocutory
Because we reverse summary judgment for the reasons discussed above, it would be premature for us to consider the applicable statute of limitations. Upon remand to the trial court, there will no longer be a final judgment in the case. Because any order or judgment entered by a trial court before a judgment becomes final and ap-pealable is interlocutory, State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232 (Mo. banc 1969), the trial court “may open, amend, reverse or vacate” the order, Around the World Importing, Inc. v. Mercantile Trust Co., 795 S.W.2d 85, 88 (Mo.App.1990). As our Supreme Court stated in Schweitzer.
Logic and justice would seem to indicate that a trial court should be permitted to retain control of every phase of a case so that it may correct errors, or, in its discretion, modify or set aside orders or judgments until its jurisdiction is extinguished by the judgment becoming final and appealable. Of course, any such action should be taken only after proper notice to the parties.
438 S.W.2d at 232. Because the trial court has authority upon remand to reconsider its ruling on the applicable statute of limitations, any opinion issued by this court on that matter would be advisory, and we “cannot and do not render advisory opinions.” In re Estate of Van Cleave, 574 S.W.2d 375, 376 (Mo. banc 1978).
Decision
The trial court’s judgment is reversed in all respects, and the case is remanded for *14farther proceedings consistent with this opinion.
NANCY STEFFEN RAHMEYER, J.— concurs
DON E. BURRELL, J. — concurs
. Tenants assert in their first point that a landlord-tenant relationship exists between them and all respondents as related to their respective individual lease agreements. Although Property Owners’ Motion for Summary Judgment asserted the lack of a landlord-tenant relationship as a reason supporting partial summary judgment as to some of the respondents, the trial court never decided that issue, but rather granted summary judgment “in Full” in favor of all respondents for other reasons as discussed in this opinion infra.
. References to section 535.300 are to RSMo 2000.
. These agreements each contained a purported waiver of Tenants' rights to be present at an inspection of the respective premises at the conclusion of the lease. The parties discuss the right to be present for such an inspection in their briefs; however, we have not found where the validity of these waivers was raised and challenged in the pleadings and put at issue in this case.
. The lease agreement refers to this amount as a security deposit. In order to avoid confusion with the section 535.300 statutory definition of a security deposit, we refer to this amount as the "lease deposit.”
. Rule references are to Missouri Court Rules (2014).
. We review the summary judgment record as developed in accordance with the requirements of Rule 74.04(c). " 'The purpose of Rule 74.04(c) is to provide some assurance that opposing counsel, the trial court, and the appellate court can ascertain the specific basis or bases on which a movant alleges he or she is entitled to summary judgment.' ” Bilyeu v. Vaill, 349 S.W.3d 479, 482 (Mo.App.2011) (quoting Siemens Bldg. Tech., Inc. v. St. John’s Reg’l Med. Ctr., 124 S.W.3d 3, 8 (Mo.App.2004)). Rule 74.04(c)(1) requires that a "motion for summary judgment shall summarily state the legal basis for the motion.”
If a party seeks to expand the grounds for a summary judgment motion or enlarge the record after the motion and response has been filed, allowing such an expansion is prejudicial. Cross v. Drury Inns, Inc., 32 S.W.3d 632, 637 (Mo.App.2000). Allowing the movant to raise new factual issues, grounds or arguments within summary judgment proceedings, without offering the other party the opportunity to respond, violates Rule 74.04 and results in prejudice for the opposing party. Id. If a party fails to comply with Rule 74.04(c) and such failure is prejudicial, then reversal is required. Morley v. Henske, 704 S.W.2d 298 (Mo.App.1986).
Wallingsford v. City of Maplewood, 287 S.W.3d 682, 686-87 (Mo. banc 2009). The failure to raise an argument for summary judgment in the trial court in the manner required by Rule 74.04(c)(1) precludes its review on appeal. Peterson v. Discover Prop. & Cas. Ins. Co., No. WD 76852, 2015 WL 161013, at *11 (Mo.App.W.D. Jan. 13, 2015). Therefore, we confine our review of the trial court’s grant of summary judgment here to the bases raised in the summary judgment record before the trial court and now before us.
. Tenants initially argue that "[t]here is no genuine dispute of material fact that [Property Owners] withheld sums from [Tenants’] security deposits for reasons not specifically allowed by [section 535.300].” (Emphasis added). Outside consideration of a motion for summary judgment in favor of Tenants, which was not before the trial court and is not before us, the determination of this factual issue is for the finder of fact. In reviewing the trial court’s grant of summary judgment in favor of Property Owners that is currently before us, we are concerned with the existence of a genuine issue of material fact as to a proposition necessary to support that judgment.
. With this concession, the question is saved for another day as to whether nonrefundable fees paid by a tenant to a landlord in addition to the monthly rental and as seemingly contemplated by the express terms of the lease agreements here, "secure the performance of any part of the rental agreement,” as required by subsection 535.300.7 to meet the statutory definition for a “security deposit” and thereby be subject to the security deposit requirements imposed by the other provisions of section 535.300. See generally Peggy L. England, Tenants' Rights Under the Missouri Security Deposit Statute, St. Louis Univ. L.J. 1035 (1984).
. Property Owners allege that the following rights, among others, are subject to waiver: (1) The right to open access to courts; (2) The right to redress in court for damages not yet suffered; (3) The Fifth Amendment right to remain silent; (4) Protections against war-rantless search and seizure; (5) The right to a trial by jury; (6) The protections of statutes of limitation; (7) The right to expected venue.
. When Prop. Exch. & Sales, Inc. was decided, this definition was numbered as subsection 5. Section 441.500.5, RSMo Cum.Supp. 1992.
. See e.g., Idaho Code Ann. § 6-321, Kan. Stat. Ann. § 58-2550(b), Me.Rev.Stat. tit. 14 § 6033(2), Minn.Stat. § 504B.178(b)(1), N.J. Stat. Ann. § 46:8-21.1, Okla. Stat. tit. 41 § 115(B), Or.Rev.Stat. § 90.300(7)(c)(A), 68 Pa. Cons.Stat. § 250.512(a), S.D. Codified Laws § 43-32-24, Tex. Prop.Code Ann. § 92.104, Utah Code Ann. § 57-17-3, Va. Code Ann. § 55-248.15:1, W.Va.Code § 37-6A-2(b)(5), Wyo. Stat. Ann. § 1-21-1208(a), Wisc. Stat. § 704.28.
. Because our decision on the narrow issue in this appeal only requires it, our holding is limited only to the provisions of subsection 3 of section 535.300.
. In their initial brief, Tenants characterize Properly Owners’ position as "[Property Owners] try to reduce ‘ordinary wear and tear’ to nothing by stating in the lease agreements that plain old dirt, even one crumb of it, is not ‘ordinary wear and tear.' ” In their responsive brief, Property Owners do not deny this characterization and appear to confirm it by stating, “[t]he contracts specify that dirt in the carpet or elsewhere are not ‘normal wear & tear’, and carpet cleaning is specifically authorized by the tenant. The contract merely defined that which the Legislature failed to define, and that definition must now control because [Tenants] agreed to it in the contract”
. Since the enactment of section 535.300 in 1983, the Supreme Court of Missouri has addressed the common understanding of the "ordinary meaning" attached to the phrase "ordinary wear and tear” observing:
" ‘Ordinary wear and tear’ includes any usual deterioration from use of the premises during the lease period[.]” 49 Am. Jur.2d, Landlord and Tenant Section 893. It means "normal depreciation.” Id. See also Black’s Law Dictionary 1593 (6th ed. 1990) (" 'Natural wear and tear’ means deterioration or depreciation in value by ordinary and reasonable use of the subject matter.”).
Brizendine v. Conrad, 71 S.W.3d 587, 592 n.4 (Mo. banc 2002).
. As noted, infra, “ordinary wear and tear” is a fact determination. Monnig, 27 S.W.2d at 497. In the absence of a direct admission or stipulation as to its non-existence by Tenants, it is an inference drawn from the totality of the circumstances in this case. Where the facts, even if uncontroverted, support an inference either way, summary judgment would be inappropriate. Baca Chiropractic, 317 S.W.3d at 677 (non-moving party given the benefit of all inferences which may reasonably be drawn from the record).
. "The statute and the rule authorize a new interlocutory appeal regarding class certification[.]" State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 859 (Mo. banc 2008). They "do not permit an appeal of certification orders as of right; they merely create the potential for an appeal.” Id.
. As pertinent here, section 512.020 provides:
Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any:
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(3) Order granting or denying class action certification provided that:
(a) The court of appeals, in its discretion, permits such an appeal; and
(b) An appeal of such an order shall not stay proceedings in the court unless the judge or the court of appeals so orders;
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(5) Final judgment in the case or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.
Rule 52.08(f), in pertinent part, provides: "Appeals. An appellate court may permit an appeal from an order of a circuit court granting or denying class action certification under this Rule 52.08 if a petition is timely filed as provided in Rule 84.035."
. Rule 84.035© provides: "If the petition to appeal is denied, further review, if any, of the trial court’s order granting or denying class action certification shall be by petition for original remedial writ filed directly in this Court.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283942/ | ORDER
PER CURIAM
Joseph Afshari (“Landowner”) appeals from the trial court’s order and judgment affirming an administrative decision by the St. Louis County Department of Public Works (“St. Louis County”) ordering demolition of seven buildings on Landowner’s property. 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 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283943/ | *15
ORDER
PER CURIAM.
Manuel Cazares appeals from the motion court’s judgment denying his motion for post-conviction relief after an eviden-tiary hearing. We have reviewed the briefs of the parties and the record on appeal, and we conclude the motion court’s findings of fact and conclusions of law were not clearly erroneous. An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The decision is affirmed. Mo. R. Civ. P. 84.16(b) (2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283945/ | ORDER
Per Curiam:
Michael Lee Wilson appeals the circuit court’s judgment convicting him of possession of burglar’s tools. We affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283947/ | PER CURIAM
This case, which is subject to the Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code ch. 74, involves the adequacy of an expert report. The issue is whether the trial court abused its discretion by denying the defendants’ motion to dismiss in light of conflicting statements in the plaintiffs’ expert report, some of which the defendants alleged, and the court of appeals held, failed to link the expert’s conclusions to the underlying facts.
Nicholas Van Ness died from pertussis (whooping cough) when he was two months old. His parents, Melissa and Ronald Van Ness, sued Kristin Ault, D.O., and her employer, ETMC First Physicians, alleging that Dr. Ault’s negligence caused Nicholas’s death and that ETMC was vicariously liable for her negligence. The Van Nesses timely served Dr. Ault and ETMC with an expert report by Alvin Jaffee, M.D., then served an amended report after the trial court sustained the defendants’ objections to the original. The defendants again moved to dismiss the suit, contending that Dr. Jaffee’s opinions as to causation were conclusory because the amended report (the report) failed to link his opinions to the underlying facts. The trial court denied the motion. On interlocutory appeal, see Tex. Civ. Prac. & Rem. Code § 51.014(a)(10), the court of appeals reversed and ordered the suit dismissed. ETMC First Physicians v. Van Ness, 461 S.W.3d 152 (Tex.App.-Tyler 2014). We reverse the judgment of the court of appeals.
A plaintiff asserting a health care liability claim must serve each defendant with an expert report that includes “a fair summary of the expert’s opinions ... regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the- standards, and the causal relationship between that failure and the injury, harm, or damage claimed.” Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). A challenge to the sufficiency of a report must be sustained if “the report does not represent an objective good faith effort to comply with the [statutory requirements].” Id. § 74.351(l). A report is a good faith effort if it provides adequate information to “inform the defendant of the specific conduct the plaintiff has called into question, ... provide[s] a basis for the trial court to conclude that the claims have merit,” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam), and “does not con*142tain a material deficiency,” Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex.2011).
A trial court’s ruling on the sufficiency of an expert’s report is reviewed for abuse of discretion. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex.2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Under that standard, appellate courts defer to the trial court’s factual determinations if they are supported by evidence, but review its legal determinations de novo. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex.2011). A trial court abuses its discretion if it rules without reference to guiding rules or principles. Samlowski, 332 S.W.3d at 410. An expert must explain, based on facts set out in the report, how and why the breach caused the injury. See Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex.2010). A bare expert opinion that the breach caused the injury will not suffice. Id.
Dr. Jaffee set out the following facts in his report as those on which he based his opinions. Nicholas was born on November 13, 2009. He was seen by Dr. Ault on November 19 and November 30 for regular checkups, and Dr. Ault noted no concerns at either visit. However, the records from his four-week checkup on December 11 reflected that Nicholas had a fever with a temperature of 100.2 degrees, was coughing and suffering from nasal congestion, and was exposed to “sick contacts at home.” According to an affidavit submitted by Nicholas’s mother, she reported to Dr. Ault on December 11 that Nicholas had been coughing to the point that he could not breathe and was exhibiting facial discoloration. Nothing indicated that Dr. Ault performed any laboratory or diagnostic tests on Nicholas.
The Van Nesses returned to see Dr. Ault on December 15 and explained that Nicholas’s symptoms had worsened. Dr. Ault physically examined Nicholas, but again did not perform or order any tests. On December 20, the Van Nesses took Nicholas to East Texas Medical Center Hospital in Jacksonville, where he was treated for acute pneumonia, wheezing, and tachycardia. The following day he was transferred to the Children’s Medical Center Hospital in Dallas, where he died on January 20, 2010.
The defendants objected to Dr. Jaffee’s report on the ground that it failed to explain how Dr. Ault’s alleged negligence caused Nicholas’s death, specifically contending that Dr. Jaffee’s medical conclusion was not linked to the facts of the case and was conclusory. The defendants moved for dismissal of the suit. The trial court denied the motion. The court of appeals reversed and rendered judgment dismissing the Van Nesses’ suit with prejudice, agreeing with the defendants that Dr. Jaffee’s report was deficient as to the causation element. 461 S.W.3d at 143.
Dr. Jaffee’s nine-page report generally discusses pertussis, including its diagnosis and treatment. His report also contains separate sections addressing the applicable standard of care, breach of the standard, and causation. In the standard of care section, he opined, in part, that
[t]he applicable standard of care as to Kristin Ault, DO is upon evaluation of a one month old child who presents with symptoms such as a history of fever, cough and nasal congestion, compounded by sick contacts at home, is to perform laboratory tests, administer antibiotics prophylaetically while the tests are pending and/or to admit the infant to a medical facility....
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... [H]ad Dr. Ault, performed any of these tests, it would have shown Borde-tella pertussis at a treatable stage and but for the failure to treat Nicholas Van *143Ness as outlined above he would have had a 51% or more chance of survival.
In the breach section, Dr. Jaffee states again that Dr. Ault breached the standard of care in several ways on both December 11 and December 15, including failing to have various laboratory diagnostic tests performed on Nicholas and failing to administer antibiotics prophylactieally while the tests were performed. Finally, in the causation section of his report, Dr. Jaffee repeats his opinion that Dr. Ault should have taken specified actions including running diagnostic tests on Nicholas and administering antibiotics prophylactieally. He also states, “It is within a reasonable degree of medical certainty and/or with 51% certainty that had Dr. Ault appropriately evaluated and diagnosed him, Nicholas Van Ness would have received the appropriate dosage and treatment of antibiotics in a timely manner, and he would not have expired on January 20, 2010.”
As support for its conclusion that the report was deficient as to causation, the appeals court focused on several statements from the report, including the following:
• “prevention of pertussis via vaccination is of primary importance because treatment is of little benefit to the person infected”;
• “unvaccinated or incompletely vaccinated infants younger than 12 months of age have the highest risk for severe and life-threatening complications and death”;
• “A reasonable guideline is to treat ... infants aged less than [one] year within six weeks of cough onset”; and
• “antibiotics may ‘shorten the duration of infectiousness and are thus recommended.’ ”
461 S.W.3d 152.
In reaching its conclusion as to Dr. Jaf-fee’s report, the court of appeals noted that Nicholas began receiving treatment on December 20 in the Jacksonville hospital. It further identified December 20 as being approximately three weeks after Nicholas’s visit with Dr. Ault on November 30, at which time he was not yet feverish, coughing, or presenting other symptoms. Given the temporal sequence of events, the appeals court reasoned that treatment beginning on December 20 “was well within the reasonable guideline of treating the disease within six weeks of cough onset” specified by Dr. Jaffee and
Dr. Jaffee’s conclusion that Nicholas would not have died had Dr. Ault began treatment on December 11, 2010, or December 15, 2010, does not follow from the aforementioned discussion of the facts in his report.
Rather, because treatment is of little benefit to the person affected, the facts lead to the conclusion that had Dr. Ault provided antibiotics to Nicholas on either of those dates, at most Nicholas’s symptoms may have lessened and his ability to spread the disease to others may have diminished. The facts discussed in the report do not show that treatment would have altered the course of the disease, but lead to the conclusion that Nicholas was unfortunately one of those infants who did not survive despite timely treatment.
461 S.W.3d at 144.
The court of appeals focused on Dr. Jaffee’s statements that treatment with antibiotics is of little benefit and only would have lessened Nicholas’s symptoms and reduced the contagiousness of his pertussis. 461 S.W.3d 152. Based on those statements, the court concluded that the report showed that treatment earlier than December 20 would not have prevented Nicholas’s death; thus, the report did not *144demonstrate a causal relationship between Dr. Ault’s alleged negligence and Nicholas’s death. 461 S.W.3d 152.
In its analysis however, the appeals court did not fully credit all of Dr. Jaffee’s factual statements and opinions. In particular, the court did not credit statements and opinions from Dr. Jaffee’s report to the effect that (1) a stage existed at which pertussis could be treated with antibiotics; (2) if Dr. Ault had given Nicholas antibiotics prophylactically and ordered testing, the tests would have shown his pertussis was at a treatable stage; and (3) Nicholas would have had a 51% chance of recovery if Dr. Ault had started Nicholas on prophylactic antibiotics and continued antibiotics as indicated by results of the tests.
Dr. Jaffee’s statement about antibiotics having little effect on pertussis other than reducing the potential for spreading the disease is in tension with his statements that Nicholas was treatable with antibiotics and would have had a 51% chance of survival if Dr. Ault had administered them. The first-referenced statement, by itself, indicates that whatever Dr. Ault did on December 11 or December 15 would have had little effect on the course of Nicholas’s illness and would not have prevented his death. Accordingly, as the court of appeals explained, that statement standing alone would not demonstrate that under the facts as set out in the report Dr. Ault’s alleged negligence was causally related to Nicholas’s death, and his causation opinion would be conclusory.
However, Dr. Jaffee’s report also set out that Nicholas’s illness was treatable when Dr. Ault saw him in December, and starting antibiotics at that time and continuing them as indicated by diagnostic testing probably would have prevented Nicholas’s death. Given these parts of the report, the trial court could have determined that Dr. Jaffee’s opinions were linked to the underlying facts and explained why and how Dr. Ault’s timely treatment of Nicholas with antibiotics would have prevented his death.
Under the circumstances, the trial court had discretion — indeed it was incumbent on the trial court — to review the report, sort out its contents, resolve any inconsistencies in it, and decide whether the report demonstrated a good faith effort to show that the Van Nesses’ claims had merit. Considering both the report’s explication of how Dr. Ault’s alleged negligence was causally related to Nicholas’s death and the conflicting statements as to that causal relationship, we conclude that the trial court did not abuse its discretion by determining that the report was not conclusory, but was a good faith effort to comply with the TMLA’s requirements. Thus the trial court did not abuse its discretion by denying Dr. Ault’s motion to dismiss, see Samlowski, 332 S.W.3d at 410, and the court of appeals erred by reversing the trial court’s judgment.
We grant the petition for review. Without hearing oral argument, see Tex. R. App. P. 59.1, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2424098/ | 17 A.3d 781 (2011)
198 Md. App. 400
John C. DAVIES
v.
STATE of Maryland.
No. 1818, September Term, 2010.
Court of Special Appeals of Maryland.
April 5, 2011.
*783 Tobin J. Romero (Williams & Connolly LLP, on the brief), Washington, DC, for Appellant.
Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: DEBORAH S. EYLER, MEREDITH, and CHARLES E. MOYLAN, JR., (Retired, Specially Assigned), JJ.
MEREDITH, J.
After a jury trial in the Circuit Court for Montgomery County, John C. Davies, appellant, was convicted of felony theft, embezzlement, and unauthorized use of a credit card. The circuit court sentenced Davies to five years' imprisonment, with all but eighteen months suspended. Davies noted a timely appeal.
On appeal, Davies presented six questions for review, including the following three, which we have renumbered:
[1] Did admission of an out-of-court written statement that certain creditcard charges were "unauthorized" (which unidentified declarants prepared at the request of the State for use in the prosecution) violate the hearsay rule and the Confrontation Clause?
[2] Did the court erroneously quash a defense subpoena for evidence of bias and motive regarding the State's key witnesses on the grounds that the State, which did not obtain this evidence, allegedly provided in discovery the evidence that it had obtained?
[3] Did the court erroneously exclude evidence and prevent cross-examination regarding the bias and motive of the State's key witnesses to discredit Mr. Davies and to falsely accuse him of unauthorized credit card use [where the evidence would show that] he had previously accused them of financial irregularities and mismanagement?
We answer the first question in the affirmative, and we will reverse the circuit court's judgment. Because the second question is likely to arise again in the event of a new trial, we will address it, and answer in the affirmative. The third question has not been adequately preserved for our review, but can be pursued by Davies at the time of new trial.[1]
Facts and Procedural History
Immanuel Church has approximately 4000 members and eight pastors. Located in Montgomery County, Maryland, it has annual revenues of approximately $8 million. In March 2007, the Church hired *784 John Davies to manage its finance department. The Church's finance department has several employees who "handle receivables, payables, payroll, [and] various other duties."
The finance department administered the Church's credit card accounts, including one with Capital One VISA. If Church employees wanted to make a purchase using the Capital One card, they were supposed to submit request forms (sometimes referred to as "authorized user documents") for the finance department's approval, and then sign out the credit card. After making a purchase, the employees were expected to return the card to the finance department with the receipt for the purchase. A finance department staff member was then supposed to enter the authorization information into the Church's computer accounting system.
In July 2008, Davies resigned from his position as finance manager. Pastor Guy Careywho oversaw the finance department and was a member of the Church's executive teamassumed the duties of the finance manager, and began reviewing the credit card statements for the Capital One account. Upon reviewing these statements, Pastor Carey noticed charges which he questioned. According to Pastor Carey, he also became aware for the first time that Davies had been added to the list of persons authorized by Capital One to use the Church's credit card.
The Church reported to the Montgomery County Police Department that Davies had made unauthorized credit card purchases. The police requested that the Church prepare a spreadsheet summarizing which of the charges on the Capital One account were unauthorized. In response, the Church gave the police a spreadsheet "prepared by the finance department and others," which was comprised of six columns labeled: "Date," "Vendor," "Description," "Charge amount," "Payments," and "Employee Dishonesty."
Pastor Carey said that the Church took the following steps to compile the spreadsheet. The Church obtained credit card statements from Capital One for the period of February 2008 to September 2008. The chart's "Date," "Vendor," "Charge amount," and "Payments" columns were copied directly from the Capital One statements. Church staff reviewed each of the charges listed on the statements to determine which of the charges were not supported by proper documentation in the Church's records of approved credit card purchases. In order to do so, Church staff reviewed various finance department records to determine whether the required authorized user documents existed for each of the purchases. If the forms could not be found, Church staff listed the dollar amount of the purchase in the "Employee Dishonesty" column. Church staff also attempted to learn the purpose for each of the charges by calling the vendor at which the credit card was used and/or by referring to the Church's own records. If Church staff could find information regarding the purpose for the charge, that information was listed in the "Description" column. For instance, one entry in the Description column indicated that, on March 24, 2008, there was a charge of $227.00 for "3rd Party Collection J. Dav," and the corresponding amount $227.00 appears in the column under Employee Dishonesty.
Based on the information provided to them by the Church, the police obtained and executed a search warrant at Davies's home. Police recovered evidence of items that had been purchased or paid for with the Church's Capital One VISA. The evidence that was seized included life insurance documents, car insurance documents, *785 a bill from a plumber who had performed work on Davies's home, and bottles of mail-order acne medication.
Prior to trial, Davies served the Church with a subpoena to produce, among other information, the "[f]orms or other documents reflecting requests for permission to use, or approval of the use of, the Church Credit Cards." Davies also served a subpoena upon the Church's outside accountant commanding the accountant to produce, among other documents, the Church's 2006 and 2007 financial statements, its correspondence with Davies, and reports made to the accountant by Davies during his tenure. The State successfully moved to quash the subpoenas.
The State used the Church's spreadsheet described above to create two charts that were offered as exhibits at trial. The first chart, which was admitted into evidence over Davies's objection as State's Exhibit 3, is a 6-page document that contains the same information as the spreadsheet, but the label of the "Employee Dishonesty" column had been changed to "Unauthorized Charges." The second chart, which was admitted into evidence over Davies's objection as State's Exhibit 4, is a one-page summary, derived from State's Exhibit 3, listing the subtotal of unauthorized charges for each statement period.
Davies moved in limine to exclude State's Exhibits 3 and 4. The circuit court reserved ruling on the motion. At trial, the State elicited testimony from Pastor Carey to lay a foundation for the introduction of the charts. Pastor Carey explained that unidentified persons at the Church gathered the information shown in the "Description" and "Unauthorized Charges" columns in State's Exhibit 3. During this direct examination, the testimony was as follows:
[The State]: Okay. Now, this column here, "description," what is in that column?
[Pastor Carey]: Description was entered by staff is, if they were able to determine something in either a phone call to a vendor or from direct records.
[Defense Counsel]: Objection. Move to strike.
THE COURT: I'll sustain the objection.
[The State]: Okay.
BY [The State]:
Q. The information in the "description" column that isphrase it this way. Where the church was able to confirm what the purposes of charges that were on the initial credit card statement, were you able to find out, this is a legitimate charge, basically. Did the church then make a notation in this "description" column as to why that was a legitimate charge about, that appeared on the credit card statement?
[Defense Counsel]: Objection.
[Pastor Carey]: There were two functions.
THE COURT: Overruled....
[Pastor Carey]: There were two functions actually occurring in the description, and with the reconciliation. In that none of these items had been posted properly to the financial records of the church, there was also an attempt to distinguish what expenses, if they were approved, they related to; and if they were unapproved, what they might have been.
* * *
[The State]: Okay. All right. Then the last column here of "unauthorized charges," how was it decided if an entry was made in that unauthorized column?
[Pastor Carey]: All of the records that we have that would indicate approval *786 to purchase with credit card would require approved purchase request, and approved credit card use request. Those records were consulted to determine whether or not the paperwork existed for approval. If the paperwork existed for approval, it was searched. If an item was not there, then the vendor was contacted.
[The State]: Okay. All right. And
[Defense Counsel:] Objection. Move to strike.
THE COURT: Overruled.
BY [The State]:
Q. And where you were not able to find any records supporting the payment, it was then put, listed in the unauthorized charge [column], is that correct?
[Defense Counsel]: Objection.
THE COURT: Overruled.
[Pastor Carey]: That's correct.
(Emphasis added.)
Over Davies's repeated objection, the circuit court admitted State's Exhibits 3 and 4. In addition, the court admitted, without objection by Davies, the monthly credit card statements which the Church had used to complete portions of the charts. No authorization forms were introduced by the State. Nor did the staff members who were said to have conducted the searches for authorization forms testify regarding their inability to locate authorization forms.
Two Church pastors testified at trial that Capital One had told them that its records reflected there were three approved users of the credit card: Davies, and two other Church employeesPastor Charles Schmitt and Terry Golden. Pastor Carey testified that, during the investigation of credit card charges, the Church distinguished Davies's usage of the card from the other two approved users by a review of "signatures and merchant receipts and/or from the authorized user documents that [the Church retains] when it authorizes a purchase." No such documents were offered in evidence, however. Pastor Carey said that these documents "weren't requested" by the police when the Church submitted its report. Davies was never given the opportunity to review the referenced documents.
Davies sought to introduce into evidence as Defense Exhibit 7 a report he had authored as the finance manager shortly before his termination. In the report, Davies made numerous criticisms of the management of the Church's finances by its leadership, including Pastor Carey. Davies alleged in his report that the Church administration had improperly concealed a $340,828 discrepancy in its 2006 financial statements. The circuit court excluded this evidence, and sustained objections to Davies's attempt to elicit testimony concerning allegations of the Church's financial mismanagement.
Discussion
Summary Exhibits
The decision to admit evidence is ordinarily left to the circuit court's sound discretion. Bern-Shaw Limited Partnership v. Baltimore, 377 Md. 277, 291, 833 A.2d 502 (2003). Nevertheless, if the circuit court's "ruling involves a pure legal question, we generally review the [ ] court's ruling de novo." Id. Accord Hall v. UMMS, 398 Md. 67, 82-83, 919 A.2d 1177 (2007); J.L. Matthews, Inc. v. Park & Planning, 368 Md. 71, 92-93, 792 A.2d 288 (2002). Statutory interpretation and the admission of hearsay are legal questions subject to de novo review. As the Court of Appeals explained in Bernadyn v. State, 390 Md. 1, 7-8, 887 A.2d 602 (2005) (citation omitted):
*787 We review rulings on the admissibility of evidence ordinarily on an abuse of discretion standard. Review of the admissibility of evidence which is hearsay is different. Hearsay, under our rules, must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule excluding such evidence or is "permitted by applicable constitutional provisions or statutes." Md. Rule 5-802. Thus, a circuit court has no discretion to admit hearsay in the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law reviewed de novo.
Similarly, in a criminal trial, the court has no discretion to admit "testimonial evidence" that would violate the defendant's Sixth Amendment rights under the Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004) ("Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination."). As we noted in Snowden v. State, 156 Md.App. 139, 143 n. 4, 846 A.2d 36 (2004), aff'd, 385 Md. 64, 867 A.2d 314 (2005): "We ... apply the de novo standard of review to the issue of whether the Confrontation Clause was violated...."
In the present case, the circuit court admitted State's Exhibits 3 and 4 pursuant to Maryland Rule 5-1006, which permits, upon certain conditions, a summary of the contents of voluminous documents to be admitted into evidence in lieu of the voluminous documents. Pertinent to this case, the documents which are summarized must themselves be "otherwise admissible." Here, because of (1) the investigators' commentary added to State's Exhibit 3 under Description, and (2) the exhibit's representation of the investigators' conclusions as to which charges were "unauthorized," State's Exhibit 3 did not satisfy the requirement of Rule 5-1006 that it summarize only "writings, recordings, or photographs, otherwise admissible." State's Exhibit 4 was a summary derived from State's Exhibit 3, and was, therefore, not admissible because State's Exhibit 3 was not admissible.
Rule 5-1006 states:
The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, calculation, or other summary. The party intending to use such a summary must give timely notice to all parties of the intention to use the summary and shall make the summary and the originals or duplicates from which the summary is compiled available for inspection and copying by other parties at a reasonable time and place. The court may order that they be produced in court.
Rule 5-1006 is derived from Federal Rule of Evidence ("FRE") 1006.[2] Like FRE 1006, Maryland Rule 5-1006 does not require that the summarized writings, recordings, or photographs themselves be introduced into evidence even though the underlying documents must nevertheless be "otherwise admissible." Milton Co. v. Bentley Place, 121 Md.App. 100, 121, 708 A.2d 1047 (1998) (for purposes of admitting a summary under Rule *788 5-1006, "the original ... records were not required"), aff'd on other grounds, 354 Md. 264, 729 A.2d 981 (1999). See United States v. Bakker, 925 F.2d 728, 736 (4th Cir.1991) (FRE 1006 "does not require that the original voluminous material be introduced into evidence"). Further, under either rule, the party seeking to introduce the summary is required to make the underlying documents available for inspection and copying by the other party at a "reasonable time and place." Mattvidi v. NationsBank, 100 Md.App. 71, 88-89, 639 A.2d 228 (1994) (summary properly admitted into evidence where underlying records were "provided to appellants four months prior to trial"). In contrast to FRE 1006, Maryland Rule 5-1006 includes a requirement that the summary itself also be made available for "inspection and copying."
Professor McLain describes the notice requirements of Rule 5-1006 as follows in 6A LYNN MCLAIN, MARYLAND EVIDENCE § 1006:1(a) (2d ed. 2001):
The proponent must give notice of his or her intent to use summary evidence, so as to allow the opponent to be prepared to evaluate its accuracy. The opposing party must be afforded an adequate opportunity to inspect the underlying writings at "a reasonable time and place." The judge may require their production in court (a result that should be avoided if production in court is too impractical).
(Footnotes omitted; emphasis added.)
Davies objected at trial that (a) part of the information which had been summarized in State's Exhibit 3 was inadmissible hearsay; and (b) even if the exhibits had been properly limited to summarizing writings that were otherwise admissible, the State failed to make the underlying documents "available for inspection and copying" as required by Rule 5-1006.
Davies's first contention challenges whether the information in the summary chart meets the requirement of Rule 5-1006 that the summary be comprised exclusively of information contained in documents which are "otherwise admissible." As noted above, State's Exhibit 3 is comprised of four components: (1) information copied from the Capital One statements; (2) information and mental impressions obtained from Church staff members who reviewed the Church's authorized user documents and receipts to determine whether the charges were unauthorized; (3) information and mental impressions obtained from Church staff members who made phone calls to vendors listed on the statements and reviewed records in order to complete the "Description" column; and (4) a conclusion made by some unspecified person or persons as to whether each charge was or was not unauthorized. The first component was admitted into evidence. But the remaining components were not, either by way of supporting documents or testimony. And, even if the investigations had been documented in some manneras to which there was no evidenceit is likely that such documents would have been hearsay or double hearsay, and not "otherwise admissible."
The Capital One statements were subpoenaed by Davies himself, and were authenticated and admitted into evidence as business records. But the 130 or so authorized user documents that were apparently found to exist among the financial records of the Church were not offered into evidence or produced in court, or otherwise made available to Davies for inspection and copying. With proper foundation testimony, they may have been admissible as business records pursuant to Rule 5-803(b)(6).
Further, Rule 5-803(b)(7) provides that the absence of a business record may be *789 used to prove "the nonoccurrence or nonexistence of the matter, if the matter was a kind about which a memorandum, report, record, or data compilation was regularly made and preserved." See McLAIN, supra, at § 1006:1(c). Accordingly, it might have been possible for appropriate persons with personal knowledge to have testified that, in the language of Rule 5-803(b)(7), "a diligent search [had] disclosed that [an authorization form for a questioned charge or charges] is not included in the" business records of the Church that had been kept in accordance with Rule 5-803(b)(6). But there was no such testimony offered in this case.
In addition to failing to satisfy the "otherwise admissible" prerequisite of Rule 5-1006, the State never made the underlying documents which were purportedly summarized in the charts available to Davies "for inspection and copying," as is expressly required by the rule. At trial, the State explained that, "as soon as we received any document" from the Church, the document was turned over to Davies as part of the prosecutor's open file discovery policy. The State, however, apparently neither requested nor received from the Church the authorized user documents, receipts, or other pertinent documents that the Church had used to create the spreadsheet. Davies attempted to subpoena these documents himself. On the State's motion, however, the circuit court quashed Davies's subpoena in which he requested these documents, despite the mandate of Rule 5-1006 that the party seeking to introduce a summary "shall make the summary and the originals or duplicates from which the summary is compiled available for inspection and copying by other parties at a reasonable time and place." Cf. Hutchinson v. State, 36 Md.App. 58, 62-63, 373 A.2d 50 (1977) (recognizing that, in a case where the circuit court allowed testimony summarizing the contents of a defendant-prisoner's administrative file, which was not in evidence, the defendant "or his counsel had the right, of course, to examine the file").
Davies's complaint about being denied the opportunity to inspect the underlying documentation is not a mere technicality. A genuine concern about the reliability of the Church's credit card records was raised during the testimony of one Church employee who was called as a witness by the State. After testifying that she was in charge of accounts payable at the Church, the witness described the procedures that are theoretically supposed to be followed by persons who use the Church's credit cards. But she then acknowledged that the procedures were not always followed and that the Church's credit card records were "incomplete" and "inaccurate." The following testimony was elicited during the State's case:
Q [By the State] Okay. And again, were any of those cards, was anyone authorized to make personal purchases on those cards?
A [By the Church employee responsible for accounts payable] No. But we did have a, some purchases that people made without my okay, or my boss okay.
Q Okay. And when you were attempting to reconcile the account, you would then note whether or not it was an authorized charge, correct?
A Yes. I would send out e-mails because just, even before John [Davies] came, there was a problem with the credit cards. A lot of people knew the numbers, and they would even make purchases
Q I'm going to
A without getting the card
Q Okay.
A from me.
* * *
*790 Q [By Defense Counsel] Ma'am, I think you testified that there were problems with, at the church with people using the credit card without authorization, and not sending you the right form, is that correct?
A Yes.
Q Okay. And that happened before John Davies was at the church?
A Yes.
* * *
Q Okay. I think you testified about some of the procedures that you did to do the reconciliations for the credit cards, and the authorizations. You remember that testimony on direct?
A Yes.
Q And sometimes, ma'am, people weren't very good about sending in their paperwork, were they?
A No, they were not.
Q Okay. Sometimes you'd send an e-mail and you'd ask for the paperwork. And sometimes you'd get it, and sometimes you wouldn't?
A Yes, that's correct.
Q All right. And sometimes you'd chase people. And no matter how many
A I would send out
Q e-mails you sent, you never got the documents, right, ma'am?
A That's true.
Q That's true. And so the church records relating to who was authorized to use the cards, those are incomplete, aren't they, ma'am?
A Yes, they were.
* * *
Q I think you also testified there was a sign-out sheet for the credit card?
A Yes.
Q Did people always use the sign-out sheets?
A No, they did not.
Q Okay. Did you try to remind them to use the sign-out sheets?
A I did.
Q Did John Davies
A And my boss.
Q try to remind people to use the sign-out sheets?
A Yes.
* * *
Q Okay. And I think you testified something a little bit aboutmake sure I'm rightentering some data into something called Shelby, is that right?
A Our, yes, our accounting system is called Shelby.
Q Shelby.
* * *
Q Did the church have some problems with sometimes the date [sic] in Shelby not being accurate?
A Yes. We did have some problems with Shelby.
* * *
Q Ma'am, I think you also testified that there were approval forms that were supposed to be filled out?
A Yes.
Q Okay. And did people always fill those out? Did you have problems getting those as well?
A No, they did not.
Q No, they did not always fill them out?
A They did not always fill them out.
Q Okay. So the church's records relating to approval forms were also incomplete?
A Yes.
Q And inaccurate?
*791 A Yes.
* * *
Q Okay. Did you have problems with the filing of the credit card records?
A Yes, we did.
Q Yes. Sometimes the records were hard to find?
A Sometime we did not get the
Q Right.
A correct paperwork to file.
The circuit court's error in admitting State's Exhibits 3 and 4 was not harmless. In Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976), the Court explained the standard for determining whether an error was harmless in a criminal case:
We conclude that when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained ofwhether erroneously admitted or excludedmay have contributed to the rendition of the guilty verdict.
(Footnote omitted.)
Here, State's Exhibits 3 and 4 were the only source of information presented to the jury that purported to set forth which charges were unauthorized. We are not persuaded beyond a reasonable doubt that the exhibits did not influence the jury's verdict. Consequently, we reverse the judgments entered by the circuit court, and remand the case for further proceedings.
Because the following issues are likely to arise in the event of a retrial, we will address them here.
Document Subpoena
Davies contends that the circuit court erred in quashing his subpoena of the records of the Church's accounting firm ("the Reumont firm"). Davies argues that the court should not have quashed his subpoena for the production of the following documents:
Documents relating to work the Reumont firm performed in connection with any audit or investigation of alleged thefts by John Davies and/or Collin Booth;
Copies of [the Church's] financial statements for 2006 and 2007the years that Mr. Davies worked on the preparation of the financial statements;
Reports prepared by the firm for [the Church] during Mr. Davies'[s] tenure; and
Correspondence (including reports or memoranda) the Reumont firm sent to or received from John Davies.
The State moved to quash the subpoena on grounds that it would result in "undue burden or expense" under Rule 4-266(c). Davies filed an opposition in which he argued that the requested documents were "relevant to the bias and motivations of [the Church's] witnesses." Prior to trial, the circuit court, relying upon the State's assurance that it had already submitted to Davies all the documents it had available to it, quashed the subpoena. The court stated:
All right, well, the representation is that the documents that [the State has] available to [it] have been submitted in discovery, so at this juncture, we're ready for trial. I'll grant the motion [to quash].
The right to compulsory process under the Sixth Amendment to the U.S. Constitution and Article 21 of the *792 Maryland Declaration of Rights includes the right to subpoena admissible evidence. Wilson v. State, 345 Md. 437, 450, 693 A.2d 344 (1997). "All facts tending to prove bias, prejudice, improper motivation, or interest are proper subjects for impeachment of a witness." MCLAIN, supra, at § 607:2(a). In Martin v. State, 364 Md. 692, 698, 775 A.2d 385 (2001), the Court of Appeals explained that a criminal defendant's right to impeach a witness concerning possible interest, bias, or motive to lie has its roots in both the federal constitution, and Maryland Declaration of Rights. Davies's ability to impeach the witnesses against him by offering evidence to show that he had criticized the witnesses was unduly limited by the court's quashing of the subpoena. The circuit court abused its discretion in denying Davies access to these documents which relate to the Church's potential motive to make criminal accusations against him.
Cross-examination
Davies also contends that the circuit court erred in limiting his cross examination of the Church's witnesses relative to their potential motives for making accusations against him. Davies attempted to elicit testimony regarding discrepancies in the Church's bookkeeping, and sought to introduce as Defense Exhibit 7 a report he authored as finance manager in which he criticized the Church's financial management. On appeal, Davies argues that this evidence was admissible to impeach the Church's witnesses by demonstrating their bias or motive to fabricate the criminal charges against him. When we review the trial transcript, however, it is not clear to us that Davies made clear to the trial court the argument made on appeal. Consequently, we decline to address this issue further. See Rule 8-131(a). Upon retrial, Davies will have another opportunity to offer evidence that might show that the witnesses against him had a motive to make false accusations.
JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED. CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY MONTGOMERY COUNTY.
NOTES
[1] In addition to these three questions Davies raised the following questions, which we decline to address:
[a] Did the prosecutor's expression of his personal opinion concerning Mr. Davies's truthfulness violate the settled rule precluding such expressions of personal belief?
[b] Did the court erroneously refuse to grant a new trial or a hearing based on newly-discovered evidence that Mr. Davies's former employer destroyed financial records taken from his office after he departed, where the State's evidence that the credit-card charges were unauthorized was based on the former employer's supposed inability to locate authorization records?
[c] Should the restitution order directing Mr. Davies to pay $17,795 be vacated when the State offered no evidence at sentencing that Mr. Davies caused his former employer to suffer a loss of that amount?
[2] Federal Rule of Evidence 1006 states:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2200222/ | 203 Cal. App. 2d 642 (1962)
DOROTHY TALIAFERRO, Plaintiff and Respondent,
v.
EUGENE A. TALIAFERRO, Defendant and Appellant.
Civ. No. 19367.
California Court of Appeals. First Dist., Div. Three.
May 17, 1962.
Eugene A. Taliaferro, in pro. per., for Defendant and Appellant.
Frisbie & Hoogs and W. H. Hoogs for Plaintiff and Respondent.
DRAPER, P. J.
Previous appeals arising from the 1943 divorce of the parties (for citations see Taliaferro v. Taliaferro, 200 Cal. App. 2d 190, 191, fn. 1 [19 Cal. Rptr. 220]) have dealt with paragraph 7 of the property settlement agreement, which provides for alimony and child support. This case turns on paragraph 5, providing for division of property. Although represented by counsel at trial, defendant appeals in propria persona. He has filed seven separate appeals to reach the issues. This opinion deals only with the appeal from the judgment.
[1] During the marriage, defendant owned and operated Davis Auto Exchange, an "auto wrecking, repairing and new and used parts business." This business and a number of parcels of real estate, some occupied by the business and some not, were agreed to be community property. The first subdivision *644 of paragraph 5 provides that the business shall "remain under the management and control of the husband and he shall be entitled to all the profits from the operation thereof." It then specifies that "the value of said business and the premises upon which it is located" is $20,000, "and in the event of the sale of said business the wife shall receive the sum of ... ($10,000.00) as and for her interest therein. ..." Paragraph 5(2) requires husband to pay all taxes and assessments "on the real estate belonging to the parties hereto," and that he "shall receive and be entitled to all monies received for the rental of any of said real property." Paragraph 5(3) reads: "In the event of the sale of any of the real estate belonging to the parties hereto each shall receive and be entitled to one-half of the price received for said real estate."
Proper construction of this language is the core issue. Plaintiff wife contends that sale of the business alone, without the real property it occupies, entitled her to $10,000. She bases this view on the language conditioning this payment on "the sale of said business," and upon the separate provision for equal division of proceeds of sale of "any of the real estate" without limitation to that occupied by the business. Defendant contends that since the "business and the premises upon which it is located" is valued at $20,000, he clearly is to make the $10,000 payment only when the business and all the real property occupied by it is sold.
Mere statement of these contentions and of the language of the contract makes apparent the ambiguity of the writing. Accordingly, the trial court properly admitted extrinsic evidence as an aid to interpretation.
The agreement described the business merely as "located at 2610 San Pablo Avenue." The oral testimony showed that it occupied a number of lots, some owned and some not. Defendant himself testified, at different times in the trial, that the total of these lots was as high as 60 and as low as 22. His testimony as to the number of lots not owned, but occupied by the business as tenant or trespasser, varied from 10 to 22. A number of the lots occupied by the business were unimproved, and were used only for storage of scrap or of automobiles to be scrapped. From time to time some such lots were abandoned and replaced by moving the articles stored on them to other vacant lots contiguous to the remainder of the business property. The evidence also showed that at the time of the agreement, the parties owned a number of lots *645 never occupied by the business. Defendant testified that the parties owned a total of 100 to 110 lots. Plaintiff testified that 250 to 300 lots were owned. Defendant valued a number of these lots at as little as $100 each.
From this testimony, it is apparent that to require the $10,000 to be paid only when literally all "the premises upon which it (the business) is located" were sold would defeat any payment to wife, since much of that land was not owned by the parties. Even if the payment to plaintiff be deemed conditioned on sale only of the occupied lots owned by the parties, the result is unreasonable. Defendant could sell the business and land occupied by it, retaining but one unimproved $100 lot, and retain all the proceeds of these sales. It is apparent that this is not the result intended by the parties when they executed their agreement. Rather, there is substantial evidence to support the trial court's conclusion that they meant the $10,000 payment to be made to wife when husband sold the business, and that she was to receive half the proceeds of each sale of real estate, as made. We are unimpressed by defendant's argument that this construction is unjustified because it would give wife more than half the property. There is no reason to believe that the parties intended a precisely equal division of their property. Moreover, the husband's retention of rentals and of business income until he chose to sell could well give him more than half the total ultimately divided.
[2] Defendant next contends that the evidence is insufficient to support the finding that he in fact did sell Davis Auto Exchange. In 1953, an auctioneer, with defendant's authority, advertised a sale on the exchange premises of "the entire stock of new auto parts" of Davis Auto Exchange. A second such auction was held a few weeks later. Shortly before these auctions, defendant transferred a substantial stock of new parts to another business in which he owned an interest. As to the used parts, the testimony is less direct. Defendant's records were inadequate to show what, if any, stock of used parts remained after the auctions of new parts. However, disposition of used parts, as well as new, is inferable from the fact that sales of parts greatly decreased, and had substantially ended by 1954. There is evidence that defendant told a third party in January 1954 that he was going out of the business and told another that he had done so. Reports filed by defendant showed no employees in this business in 1954 and 1955, whereas 10 to 20 had been employed previously. Although *646 there is no evidence of a sale of the business as a going concern, there is substantial evidence to warrant the trial court's determination that defendant had in fact disposed of the assets and gone out of the business. Thus the finding that it had been sold, within the meaning of the property settlement agreement, is supported.
[3a] Finally, defendant argues that the judgment must be reversed because the trial judge was disqualified. Defendant's affidavit asserting bias and prejudice on the part of the trial judge was filed October 25, 1955. It was stricken by the judge on his own motion at the opening of trial October 31, 1955.
In considering this affidavit, it must be recalled that the peremptory challenge of a judge authorized by the 1937 statute (Code Civ. Proc., 170.5; Stats. 1937, ch. 507, p. 1496) is unconstitutional (Austin v. Lambert, 11 Cal. 2d 73 [77 P.2d 849, 115 A.L.R. 849]). The statute providing for disqualification of a judge upon the filing of an affidavit in specified form (Code Civ. Proc., 170.6) was not adopted until 1957 (Stats. 1957, ch. 1055, p. 2288).
Thus defendant's attempt to disqualify the judge for this 1955 trial must turn upon the statute governing disqualification for cause (Code Civ. Proc., 170), and the efficacy of the attempted disqualification must be judged by its terms. That statute requires a verified statement "setting forth the fact or facts constituting the ground of the disqualification of such judge." Here the sole ground asserted is the claimed actual bias or prejudice of the judge (Code Civ. Proc., 170, subd. 5). If defendant's affidavit alleged sufficient facts to show bias or prejudice, the judge would have been required either to withdraw from the case or to file an answer and have the issue tried by another judge (1 Witkin, Cal. Procedure, 50(a), p. 175). To have this effect, however, the affidavit must state facts. If it sets out mere conclusions, the judge sought to be disqualified may himself order it stricken from the files (Ephraim v. Superior Court, 42 Cal. App. 2d 578 [109 P.2d 378]).
Defendant's affidavit occupies more than 8 pages of the clerk's transcript. It bristles with assertions that the judge is biased and prejudiced. To those accustomed to the operation of the 1957 statute (Code Civ. Proc., 170.6) this at first glance seems sufficient. But since the attempted disqualification is for cause (Code Civ. Proc., 170) we must look to the facts alleged. *647
They are few. They deal largely with acts of the same judge in trial of a wholly distinct action two months before this affidavit was filed. It is alleged that the judge denied a continuance requested by defendant at the opening of the earlier trial. There is no allegation as to the showing made upon the motion for continuance in this other action, and its denial does not show prejudice (see People v. Darby, 114 Cal. App. 2d 412, 439 [250 P.2d 743]).
It is alleged that in the earlier trial, the judge, after reviewing some of the court files, "branded affiant as a litigious person." There is no suggestion that the adjective was inaccurate. Nor is there any attempt to show how this feeling on the part of the judge could prejudice him against affiant in the instant action, which was not initiated by him, but in which he was the defendant.
It is alleged that in the previous trial, the judge made "pointed remarks" about one of defendant's witnesses. Whatever the unquoted remarks may have been, there is no suggestion that the same witness would be called in this case, and in fact he was not. It is alleged that in the August trial and one other this judge "made several references to contempt, indicating that he was going to hold affiant in contempt of court." There is no claim that defendant was held in contempt and, more important, no showing that the remarks were not fully justified.
The affidavit does allege that the judge, during the August trial, told defendant that he "thought of having affiant reported to the District Attorney for perjury," and stated that "he intended to examine the entire record of the case with a view to referring the matter to the District Attorney for prosecution for perjury." [4] A judge is disqualified if he has stated that a party has wilfully sworn falsely and that the judge would have no confidence in his testimony (Keating v. Superior Court, 45 Cal. 2d 440 [289 P.2d 209]; or that defendant had deliberately perjured himself (Chastain v. Superior Court, 14 Cal. App. 2d 97 [57 P.2d 982]) or had wilfully misstated the facts (Evans v. Superior Court, 107 Cal. App. 372 [290 P. 662]) or knowingly made false statements in an affidavit (Briggs v. Superior Court, 215 Cal. 336 [10 P.2d 1003]). [3b] Our case differs from those cited in that the affidavit here states only that the judge "thought of" referring the matter to the district attorney, or "intended to examine the record with a view to" such reference.
Aside from this distinction, however, the claim of disqualification *648 is wholly dispelled by defendant's affidavit itself. It alleges that after the above events the judge "told affiant in chambers that he had regretted his anger in open court and had decided not to refer the matter to the District Attorney for perjury." Statements made by the judge in the August trial are relevant only as they show bias or prejudice against defendant at time of the present trial two months later. In view of the judge's expression of regret and his determination not even to suggest investigation, there is no showing of prejudice at the time he entered upon the present trial.
[5] The rule is clear that "expressions of opinion uttered by a judge, in what he conceives to be a discharge of his official duties, are not evidence of bias or prejudice" (Kreling v. Superior Court, 25 Cal. 2d 305, 310-311 [153 P.2d 734]; see also Fishbaugh v. Fishbaugh, 15 Cal. 2d 445, 456 [101 P.2d 1084]; McEwen v. Occidental Life Ins. Co., 172 Cal. 6, 11 [155 P. 86]).
[3c] Viewed in its entirety, the affidavit here filed amounts to no more than that held to be insufficient in Mackie v. Dyer, 154 Cal. App. 2d 395 [316 P.2d 366] (that affidavit is quoted in full in fn. 1, at pp. 397-398). We hold that defendant's affidavit was insufficient to raise any issue of fact as to the alleged bias or prejudice of the trial judge. Thus the affidavit was properly stricken, the judge was not disqualified and no reversible error appears.
We have, however, reviewed the record in detail to determine whether the judge in any way justified the fears expressed in defendant's pretrial affidavit. We find no indication of any bias or prejudice. On the contrary, the trial was conducted with scrupulous fairness.
Defendant raises a total of 20 "questions" on this appeal. We have reviewed carefully the 17 issues not heretofore treated. We find no merit in any of them, and decline to impose further upon the captive audience which must purchase these reports by either listing or discussing those captious contentions.
Judgment affirmed.
Salsman, J., and Devine, J., concurred. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5283948/ | iMEMORANDUM OPINION
BRIAN HOYLE, Justice.
ETMC First Physicians and Kristin Ault, D.O. appeal the trial court’s order denying their motion to dismiss the lawsuit against them filed by Melissa Van Ness, Individually and as Next Friend, an Heir at Law, and a Surviving Parent of Nicholas Van Ness; Ronald Van Ness, Individually, and as Next Friend of, an Heir at Law, and a Surviving Parent of Nicholas Van Ness; and the Estate of Nicholas Van Ness. In then' sole issue, ETMC and Ault contend that the trial court abused its discretion when it overruled their motion to dismiss the Van Nesses’ suit for failure to comply with the expert report requirements under Chapter 74 of the Texas Civil Practice and Remedies Code.1 We reverse the order of the trial court, dismiss in part, and remand in part.
Background
Melissa and Ronald Van Ness filed suit against ETMC First Physicians and Dr. Ault, alleging that their negligence caused the death of their son Nicholas.2 The Van Nesses attempted to comply with the expert report requirements by filing a report from Dr. Alvin Jaffee within the applicable time period. ETMC First Physicians and Dr. Ault filed joint objections to the report and a motion to dismiss, alleging that the report failed to adequately establish causation. The trial court entered an order agreeing with ETMC First Physicians and Dr. Ault, but granted a thirty day extension to the Van Nesses so that they could amend their report and cure its deficiencies regarding causation. Dr. Jaffee amended his report.
In the amended report, Dr. Jaffee stated that Nicholas Van Ness was born on November 13, 2009. Melissa and Ronald took Nicholas to see Dr. Ault on November 19, 2009, and November 30, 2009. At those visits, Nicholas was well and there were no concerns regarding his health. Melissa and Ronald took Nicholas to see Dr. Ault again on December 11, 2009, when he was exactly four weeks old. Nicholas had a fever and nasal congestion. Dr. Jaffee noted that Nicholas’s medical records did *155not disclose whether his temperature was taken reetally or orally, or if any medications had been given to Nicholas prior to. the visit. Melissa told Dr. Ault that Nicholas had facial discoloration and that he had been coughing to the point that he could not breathe. Dr. Jaffee also noted that the medical records do not show whether Dr. Ault performed any medical tests during this visit. However, Dr. Jaf-fee did not discuss whether Dr. Ault created a treatment plan or prescribed any medications to Nicholas during this visit.
Dr. Jaffee stated in his report that even though there were no medical records or billing records showing a further office visit, Melissa and Ronald stated that they returned to Dr. Ault’s office on December 15, 2009, and reported that Nicholas’s symptoms had worsened. According to Melissa and Ronald, Dr. Ault removed Nicholas from his car seat and physically examined him, but did not listen to his breathing or perform any tests on him. No lab blood tests or X-rays were obtained.
Five days later on December 20, 2009, Nicholas was taken to East Texas Medical Center in Jacksonville and treated for acute pneumonia, wheezing, and tachycardia. The following day, Nicholas was transferred to Children’s Medical Center Hospital in Dallas, Texas. Approximately one month later, on January 20, 2010, Nicholas died of pertussis respiratory illness (whooping cough).
Dr. Jaffee stated that Dr. Ault should have conducted a more thorough physical examination, completed various lab tests, and started Nicholas on a preventative regimen of antibiotics.3 Dr. Jaffee con-eludes that had she done so, Nicholas likely would not have died.
ETMC First Physicians and Dr. Ault renewed their objections and motion to dismiss, again contending that the report failed to adequately demonstrate causation. After a hearing, the trial court overruled their objections and motion to dismiss. This appeal followed.
Expert Report
In their sole issue, ETMC First Physicians and Dr. Ault contend that the trial court abused its discretion when it overruled their motion to dismiss the Van Nesses’ suit for failure to comply with the expert report requirements on causation under Chapter 74.
Standard of Review
We review a trial court’s Section 74.351 ruling for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner, without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). A trial court acts arbitrarily and unreasonably if it could have reached only one decision, but instead reached a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex.App.-Texarkana 2003, no pet.). To that end, a trial court abuses its discretion when it fails to analyze or apply the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex.2007) (citing In re Kuntz, 124 S.W.3d 179, 181 (Tex.2003)). We may not substitute our judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding).
*156
Applicable Law
An “expert report” is a written report that provides a fair summary of the expert’s opinions regarding applicable standards of care, the manner in which the defendant failed to meet those standards, and the causal relationship between the defendant’s failure and the plaintiffs injury, harm, or damages claimed. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6) (West Supp.2013). In setting out the expert’s opinions on each of the required elements, the report must provide enough information to fulfill two purposes if it is to constitute a good faith effort. Palacios, 46 S.W.3d at 879. An objective good faith effort to comply with the statute is made if the report (1) informs the defendant of the specific conduct that the plaintiff has called into question and (2) allows the trial court to conclude that the claim has merit. Id. at 879. A report that merely states the expert’s conclusions about the standard of care, breach, and causation does not provide the necessary information to fulfill the dual purposes. Id. Rather, the expert must explain the basis of his statements to link his conclusions to the facts. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). In our review of an expert report, we are limited to the report’s contents, contained within the four corners of the report, in determining whether the report manifests a good faith effort to comply with the statutory definition of an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l); Palacios, 46 S.W.3d at 878.
A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and that absent this act or omission, the harm would not have occurred. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.App.-San Antonio 2004, no pet.). Merely providing some insight into the plaintiffs claims does not adequately address causation. Wright, 79 S.W.3d at 53. Accordingly, causation cannot be inferred; it must be clearly stated. Castillo v. August, 248 S.W.3d 874, 883 (Tex.App.-El Paso 2008, no pet.). Indeed, we may not fill in gaps in a report by drawing inferences or guessing what the expert meant or intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.).
However, a plaintiff need not present evidence in the report as if it were actually litigating the merits. Palacios, 46 S.W.3d at 879. The report can be informal, meaning that it does not have to meet the same requirements as the evidence offered in a summary judgment proceeding or at trial. Id.
Discussion
Dr. Jaffee stated in his report that when Dr. Ault evaluated Nicholas Van Ness on December 11, 2010, and diagnosed fever, she should have taken the following actions:
• Performed a full physical exam including vital signs, pulse oximetry, respiratory rate and CBC;
• Performed a complete septic work-up, including
• complete blood count
• blood culture
• urinalysis and urine culture
• spinal tap so that doctors can order an examination of the spinal fluid, including a spinal fluid culture
• chest x-ray (although this is often left out if the child lacks respiratory symptoms)
• stool studies if the baby has diarrhea
*157• viral test or culture, such as an RSV prep or flu test
•Performed additional laboratory tests, such as culture, polymerase chain reaction [PCR], direct fluorescent antibody [DFA] and serology;
• Administered antibiotics prophylactically while the test[s] are pending; and/or
• Admitted Nicholas to a medical facility for further evaluation.
Dr. Jaffee went on to conclude that had Dr. Ault done so, “[i]t is within a reasonable degree of medical certainty and/or with 51% certainty that had Dr. Ault appropriately evaluated and diagnosed him, Nicholas Van Ness would have received the appropriate dosage and treatment of antibiotics in a timely manner, and he would not have expired on January 20, 2010.”4
However, Dr. Jaffee’s conclusion does not follow from the facts he described in his report. In describing pertussis in relation to its effects on infants, Dr. Jaffee noted that “[flnfection in newborns is particularly severe. Pertussis is fatal in an estimated one in 100 infants under two months, and fatal in one in 200 infants aged two to twelve months.” Dr. Jaffee stated that “[r]eported fatalities from pertussis in infants have increased substantially over the past 20 years.” Dr. Jaffee went on to mention that “[prevention via vaccination is of primary importance because treatment is of little benefit to the person affected.” Infants as young as Nicholas will not be completely vaccinated. Consequently, Dr. Jaffee asserts “[u]nvac-cinated or incompletely vaccinated infants younger than 12- months of age have the highest risk for severe and life-threatening complications and death[, and in such a case,] prophylactic antibiotics ... are still frequently used in those who have been exposed and are at high risk of severe disease (such as infants).” Dr. Jaffee stated that antibiotics may “shorten the duration of infectiousness and are thus recommended.” Even though early treatment is of little benefit to the person affected, Dr. Jaffee contends in his report that
[e]arly treatment of pertussis is very important. The earlier a person, especially an infant[,] starts treatment^] the better. If treatment for pertussis is started early in the course of illness, during the first one to two weeks before coughing paroxysms occur, symptoms may be lessened. Clinicians should strongly consider treating prior to test results if clinical history is strongly suggestive or patient is at risk for severe or complicated disease, e.g. infants. If the patient is diagnosed late, antibiotics will not alter the course of the illness and, even without antibiotics, the patient should no longer be spreading pertussis.
Finally, Dr. Jaffee states that “[a] reasonable guideline is to treat ... infants aged less than [one] year within six weeks of cough onset.”
Thus, a review of Dr. Jaffee’s report demonstrates that treatment is of little benefit to the person affected, but given the danger of pertussis to infants, prophylactic antibiotics should be administered to those infants exhibiting symptoms of the disease, even prior to obtaining the test results. Antibiotics are recommended be*158cause they may shorten the duration of infectiousness and limit its transmission to others. However, based on Dr. Jaffee’s report, if treatment is administered early, at most, symptoms may be lessened, and that in the event of a late diagnosis, antibiotics will not alter the course of the illness. He then stated that the reasonable course of action would have been to treat infants such as Nicholas within six weeks of cough onset.
At the earliest, Nicholas began coughing on December 1, 2010. He began treatment on December 20, 2010, which was approximately three weeks from the earliest possible date he began to cough; yet he died one month later on January 20, 2011.5 This was well within the reasonable guideline of treating the disease within six weeks of cough onset. Dr. Jaffee’s conclusion that Nicholas would not have died had Dr. Ault began treatment on December 11, 2010, or December 15, 2010, does not follow from the aforementioned discussion of the facts in his report.
Rather, because treatment is of little benefit to the person affected, the facts lead to the conclusion that had Dr. Ault provided antibiotics to Nicholas on either of those dates, at most Nicholas’s symptoms may have lessened and his ability to spread the disease to others may have diminished. The facts discussed in the report do not show that treatment would have altered the course of the disease, but lead to the conclusion that Nicholas was unfortunately one of those infants who did not survive despite timely treatment.
The Van Nesses also contend that Dr. Jaffee was not required to rule out every possible cause, at least for purposes of satisfying the expert report requirement in a healthcare liability claim. See, e.g., Hillery v. Kyle, 371 S.W.3d 482, 492 (Tex.App.-Houston [1st Dist.] 2012, no pet.). While Dr. Jaffee may not have been required to rule out all possible causes, he must establish in his report some causal connection between the defendants’ conduct and Nicholas’s death. The statements concerning causation cannot be inferred, speculative, or conclusory. See Wright, 79 S.W.3d at 53; Castillo, 248 S.W.3d at 883; Webb, 228 S.W.3d at 279. Moreover, the conclusion must link to the facts. See Wright, 79 S.W.3d at 52. As we have discussed, Dr. Jaffee’s report fails in this regard. Consequently, the Van Nesses failed to establish that Dr. Ault’s failure to diagnose or provide prophylactic antibiotics caused Nicholas’s death.
The trial court or a court of appeals may grant a thirty day extension in which to amend a timely filed but deficient expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex.2008). However, the statute allows only a single extension. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c). Once an extension has been granted by the trial court, the court of appeals is without authority to grant another extension. See id. Because the trial court previously granted the Van Nesses an extension to amend their expert report, we are without authority to grant another extension and must dismiss their suit.
ETMC First Physicians and Dr. Ault’s sole issue is sustained.
Disposition
We have sustained ETMC First Physicians and Dr. Ault’s sole issue. Conse*159quently, we reverse the order of the trial court, render judgment that the Van Ness-es’ claims against ETMC First Physicians and Ault be dismissed with prejudice, and remand the cause for a determination of the amount of attorney’s fees and costs to be awarded ETMC First Physicians and Dr. Ault. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(1).
GRIFFITH, J., not participating.
. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West Supp.2013).
. The Van Nesses allege that ETMC First Physicians is vicariously liable to them solely because of its employment relationship with Dr. Ault, and not because of any direct negligent acts on its part. The Van Nesses also sued Justin Mclnnis, but later filed an amended petition dismissing Mclnnis from the lawsuit. He is not a party to this appeal.
. Dr. Jaffee also opined that Dr. Ault should have admitted Nicholas to a treatment facility, but the parties do not discuss this conclusion in their briefs in any detail. In any event, it appears from the report that Dr. Jaffee focused mostly on Dr. Ault's failure to administer antibiotics as the reason for Nicholas’s death.
. Dr. Jaffee made other similar conclusions elsewhere in his report. For example, he stated as follows:
None of the protocols outlined in this report were followed by Dr. Ault. In my opinion to a reasonable degree of medical certainty, had Dr. Ault performed any of these tests, it would have shown Bordetella pertussis at a treatable stage and but for the failure to treat Nicholas Van Ness as outlined above he would have had a 51% or more chance of survival.
. Dr. Jaffee opined in his report that had Dr. Ault conducted the proper medical tests, she should have administered antibiotics prophy-lactically, even prior to learning of the pertussis test results. Consequently, based on Dr. Jaffee's analysis, we treat Dr. Ault’s failure to provide antibiotics as the critical event, not her failure to conduct the tests. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283951/ | OPINION
VANMETER, JUDGE:
Ervin Cable Construction, LLC appeals from the June 9, 2014, order of the Jackson Circuit Court denying its motion for summary judgment. For the following reasons, we vacate the trial court’s order and direct the court on remand to enter an order granting summary judgment in favor of Ervin Cable.
Ordinarily, a trial court’s order denying summary judgment is not immediately reviewable on appeal since such an order is considered interlocutory. However, in this case Ervin Cable moved for summary judgment on grounds of absolute immunity, the denial of which is subject to immediate appeal since immunity is designed to free the possessor not only from liability, but also from the costs of defending an action. Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky.2009). In other words, the denial of a substantial claim of immunity is an exception to the finality rule that interlocutory orders are not immediately appealable. Id. As a result, this court has jurisdiction to address Ervin Cable’s claim that the trial court improperly denied its motion for summary judgment.
This case arises out of an accident that took place on September 11, 2012, in the parking lot of a gas station in Jackson County, Kentucky. Employees of Advanced Cable and Ervin Cable were fueling work trucks, loading the trucks with materials, and stocking up on food and cigarettes from the gas station in preparation for a day’s work in a remote part of the county. Plaintiff Bryan Lay, an employee of Advanced Cable, was placing items into the rear of a truck when the truck began moving and struck him. Apparently, Lay was situated in the truck’s blind spot. The truck was driven by an Ervin Cable employee. At the time, Ervin Cable and Advanced Cable were operating under a contractor/subcontractor agreement for this particular work project.
As a result of his injuries, Lay pursued a worker’s compensation claim against his employer, Advanced Cable (the subcontractor), and successfully secured benefits. Lay then filed a civil action against Ervin Cable (the contractor), alleging negligence and seeking to recover monetary damages. Ervin Cable moved for summary judgment, based on the exclusive remedy provision of the Kentucky Workers’ Compensation Act set forth in KRS1 342.690(1). Ervin Cable argued that pursuant to the statute, Lay’s receipt of worker’s compensation benefits from his immediate employer, Advanced Cable, was his sole avenue of recovery for his work-related injury. Accordingly, Ervin Cable maintained that it was entitled to “up-the-ladder” immunity from Lay’s tort action. Following a hearing, the trial court summarily denied Ervin Cable’s motion. Ervin Cable now appeals.
Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is therefore entitled to judgment as a matter of law. CR2 56.03. In other words, summary judgment may be granted when “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky.1991) (internal quotations omitted). Whether summary judgment is ap*424propriate is a legal question involving no factual findings, so an appellate court reviews the trial court’s grant of summary judgment de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71 (Ky.2010).
“In Kentucky, ‘up-the-ladder immunity’ refers to a contractor’s immunity from tort lawsuits where the plaintiff was injured at work and workers’ compensation benefits are the plaintiffs exclusive remedy under KRS 342.690.” Beaver v. Oakley, 279 S.W.3d 527, 528 n.1 (Ky.2009). In Beaver, the Kentucky Supreme Court addressed whether a construction project manager employed by a contractor was immune from tort liability, i.e., entitled to’ up-the-ladder immunity, with respect to a personal injury suit filed by a subcontrac- - tor’s employee who suffered a work-related injury. The Court held that the project manager did enjoy-immunity and set forth the applicable law as follows:
Under Kentucky law, unless a worker has expressly opted out of the workers’ compensation system, the injured worker’s recovery from the employer is limited to workers’ compensation benefits. The injured worker is not entitled to tort damages from the employer or its employees for work-related injuries.3 And, in this context, the term employer is construed broadly to cover not only the worker’s direct employer but also a contractor4 utilizing the worker’s direct employer as a subcontractor.5
Id. at 530.
In this case, the evidence shows that Ervin Cable and Advanced Cable were operating under a contractor/subcontractor arrangement for this particular project, and in fact had enjoyed such a relationship for years. Lay suffered an injury during the course and scope of his employment with Advanced Cable, and is receiving worker’s compensation benefits from Advanced Cable for that injury. Lay raises an issue concerning whether Ervin Cable required Advanced Cable to provide worker’s compensation insurance for this particular project pursuant to a written agreement, but regardless, the fact remains that Advanced Cable did provide such coverage and Lay is receiving benefits under its insurance policy. Moreover, a written agreement between Ervin Cable and Advanced Cable was not necessarily required since the facts clearly establish the existence of their contractor/subcontractor arrangement, as a practical matter. See id. at 532 (despite lack of a formal written contract between the contractor and subcontractor, as a practical matter the defendant contractor was functioning as such and therefore its employees were entitled to up-the-ladder immunity) (citing United Eng’rs & Constructors; Inc. v. Branham, 550 S.W.2d 540 (Ky.1977)).
*425At the hearing before the trial court, the parties acknowledged that Ervin Cable and Advanced Cable had a contractor/subcontractor relationship, and the record reveals as much. We fail to appreciate Lay’s present claim to the contrary.6 Based on the record and applicable law, Ervin Cable was entitled to up-the-ladder immunity from Lay’s tort action pursuant to the exclusive remedy provision contained in KRS 342.690 and the trial court erred by holding otherwise.
For the foregoing reasons, the order of the Jackson Circuit Court is vacated and the trial court is directed on remand to enter an order granting summary judgment in Ervin Cable’s favor.
ALL CONCUR.
. Kentucky Revised Statutes.
. Kentucky Rules of Civil Procedure.
. KRS 342.690(1) provides, in pertinent part, that "[i]f an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee ... on account of such injury or death.” It also provides that "[t]he exemption from liability given an employer by this section shall also extend ... to all employees ... of such employer. ...”
. KRS 342.690(1) further states that “[f]or purposes of this section, the term 'employer' shall include a 'contractor' covered by subsection (2) of KRS 342.610, whether or not the subcontractor has in fact, secured the payment of compensation.”
.KRS 342.610(2) provides that "[a] person who contracts with another: ... (b) [t]o have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation or profession of such person shall for the purposes of this section be deemed a contractor, and such other person a subcontractor.”
. Likewise, we do not appreciate Lay’s assertion that his injury was not work-related. This assertion is clearly refuted by the record. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283952/ | ORDER
PER CURIAM
Plaintiff James Johnson appeals the Circuit Court of Franklin County’s grant of judgment on the pleadings in favor of defendant Sullivan Fire Protection District on his 42 U.S.C. section 1983 (2014).claim. 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/6125584/ | Talcott, J.:
This suit is commenced by the plaintiff as trustee of the estate of Elizabeth D. Bristol, otherwise known as Elizabeth D. Bristol *24Sweet, appointed such trustee by an order of tbe Supreme Court at a Special Term held in tbe county of Onondaga on the 23d of May, 1873. The action isa suit in equity against the administrator and administratrix of John A. Green, deceased, and John M. Jayoox, and against the appellants as the executore of James P. Haskin, deceased, and this appeal is taken from what is called an interlocutory judgment entered in the,case under an order of Mr. Justice Mullin, made at the Onondaga Special Term, overruling a demurrer to the complaint in the case and ordering that the plaintiff have judgment thereon, but with leave to the said defendants to withdraw their demurrer and put in an answer within twenty days on payment of costs. The demurrer was interposed by Daniel Pratt and others, the executors of James P. Haskin, deceased, who are made parties defendant in their representative character, upon the ground that the said James P. Haskin was in his lifetime one of the sureties of John A. Green, also deceased, as one of the executors of the will of the said Elizabeth D. Bristol. None of the other defendants have answered in the case, and the appellants, as the executors of the will of the said James P. Haskin, have demurred to the complaint specifying the following causes of demurrer, viz.:
1. That the plaintiff has not legal capacity to sue in this case, as the bond set forth in said complaint is payable to the people, and no assignment has been made to the plaintiff. 2. That several causes of action against different persons have been improperly joined. 3. That no leave to sue the bond has been granted by the surrogate. 4. That the action should have been brought by Frank Hiscock, surviving executor. 5. If there were no executor to sue, an administrator de bonis non should have been appointed, who alone can sue. 6. That there is a defect of parties in this, that Frank His-cock should have been a party defendant. 7. That the complaint does not state facts sufficient to constitute a cause of action.
It is doubtful whether an appeal lies to the General Term from the interlocutory judgment in this case, which is in substance an appeal from the order that the plaintiffs have judgment unless the defendants, who have interposed a demurrer shall answer over within twenty days, etc.
The Superior Court of the city of New York have in several eases decided at General Term, that an appeal does not lie from *25such an order in such a case. (See Garner v. The Harmony Mills, impl'd, etc., 45 Supr. Ct. Rep., 148; Cameron v. The Eq. Life Ins. Co. of the U. S., Id., 628, and Church v. The Am. Rapid Telegraph Co., N. Y. Weekly Dig., vol. 11, No. 24, p. 553.)
But having arrived at the conclusion that the order made by Mr. Justice Mullin must be affirmed upon the merits, yre pass by this objection to the regularity of the appeal and proceed to consider the order on the merits.
The allegation in the complaint is that the executor, John A. Green, committed in his lifetime a devastavit of the estate of the said Elizabeth Bristol, and that he the said John A. Green died intestate, without ever having accounted as such executor and trustee for or paid over to any one entitled to receive the same, the money or property which came to his possession as such executor and trustee, and without having been in any manner discharged as such executor and trustee, and that at the time of his death the said John A. Green was bankrupt and insolvent, and unable to pay his debts in full, and that no payment whatever has been made on the sum so appropriated by said Green as aforesaid, except those made by the assignee in bankruptcy of Jay cox and Green. That there are no assets of the estate of said Green. That upon the death of said Green said Frank Hiscoek duly resigned as such executor and trustee of the said Elizabeth D. Bristol, and thereupon the plaintiff was by an order of this court duly appointed trustee of the estate of Elizabeth D. Bristol in the place and stead of said TIiscock and Green, which order is fully set forth in the complaint and purports to have been made on a full settlement of the accounts of said Hiseock as one of the executors and trustee of Mrs. Bristol. The complaint further alleges that on or about the 3d of April, 1873, an accounting was had before the surrogate of Onondaga between the representatives of the estate of Green and the said Bristol of the trust and of the receipts and disbursements of said Green as such executor and trustee, upon which accounting it was ascertained, determined and decreed that there was due from the estate of said Green, to the estate of said Bristol for moneys appropriated by said Green to his own use as such executor and trustee, the sum of $12,212.18, to which decree the plaintiff refers as a part of his complaint.
This is not an action on the bond given by Green with Haskin and *26Jaycox as his sureties under the statute, but is an action in equity for an accounting. It is impossible to bring an action on the bond, because of the fact that Green died before rendering any account and before any decree was made by the surrogate, and no judgment had been obtained against Green as executor. (2 R. S., 116, § 19, etc.)
Consequently the surrogate could not order the bond to be prosecuted, because Green had not refused or omitted to perform any decree made against him by the surrogate. The plaintiff cannot proceed in the Surrogate Court under the statute, because no decree was made against Green in his lifetime, and although the surrogate has determined the amount of the devastavit, the plaintiff cannot bring a suit against Green’s representatives because they have no funds with which to pay, and the surrogate cannot make a decree that the administrators of Green shall pay without first having-ascertained that they have assets in their hands applicable to such purpose, and for this reason probably the surrogate has made no order that Green’s administrators shall pay the amount which he found that Green had misappropriated of the estate of Elizabeth Bristol. This not being an action at law on the bond of Green and his sureties, the authorities cited by the appellants, showing how to sue upon the bond of one executor or administrator, and who can sue thereon, are not in point. They are under the statute applicable to cases where the executor or administrator had refused or omitted to comply with a decree.
The existence of a Surrogate Court and the equitable powers conferred upon it have not taken away or abridged any of the powers of a court of equity, and unless the plaintiff can have relief in a court of equity, the case would present the anomalous one of a party having a bond conceded to be valid without any mode of legally enforcing it.
The living surety, Jaycox, and the representatives of the deceased surety, Ilaskin, and the representatives of the deceased principal, Green, being all parties defendant, the1 court has power to compel an accounting for the trust estate and to decree payment of the amount at which it shall determine the devastavit by the principal or by his sureties in the same action, and will not compel the party beneficially interested in the bond, first to proceed against the representatives of the deceased insolvent principal to establish the *27abstract fact of the devastavit, and after having so established that fact, then to bring another action against the personal representatives of the deceased surety, to compel them to pay the amount thereof.
Whether the proceedings be in equity or at law, of course the devastavit must be established by competent evidence, as preliminary to the liability of the estate of Haskin, the surety on the bond of Green.
“ Where an administrator committing a devastmit is dead, equity will, before action establishing it, take cognizance of a suit against his sureties or their representatives, and the persons ■ interested in any estate which he may have left, and make them liable for any waste or misapplication of assets. But this would not be done in an ordinary case where the administrator is in full life and within the' reach of a court of law, or the Surrogate’s Court.” Such is the principle upon which the case of Carow v. Mowatt (2 Edw. Ch. R., 57), was decided, which ease was principally founded on the case of Spottswood v. Dandridge (4 Munf., 289), decided by the Court of Appeals of Virginia, and in which the latter court gave an elaborate opinion to the effect that a court of equity has jurisdiction in all such cases. The embarrassments in such cases growing out of the situation of the parties, which prevent or render the obtaining relief at law hazardous and uncertain, are a sufficient reason to give a court of equity jurisdiction, where all the parties in interest can be convened and justice administered according to the rights of each party.
The judgment appealed from is affirmed with costs to the respondent, and with leave to the appellants to withdraw their demurrer and to put in an answer in twenty days, on payment of costs of the appeal and demurrer.
Present — Talcott and Smith, JJT.; Mullin, P. J., not sitting.
Ordered accordingly. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125585/ | Talcott, P. J.:
The case in this action was submitted at the last General Term. The action is brought to recover the price of a mare sold by the plaintiff to the defendant in July or August, 1876, at the town of Augusta, in Oneida county, upon the ground that the defendant had passed to the plaintiff in payment for the agreed price of the mare, a forged note, purporting to be the note of D. B. Mason and Charles Mason, for $175, dated June 19, 1876, payable to the order of Charles Rider and indorsed by the latter, and the question principally in controversy was whether the note was in fact forged, or whether it was a valid note against the Masons.
The two Masons purporting to have signed the note are farmers residing in the town of Yernon, where they carry on a farm jointly.
The action was referred to B. J. Beach, before whom it was tried, and who, amongst other things, reported as follows:
“ On the nineteenth day of June, when they (the Masons) were together on their farm, a stranger accosted them and said he wanted to sell a mowing machine. They did not want to buy a mow*29ing machine, but they wanted to buy a cutter-bar for the machine they then owned, and the stranger said he had an adjustable euttei’bar, and he showed a sample of it with sections, and said it could be made to fit their machine, and if they were willing to pay the freight on one from Toledo to Oneida, they might have one free,, because he wanted to introduce the cutter-bar in their neighborhood. They asked him what the freight would be and he said about a dollar, and they said they would pay the freight from Toledo to Oneida and would also give him a shilling each for a set of extra sections. The stranger produced a pen, ink and paper on which he filled up a printed form having blank spaces, so that, the paper when filled up purported to be an agreement to pay freight on a cutter-bar and a shilling each for an extra set of sections. He asked Daniel B. Mason to sign, and Daniel supposing he was signing such an agreement as just stated, signed his own and his brother’s name thus to an instrument hereinafter more particularly described. Charles Mason was present and consented to the bargain and the signature. The stranger went off with the paper or papers. He was well-dressed and a good talker. * * * * *
“ A few days later, a man named Rider sold at Deansville, in the neighboring town of Marshall, three promissory notes,” among which was a note signed “ C. and D. B. Mason, for $175,” which was on a printed form having blank spaces filled in with pen and ink, and read thus : ***** *
“ $175. “ Yernon Centre, June 19, 1876.
Three months after date we promise to pay to the order of Charles Rider, one hundred and seventy-five dollars for value received, payable at First National Bank, Htica, New York.
C. & D. B. MASON.”
And the referee further found as follows: “And this was the paper that, in fact, was signed by the Mason brothers, as above stated, when they supposed they signed an agreement about a cutter-bar.” Rider sold the three notes to one Crackett to whom he was introduced by the landlord of the inn at Deansville as a person who was selling mowing machines and farming implements, and who had taken some notes which he wanted to dispose of, and Crackett bought the notes at a discount of twenty per cent. About a week *30later Crackett sold two of the notes so purchased for a valuable consideration to the defendant Miller.
In the latter part of July, 1876, Miller purchased from the plaintiff the mare in question, at the agreed price of $170, and gave the note of C. & D. B. Mason aforesaid in payment for the mare, Carey agreeing to pay Miller the five dollars by which the note exceeded the price of the mare, when he should collect the note. '
The plaintiff presented the note to the Masons the day after it matured, and they refused to pay it, “ declaring that they never had signed a note payable at the National Bank of Utica f and one of them tore off the signature. Carey went the same day with the note thus mutilated, without the signature, which the Masons kept, to Miller and acquainted him with their refusal to pay the note, and requested Miller to take back the note and pay him the price agreed to be paid for the mare. Miller declined to do this and insisted that the Masons should be compelled to pay the note.
And the referee further finds as follows: “ The note was the result of a fraud practiced on the Masons by the plausible stranger who called on them June 19, 1876. They had no idea of signing a note or of authorizing any note to be written over their signatures to what they supposed was an order for a cutter-bar. The stranger was a swindler and the note was a swindle in his hands. But the careless confidence of the Mason brothers in the plausible stranger contributed to the success of the swindle. Whether the written words and figures were inserted in the blanks of the printed form of note before or after the signature of the Masons was appended was immaterial. The note when offered for sale to Crackett bore every appearance of authenticity. The signature was genuine, and Crackett purchased the note without notice of the fraud practiced upon the signers. Before it fell due, Morris S. Miller, Jr., bought it of Crackett and paid full value for it without notice of the fraud. Before it fell due Miller paid it to plaintiff Carey as the equivalent of money, and Carey took it in good faith and parted with value for it before it was due, and as a conclusion of law the referee held that the paper in question, when it was transfen’ed to Carey in payment for the «nare, was in his hands a valid obligation on the part of the Masons to pay the sum of money named in it which he could enforce against them, and the plaintiff has no claim against the *31defendant for the price of the mare, and the referee directed that a judgment be entered that the complaint be dismissed. We think the decision of the referee was correct according to the cases. That providing a promissory note bears the genuine signature of the obligors which has been intrusted to the holder, the obliger is bound in favor of a holder for value who has taken the note before maturity, and with no notice of any fraud in obtaining the signature, provided there was no actual physical inability to ascertain what the tenor and effect of the instrument purporting to be signed in fact was. (See Whitney v. Snyder, 2 Lans., 477.) Though it seems incongruous to hold that an instrument, which is in fact a forgery, should create an obligation against the person upon whom the forgery has been committed. The principle adopted seems to be as stated in McWilliams v. Mason (31 N. Y., 294), that “the law imposes the loss on the party, who by his misplaced confidence has enabled another, on the faith of his obligation, to obtain money or property from an innocent third party.” Even the fact that the instrument, taken as a whole, is a forgery, for the making of which the party who makes it might be convicted of a felonious forgery, the party whose genuine signature is affixed is nevertheless held liable in favor ef a bona fide holder for value. (Van Duzer v. Howe, 21 N. Y., 531; see also Schultz v. Astley, 29 Eng. Com. L., 655.) The leading features of this case seem to be like the case of Chapman v. Hose, where the defendant entered into a contract with one Miller to act as the agent for the sale of a patent hay fork and pulley, a contract was filled out by Miller and signed by both, also an order which was signed by the defendant for one of the hay forks and two pulleys, for which by the order the defendant agreed to pay nine dollars. These were delivered to the defendant. Another paper was then presented to the defendant for his signature which Miller represented to be but a duplicate of the order. The defendant without reading or examining it, signed it, and delivered it to Miller. The paper so signed was the note in suit for $270. The plaintiff purchased' in good faith before maturity, paying therefor $245. It was held that the plaintiff could recover on the note on the ground that “ where one having the opportunity and power to ascertain with certainty the exact obligation be is assuming, yet chooses to rely on the statements of the person with *32whom he is dealing, executes a negotiable instrument without reading or examination as against a bona fide holder for value, he is bound by his act, and is estopped from claiming that he intended to sign an entirely different obligation, and that the statements upon which he relied were false. To avoid liability he must show that he was guilty of no laches or negligence in signing.”
Ve cannot understand how in the case at bar the fraud ujion the Masons was perpetrated, as one of the Mason brothers took the order for the cutter-bar, and as they say read it aloud, and then signed it in the name of both. But immediately after the transaction it appeal’s that the Masons suspected that the stranger was a dishonest man, and Charles Mason suggested to liis brother that there might be a note, saying: “ He will fill up a note and go to Yernon and sell it.” Charles Mason also testifies that when the stranger wrote the paper, which it appears was written on the bottom of the wagon, that although he stood looking over the stranger’s shoulder when he wrote it, he could not read what he wrote. David B. Mason testified: “ I cannot swear that I knew what he was writing as he wrote; cannot tell what he wrote; I saw him write it; cannot Say but he wrote a note then; I read what I signed — that was an order.” He also states that, “ there was space enough to write a note between where he left off writing the order and where I signed the signatures.”
The referee has found as a matter of fact that the instrument signed was the promissory note in question, and whether the fraud was perpetrated by some ingenious device in folding the paper, or whether the signatures were intrusted to Rider, with a sufficient blank space above them in which to write a note, it all comes to this, that the signature of the Masons was obtained by a fraud by which they in fact signed an instrument not contemplated, or negligently intrusted their blank signatures to this stranger, and thusr enabled him to commit a fraud upon an innocent party. We think, in view of what has been held in like cases, the referee came to the correct conclusion.
The judgment should be affirmed.
Present — Talcott, P. J., Smith and Hardin, JJ.
Judgment affirmed. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125586/ | Hardin, J.:
Cynthia A. Otis made a $600 note in 1876, and procured the indorsement of the plaintiff, a neighbor, thereon, and through ,S. B. Ilpham, as her agent, negotiated it for the loan of $600 in money *34from one Abel Davis, who took the note and held it till it matured, and then took another note in renewal and finally the $600 note in suit was given, and after its maturity, and after the plaintiff was fixed thereon as an indorser, he took up the note and now seeks to recover of the defendant. These facts were shown upon the trial, and no dispute arose in respect thereto.
It also appeared that the defendant resided in Rutland with her husband, and that she owmed a farm, and there was evidence given tending to establish that she is and was “ carrying on a separate business ; ” she has lived on the premises- some fifteen years and her husband lives there with her.
Mr. Upham, the cashier, testified that the defendant called upon him in 18Y5, and wanted to procure a loan, and he says, “she claimed to own a farm and be carrying it on — a farm in Rutland Hollow.”
She claimed to own the farm in her own right and to be carrying it on herself. “I sent to Abel Davis to see if he would loan-her $600, on a year’s time with Sewell Scott’s indorsement, and he concluded to take the note. * * * Mrs. Otis made the arrangement with me in person; I think Mr. Davis left his check with me and I delivered it.” * * * *
The court instructed the jury that in order to permit a recovery against a married woman upon a note, it must appear that it was either (first) given for the benefit of her separate estate, or (second) given in some business that she was carrying on.
The point here is, whether or not it was shown that the $600 note was given, either “ for the benefit of her separate estate or some business that she was carrying on.” This instruction was sufficiently favorable to the defendant. (Smith v. Kennedy, 13 Hun, 9.) It was held in Mc Very v. Canhill (70 N. Y., 295), that a married woman was liable upon her note given for borrowed money, for the avowed purpose of using the same for the benefit of her separate estate, though, in fact, it was not so applied.
The evidence before us would have justified a finding that such was her avowed object and purpose at the time she arranged for the loan of the money. Her representations at that time ought to estop 1 ér from maintaining a contrary uosition. (Bodine v. Killeen, 53 N. Y., 93.)
*35In Cashmam v. Henry (75 N. Y., 103), Andrews, J., clearly points out the principle upon which a married woman’s liability arises when she becomes the purchaser of real estate and assumes the payment of a mortgage resting thereon, although the purchase was not made for the purposes of trade or business.
It is difficult to see why she should not be liable for money loaned, as in the case before us, as well as for the payment of a mortgage which was assumed as a part of the purchase of the property so acquired by her.
In either case she receives and her estate derives the benefit, we must assume. In either case, in equity, she ought to pay, and that duty arises out of the exercise of her right to acquire property.
In Broome v. Taylor (76 N. Y., 564) it did not appear that the bond was given by the married woman for money loomed to her, and there is nothing in the opinion which conflicts with the views here expressed.
Again, the plaintiff being a surety for the defendant, the law presumes that she agreed, as a condition of her becoming such surety, to indemnify him against loss. lie had no defense to the note, and paid it because he was legally liable to pay, and she, upon her implied indemnity, ought to save him against any loss by reason of becoming her surety. (Vartie v. Underwood, 18 Barb., 561.)
From the views already stated we derive the conclusion that the verdict, judgment and order are right and should be sustained.
Talcott, P. J., and Smith, J., concurred.
Judgment and order affirmed. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125587/ | Hardin, J.:
February 6, 1877, the injuries were received, and September 7, 1877, this action was commenced to recover therefor. April 11, 1877, the legislature amended and added to the charter of the defendant, as will appear by chapter 127 of the Laws of 1877 (p. 132). The defense which the referee has sustained is predicated *37upon section 15 of that act. It first provides that the city of Oswego “ shall not be liable for the damage or injury sustained by any person in consequence of any sidewalk or crosswalk in said city being out of repair, unsafe, dangerous or obstructed by snow, ice or otherwise, unless actual notice of the defective, unsafe or obstructed condition of said sidewalk or crosswalk, shall have been given to the common council * * * at least forty-eight hours previous to su,ch damage or injury” And then follows, secondly, the words upon which the referee has put his decision of this case. These are the words :
“ All claims against the city for damage or injury alleged to have arisen from the defective, unsafe, dangerous or obstructed condition of any street, crosswalk, sidewalk, culvert or bridge of the city, or from negligence of the city authorities in respect to any such street, crosswalk, sidewalk, culvert or bridge,, shall within three months after the happening of such damage or injury, be presented to the common council by a writing signed by the claimant and properly verified, describing the time, place, cause and extent of the damage or injury. “ The omission to present such claim as aforesaid within said three months, shall be a bar to amy action or proceeding therefor against the city.”
These provisions were wholly new, and designed to work a radical change, in respect to enforcement of liabilities of the city. The one requiring actual notice to the common council, etc., forty-eight hours previous to such injury, must tend to greatly diminish, if not practically prevent the opportunity to persons receiving injuries to recover from the city.
The provision as to claims being presented within three months to the common council is also new, and seems to attach an absolute requirement upon the claimant, as an indispensable condition precedent to the right to recover for injuries sustained. The omission to present “ such claim ” within said three months shall be a bar to any action, etc.
Taking the whole language together, did the legislature intend that the latter provision should attach to and apply to claims or causes of action which had accrued prior to the passage of the act? The three months referred to seem to be those next after the happening of the injuries. That being so, it is important to notice *38that it is the omission to present within the said three months that is declared a bar to any action.
This view of the words helps to the construction which applies the whole section prospectively rather than retrospectively. Our views in respect to the general rule, which adopts the latter construction, when it will answer the exact letter and fair intent of the legislature, were expressed last term in Matilda Carpenter v. Anthony Shimer (24 Hun, 464), and we think a fair application of the rule there stated to this statute sanctions a construction which applies the statute exclusively to cases or injuries arising after its passage.
If there was a clear intent in terms expressed to apply the statute to injuries already incurred a different question would arise, but we think all of the language can receive full sense and meaning by applying it to cases arising.after its passage.
There is no declaration that the statute shall be construed to apply to injuries already sustained. (Berley v. Rampacher, 5 Duer, 188.) The current of authority seems to lead in favor of the construction we have stated. (McCahill v. Hamilton, 20 Hun, 388; Dash v. Van Kleeck, 7 John, 477; Palmer v. Conly, 4 Denio, 374; Butler v. Palmer, 1 Hill, 325 ; Benton v. Wickwire, 54 N. Y., 226 ; Ely v. Holton, 15 id., 597; Moore v. Mausert, 49 id., 333; New York and Oswego M. R. R. Co. v. Van Horn, 57 id., 476; Matter of Peugnet, 67 id., 444.) Dubois v. The City of Kingston, (20 Hun, 464), was disregarded in Carpenter v. Shimer (supra). (People v. Supervisors, 10 Wend., 363, and Hackley v. Sprague, Id., 113; Fairbanks v. Wood, 17 id., 330.)
The case of Acker v. Acker (81 N. Y., 143)'is not in conflict with the view stated. There the repeal of the act in respect to the disability of a married woman necessarily reached cases where the statute would have applied but for its repeal.
Forger, Ch. J., says: “ By the express terms of the act (see § 15), section five of it applies to actions then pending, or such as might thereafter be brought, and hence it must apply to all rights of action whether then accrued or thereafter to accrue.”
The cause of action was perfect in the plaintiff, February 6, 1877; and the statute of April 14, 1877, does not in terms nor by its fair .construction apply. If it were applied literally, the plaintiff would *39have had only fifty-three days in which to present a claim to the common council, as the statute provides that the claim to be presented must be within “ said three months ” after the happening of such damage.
We conclude that it was not the intent of the legislature that it should be applicable to causes of action perfect at the time of its passage. It was prospective and not to apply to cases where the right of recovery was perfect on the day of its passage. (Johnson v. Burrell, 2 Hill, 238.) The action was not barred. The referee was in error in so holding. As the question here presented cannot be changed by a new tidal, we deem it proper to order judgment for the plaintiff for the damages found by the referee.
Judgment should be reversed, and judgment ordered for the plaintiff for the amount of the damages found by the referee and interest.
Talcott, P. J., and Smith, J., concurred.
So ordered. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283953/ | ORDER
PER CURIAM
Samuel Selsor (“Appellant”) appeals from the judgment of the trial court entered after a jury convicted him of two counts of possession of child pornography in violation of section 573.037 RSMo (Cum. Supp. 2008), which sentenced him to concurrent terms of five 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 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 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283954/ | ORDER
PER CURIAM.
Appellant Robert Louis (“Louis”) appeals from the judgment of the motion court denying his Rule 24.0351 motion for post-conviction relief following an eviden-tiary hearing. Louis avers that the motion court clearly erred in denying his Rule 24.035 motion because there was an insufficient factual basis to support his 2011 guilty plea to driving while intoxicated. *452Louis further alleges that he was improperly convicted as an aggravated offender in 2013 for driving while intoxicated because his 2011 conviction was invalid.
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. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment of the motion court pursuant to Rule 84.16(b).
. All rule references are to Mo. R. Crim. P. (2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283957/ | ORDER
Per Curiam:
Mr. Timothy Clay, Jr., appeals the denial of a 29.15 post-conviction relief motion. He claims trial counsel was ineffective for failing to investigate and call the codefen-dant to corroborate a self-defense theory. He also claims appellate counsel was ineffective for failing to file surveillance video exhibits to support the insufficiency of evidence argument. We affirm.
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/5286389/ | OPINION
Keasler, J.,
delivered the opinion of the Court
in which Hervey, Alcala, Richardson, Yeary, Newell, Keel, and Walker, JJ., joined.
Kelvin Lee Roy was convicted of murder and sentenced to seventy-five years’ imprisonment. The trial judge denied his request for a jury instruction on the lesser-included offense of manslaughter. Because there was more than a scintilla of evidence that would allow a jury to rationally find that if Roy was guilty, he was guilty of only manslaughter, we reverse the court of appeals’ judgment affirming the tidal judge’s ruling and remand for a harm analysis.
I.
On February 7, 2014, Roy crashed into another vehicle and killed Alexandria Bertrand.
The State presented the following evidence. Roy was driving with his girlfriend, Taralynn Brown, when he suddenly “snapped.” Roy began muttering to himself and lit a cigarette that had been dipped in PCP, a “dip cigarette.” He refused to pull over despite Brown’s repeated and frantic requests that he do so. Multiple witnesses testified that Roy was driving in two lanes, swerving, and speeding. Brown started screaming for help and continued to ask Roy to pull over. Roy told Brown, “Oh, you’re scared? I’m going to kill both of us. I’m going to kill both of us.” Roy then drove toward the train tracks where two cars were stopped at the light. He accelerated. His car flew through the air and crashed into another car, propelling the passenger, Bertrand, out of that car and killing her.
Roy’s testimony at trial differed. According to Roy, he never “snapped” or threatened Brown’s life, and he never intended to harm Brown or kill Bertrand. He stated that he blacked out while driving and had no memory of the crash, but he did remember the following events. As Roy was driving, he and Brown drank alcohol and smoked marihuana. While driving, Roy lit and smoked a dip cigarette. He quickly began to feel dizzy and faint. Roy asked Brown to take control of the car and blacked out. His blood tested positive for benzodiazepine, phencyclidine (PCP), and tetrahydrocannabinol (THC). His blood-alcohol level was below the legal limit. Before the accident, dip cigarettes regularly made Roy feel dizzy and disoriented and *317once caused him to black out. Despite knowing the risks associated with drinking alcohol, smoking marihuana, and smoking dip cigarettes while driving, Roy chose to drive that night.
The State charged Roy with murder under Penal Code § 19.02(b)(2). A jury convicted Roy of murder and sentenced him to seventy-five years’ imprisonment. The indictment alleged that Roy intended to cause serious bodily injury to Taralynn Brown and committed an act clearly dangerous to human life—driving into another car—which caused the death of Alexandria Bertrand. Roy appealed his conviction, alleging that the trial judge erred by overruling his request for a jury instruction on the lesser-included offense of manslaughter. The court of appeals affirmed the conviction.1 We granted Roy’s petition for discretionary review to determine whether he was entitled to an instruction on the lesser-included offense of manslaughter.
II.
We apply a two-part analysis to determine whether a defendant is entitled to an instruction on a lesser-included offense.2 We begin by determining whether the offense in the requested instruction is a lesser-included offense of the charged offense.3 If it is, then we must decide whether a jury could, based on the admitted evidence, rationally find that if the defendant is guilty, he is guilty of only the lesser-included offense.4 Because we have previously held that manslaughter is a lesser-included offense of murder charged under § 19.02(b)(2), we move directly to the analysis’s second part.5
An instruction on a lesser-included offense is required only when there is some admitted evidence directly germane to that offense.6 We consider all admitted evidence without regard to the evidence’s credibility or potential contradictions or conflicts.7 An instruction is required if more than a scintilla of evidence establishes “that the lesser-included offense is a valid, rational alternative to the charged offense.”8 Although little evidence is needed to trigger an instruction, the relevant evidence must affirmatively “raise[] the lesser-included offense and rebut[ ] or negate[ ] an element of the greater offense.”9
Roy was charged with murder under § 19.02(b)(2) and requested an instruction on the lesser-included offense of manslaughter under § 19.04. To be entitled to the instruction, Roy must have presented more than a scintilla of evidence raising manslaughter under § 19.04 and rebutting or negating murder under § 19.02(b)(2).10 At trial, Roy testified that he never intended to injure Brown. This testimony negates the intent element of murder but does not, on its own, raise manslaughter.11
To raise manslaughter, Roy must have presented affirmative evidence that *318he recklessly caused the death of Alexandria Bertrand, specifically that he was aware of, but consciously disregarded, a substantial and unjustifiable risk that the result—a death—would occur.12 We look to the admitted evidence to determine whether Roy is entitled to the instruction.
The court of appeals correctly identified the two-part analysis, but misconstrued Schroeder v. State,13 Relying on Schroeder, the court of appeals held that, because Roy’s testimony demonstrated he was unconscious at the time of the accident, he was not entitled to an instruction on manslaughter.14 The court of appeals’ reliance on Schroeder was incorrect in two ways. First, Schroeder is factually distinguishable. Second, Schroeder does not, as the court of appeals posits, deny a manslaughter instruction to every defendant who claims not to remember causing the death of another.
Schroeder is factually distinguishable because Schroeder did not present any evidence that he engaged in reckless conduct before he blacked out or that whatever reckless conduct he might have engaged in was part of the same conduct that led to the victim’s death. Schroeder attempted to support his request for an instruction on manslaughter with the following evidence.15 He and the victim were arguing in the kitchen.16 Schroeder went to the bedroom to change, and the victim continued to yell at him.17 While in the bedroom, Schroeder heard things being broken and went to investigate.18 When he confronted the victim, the victim pointed a gun at him and threatened to kill him.19 Schroeder and the victim started to wrestle over the gun.20 Both fell to the ground, and Schroeder blacked out.21 Schroeder did not remember anything about the shooting except “hollering and screaming and then all of a sudden loud noises.... Loud noises and all of a sudden it’s quiet.”22
The evidence Schroeder presented failed to support his request for a manslaughter instruction because it did not support the inference that he consciously disregarded any risk or was even aware of any risk. “[T]he evidence of [Schroeder’s] struggle with the victim and his statements, ‘It was an accident’ and T didn’t mean to,’ [were] relevant to the defensive issues of accident and self defense[.]”23 But this evidence was not relevant to show that Schroeder was aware of, but consciously disregarded, a risk. Schroeder did not present evidence that he pointed the gun at the victim or that the gun went off during the struggle—behavior that we have previously found to be reckless.24 Although wrestling with a gun may be a substantial and un*319justifiable risk, the evidence did not permit a conclusion that Schroeder was aware of the risk. Further, according to Schroeder, the gunshot occurred after he and the victim had fallen down, at which point all he could remember was “hollering and screaming and then all of a sudden loud noises.”25
Whereas Schroeder did not present evidence that he consciously disregarded any risk, Roy presented evidence, outside of his inability to remember, that he disregarded the risk of causing a death because he drove while intoxicated. Roy testified that he was aware of the risks of driving while intoxicated. He testified that, before the accident, dip cigarettes regularly made Roy feel dizzy and disoriented and once caused him to lose consciousness. Roy testified that while driving that night he drank alcohol, smoked marihuana, and smoked a dip cigarette, and his blood-test results corroborated this aspect of his testimony. According to Roy, he was aware of, but consciously disregarded, the risks of driving while intoxicated.
Finally, Schroeder’s holding, which the court of appeals understood to bar any defendant who cannot remember causing a death from receiving a manslaughter instruction, does not apply in this case because the facts are distinct. We held that Schroeder was not entitled to a manslaughter instruction because “there [was] no evidence that would permit a jury to rationally find that at the time of the firing of the gun, [he] was aware of, but consciously disregarded, a substantial and unjustifiable risk that the victim would die as a result of his conduct.”26 Relying on this holding, the court of appeals required that Roy be aware of, but consciously disregard, a substantial and unjustifiable risk at the time of the death.27 But a defendant need not be aware at the moment the result occurs if he can show that he consciously disregarded the risk of the result and the result came from the same conduct. Roy’s alleged reckless conduct was driving while intoxicated despite the risk of causing death. According to his testimony, Roy was not conscious at the moment he caused Bertrand’s death. But Roy need not have been aware at the moment of death if he can present evidence that he was aware of, but consciously disregarded, the risk of causing an accident and that the death occurred as a result of the same conduct. Roy, unlike Schroeder, did present such evidence.
Roy was entitled to an instruction on manslaughter because a jury could have rationally found that Roy was guilty of only manslaughter. Roy’s reckless conduct—driving while intoxicated—was part of the same conduct that caused Bertrand’s death. Unlike Schroeder, who was “completely incognizant of what occurred at the time [he] engaged in the charged condüct[,]”28 a jury could rationally find that Roy was aware of, but consciously disregarded the substantial and unjustifiable risk of death by driving while intoxicated. Because Roy alleges that he consciously disregarded the risk of death and the death could have been caused by the same conduct, Roy’s inability to remember causing the death does not bar him from a manslaughter instruction. A jury could rationally find that Roy did not intend to harm Brown and that his reckless behavior caused Bertrand’s death.
III.
Because Roy presented evidence that raised manslaughter and negated murder, *320he was entitled to a jury instruction on the lesser-included offense of manslaughter. We reverse the court of appeals judgment and remand for a harm analysis.
Keller, P.J., dissented.
. Roy v. State, No. 09-14-00367-CR, 2015 WL 5042146, at *3-4 (Tex. App.—Beaumont Feb. 24, 2016) (not designated for publication).
. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011).
. Id.
. Id.
. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012).
. Goad, 354 S.W.3d at 446.
. Id.
. Id.
. Cavazos, 382 S.W.3d at 385.
. Tex. Penal Code §§ 19.02(a), 19.04(a).
. Cavazos, 382 S.W.3d at 385.
. See Tex. Penal Code §§ 19.04(a), 6.03(c),
. Roy, 2015 WL 5042146, at *3-4.
. Mat *4.
. Schroeder v. State, 123 S.W.3d 398, 399 (Tex. Crim. App. 2003),
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id. at 400.
. Ross v. State, 861 S.W.2d 870, 875 (Tex. Crim. App. 1992) (holding that a defendant who held a loaded, cocked gun at a victim's head when it accidentally discharged acted recklessly); Hayes v. State, 728 S.W.2d 804, 809-10 (Tex. Crim. App. 1987) (holding that a defendant whose gun accidentally discharged while he struggled with the victim acted recklessly).
. Schroeder, 123 S.W.3d at 399.
. Id. at 401 (emphasis in original).
. Roy, 2015 WL 5042146, at *4.
. Schroeder, 123 S.W.3d at 401. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283958/ | ORDER
PER CURIAM:
Following a jury trial, Daryl Lemasters was convicted in the Circuit Court of Platte County of four counts of statutory sodomy in the first degree, one count of enticement of a child, and one count of sexual exploitation of a minor. He was sentenced to 30 years’ imprisonment on each count, with the sentences to run consecutively. Lemasters appeals, contending that the trial court plainly erred by allowing the jury, during its deliberations, to review video recordings of forensic interviews of his minor victims. 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 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283960/ | Justice Green
delivered the opinion of the Court.
This case involves a federal statutory exception to the general rule that federal law preempts state law. One of the federal laws at issue, the McCarran-Ferguson Act (MFA), 15 U.S.C. §§ 1011-1015, provides an exemption from preemption that applies to state statutes enacted for the purpose of regulating the business of insurance. The trial court found that the MFA applied, triggering the exemption under which the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, would not preempt section 74.451 of the Texas Civil Practice and Remedies Code, relating to agreements to arbitrate health care liability claims. The trial court denied the defendant’s motion to compel arbitration because the arbitration clause did not comply with section 74.451 and was therefore invalid. The defendant filed an interlocutory appeal, and the court of appeals affirmed. 406 S.W.3d 313, 315 (Tex.App.-San Antonio 2013). We hold that the MFA does not apply to section 74.451 and reverse the court of appeals’ judgment.
I. Factual and Procedural Background
The Fredericksburg Care Company, L.P. (Fredericksburg), operates a health care facility — commonly known as a nursing home — that specializes in providing long-term care to patients. Elisa Zapata was a patient and resident under the care and supervision of Fredericksburg at the time of her death. Zapata’s death and survival beneficiaries (the Beneficiaries) sued Fredericksburg for negligent care and wrongful death. Fredericksburg moved to compel arbitration based on an arbitration clause contained in an agreement that Zapata signed prior to her admission into the nursing home.
It is undisputed that the pre-admission agreement’s arbitration clause did not comply with section 74.451’s requirement that an agreement to arbitrate a health care liability claim must contain a written notice in bold-type, ten-point font that conspicuously warns the patient of several important rights. See Tex. Civ. Prac. & Rem. Code § 74.451(a). Nonetheless, Fredericksburg’s motion to compel arbitration asserted that federal law should determine the enforceability of the arbitra*517tion clause because the underlying patient-provider transaction involved interstate commerce, which made the FAA applicable to the pre-admission agreement. In Fred-ericksburg’s view, the FAA preempted section 74.451 because the two laws directly conflicted, and the FAA therefore prevented the arbitration clause from being invalidated.
The Beneficiaries did not dispute Fred-ericksburg’s position that the FAA would normally preempt section 74.451. Rather, they argued that section 74.451 was part of a state law enacted for the purpose of regulating the business of insurance and fell within the protection of the MFA. The MFA trumped preemption under the FAA, the Beneficiaries argued, because Congress created an exemption from preemption for any federal law that could be “construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance.” See 15 U.S.C. § 1012(b). The trial court denied Fredericksburg’s motion to compel arbitration, and Fredericksburg filed an interlocutory appeal.
The court of appeals affirmed the trial court’s ruling. 406 S.W.3d at 315. The court of appeals noted that section 74.451 is part of the Texas Medical Liability Act (TMLA), and that Chapter 74 succeeded the Texas Medical Liability Insurance Improvement Act (TMLIIA). Id. at 320. After examining the reasoning of courts interpreting the earlier, substantially identical TMLIIA provision, the court of appeals concluded that “section 74.451 is part of a law enacted for the purpose of protecting and managing the performance of insurance policies in the area of medical malpractice and health care liability,” and therefore fell within the MFA’s protection. Id. at 324. In making this determination, the court of appeals looked to the legislative purpose behind Chapter 74 as a whole in deciding that it, much like its TMLIIA predecessor, was enacted to regulate the business of insurance in Texas. Id. at 324-25. The court of appeals held that the MFA applied to exempt section 74.451 from FAA preemption, and the trial court properly denied Fredericksburg’s motion to compel arbitration because the arbitration clause was unenforceable under section 74.451. Id. at 325-26. We granted Fredericksburg’s petition for review. 57 Tex. Sup. Ct. J. 305, 307 (Mar. 21, 2014).
II. FAA Preemption
The parties do not dispute that the FAA, when applicable, preempts section 74.451 except when an exemption applies. The trial court and court of appeals both assumed without deciding that the FAA applied in this case, allowing them to reach the MFA question. See id. at 322. This approach is consistent with the approach other courts of appeals have taken. See In re Sthran, 327 S.W.3d 839, 845-46 (Tex.App.-Dallas 2010, orig. proceeding); In re Kepka, 178 S.W.3d 279, 288 n.9 (Tex.App-Houston [1st Dist.] 2005, orig. proceeding), disapproved of on other grounds by In re Labatt Food Serv., L.P., 279 S.W.3d 640 (Tex.2009) (orig. proceeding). We note, however, that if the FAA does not apply, then section 74.451 is not preempted and it is unnecessary to address whether the MFA provides an exemption from FAA preemption.
The FAA applies to arbitration clauses in contracts that affect interstate commerce. In re L & L Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex.1999) (orig. proceeding) (per curiam) (recognizing that the FAA “extends to any contract affecting commerce, as far as the Commerce Clause of the United States Constitution will reach”) (citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273-77, 115 S.Ct. 834, 130 L.Ed.2d 753 *518(1995)). We have previously concluded that evidence of Medicare payments made to a health care provider on a patient’s behalf was “sufficient to establish interstate commerce and the FAA’s application” to the case. In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex.2005) (orig. proceeding) (per curiam). The record in this case reflects that Fredericksburg received Medicare payments on behalf of the deceased patient, Zapata, and the parties have never challenged the applicability of the FAA. in this case. See id. We therefore assume, as did the trial court and court of appeals, that the FAA applies here.
In 2005, this Court held that the FAA preempted a Texas Arbitration Act (TAA) requirement that an attorney sign a client’s agreement to arbitrate a personal injury claim. Id. This was because the TAA required an additional element — the attorney’s signature — that the FAA did not, and the laws were in direct conflict. Id. Applying that precedent here, section 74.451’s requirement that an arbitration clause provide a bold and conspicuous warning of a patient’s right to consult an attorney and the requirement that an attorney must sign the agreement are additional requirements that directly conflict with the FAA, which contains no such requirements. See id.; see also Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 683, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (finding that the FAA preempted a nearly identical statute that required a specific notice to appear , on the first page of an agreement containing an arbitration clause). Compare 9 U.S.C. § 2, with Tex. Civ. PRac. & Rem. Code § 74.451(a). Thus, the FAA preempts section 74.451 and the parties will be compelled to arbitrate— despite the arbitration clause’s deficiencies under section 74.451 — unless the MFA exempts the Texas law from FAA preemption.
III. MFA Applicability
The MFA provides that the regulation and taxation of the business of insurance is a matter of state law. See 15 U.S.C. § 1012(a). The MFA provision at issue here, section 1012(b), states in full:
No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State law.
Id. § 1012(b) (first emphasis added) (citation omitted). This case requires us to interpret and apply federal preemption law, and therefore United States Supreme Court precedent controls the outcome. See Eichelberger v. Eichelberger, 582 S.W.2d 395, 401 (Tex.1979). In analyzing the MFA, the Supreme Court observed that section 1012(b) is divided into two clauses. U.S. Dep’t of Treasury v. Fabe, 508 U.S. 491, 504, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993). The second clause deals with antitrust matters, see id. and is not at issue here. This case concerns the MFA’s first clause, which applies to laws “enacted by any State for the purpose of regulating the business of insurance.” 15 U.S.C. § 1012(b). Courts have analyzed the MFA’s first clause under a three-part test that determines whether: “(1) the federal statute does not specifically relate to the ‘business of insurance,’ (2) the state *519law was enacted for the ‘purpose of regulating the business of insurance,’ and (3) the federal statute operates to ‘invalidate, impair, or supersede’ the state law.” Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 590 (5th Cir.1998); see also Davister Corp. v. United Republic Life Ins. Co., 152 F.3d 1277, 1279 n.1 (10th Cir.1998). The MFA applies here if each part of the test is satisfied. See Davister Corp., 152 F.3d at 1280 n.2 (“[The] three-part test must be satisfied before the [MFA] can apply.”).
Regarding the first part of the test, every court that has considered the FAA in this context has concluded that the FAA does not specifically relate to the business of insurance. See, e.g., Munich Am. Reinsurance Co., 141 F.3d at 590; Am. Bankers Ins. Co. of Fla. v. Crawford, 757 So.2d 1125, 1131 (Ala.1999). We agree that “[t]here is no question that the FAA does not relate specifically to the business of insurance,” Munich Am. Reinsurance Co., 141 F.3d at 590, and therefore part one of the test is satisfied. Moreover, the third part of the test is satisfied by our conclusion that the FAA directly conflicts with, and preempts, section 74.451 absent an exemption, and therefore operates to “invalidate, impair, or supersede” our state law. See 15 U.S.C. § 1012(b). Thus, only the second part of the test remains, and we must decide whether the state law in question was “enacted by [the State of Texas] for the purpose of regulating the business of insurance.” See id.
We first consider exactly which state law is in question. Both parties’ main arguments focus on whether courts performing an MFA analysis should look at the specific statutory provision in dispute (section 74.451) or the state law in its entirety (Chapter 74). The parties highlight instances where courts have employed each approach. The court of appeals analyzed Chapter 74 as a whole in finding the MFA applicable. 406 S.W.3d at 325.
Fredericksburg contends that Fabe requires us to analyze section 74.451 — a law that regulates the contents of an agreement to arbitrate a health care liability claim between a patient and a health care provider1 — in isolation from the statutory scheme that surrounds it. Because we cannot look any further, according to Fredericksburg, section 74.451 cannot be viewed as a law enacted for the purpose of regulating the business of insurance to warrant MFA protection. See Garcia v. Island Program Designer, Inc., 4 F.3d 57, 61-62 (1st Cir.1993) (citing Fabe, 508 U.S. at 508-10, 113 S.Ct. 2202) (analyzing a single provision in an insurance company liquidation and insolvency statute instead of examining the statute as a whole), abrogated on other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); see also Allen v. Pacheco, 71 P.3d 375, 383 (Colo.2003) (analyzing a specific statute and finding it “irrelevant” that other sections of the greater statutory scheme “address medical malpractice issues not involving the relationship between an insurer and insured”).
Fabe’s guidance for how to evaluate a statute under the MFA is not as clear as Fredericksburg suggests, however. As recognized by the United States Court of Appeals for the Fifth Circuit:
Fabe’s holding and analysis suggest that a statute may require parsing to determine the extent of its pre-emptive power *520under the [MFA]. At the same time, however, the Court stopped short of directing that this approach be taken in every case. See [Fabe, 508 U.S. at 509 n.8, 113 S.Ct. 2202.]. Fabe’s holding in this respect is simply unclear.
Munich Am. Reinsurance Co., 141 F.3d at 592 (emphasis added). In addition, the Beneficiaries point to an instance in which a court has taken the approach of evaluating the entire state statutory scheme in performing an MFA inquiry. See Stephens v. Am. Int’l Ins. Co., 66 F.3d 41 (2d Cir.1995). The United States Court of Appeals for the Second Circuit analyzed an anti-arbitration provision that was part of a state law that regulated insurance company liquidations, andThat court refused to limit its focus to the anti-arbitration provision. See id. at 45. Instead, the court evaluated how the anti-arbitration provision related to the comprehensive regulatory scheme of the liquidation act as a whole. See id.
In determining whether to look at the entire act or the specific statute that conflicts with federal law, we cannot ignore the language of the MFA itself, which exempts from preemption “any law enacted by any State for the purpose of regulating the business of insurance.” 15 U.S.C. § 1012(b) (emphasis added). Thus, determining a state’s purpose in enacting a law is fundamental to a first-clause MFA inquiry. We do not read Fabe to alter the applicability of our well-established rules for discerning a statute’s purpose, under which “[w]e determine legislative intent from the entire act and not just isolated portions.” 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex.2008) (citing State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002)). Further, “we will try to avoid construing a statutory provision in isolation from the rest of the statute; we should consider the act as a whole, and not just single phrases, clauses, or sentences.” City of Austin v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002) (citation omitted); accord Calvert v. Tex. Pipe Line Co., 517 S.W.2d 777, 781 (Tex.1974) (“An equally fundamental rule of statutory construction is that the intention of the Legislature must be ascertained from the entire Act, and not from isolated portions thereof.”) (citing City of Mason v. W. Tex. Utils. Co., 150 Tex. 18, 237 S.W.2d 273 (1951)); see also Tex. Gov’t Code § 311.023 (establishing principles to assist courts in construing statutes); cf. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 36, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (describing a “central tenant” of statutory interpretation “that a statute is to be considered in all its parts when construing any one of them”).
Accordingly, to decide whether section 74.451 is a “law enacted by [the State of Texas] for the purpose of regulating the business of insurance,” 15 U.S.C. § 1012(b), we first consider how that section fits within the framework of Chapter 74 as a whole., See 20801, Inc., 249 S.W.3d at 396 (stating that “when interpreting [a specific statutory section], we must consider its role in the broader statutory scheme”). This is consistent with the approach taken in Fabe. See Fabe, 508 U.S. at 494-97, 113 S.Ct. 2202.
A. Chapter 74
At the outset of the Fabe opinion, the Supreme Court carefully explained how the disputed statutory provision — an Ohio law that established a priority distribution hierarchy for claimants against insolvent insurance companies — fit within a broader legal structure. Id. at 494, 113 S.Ct. 2202. The Court began by recognizing that “[t]he Ohio priority statute was enacted as part of a complex and specialized administrative structure for the regulation of insurance companies from incep*521tion to dissolution.” Id. (emphasis added). Then the Court quoted the Ohio law’s self-stated purpose, detailed the entire chapter’s framework, and outlined some of the broad powers the chapter granted to state administrators in performing the law. Id. The Court concluded that “[i]t seems fair to say that the effect of all this is to empower the liquidator to continue to operate the insurance company in all ways but one — the issuance of new policies.” Id. In other words, the Supreme Court did not analyze the specific state statutory provision that conflicted with federal law until it first considered the overall purpose, structural framework, and effect of the entire state law. We will do the same.
In evaluating the purpose and overall structure of Chapter 74, we must keep in mind the necessary focus of an MFA analysis. The MFA focuses “upon the relationship between the insurance company and its policyholders.” Id. at 501, 118 S.Ct. 2202. “Statutes aimed at protecting or regulating this relationship [between the insurer and the insured], directly or indirectly are laws regulating the ‘business of insurance.’” SEC v. Nat’l Sec., Inc., 393 U.S. 453, 460, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). “The broad category of laws enacted ‘for the purpose of regulating the business of insurance’ consists of laws that possess the ‘end, intention, or aim’ of adjusting, managing, or controlling the business of insurance.” Fabe, 508 U.S. at 505, 113 S.Ct. 2202 (quoting Black’s Law Dictionary 1236, 1286 (6th ed. 1990)). A tenuous connection to the ultimate aim of insurance, however, is insufficient to escape preemption. Id. at 509, 113 S.Ct. 2202 (citing -with approval Langdeau v. United States, 363 S.W.2d 327 (Tex.Civ.App.-Austin 1962, no writ)).
“The relationship between insurer and insured, the type of policy which could be issued,-its reliability, interpretation, and enforcement — these were the core of the ‘business of insurance.’ ” Nat’l Sec., Inc., 393 U.S. at 460, 89 S.Ct. 564. Fabe noted that the category of laws “enacted by any State for the purpose of regulating the business of insurance” necessarily encompasses “more than just the ‘business of insurance.’” Fabe, 508 U.S. at 505, 113 S.Ct. 2202. Nonetheless, Fabe stated that an analysis of what activities constitute the “business of insurance” can be relevant to the inquiry of whether a law was enacted for the purpose of regulating the business of insurance. See id. at 502-05, 113 S.Ct. 2202. Courts apply three non-dispositive criteria in evaluating whether a practice is part of the “business of insurance,” considering whether: “(1) the practice has the effect of transferring or spreading a policyholder’s risk; (2) the practice is an integral part of the policy relationship between the insurer and the insured; and (3) the practice is limited to entities within the insurance industry.” Munich Am. Reinsurance Co., 141 F.3d at 590-91 (citing Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982)).2
*522“Insurance companies may do many things which are subject to paramount federal regulation; only when they are engaged in the ‘business of insurance’ does the [MFA] apply.” Nat’l Sec. Inc., 393 U.S. at 459-60, 89 S.Ct. 564. Examples of practices that fall within the scope of the MFA include the fixing of rates, the selling and advertising of policies, and the licensing of insurance companies and their agents. See id. at 460, 89 S.Ct. 564. Other examples include the writing of insurance contracts and the actual performance of those contracts. Fabe, 508 U.S. at 503, 113 S.Ct. 2202. One court has summarized that “[t]he ‘business of insurance’ refers to the marketing, selling, entering into, managing, servicing, and performing of insurance contracts.” Life Partners, Inc. v. Morrison, 484 F.3d 284, 294 (4th Cir.2007).
With the Supreme Court’s guidance in mind, we evaluate the Legislature’s purpose in enacting Chapter 74. We have previously explained Chapter 74’s history:
The TMLIIA was enacted in 1977 to relieve a medical “crisis having a material adverse effect on the delivery of medical and health care in Texas.” Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977 Tex. Gen. Laws 2039, 2040 (repealed 2003). In 2003, facing another “medical malpractice insurance crisis” and a corresponding “inordinate[]” increase in the frequency of [health care liability claims] filed since 1995, the Legislature repealed the TMLIIA, amending parts of the previous article 4590i and recodifying it as Chapter 74 of the Texas Civil Practice and Remedies Code.
Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex.2012) (alterations in original) (citation omitted). Regarding Chapter 74’s predecessor, article 4590i, we have stated that:
As its title suggests, the “Medical Liability and Insurance Improvement Act of Texas” was expressly intended to reduce costs of medical insurance. See art. 4590i, § 1.01. The reason for enactment was a “medical malpractice insurance crisis in the State of Texas.” Id. § 1.02(a)(5) (emphasis added). Of the 13 legislative findings stating why Article 4590i was adopted, virtually every one is expressly related to the cost of malpractice insurance. See id. § 1.02(a).
Aviles v. Aguirre, 292 S.W.3d 648, 649 (Tex.2009) (per curiam). Concerning Chapter 74’s structure, we have recognized that “[t]he TMLA provides a statutory *523framework governing health care liability claims.” CHCA Woman’s Hosp., L.P. v. Lidji 403 S.W.3d 228, 232 (Tex.2013). Specifically relating to insurance, we have acknowledged that:
[Chapter 74] was enacted in 2003 as part of House Bill 4, a top-to-bottom overhaul of Texas malpractice law to “make affordable medical and health care more accessible and available to the citizens of Texas,” and to “do so in a manner that will not unduly restrict a claimant’s rights any more than necessary to deal with the crisis.” The omnibus bill makes explicit findings describing the Legislature’s concern that a spike in healthcare-liability claims had fueled an insurance crisis that was harming healthcare delivery in Texas. The Legislature specifically found that the crisis had often made insurance unavailable at any price.
Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 287 (Tex.2010) (citations omitted). “Fundamentally, the goal of the [TMLIIA] and the [TMLA] has been to make health care in Texas more available and less expensive by reducing the cost of health care liability claims.” Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex.2011). Most recently, we described that the TMLA “was aimed at broadening access to health care by lowering malpractice insurance premiums.” Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 707 (Tex.2014).
Thus, we have made it abundantly clear that the TMLA and its predecessor were laws enacted for the purpose of making health care more affordable in Texas. As noted, the TMLA sought to achieve this goal by “reducing the cost of health care liability claims.” Scoresby, 346 S.W.3d at 552. In other words, Chapter 74 was a law enacted for the purpose of imposing tort reform to further the goal of making health care more affordable in Texas. But this says little about how Chapter 74 regulates the “business of insurance” as the Supreme Court has explained that phrase.
The court of appeals focused entirely on how Chapter 74 impacts the relationship between malpractice insurers and health care providers, but failed to consider how Chapter 74 related to the relationship between patients and their insurance companies. Cf. Nat’l Sec. Inc., 393 U.S. at 460, 89 S.Ct. 564 (“The crucial point is that here the State has focused its attention on stockholder protection; it is not attempting to secure the interests of those purchasing insurance policies.”). The Beneficiaries contend that the preamble to the TMLIIA, which was copied into the legislative findings for the TMLA but did not make it into the statutory text, establishes the Legislature’s purpose of enacting “a comprehensive statutory scheme to protect the relationship between health care provider policyholders and' insurers.” Although ignored by both the court of appeals and the Beneficiaries, several of the legislative findings also addressed how the so-called “medical malpractice crisis” impacted health care patients:
(8) the direct cost of medical care to the patient and public of Texas has materially increased due to the rising cost of malpractice insurance protection for physicians and hospitals in Texas;
(9) the crisis has increased the cost of medical care both directly through fees and indirectly through additional services provided for protection against future suits or claims, and defensive medicine has resulted in increasing cost to patients, private insurers, and Texas and has contributed to the general inflation that has marked health care in recent years;
*524(10) satisfactory insurance coverage for adequate amounts of insurance in this area is often not available at any price[J
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11 (a)(8) — (10), 2003 Tex. Gen. Laws 884-85. Another finding summarized the effect of the law: “the adoption of certain modifications in the medical, insurance, and legal systems, the total effect of which is currently undetermined, will have a positive effect on the rates charged by insurers for medical professional liability insurance.” Id. § 10.11(a)(12) (emphasis added).
These legislative findings stop short of establishing a purpose of regulating the “business of insurance” under relevant Supreme Court precedent. Although the future effect of the changes were uncertain when the Legislature enacted Chapter 74, it is possible the reform that was implemented ultimately “result[ed] in cost savings to [the insurer] which may be reflected in lower premiums if the cost savings are passed on to policyholders.” Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 216, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). But in Royal Drug, the Supreme Court recognized that even when insurance companies lowered rates and passed along cost savings, that was too broad for purposes of the MFA, “which exempts the ‘business of insurance’ and not the ‘business of insurance companies.’ ” Id. at 216-17, 99 S.Ct. 1067. Such aspirations of lower insurance rates were the entire reason Chapter 74 was enacted — to place limitations on health care liability claims so that medical malpractice insurers would lower rates for health care providers in hope that those cost savings would trickle down to patient policyholders and their insurers. This tenuous impact on the “business of insurance” is insufficient to extend MFA protection to Chapter 74. See id; see also Fabe, 508 U.S. at 508-09, 113 S.Ct. 2202 {“Royal Drug rejected the notion that such indirect effects are sufficient for a state law to avoid pre-emption under the [MFA].”) (citations omitted).
Although Chapter 74 as a whole has too tenuous of a connection to the “business of insurance” for purposes of the MFA, we must not forget Fabe’s directive that “[t]he broad category of laws enacted ‘for the purpose of regulating the business of insurance’ consists of laws that .... necessarily encompass[] more than just the ‘business of insurance.’” Fabe, 508 U.S. at 505, 113 S.Ct. 2202 (quoting Black’s Law Dictionary 1236, 1286 (6th ed. 1990)). This broader category includes “laws that possess the ‘end, intention, or aim’ of adjusting, managing, or controlling .the business of insurance.” Id.
The court of appeals examined Chapter 74 as a whole, relied on opinions of several other courts of appeals that have analyzed the TMLA or its predecessor, and concluded that “section 74.451 is part of a law enacted for the purpose of protecting and managing the performance of insurance policies in the area of medical malpractice and health care liability, and is therefore within the broad category of laws enacted ‘for the purpose of regulating the business of insurance.’” 406 S.W.3d at 324. In reaching this conclusion, the court of appeals believed it was necessary to consider the three Pireno criteria. Id. It emphasized Fabe ⅛ recognition that “performance of an insurance contract satisfies all three Pireno criteria because without performance there is no transfer of risk, and performance of a policy is integral to the insurer/insured relationship and is confined to entities within the insurance industry.” Id. (citing Fabe, 508 U.S. at 503-04, 113 S.Ct. 2202). In essence, the court of appeals focused on the relationship between medical malpractice insurers and *525health care providers, and joined other Texas courts that have held “that section 74.451 was enacted as part of an effort to regulate the business of medical malpractice insurance in Texas.” Id. at 326.
The court of appeals and the Beneficiaries both reach bare, unsupported conclusions that Chapter 74 is aimed at managing or enforcing the performance of insurance contracts. In Fabe, the Supreme Court held that the Ohio priority statute was “integrally related to the performance of insurance contracts” because it was “designed to carry out the enforcement of insurance contracts by ensuring the payment of policyholders’ claims despite the insurance company’s intervening bankruptcy.” Fabe, 508 U.S. at 504, 113 S.Ct. 2202. In contrast, Chapter 74 has no bearing on whether a claim is paid or coverage is denied, nor does it prescribe the terms of insurance contracts or set the rates that insurance companies can charge. See id. at 502-04, 113 S.Ct. 2202. Chapter 74 is also silent about “the type of policy which could be issued, [or] its reliability, interpretation, and enforcement.” Nat’l Sec., Inc., 393 U.S. at 460, 89 S.Ct. 564. In fact, the only possible thread tying Chapter 74 to insurance contracts is the aspiration of lower premium rates, which, as noted, is not enough to qualify for the MFA’s protection under Royal Drug. See Royal Drug, 440 U.S. at 216-17, 99 S.Ct. 1067. Once the parties to an insurance contract agree upon a premium rate, Chapter 74 ceases to matter to the relationship between the insurer and the insured.
The Beneficiaries have failed to show th.at Chapter 74 is aimed at protecting or regulating the performance of an insurance contract in satisfaction of all three Pireno factors. See Fabe, 508 U.S. at 504-05, 113 S.Ct. 2202 (concluding that performance of an insurance contract satisfies all three Pireno factors, and laws “ ‘aimed at protecting or regulating’ the performance of an insurance contract” fall within the MFA). The Beneficiaries offer no other support for the court of appeals’ conclusion that Chapter 74 was enacted to regulate the business of insurance. For purposes of the MFA, we are satisfied that Chapter 74, as a whole, was not a law enacted by the Texas Legislature for the purpose of regulating the business of insurance. The court of appeals erred in concluding otherwise.
B. Section 74.451
Because the test to determine whether laws are enacted for the purpose of regulating the business of insurance is broad, it is possible that a law, in its entirety, would fail to qualify for the MFA’s exemption from preemption, but a specific statutory provision could qualify by “possess[ing] the end, intention, or aim of adjusting, managing, or controlling the business of insurance.” Fabe, 508 U.S. at 505, 113 S.Ct. 2202 (internal quotations omitted); see, e.g., Pacheco, 71 P.3d at 383 (“It is irrelevant that other sections of the [Colorado Health Care Availability Act], outside of sections 13-64-403(3) and (4), address medical malpractice issues not involving the relationship between an insurer and insured.”). As one court of appeals has recognized, “Fabe teaches that the entirety of a statute need not be treated in' such a way as to overlook the particularized goals of discrete statutory provisions.” Villas of Mount Pleasant, LLC v. King, 454 S.W.3d 689, 696 (Tex.App.-Texarkana 2014, no pet.). Therefore, it is necessary to also analyze whether section 74.451 was enacted for the purpose of regulating the business of insurance.
The court of appeals considered the greater statutory scheme that section *52674.451 was enacted under but failed to give meaning to Fabe ⅛ holding that the parts of a state law that conflict with a federal law are exempt from preemption under the MFA only “to the extent that [the state statute] regulates policyholders.” Fabe, 508 U.S. at 508, 113 S.Ct. 2202. In other words, we interpret Fabe to mean that courts must also look to the specific provision of state law that conflicts with federal law to determine whether the clashing parts of the state law were enacted for the purpose of regulating the business of insurance. Id. at 509, 113 S.Ct. 2202 (“By this decision, we rule only upon the clash of priorities as pronounced by the respective provisions of the federal statute and the Ohio Code.”); see also Am. Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 708 (5th Cir.2002) (“The party seeking to avail itself of the [MFA] must demonstrate that application of the FAA would invalidate, impair, or supersede a particular state law that regulates the business of insurance.”) (emphasis added). This approach aligns with the fact that the FAA does not conflict with all of Chapter 74, but only with section 74.451.3
At the outset, Fabe expressly recognized that the Ohio priority statute was enacted as part of an “administrative structure for the regulation of insurance companies.” Fabe, 508 U.S. at 494, 113 S.Ct. 2202. Yet merely being a part of an overall scheme that was enacted to regulate insurance companies was insufficient to exempt the entire priority statute from preemption, see id. at 508-09, 113 S.Ct. 2202, and the Supreme Court expressly rejected an all- or-nothing approach that would treat the statute “as a package which stands or falls in its entirety.” Id. at 509, 113 S.Ct. 2202 n.8. Instead, the Court looked closely at the statute and parsed through it to determine which parts of the priority scheme regulated policyholders. Id. at 508-09, 113 S.Ct. 2202.
Here, although the court of appeals recognized this essential part of Fabe ⅛ holding, it distinguished Fabe by concluding that section 74.451 did not share the same sort of “dual goals” as the Ohio statute that led to the Court’s careful parsing in Fabe. 406 S.W.3d at 325. The court of appeals held, albeit incorrectly, that section 74.451 was part of a law enacted for the purpose of regulating the business of insurance, and it looked no further. Id. at 324. In an opinion that the court of appeals relied on heavily, another court of appeals reached a different conclusion. See Kepka, 178 S.W.3d at 291. Kepka noted how the arbitration provisions in the TMLIIA related to the Legislature’s overall statutory purpose and took care to point out that “the Legislature not only intended to protect patients by it, but could also have determined that the section’s protections could reduce litigation over arbitration agreements’ enforceability — thereby keeping down this aspect of litigation cost.” Id. We agree with Kepka in this limited respect, and bearing in mind the greater statutory framework in which it was enacted, we look to whether the Legislature enacted section 74.451 for the purpose of regulating the business of insurance.
Much like the rest of Chapter 74, section 74.451 has little to do with “the relationship between the insurance company and *527its policyholders.” See Fabe, 508 U.S. at 501, 113 S.Ct. 2202; see also Villas of Mount Pleasant, LLC, 454 S.W.3d at 696 (“[Section 74.451] has nothing to do with the relationship between insurers and insureds and is not integral to that relationship”). Relevant here, section 74.451(a) states:
No physician, professional association of physicians, or other health care provider shall request or require a patient or prospective patient to execute an agreement to arbitrate a health care liability claim unless the form of agreement delivered to the patient contains a written notice in 10-point boldface type clearly and conspicuously stating:
UNDER TEXAS LAW, THIS AGREEMENT IS INVALID AND OF NO LEGAL EFFECT UNLESS IT IS ALSO SIGNED BY AN ATTORNEY OF YOUR OWN CHOOSING. THIS AGREEMENT CONTAINS A WAIVER OF IMPORTANT LEGAL RIGHTS, INCLUDING YOUR RIGHT TO A JURY. YOU SHOULD NOT SIGN THIS AGREEMENT WITHOUT FIRST CONSULTING WITH AN ATTORNEY.
Tex. Civ. PRAC. & Rem. Code § 74.451(a). Section 74.451 concerns the relationship between the patient and the health care provider. It recognizes the patient’s right to assert a health care liability claim against the health care provider and requires the health care provider to give specific notice to the patient to effectuate an agreement to arbitrate a claim. See id. Section 74.451 is not an arbitration statute of general applicability, which courts have routinely held to fall beyond the scope of the MFA, e.g., Hart v. Orion Ins. Co., 453 F.2d 1358, 1360 (10th Cir.1971), because it applies only to agreements to arbitrate health care liability claims. See Pacheco, 71 P.3d at 381-82 (concluding that the contested arbitration statute “is not a statute of general applicability because it targets only arbitration agreements contained in medical services contracts”). Conversely, section 74.451 is also not an arbitration statute that relates specifically to insurance contracts, which courts have found to fall under the MFA’s protection. See e.g., Nat’l Home Ins. Co. v. King, 291 F.Supp.2d 518, 529 (E.D.Ky.2003) (surveying cases and concluding that “both federal and state courts have held that state statutes that invalidate arbitration clauses specifically as to insurance contracts are indeed ‘enacted for the purpose of regulating the business of insurance’ and thus not preempted by the FAA by virtue of the [MFA] ”). Section 74.451 is therefore an arbitration statute of specific applicability that applies to agreements to arbitrate health care liability claims. Section 74.451 does not, however, apply directly to insurance contracts. See Life Partners, Inc., 484 F.3d at 293 (citing Pireno, 458 U.S. at 130, 102 S.Ct. 3002) (“A contract of insurance is one by which an insured transfers risks to an insurer for the payment of a premium.”).
The Beneficiaries nonetheless contend that “section 74.451 applies to the processing of disputed claims against policyholders, which has a direct and substantial effect on the performance of an insurance company’s defense and indemnity obligations under its insurance contract with the policyholders.” Once again, both the Beneficiaries and the court of appeals fail to explain how enforcement of the arbitration clause in Zapata’s pre-admission agreement with Fredericksburg relates to the performance of the insurance contract between either the patient and her insurer or the health care provider and its insurer. The pre-admission agreement was not “between insurer and insured.” See Royal Drug Co., 440 U.S. at 216, 99 S.Ct. 1067. Rather, it was a separate contractual ar*528rangement between an insured patient and a presumably insured health care provider engaged in performing services other than insurance.4 See id.; see also St. Bernard Hosp. v. Hosp. Serv. Ass’n of New Orleans, Inc., 618 F.2d 1140, 1145 (5th Cir. 1980) (holding that a contract for the purchase of goods and services did not fall within the meaning of “business of insurance”). In other words, section 74.451 “may serve to protect someone who happens to be an ‘insured,’ but it does not protect that person in his capacity as a party to a contract of insurance.” See Autry, 144 F.3d at 1044.
Thus, the Beneficiaries’ argument stretches the scope of the MFA too far by suggesting that the inclusion of particular terms in an insurance contract can invoke the MFA’s protection. The correct focus of the MFA inquiry is to identify the “law enacted by any State for the purpose of regulating the business of insurance.” 15 U.S.C. § 1012(b) (emphasis added). The only law at issue here — section 74.451 — is a law that regulates the relationship between patients and health care providers, and “it is not attempting to secure the interests of those purchasing insurance policies.” Nat’l Sec., 393 U.S. at 460, 89 S.Ct. 564. Moreover, no component of section 74.451 seeks to ensure that “policyholders ultimately will receive payment on their claims.” Fabe, 508 U.S. at 506, 113 S.Ct. 2202. The Beneficiaries have failed to show that section 74.451 is aimed at protecting or regulating the performance of a contract of insurance — either between the health care provider and its malpractice insurer, or the patient and its insurer — to satisfy all three Pireno factors. See id. at 504-05, 113 S.Ct. 2202 (concluding that performance of an insurance contract satisfies all three Pireno factors, and laws “ ‘aimed at protecting or regulating’ the performance of an insurance contract” fall within the MFA). Section 74.451 is not a law enacted for the purpose of regulating the business of insurance for purposes of the MFA.
IV. Conclusion
Section 74.451 of the Texas Civil Practice and Remedies Code was not a law enacted by the Texas Legislature for the purpose of regulating the business of insurance. It simply applies to agreements to arbitrate health care liability claims between patients and health care providers. Accordingly, the MFA does not exempt section 74.451 from preemption by the FAA, and the trial court should have granted Fredericksburg’s motion to compel arbitration. We reverse the court of appeals’ judgment and remand this case to the trial court to proceed in a manner consistent with this opinion.
. It is unclear whether courts must apply the three "business of insurance” criteria (the Pireno factors) when analyzing a state law under the MFA's first clause. See Autry v. Nw. Premium Servs., Inc., 144 F.3d 1037, 1044 n.5 (7th Cir.1998) ("We confess some uncertainty as to whether Fabe counsels us to employ the Pireno test in cases involving the first clause of [the MFA].”). First, Fabe addressed an argument favoring application of the Pireno factors to minimize the analysis of National Securities, the only other Supreme Court case to deal with the MFA's first clause. See Fabe, 508 U.S. at 502, 113 S.Ct. 2202. The Supreme Court distinguished its previous precedent as having applied the Pireno factors to evaluate the phrase "business of insurance” as used in the second MFA clause relating to antitrust immunity. Id. at 504, 113 S.Ct. 2202. Nonetheless, the Supreme Court *522noted that the Pireno factors “are relevant in determining what activities constitute the 'business of insurance,’ " id. at 502, 113 S.Ct. 2202, and the Supreme Court proceeded to address the three factors as part of its analysis of the first clause of the MFA. Id. at 502-05, 113 S.Ct. 2202. Second, adding to the confusion, the Supreme Court later considered the applicability of the MFA in the context of the ERISA savings clause and noted that in its prior precedent “we called the [Pireno ] factors 'relevant'; we did not describe them as ‘required.’ " UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 373, 119 S.Ct. 1380, 143 L.Ed.2d 462 (1999) (emphasis added) (citing Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 743, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985)). Finally, cumulating the chaos, the Supreme Court ultimately rejected application of the Pireno factors as being beneficial to interpret the phrase “law ... which regulates insurance” in cases involving the ERISA savings clause. Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 340-42, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003).
Here, the court of appeals concluded that “a thorough analysis [of the MFA’s first clause] should include consideration of the Pireno factors.” 406 S.W.3d at 324. We do not disagree, but we need not decide whether application of these factors is a mandatory component of a first-clause MFA inquiry. Instead, we address the three factors in response to the parties’ arguments and the court of appeals’ analysis.
. Moreover, refusal to consider the purpose for which the conflicting, specific statutory section was enacted opens the door for manipulation. At least one other court has recognized this possibility by noting that "a state could avoid a federal preemption by simply putting the statutes into a section of the state's statutes 'dealing with a general unaffected subject.” Triton Lines, Inc. v. Steamship Mut. Underwriting Ass’n (Bermuda) Ltd., 707 F.Supp. 277, 279 (S.D.Tex.1989).
. It is unknown whether Fredericksburg maintained a medical malpractice insurance policy. As its counsel conceded at oral argument, because this is an interlocutory appeal, the record has not been developed to reveal whether Fredericksburg was insured. When this dispute arose, nothing in Chapter 74 or elsewhere required nursing homes to carry malpractice insurance.
We also note this underdeveloped record to briefly address amici’s concerns about the impact of our decision on Health Maintenance Organizations (HMOs). Because there is no evidence that Fredericksburg operates as an HMO, amici’s concerns are not properly before the Court at this time. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125591/ | Opinion by Smith, J.
Mullin, P. J., and Talcott, J., concurred.
Judgment reversed and new trial ordered, costs to abide event. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125592/ | Opinion by Talcott, J.
Present — Mullin, P. J., Talcott and Smith, JJ.
Orders appealed from reversed, with ten dollars costs of appeal in one case only and disbursements in both, and defendant’s motion to dissolve the injunction order granted, with ten dollars costs. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283961/ | PER CURIAM
The outcome of this case is controlled by our opinion in Fredericksburg Care Co. v. Perez, 461 S.W.3d. 513, 2015 WL 1035343 (Tex.2015). Both cases, along with a third case styled Fredericksburg Care Co. v. Lira, 461 S.W.3d. 529, 2015 WL 1026224 (Tex.2015) (per curiam), involve the question of whether a federal law, the McCarran-Ferguson Act (MFA), 15 U.S.C. §§ 1011-1015, exempts Texas Civil Practice and Remedies Code section 74.451 from being preempted by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. The court of appeals consolidated this case with Perez and Lira for oral argument, and issued identical opinions (except for changing the identities of the parties) holding that the MFA exemption from preemption applied to section 74.451. 406 S.W.3d 711, 723 (Tex.App.-San Antonio 2013). We hold today in Perez that section 74.451 was not a law enacted for the purpose of regulating the business of insurance and thus does not qualify for the MFA exemption, from preemption. Perez, 461 S.W.3d at 529. The trial court should have granted the motion to compel arbitration. Id.
Accordingly, we grant the petition for review in this case, and without hearing oral argument, Tex. R. App. P. 59.1, we reverse the court of appeals’ judgment and remand this case to the trial court to proceed in a manner consistent with our opinion in Perez, 461 S.W.3d 513. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283962/ | MEMORANDUM OPINION
TERRY JENNINGS, Justice.
Appellant, CCE, Inc., challenges the trial court’s rendition of summary judgment in favor of appellees, PBS & J Construction Services, Inc.; Post, Buckley, Schuh & Jernigan, Inc.; and Yu-Chen Su, P.E. (collectively “PBS & J”), on CCE’s claims against PBS & J for negligent misrepresentation and breach of warranty. In two of its three issues, CCE contends that the trial court erred in rendering summary judgment against CCE (1) on its negligent-misrepresentation claim on the grounds that PBS & J made no affirmative misrepresentation of material fact and the economic-loss rule bars recovery of CCE’s “benefit-of-the-bargain damages” and (2) on its breach-of-warranty claim on the grounds that PBS & J was “not in privity [of contract] with CCE” and PBS & J made no express representation to CCE about the quality or character of its services. Alternatively, in its third issue, CCE contends that it should now be allowed to raise a claim against PBS & J for equitable subrogation. In a styled “cross-appeal,” 1 PBS & J contends that the trial court erred in denying it summary judgment on CCE’s. negligent-misrepresentation claim on the ground that PBS & J did *545not proximately cause CCE’s alleged damages.
We affirm the trial court’s judgment in part, reverse the trial court’s judgment in part, and remand for further proceedings.
Background
The critical facts are largely undisputed. The Texas Department of Transportation (“TxDOT”) hired PBS & J to draft engineering plans and specifications for a new road, FM 2435, in Nacogdoches County (the “road project”). PBS & J devised the plans, including a “Storm Water Pollution Prevention Plan” (the “SW3P”), which was required by -a general surface-water discharge permit (the “permit”), issued by the Texas Commission on Environmental Quality (“TCEQ”), for the road project to prevent pollution from wastewater discharges entering into nearby waterways in violation of the Clean Water Act.2
TxDOT awarded the construction contract for the road project to CCE, a general contractor. TxDOT’s “Standard Specifications for Construction of Highways, Streets and Bridges” generally requires that all work performed by a contractor on a TxDOT project must be in conformity with TxDOT plans, unless a deviation is approved by the TxDOT engineer responsible for the project. CCE alleged that it was contractually bound to configure erosion control measures for the road project in compliance with the SW3P designed by PBS & J and that it, in fact, complied with the SW3P.
TxDOT, on December 22, 2004, notified CCE that silt had discharged from the road project and accumulated on nearby private property, and TxDOT instructed CCE to suspend work on the road project until “all erosion control measures [were] in place.” On January 7, 2005, TxDOT expressed to CCE that it believed that the erosion and “siltation” problems arose from CCE’s “failure to provide the control measures required by the plans.” And TxDOT notified CCE that it had ten days to correct the alleged contract violations, or CCE would be considered in default under the construction contract. On January 18, 2005, TxDOT declared CCE in default, ordered CCE to cease work, and notified CCE’s surety that it was obligated to arrange for completion of the road project.
CCE then hired Longview Road and Bridge, Ltd. (“LR & B”) to complete the road project. In its summary-judgment evidence, CCE included the affidavit of its Financial Control Officer, Phil Mahar, who testified that hiring LR & B to complete the road project caused CCE to spend $2,423,752.20 more than it would have had it been able to complete the project on its own.
In its Fifth Amended Original Petition, CCE, in regard to its negligent misrepresentation claim, alleged that PBS & J “recklessly” or “without reasonable care” submitted the SW3P to TxDOT knowing that construction contractors like CCE would bid on and attempt to build the road project in reliance on the SW3P. CCE further alleged that the SW3P “contained numerous false statements of material existing fact including, but not limited to, the representation^] that it was an instrument of service resulting from an engineering process when it was not, that it complied with the [p]ermit and [TxDOT] [guidelines, and that if CCE followed it, the [engineering] [p]lans and SW3P would work.” In regard to its breach-of-warran*546ty claim, CCE alleged that PBS & J “provided express and written warranties and represented that its [p]lans and SW3P conformed to the [p]ermit and [guidelines, when they did not.” CCE further alleged that PBS & J represented that the engineering plans and the SW3P“were instruments of services resulting from an engineering process, when they were not”; PBS & J “admitted that it expressly warranted and represented that if CCE followed the [p]lans and SW3P, they would work; and the plans and SW3P did not “conform with the [p]ermit and [g]uide-lines and the SW3P did not work.” CCE did not assert a claim for equitable subro-gation against PBS & J.
In its first summary-judgment motion, PBS & J argued that it- was entitled to judgment as' a matter of law on CCE’s negligent-misrepresentation claim because “PBS & J’s alleged misconduct was not the cause in fact of CCE’s alleged injuries,” “CCE’s alleged injuries [were] not a for-seeable result of PBS & J’s alleged misconduct,” and PBS & J did not cause the termination of CCE’s construction contract and its alleged damages. The trial court denied PBS & J’s motion.
' In a second summary-judgment motion and a supplemental summary-judgment motion, PBS & J contended that it was entitled to summary judgment as a matter of law and on no-evidence grounds. In regard to CCE’s negligent-misrepresentation claim, PBS & J asserted that there is no evidence that it made an affirmative misrepresentation of material fact to CCE and, as a matter of law, the economic-loss rule bars recovery of CCE’s damages and CCE may not recover “benefit-of-the-bar-" gain damages” on its negligence claim. In regard to CCE’s breaeh-of-warranty claim, PBS & J argued that because PBS & J did not sell services to CCE, it was “not in privity with CCE.” PBS & J also asserted that it had made no express representation to CCE about the quaiity or character of any of its services.
The trial court rendered summary judgment for PBS & J on all grounds asserted in its second and supplemental summary-judgment motions. PBS & J then moved to dismiss its remaining counterclaim, and the trial court signed a final judgment from which CCE appeals.
Standard of Review
To prevail on a summary-judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and there is no genuine issue of material fact. Tex.R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiffs cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiffs cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex.App.Houston [1st Dist.] 2005, pet. denied). When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in its favor. Id. at 549.
To prevail on a no-evidence summary-judgment motion, a movant must' allege that there is no .evidence of an essential element of the adverse party’s cause of action or affirmative defense. Tex.R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004). We review a no-evidence summary judgment under the same legal-sufficiency *547standard used to review a directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 882-33 (Tex.App.-Dallas 2000, no pet.). Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements. Tex.R. Civ. P. 166a(i); see Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). A no-evidence summary judgment motion may not be granted if the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). When reviewing a no-evidence summary-judgment motion, we assume that all evidence favorable to the nonmovant is true and indulge every reasonable inference and resolve all doubts in favor of the non-movant. Spradlin v. State, 100 S.W.3d 372, 377 (Tex.App.-Houston [1st Dist.] 2002, no pet.).
Negligent Misrepresentation
In its first issue, CCE argues that the trial court erred in rendering summary judgment in favor of PBS & J on CCE’s negligent-misrepresentation claim because (1)PBS & J, in “the contents of the SW3P and the seal required to make it effective,” made affirmative misrepresentations of material fact and (2) CC E is not seeking to recover “benefit-of-the-bargain damages,” but rather “out-of-pocket” and consequential damages, which are not barred under the economic-loss rule. PBS & J, in its styled “cross appeal,” argues that the trial court erred in denying its first summary-judgment motion on CCE’s negligent-misrepresentation claim because PBS & J did not proximately cause CCE’s alleged damages.
Texas has long recognized a cause of action for the tort of negligent misrepresentation, or negligently supplying information for the guidance of others, in which a plaintiff must prove that:
(1) a defendant, in the course of its business or in a transaction in which it had a pecuniary interest, made a representation,
(2) the defendant supplied “false information” for the guidance of another in the other’s business,
(3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and
(4) the plaintiff suffered pecuniary loss by justifiably relying on the representation.
See Fed. Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.1991) (citing Restatement (Seoond) of ToRts § 552(1) (1977)). The supplier of such false information is liable for the loss suffered by those for “whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it” and “through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.” Id. at § 552(2).
Misrepresentation of material fact
PBS & J argues that CCE “cannot show that PBS & J made any actual affirmative representations in the SW3P of any existing fact” because, “[a]t best” CCE has only “inferences and references to other documents to piece together what can only amount to implied professional opinions about the anticipated performance of a plan that would be used, throughout an *548extensive construction project, to reduce pollution leaving the site.” In support of its argument, PBS & J characterizes CCE’s primary allegation as PBS & J having “made an affirmative representation that the SW3P would prevent any pollutants from leaving the site.” (Emphasis added.) This, however, is not the gist of CCE’s allegations. Rather, the gist of CCE’s allegations is that PBS & J, in its plans, supplied CC E with false information and did not exercise reasonable care' in obtaining or communicating the information contained within the plans.
CCE presented summary-judgment evidence that PBS & J represented that its engineering plans complied with the TCEQ’s surface-water discharge permit, which required, in part, the following:
[T]he SW3P must describe and ensure the implementation of practices that will be used to reduce the pollutants in storm water discharges associated with construction activity at the construction site and assure compliance with the terms and conditions of this permit.
(Emphasis added.) Also, PBS & J’s engineering plans contain a statement that a “copy of the Construction General Permit is a part of the SW3P,” and the plans bear the engineer’s seal of Dr. Yu-Chun Su. See 22 Tex. Admin. Code § 137.33(a), (b) (2010) (Tex. Bd. of Profl Eng’rs, Sealing Procedures). Section 137.33 provides:
(a) The purpose of the engineer’s seal is to assure the user of the engineering product that the work has been performed or directly supervised by the professional engineer named and to delineate the scope of the engineer’s work.
(b) License holders shall only seal work done by them, performed under their direct supervision as defined in § 131.81 of this title, relating to Definitions, or shall be standards or general guideline specifications that they have reviewed and selected. Upon sealing, engineers take full professional responsibility for that work.
Id. (emphasis added).
CCE also presented summary-judgment evidence that the SW3P was not sufficient and did not comply with the permit and generally accepted engineering practices and standards. CCE’s engineering expert, David C. Riddle, in his report, stated:
As a result of my evaluation of the materials made available to me, I have determined that PBS & J, in the performance of design services associated with the preparation of the Storm Water Pollution Prevention Plan (SW3P) for the construction of FM 2435 in Nacog-doches County, Texas did not comply with accepted professional engineering standards, with generally accepted engineering standards and procedures, with generally accepted standards for the preparation of SW3P’s for construction sites, with the duty to protect the property and welfare of the public, with the requirements of the TCEQ General Permit TXR150000, and with the requirements of the U.S. Army Corps of Engineer Nationwide Permit 14.... for impacts to Waters of the U.S. relative to the following:
1. Failure to include elements on the SW3P site map that are required by the TPDES General Permit.
2. Failure to include elements in the SW3P that are required by the TPDES General Permit.
3. Failure to address stabilization requirements in the SW3P that would serve to minimize erosion during construction activities, as required by the TPDES General Permit.
4. Failure to include water quality Best Management Practices re*549quired by U.S. Army Corps of Engineers permits for areas that were covered by Corps permits or for other receiving bodies of water potentially affected by construction activities.
5. Failure to specify proper best management practices for the site conditions which should have been expected during construction activities.
Riddle also opined that PBS & J, in the SW3P, omitted important mapping information, omitted planning measures, provided no guidance on removal of existing vegetation, and omitted water-quality measures. He also opined that the SW3P contained poor engineering practices. From this evidence, a reasonable .fact-finder could infer that PBS & J did not properly perform the work necessary to properly obtain the permit and begin construction of the road project. And, as noted above, the purpose of the engineer’s seal on the engineering plans was “to assure the user of the engineering product that the work has been performed.” See 22 Tex. Admin. Code § 137.33(a) (2010).
To the extent that PBS & J argues that its engineering plans are “not actionable because they are merely expressions of PBS & J’s professional opinion,” we are not aware of any authority standing for a general proposition that a professional engineer’s plans cannot constitute a representation or contain false information. As noted by CCE, the Restatement contemplates just such a situation:
The City of A is about to ask for bids for work on a sewer tunnel. It hires B Company, a firm of engineers, to make boring tests and provide a report showing the rock and soil conditions to be encountered. It notifies B Company that the report will be made available to bidders as a basis for their bids and that it is expected to be used by the successful bidder in doing the work. Without knowing the identity of any of the contractors bidding on the work, B Company negligently prepares and delivers to the City an inaccurate report, containing false and misleading information. On the basis of the report C makes a successful' bid, and also on the basis of the report D, a subcontractor, contracts with C to do a part of the work. By reason of the inaccuracy of the report, C and D suffer pecuniary loss in performing then-contracts. B Company is subject to liability to C and D.
Restatement (Seoond) of ToRts § 552 cmt. h, illus. 9 (1977).
Taking CCE’s evidence as true, as we must in a summary-judgment review, and indulging every reasonable inference in favor of CCE and resolving any doubts in its favor, we conclude that CCE presented more than a scintilla of evidence that PBS & J made affirmative misrepresentations of material fact. Accordingly, we hold that the trial court erred in rendering summary judgment for PBS & J on the ground that there is no evidence that PBS & J made an affirmative misrepresentation of material fact.
Damages
PBS & J argues that CCE may not recover damages on its negligent-misrepresentation claim because CCE, in effect, is seeking to recover its “lost profits” or “benefit-of-the-bargain” damages. PBS & J asserts that the “economic loss rule prevents” CCE “from recovering what are essentially contract damages under a tort theory of liability.” See Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex.1991).
As noted by the Texas Supreme Court, “damages recoverable for a negligent misrepresentation are those neces*550sary to compensate the plaintiff for the pecuniary loss to him of which the misrepresentation is a legal cause,” including
(a) The difference between the value of what he has received in the transaction and its purchase price or other value given for it; and
(b) pecuniary loss suffered otherwise as a consequence of the plaintiffs reliance upon the misrepresentation.
Sloane, 825 S.W.2d at 442 (emphasis added) (quoting Restatement (Seoond) of ToRts § 552B (1977)); see D.S.A., Inc. v. Hillsboro Indep. Sch. Dist, 973 S.W.2d 662, 663-64 (Tex.1998) (discussing Sloane’s adoption of section 552B). The damages recoverable for a negligent misrepresentation do not include the benefit of the bargain of a plaintiffs contract with a defendant. Sloane, 825 S.W.2d at 442 (quoting Restatement (Second) of ToRts § 552B (1977)). Rather, “[u]nder the economic loss rule, a plaintiff may not bring a claim for negligent misrepresentation unless the plaintiff can establish that he suffered an injury that is distinct, separate, and independent from the economic losses recoverable under a breach of contract claim.” See Sterling Chems., Inc. v. Texaco, Inc., 259 S.W.3d 793, 797 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (citing D.S.A, Inc., 973 S.W.2d at 664).
Moreover, this Court has held that benefit-of-the-bargain damages are not recoverable for negligent misrepresentation even when there is no privity of contract between the plaintiff and the defendant. See Sterling Chems., Inc., 259 S.W.3d at 796-98. In Sterling, a chemical manufacturer, Sterling, contracted with a construction firm to, using proprietary gasification technology owned by Texaco, build a facility to produce synthetic gas. 259 S.W.3d at 795. Sterling alleged that it, in entering the contract with the construction firm, relied upon representations made by Texaco about its technology, even though Texaco was not a party to the contract. Id. When the completed facility did not produce synthetic gas as anticipated, Sterling sued Texaco for negligent misrepresentation, seeking damages for its “lost sales and profits.” Id. at 796, 798. This Court, applying the economic-loss rule, affirmed the trial court’s summary judgment in favor of Texaco. Id. at 800.
Under the economic-loss rule, a duty in tort does not lie when the only injury claimed is one for economic damage recoverable under a breach-of-contract claim. Id. at 796. Accordingly, when a plaintiff seeks to recover for only the loss or damage to the subject matter of a contract, the plaintiff cannot maintain a tort action against the defendant. Id. at 796-98 (citing DeLanney, 809 S.W.2d at 494). Because Sterling’s claims for “lost sales and profits” were for its “benefit-of-the-bargain” of its contract with the construction firm, we held that Sterling could not recover damages from Texaco for negligent misrepresentation. Id. at 797-98, 800 (quoting Restatement (Second) of Torts § 552B (1977)); see D.S.A., Inc., 973 S.W.2d at 664. In Sterling, we emphasized that reliance damages, in contrast to benefit-of-the-bargain damages, are “measured as the out-of-pocket expenditures made by one party in reliance on the actions of another party, not by the amount of lost profits and sales.” 259 S.W.3d at 798.
In its summary-judgment motion, PBS & J asserted that “[a]ll of the damages requested by CCE are economic in nature, recoverable only as the benefit of a lost bargain.” However, CCE, in its Fifth Amended Original Petition, claimed that it had been damaged: “(1) as a result of having to incur costs which it otherwise would not have had to incur, if its contract with TxDOT had not been declared in *551default; (2) by the loss of income which it would have received; and (3) by the impairment of CCE’s ability to obtain bonding which caused a loss of future earnings and effectively put CCE out of business.” (Emphasis added.)
As noted above, CCE’s summary-judgment evidence included the affidavit of its Financial Control Officer, Phil Mahar, who testified that the additional completion costs incurred by CCE in hiring LR & B to complete the road project, over and above what it would have cost CCE to do the same work, was $2,423,752.20. Mahar also estimated that CCE had lost a total of $178,794.51 in compensation to which it would have been entitled from TxDOT under change orders, as well as $24,997.84 in interest and $265,819.45 in costs associated with the default. The total amount of additional completion costs and estimated additional costs and lost compensation is $2,893,364.00.
PBS & J argues that “[a]ll of these damages simply cut into CCE’s profit, and they represent what would be required to place CCE in as good a position, profit-wise, as if it had never defaulted under the contract.” PBS & J further argues that “[tjhese are clearly economic losses and they are benefit-of-bargain since they represent an amount that would put CCE in the position of having the full benefit of its TxDOT contact had the contract been fully performed.”
However, CCE’s damages are actually for its “pecuniary loss suffered otherwise as a consequence of [CCE’s] reliance upon the misrepresentation[s]” of PBS & J. See Restatement (Second) of ToRts § 552B(l)(b). CCE provided summary-judgment evidence that it paid $2,423,752.20 in out-of-pocket expenses to hire LB & R to complete the road project. This was an expense incurred over and above what it would have cost CCE to complete the road project. These expenses are the kind of pecuniary loss contemplated in illustration 9 of section 552 of the Restatement (Second) of Torts.
In its negligent-misrepresentation claim, CCE’s live pleading and summary-judgment evidence establish that CCE is actually seeking reliance damages as measured by its out-of-pocket expenditures and consequential losses, not damages for the benefit of its bargain on its contract with TxDOT as measured by any lost sales or profits. Accordingly, we hold that the trial court erred in rendering summary judgment for PBS & J on the ground that the economic-loss rule bars CCE’s recovery of its damages on its negligent-misrepresentation claim.
Causation
PBS & J, in its styled “cross-appeal,” argues that the trial court erred in denying its first summary-judgment motion because its conduct, as a matter of law, did not proximately cause CCE’s alleged negligent-misrepresentation damages. PBS & J further argues that its conduct was neither the cause in fact nor a foreseeable cause of CCE’s damages, as TxDOT’s termination of CCE’s construction contract was not a natural and probable result of any misrepresentation contained in PBS & J’s engineering plans. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex.2004) (discussing elements of proximate cause, cause in fact, and foreseeability).
We first note that, as a general rule, a party may not appeal the denial of a summary-judgment motion because it is an interlocutory order and, therefore, is not appealable. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996). However, the rule does not apply when a movant seeks summary judgment on multiple grounds and the trial court grants the *552motion on one or more grounds, but denies it, or fails to rule, on one or more of the other grounds presented in the motion and urged on appeal. Id. at 625, 626. This exception to the general rule “does not depend on the number of motions filed, when they were presented to the trial court, or when the trial court ruled.” Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5-6 (Tex.1999). Accordingly, we consider whether the trial court erred in denying PBS & J’s first summary-judgment motion. See id.
PBS & J first asserts that even if the SW3P was defective, the sole cause in fact of TxDOT’s declaration that CCE had defaulted under the construction contract was CCE’s failure to correct the siltation problems to TxDOT’s satisfaction. PBS & J notes that David Selman, a TxDOT engineer, testified “It’s my opinion that those erosion control measures were not put in place as shown in the plans, and the contractor didn’t take care of his responsibility of putting them in place.” Second, PBS & J argues that it was not foreseeable that TxDOT would terminate the construction contract and “punish[] one of its other, innocent vendors, as CCE claims to be, because of any negligence or misrepresentation made in PBS & J’s Plan.”
As noted above, CCE produced summary-judgment evidence that the engineering plans, and specifically the SW3P, contained negligent misrepresentations, which PBS & J implicitly acknowledges in its argument. Indeed, PBS & J asserts that “even if CCE’s version of the facts is accepted as true — i.e. that PBS & J’ insufficient SW3P caused the siltation to occur — it was not the siltation that caused CCE to be in default under the contract.” PBS & J argues, thus, that it was “CCE’s stubborn refusal to comply with TxDOT’s demands to fix the problem, regardless of who caused it.” (Emphasis added.)
In both of its causation points, PBS & J erroneously assumes that CCE’s negligent-misrepresentation injury is TxDOT’s declaration that CCE had defaulted on the construction contract and CCE is attempting to recover its lost profits under the construction contract. However, as revealed above, CCE is actually seeking reliance damages as measured by its out-of-pocket expenditures and consequential losses, not damages for the benefit of its bargain on its contract with TxDOT as measured by any lost sales or profits. CCE’s alleged damages are largely its expenses incurred in hiring LB & R to complete the road project.
The fact that PBS & J may have presented some evidence that CCE may have caused or contributed to causing its own injuries does not conclusively establish that CCE’s conduct was the sole cause of its injuries. Moreover, on the issue of foreseeability, it has long been the law in Texas that a plaintiff is not required to prove that a specific and particular event should have been foreseen. Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939). Rather,
All that is required [is] that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.
Id. (citation omitted). Here, again, the damages that CCE seeks are for its pecuniary loss as contemplated in illustration 9 of section 552 of the Restatement, and, as such, were readily foreseeable.
Indulging every reasonable inference and resolving all doubts in CCE’s favor, we cannot hold as a matter of law that the alleged negligent misrepresentations of *553PBS & J were not substantial factors in bringing about CCE’s alleged injuries. See IHS Cedars Treatment Ctr., 143 S.W.3d at 799. We also cannot hold as a matter of law that CCE’s alleged injuries were not foreseeable. Accordingly, we hold that the trial court did not err in denying PBS & J’s first summary-judgment motion.
Having so held, and, after having held that the trial court erred in rendering summary judgment for PBS & J on the grounds that there is no evidence that PBS & J made an affirmative misrepresentation of material fact and the economic-loss rule bars CCE’s recovery of its damages on its negligent-misrepresentation claim, we sustain CCE’s first issue.
Breach of Warranty
In its second issue, CCE argues that the trial court erred in rendering summary judgment for PBS & J on CCE’s breach-of-warranty claim because “PBS & J breached a warranty made to CCE ... where PBS & J knew that its promises would reach the contractor hired by TxDOT to build the road.” CCE asserts that (1) there is no privity requirement for an implied warranty and (2) PBS & J made express representations to CCE. PBS & J argues that CCE has no breach of warranty claim because PBS & J was not in privity of contract with CCE as it sold no services to CCE and PBS & J made no express representation to CCE about the quality or characteristics of its services.
First, we note that Texas law does not recognize a cause of action for breach of an implied warranty of professional services. See Murphy v. Campbell, 964 S.W.2d 265, 268 (Tex.1997). Second, CCE concedes that it was not in privity of contract with PBS & J, and express warranties are generally imposed by agreement of the parties to a contract. See La Sara Grain Co. v. First Nat’l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984).
CCE correctly notes that some courts of appeals, including this Court, have rejected the privity-of-contraet requirement for certain purely economic losses for breach of an express warranty. See, e.g., U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 198 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Edwards v. Schuh, 5 S.W.3d 829, 833 (Tex.App.-Austin 1999, no pet.); Nat’l Bugmobiles, Inc. v. Jobi Props., 773 S.W.2d 616, 622 (Tex.App.-Corpus Christi 1989, writ denied); Indust-Ri-Chem Lab., Inc. v. Par-Pak Co., 602 S.W.2d 282, 287-88 (Tex.App.-Dallas 1990, no writ). In these cases, however, there was either some evidence that a manufacturer had made a representation to induce a buyer or an express warranty that was freely transferrable. Thus, the reasoning in these cases is not applicable here.
An express warranty may be established by a representation of an affirmation of fact, a promise, or a description. See Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 886 (Tex.App.-Dallas 2007, no pet.). CCE argues that PBS & J made such an express warranty because the engineering plans contain the statement that a “copy of the Construction General Permit is a part of the SW3P,” the plans bear an engineer’s seal, and “PBS & J represented that its plans would work and it knew that CCE would rely on that representation when installing the erosion control measures designed by PBS & J.” At best, these affirmations of fact or promises might constitute an implied warranty, but, as noted above, Texas law does not recognize such a cause of action for professional services. See Murphy, 964 S.W.2d at 268.
*554Accordingly, we overrule CCE’s second issue.
Equitable Subrogation
In its third issue, CCE also asks that this Court remand the case to the trial court for consideration of an equitable-subrogation claim, which, as it admits, it did not plead in the trial court. CCE asks us to do so in the interest of justice, citing the Texas Supreme Court’s June 13, 2008 opinion in Frymire Engineering Company v. Jomar International, Limited, 259 S.W.3d 140 (Tex.2008).
We decline CCE’s request. First, CCE never made this argument in the trial court, so there is no trial-court error for us to review. See Blair v. Fletcher, 849 S.W.2d 344, 345-46 (Tex.1993) (holding court of appeals may not vacate and remand for trial court to reconsider its judgment in light of changes in law). See generally Westgate, Ltd. v. State, 843 S.W.2d 448, 455 (Tex.1992) (discussing remands in interest of justice). Second, because we are reversing the trial court’s summary judgment on other grounds, CCE may raise this issue in the trial court on remand if it so chooses.
We overrule CCE’s third issue.
Conclusion
We affirm the portion of the trial court’s judgment that CCE take nothing on its breaeh-of-warranty claim against PBS & J. We reverse the portion of the trial court’s judgment that CCE take nothing on its negligent-misrepresentation claim against PBS & J, and we remand the case to the trial court for further proceedings not inconsistent with this opinion.
. Although the parties refer to this as a “cross-appeal,” this actually is an additional argument in support of the trial court’s judgment. See Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5-6 (Tex.1999).
. See generally 33 U.S.C. § 1342 (allowing states to administer permits under Clean Water Act). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283965/ | OPINION OF THE COURT BY
JUSTICE KELLER
This appeal arises from two summary judgments in favor of Alliance Coal, LLC (Alliance). The Court of Appeals affirmed those judgments, and we granted discretionary review. For the reasons set forth below, we affirm.
I. BACKGROUND.
The underlying facts necessary for resolution of this appeal are not in dispute. At all relevant times, River View Coal, LLC (River View)1 and Webster County Coal, LLC (Webster County) were wholly owned subsidiaries of Alliance. As the parent company, Alliance exercised some direct control over its subsidiaries; for example, Alliance chose the subsidiaries’ general managers, and it provided technical and other services to its subsidiaries.
Alliance, as parent company, submitted to the Department of Workers’ Claims (the DWC) an “Employers [sic] Application for Permission to Carry His Own Risk Without Insurance” (Form SI-02), listing itself as the applicant and Webster and River View, among others, as subsidiaries. In conjunction with the Form SI-02, Alliance also submitted a “Self-Insurers’ Guarantee Agreement” (Form SI-01) whereby Alliance guaranteed payment of benefits under the Workers’ Compensation Act (the Act) in the event its subsidiaries failed to pay benefits. The DWC accepted and approved the application.
On April 28, 2010, Justin Travis and Michael Carter died in a mining accident while employed by Webster County, and on October 27, 2010, James J. Falk died in a mining accident while employed by River View. Webster County and River View accepted the workers’ compensation claims made on behalf of the surviving widows and children of the deceased miners. Benefit checks bearing the names of Webster County and River View respectively have been and continue to be issued to the Appellants. The Appellants argue that, because the checks bear the names of Webster County and River View, those entities are the issuers. However, it is clear that the benefits are paid from the same account, an account that belongs to Alliance. Therefore, regardless of which name is printed on the checks, Alliance is paying the benefits.
The Appellants filed law suits against Alliance alleging that it had liability for the miners’ deaths, and Alliance moved for summary judgment arguing that it had immunity under the Act. The trial court agreed with Alliance and dismissed the Appellants’ claims. The Court of Appeals affirmed, and the Appellants sought discretionary review, which this Court granted.
*763We note that we granted review, in part, based on the following. Sergent v. ICG Knott Cnty., LLC, No. CIV. 12-118-ART, 2018 WL 6451210 (E.D.Ky.), a case currently pending in the Federal District Court for the Eastern District of Kentucky, involves a similar parent company immunity issue. While the Appellants’ motion for discretionary review was pending, Arch Coal, Inc., a defendant in Ser-gent, asked the district court to seek certification of the law from this Court. The district court denied Arch’s request, holding certification was not necessary because the Sixth Circuit Court of Appeals’ holding in Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6th Cir.1979) controlled. The opinion of the Court of Appeals herein and the opinion of the 6th Circuit Court of Appeals in Boggs ostensibly reach different conclusions on the issue of parent company immunity. We take this opportunity to address the issues raised by the Appellants herein and-thereby also address any conflict with Boggs.
II. STANDARD OF REVIEW.
The parties agree that there are no issues of material fact; therefore, we review this matter de novo. See Caniff v. CSX Transp., Inc., 438 S.W.3d 368, 372 (Ky.2014).
hi. Analysis.
KRS 342.690(1) provides that:
If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.... The exemption from liability given an employer by this section shall also extend to such employer’s carrier and to all employees, officers or directors of such employer or carrier, provided the exemption from liability given an employee, officer or director or an employer or carrier shall not apply in any case where the injury or death is proximately caused by the willful and unprovoked physical aggression of such employee, officer or director.
(Emphasis added.)
An employer may secure payment of compensation by: (1) joining or forming a self-insured fund pursuant to KRS 342.350(4); (2) purchasing insurance from a “corporation, association, or organization authorized to transact the business of workers’ compensation insurance in this state” (KRS 342.340(1)); or (3) furnishing to the Commissioner of the DWC “proof of its financial ability to pay directly the compensation.” Id. It is undisputed that Alliance, Webster County, and River View took the third path, choosing to secure their payment of compensation by self-insuring. To do so, they followed the process set forth in 803 KAR 25:021(6):
A corporation having a wholly-owned subsidiary may submit one (1) joint application to the [commissioner], if the parent corporation has sufficient assets to qualify for a self-insurance certificate for both itself and the subsidiary. A joint application shall be accompanied by a certificate of the secretary of each corporation indicating that their respective boards of directors have by resolution authorized joint and several liability for all the workers’ compensation claims asserted against them. These certificates shall be effective until revoked by the corporations following thirty (30) *764days written notice to the [commissioner].2
As noted above, Alliance filed a Form SI-02 listing itself as the applicant and Webster County and River View as subsidiaries “to be included under [Alliance’s] self-insurance program.” Furthermore, pursuant to a requirement by the DWC as listed in its “Request for Information” form, Alliance completed and filed a Form SI-01 guaranteeing payment of benefits should Webster Coal or River View fail to do so. Alliance admits it is not entitled to immunity from tort liability as an employer of the deceased miners; however, it argues that, by filing the preceding, it qualifies for immunity as a carrier. The Appellants argue that Alliance is not a “carrier,” but a “guarantor,” and that guarantors have no immunity. Thus, we must determine if a parent company that applies for a self-insurance certificate for itself and its subsidiaries is a carrier.
A carrier is “any insurer, or legal representative thereof, authorized to insure the liability of employers under this chapter and includes a self-insurer.” KRS 342.0011(6). A “ ‘[s]elf-insurer’ is an employer who has been authorized under the provisions of this chapter to carry his own liability on his employees covered by this chapter.” KRS 342.0011(7). Thus, we must determine if a parent company that insures itself, as well its subsidiaries, pursuant to 803 KAR 25:021 § 3 and § 6 is a carrier and entitled to immunity. Doing so requires us to interpret the relevant statutes and regulations.
We presume when interpreting a statute that the legislature intended for it to mean exactly what it says. Although ambiguous language must be interpreted based on legislative purpose and intent, unambiguous language requires no interpretation. Yet, nothing requires a statute’s subsection to be read in a vacuum rather than in the context of the entire statute.
Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky.2009). Furthermore, we presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes. Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 (Ky.2008); Lewis v. Jackson Energy Cooperative Corporation, 189 S.W.3d 87 (Ky.2005). We also presume that the General Assembly did not intend for a statute to be absurd. Layne v. Newberg, 841 S.W.2d 181 (Ky.1992).
The Appellants urge us to read KRS 342.0011(6) & (7) literally. Doing so leads to the conclusion that Alliance was not a self-insurer as to the decedents because it did not employ them. However, as set forth below, Alliance was an insurer under the Act, and, as an insurer, Alliance is a carrier entitled to immunity.
The Appellants argue that Alliance cannot be a carrier because it is not an insurance company registered with the Kentucky Department of Insurance. However, the statute does not define a carrier as an insurance company registered with the Kentucky Department of Insurance. It defines a carrier as an insurer authorized to insure the liability of employers. The legislature could have more narrowly defined carrier as an insurance company, which it did when it defined “insurance carrier.” KRS 342.0011(22) (“ ‘Insurance carrier’ means *765every insurance carrier or insurance company authorized to do business in the Commonwealth writing workers’ compensation insurance coverage....”) Furthermore, the legislature could have stated that only an insurance carrier is immune from liability. However, the legislature chose to define carrier more broadly, thus extending immunity beyond insurance companies authorized to do business in the Commonwealth.
Having determined that the designation of “carrier” is not limited to insurance companies, we must determine what that designation encompasses. As noted above, a carrier is any insurer authorized to insure the liability of employers. The DWC, through its regulations, has devised a method of authorizing employers to self-insure. Additionally, the DWC has devised a method for a parent company to seek “a self-insurance certificate for both itself and [its] subsidiary.” 803 KAR 25:021 § 6. When it issues such a self-insurance certificate, the DWC authorizes a parent company that meets certain qualifications to insure itself as well as its subsidiary, which necessarily is an employer. Thus, a parent corporation that follows the procedures set forth in the regulations is an insurer and a carrier, and entitled to immunity.
The Appellants argue that Alliance, when it completed the necessary forms to obtain a self-insurance certificate was actually applying for self-insured status for itself, Webster Coal, and River View individually. A cursory examination of the Form SI-02 belies that argument. Alliance listed itself as the applicant and attached the names of Webster Coal and River View as subsidiaries. There is no separate application for self-insured certification from either Webster Coal or River View.
Furthermore, the Appellants’ argument to the contrary notwithstanding, Alliance’s filing of a Form SI-01 guarantee agreement does not mean that Webster Coal and River View were filing individually for self-insured certification. It is true that 803 KAR 25:021 § 3(i)(j) states that “[i]f the applicant is a subsidiary corporation, a guarantee from the subsidiary’s parent corporation on form SI-01” must be filed. However, § 3 involves application for individual self-insurance, not parenf/subsidiary self-insurance; and, the “Request for Information” form that must accompany the Form SI-02 requires the applicant “to list all entities ... that are to be included under your self-insurance program” and to file a Form SI-01 guarantee agreement for each subsidiary. While it is unclear why the DWC requires this guarantee in both situations, the fact that it is required does not negate Alliance’s status as an insurer. •
Finally, we note that our holding is in harmony with one of the purposes of the Act, to extend benefits to employees without the need to prove fault, while protecting employers from tort liability.
The Workers’ Compensation Act is social legislation, a product of compromises by workers and employers. Workers agree to forego common law remedies in exchange for statutory benefits awarded without regard to fault. Employers agree to pay such benefits and to forego common law defenses in exchange for immunity from tort liability.... In other words, an employer’s immunity follows its liability for workers’ compensation benefits.
Labor Ready, Inc. v. Johnston, 289 S.W.3d 200, 204-205 (Ky.2009). The legislature has extended this immunity to carriers and contractors, which both beak actual or potential liability for workers’ compensation benefits. KRS 342.690.
*766In order to qualify for a self-insured certificate, Alliance had to certify that it had adopted a resolution authorizing “joint and several liability for all the workers’ compensation claims asserted against” Webster Coal or River View. Alliance is liable for claims against its subsidiaries, just as a contractor may be liable for claims against its sub-contractor and just as a carrier is liable for claims against its insured. Therefore, Alliance is entitled to the immunity that follows its liability.
IV. BOGGS V. BLUE DIAMOND COAL.
As noted above, a case currently pending in the Federal District Court for the Eastern District of Kentucky has been stayed pending our opinion herein. In order to be clear, we specifically address Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6th Cir.1979), the opinion the district court found to be controlling.
In Boggs, the survivors of several miners who died in the 1976 Scotia Mine explosion brought suit against Blue Diamond Coal Co., the parent of Scotia Mine Company. The Federal District Court granted summary judgment to Blue Diamond, finding that it was a contractor under the Act and therefore entitled to immunity. The Sixth Circuit Court of Appeals reversed, finding that there was no contractual relationship between Blue Diamond and Scotia sufficient to bring Blue Diamond within the protection afforded to contractors by the Act. Furthermore, the Court determined that Blue Diamond was not an employer of the miners as defined by the Act. In its conclusion, the Court stated that “a parent is not immune from tort liability to its subsidiary employees for its own, independent acts of negligence. The parent should be liable under customary principles of common law for harm resulting from its own negligence or reckless conduct.” Id. at 663. This is a correct statement of the law, within the context of Boggs, ie. when there has been a finding that the parent is neither an employer nor a contractor. However, as set forth above, the issue before us is not whether Alliance was an employer or contractor, but whether it was a carrier.
We note that, in dicta in a footnote, the Court addressed Blue Diamond’s argument that, as a joint self-insurer with Sco-tia, it had “carrier immunity.” The Court rejected that argument, holding that a self-insurer is only entitled to immunity in connection with its own employees. Boggs, 590 F.2d at 663. In doing so, the Court noted that Blue Diamond acted “jointly with Scotia as self-insuror for that portion of their workmen’s compensation obligation which they do not insure through insurance companies.” Id. Thus, it appears that Blue Diamond did not completely self-insure Scotia, which is clearly different from the relationship between Alliance and its subsidiaries, Webster Coal and River View. Furthermore, the Court did not undertake any analysis regarding Blue Diamond’s • status as a carrier. Therefore, neither the direct holding in Boggs nor the dicta is of any persuasive value.
To reiterate, a parent company that completely “self-insures” the liability of its subsidiary as provided in the regulations, is a carrier and immune from tort liability, just as its subsidiary is. To the extent Boggs holds otherwise, it is incorrect.
V. CONCLUSION.
For the foregoing reasons, we affirm the Court of Appeals.
All sitting. All concur.
. The record contains two spellings for River View Coal, one as a compound word, River-view, and one as two separate words, River View. We use the latter because that is the spelling used by Alliance in attachments to the forms it filed with the Department of Workers’ Claims.
. From 2005 through 2010, the Commissioner of the DWC was referred to as the Executive Director. In 2010, the title of Commissioner was reinstated. The 2010 change in title from Executive Director to Commissioner was not made in 803 KAR 25:021. We have made the change herein for the sake of consistency and clarity. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283967/ | THOMPSON, JUDGE:
Petitioner, Jesse A. Wood, IV (father), and L.A.W. (son), through son’s guardian ad litem (GAL), filed a petition for a writ to prohibit the family court from conducting a hearing on a motion to temporarily modify primary residential custodian of son to Aliza Hunter (mother), while father was deployed with the Air Force National Guard. Father and son also filed two emergency motions to stay the family court from proceeding with a decision. We grant the writ of prohibition because the family court acted erroneously, there is *780no adequate remedy by appeal, and great injustice and irreparable injury have resulted. We deny the emergency motions as moot.
When father and mother divorced in 2005, they were living in Cincinnati, Ohio. Pursuant to an agreed parenting plan, the parties shared joint custody with an alternating schedule. In 2009, after mother moved to Montana, the parties agreed to a modified order making father the primary residential custodian of son for school purposes, with mother exercising timesharing during son’s summer vacation and other school breaks.
In 2012, father and son moved to Kentucky and began residing with father’s paramour, Jill Markum, and Ms. Mar-kum’s children. In 2013, mother violated the parameters of her timesharing by failing to return son at the conclusion of her summer visitation period. Father filed a motion requesting the Campbell Family Court to enforce the Ohio custody orders. Father was granted an ex parte court order to secure son’s return.
After son returned, father and mother moved the court to alter their custody and timesharing arrangements arguing the current arrangement was not in son’s best interest. Father requested sole decision-making power and mother requested she be made the primary residential parent for school purposes. In an April 28, 2014 order, the family court upheld the existing timesharing arrangement as being in son’s best interest.
Father is a reserve member of the Air Force National Guard. In September 2014, father was given notice that he was being returned to active service in October and informed mother of his impending deployment. On October 6, 2014, father was deployed to Afghanistan for 180 days. Son, who was ten-years old at this time, remained in Kentucky in the care of Ms. Markum and his paternal grandparents.
On December 1, 2014, mother filed a motion for temporary primary residential custody in the Campbell Family Court arguing that father’s deployment constituted a substantial change in circumstances and the care arrangement made for son in father’s absence seriously endangered son’s physical, mental, moral or emotional health. Mother requested she be given immediate primary residential custody for the remainder of the school year.
On December 9, 2014, father filed a motion to stay the proceedings for ninety days pursuant to the federal Servieemem-bers Civil Relief Act (SCRA), and indicated he anticipated being available for court proceedings in mid-April 2015. Father’s attached exhibits included: (1) proof that he was serving in active duty as of December 4, 2014; and (2) a letter from his commanding officer that he was involuntarily mobilized on October 6, 2014, and would be unavailable for any court proceedings for a period of 180 days not to include travel or reconstitution.
The GAL filed a memorandum of law pointing out that KRS 403.320(4)(a) mandates that any court-ordered modification of timesharing due in part or in whole to a parent’s deployment outside the United States shall be temporary and shall revert back to the previous schedule at the end of deployment. The GAL urged the family court to consider whether it would be in the best interest of son to disrupt his current schedule and require him to adjust to a new school mid-year in another state, when at the conclusion of father’s deployment he would be returned to father’s residential custody and then need to leave his Montana school to resume the school year at his current school in Kentucky.
After a hearing on this motion on December 19, 2014, the family court denied *781the motion. It determined father would not be prejudiced by proceeding and indicated that modification should be granted unless it was proven that granting mother temporary residential custody would seriously endanger son.
On January 5, 2015, the family court heard mother’s motion. That same day, father and son filed a joint petition for writ of prohibition and/or mandamus with this Court, along with an emergency motion to stay the family court from proceeding. Father argued he and son would be irreparably harmed through failure to grant the stay because he could not effectively assist his counsel in defending against mother’s motion or provide relevant information to help the GAL represent son’s interest without having the opportunity to provide detailed information about son’s prior maladjustment upon traveling to Montana for visitation, high anxiety level, prior poor adjustment to changing schools, educational accommodations, adjustment to his current home, father’s own wishes, mother’s involvement in son’s life, and the arrangements that had been made for son’s care while deployed, as well as other relevant matters.
While the family court acknowledged receipt of the petition for writ, it stated in the absence of an order from this Court, it was obligated to continue with the scheduled hearing on mother’s motion. The family court proceeded to hear testimony on January 6, 2015, and announced it would likely have a decision before the end of the day. Therefore, also on January 6, 2015, father and son filed a renewed emergency motion to stay the family court from proceeding arguing that father and son would suffer irreparable harm and grave injustice if the stay was not granted.
On January 6, 2015, the family court ordered that son reside with mother in Montana and designated her as temporary residential custodian until father’s return from deployment. The family court reasoned mother’s custodial rights needed to be enforced in father’s absence unless son would be harmed by living with mother in Montana.1 In making this decision, the family court determined father could not be the physical custodian of son while deployed, father could not unilaterally designate the paternal grandfather as custodian of the child knowing mother had joint custody rights, father’s substantive rights would not be altered from a temporary order, father’s attorney adequately represented father’s interests, the SCRA could not be applied to deny mother’s custodial rights and the SCRA did not apply where father had appeared through counsel. Father filed an appeal.2
*782An extraordinary writ may be granted upon a showing that “the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.” Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004). Father has made such a showing to merit granting the petition for a writ of prohibition.
The SCRA, which also applies to Kentucky National Guard members through KRS 38.510, has the following purposes:
(1) to provide for, strengthen, and expedite the national defense through protection extended by this Act [said sections] to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of ser-vicemembers during their military service.
50 App. U.S.C. § 502.
The SCRA directly applies to child custody proceedings to stay an action for a period of not less than ninety days if the service member properly provides a letter explaining why service requirements prevent the service member from appearing and when he will be able to appear, and a letter from his commanding officer stating that his military duty prevents his appearance and that leave is not authorized. 50 App. U.S.C. § 522(a), (b). The SCRA uses mandatory language to require a stay under such circumstances: “the court ... shall, upon application by the service member, stay the aetion[.]” 50 App. U.S.C. § 522(b)(1).
In interpreting Section 522, our sister courts have held the SCRA “leaves no room for judicial discretion.” Hernandez v. Hernandez, 169 Md.App. 679, 690, 906 A.2d 429, 435 (2006) (footnote omitted). If a service member complies with the requirements for a stay, it is mandatory that the trial court grant a stay. In re Amber M., 184 Cal.App.4th 1223, 1230, 110 Cal.Rptr.3d 25, 30 (2010); In re A.R., 170 Cal.App.4th 733, 743, 88 Cal.Rptr.3d 448, 456 (2009); Hernandez, 169 Md.App. at 690, 906 A.2d at 435-36.
The Soldiers’ and Sailors’ Civil Relief Act, the SCRA’s predecessor act, similarly contained mandatory language requiring an action “shall ... be stayed” if properly applied for by a person in military service, but added additional discretionary language: “unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.” 50 App. U.S.C. § 521 (1990). However, even with this discretion, the Supreme Court opined that the Act was “to be liberally construed to protect those who have been obligated to drop their own affairs to take up the burdens of the nation” and stays were “not to be withheld on nice calculations as to whether prejudice may result from absence, or absence result from the service. Absence when one’s rights or liabilities are being adjudged is usually prima facie prejudicial.” Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223, 1231, 87 L.Ed. 1587 (1943).
The limited discretion trial courts had under the Soldiers’ and Sailors’ Civil Relief Act to deny a stay was eliminated by the SCRA, which omitted the language granting such discretion. Hernandez, 169 Md.App. at 690 n. 3, 906 A.2d at 435 n. 3. Therefore, the dissent errs in its conclusion that the trial court had discretion to *783deny father’s properly supported motion for an automatic stay by relying exclusively on cases interpreting the Soldiers’ and Sailors’ Civil Relief Act. Accordingly, because father fully complied with the Section 522 requirements for a stay, the family court erred in failing to grant it.
The injury in this case is real and irreparable. First, son is being relocated during a school year without' consideration of whether a move to a distant state is in son’s best interest. A future appeal cannot possibly rectify any damage caused to son by the court’s order.
Likewise, father’s injuries are irreparable. While serving his country, father was unable to appear and oppose mother’s motion. The purpose of the SCRA is to permit service members to “devote their entire energy to the defense needs of the Nation” by temporarily suspending judicial proceedings, including custody proceedings. 50 App. U.S.C. § 502 Holding a custody hearing in father’s absence after he properly filed a motion for an automatic stay directly contravenes the stated purpose of the SCRA. Even if father will ultimately resume his role as residential custodian, the violation of the SCRA has already caused the harm sought to' be prevented by its enactment which cannot be remedied on appeal.
There may be emergency situations in which family courts must act quickly to protect children through temporary orders and an automatic stay would not be appropriate, such as if the caretakers an absent residential custodian military parent has selected are abusive or otherwise unfit. When sueli allegations are made, a family court may need to hold a hearing to decide if temporary alterations to timesharing are necessary to protect children before imposing the automatic stay. When applicable, such temporary orders should carefully be drafted to address the immediate safety of children, be of limited duration and designed to protect service members from prejudice. However, such a situation was not present here; the family court found that Ms. Markum and the grandparents were acceptable custodians and son was well taken care of in Kentucky.
Therefore, we grant the writ of ¡prohibition and order the family court to return son as soon as practical from Montana to his home in Kentucky as to avoid further disruption to the child’s life and thereupon begin the ninety day mandatory stay under the SCRA. Upon expiration of the stay, if father remains deployed and the family court determines that a further stay would not be appropriate under the SCRA, the family court should consider the best interest of son in determining whether mother should become his temporary residential custodian.
The petitioners having filed a petition for writ of prohibition; IT IS HEREBY ORDERED the petition for writ of prohibition is hereby GRANTED. The motions for emergency relief are hereby denied as moot.
JONES, JUDGE, CONCURS.
MAZE, JUDGE, DISSENTS WITH SEPARATE OPINION.
. We note that the family court erred in failing to apply the best interest standard pursuant to KRS 403.320(3) as made applicable to modifications of timesharing between joint custodians by Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky.2008). While KRS 403.320(4) does contemplate that the active duty deployment may be part of the basis for temporarily modifying timesharing, this provision does not alter the applicable best interest standard contained in KRS 403.320(3). The single event of a service member, who is the primary residential custodian, being deployed does not determine that modification is appropriate and the child should be placed with the other custodial parent. Koskela v. Koskela, No. 2011-CA-000543-ME, 2012 WL 601218, 9-10 (Ky.App.2012) (unpublished). Instead, the family court must consider other factors to determine whether modification is in the best interest of the child, such as: "How long will [father’s] deployment last and how far away will he be sent? If the deployment is for a relatively short period of time, is it in the best interest of the [child] to uproot [him] from [his] school[] and community?” Id. at 9.
. We do not address whether father can properly appeal from a temporary modification of timesharing. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283968/ | MAZE, JUDGE,
DISSENTING:
I respectfully dissent from my colleagues’ conclusion that it is necessary and proper to grant the Writ of Prohibition filed by the Father. Kentucky law has consistently held that before an extraordinary writ of prohibition may be issued, it must be shown either that:
(1) The lower court is proceeding or is about to proceed outside its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about *784to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004).
Certainly there-cannot be any dispute that the Campbell Family Court was acting within its jurisdiction. The focus, therefore, has to be on whether the lower court was acting erroneously, whether there exists no adequate remedy by appeal, and whether irreparable injury will result if the petition is not granted. The facts of this case do not support any of these findings.
It is important to remember how this matter arrived before this Court and what legal hearing the Petitioner (Father) was trying to prevent. The Father is a member of the military who was deployed in October of 2014. He and the Real Party in Interest, (the Mother), enjoyed joint custody of them son with the Father having custodial responsibility during the school year. Prior to father’s deployment he unilaterally designated his father, the child’s paternal grandfather, as the child’s caretaker during his deployment. Two months after his deployment, Mother filed a motion for custody. In response, father, through counsel, filed a motion to stay the custody proceedings citing the Service-members Civil Relief Act contained in 50 App. U.S.C.A. § 501, et seq.
The Family Court denied the motion to stay the proceedings and set a hearing for January 5, 2015. On the date of the custodial hearing, Father filed this present petition for Writ of Prohibition in this Court. The trial court was aware of the filing, but conducted the hearing in the absence of any contrary order from this Court. It should be noted that, at the custodial hearing, the Father’s attorney and the paternal Grandfather were also present and were given an opportunity to defend.
On January 6, 2015, Father filed an emergency motion in'this Court to prohibit the Family Court from entering an order following the hearing. But again, with no forthcoming order, the Family Court entered its order on January 6, 2015, granting temporary primary custody to Mother. Father filed a notice of appeal on February 3, 2015, from the order granting temporary custody to the Mother:
As an initial matter, the Father has not clearly shown that the Family Court was acting erroneously by denying a stay of proceedings under the Servicemembers Civil Relief Act. The applicable stay provisions of the Act are set out in 50 App. U.S.C.A. § 522(b) as follows:
(b) Stay of proceedings
(1) Authority for stay
At any stage before final judgment in a civil action or proceeding in which a servieemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servieemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.
(2) Conditions for stay
An application for a stay under paragraph (1) shall include the following:
(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemem-ber’s ability to appear and stating a date when the servieemember will be available to appear.
(B) A letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military, leave is not au*785thorized for the servicemember at the time of the letter.
The majority takes the position that the stay is mandatory once the servicemember properly invokes the Act. But in interpreting the predecessor version of the Act, the United States Supreme Court reached a contrary conclusion, holding that the Act cannot be construed to require a continuance on a mere showing that the applicant was in military service at the time of the proceeding. Boone v. Lightner, 319 U.S. 561, 568, 63 S.Ct. 1223, 1226, 87 L.Ed. 1587 (1943). Rather, a trial court has the discretion to require the applicant to prove prejudice if the stay is not granted.
The Act makes no express provision as to who must carry the burden of showing that a party will or will not be prejudiced, in pursuance no doubt of its policy of making the law flexible to meet the great variety of situations no legislator and no court is wise enough to foresee. We, too, refrain from declaring any rigid doctrine of burden of proof in this matter, believing that courts called upon to use discretion will usually have enough sound sense to know from what direction their information should be expected to come. One case may turn on an issue of fact as to which the party is an important witness, where it only appears that he is in service at a remote place or at a place unknown. The next may involve an accident caused by one of his family using his car with his permission, which he did not witness, and as to which he is fully covered by insurance. Such a nominal defendant’s absence in military service in Washington might be urged by the insurance company, the real defendant, as ground for deferring trial until after the war. To say that the mere fact of a party’s military service has the same significance on burden of persuasion in the two contexts would be to put into the Act through a burden of proof theory the rigidity and lack of discriminating application which Congress sought to remove by making stays discretionary. We think the ultimate discretion includes a discretion as to whom the court may ask to come forward with facts needful to a fair judgment. ■
Id. at 569-70, 63 S.Ct. at 1228-29.
Since Boone v. Lightner, the overwhelming weight of authority has consistently recognized the broad discretion vested in trial courts to determine whether to grant a stay under the Act. See, e.g., In re Burrell, Bkrtcy., 230 B.R. 309 (Bankr.E.D.Tex.1999); Shelor v. Shelor, 259 Ga. 462, 383 S.E.2d 895 (1989); Bond v. Bond, 547 S.W.2d 43 (Tex.Civ.App.1976); Tabor v. Miller, 389 F.2d 645 (3d Cir.1968); Slove v. Strohm, 94 Ill.App.2d 129, 236 N.E.2d 326 (Ill.App.1968); Runge v. Fleming, 181 F.Supp. 224 (N.D.Iowa 1960); Cadieux v. Cadieux, 75 So.2d 700 (Fla.1954); Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952); State ex rel. Stenstrom v. Wilson, 234 Minn. 570, 48 N.W.2d 513 (1951); Huckaby v. Oklahoma Office Bldg. Co., 201 Okla. 141, 202 P.2d 996 (1949); Rauer’s Law & Collection Co. v. Higgins, 76 Cal.App.2d 854, 174 P.2d 450 (1946); State v. Goldberg, 161 Kan. 174, 166 P.2d 664 (1946); People ex rel. Flanders v. Neary, 113 Colo. 12, 154 P.2d 48 (1944); Van Doeren v. Pelt, 184 S.W.2d 744 (Mo.App.1945); Gross v. Williams, 149 F.2d 84 (8th Cir.1945); and Konstantino v. Curtiss-Wright Corporation, 52 F.Supp. 684 (W.D.N.Y.1943). Even prior to Boone v. Lightner, Kentucky’s highest court also recognized the extent of the trial court’s discretion in granting a stay. Fennell v. Frisch’s Adm’r, 192 Ky. 535, 234 S.W. 198 (1921).
In the present case, the trial court held a hearing and denied the motion for a stay. *786The trial court found that the Father’s interests were adequately protected by counsel and by his power of attorney (Grandfather). Both were present at the January 5, 2015 hearing, presented evidence for Father and cross-examined witnesses. There is no suggestion in the motion that' Father was prevented from defending the proceeding. Under the circumstances, the trial court had the discretion to deny the Father’s motion for a stay. And given the limited record before us, I do not believe it is appropriate to disturb that finding when ruling on a writ.
But even if we were to find an abuse of discretion at this point, I disagree with the majority that the Father lacks an adequate remedy by appeal. The trial court conducted a temporary custody hearing and entered an order granting temporary primary residential custody to the Real Party in Interest. It is my understanding that post-decree orders that modify child custody are final and appealable. Gates v. Gates, 412 S.W.2d 223 (Ky.1967).
The Family Court made two significant findings in its January 6, 2014 order: (1) The Father’s unilateral designation of the paternal grandfather as caretaker of the child cannot defeat the Mother’s joint custodial status and (2) the Father simply cannot be the physical custodian of the child while he is deployed. I also note that the trial court’s order provided that the change of joint custody would only be temporary and residential custody would revert back to the Father on his return. These findings are on appeal before this very Court. Under Kentucky law, a writ cannot be used as a substitute for an appeal. National Gypsum Co. v. Corns, 736 S.W.2d 325, 326 (Ky.1987). Therefore, I am of the opinion that the Father has failed to demonstrate the lack of an adequate remedy by appeal.
And most importantly, I disagree with the majority that a disputed child custody determination amounts to irreparable injury. In Lee v. George, 369 S.W.3d 29 (Ky.2012), our Supreme Court stated:
This injury is no different from the result in every custody case in which a parent does not get what he or she requested. While the Court recognizes Appellant’s desire to spend more time with his children and to have more control over important decisions about their lives, his claimed injuries are simply not the kind of injuries that justify issuing an extraordinary writ. Indeed, if they were, the appellate courts would be awash with writ petitions in domestic cases. Yet, as we have noted time and again, the extraordinary writs are no substitute for the ordinary appellate process, and the interference with the lower courts required by such a remedy is to be avoided whenever possible.
Id. at 34.
I fully agree with the trial court that the Servicemembers Civil Relief Act does not alter the custodial rights of parents. In this case, Father and Mother each have joint custody of the child. There is no dispute that the Mother is a fit and proper person to have custody. And in the Father’s absence, the Mother’s rights as a joint custodian must take precedence over any non-parent. Pennington v. Marcum, 266 S.W.3d 759, 763 (Ky.2008).
The majority suggests that that the trial court’s order causes irreparable injury due to the disruptive effect on this child’s life. I have no doubt that even a temporary move to Montana may cause significant distress to this child, who has difficulty adapting to new situations. However, the trial court noted that the Mother has access to support services in Montana to assist in the child’s adjustment during the period while Father is deployed overseas.
*787And more to the point, any disruption to the child has already occurred. By granting this writ, this Court is directing that the child be returned immediately to Kentucky and placed in the physical custody of a non-parent. We are not correcting a wrong - we are simply making a difficult situation even harder for the young man who is the subject of this dispute. I am unwilling to be a part of such a result.
Accordingly, I dissent. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283970/ | ORDER
PER CURIAM.
Christopher Colletta appeals from the motion court’s judgment denying his Rule 29.151 motion. We have reviewed the briefs of the parties and the record on appeal, and we conclude the motion court’s denial of post-conviction relief was not clearly erroneous. Rule 29.15(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 affirm the judgment pursuant to Mo. R. Civ. P. 84.16(b) (2014).
. All rule references are to Mo. R. Crim. P. 2014, unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283971/ | Gary M. Gaertner, Jr., Judge
Introduction
Terrell G. Johnson (Johnson) appeals from a sentence and judgment of conviction for burglary in the first degree, stealing over $500, and property damage in the second degree. He asserts that there was insufficient evidence to support the conviction for stealing over $500. We affirm.
Background
Johnson was charged as a prior and' persistent offender with the class B felony of burglary in the first degree, the class C felony of stealing over $500, the class B misdemeanor of property damage in the second degree, and the class D felony of possession of burglar’s tools. The evidence at the 2013 jury trial showed the following.
Stefani Hoeing (Victim) was home alone when she witnessed two men breaking into her home and called 911. After locking her bedroom door, she heard someone moving around inside her home. Detective Ramiro Martinez responded to the call for a burglary in progress. He testified that when he entered Victim’s residence, he saw Johnson standing inside the home holding a purple purse. The purse contained money, a wallet, an Apple laptop computer, a Dell laptop computer, an Apple iPad tablet, a pair of earrings, and a ring. Victim identified the purple purse and its contents as hers. Detective Martinez also discovered an iPhone in the backseat of the police vehicle where Johnson’s co-conspirator was placed after his arrest. Victim identified the iPhone as hers.
Victim testified that the Apple laptop cost $2,700 when she purchased it three years before the burglary. She had purchased the Dell laptop for $700 four months prior to the burglary. She testified that the jewelry in her purse was *844worth less than $200. Victim could not remember what the iPhone, purchased a year before the burglary, and the iPad, purchased five years before the trial, cost. She did not specify the amount of money that was in her wallet.
The jury found Johnson guilty of first-degree burglary, stealing over $500, and second-degree property damage, but acquitted him of possession of burglar’s tools. The trial court sentenced Johnson to concurrent terms of twenty-five years’ imprisonment in the Missouri Department of Corrections on the burglary count and fifteen years’ imprisonment on the stealing count, and to time served on the property-damage count. This appeal follows.
Standard of Review
We review challenges to sufficiency of the evidence supporting a criminal conviction for whether the State presented sufficient evidence at trial from which a reasonable juror might have found the defendant guilty of all the essential elements of the crime. State v. Gibbs, 306 S.W.3d 178, 181 (Mo.App.E.D.2010). We accept as true all evidence supporting the jury’s verdict, including all favorable inferences therefrom, and disregard all contrary evidence and negative inferences. Id.
Discussion
In his sole point on appeal, Johnson argues that the trial court erred in overruling his motion for judgment of acquittal and in sentencing him, because there was insufficient evidence to prove his guilt beyond a reasonable doubt for the charge of stealing over $500, in that the State did not produce substantial evidence as to the fair market value of the items stolen. Specifically, he contends that Victim’s testimony of the original value of the items plus their age was not substantial evidence of their fair market value, and without proof of fair market value, no reasonable juror could conclude the aggregate value exceeded $500. We disagree.
The State is required to prove beyond a reasonable doubt each element of the offense charged. State v. Ecford, 239 S.W.3d 125, 127 (Mo.App.E.D.2007). In count two, the State charged Johnson with the class C felony of stealing over $500. A class C felony stealing occurs when “[t]he value of the property or services appropriated is five hundred dollars or more.... ” Section 570.030.3, RSMo. (Cum.Supp.2013). The State bears the burden of proving the value of the stolen property beyond a reasonable doubt. ' State v. Calicotte, 78 S.W.3d 790, 794 (Mo.App.S.D.2002).
Section 570.020 defines value as “the market value of the property at the time and place of the crime, or if such value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.” Section 570.020(1), RSMo. (Cum.Supp.2002). Until recently, Missouri courts traditionally held that evidence of the purchase price plus age of a stolen, item was sufficient to establish value. See e.g., State v. Hall, 56 S.W.3d 475, 479 (Mo.App.W.D.2001); State v. Holmes, 830 S.W.2d 460, 462 (Mo.App.E.D.1992). However, this Court in State v. Brown held that when the' legislature enacted Section 570.020 in 1979, it was intended to abrogate the prior purchase-priee-plus-age test. 457 S.W.3d 772, 783-84 (Mo.App.E.D.2014).
Nevertheless, the facts here are quite different than those in Brown. In Brown,. the State presented evidence that the stolen item, a television, had been purchased for $750 three years before the burglary, and was then pawned for $140. Based on this evidence, the jury found that at the time of the crime the television was valued over $500. It was in this context that this Court declared' the purchase-price-plus-*845age test “an example of the ‘continuing and vexing’ valuation problem[],” which was meant to be rejected by Section 570.020. Brown, 457 S.W.3d at 784. Here, however, Johnson stole at least six items: an Apple laptop computer, a Dell laptop computer, earrings, a ring, an iPad tablet, and an iPhone, in addition to Victim’s purple purse in which the stolen items were stashed and Victim’s wallet containing an unspecified amount of cash. At trial, the State presented evidence that the Apple ■computer had been purchased three years before the burglary for $2,700, and the Dell computer had been purchased four months before for $700. Victim testified 'that her jewelry was worth less than $200. As well, the evidence was that the stolen iPhone was one year old and the iPad was four years old at the time of the crime. From this evidence, the jury determined the aggregate value of all the items stolen was over $500.
It is the jury’s responsibility to assess the weight and credibility of the witnesses, and this Court defers to the jury’s factual determinations as long as they are supported by sufficient evidence. State v. Porter, 439 S.W.3d 208, 212 (Mo. banc 2014) (appellate court is not “super juror” with power to override factual determinations supported by sufficient evidence). Here, there was sufficient evidence presented at trial from which a jury could have reasonably determined the combined worth of all the items was over $500. As for the jewelry, Victim testified to its approximate value, and an owner’s opinion of an item’s worth can constitute substantial evidence of its value under Section 570.020. State v. Slocum, 420 S.W.3d 685, 687 (Mo.App.E.D.2014) (citing State v. Reilly, 674 S.W.2d 530, 533 (Mo. banc 1984)). The jury determines the weight and sufficiency of an owner’s testimony estimating an item’s value, see State v. King, 988 S.W.2d 663, 666 (Mo.App.E.D.1999), and we defer to that determination.
As for the electronics, the jury is familiar with such everyday items as computers and cellular telephones, and their determination that the aggregate value of the stolen items was over $500 was a reasonable inference from their common sense and life experiences. See State v. D.W.N., 290 S.W.3d 814, 820 (Mo.App. W.D.2009) (noting that “our country’s system of justice does not discourage jurors from exercising common sense and drawing upon their life’s experiences in fulfilling their role in a jury trial”). Were this a close case involving only one of these items, as was the case in Brown, then we agree that the State would have needed to produce more evidence than it did to overcome reasonable doubt; however, here where there were so many items, including a brand-new computer and three Apple-brand electronics, the high cost of which is common knowledge, the aggregate value was obviously in excess of $500. Johnson introduces for the first time on appeal an IRS document calculating the depreciation rate of computers, but we will not consider evidence on appeal not included in the trial record. See State v. Terry, 304 S.W.3d 105,109 (Mo. banc 2010).
Under the circumstances here, the jury’s determination that all the stolen items together were worth more than $500 was supported by substantial evidence. Gibbs, 306 S.W.3d at 181.
Point denied.
Conclusion
The judgment and sentence of the trial court is affirmed.
Kurt S. Odenwald, P.J., concurs.
Robert G. Dowd, Jr., J., concurs. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283972/ | ORDER
PER CURIAM
Michael Tracy (“Employee”) appeals from a judgment of the Missouri Labor and Industrial Relations Commission (“the Commission”) affirming the award of the Administrative Law Judge (“ALJ”), which found that Employee’s claim against Glaz-ers Wholesale Drug Company (“Employer”) was not compensable because it was barred by the statute of limitations.
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 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285512/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/07/2022 01:07 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. WOOD
Cite as 310 Neb. 391
State of Nebraska, appellee, v.
Marvin L. Wood, appellant.
___ N.W.2d ___
Filed November 19, 2021. No. S-20-877.
1. Trial: Expert Witnesses. The right of an indigent defendant to the
appointment of an expert witness at the State’s expense generally rests
in the discretion of the trial court.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules and judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
4. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved on direct appeal; the deter-
mining factor is whether the record is sufficient to adequately review
the question.
5. Effectiveness of Counsel: Records: Proof: Appeal and Error. The
record is sufficient to resolve on direct appeal a claim of ineffective
assistance of counsel if the record affirmatively proves or rebuts either
deficiency or prejudice with respect to the defendant’s claims.
6. Due Process. There are three factors of procedural due process set forth
in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976): First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of addi-
tional or substitute procedural safeguards; and finally, the government’s
interest, including the function involved and the fiscal and administra-
tive burdens that the additional or substitute procedural requirement
would entail.
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Cite as 310 Neb. 391
7. Expert Witnesses. With respect to a defense request for the appoint-
ment of an expert independent of the prosecution, the question in each
case must be not what field of science or expert knowledge is involved,
but, rather, how important the scientific issue is in the case and how
much help a defense expert could have given.
8. ____. Some reasonable preliminary showing by the defense justifying
its request for the appointment of an expert is necessary because the
criminal justice system cannot afford defense experts on demand.
9. Judges: Expert Witnesses. The determination of whether a defend
ant has made an adequate showing of the reasonable necessity for an
appointed expert lies within the discretion of the trial judge.
10. Courts: Words and Phrases. A district court abuses its discretion when
its reasoning or rulings are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying a just result in matters submitted
for disposition.
11. Constitutional Law: Expert Witnesses. Outside the context of psy-
chiatric expertise, to show a constitutional right to appointment of an
independent expert at the State’s expense, the accused must timely make
a preliminary, particularized showing (1) that an issue involving spe-
cialized knowledge is likely to be a significant factor in the accused’s
defense and (2) that there is a reasonable necessity for the defense to
have expert assistance in contesting that issue.
12. Expert Witnesses. To be a significant factor in an accused’s defense,
an issue involving specialized knowledge must be one likely to make a
difference as to the outcome if the defendant is successful in contest-
ing it.
13. ____. There is a reasonable necessity for appointed expert assistance
if the defendant shows some basis for believing the issue can only be
strongly contested with the assistance of an appointed expert.
14. Trial: Expert Witnesses. Sometimes, under the facts presented, pretrial
access to the State’s experts and their cross-examination at trial will be
adequate to contest the issue.
15. Expert Witnesses. In the context of a motion for appointment of an
expert, public money need not provide defense counsel with equipment
for a “fishing expedition.”
16. ____. The defense cannot be asked to support the motion for appoint-
ment of an expert with information that can only be found by paying for
expert assistance the defendant cannot afford. Neither should the trial
court demand defense counsel conduct a lay investigation outside the
bounds of what can be expected from an attorney of ordinary training
and experience.
17. Trial: Expert Witnesses. There must be some particularized preliminary
showing by the defendant either that cross-examination of the State’s
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STATE v. WOOD
Cite as 310 Neb. 391
experts was inadequate to the task of revealing misleading or inadequate
information or that there was a reasonable necessity for an independent
expert to help the defense prepare for effective cross-examination of the
State’s experts.
18. Effectiveness of Counsel: Appeal and Error. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved.
19. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a
claim of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must show that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s defense.
An appellate court may address the two prongs of this test, deficient
performance and prejudice, in either order.
20. Effectiveness of Counsel: Records: Proof: Appeal and Error. An
appellate court can determine whether the record proves or rebuts the
merits of a claim of ineffective assistance of trial counsel only if it
has knowledge of the specific conduct alleged to constitute deficient
performance.
21. Effectiveness of Counsel: Appeal and Error. In order to preserve a
claim of ineffective assistance of trial counsel when new counsel repre-
sents the defendant on direct appeal, the appellant must make specific
allegations of the conduct the appellant claims constituted deficient
performance by trial counsel.
22. Effectiveness of Counsel: Waiver: Records: Appeal and Error.
Appellate counsel does not waive a claim of ineffective assistance
of trial counsel by failing to specifically allege and argue prejudice,
because doing so would often require details unlikely to be found in the
record or known to the defendant without further inquiry.
23. Records: Appeal and Error. An appellate court ordinarily does
not scour the record in search of facts that might support an appel-
lant’s claim.
24. Rules of Evidence: Hearsay: Evidence: Witnesses. Neb. Rev. Stat.
§ 27-806 (Reissue 2016) allows the credibility of a declarant of a hear-
say statement or statement defined in Neb. Rev. Stat. § 27-801(4)(b)(iii),
(iv), or (v) (Cum. Supp. 2020)—statements offered against a party that
are by a person authorized by the party, by the party’s agent or servant,
or by the party’s coconspirator—to be attacked by any evidence that
would be admissible for those purposes if the declarant had testified as
a witness, without any opportunity to deny or explain.
25. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.
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STATE v. WOOD
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26. Hearsay. Statements offered to show their effect on the listener are
not hearsay.
27. ____. Statements are not hearsay to the extent they are offered for con-
text and coherence of other admissible statements and not for the truth
or the truth of the matter asserted.
28. Witnesses: Impeachment: Prior Convictions. The basic premise
underlying impeachment of a witness by evidence of a prior felony
conviction is that any past felony committed by the witness is to some
degree relevant to that individual’s credibility.
29. Witnesses. Credibility of a witness is not at issue when the truth of the
assertions are not in dispute.
30. Judges: Evidence: Appeal and Error. The exercise of judicial dis-
cretion is implicit in determinations of relevancy, and a trial court’s
decision regarding relevancy will not be reversed absent an abuse of
discretion.
31. Constitutional Law: Trial: Witnesses. The Confrontation Clause guar-
antees an opportunity for effective cross-examination, but not in what-
ever way or to whatever extent the defendant might wish, and trial
judges retain wide latitude to impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.
32. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
33. Effectiveness of Counsel: Presumptions. In assessing deficiency in
counsel’s performance, a court presumes that counsel rendered adequate
assistance and made all significant decisions in the exercise of reason-
able professional judgment.
34. Effectiveness of Counsel. Trial counsel’s decisions that amount to rea-
sonable trial strategy do not constitute deficient performance.
35. ____. Decisions about whether to engage in cross-examination, and if so
to what extent and in what manner, are strategic in nature and generally
will not support an ineffective assistance claim.
36. Effectiveness of Counsel: Appeal and Error. An appellate court does
not use perfect hindsight to criticize unsuccessful trial strategies or
second-guess trial strategy.
37. Expert Witnesses: Words and Phrases. An expert does not have to
couch his or her opinion in the magic words of reasonable certainty, but
it must be sufficiently definite and relevant to provide a basis for the
fact finder’s determination of a material fact.
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STATE v. WOOD
Cite as 310 Neb. 391
38. Expert Witnesses. A court should exclude an expert’s opinion when it
gives rise to conflicting inferences of equal probability, so the choice
between them is a matter of conjecture.
39. DNA Testing: Evidence: Jurors. The potential precision of DNA
testing is well known; thus, jurors might wrongly assume, absent evi-
dence of statistical relevance, that any DNA profile match is extremely
unlikely and therefore extremely probative.
40. ____: ____: ____. Because of the significance that jurors will likely
attach to DNA evidence, the value of inconclusive testing results with-
out statistical relevance is substantially outweighed by the danger that
the evidence will mislead the jurors.
41. Sexual Assault: DNA Testing: Evidence: Jurors. In an alleged sexual
assault described by a female victim as involving her genital area and
a male perpetrator, the presence of male DNA near the victim’s genital
area is relevant to whether the assault occurred as the victim described,
and such evidence is not outweighed by a danger of confusing the issues
or misleading the jurors even if the DNA is of insufficient quantity or
quality to obtain a profile.
42. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
43. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity.
44. Lesser-Included Offenses: Jury Instructions: Evidence. A court must
instruct on a lesser-included offense if (1) the elements of the lesser
offense for which an instruction is requested are such that one cannot
commit the greater offense without simultaneously committing the lesser
offense and (2) the evidence produces a rational basis for acquitting the
defendant of the greater offense and convicting the defendant of the
lesser offense.
45. Lesser-Included Offenses: Sexual Assault. Attempted first degree sex-
ual assault of a child is a lesser-included offense of first degree sexual
assault of a child.
Appeal from the District Court for Hall County: Andrew C.
Butler, Judge. Affirmed.
Robert W. Alexander, Deputy Hall County Public Defender,
for appellant.
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STATE v. WOOD
Cite as 310 Neb. 391
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
Marvin L. Wood appeals from his conviction of first degree
sexual assault of a child. He asserts the trial court erred by
refusing to appoint him a DNA expert, sustaining the prosecu-
tion’s objection to further use of a forensic video to refresh
the victim’s recollection, and sustaining the State’s relevancy
objection to his attempt to adduce the fact that the declarant
of certain out-of-court statements was a convicted felon. Wood
also makes numerous claims of ineffective assistance of his
trial counsel, including the failure to adequately support the
motion for a DNA expert, the handling of the State’s DNA evi-
dence, and the cross-examination of the victim. We affirm the
judgment below.
II. BACKGROUND
With counsel different from trial counsel, Wood appeals
his conviction, following a jury trial, of first degree sexual
assault of a child pursuant to Neb. Rev. Stat. § 28-319.01(1)(a)
(Reissue 2016). Trial counsel did not request that the jury be
instructed on a lesser-included offense of attempted first degree
assault of a child. The victim was friends with Wood’s daugh-
ter, and the assault occurred during a sleepover with Wood’s
daughter at Wood’s apartment. The victim was 8 years old at
the time of the assault and 9 years old at the time of trial.
1. Motion to Employ Expert Witness
Wood was charged in September 2019. Due to laboratory
delays in DNA testing, trial was continued to August 3, 2020,
with a pretrial conference set for July 2. The DNA test results
became available to the defense on June 8. At the July 2 pre-
trial conference, defense counsel indicated readiness to go
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STATE v. WOOD
Cite as 310 Neb. 391
to trial. However, on July 17, Wood moved to continue trial
on the grounds that he would be asking the court to provide
funds to retain a DNA expert and that the expert Wood wished
to hire was not available during the scheduled week of trial.
The prosecutor objected, noting it was the first she had heard
about the alleged need for a DNA expert. The court granted the
continuance, ordering trial to begin on September 14.
On July 27, 2020, Wood moved for the court to provide him
“with reasonable funds to employ an independent expert wit-
ness in the field of DNA science” and set forth the estimated
costs and fees for the expert witness he proposed to hire. As for
the need for such an expert, the motion elaborated that “[b]ased
on counsel’s review of discovery, the State’s evidence in the
above-styled case appears to consist of testimony of an alleged
victim, photographs of her injuries, medical reports and expert
testimony.” This meant that
[Wood] has a particularized need for the assistance of
an independent expert in the field of DNA science to
assess the DNA reports and testing methods completed
by the Nebraska Crime Lab and explain if they are con-
sistent with the statement(s) of the alleged victim, proper
scientific methods, and the other evidence collected in
this case.
Based upon the DNA report completed by the Nebraska State
Patrol Crime Laboratory, “it has become apparent further anal-
ysis is needed regarding test results and methods of testing
used by the Nebraska State Patrol Crime Laboratory.” Finally,
the motion set forth that “[c]ounsel for [Wood] lacks the nec-
essary expertise to question the DNA reports provided by the
State in regards to DNA testing methods and DNA results to
determine whether the alleged victim’s statements and testing
are consistent with the DNA evidence that may exist.” And
“[c]ounsel lacks expertise regarding testing methodology and
if such testing was conducted according to the recognized stan-
dards.” Therefore, trial counsel was “in need of the assistance
of an expert witness in the DNA field to assist in evaluating
these matters.”
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STATE v. WOOD
Cite as 310 Neb. 391
At hearings on the motion, trial counsel introduced evidence
to support Wood’s indigent status. The court acknowledged
the evidence demonstrated Wood was indigent. Trial counsel
explained Wood had used all his assets in retaining counsel
that was continuing representation on a pro bono basis. The
only other evidence offered by trial counsel was a copy of the
motion and its attached cost estimate for the proposed expert.
Trial counsel acknowledged that the court had allowed Wood
to employ an expert sexual assault nurse examiner to testify on
behalf of the defense and that the State had allowed the defense
to have access to its DNA expert from the Nebraska State
Patrol Crime Laboratory. Nevertheless, trial counsel became
aware of the need for a DNA expert after witness preparation
occurred with Wood’s expert sexual assault nurse examiner in
mid-July. Trial counsel argued that “based on some of the con-
clusions and the methodology that was used in the creation of
the DNA report, we’re needing a DNA expert” “to look at how
these tests were performed.” Trial counsel elaborated:
We believe it’s necessary to employ a DNA expert to
help the jury to understand what the DNA evidence in this
case means. Specifically, I believe the evidence will show
that there was found on the alleged victim’s underwear a
mixture of DNA from three people, a 4 percent portion of
which appears to be that of . . . Wood.
However, the amount of DNA, the amount of cells
where it was found, to explain to the jury how that actu-
ally exists in life, whether it’s touch DNA, what kind of
cells, all of that, Judge, I’m not an expert in DNA. The
jury is not an expert in DNA. But I believe it’s important
that we have someone who can explain to them exactly
what this means.
The State will have an expert that does all of that and
explain how things were tested and how it was found,
why they believe that it’s . . . Wood’s DNA on those
underwear, but the jury also needs to understand the facts
in totality.
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STATE v. WOOD
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Because in speaking to our expert, talking about mark-
ers, talking about whether it’s one in a billion or one in a
trillion or one in 500,000, all these probabilities of who it
could be, how many cells, what kind of cells, whether it’s
touch DNA, seminal fluid or semen, all of these things
matter. It’s something we don’t have the expertise to
explain to the jury.
Trial counsel also described an alleged phone call with the
Nebraska State Patrol Crime Laboratory in which it was dis-
closed that no male DNA was detected in any of the swabs and
the biologist “didn’t understand the findings that were in that
lab report.” Trial counsel summarized that the request was for
the court to “allow us to hire this expert and to use her both for
review of the trial to help educate us as to DNA and its mean-
ing, and then to educate the jury and educate a layman exactly
what that means.”
The court denied the motion. It observed that “virtually no
evidence to support the motion was offered” and that “[t]he
reasons that prompted an ‘apparent’ need for an expert witness
remain largely unspecified.” It then reasoned:
The State has indicated that it intends to call upon an
expert in genetic analysis employed by the Nebraska
Crime Lab. While this expert would technically be con-
sidered the State’s witness, this Court finds no evidence
to suggest that defense counsel is deprived of the right
to cross examination. Likewise, this Court possesses no
knowledge that would indicate that defense counsel is
incapable of amassing sufficient independent research on
the subject that would equip defense counsel with the rel-
evant knowledge and resources required to conduct such
cross examination.
The court concluded that it was not “required to provide
[Wood] with the tools needed for a ‘fishing expedition’” and it
was “confident that defense counsel in this case has the intel-
lectual capacity, resources, and creativity required to mount an
exceptionally comprehensive cross examination of the State’s
proposed expert witness.”
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STATE v. WOOD
Cite as 310 Neb. 391
2. Mother’s Testimony
The first witness called by the State was the victim’s mother.
She testified that she was in a romantic relationship with
Matthew Price, the owner of an auto shop where Wood worked,
and that her daughter and Wood’s daughter were friends.
The two girls often played together at the shop where Wood
was employed.
The mother testified that the morning after the victim spent
the night at Wood’s apartment for a sleepover with Wood’s
daughter, she was informed the victim would be going to
Lincoln, Nebraska, with Wood and his daughter because Wood
had to get a title to a vehicle. These arrangements were unex-
pected and were made without her input. Later that day, Wood
dropped the victim off at a parking lot near Price’s softball
game that the mother was attending. Wood’s daughter was not
with him. The victim exited Wood’s vehicle first, holding an
outfit Wood had purchased for her in Lincoln. When Wood
exited the vehicle, the first thing he said was, “‘She’s been a
fucking brat all day.’” Price invited Wood to stay for the game,
but Wood declined.
The mother and the victim sat in the dugout to watch the
game. The mother testified that, since the victim’s arrival,
the victim “was being really quiet,” “clinging on to me pretty
tight,” and “wasn’t saying anything when anybody was around
at all.” The mother asked the victim if something was wrong.
The victim told her mother she needed to tell her a “secret.”
After the victim told her the “secret,” the mother immediately
“hollered to the field,” telling Price she needed to leave. They
took the victim immediately to a hospital. The mother told the
victim they needed to see a doctor because of what happened.
The victim said, “‘Okay.’” She “was crying in the car the
whole time.”
There was a delay in finding someone to come to the hospi-
tal to examine the victim. The mother testified that while they
were waiting for the victim to be examined, the victim needed
to use the restroom. The mother accompanied her. After the
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victim wiped herself, she showed her mother the toilet paper,
because it had blood on it. The mother conveyed this informa-
tion to a nurse at the hospital. The mother explained that before
that day, the victim had not complained of experiencing any
irritation in her vaginal area, and that the victim normally tells
her “right away” if something like that is wrong.
They waited about 5 hours while the hospital attempted to
set up a medical examination, but it was not able to do so.
The entire time, the victim kept wearing everything she had
worn since being dropped off with her mother, because the
staff “didn’t want to contaminate anything.” This included the
underwear she had worn during the sleepover.
After the victim was released from the hospital, her mother
and Price took her to a child advocacy center. The victim was
quiet on the ride there. The victim was asked to change her
underwear and give the underwear she was wearing to the
interviewer at the child advocacy center, who put them in a
paper bag. The victim was interviewed, and then they went
home. The interview had lasted until approximately 1 a.m.;
they had arrived there late in the evening.
The victim was finally able to be examined by a pediatrician
2 days after she spent the night at Wood’s apartment.
The mother described changes in the victim’s behavior. Her
normally “pretty happy kid” had become more quiet and would
“get angry about small things.” The victim has two siblings.
While the victim used to occasionally shower with her younger
sister when there was not enough time for all three siblings to
take separate showers, she no longer did. The victim did not
want to get dressed in front of anyone. When it was time to
go to bed, the victim “would start crying that she didn’t want
to be, like, in her room by herself” and she “would wake up
crying a lot.” This was not behavior the mother had observed
before the victim spent the night at Wood’s apartment.
During trial counsel’s cross-examination of the mother, she
was asked whether she knew Price was a convicted felon.
The prosecution objected, and counsel had an in-chambers
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conference in which the prosecution explained its objection
was on the grounds of relevance and improper character evi-
dence. Defense counsel argued the evidence supported the
theory that Price and the victim’s mother “got together and
chose to have [the victim] make up this story.” The court sus-
tained the objection, explaining that, at that time, there was no
evidence supporting the relevancy of Price’s criminal history.
The court explained that it would retain the mother for added
testimony later, if defense counsel wished. Defense counsel
said nothing further on the matter. The jury was instructed to
disregard the question regarding Price’s criminal history.
The mother’s testimony during direct examination had
referred to approximately five general statements by Price. At
one point in describing the events leading up to the sleepover,
she said Price had told her that because the victim had been
good all day, he was going to let her go to the sleepover. She
also described how Price had told her that Wood took the vic-
tim directly from the shop to the sleepover at his apartment.
Price had informed the mother that the victim was going with
Wood and Wood’s daughter to Lincoln the day following the
sleepover. The mother testified as to how Price had invited
Wood to stay and watch the softball game. Finally, when the
mother later yelled at Price that she needed to leave, she testi-
fied Price asked her, “‘What’s wrong?’”
3. Law Enforcement Officer Testimony
A law enforcement officer who had met the victim at the
hospital testified at trial. She described the victim as “with-
drawn” and “in shock.” The officer testified she became aware
at the hospital that blood had been observed on a piece of toilet
paper after the victim used the restroom. She elaborated that
she heard multiple medical professionals speaking about it.
The officer went to the child advocacy center when the
victim did, collected the underwear, and placed it into evi-
dence. The officer later went to Wood’s apartment, and Wood
accompanied the officer to the police station for an interview.
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In the interview, Wood said he had gone to his daughter’s room
to comfort the victim who was scared of a severe storm that
occurred that night. The officer affirmed on cross-examination
that a large storm had occurred on the night in question.
The officer testified that Wood said he brought the victim
to the sofa bed in the living room, which had been turned
into a bed; gave the victim a “tablet [computer] for entertain-
ment”; and lay down next to her and fell asleep. Wood denied
any physical contact other than putting his arm around her for
comfort. At some point during the interview, Wood expressed
that the victim had put on only a shirt and underwear to wear
to bed and that he thought it was unacceptable she was not
wearing pants. Further, Wood said that sometimes the victim
would climb all over him, “but she sets those boundaries.”
Wood stated that when he woke up on the sofa bed, “she was
right there, that she sets those boundaries.”
4. DNA and Serum Testing of Clothing
and Medical Examination Swabs
A forensic biologist in the DNA unit of the Nebraska State
Patrol Crime Laboratory testified as to the procedures and
results of DNA and serum testing of the victim’s clothing and
of swabs taken during the medical examination.
(a) Serum Testing
The biologist tested the items from the sexual assault medi-
cal examination kit, which included two vaginal swabs, two
external genital swabs, and two oral evidence swabs. Serology
testing did not detect the presence of semen in any item con-
tained in the kit.
(b) DNA Processing of Examination
Swabs and Exhibit 18
The biologist then processed all the examination swabs for
DNA. Exhibit 18, entered into evidence by the State without
objection, is the laboratory report signed by the biologist. It
shows that no semen was found in the swabs and that DNA
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testing was performed on them. It shows that DNA processing
of the DNA samples in both the two vaginal swabs and the
two oral evidence swabs was stopped “due to the insufficient
quantity of male DNA detected.” The victim’s DNA was found
on the external genital swabs, while Wood was excluded as a
contributor to the DNA profile detected.
The biologist explained that the aspect of the report showing
processing of the two vaginal swabs and the two oral swabs
was stopped, due to the insufficient quantity of male DNA
detected, meant that she “was not able to detect the presence
of male DNA on the sample.” The State then asked the biolo-
gist, “Can you say with certainty that there was no male DNA
on the two vaginal swabs?” She responded, without objection,
“I couldn’t say definitively, no, there’s no DNA present. It
just wasn’t in great enough amounts to be detected using this
form of testing.” With respect to the oral swabs, the biologist
again confirmed, without objection, she was not able to say
with absolute certainty whether or not there was male DNA
on them.
The biologist was also asked about the external genital
swabs. She explained that, referring to some of the worksheets
generated as a byproduct of her testing during the quantitation
portion of the DNA process, she had detected the presence of
both male and female DNA. This information is not reflected
in the report. The biologist testified that, as stated in the report,
Wood’s profile was excluded from that sample, while the vic-
tim’s DNA was included. The biologist explained Wood was
excluded because she was not able to find a profile of that
male DNA to compare with other DNA profiles. “In samples
like this where there’s a greater female present than male, the
female can essentially drown out any potential load level of
male DNA.”
(c) Y-STR DNA Testing of Examination
Swabs and Exhibit 20
The biologist testified that in a further attempt to find
a profile in the male DNA she had detected, she sent the
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external genital swabs for “Y-STR testing,” which can ignore
the female DNA and just focus on the male DNA. This can
make it possible to obtain a DNA profile to use for comparison
purposes. The Y-STR DNA testing was performed by one of
the supervisors in the biology unit of the Nebraska State Patrol
Crime Laboratory. The biologist reviewed the report, marked
as exhibit 20, before testifying further. She then testified that
the Y-STR DNA testing was, like the DNA testing conducted
by herself, unable to detect a male DNA profile. As a result,
the male DNA found could not be compared with any other
known DNA profiles for comparison purposes.
The State did not offer exhibit 20 into evidence. But on
cross-examination, trial counsel offered exhibit 20 into evi-
dence and it was received. The biologist testified that the
supervisor’s report, marked as exhibit 20, was a true and accu-
rate copy and that she recognized the supervisor’s signature
on it.
Exhibit 20 is a short report that concludes no Y-STR DNA
profile was found.
(d) Epithelial DNA on Underwear and Exhibit 17
The biologist also performed testing on the victim’s under-
wear that she wore at the time of the incident, which testing did
not detect semen. Swabs for epithelial, or “touch,” DNA on the
waistband and crotch area of the underwear were tested, and a
mixture of DNA originating from three individuals was found.
The victim was a major contributor to that mixture.
Testing included Wood as one of the minor contributors to
the mixture. Two percent of the DNA mixture was from an
unknown person. The results of this DNA testing were entered
into evidence as exhibit 17.
During cross-examination, the biologist explained that touch
DNA could be transferred directly or indirectly by touching
things a person has touched. She also explained that one would
expect to find the touch DNA of a person on surfaces where
that person lives.
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5. Victim’s Testimony
The victim testified that the last time she spent the night at
Wood’s apartment, she had slept in the top bunk of a bunk bed
in her friend’s bedroom. She testified that Wood woke her up.
Wood accompanied her to the living room, where a sofa bed
had been made into a bed. The victim described that while
she stood by the sofa bed, Wood removed her pajama pants.
She admitted she was unsure if she was wearing a nightgown
instead of pants. The victim described that Wood removed her
underwear. Wood lay down on the sofa bed with the victim and
unzipped and pulled his pants down “a little.” The victim testi-
fied Wood lay on top of her and “put[] his finger in my private
part.” They eventually went to Wood’s bedroom, where the
victim described “he put his private in mine.”
The victim described that during the shopping excursion
the following day, Wood said he did not want the victim “to
tell” because she and Price “were his only friends.” The victim
could not remember if she was wearing the new clothes the fol-
lowing day when she was brought back to her mother.
The victim explained that she told her mother what had hap-
pened and that they went to the hospital. At the hospital, her
mother accompanied her when she had to use the bathroom,
and her “pee” was light red and it hurt when she urinated. The
victim also explained that she was wearing the same underwear
she had worn when Wood had woken her up.
(a) Refreshing Recollection With Video
Trial counsel had moved before trial for the release of the
child advocacy center video of the victim’s forensic interview,
but had then withdrawn this request, explaining, “We needed
to have it formatted in a way we could go back and forth in
time in case we need to refresh the memory of the [victim].
We were able to do that without the necessity of releasing it
to anyone.” On cross-examination, the victim testified she did
not remember if she had taken clothes to Wood’s apartment
or if she had taken a shower or bath while there. Most of the
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cross-examination centered on the victim’s prior statements in
the forensic interview and deposition.
At one point, trial counsel asked about the interview and the
fact that it was just the victim and the interviewer present in
the room. When trial counsel then asked questions such as, “do
you remember where you told them that this took place?,” a
series of questions and answers revealed the victim’s confusion
about whether she was being asked about the room where the
interview had taken place or the location where the assault had
taken place.
She eventually testified she had told the interviewer the
incident started in her friend’s room, moved to the living
room, and then to Wood’s bedroom. At that point, in chambers,
defense counsel was permitted to show the victim a portion of
the video of the interview. Upon returning to the courtroom,
the victim stated that the video had refreshed her memory.
The victim confirmed she had told the interviewer that
Wood and she went from her friend’s bedroom to Wood’s bed-
room. She had not told the interviewer anything with Wood
had occurred in the living room.
Trial counsel also confronted the victim with her deposition
testimony that Wood had taken her to the living room, where
all the events described occurred. She did not testify in her
deposition that she had gone to Wood’s bedroom.
Trial counsel proceeded to ask the victim if she remembered
what she had told the interviewer with respect to whether Wood
took his clothes off or only unzipped his pants. When the vic-
tim said she did not remember, she was again taken in cham-
bers where she watched a portion of the video of her interview.
Upon returning to the courtroom, the victim testified she had
told the interviewer that Wood had taken his clothes off.
Next, trial counsel confronted the victim with her statement
in her deposition that Wood had placed her into his bed. Trial
counsel asked if she remembered what she had said in this
regard in her interview at the child advocacy center. She did
not remember. But before the court ruled on trial counsel’s
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request to take the victim back in chambers to watch a portion
of the video, an off-the-record discussion between counsel and
the court took place, after which the jury was dismissed until
the continuation of trial the following day.
(b) Plan to Have Victim Watch Entire Video
The court articulated that a plan had been made for the
victim to watch the entirety of the interview video with her
guardian ad litem and have the transcript of her deposition read
to her before testifying the next day. The court explained this
was to avoid the “up-and-down issue that we have been having
with this.”
The following morning, however, the prosecution explained
the victim had her deposition read to her, but only watched
about 16 minutes of the 45-minute interview before the guard-
ian ad litem decided to stop it. The guardian ad litem explained
she became “very concerned with [the victim’s] demeanor and
a change in her demeanor that I thought she became just vis-
ibly upset and kind of shrunken down into her chair.”
(c) Objection and Ruling That Video
Could Not Be Used
The prosecution stated that it had reflected upon “what hap-
pened yesterday” and that, after some research, it decided to
motion the court to prohibit the defense from using the inter-
view video to refresh the victim’s recollection. The prosecu-
tion relied on the fact that Neb. Rev. Stat. § 27-612 (Reissue
2016) refers only to writings, as well as the case of State v.
Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019). Even if
refreshing the victim’s recollection with the video were per-
missible, the State argued the procedure used did not comport
with § 27-612. Lastly, the prosecution explained it believed
counsel was attempting to impeach the victim under the guise
of refreshing her recollection.
According to the prosecution, when the attempted impeach-
ment did not work because the victim did not remember what
she had said, the rules contemplated impeachment through
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extrinsic evidence, not by using extrinsic evidence to refresh
a victim’s recollection so she could then impeach herself. The
prosecution argued there were other means to impeach the vic-
tim’s testimony without making her watch the interview video.
For example, the defense could call another witness who was
present at the interview and impeach the witness’ testimony by
adducing the other witness’ testimony about what was said.
Trial counsel responded no notice was given that this was
to be discussed and the matter was believed to be settled. That
said, “Certainly I have no issue using her prior statements
against her without her being refreshed. Probably would have
been easier for her.” But trial counsel also pointed out that
Neb. Rev. Stat. § 27-613 (Reissue 2016) describes giving a
witness the opportunity to explain or deny a prior inconsistent
statement. Trial counsel then argued that “for her to simply say
I don’t remember when she made an inconsistent statement is
not acceptable. We would then be unable to delve into it by
actually playing that portion of the video to the jury.”
The court ruled that the victim’s recollection could no longer
be refreshed by use of the interview video, nor could the video
be played for the jury as extrinsic evidence to impeach the vic-
tim. The court said:
Yes, going forward, the moment [the victim] indicates
she doesn’t remember, she doesn’t remember. That is her
answer. You do have the opportunity through [§ 27-]613
for the inconsistent statements with extrinsic evidence,
but that will not include the playing of that video or the
refreshing of her recollection with that video.
We still have the deposition, which that has been read
to her this morning, and you can question regarding that.
Trial counsel did not respond to this pronouncement and did
not ask to make an offer of proof as to any impeachment
believed to be thereby impeded.
(d) Resumption of Cross-Examination
When cross-examination resumed, the victim admitted that
she had told defense counsel in her deposition that she had
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dressed herself after the assault, while in her testimony at trial
she said Wood put her clothes on her. Defense counsel also
questioned the victim about the details of her shopping trip
with Wood the following day.
6. Testimony of Forensic Interviewer
The forensic interviewer testified about her interview of
the victim the evening after the assault. She said that she was
trained in the disclosure process children typically use when
disclosing traumatic events and that disclosure does not usually
happen all at once. Also, a child may not disclose all the details
involved in the assault during the forensic interview.
On cross-examination, trial counsel asked the interviewer
where the victim had told her the incident had taken place.
The interviewer answered in the bedroom. Then trial counsel
asked, “Let’s talk first about [Wood’s] bedroom. Is that where
she said the, I’ll call it touching, took place?” The prosecution
objected on the grounds of hearsay and improper impeach-
ment. In a discussion at the bench, the trial counsel asserted
the question was not hearsay because it was asked to elicit the
prior inconsistent statements for purposes of impeachment. The
prosecution responded:
He is only able to impeach specific statements that [the
victim] testified to when she testified in this court hear-
ing, and asking this witness to have her essentially recount
everything that [the victim] told her is above and beyond
impeachment. He needs to be specific, needs to ask her
— I mean, we haven’t even said a specific statement he’s
attempting to impeach. To use [the interviewer] to reiter-
ate the entirety of the interview is not confined enough to
qualify as improper impeachment.
Trial counsel withdrew the question and agreed to ask a
more specific question. The following cross-examination then
took place:
Q Did [the victim] tell you that the incident took place
in [Wood’s] room?
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A Part of it, yes.
Q Did [the victim] tell you that in [Wood’s] room [he]
put his private parts in her private parts?
A Yes.
Q Did [the victim] tell you that [Wood] took her
back to her bed, the bunkbed, got in bed with her and
kissed her?
A Yes.
....
Q [The victim] then said that [Wood] got out of the top
bunk and she went to sleep, correct?
A Yes.
....
Q Did [the victim] tell you that . . . Wood took off his
clothes?
A Yes.
On redirect, the interviewer testified that children dis-
closing traumatic events do not always disclose the facts
chronologically.
7. Sexual Assault Examination
The pediatrician who performed the victim’s sexual assault
examination testified the victim had disclosed she had some
burning and some blood when she urinated the night before,
but those issues had resolved by the time of the examination.
The pediatrician testified that the victim eventually became
uncooperative when the pediatrician attempted to swab the out-
side of the victim’s vaginal opening and that the pediatrician
was unable to swab fully.
All other aspects of the sexual examination kit were com-
pleted successfully. The pediatrician also conducted a physi-
cal examination for injuries. She photographed the area, but
explained the photographs could have been better had the vic-
tim been more cooperative when they were taken. The victim
at that point had become “uncomfortable.”
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The pediatrician testified that she observed during the physi-
cal examination “an extreme amount of redness and irritated
tissue from about 3 o’clock going around to about 9 o’clock on
the face of a clock.” She explained, “Lots of young girls have
redness down there, but this was impressive, much more than
you see on a standard exam of a child.”
The pediatrician also observed a superficial, vertical lac-
eration at about the 9 o’clock position and in the folds of the
labia minora adjacent to the vaginal opening. The tissue of
the vagina heals very quickly; therefore, she concluded the
observed injuries were recent.
The victim’s injuries, the pediatrician explained, could have
caused bleeding when they first occurred, as well as burning
during urination. Further, there would not necessarily be blood
on the victim’s underwear given the injuries and reported
bleeding. Rather, “[t]he way that it’s hidden up in these tis-
sues,” it was possible that “when [she] wiped over it, it opened
it up again or that that blood had sort [sic] been tucked up in
that tissue.”
The pediatrician stated the observed injuries could be con-
sistent with digital or penile penetration of the vagina. On
cross-examination, the pediatrician conceded it was “possible”
the observed injuries were caused by acts that were not “crimi-
nal or nefarious.”
8. Defense Expert Witness
The defense called as an expert witness the sexual assault
nurse examiner, who was also a nurse practitioner with a
doctorate degree in nursing. The expert works as the assistant
manager of a forensic assessment consultation and treatment
program. She had reviewed the police records, a transcript of
the forensic interview, the medical records from the hospital,
and the medical records from the forensic examination.
The expert testified that redness is a nonspecific finding
that “really holds no significance to the exam.” She observed
no physical injuries from the photographs taken during the
examination.
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The expert stated that if there was blood observed after
urinating, she would expect blood cells would be detected in
a urinalysis. A urinalysis had been completed at the hospital.
The expert stated that if she remembered correctly, “the blood
was negative, the urine was clear. And then I believe there
were minimal whites, which is white blood cells, and then red
blood cells were present.”
Based on her review of the records, the expert opined
there was no injury indicative of sexual abuse. On cross-
examination, the expert admitted that it is possible for a sexual
assault not to cause any injuries.
9. Jury Instruction Conference
and Closing Arguments
Wood’s trial counsel did not object to any of the jury instruc-
tions or the verdict form and did not submit any additional pro-
posed instructions. During closing arguments, the prosecution
pointed out the victim’s physical injuries and made the follow-
ing argument with respect to the DNA evidence:
We had DNA evidence. Sure, I think it was pointed
out by one of the defense attorneys during their cross-
examination maybe in 100 years we’ll finally catch up to
CSI and all of the other television shows. Fair enough.
But we know that there was male DNA on the external
genital swabs that were collected from [the victim] during
[the victim’s] exam. There shouldn’t be male DNA on the
external area of an eight-year-old’s vagina.
We also know that . . . Wood’s DNA is on [the vic-
tim’s] underwear, the underwear she was wearing imme-
diately before, immediately after the assault happened.
The prosecution also pointed out that disclosure of a sexual
assault is a process that does not necessarily happen all at once
or in a perfect chronological retelling. The prosecution pointed
out that the victim was a child who did not know about sexual
intercourse and who had no experience to assist in processing
this trauma. Despite this, she was expected to talk about the
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assault and then have a pediatrician examine her “on a part of
her body that isn’t normal for an eight-year-old girl to have
examined.” Lastly, the prosecution described the testimony
indicating the victim’s changes in behavior and demeanor after
the assault.
Trial counsel emphasized in closing arguments the burden of
proof. Trial counsel pointed out that the victim had told three
different stories and that there were multiple inconsistencies in
her statements about the alleged assault. In fact, trial counsel
had counted the inconsistencies to be “into the teens.” Trial
counsel asserted, “It’s easy to remember the truth. It’s very
hard to remember a lie.”
Trial counsel also emphasized that its expert found no injury
demonstrating sexual assault and that the presence of epithelial
cells in underwear worn overnight while in Wood’s “messy
apartment” was not incriminating, given that the cells can be
transferred via surfaces.
III. ASSIGNMENTS OF ERROR
Wood assigns that the district court erred when it (1) denied
his motion that a DNA expert be appointed, (2) refused to
allow Wood to refresh the victim’s recollection by having her
watch the video of her forensic interview, and (3) prohibited
Wood from asking the victim’s mother if Price, who was
Wood’s employer, was a convicted felon.
Wood assigns that trial counsel was ineffective in (1) fail-
ing to request a lesser-included instruction of attempted first
degree sexual assault of a child, (2) “Failing to Investigate the
Case Fully,” (3) presenting “Virtually No Evidence in Support
of his Motion to Employ an Expert Witness and for Payment
of the Same,” (4) failing to object to “Clearly Irrelevant and
Unduly Prejudicial Testimony About DNA Testing Results
with No Statistical Significance,” (5) failing to object to the
biologist’s “Testimony” regarding the Y-STR DNA testing
conducted by her supervisor, (6) offering exhibit 20, (7) “in
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his Cross-Examination” of the victim, and (8) “in his Cross-
Examination” of the forensic interviewer.
IV. STANDARD OF REVIEW
[1] The right of an indigent defendant to the appointment of
an expert witness at the State’s expense generally rests in the
discretion of the trial court. 1
[2,3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules and judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. 2 Where the Nebraska Evidence Rules commit the
evidentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. 3
[4,5] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it can
be resolved on direct appeal; the determining factor is whether
the record is sufficient to adequately review the question. 4 The
record is sufficient to resolve on direct appeal a claim of inef-
fective assistance of counsel if the record affirmatively proves
or rebuts either deficiency or prejudice with respect to the
defendant’s claims. 5
V. ANALYSIS
Wood asserts on appeal three errors by the trial court and
numerous alleged acts of ineffective assistance by his trial
counsel. Wood argues the court erred by denying his pretrial
motion that a DNA expert be appointed and, alternatively,
1
State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000); State v. Quezada, 20
Neb. App. 836, 834 N.W.2d 258 (2013).
2
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
3
Id.
4
See State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).
5
See id.
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that defense counsel was ineffective for presenting “Virtually
No Evidence” in support of the motion for appointment of
a DNA expert. Wood argues the court erred during trial in
prohibiting defense counsel from eliciting testimony from
the victim’s mother that Price was a convicted felon in order
to impeach Price’s out-of-court statements. Wood argues the
trial court erred by sustaining the prosecution’s objection to
any further use of the forensic video to refresh the victim’s
recollection. Relatedly, he asserts defense counsel was inef-
fective in the manner the victim was cross-examined. Defense
counsel was also allegedly ineffective in cross-examining the
forensic examiner about the victim’s interview statements.
Wood claims defense counsel failed to “Investigate the Case
Fully” and mishandled the evidence relating to the DNA test-
ing of the swabs from the medical examination. Finally, Wood
argues defense counsel was ineffective by failing to request an
instruction on the lesser-included offense of attempt.
1. Failure to Appoint DNA Expert and
Alleged Ineffectiveness in Trial
Counsel’s Lack of Support
for Its Motion
The right of an indigent defendant to the appointment of an
expert witness at the State’s expense generally rests in the dis-
cretion of the trial court. 6 Neb. Rev. Stat. § 27-706(1) (Reissue
2016) provides, in part:
The judge may on his own motion or on the motion of
any party enter an order to show why expert witnesses
should not be appointed, and may request the parties to
submit nominations. The judge may appoint any expert
witnesses agreed upon by the parties, and may appoint
witnesses of his own selection.
Under § 27-706(2), “Expert witnesses so appointed are entitled
to reasonable compensation in whatever sum the judge may
6
State v. Baue, supra note 1.
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allow. The compensation thus fixed is payable from funds
which may be provided by law in criminal cases . . . .”
We have repeatedly held that the right of an indigent defend
ant to the appointment of an expert witness at the State’s
expense generally rests in the discretion of the trial court. 7
Wood asserts the trial court abused its discretion because deny-
ing his request for appointment of a DNA expert violated his
rights to procedural due process.
The U.S. Supreme Court has said that “when a State brings
its judicial power to bear on an indigent defendant in a crimi-
nal proceeding, it must take steps to assure that the defendant
has a fair opportunity to present his defense,” and that “justice
cannot be equal where, simply as a result of his poverty, a
defendant is denied the opportunity to participate meaningfully
in a judicial proceeding in which his liberty is at stake.” 8 The
Court stated, “[A] criminal trial is fundamentally unfair if the
State proceeds against an indigent defendant without making
certain he has access to the raw materials integral to the build-
ing of an effective defense.” 9 The State need not purchase for
the indigent defendant all the assistance wealthier counterparts
might buy, 10 but the “‘basic tools of an adequate defense or
appeal’” must be provided to those defendants who cannot
afford to pay for them. 11
In Ake v. Oklahoma, 12 and McWilliams v. Dunn, 13 the Court
held that an indigent defendant has a constitutional right
7
Id.
8
Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 84 L. Ed. 2d 53
(1985).
9
Id., 470 U.S. at 77.
10
See id. See, also, Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed.
2d 341 (1974).
11
Ake v. Oklahoma, supra note 8.
12
Id.
13
McWilliams v. Dunn, ___ U.S. ___, 137 S. Ct. 1790, 198 L. Ed. 2d 341
(2017).
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to access to an expert in psychiatry after the defendant has
made a preliminary showing that the defendant’s sanity at
the time of the offense is “likely” to be “a significant fac-
tor in his defense.” 14 It found the need for an independent
expert psychiatrist necessarily followed from a showing of
such materiality, because psychiatry is not an “exact science”
and “psychiatrists disagree widely and frequently,” so jurors
“must resolve differences in opinion within the psychiat-
ric profession on the basis of the evidence offered by each
party.” 15 Thus,
without the assistance of a psychiatrist to conduct a pro-
fessional examination on issues relevant to the defense,
to help determine whether the insanity defense is via-
ble, to present testimony, and to assist in preparing the
cross-examination of a State’s psychiatric witnesses,
the risk of an inaccurate resolution of sanity issues is
extremely high. 16
The U.S. Supreme Court elaborated that a qualified mental
health expert must be “sufficiently available” to the defense
and “independent from the prosecution” in order to effectively
“‘assist in evaluation, preparation, and presentation of the
defense.’” 17 While the Court has recognized the simplest way
to achieve this goal is to provide a qualified expert retained
specifically for the defense team, it has declined to address
whether appointment of an expert for the defense is always
required when sanity is likely to be a significant factor in the
accused’s defense. 18
14
Ake v. Oklahoma, supra note 8, 470 U.S. at 86.
15
Id., 470 U.S. at 81.
16
Id., 470 U.S. at 82.
17
McWilliams v. Dunn, supra note 13, 137 S. Ct. at 1800, quoting Ake v.
Oklahoma, supra note 8.
18
McWilliams v. Dunn, supra note 13.
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[6] The Court explained that access to an expert with State
funds is at its foundations analyzed under the three factors
of procedural due process set forth in Mathews v. Eldridge 19:
First, the private interest that will be affected by the offi-
cial action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safe-
guards; and finally, the government’s interest, including the
function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would
entail. 20 While the Court recognized the State may suffer
some financial burden in providing defense access to an inde-
pendent psychiatrist at its expense, in circumstances where a
defendant’s mental condition is at issue and relevant to cul-
pability or punishment, this financial burden is outweighed
by both the State’s and the defendant’s interests in fair and
accurate adjudications of criminal cases—given the complex-
ity of the determination for which such expert testimony can
be crucial. 21
These procedural due process standards have since been
applied by Nebraska courts, 22 as well as by both federal
19
Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
20
Id.
21
See Ake v. Oklahoma, supra note 8.
22
See, State v. George, 264 Neb. 26, 645 N.W.2d 777 (2002); State v. Jacob,
253 Neb. 950, 574 N.W.2d 117 (1998), abrogated on other grounds,
State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012); State v. Grimes,
246 Neb. 473, 519 N.W.2d 507 (1994), overruled on other grounds, State
v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998); State v. White, 244
Neb. 577, 508 N.W.2d 554 (1993), overruled on other grounds, State v.
Burlison, supra note 22; State v. Boppre, 234 Neb. 922, 453 N.W.2d 406
(1990); State v. Lesiak, 234 Neb. 163, 449 N.W.2d 550 (1989); State v.
Suggett, 200 Neb. 693, 264 N.W.2d 876 (1978); State v. Quezada, supra
note 1; State v. Turco, 6 Neb. App. 725, 576 N.W.2d 847 (1998); State v.
Doremus, 2 Neb. App. 784, 514 N.W.2d 649 (1994).
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courts 23 and courts in other states, 24 to a variety of other fields
of expert knowledge shown likely to be a significant factor
to the accused’s defense. The U.S. Supreme Court has not
spoken on the question of other areas of scientific knowledge,
declining in Caldwell v. Mississippi 25 to consider a trial court’s
refusal to appoint fingerprint and ballistics experts, because the
defendant had “offered little more than undeveloped assertions
that the requested assistance would be beneficial.”
[7] We agree with the Eighth Circuit that “[t]here is no
principled way to distinguish between psychiatric and non-
psychiatric experts,” inasmuch as an expert in any field of
expertise may, under the circumstances, be a “‘basic tool[] of
an adequate defense’” or appeal. 26 With respect to a defense
request for the appointment of an expert independent of the
prosecution, “[t]he question in each case must be not what field
of science or expert knowledge is involved, but rather how
important the scientific issue is in the case, and how much help
a defense expert could have given.” 27
23
See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed.
2d 231 (1985); Scott v. State of La., 934 F.2d 631 (5th Cir. 1991); Terry
v. Rees, 985 F.2d 283 (6th Cir. 1993); Little v. Armontrout, 835 F.2d 1240
(8th Cir. 1987); Dunn v. Roberts, 963 F.2d 308 (10th Cir. 1992); Moore v.
Kemp, 809 F.2d 702 (11th Cir. 1987).
24
See, e.g., Ex parte Moody, 684 So. 2d 114 (Ala. 1996); Doe v. Superior
Court, 39 Cal. App. 4th 538, 45 Cal. Rptr. 2d 888 (1995), disapproved on
other grounds, James G. v. Superior Court, 80 Cal. App. 4th 275, 95 Cal.
Rptr. 2d 135 (2000); Bright v. State, 265 Ga. 265, 455 S.E.2d 37 (1995);
People v. Lawson, 163 Ill. 2d 187, 644 N.E.2d 1172, 206 Ill. Dec. 119
(1994); State v. Coker, 412 N.W.2d 589 (Iowa 1987); State v. Moore, 321
N.C. 327, 364 S.E.2d 648 (1988); State v. Mason, 82 Ohio St. 3d 144,
694 N.E.2d 932 (1998); Rogers v. State, 890 P.2d 959 (Okla. Crim. App.
1995); State v. Rogers, 313 Or. 356, 836 P.2d 1308 (1992); Rey v. State,
897 S.W.2d 333 (Tex. Crim. App. 1995); Husske v. Com., 252 Va. 203, 476
S.E.2d 920 (1996).
25
Caldwell v. Mississippi, supra note 23, 472 U.S. at 323-24, n.1.
26
Little v. Armontrout, supra note 23, 835 F.2d at 1243.
27
Id.
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(a) No Preliminary Showing of
Necessity Supporting Motion
[8] The State does not contest that defendants may, depend-
ing on the circumstances, have a procedural due process right
to appointment of a DNA expert. It asserts the district court did
not abuse its discretion in finding Wood failed to demonstrate
the need for such an appointment. We agree. “Courts uni-
formly stress that the showing of need must set forth in detail
what assistance is being requested and why it is needed.” 28
Some reasonable preliminary showing by the defense justify-
ing its request for the appointment of an expert is necessary
because the criminal justice system cannot afford defense
experts on “demand.” 29
[9,10] The determination of whether a defendant has made an
adequate showing of the reasonable necessity for an appointed
expert lies within the discretion of the trial judge. 30 A district
court abuses its discretion when its reasoning or rulings are
clearly untenable, unfairly depriving a litigant of a substan-
tial right and denying a just result in matters submitted for
disposition. 31 The district court did not abuse its discretion in
finding that Wood’s trial counsel did not make this prelimi-
nary showing.
[11,12] Outside the context of psychiatric expertise, to show
a constitutional right to appointment of an independent expert
at the State’s expense, the accused must timely make a pre-
liminary, particularized showing (1) that an issue involving
specialized knowledge is likely to be a significant factor in
the accused’s defense and (2) that there is a reasonable neces-
sity for the defense to have expert assistance in contesting that
28
3 Wayne R. LaFave et al., Criminal Procedure § 11.2(e) at 745 (4th ed.
2015).
29
See Moore v. Kemp, supra note 23, 809 F.2d at 712.
30
See, e.g., Husske v. Com., supra note 24.
31
See State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).
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issue. 32 To be a significant factor, the issue must be one likely
to make a difference as to the outcome if the defendant is suc-
cessful in contesting it. 33
[13] There is a reasonable necessity for appointed expert
assistance if the defendant shows some basis for believing the
issue can only be strongly contested with the assistance of an
appointed expert. 34 A general appeal to the complexity of the
material issue involving specialized knowledge is insufficient
to show need for the appointment of an expert unless the
defendant demonstrates the very nature of the scientific field
suggests ground for challenge—for instance, that it is one filled
with controversy and disputes over methodology. 35 On the
other extreme, where the scientific methodology is well estab-
lished and its application is viewed as largely mechanical, the
defense must show a specific reason, such as the prosecution
expert’s bias or incompetence, for concluding that a defense
expert is needed to assist in a successful challenge to such sci-
entific evidence. 36
32
See, e.g., Cade v. State, 658 So. 2d 550 (Fla. App. 1995); Isaacs v. State,
259 Ga. 717, 386 S.E.2d 316 (1989); State v. Dahl, 874 N.W.2d 348 (Iowa
2016); Sommers v. Com., 843 S.W.2d 879 (Ky. 1992), abrogated on other
grounds, Abbott, Inc. v. Guirguis, 626 S.W.3d 475 (Ky. 2021); State v.
Allen, 77 N.C. App. 142, 334 S.E.2d 410 (1985); Tibbs v. State, 819 P.2d
1372 (Okla. Crim. App. 1991); Davis v. State, 905 S.W.2d 655 (Tex. App.
1995); Husske v. Com., supra note 24. See, also, 3 LaFave et al., supra
note 28.
33
See 3 LaFave et al., supra note 28. See, also, e.g., Dunn v. State, 291 Ark.
131, 722 S.W.2d 595 (1987); Stafford v. Love, 726 P.2d 894 (Okla. 1986).
34
See 3 LaFave et al., supra note 28 (and cases cited therein). See, also, e.g.,
Moore v. Kemp, supra note 23; State v. Scott, 33 S.W.3d 746 (Tenn. 2000);
3 Nancy Hollander et al., Wharton’s Criminal Procedure § 16:2 (14th ed.
2017).
35
See, e.g., Sommers v. Com., supra note 32; 3 LaFave et al., supra note 28.
36
See 3 LaFave et al., supra note 28. See, also, e.g., Scott v. State of La.,
supra note 23; McLeod v. State, 581 So. 2d 1144 (Ala. Crim. App. 1990);
Schultz v. State, 497 N.E.2d 531 (Ind. 1986); State v. Balfa, 506 So. 2d
1369 (La. App. 1987); Johnson v. State, 529 So. 2d 577 (Miss. 1988).
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[14,15] Here, the district court reasoned defense counsel
had failed to demonstrate the DNA evidence could not be
strongly contested through rigorous cross-examination with-
out the assistance of an appointed expert. Sometimes, under
the facts presented, pretrial access to the State’s experts and
their cross-examination at trial will be adequate to contest
the issue. 37 In State v. Turco, 38 the Nebraska Court of Appeals
explained public money need not provide defense counsel with
equipment for a “‘fishing expedition.’” Rather, there must be
some showing by defense counsel that the expert is necessary
for an adequate defense, and the district court did not abuse its
discretion in denying a motion to appoint an expert when the
defendant failed to show why a vigorous cross-examination of
the State’s witnesses would not achieve the same result. 39
[16] Wood argues he was caught in a Catch-22 whereby he
had to employ an expert he could not afford in order to dem-
onstrate the need for the appointment of an expert. This is a
concern discussed by several courts and legal authorities. 40 We
find that a Catch-22 is only created when the burden of the
preliminary showing of necessity is unreasonably high. 41 The
37
See 3 LaFave et al., supra note 28.
38
State v. Turco, supra note 22, 6 Neb. App. at 731, 576 N.W.2d at 852,
quoting United States v. Schultz, 431 F.2d 907 (8th Cir. 1970).
39
See State v. Turco, supra note 22.
40
See, e.g., F.T.C. v. Atlantex Associates, 872 F.2d 966 (11th Cir. 1989);
Yarbrough v. Johnson, 490 F. Supp. 2d 694 (E.D. Va. 2007); U.S. v.
Warner, 62 M.J. 114 (C.A.A.F. 2005); Emily J. Groendyke, Ake v.
Oklahoma: Proposals for Making the Right a Reality, 10 N.Y.U. J. Legis.
& Pub. Policy 367 (2007); Fred Warren Bennett, Toward Eliminating
Bargain Basement Justice: Providing Indigent Defendants With Expert
Services and an Adequate Defense, 58 Law & Contemp. Probs. 95 (Winter
1995); A. Michelle Willis, Comment, Nonpsychiatric Expert Assistance
and the Requisite Showing of Need: A Catch-22 in the Post-Ake Criminal
Justice System, 37 Emory L.J. 995 (1988).
41
See Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in
a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305 (2004).
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defense cannot be asked to support the motion for appoint-
ment of an expert with information that can only be found
by paying for expert assistance the defendant cannot afford.
Neither should the trial court demand defense counsel conduct
a lay investigation outside the bounds of what can be expected
from an attorney of ordinary training and experience. 42 But the
district court did not impose an unreasonably high standard in
finding Wood’s request inadequate.
[17] The defendant does not have a right to the appointment
of an expert every time the material incriminating evidence
adduced by the State involves specialized knowledge. There
must be some particularized preliminary showing either that
cross-examination of the State’s experts was inadequate to the
task of revealing misleading or inadequate information or that
there was a reasonable necessity for an independent expert to
help the defense prepare for effective cross-examination of the
State’s experts. 43
Defense counsel asserted in support of Wood’s motion for
appointment of an expert that the need for an expert was
“apparent” because counsel lacked expertise in DNA testing;
that the jury needed to understand the significance of minor
contributors in a mixture of touch DNA and how touch DNA
“exists in life”; and, without any supporting affidavit or testi-
mony, that there was a phone call giving the defense reason to
question the State’s experts and proof. The district court did
not require Wood to support his motion with expert testimony
or assertions as to what an appointed expert would say, 44 but
found counsel’s unsupported arguments to be insufficient. We
cannot say this was an abuse of discretion.
(b) Ineffective Assistance
[18] Wood alternatively asserts defense counsel was inef-
fective in failing to provide adequate support for the motion
42
See, e.g., Cade v. State, supra note 32.
43
See id.
44
See, e.g., Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980).
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for appointment of a DNA expert. On direct appeal when the
defendant has obtained new counsel, the resolution of inef-
fective assistance of trial counsel claims turns upon the suf-
ficiency of the record to affirmatively prove or rebut the merits
of the ineffective assistance claims. 45 The fact that an ineffec-
tive assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. 46 The determining
factor is whether the record is sufficient to adequately review
the question. 47
[19] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington, 48 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. 49 An appellate court may address the two prongs of
this test, deficient performance and prejudice, in either order. 50
[20,21] An appellate court can determine whether the record
proves or rebuts the merits of a claim of ineffective assist
ance of trial counsel only if it has knowledge of the specific
conduct alleged to constitute deficient performance. 51 Thus,
in order to preserve a claim of ineffective assistance of trial
counsel when new counsel represents the defendant on direct
appeal, the appellant must make specific allegations of the
conduct the appellant claims constituted deficient performance
by trial counsel. 52
[22] In contrast, appellate counsel does not waive a
claim of ineffective assistance of trial counsel by failing to
45
See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
46
Id.
47
Id.
48
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
49
State v. Filholm, supra note 45.
50
Id.
51
Id.
52
See id.
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specifically allege and argue prejudice, because doing so would
often require details unlikely to be found in the record or
known to the defendant without further inquiry. 53 It is, never-
theless, advisable for appellate counsel to specifically argue
prejudice if counsel believes the details in the trial record perti-
nent to the prejudice prong of the ineffective assistance inquiry
are sufficient to adequately review the question. Appellate
courts are free to determine on direct appeal the effectiveness
of trial counsel on the prejudice prong if the record affirma-
tively proves or rebuts the claim on that ground. 54
We conclude that Wood has adequately assigned and argued
the issue of his trial counsel’s deficient conduct with respect to
the motion for appointment of an expert, but neither the ques-
tion of deficiency nor of prejudice can affirmatively be proved
or rebutted by the trial record. We have already determined
defense counsel’s motion and support thereof was inadequate
to compel, under procedural due process, the appointment of a
DNA expert. However, defense counsel would only have been
constitutionally ineffective in this regard if adequate support
actually existed.
Wood argues defense counsel could have at least proffered
an affidavit by Wood’s appointed expert sexual assault nurse
examiner. We agree with the State this was unlikely to have
made a difference, because her opinions about the need for a
DNA expert would fall outside the range of her expertise. But
Wood does not limit his allegations to trial counsel’s failure
to proffer the sexual assault nurse examiner’s affidavit. For
instance, he additionally refers to the possibility, reflected in
the discussion at the hearing on the motion, that someone at the
Nebraska State Patrol Crime Laboratory had said no male DNA
was detected on any of the swabs.
53
See id.
54
See, e.g., State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013); State v.
Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004); State v. Cody, 248 Neb.
683, 539 N.W.2d 18 (1995).
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The trial record does not affirmatively prove or rebut
whether there were such grounds to dispute the biologist’s tes-
timony that male DNA was found or whether there were addi-
tional reasons why the opportunity to cross-examine the State’s
experts, without independent expert advice in preparation, was
inadequate to contest the incriminating DNA evidence. Though
the incriminating evidence against Wood was not limited to the
DNA evidence, the DNA evidence, including the presence of
male DNA on the external vaginal swabs, was not insignificant,
and we cannot speculate as to what extent an appointed expert
would have been pivotal in contesting it.
The record does not affirmatively prove or refute whether it
is reasonably probable that effective trial counsel could have
adequately supported the motion or that the appointment of a
DNA expert would have led to a challenge to prejudicial DNA
evidence which could have changed the result of trial. 55 As
such, we do not resolve on direct appeal Wood’s claim that
trial counsel was ineffective in failing to adequately support his
motion for appointment of a DNA expert.
2. Refusal to Allow Impeachment of Price’s
Character as Convicted Felon
[23] Turning back to Wood’s alleged trial errors, we observe
in relation to Wood’s assertion that the trial court erred in
denying his attempt to adduce that Price was a convicted felon
in order to impeach Price’s out-of-court statements, Wood
fails to specify the out-of-court statements he believes to be at
issue. We ordinarily do not scour the record in search of facts
that might support an appellant’s claim. 56 But having read the
entirety of the testimony of the victim’s mother, we find that
there are few potential out-of-court statements which could
be subject to this claim and that the trial court did not abuse
55
See, e.g., State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
56
See State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018).
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its discretion in sustaining the State’s relevancy objection to
Price’s status as a convicted felon.
[24-27] Neb. Rev. Stat. § 27-806 (Reissue 2016) allows
the credibility of a declarant of a hearsay statement or state-
ment defined in Neb. Rev. Stat. § 27-801(4)(b)(iii), (iv), or (v)
(Cum. Supp. 2020)—statements offered against a party that
are by a person authorized by the party, by the party’s agent
or servant, or by the party’s coconspirator—to be attacked by
any evidence that would be admissible for those purposes if
the declarant had testified as a witness, without any opportu-
nity to deny or explain. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted. 57
Statements offered to show their effect on the listener are not
hearsay. 58 Also, statements are not hearsay to the extent they
are offered for context and coherence of other admissible state-
ments and not for the truth or the truth of the matter asserted. 59
It does not appear that any of Price’s out-of-court statements
were hearsay.
[28,29] Moreover, Price’s out-of-court statements do not
concern matters that were in dispute at trial. The basic premise
underlying impeachment of a witness by evidence of a prior
felony conviction is that any past felony committed by the wit-
ness is to some degree relevant to that individual’s credibility. 60
But credibility of a witness is not at issue when the truth of the
assertions is not in dispute. 61
57
State v. Hassan, 309 Neb. 644, 962 N.W.2d 210 (2021). See, also,
§ 27-801(3).
58
See 2 McCormick on Evidence § 249 (Robert P. Mosteller ed., 8th ed.
2020).
59
See, U.S. v. Ralston, 973 F.3d 896 (8th Cir. 2020); U.S. v. Spencer, 592
F.3d 866 (8th Cir. 2010); State v. Childs, 309 Neb. 427, 960 N.W.2d 585
(2021).
60
See, e.g., State v. Bush, 131 Idaho 22, 951 P.2d 1249 (1997); People v.
Garth, 93 Mich. App. 308, 287 N.W.2d 216 (1979).
61
See State v. Veiman, 249 Neb. 875, 546 N.W.2d 785 (1996).
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[30] The exercise of judicial discretion is implicit in deter-
minations of relevancy, and a trial court’s decision regarding
relevancy will not be reversed absent an abuse of discretion. 62
The trial court did not abuse its discretion in concluding that
Price’s credibility was not relevant to Price’s out-of-court state-
ments adduced during the mother’s testimony.
3. Prohibiting Wood From Further Refreshing
Victim’s Recollection With Video and
Effectiveness of Cross-Examination of
Victim and Forensic Interviewer
We also do not agree with Wood’s assertion that he was
deprived of the right to confrontation by the court’s decision
prohibiting him on the second day of cross-examination of the
victim from further use of the interview video to refresh her
recollection or to impeach her testimony. First, it is unclear that
defense counsel objected below to the trial court’s ruling at all,
and defense counsel certainly did not raise the right to confron-
tation. Therefore, the alleged error was waived. 63
[31] But, for the sake of completeness, we also observe
that the record does not support the alleged error. Under Neb.
Rev. Stat. § 27-611(1) (Reissue 2016), the trial judge shall
exercise reasonable control over the mode and order of inter-
rogating witnesses and presenting evidence so as to make the
interrogation and presentation effective for the ascertainment
of the truth, avoid needless consumption of time, and pro-
tect witnesses from harassment or undue embarrassment. The
Confrontation Clause guarantees an opportunity for effective
cross-examination, but not in whatever way or to whatever
extent the defendant might wish, and trial judges retain wide
latitude to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment,
62
Sacco v. Carothers, 257 Neb. 672, 601 N.W.2d 493 (1999).
63
See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
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prejudice, confusion of the issues, the witness’ safety, or inter-
rogation that is repetitive or only marginally relevant. 64
In making its ruling, the trial court agreed with the pros-
ecution that if the defense was trying to refresh the victim’s
recollection in an attempt to impeach her testimony at trial,
defense counsel could do so through other means, such as
through the testimony of the forensic interviewer. It cited to
State v. Molina, 65 in which we held that the court did not abuse
its discretion in refusing to play for the jury a video recording
of a witness as extrinsic evidence of an inconsistent statement,
because its probative value was outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
We see nothing amiss in the trial court’s ruling, and we find
no merit to Wood’s arguments that seek to avoid the applicable
standards pertaining to the trial court’s discretion by framing
the error as an act of the guardian ad litem who stopped the
victim from watching the video in its entirety, as had been
ordered. The court was free to order that the victim watch the
remainder of the video, if it had continued to believe that was
a reasonable approach. The court did not err in determining it
was not.
Wood alternatively argues trial counsel was ineffective by
apparently abandoning further attempts to refresh the victim’s
recollection after the court’s ruling and by having impeached
the victim’s every inconsistent statement in an allegedly clumsy
manner that Wood argues bolstered the forensic interviewer’s
testimony that child victims of sexual assault do not always
disclose all the details of an assault in a linear fashion. We
find these contentions of ineffective assistance of counsel are
affirmatively refuted by the trial record.
64
See State v. Schreiner, 276 Neb. 393, 745 N.W.2d 742 (2008). See, also,
Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).
65
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
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[32,33] To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. 66 In assessing deficiency in counsel’s performance, a court
presumes that counsel “rendered adequate assistance and made
all significant decisions in the exercise of reasonable profes-
sional judgment.” 67
[34-36] Trial counsel’s decisions that amount to reason-
able trial strategy do not constitute deficient performance. 68
Decisions about whether to engage in cross-examination, and
if so to what extent and in what manner, are strategic in nature
and generally will not support an ineffective assistance claim. 69
We do not use perfect hindsight to criticize unsuccessful trial
strategies 70 or second-guess trial strategy. 71
We caution that it is more the exception than the rule that
defense counsel’s strategy can be reasonably inferred from the
trial record on direct appeal. However, given defense counsel’s
cross-examination of the victim and arguments in closing, the
record here is sufficient to demonstrate it was defense coun-
sel’s strategy to undermine the victim’s credibility by point-
ing out her inconsistent statements in describing the details of
the assault.
This was not unreasonable. The assertion that this strat-
egy may have inherently served to bolster the forensic inter-
viewer’s testimony about the way children disclose sexual
assault—which was adduced to reduce any inference that such
inconsistencies impeached the witness’ credibility in the first
place—does not render defense counsel’s cross-examination
66
State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).
67
Strickland v. Washington, supra note 48, 466 U.S. at 690.
68
McKinney v. State, 281 Ga. 92, 635 S.E.2d 153 (2006).
69
Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003).
70
Id.
71
Calkins v. U.S., 795 F.3d 896 (8th Cir. 2015).
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deficient. Nor was defense counsel constitutionally deficient in
the manner in which the victim’s inconsistent statements were
adduced or by not adducing more inconsistent statements.
We find similarly with respect to Wood’s claim that defense
counsel was deficient in cross-examining the forensic inter-
viewer. The entirety of Wood’s argument with respect to cross-
examination of the forensic interviewer borders on conclusory.
Wood asserts that adducing the victim’s statements that Wood
put his private part in her private part in the bedroom and took
off his clothes “accomplished nothing for Wood” and “bol-
stered” the victim’s testimony. 72 The record reflects that Wood
adduced numerous inconsistent statements and was attempting
to effectuate that strategy during his cross-examination of the
forensic interviewer. The simple assertion that defense counsel
could have performed better is not grounds to conclude defense
counsel was constitutionally deficient.
The record affirmatively refutes Wood’s claims regarding
ineffective assistance of trial counsel in cross-examining the
victim and the forensic interviewer.
4. Ineffective Assistance in Failing to Object
to Inconclusive DNA Testing Results, Offering
Exhibit 20, and Failing to Object to Testimony
Describing Testing Done by Another Forensic
Biologist Who Did Not Testify at Trial
Wood makes several claims of ineffective assistance relating
to the DNA evidence. We will address each in turn.
First, Wood assigns and argues that counsel was ineffective
for failing to object to the biologist’s testimony that male DNA
was present on the external vaginal swabs and that she could
not say with certainty that no male DNA was on the vaginal
or oral swabs. Wood also argues counsel was ineffective in
failing to object to exhibit 18, which shows there was an insuf-
ficient quantity of DNA present on the external vaginal swabs
72
Brief for appellant at 36.
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to obtain any profile to attempt to match with Wood’s profile
or anyone else’s. Wood did not assign as error that defense
counsel was ineffective in failing to object to exhibit 18, and
thus, we will not consider that argument. 73 Exhibit 18 is not
cumulative to the biologist’s testimony stating male DNA was
found. Wood argues the biologist’s testimony was inadmissible
due to its potential to mislead the jurors because the testing of
that male DNA did not lead to conclusive results. For the fore-
going reasons, we find no merit to this argument.
[37,38] An expert does not have to couch his or her opin-
ion in the magic words of “reasonable certainty,” but it must
be sufficiently definite and relevant to provide a basis for the
fact finder’s determination of a material fact. 74 A court should
exclude an expert’s opinion when it gives rise to conflicting
inferences of equal probability, so the choice between them is
a matter of conjecture. 75
Wood relies on State v. Johnson 76 to support his argument
that the biologist’s testimony that male DNA was detected on
the external vaginal swabs was insufficiently definite and rel-
evant. We held in Johnson that the trial court had improperly
admitted, over defense counsel’s objections, irrelevant DNA
testing results, though ultimately the evidentiary error was
harmless. At issue was expert testimony that the defendant’s
DNA profile could be neither included nor excluded from a
mixed DNA sample from one of the victim’s fingernails. The
expert testified the results were inconclusive because there
was only a partial minor profile obtained from the samples;
however, the expert revealed that some of the defendant’s
alleles matched those found in the partial minor profile of
one of the samples. The expert could not determine the sex of
73
See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
74
State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
75
Id.
76
Id. See, also, State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
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the minor contributor. The expert also testified that there may
have been a minor contributor’s DNA on one of the finger-
nails and that she could not draw any conclusions about the
partial minor profile she found on a sample of the rope used
in the crime. 77
[39,40] We held in Johnson:
Presenting this evidence without offering any statistical
relevance of the matching alleles she found, or the prob-
ability that the minor profile would exclude a random per-
son, suggested to the jury that [the defendant] was linked
to the evidence and that the proof would be even stronger
if investigators had found more DNA. 78
We explained that the potential precision of DNA testing is
well known; thus, jurors might wrongly assume, absent evi-
dence of statistical relevance, that any DNA profile match is
extremely unlikely and therefore extremely probative. 79 We
held that because of the significance that jurors will likely
attach to DNA evidence, the value of inconclusive testing
results without statistical relevance is substantially outweighed
by the danger that the evidence will mislead the jurors. 80
Here, the biologist’s testimony that male DNA was present
on the external vaginal swabs taken during the physical exami-
nation of the victim is not analogous to the evidence found in
Johnson to be lacking in probative value. The biologist conclu-
sively testified that male DNA was present. We disagree with
Wood’s supposition that conclusive evidence of the presence of
male DNA was nevertheless insufficiently certain and was mis-
leading because further DNA testing could not obtain a DNA
profile from it.
[41] In an alleged sexual assault described by a female vic-
tim as involving her genital area and a male perpetrator, the
77
State v. Johnson, supra note 74.
78
State v. Johnson, supra note 74, 290 Neb. at 882, 862 N.W.2d at 773.
79
State v. Johnson, supra note 74.
80
See id.
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presence of male DNA near the victim’s genital area is relevant
to whether the assault occurred as the victim described, and
such evidence is not outweighed by a danger of confusing the
issues or misleading the jurors even if the DNA is of insuf-
ficient quantity or quality to obtain a profile. 81 Here, the pres-
ence of male DNA on the external vaginal swabs of the victim’s
external vaginal area made the truth of the victim’s allegations
more probable, even if the DNA did not identify Wood specifi-
cally. Because the testimony concerning the presence of male
DNA on the external vaginal swabs was admissible, defense
counsel was not deficient at trial for failing to object to it.
We also find the biologist’s testimony acknowledging the
hypothetical possibility of the presence of male DNA that she
was unable to detect on other swabs distinguishable from the
testimony in Johnson that there may have been a minor con-
tributor. 82 The biologist simply acknowledged she could not
“say definitively, no, there’s no DNA present. It just wasn’t in
great enough amounts to be detected using this form of test-
ing.” Such testimony did not call for speculation but merely
affirmed that simply because something microscopic cannot be
detected by the current scientific methods available that does
not mean it does not exist.
The record affirmatively refutes Wood’s claim that counsel
was ineffective in failing to object to the biologist’s testimony
that he alleges was insufficiently certain and definite.
Wood also assigns and argues with respect to the DNA
evidence that defense counsel was ineffective by introducing
exhibit 20, the report of the Y-STR DNA testing showing that
no Y-STR DNA profile was found from the male DNA, and by
failing to object to the biologist’s testimony about those test
results, on the grounds of confrontation, because they were not
81
See Rodriguez v. State, 158 N.E.3d 802 (Ind. App. 2020). See, also, In
re Brandon P., 2013 IL App (4th) 111022, 992 N.E.2d 651, 372 Ill. Dec.
809 (2013). But see State v. Gutierrez, 391 Wis. 2d 799, 943 N.W.2d 870
(2020).
82
See State v. Johnson, supra note 74.
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conducted by her. We find the record affirmatively refutes this
claim of ineffective assistance of counsel.
In light of the admissibility of the presence of male DNA on
the external vaginal swabs, it is reasonably apparent from the
record that defense counsel’s strategy in introducing exhibit
20 and in not objecting to the biologist’s testimony pertaining
to exhibit 20 was to minimize the prejudice of the biologist’s
prior testimony that male DNA was found. By introducing
exhibit 20 and not objecting to the biologist’s testimony about
the testing reflected therein, defense counsel demonstrated
that even the most sophisticated testing was unable to detect
a profile from that male DNA, which, notably, was not from
semen. This would have been consistent with minimal amounts
of DNA and allowed defense counsel to argue the jury should
infer that the male DNA found was the result of indirect trans-
fer during the victim’s prolonged presence in Wood’s home. In
light of the presumption that defense counsel made all signifi-
cant decisions in the exercise of reasonable professional judg-
ment, we cannot find that the defense counsel’s decision was
unreasonable.
5. Failure to Investigate Case Fully
[42,43] Wood’s argument that his trial counsel was ineffec-
tive in “Failing to Investigate the Case Fully” is insufficiently
specific. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error to be considered by an appellate court. 83 As stated, when
the claim is raised in a direct appeal, the appellant is not
required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims consti-
tutes deficient performance by trial counsel. 84 Assignments of
error on direct appeal regarding ineffective assistance of trial
counsel must specifically allege deficient performance, and
83
State v. Figures, supra note 2.
84
Id.
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an appellate court will not scour the remainder of the brief in
search of such specificity. 85
We held, in State v. Mrza, 86 that an assignment of error that
trial counsel was ineffective by “‘fail[ing] to adequately inves-
tigate [the defendant’s] defenses’” lacked the specificity we
demand on direct appeal. Wood’s assignment of error is simi-
lar. It lacks any specificity as to what component of investiga-
tion his counsel was allegedly deficient in failing to conduct.
Therefore, we do not address it.
6. Failure to Request
Lesser-Included Instruction
[44,45] Lastly, we consider Wood’s argument that his trial
counsel was ineffective by failing to request an instruction on
the lesser-included offense of attempted first degree sexual
assault of a child. A court must instruct on a lesser-included
offense if (1) the elements of the lesser offense for which an
instruction is requested are such that one cannot commit the
greater offense without simultaneously committing the lesser
offense and (2) the evidence produces a rational basis for
acquitting the defendant of the greater offense and convicting
the defendant of the lesser offense. 87 The Nebraska Supreme
Court has previously held that attempted first degree sexual
assault of a child is a lesser-included offense of first degree
sexual assault of a child. 88
The defense’s expert nurse practitioner testified there were
no injuries indicative of sexual abuse; therefore, according
to Wood, there was a rational basis for acquitting him of
the greater offense and convicting him of the lesser offense.
Under § 28-319.01, as relevant here, a person commits sexual
assault of a child in the first degree when he or she subjects
85
State v. Mrza, supra note 73.
86
See id. at 935, 926 N.W.2d at 86.
87
State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009).
88
See State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
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another person under 12 years of age to sexual penetration
and the actor is at least 19 years of age or older. Under Neb.
Rev. Stat. § 28-201 (Reissue 2016), a person shall be guilty
of an attempt to commit a crime if that person intentionally
engages in conduct which would constitute the crime if the
attendant circumstances were as he or she believes them to be
or that person intentionally engages in conduct which, under
the circumstances as he or she believes them to be, constitutes
a substantial step in a course of conduct intended to culminate
in his or her commission of the crime. When causing a partic-
ular result is an element of the crime, a person shall be guilty
of an attempt to commit the crime if, acting with the state of
mind required to establish liability with respect to the attend
ant circumstances specified in the definition of the crime, he
or she intentionally engages in conduct which is a substantial
step in a course of conduct intended or known to cause such
a result. 89 Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative of the
defendant’s criminal intent. 90
There was conflicting evidence whether there were sequelae
of a sexual assault by penetration found during the physical
examination of the victim. The touch DNA was on the vic-
tim’s underwear, and the male DNA detected was outside of
the vaginal opening. But it is apparent from the trial record
that counsel’s strategy was to argue that nothing inappropriate
occurred during the sleepover. It is a valid strategy to obtain
a full acquittal through an “‘all or nothing’ defense.” 91 We
will not second-guess that strategy. The record affirmatively
rebuts Wood’s claim that defense counsel was deficient by
failing to request an instruction on the lesser-included offense
of attempt.
89
§ 28-201.
90
Id.
91
Williams v. State, 353 Ga. App. 821, 830, 840 S.E.2d 32, 39 (2020). See
Druery v. Thaler, 647 F.3d 535 (5th Cir. 2011).
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VI. CONCLUSION
For the foregoing reasons, we find no merit to Wood’s
claims of trial error. We likewise find no merit to Wood’s
claims of ineffective assistance of counsel, with the exception
that we do not reach the merits of his argument that counsel
was ineffective in failing to adequately support his motion for
a DNA expert.
Affirmed. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283973/ | ORDER
PER CURIAM.
Michael Floyd appeals from the motion court’s judgment denying, without an evi-dentiary hearing, his amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 29.15.1 We have reviewed the briefs of the parties and the record on appeal and conclude the judgment of the motion court was not clearly erroneous. Rule 29.15(k). An ex*847tended 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.2010, unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283975/ | *848
ORDER
PER CURIAM.
Lavaris Rogers appeals from the motion court’s judgment denying his motion for post-conviction relief under Mo. R. Crim. P. 29.15 after an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal, and we conclude the motion court did not clearly err in denying Movant’s motion. An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The decision is affirmed. Mo. R. Civ. P. 84.16(b) (2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125594/ | Judgment reversed and new trial ordered before another referee, costs to abide event. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283977/ | ORDER
PER CURIAM
Michelle White (Movant) appeals the denial of her Rule 24.035 motion for postcon-viction relief without an evidentiary hearing. Movant claims the motion court clearly erred in denying her post-conviction motion because plea counsel was ineffective for failing to: (1) advise her regarding a potential defense to first-degree robbery; (2) challenge the factual basis of her plea; and (3) properly advise her regarding sentencing.
We have reviewed the briefs of the parties and the record on appeal and find that the motion court did not clearly err in denying post-conviction relief. 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/5284246/ | ORDER
Per curiam:
Christopher 0. Frasure appeals from the denial of his motion for post-conviction relief on the ground of abandonment. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5286390/ | OPINION
HERVEY, J.,
delivered the opinion of the unanimous Court.
The issue in this case is whether there is sufficient evidence to affirm the jury’s deadly-weapon finding elevating robbery to aggravated robbery. Because we conclude that there is and that the court of appeals erred to hold otherwise, we will reverse its judgment and remand this cause for the lower court to address Appellant’s remaining points of error.
BACKGROUND
Procedural History
Kevin Kimp,1 Appellant, was charged by indictment with aggravated robbery after he robbed two cashiers working at a Race-Trac convenience store using a butter knife. The indictment alleged that Kimp intentionally or knowingly threatened Amelia Martinez2 (Amelia) or placed her in fear of imminent bodily injury or death while in the course of committing robbery. It further alleged that Kimp used or exhibited a deadly weapon, to-wit: a knife that in the manner of its use or intended use was capable of causing death or serious bodily injury. Both aggravated robbery and the lesser-included offense of robbery were submitted to the jury, and the jury found Kimp guilty of aggravated robbery. In accordance with the jury’s verdict, the judge entered a deadly-weapon finding. Kimp was sentenced to 18 years’ confinement and fined $10,000. Kimp appealed his conviction, and the court of appeals reversed, holding that there was insufficient evidence to sustain the deadly-weapon finding. We subsequently granted the petition for discretionary review filed by the State Prosecuting Attorney asking whether,
the evidence [is] sufficient to support a jury’s finding that a butter knife is a deadly weapon when it can rationally be determined that it was capable of causing death or serious bodily injury because it was brandished aggressively during a convenience store robbery?
Facts
The night of the robbery, two employees were working at the RaceTrac: Amelia who was the cashier and Aaron Martinez (Aaron), the night manager, who was also working as a cashier. Between about 11:00 p.m. and midnight, Kimp entered the store and walked towards the back to get a fountain drink at the soda machine. From there, he looked around the store, killing time before approaching Aaron’s cash register, presumably to pay for his drink. But Kimp just stared at Aaron and then walked behind the counter towards Amelia, Aaron, and the cash registers. As he approached Amelia, he pulled a knife out of his pants and waved it at her and Aaron in a threatening manner and told them to “[b]aek the fuck up.” They both moved to the corner of the back-counter area, as far away from Kimp as possible. Aaron only *322saw a silver object protruding from Kimp’s hand, but Amelia saw the knife. Kimp swung the knife at her as she moved to let him take the money from the register. Amelia testified that she did not know how long the blade was, but the tip of it was rounded and looked like a butter knife. She also testified that she felt threatened and was scared even though Kimp had a butter knife “[bjecause, like, even though it is a butter knife, that it still can do some damage, you know. I never got robbed like that in my life.” After Kimp took the cash from Amelia’s register, he went to the other register. Security camera footage showed that, as Kimp approached the register, he briefly confronted Amelia and Aaron, but during that portion of the video, Kimp’s back is to the camera and Amelia and Aaron are just outside of the camera’s view. Aaron explained what happened during that confrontation: Kimp approached them, “kind of stuck his chest out,” and told them to get in the corner and keep their faces down. When Aaron did not comply quickly enough, Kimp advanced on him even faster with the knife. Aaron felt “[a] little threatened,” although he was not too scared to act because he knew he had to take charge of the situation. Amelia said that when Kimp approached them, he made aggressive movements towards them to “frighten us.” On his way out of the store, Kimp told Amelia and Aaron to “[hjave a nice fucking day.” Once Kimp was gone, Aaron immediately closed and locked the register drawers, called 9-1-1, removed the remaining customers from the store, and locked the doors until police arrived.
STANDARD OF REVIEW
When reviewing the record for legal sufficiency, we consider the combined and cumulative force of all admitted evidence and reasonable inferences therefrom in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
DEADLY-WEAPON FINDINGS
The only element of aggravated robbery at issue here is whether Kimp “use[d] or exhibited] a deadly weapon.”3 Tex, Pen. Code § 29.03(a)(2). To meet its burden, the
State was required to prove that the knife Kimp had was a deadly weapon as defined by statute and that, if it was, he also used or exhibited the knife while committing robbery. Id. A deadly weapon is defined as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury” or “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code § 1.07(a)(17); McCain v. State, 22 S.W.3d 497 (Tex, Crim. App. 2000). “Serious bodily injury” is defined as “bodily injury that creates a substantial *323risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Penal Code § 1.07(a)(46). Because not all knives are manifestly designed, made, or adapted for the purpose of inflicting serious bodily injury or death,4 the evidence is sufficient to support the finding in this case only if the jury could have rationally found that Kimp used the knife in such a way, or intended to use the knife in such a way, that it was capable of causing serious bodily injury or death. Id. § 1.07(a)(17).
In determining whether a weapon is deadly in its manner of use or intended manner of use, the defendant need not have actually inflicted harm on the victim. See Brown, 716 S.W.2d at 946. Instead, we consider words and other threatening actions by the defendant, including the defendant’s proximity to the victim; the weapon’s ability to inflict serious bodily injury or death, including the size, shape, and sharpness of the weapon; and the manner in which the defendant used the weapon. See Tisdale v. State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984) (op. on reh’g) (physical proximity); Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983) (size, shape, and sharpness of the weapon; ability of the weapon to inflict death or serious injury; and the manner in which the defendant used the weapon); Williams v. State, 575 S.W.2d 30, 32 (Tex. Crim. App. 1979) (threats or words). These, however, are just factors used to guide a court’s sufficiency analysis; they are not inexorable commands.
COURT OF APPEALS
The court of appeals held that the evidence was insufficient to establish that Kimp used or intended to use the butter knife in a manner capable of causing death or serious bodily injury. Johnson v. State, No. 02-15-00296-CR, 2016 WL 3033495, at *3 (Tex. App.-Fort Worth Sept. 14, 2016). According to it, the evidence was insufficient because Amelia did not testify regarding the size and shape of the knife except that the tip was “rounded,” “[l]ike kitchen silverware,” and Aaron never saw a knife, although he presumed that Kimp had a knife “[bjecause I knew it had to be a weapon if it was a robbery, so that was the weapon I assumed it would be.” Id. The court also relied on its interpretation that the security video did not show Kimp lunging at Amelia as she had testified and that, although Kimp > “aggressively” demanded that Amelia and Aaron “[b]ack the fuck up” as he walked around the counter holding the knife, “he did not verbally threaten them, brandish the knife, or touch them with it.” Id. Finally, the court found it relevant that Amelia and Aaron resumed their work at the convenience store after the robbery, despite Amelia’s testimony that she was scared of Kimp. Id, Because the court held that the evidence was insufficient to support the deadly-weapon finding, it struck the aggravated element, it reformed the judgment of conviction to reflect that Kimp was convicted of robbery, and it remanded the case to the trial court for a new punishment hearing. Id.
ARGUMENTS
The arguments of the parties center on the lower court’s decision. Kimp argues that we should affirm 'the judgment of the court of appeals because it reached the correct result. The State responds that the court of appeals’s sufficiency analysis was fatally flawed and that we should reverse its judgment and remand for the court to address Kimp’s remaining point of error.
*324DISCUSSION
After assaying the record evidence in the light most favorable to Kimp’s conviction, we disagree with the lower court’s interpretation of the record and conclude that there is sufficient evidence to sustain the deadly-weapon finding. The video shows that, as Kimp walked behind the counter, he removed a knife from his pants. When Kimp was no more than a foot or two from Amelia, he brandished the knife,5 waving it at Amelia and Aaron threatening them to get back. And, although Amelia testified that she could not describe the length, size, or shape of the blade, the jury could have inferred some information about the knife from the video even though the knife was not entered into evidence. The video shows that Kimp was holding the knife by its handle and that just the blade of the knife appears to be a couple of inches long. Based on this, the jury could have reasonably inferred that the knife was large enough and long enough such that it was capable of causing serious bodily injury or death.6 A jury could have also reasonably inferred from Kimp’s threats, his proximity to Amelia, and the brandishing of the knife, that the manner in which he used the knife, or intended to use the knife, rendered it capable of causing serious bodily injury or death.7
The only remaining question is whether Kimp “used or exhibited” the knife during the criminal transaction to facilitate commission of the crime. McCain, 22 S.W.3d at 503. We conclude that he did. The knife can be seen in the video as Kimp pulls it from his pants as he prepares to rob the two cashiers. He then used the knife to threaten Amelia and Aaron while he was stealing money from the cash registers. From this, a factfinder could have rationally concluded that the knife was exhibited and used in commission of the offense. Id.; Tisdale, 686 S.W.2d at 115 (op. on reh’g).
CONCLUSION
Because we conclude that there is sufficient evidence to sustain the jury’s deadly-weapon finding in this case, we reverse the judgment of the court of appeals and remand this cause for the court of appeals to address Kimp’s remaining points of error.
. Because the court of appeals refers to Appellant as Kevin Kimp, we will do so as well.
. Although only two people were working at the RaceTrac that night, the State charged Kimp only with threatening Amelia while in the course of committing robbery.
. The aggravated-robbery statute states that,
(a)A person commits an offense if he commits robbery as defined in Section 29.02, and he;
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is;
(A) 65 years of age or older; or
(B) a disabled person.
(b) An offense under this section is a felony of the first degree.
(c) In this section, “disabled person” means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.
Tex. Penal Code § 29.03.
. Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986).
. We cannot agree with the court of appeals that Kimp did not verbally threaten Amelia or Aaron or that he did not brandish the knife. When a person yells at someone to "back the fuck up,” while waiving a knife at them, a reasonable person would consider that a threat. The assailant need not use magic words such as, "I’m going to stab you with this knife if you do not do what I say.” The threat is implied. Moreover, in a deadly-weapon sufficiency analysis, we do not consider only whether the assailant verbally threatened the victims; we consider both verbal threats and any threatening actions of the assailant. See Tisdale, 686 S.W.2d at 115.
. In the past, our deadly-weapon jurisprudence focused on the probability that a particular weapon could cause serious injury or death. Thomas v. State, 821 S.W.2d 616, 618 (Tex. Crim. App. 1991). The definition subsequently adopted by the legislature, however, changed the emphasis from probabilities to whether a weapon is capable of causing serious bodily injury or death. Id.; Tex Penal Code § 1.07(a)(17)(B).
.The court of appeals concluded that Amelia and Aaron were not scared by Kimp or his knife because they went back to work after the robbery. The record does not support the court’s conclusion. Amelia and Aaron testified that, after the robbery, the cash drawers were closed and locked, the customers were removed from the store, and the store doors were locked until police arrived. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283981/ | ORDER
PER CURIAM:
Clint Jacobs appeals from the denial of his 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. A formal, published opinion would serve no jurisprudential purpose; 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/5283983/ | ORDER
Per Curiam
Daron Peal appeals the denial of his Rule 24.035 motion for post-conviction relief after he pled guilty to second-degree (felony) murder and armed criminal action. After a thorough review of the record and the briefs, we find no error and affirm the judgment of the motion court. 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/5283984/ | GARY W. LYNCH, J.
Opinion author
The State of Missouri (“the State”) appeals the trial court’s judgment denying its claim for injunctive relief and a civil penalty against Frankie L. Schwartz for operating an auto salvage facility without a storm water permit from the Missouri Department of Natural Resources (“DNR”).1 The State contends the trial court misapplied section 644.051.2 and failed to apply 10 CSR 20-6.200, as promulgated by the Missouri Clean Water Commission (“Commission”).2 We agree, reverse the judgment, and remand the case to the trial court with directions to enter a judgment in favor of the State.
Factual and Procedural Background
Schwartz operates an auto salvage facility, Schwartz Auto Salvage, in Salem, Dent County, Missouri. He has never obtained a storm water permit from DNR to operate the facility.
In 2009, DNR received a complaint and inspected the facility. Thereafter, the inspector sent a letter to Schwartz allowing him thirty days to file an application for a storm water permit. Schwartz did not respond. DNR then issued a notice of violation to Schwartz for operating the facility without a storm water permit but allowed him another ten days to submit a permit application and the $150 permit fee. Schwartz did not respond.
The State filed an action for injunctive relief and civil penalties in the Circuit Court of Dent County, asserting, among other alleged violations, that Schwartz violated the Commission’s regulation at 10 CSR 20-6.200 by operating the auto salvage yard without a storm water permit.
Following a bench trial, the trial court issued its judgment denying the State’s request for injúnctive relief and civil penalty. The trial court found that Schwartz “operates an auto salvage business ... and has neither applied for nor received a general stormwater [sic] permit for that facility.” The trial court then made the following conclusions of law:
3. That Section 644.051.2, RSMo states: It shall be unlawful for any person to operate, use or maintain any water contaminant or point source in this state that is subject to standards, rules or regulations promulgated pursuant to the provisions of sections 644.006 to 644.141 unless such person holds an operating permit from the commission, subject to such exceptions as the commission may prescribe by rule or regulation.
4. That Section 644.016(16) and (25) contain the following definitions: “Point source”, any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal *887feeding operation; or vessel or other floating craft, from which pollutants are or may be discharged. Point source does not include agricultural storm water discharges and return flows from irrigated agriculture. “Water contaminant source”, the point or points of discharge from a single tract of property on which is located any installation, operation or condition which includes any point source defined in.sections 644.006 to 644.141 and nonpoint source pursuant to any federal water pollution control act, which causes or permits a water contaminant therefrom to enter waters of the state either directly or indirectly.
5. Since the statute contains a specific definition of these terms, the Court does not have to resort to' consulting the Code of Regulations to determine what these terms mean, or whether the facility is subject to standards, rules or regulations promulgated pursuant to the provisions of sections 644.006 to 644.141, RSMo.
6. That no evidence was adduced during the course of the two hearings[3] in this matter that indicated that there was any “point source” or “water contaminant source”, as defined in the statute, located on the premises of [Schwartz’s] facility.
7. The Department of Natural Resources is authorized, pursuant to Section 644.076.1, RSMo, to seek injunctive relief if the Missouri Clean Water Act “... is being, was, or is in imminent danger of being violated ... ”. That no evidence was adduced during the course of-the two hearings in this matter that indicated that there was an existing violation, a past violation, or an imminent danger of violation, of the Act.
The State timely appeals, claiming in its sole point relied on that
[t]he trial court erred in denying the State’s claim for injunctive relief and in entering its judgment in favor of [Schwartz], because the trial court erroneously applied and declared the law in concluding that [Schwartz] is not required to have a storm water permit for his auto salvage facility, in that Regulation 10 CSR 20-6.200, which is within the permitting authority delegated to the State of Missouri by the EPA and is within the authority of the Missouri Clean Water Commission to promulgate regulations, requires that owners of auto salvage facilities obtain a storm water permit, and [Schwartz] should be enjoined from violating the regulation and required to pay a penalty for failing to comply.[4]
Standard of Review
As this was a court-tried matter, “the decision of the trial court must be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.” Marre v. Reed, 775 S.W.2d 951, 952 (Mo. banc 1989). This Court gives the trial court deference regarding factual findings but *888reviews legal determinations de novo. See Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012).
Discussion
The trial court relied upon and applied section 644.051.2 to conclude that Schwartz was not required to apply for and obtain a storm water permit from DNR. That statute, however, by its express terms, as noted in paragraph 3 of the trial court’s judgment, applies to actions taken without an “operating permit.” 5 It expresses no applicability as to whether Schwartz was required to obtain a “storm water permit.”6 The trial court’s reliance upon this statute, therefore, to determine that Schwartz was not required by law to obtain a “storm water permit” was a misapplication of section 644.051 and, accordingly, a misapplication of law.7
Section 644.026.1(8) confers upon the Commission the power to
[ajdopt,- amend, promulgate, or repeal after due notice and hearing rules and regulations to enforce, implement, and effectuate the powers and duties of sections 644.006 to 644.141 and any required of this state by any federal water pollution control act, and as the commission may deem necessary to prevent, control and abate existing or potential pollution....
(Emphasis added). In accordance with that authority, the Commission promulgated 10 CSR 20-6.200 for the purpose of setting “forth the requirements and process of application for permits for storm water discharges and the terms and conditions for the permits.” 10 CSR 20-6.200 (Purpose). Subsection (2) of that regulation defines storm water discharge associated with industrial activity, and 10 CSR 20-6.200(2)(B)3C expressly includes “[f|a-cilities involved in the recycling of materials including metal scrap yards, battery re-claimers, salvage yards, and automobile junk yards” within that subsection as a discharger of storm water associated with industrial activity. 10 CSR 20-6.200(2)(C)1 requires “dischargers of storm water associated with industrial activity” to “apply for an individual permit or seek coverage under a promulgated storm water general permit.” As an individual operating an auto salvage business, as found by the trial court, Schwartz fell within the application of 10 CSR 20-6.200(2) and was required by its terms to apply for a storm water permit. The trial court’s failure to apply 10 CSR 20-6.200(2) was a misapplication of law.
Paragraph 7 of the trial court’s judgment accurately recites the portion of section 644.076 related to alleged violations of the Missouri Clean Water Act. The trial court’s reliance on that part of the statute to deny the State relief, however, was mis*889placed and a misapplication of law. As relevant here and to the application of 10 CSR 20-6.200(2) to Schwartz, section 644.076'1 provides, in part:
In the event the commission or the director determines that any provision of sections 644.006 to 644.141 or standard, rules, limitations or regulations promulgated pursuant thereto, or permits issued by, or any final abatement order, other order, or determination made by the commission or the director, or any filing requirement pursuant to sections 644.006 to 644.141 or any other provision which this state is required to enforce pursuant to any federal water pollution control act, is being, was, or is in imminent danger of being violated, the commission or director may cause to have instituted a civil action in any court of competent jurisdiction for the injunctive relief to prevent any such violation or further violation or for the assessment of a penalty not to exceed ten thousand dollars per day for each day, or part thereof, the violation occurred and continues to occur, or both, as the court deems proper....
(Emphasis added). As previously noted, the Commission promulgated 10 CSR 20-6.200 pursuant to section 644.026. The enforcement of this regulation by the State by injunction or civil penalty, therefore, falls within the parameters of section 644.076.1. The State’s point is granted.
Decision
The trial court’s judgment is reversed, and the case is remanded to the trial court with directions to enter judgment in favor of the State and against Schwartz, with an appropriate remedy or remedies as provided in section 644.076, consistent with this opinion.
MARY W. SHEFFIELD, P.J. — concurs
NANCY STEFFEN RAHMEYER, J.— concurs
. The State brought this action at the relation of the Attorney General, DNR, and the Missouri Clean Water Commission.
. All statutory references are to RSMo Cum. Supp. 2013.
The Commission, for the purposes of the Missouri Clean Water Law, sections 644.006 to 644.141, is an agency whose domicile is “deemed to be that of the department of natural resources.” Section 644.021.1.
. The State filed an Application for Preliminary Injunction that was heard and denied following a hearing seven months before the trial on the State’s petition. At the commencement of the trial on the State’s petition, the parties agreed that the evidence produced at the hearing on the Application for Preliminary Injunction could be considered by the trial court as evidence in the trial.
. Schwartz did not file a respondent’s brief. "A respondent is not required to file a brief, but without one, we must adjudicate the claim of error without benefit of whatever argument the respondent might have presented.” N.L.P. v. C.G.W., 415 S.W.3d 800, 802 n. 2 (Mo.App. 2013) (internal quotation marks and citations omitted).
. Operating permits are regulated by the Commission under 10 CSR 20-6.010.
. Section 644.051.2 provides
It shall be unlawful for any person to operate, use or maintain any water contaminant or point source in this state that is subject to standards, rules or regulations promulgated pursuant to the provisions of sections 644.006 to 644.141 unless such person holds an operating permit from the commission, subject to such exceptions as the commission may prescribe by rule or regulation. However, no operating permit shall be required of any person for any' emission into publicly owned treatment facilities or into • publicly owned sewer systems tributary to publicly owned treatment works.
(Emphasis added).
.In fairness to the trial court, while the State's petition and oral argument in the trial court were minimally sufficient to present the relevant legal issues to the trial court and preserve them for appellate review, neither was a model of clarity. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283985/ | OPINION
Opinion by
Justice Evans
B.C. appeals from the trial court’s take-nothing summary judgment on her common-law assault claim against her former employer Steak N Shake Operations, Inc. We conclude B.C.’s assault claim against Steak N Shake was barred as a matter of law by the Texas Commission on Human Rights Act.1 Accordingly, we affirm the trial court’s judgment.
BACKGROUND
B.C., a Steak N Shake associate, filed this lawsuit alleging she was sexually assaulted, battered, and molested by her supervisor/manager in the employee restroom while working a late shift in October 2011. Specifically B.C. alleged the supervisor exposed his sexual organ to her, used force, and committed “touching that was unwanted and unprovoked.” Recording to B.C., she reported the assault and other policy violations committed by the supervisor to Steak N Shake, but the company failed to properly investigate the matter.
In her live pleading, B.C. asserted various causes of action against Steak N Shake including assault, sexual assault, battery, negligence, gross negligence, and intentional infliction of emótional distress.2 With respect to her cause of action for *929“assault, sexual assault, and battery,”3 B.C. contends Steak N Shake is diréctly liable for the supervisor’s conduct because he “was acting at such time as the vice principal of the [restaurant].” She also asserted Steak N Shake was directly liable for the assault for failing to provide a safe workplace for its employees, particularly for failing to keep B.C. safe from harmful sexual assault.
Steak N Shake moved for summary judgment asserting, among other grounds, that B.C.’s common law negligence and intentional tort claims against it were barred by TCHRA. The trial court granted Steak N Shake’s motion without specifying the grounds. In this appeal, B.C. challenges the summary judgment on her assault claim only and does not appeal the summary judgment on her other causes of action. Accordingly, claims other than assault are not before us, and we express no opinion about them.
Analysis
We review a trial court’s decision to grant or deny a motion for summary judgment de novo. City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 645 (Tex.2013). When the trial court’s order granting summary judgment does not specify the basis for the ruling, we will affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003). We review the summary judgment record in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the movant. City of Lorena, 409 S.W.3d at 645.
In her second issue, B.C. contends that her assault claim against Steak N Shake is not barred or preempted by TCHRA because that statute “does not apply to claims for sexual assault.” She argues that although TCHRA applies to sexual harassment claims against an employer, the Legislature did not intend for it to apply to claims of common-law sexual assault. Underlying B.C.’s argument is her contention that while an assault can arise out of an isolated incident, sexual harassment necessarily requires a pattern of conduct. We disagree.
In Waffle House, Inc. v. Williams, the Texas Supreme Court held that “[w]here the gravamen of a plaintiffs case is TCHRA-covered harassment, the Act forecloses common-law theories predicated on the same underlying sexual-harassment facts.” 313 S.W.3d at 813. As noted in Waffle House, “employer liability for unwanted sexual touching by a coworker (simple assault under Texas law given its offensive or provocative nature) is limited to a tailored TCHRA scheme that specifically covers employer liability for sexual harassment.” See id. at 803.
Here, it is undisputed that B.C.’s assault claim against Steak N Shake is premised on the unwanted offensive touching allegedly committed by her supervisor/manager. B.C. has not cited any authority, and we have found none, to support her position that a sexual harassment claim under TCHRA must be based on more than a single or isolated sexual assault as alleged *930by B.C. At least one court has concluded that Waffle House precluded a common-law assault and battery claim based on a single sexual assault. See Mosley v. Wal-Mart Stores, LLC, No. 3:10-CV-2305-L, 2011 WL 2893086 at *3 (N.D.Tex. July 20, 2011) (mem.op.) (unwelcome and offensive touching described in the petition was an assault and also sexual harassment even though the offensive touching only occurred once). As in Mosley, the offensive conduct attributed to B.C.’s supervisor in her petition may have constituted an assault, but it was also actionable as sexual harassment under TCHRA. Because the gravamen of B.C.’s complaint against Steak N Shake is sexual harassment/sexual assault committed by her supervisor, a wrong TCHRA was specifically designed to remedy, her common law assault claim is precluded by the Act. To allow B.C. to bring an assault claim based on the same conduct that is actionable under TCHRA as' sexual harassment would permit her to circumvent the comprehensive anti-harassment regime crafted by the Legislature, rendering TCHRA’s remedy limitations meaningless. See Waffle House, 313 S.W.3d at 807-08. Because B.C.’s exclusive remedy for workplace sexual harassment is a claim pursuant to the substantive and procedural requirements of TCHRA, the trial court did not err in granting summary judgment on B.C.’s assault claim. Our resolution of this issue makes it unnecessary to address B.C.’s other issues.
We affirm the trial court’s judgment.
. Tex. Lab.Code Ann. § 21.001-.556 (West 2006 & West Supp.2014).
. B.C. also sued the supervisor/manager, but non-suited her claims against him after the trial court granted Steak N Shake’s summary judgment motion.
. In her petition, B.C. does not differentiate between her assault, sexual assault, and battery causes of action and discusses them together. We likewise consider these causes of action together and will refer to them collectively as her assault claim. In the civil context, Texas caselaw uses the terms "assault,” "battery,” and "assault and battery” interchangeably. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n. 4 (Tex.2010). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283986/ | OPINION
Keasler, J.,
delivered the opinion of the Court
in which Meyers, Hervey, Richardson, and Yeary, JJ., joined.
In two capital-murder cases, Tyrone Allen sought a pretrial hearing requesting the trial judge determine whether he was intellectually disabled and therefore exempt from the death penalty if convicted. Over the State’s objection, the judge granted the motions for a pretrial hearing. The court of appeals granted the State .mandamus relief, finding that the judge acted outside his authority. The uncertainty surrounding intellectual-disability determinations prevents labeling the judge’s actions a violation of a ministerial duty. We conditionally grant Allen’s petitions for writ of mandamus -to the court of appeals.
*49Trial Court
Allen faces two capital-murder indictments and the possibility of death sentences in each. Allen filed a motion requesting a pretrial determination by the trial judge on his intellectual disability alleging facts supporting his claim that he suffered from intellectual disability and was therefore exempt from execution. After holding a hearing on Allen’s request, the judge granted Allen’s motion. At this juncture, the judge has not yet held the hearing or made an intellectual-disability determination in either case. The State sought mandamus relief in this Court, but the State’s motion for leave to file a petition for writ of mandamus was denied.1 The State subsequently sought and obtained mandamus relief in the Dallas Court of Appeals.2 This Court granted Allen’s motion for leave to file a petition for writ of mandamus challenging the court of appeals’ judgment.
Court of Appeals
Although noting the absence of established procedures for addressing intellectual-disability issues in capital cases, the court of appeals found the law sufficiently clear to -hold that the judge acted without authority to grant Allen’s request.3 The court’s analysis began by looking to this Court’s previous cases stating that a finding of intellectual disability is an issue of fact. The court of appeals then looked to the following statutes found in the Texas Code of Criminal Procedure: (1) Article 37.071, § 2, stating that once a jury finds a capital defendant guilty, the court must conduct a sentencing proceeding “before the trial jury”; (2) Articles 1.13(a) and 1.14(a), providing that a defendant facing the death penalty may not waive a jury trial on punishment; and (3) Article 36.13, mandating that “[ujnless otherwise provided in this Code, the jury is the exclusive judge of the facts.”4 The court concluded that, “Because intellectual disability is an issue of fact that is relevant to the determination of punishment, under Texas criminal procedure as it presently stands, the factual determination whether the defendant is intellectually disabled must be made by the jury that determines the guilt or innocence of the defendant.”5
Mandamus Standard
Mandamus relief is appropriate only when a relator establishes (1) that he has no adequate remedy at law to redress his alleged harm, and (2) that what he seeks to compel is a ministerial act, not a discretionary or judicial decision.6 A relator satisfies the ministerial-act component when he can show that he has a clear right to the relief sought.7 “A clear right to relief is shown when the facts and circumstances dictate but one rational decision ‘under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.’ ”8 A ministerial act, by its nature, does not involve the use of judicial diseret*50ion;9 it must be positively commanded and so plainly prescribed under the law as to be free from doubt.10 We have said that while a trial court has a ministerial duty to rule upon a properly filed and timely presented motion, it generally has no ministerial duty to rule a certain way on that motion.11 It is proper to order a court to rule a particular way only when the law invoked is “definite, unambiguous, and unquestionably applies to the indisputable facts of the case.”12
We review the court of appeals’ judgment on a petition for writ of mandamus under a de novo review of the two-' pronged test.13 Because we find the mandamus standard’s second prong dispositive in resolving the present case, we do not answer whether the State has an adequate remedy at law challenging the judge’s ruling.
No Clear Right to Relief
The State’s assertion to the judge that “there is no express statute governing how intellectual disability is litigated” is undeniably true. However, we disagree with the court of appeals’ conclusion that, when read together, several Code of Criminal Procedure articles unquestionably establish that Allen’s pretrial motion compelled but one rational decision under unequivocal and well-settled legal principles: a denial.
We find little help in Article 37.071, § 2, which provides, in part, that upon finding a defendant guilty of capital murder in a case in which the State is seeking the death penalty, a separate punishment proceeding is required “before the trial jury” to determine whether the defendant shall be sentenced to death or life imprisonment.14 The statute currently provides no statutory, procedural scheme defining how intellectual-disability issues should be handled. The court of appeals seizes on the “before the trial jury” phrase, but to consider that persuasive invites circular reasoning. Section 2 applies only when the “State seeks the death penalty.” And if a trial judge finds a defendant exempt from the death penalty pretrial, presumably only the possibility of lifetime confinement remains.15 Can we then say with any degree of confidence that the' State is still seeking the death penalty at the moment a jury finds a defendant guilty of capital murder? If not, § 2 does not apply, and it would be illogical to use its language to support a conclusion that the judge in this case acted contrary to established law.
We also fail to find guidance on the present issue in Articles 1.13(a), 1.14(a), and 36.13. In the cases’ current posture, *51we find Articles 1.13(a) and 1.14(a), which limit a defendant’s ability to waive a jury trial when the State seeks the death penalty, to be irrelevant. By considering these statutes supportive of its position, the court of appeals equates Allen’s pretrial motion with a jury-trial waiver. In our minds, the proverbial dots remain unconnected, and therefore we do not share the court of appeals’ confidence in the statutes’ applicability to Allen’s motion.
We further find no relevant mandate in Article 36.13’s command that “[ujnless otherwise provided in this Code, the jury is the exclusive judge of the facts, but is bound to receive the law from the court and be governed thereby.” The statute has been frequently cited to support the common notion that a jury decides facts, and the court applies the law to the facts.16 It also supports the unremarkable legal principles that a jury is required to determine the elements of the offense in a jury trial and is the sole judge of the evidence’s weight.17 Whether the scope of this broadly worded statute encompasses Allen’s request for a pretrial intellectual-disability determination is less clear. While an intellectual-disability determination is necessarily fact-intensive, our precedents addressing these determinations never invoked Article 36.13 as informative on the issue of the proper factfinder of intellectual disability.
Case Law
Our case law provides only marginally more guidance than that found in existing statutes. In 2002, the United States Supreme Court held that the Eighth Amendment’s prohibition against cruel and unusual punishment exempts intellectually disabled18 criminals from the death penalty.19 However, the Supreme Court left to the states the development of the substantive law and procedural mechanisms giving effect to its decision.20 In Ex parte Briseno, this Court created a “stop-gap” definition of intellectual disability during a legislative interregnum to provide temporary judicial guidelines in addressing Atkins claims.21 With a great deal of trepidation, we adopted a definition of intellectual disability and guidelines that, without subsequent legislative action, remain the law today despite the Court’s intention that they be temporary.22 Although Briseno’s Atkins claim was presented in a post-conviction proceeding, Briseno recognized that Atkins itself does not require intellectual-disability determinations to be made by a jury.23 Although a jury finding on *52intellectual disability is not constitutionally required, we have endorsed, but have not mandated, the submission of a “special issue” on intellectual disability to the jury and held that submission to the jury sufficiently protects a defendant’s Eight Amendment rights.24
Although not definitive, we find Hunter v. State,25 a factually similar case to that at bar, to be the most informative authority on the present issue. The presiding judge of Hunter’s capital-murder trial denied him a pretrial intellectual-disability determination by the judge, or in the alternative, a separately impaneled jury. Hunter ’s analysis began by reprising Briseno ⅛ admonishment: “Although a jury determined the issue of mental retardation in this case, it is important to note at the outset that a jury determination of mental retardation is not required.”26 Nor did Briseno address when a intellectual-disability determination is to be made.27 The Hunter Court held that, because there is no legislation or constitutional requirement directing when or by whom an intellectual-disability determination is to be made, the judge did not err in denying Hunter’s request.28 Hunter’s rationale suggests, if only by implication, that the decision whether to grant a request to determine intellectual disability pretrial still encompasses a significant amount of judicial discretion.
It is suggested that our decisions in State ex rel. Lykos v. Fine29 and State ex rel. Watkins v. Creuzot30 support a conclusion that mandamus should issue.31 Our holdings in these cases are not squarely on point. Lykos and Fine did not address real-party-in-interest intellectual-disability claims, but rather an “as applied” constitutionality claim to the death penalty itself and a claim asserting the delay of a retrial prevents the defendant from presenting a complete mitigation case, respectively. At a minimum, our opinion in Hunter muddies the water where intellectual-disability claims are concerned. Taking Fine and Creuzot into consideration with our other precedents, we do not find a denial of Allen’s motion to be positively commanded and so plainly prescribed under the law as to be free from doubt.32 Further, to find Allen’s motion unjustiable for lack of ripeness pretrial ignores the immediate effect the State’s notice in seeking the death penalty has upon the nature of the case. It affects a defendant’s counsel’s pretrial mitigation and punishment investigations, the appointment of punishment experts, voir dire proceedings, to list only a few implications of the State’s notice. More importantly, we cannot conclude with the requisite certainty that these issues are too remote to consider the motion unripe.
If the law surrounding a court’s action is unclear, mandamus relief may not *53issue despite how unwise we think the action may have been. At times, it is an exercise akin to judicial restraint. The dissenters understand this opinion to modify the Legislature’s procedural scheme in death-penalty cases33 or that this Court judicially approves of deciding the intellectual-disability issue pretrial.34 These conclusions stem from a misreading of this opinion, and they lose sight of the case’s procedural posture. This case, like all mandamus cases, must be decided on the existing law alone. Unfortunately, we find none that supports a conclusion that granting Allen’s request for a pretrial intellectual-disability determination deviated so far from well-settled legal principles to be considered acting outside a judge’s authority. Even if we were inclined to again act when the Legislature has not, a mandamus proceeding is not the appropriate place to interpret statutory language, clarify this Court’s precedent, or create law where there is none. We hold that the absence of existing law precluded granting the State’s mandamus relief below; it is by no means an endorsement of the judge’s action.
Judge Alcala maintains that, because the judge whose act was the subject of the court of appeals’ opinion no longer is the presiding judge, we are required to abate these proceedings for a response from the current presiding judge under Texas Rule of Appellate Procedure 7.2(b).35 The assertion stems from misreading the rule. Rule 7.2(b) states, in relevant part, “If the case is an original proceeding under Rule 52, the court must abate the proceeding to allow the successor to reconsider the original party’s decision.” Rule 52 governs only original proceedings in the Supreme Court of Texas and the courts of appeals, as evidenced by its location under Section Three, entitled “Original Proceedings in the Supreme Court and the Court of Appeals.” Instead, this mandamus application comes to this Court by way of “Rule 72. Extraordinary Matters.” Like Rule 52, Rule 72 is found under a section that affects its application — “Section Five: Proceedings in the Court of Criminal Appeals.” We are therefore not bound by Rule 7.2(b)’s requirement to abate.
Further, if we were to abate for a response from the current presiding judge after reconsidering his predecessor’s ruling, it would do nothing to correct the court of appeals’ erroneous conclusion that a trial judge has no discretion when presented with a request for a pre-trial hearing on intellectual disability. And by addressing the merits of the case we do not limit the presiding judge’s ability to reconsider his predecessor’s ruling; we only remove the inherent influence of a superi- or court’s opinion expressing its view on what it perceives to be the only permissible ruling.
Legislative Action
Without legislation, case law has necessarily sculpted the boundaries of intellectual disability in a piecemeal fashion since 2002. In terms of issues surrounding intellectual-disability determinations, we still find ourselves in the same legislative “interregnum” that existed in 2004. Public-policy arguments quickly pile up on both sides of the debate on when and by whom intellectual-disability determinations should be made; several have been presented to this Court. But they find utility only in the Legislature and should be directed there.
*54While we withhold normative judgment, the need for a statutory scheme, on this score is readily apparent, and its continued absence portends serious consequences for our criminal-justice system. Without a unified procedure, intellectual-disability determinations may vary from county to county, court to court, and case to case. As the present cases and authorities cited in this opinion illustrate, some judges may prefer to address the issues pretrial, others by submission of a special issue to the jury. The gravity of defendants’ intellectual-disability claims are too weighty to be subject to such disparity. The uncertainty may come at a cost to the State as well. If determined pretrial, it remains to be seen whether the State is afforded an adequate remedy should the judge conclude, incorrectly in the State’s opinion, that a defendant is exempt from the death penalty as a result of his intellectual disability. The trial- and sentence-altering decision may escape appellate review entirely under existing law.36 We now make explicit what we before expressed only tacitly: legislation is required.
Conclusion
Because we find that Allen’s request for a pretrial determination of intellectual disability does not call for the execution of a ministerial act, we conditionally grant mandamus relief and order the court of appeals to rescind its judgment conditionally granting the State’s (as Relator belowj petitions for writ of mandamus. The writs of mandamus will issue only in the event that the court of appeals fails to comply with this opinion.
Meyers, J., filed á concurring opinion. Yeary, J., filed a concurring opinion. Alcala, J., filed a dissenting opinion. Newell, J., filed a dissenting opinion in which Keller, P.J., and Alcala, J., joined. Johnson, J., concurred.
. In re Craig Watkins, Nos. WR-82,011-01 & WR-82,012-01 (Tex.Crim.App. Aug. 29, 2014).
. In re Craig Watkins, Nos. 05-14-01167-CV & 05-14-01168-CV, 2014 WL 5903105 (Tex.App. — Dallas Oct. 3, 2014) (mem. op, not designated for publication).
. Id. at *5-6.
. Id. at *5.
. Id.
. Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex.Crim.App.2011).
. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App.2013).
. Id. (citing Bowen, 343 S.W.3d at 810).
. Banales v. Court of Appeals for the Thirteenth Judicial Dist., 93 S.W.3d 33, 35 (Tex.Crim.App.2002); State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.Crim.App.2001).
. State ex rel. Hill, 34 S.W.3d at 928.
. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App.2007).
. Id.
. In re State ex rel. Weeks, 391 S.W.3d at 121-22; Bowen, 343 S.W.3d at 810 n.6 ("The State ... argues that it is the court of appeals’s denial of mandamus relief that we should be reviewing rather than the respondent's ruling directly_ [I]n practice it makes little difference whether we purport to review the court of appeals’s mandamus rul'ing or the trial court's order.... Either way, we review the appropriateness of the trial court's conduct_ essentially by undertaking a ‘de novo application of the two pronged test' for mandamus relief.”)
. Tex.Code Crim. Proc. Ann. art. 37.071, § 2 (West 2011).
. See id. §
. See, e.g., Crabtree v. State, 389 S.W.3d 820, 832-33 (Tex.Crim.App.2012) (distinguishing the factfinding duties of a jury from the law-giving duties of a judge).
. See, e.g., Kirsch v. State, 357 S.W.3d 645, 652 (Tex.Crim.App.2012) (holding that, in a driving-while-intoxicated trial, whether appellant was operating his motorcycle was a question of fact to be resolved by the jury); Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008).
. This opinion substitutes the term "intellectual disability” for "mental retardation.” See Hall v. Florida, - U.S. -, 134 S.Ct. 1986, 1991, 188 L.Ed.2d 1007 (2014) (“Previous opinions of this Court have employed the term ‘mental retardation.’ This opinion uses the term ‘intellectual disability’ to describe the identical phenomenon.”). See also Tex. Health & Safety Code Ann. § 591.003(7-a), (13) (West 2011).
. Atkins v. Virginia, 536 U.S. 304, 318-21, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
. Id. at 317, 122 S.Ct. 2242; Ex parte Briseno, 135 S.W.3d 1, 4-5 (Tex.Crim.App.2004).
. Briseno, 135 S.W.3d at 4-5.
. Id.
. Id. at 10 ("There was certainly no indication from the Supreme Court in Atkins that *52the fact of mental retardation is one that a jury, rather than a judge, must make.”).
. See, e.g., Williams v. State, 270 S.W.3d 112, 132 (Tex.Crim.App.2008); Neal v. State, 256 S.W.3d 264, 272 (Tex.Crim.App.2008); Hunter v. State, 243 S.W.3d 664, 671 (Tex.Crim.App.2007); Gallo v. State, 239 S.W.3d 757, 770 (Tex.Crim.App.2007); Lizcano v. State, No. AP-75,879, 2010 WL 1817772, *8-9 (Tex.Crim.App. May 5, 2010) (not designated for publication).
. 243 S.W.3d at 672.
. Id. at 667 (citing Schriro v. Smith, 546 U.S. 6, 7, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005)).
. Id. at 672.
. Id.
. 330 S.W.3d 904 (Tex.Crim.App.2011).
. 352 S.W.3d 493 (Tex.Crim.App.2011).
. Post, at 67 (Newell, J., dissenting).
. See State ex rel. Hill, 34 S.W.3d at 928.
. See Post, at 60 (Alcala, J., dissenting).
. Post, at 66 (Newell, J., dissenting).
. Post, at 61-63 (Alcala, J., dissenting).
. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 912-14 (Tex.Crim.App.2011) (holding that the State did not have an adequate remedy at law because Code of Criminal Procedure article 44.01 does not permit the State to appeal a pretrial ruling that the death penalty is unconstitutional). Accord In re Watkins, 2014 WL 5903105 at *6. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125595/ | Judgment reversed and a new trial ordered before another referee, costs to abide event. Held, that as, according to the undisputed testimony of the defendant Kamm the vendee, the agreement between him and Schleucker, the debtor, was that, when all the debts were paid, he was to deed the property back to Schleucker and to no one else, *60the effect of that agreement was to make the conveyance a mere mortgage, although absolute in form, and, even assuming that the intent of the transaction was not fraudulent, the plaintiff is entitled to an accounting. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125596/ | Judgment affirmed with costs. Opinion by
Smith, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283987/ | Meyers, J.,
filed a concurring opinion.
I agree with the majority’s analysis of the mandamus issue in this case. I write separately to address the dissenting opinions. Judge Alcala’s position on mootness is incorrect. Her solution would be similar to saying that if a judge made a pretrial ruling on a suppression hearing and there was a new judge at the trial, then the ruling in the pretrial hearing would be moot. This is simply not the case. A new judge at trial does not render moot the ruling made by another judge in a pretrial hearing.
Additionally, while I agree with Judge Newell that this is a punishment issue, it is no different than conducting a pretrial determination of whether the defendant was a juvenile at the time of the offense or whether the victim of the offense was below the age of six. Both of these are sentencing issues that would determine whether a defendant would be eligible for the death penalty, and both are properly conducted prior to the beginning of the trial.
With the foregoing comments, I join the majority. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283989/ | Alcala, J.,
filed a dissenting opinion.
Because the ministerial act that is at the center of the dispute in this case was performed by a trial judge who is no longer on the bench and has no power to change the offending order, the court of appeals’s decision to conditionally grant a writ of mandamus against that trial judge has become moot during the pendency of this proceeding. The appropriate action by this Court, which is effectively reviewing the propriety of the court of appeals’s judgment conditionally granting mandamus relief against a former trial-court judge, is to order the appellate court to vacate its prior judgment, hold the petition in abeyance, and abate the case to the trial court. The purpose of abatement under these circumstances is to permit the current trial-court judge to determine whether he will adopt as his own the former trial court’s order permitting a pretrial determination on intellectual disability. If the current trial judge does adopt the former judge’s order, then the court of appeals may reinstate its judgment by ordering that a writ of mandamus will issue against the current trial judge, and the mandamus proceedings in this Court may move forward as they now have. But if the current trial judge does not adopt the former judge’s order, then the court of appeals must dismiss the petition as moot because the offending order would no longer exist. In short, under the current procedural posture of this case, this case has become moot during the pendency of this appeal. This Court accordingly lacks jurisdiction to issue a writ of mandamus against the court of appeals because the subject of the proceedings in this Court — the appellate court’s order conditionally granting a writ of mandamus against a former trial-court judge — no longer constitutes a'live controversy in light of the fact that the former trial judge has no authority to rescind the offending order or to comply with the court of appeals’s writ. Any resulting opinion by this Court in reviewing this *60matter, therefore, is necessarily purely advisory.
Alternatively, assuming that this Court has jurisdiction to order the court of appeals to rescind its judgment conditionally granting a writ of mandamus against a former judge who lacks authority to comply with the writ, I am persuaded .by the argument presented in the dissenting opinion by Judge Newell that, under the judicial-ripeness doctrine, a trial court lacks jurisdiction to conduct a pretrial determination of intellectual disability in a capital-murder case, and I join his opinion. Alternatively, further assuming that this Court properly considers the petition on the merits, I would uphold the court of appeals’s judgment granting the State’s original application for a writ of mandamus to preclude the trial court from conducting a pretrial determination of intellectual disability. Mandamus relief is appropriate when a trial court has no discretion, as here, but to abide by principles of law that have been in effect for more than a decade: the jurisdictional doctrine of ripeness, Texas statutes, and this Court’s precedent for addressing this type of claim.
I. Abatement to the Trial Court Is Required Under the Doctrine of Mootness
Given that the trial judge who granted relator’s motion for a pretrial intellectual-disability hearing, Judge Larry Mitchell, is no longer the presiding judge of the 292nd Judicial District Court, this Court is obligated to order the court of appeals to vacate its prior judgment and abate the case to the trial court so that the now-presiding judge may have the opportunity to reconsider the previous trial judge’s original ruling in this case. Such an approach is consistent with the applicable law, which indicates that abatement is generally required under these circumstances for the purpose of allowing a successor judge to reconsider a prior judge’s disputed ruling in order to ensure that an actual controversy continues to exist in the case. Moreover, under the particular facts of this case, the current proceedings have, at this stage, been rendered moot as a result of the original trial judge being succeeded in office by another judge. Absent any further ruling by the current presiding judge that indicates the continuing existence of a live controversy, the resulting opinion by this Court addressing the merits of this petition constitutes a prohibited advisory-only opinion.
A. Applicable Law Governing Propriety of Abatement
The Texas Supreme Court has observed that mandamus “will not issue against a new judge for what a former one did.” In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex.2008) (explaining that abatement is required “to allow the successor [judge] to reconsider the order”); see also In re Schmitz, 285 S.W.3d 451, 453 (Tex.2009) (observing that, when judge whose ruling is at center of mandamus proceeding is succeeded by another, “[njormally, this would require abatement for reconsideration”); State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (per curiam) (observing that, because original trial judge who was party to mandamus proceeding had died, proceeding was “moot,” and holding that “[a] writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks”). This rule has its foundation in the Texas Rules of Appellate Procedure, which provide that, when a public officer is a party to an original mandamus proceeding in the Supreme Court or a court of appeals and he ceases to hold office before the mandamus proceeding is finally disposed of, the court “must abate the proceeding to allow the *61successor to reconsider the original party’s decision.” Tex.R.App. P. 7.2(a), (b). The rationale underlying the rule is that, for mandamus relief to lie, a live controversy must exist between the parties. “A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex.2005) (orig. proceeding); see also State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex.1994) (orig. proceeding) (stating that for controversy to be justiciable, there must be a real controversy between the parties that actually will be resolved by the judicial relief sought); Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex.1995) (Court will not issue mandamus relief if it would be useless or unavailing). Because a pretrial ruling by a trial judge who is no longer in office may readily be rescinded and superseded by a subsequent pretrial ruling from the successor judge, a dispute stemming from such a ruling is essentially moot, and, as such, that type of ruling cannot form the basis of a live controversy that is the subject of mandamus proceedings. See Kellogg, 166 S.W.3d at 737; see also In re Bonilla, 424 S.W.3d 528, 534 (Tex.Crim.App.2014) (declining to grant mandamus relief and dismissing petition because “particular dispute” had become “moot”); State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex.Crim.App.1984) (where relief sought has become moot, “there is nothing to mandamus, ergo mandamus does not lie”).
B. Abatement Is Required In Light of Mootness
Applying these principles to the present context, I observe that all of the foregoing rationales for requiring abatement to a successor trial-court judge are relevant to this case. Here, the controversy between the parties stems from the action of the original trial-court judge in granting relator’s motion for a pretrial intellectual-disability hearing. The continuing viability of that ruling is, at this point, questionable at best. The successor judge has had no opportunity to revisit the prior judge’s ruling because of the pendency of these mandamus proceedings and the resulting stay of all proceedings in the trial court. At some point in the future, proceedings in this case will necessarily resume in the trial court, at which point the successor judge will have plenary power over the case and will be fully authorized to rescind the prior judge’s orders granting relator’s request for a pretrial hearing. As this Court’s majority opinion accurately observes, because this is a mandamus proceeding, this Court is not actually deciding the propi’iety of the trial court’s order, and thus there would not be any law of the case to prohibit the successor judge from reconsidering this pretrial ruling. Given these circumstances, there exists no live controversy between the relevant parties because the person who granted the challenged motion, the former trial judge, now lacks the authority to either carry out or rescind his original ruling. In the absence of a live controversy between the parties, mandamus relief is inappropriate. See Kellogg, 166 S.W.3d at 737.
With respect to the appellate-court proceedings in this matter, I observe that, like the proceedings in the trial court, the result of those proceedings — the order conditionally granting the State’s request for mandamus relief against the former judge — has similarly been rendered moot as a result of Judge Mitchell’s departure from the bench. The appellate court’s order in this case was directed at Judge Mitchell and was not directed more generally at the trial court. See Schmitz, 285 S.W.3d at 454 (“Of course, the writ must be directed to someone[.]”); O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 *62(Tex.1992) (must be proper request stating correct legal reason directed to judge against whom mandamus is sought). But, now that Judge Mitchell is no longer in a position of authority to comply with the appellate court’s mandamus order, that order cannot be enforced against him. See Baylor, 280 S.W.3d at 228. And because the writ was not directed at the trial court, the appellate court’s mandamus order cannot properly be enforced against the successor judge or anyone else. See id. To the extent that we are presently reviewing the propriety of the court of appeals’s conditional grant of mandamus relief, this Court’s majority opinion does not explain how a live controversy continues to exist with respect to the appellate court’s order, which, at this point, has become moot because it is directed at a person who is no longer in a position to effectuate it. Moreover, the rules of appellate procedure and case law prohibit enforcement of that order against the current presiding judge, absent an opportunity for him to revisit the ruling.. See id.; Tex.R.App. P. 7.2. And the rules and case law further provide that a trial judge must be provided such an opportunity. See id. Because the court of appeals’s mandamus order directed at the previous trial judge is clearly unenforceable against the current presiding judge and, therefore, moot, any opinion by this Court reviewing the propriety of that order is necessarily advisory in nature. See Pfeiffer v. State, 363 S.W.3d 594, 600 (Tex. Crim.App.2012) (observing that this Court is “without authority” to render advisory opinions).
It is suggested that Judge Mitchell’s succession by another judge is irrelevant to our resolution of the proceedings in this Court because, at this stage, we are not directly considering the trial judge’s ruling in granting relator’s motion for a pretrial hearing, but we are instead considering whether a writ of mandamus from this Court is an appropriate vehicle to correct the court of appeals’s judgment in the proceedings below. I observe, however, that regardless of the procedural posture in which this case comes to us, the requirement of a live controversy between the parties persists, and a case may become moot if a controversy ceases to exist “at any stage of the proceedings, including the appeal.” Kellogg, 166 S.W.3d at 737. However desirable it may seem to correct what is viewed as an erroneous ruling by the court of appeals, a writ of mandamus from this Court is an inappropriate vehicle to do so when the underlying appellate-court order is no longer enforceable against any party to these proceedings.
Along these same lines, it is suggested that abatement is not required because Rule 7.2 does not apply directly to proceedings in this Court. I, however, observe that, to the extent that we are reviewing the propriety of the appellate court’s actions in conditionally granting mandamus relief, we are bound to consider Rule 7.2 because it is applicable to mandamus proceedings in the court of appeals. See Tex.R.App. P. 7.2(b); Baylor, 280 S.W.3d at 228. Furthermore, because the court of appeals issued its opinion on October 3, 2014, while Judge Mitchell was still on the bench,1 that court has never been afforded the opportunity to decide whether abatement is required under that rule. Given the change in circumstances that has arisen since the time its opinion was issued, the appellate court should now be afforded the opportunity to comply with the rule.
*63Now that Judge Mitchell had been superseded in office, the appropriate and required course of action is abatement in order to give the current presiding judge an opportunity to reconsider the previous ruling granting relator’s request for a pretrial intellectual-disability hearing, thereby ensuring the continued existence of a live controversy in this case. See Tex.R.App. P. 7.2(b); Baylor, 280 S.W.3d at 228. The court of appeals’s order conditionally granting mandamus relief to the State in the proceedings below is now moot because it is directed at the former judge who is no longer in a position to take any action on that order, and that order may not properly be enforced against the successor judge. See id. Because the Court determines that, notwithstanding these circumstances that eliminate the existence of a live controversy in this case, mandamus relief is nonetheless warranted, I disagree with the Court’s decision to conditionally grant relator’s requested relief.
II. Assuming that Court Properly Considers Relator’s Petition, His Requested Relief Should Be Denied
Even were I to agree that this Court properly addresses the merits of relator’s present request for mandamus relief, I would nevertheless disagree with the Court’s decision to grant that relief. As indicated above, I agree with the position taken by Judge Newell that a trial court lacks jurisdiction to conduct a pretrial hearing on intellectual disability because that issue is not ripe until the punishment phase of trial.
Further assuming that this Court has jurisdiction to address this moot order pertaining to an unripe matter, I conclude that, on the merits, mandamus relief is unwarranted. Before addressing the merits, it is important to understand the way that the statutory scheme set forth by the Legislature has worked, at least until this Court’s decision today. Through numerous provisions, the Code describes a capital-murder proceeding as follows: The State decides to seek the death penalty against a person indicted for capital murder; individual voir dire is conducted; the State presents evidence in a guilt stage of trial; a jury decides whether the evidence proves capital murder; if the jury has convicted a defendant of capital murder, it answers certain special issues in a sentencing phase of trial; the trial court sentences a defendant either to life in prison or to the death penalty depending on the jury’s answers to the special issues; and, on appeal, a defendant either files a notice of appeal to the court of appeals challenging his life sentence or there is an automatic appeal of his death sentence to this Court. Up until today, a defendant’s claim of intellectual disability has been addressed either in the sentencing phase of his capital-murder trial or in a post-conviction hearing.
In contrast to this procedural scheme that has been followed in Texas for over a decade, here, at a pretrial stage, the trial court would conduct a hearing at which relator is given the opportunity to prove that he is intellectually disabled before he is ever tried of convicted of capital murder. At this pretrial stage, the State would have to provide evidence establishing a defendant’s guilt of the offense in order for the fact finder to be able to assess how that evidence may weigh into assessing whether he is intellectually disabled. This pretrial hearing would essentially become applicant’s first trial on guilt and would require the State to marshal all of its evidence to show his role in the commission of that offense. If a defendant is determined to be intellectually disabled, a trial court may decide to deprive the State of the opportunity to seek the death penalty based on the court’s determination *64that the defendant would be constitutionally ineligible for it. Alternatively, even if he is found to be intellectually disabled at the pretrial hearing, the State would still have the right to individual voir dire and to seek the death penalty, at least according to the provisions in the Code of Criminal Procedure that are discussed below. After the pretrial hearing, therefore, applicant’s regular guilt trial would occur. Assuming he is found guilty of capital murder, applicant would again be permitted to present any evidence of his intellectual disability, as that would be relevant to the mitigation special issue. Assuming that he is sentenced to death, applicant likely would have a third opportunity to present evidence of his intellectual disability in an application for a writ of habeas corpus either through a claim asserting ineffective assistance of counsel or through any new evidence on that subject. The end result of all of this will be that the guilt evidence will be presented twice, at the pretrial hearing and at the regular trial, and the defendant will have at least three opportunities to prove his intellectual-disability claim: at the pretrial hearing, regular trial, and in post-conviction proceedings.
There is only one rational decision under unequivocal, well-settled, and clearly controlling legal principles: This bizarre procedural scheme, fancifully created by this single trial court judge, is contrary to over a decade of jurisdictional principles, legislative statutes, and this Court’s precedent. This Court should not abdicate its responsibility to ensure that the law in Texas is not applied by a single trial judge in such an extraordinary and absurd manner. See, e.g., In re State ex. rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App.2013). Because the State has shown that under well-established and long-standing law it is entitled to mandamus relief against this aberrant order, this Court has no discretion but to uphold the appellate court’s order conditionally granting the State the relief that it seeks, as explained more fully in my two points below.
A. When Viewed in Their Totality, Texas Statutes Applicable to Capital-Murder Trials Preclude a Pretrial Determination
In this context, it is unnecessary to lament the Legislature’s failure to specifically pass statutes that would address how intellectual-disability claims should be handled because the Legislature has enacted general procedures for the litigation of a capital-murder case that, when viewed in their totality, definitively control the process applicable to such a proceeding. A pretrial determination of intellectual disability is outside the realm of what the Legislature has described with respect to the procedures applicable in a capital-murder trial. The absence of a specific rule disallowing a pretrial determination as to intellectual disability, therefore, is immaterial.
Through numerous statutes, the Legislature has enacted a general procedural scheme applicable to all capital-murder cases based only on the State’s representation that it is seeking the death penalty. See Tex.Code Crim. Proc. art. 35.15(a) (“In capital cases in which the State seeks the death penalty both the State and defendant shall be entitled to fifteen peremptory challenges.”); Id. art. 35.17, § 2 (“In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions [and].... examine each juror on voir dire individually and apart from the entire panel”); Id. art. 37.071, § 2(a)(1) (“If a defendant is tried for a capital offense in which the state seeks the death penalty, on a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding *65to determine whether the defendant shall be sentenced to death or life imprisonment without parole.”); Id. art. 37.071, § 1 (“If a defendant is found guilty in a capital felony case in which the state does not seek the death penalty, the judge shall sentence the defendant” to life imprisonment without parole.); see also id. art. 37.0711 §§ 2, 3 (emphasis added in all the parentheticals). These mandatory provisions are contingent only on the State’s decision to seek the death penalty. Based on the general scheme set forth by the Legislature establishing rules that become applicable to a capital murder case only upon the State’s decision to seek the death penalty, it is clear that the trial court has no discretionary authority to create an additional barrier to the State’s right to seek the death penalty in the form of a pretrial determination of intellectual disability.
Perhaps, in this case, even if the trial court were to decide in a pretrial hearing that relator is intellectually disabled, the trial court would nonetheless permit this trial to proceed as it normally would in a capital-murder case in which the State seeks the death penalty, with, for example, individual voir dire and special issues in the sentencing phase. Even if that were to occur, I would hold, based on the entire statutory scheme set forth by the Legislature that is mandatory and contingent only upon the State seeking the death penalty, that a trial court has no statutory authority to additionally require the State to successfully defend against a defendant’s pretrial claim of intellectual disability as a prerequisite to the normal progression of a capital-murder trial.
B. Permitting a Pretrial Determination on Intellectual Disability is Clearly Unauthorized by this Court’s Jurisprudence
This Court’s jurisprudence in Ex parte Briseno has set forth the standard for determining whether a particular defendant is ineligible for the death penalty due to intellectual disability, but that standard contemplates that a defendant has already been found guilty of capital murder. See Ex parte Briseno, 135 S.W.3d 1, 8-9 (Tex.Crim.App.2004) (setting criteria for determination of intellectual disability); see also Ex parte Sosa, 364 S.W.3d 889, 890 (Tex.Crim.App.2012). The Briseno standard operates under the assumption that the defendant is in fact guilty of the capital murder for which he has been indicted. Id. One of the Bnseno factors specifically asks, “Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?” Id. At a pretrial stage, a defendant is presumed innocent and no facts of the commission of the offense have been proven. See Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”). The constitutional principle that a defendant be presumed innocent until proven guilty stands in stark contrast to this Court’s jurisprudence for deciding an intellectual-disability claim that requires consideration of a defendant’s actions while committing the capital murder for which he has been found guilty. I conclude that a trial court lacks the discretion to conduct a pretrial hearing on intellectual disability in contravention of federal constitutional law or this Court’s jurisprudence.
III. Conclusion
Because the trial judge who granted relator’s motion for a pretrial intellectual-disability determination is no longer presiding over relator’s capital-murder trial, *66and because the appellate court’s order conditionally granting mandamus relief was directed against that judge, I conclude that abatement is required in order to afford the now-presiding judge an opportunity to revisit the underlying ruling in this case. In the absence of abatement, mandamus will not lie against the successor judge, and any ruling by this Court evaluating the appellate court’s conditional grant of mandamus relief, which has now been rendered moot, will necessarily be advisory.
Even accepting the correctness of the majority opinion’s decision to address the merits of relator’s petition, I observe that the argument, “But you didn’t say that I couldn’t do this” is not a persuasive argument from my kids when they act in contravention to one of my general rules, nor is it here, where it is abundantly clear that federal, statutory, and state rules that have been generally set forth apply to cover this situation. Because, as Judge Newell has explained, an intellectual-disability claim is not yet ripe at a pretrial stage, and because the legislative statutes and this Court have definitively set forth a procedural scheme that requires that intellectual-disability claims be litigated during the sentencing phase or in the post-conviction phase of a capital-murder trial, I respectfully dissent.
Newell, J., filed a dissenting opinion in which Keller, P.J., and Alcala, J., joined.
OPINION
The majority conditionally grants mandamus relief to Relator Tyrone Allen thereby paving the way for a pre-trial determination of whether he is exempt from the death penalty due to his intellectual disability.1 According to the majority, the uncertainty surrounding the determination of intellectual disabilities in the context of a death-penalty case prevents labeling the trial court’s actions a ministerial duty. While I share the majority’s frustration with the lack of legislative guidance on this subject, I reluctantly dissent from this holding. I believe the majority’s focus upon the question of whether the determination is limited to a jury overlooks whether such a determination is timely prior to conviction. On that question, the law is considerably more settled and clearly prohibits a pre-trial determination of a sentencing issue prior to conviction.
The majority comprehensively sets out the case law surrounding the determination of intellectual disability. In Briseno, this Court' fashioned what were supposed to be temporary guidelines on determining intellectual disability, but even as it did, the Court carefully noted that Atkins does not require a jury determination ,of intellectual disability. Ex parte Briseno, 135 S.W.3d 1, 9-10 (Tex.Crim.App.2004). This Court observed in Hunter v. State that the United States Supreme Court had even overturned the Ninth Circuit’s order commanding Arizona courts to conduct a jury trial to resolve intellectual-disability claims. Hunter v. State, 243 S.W.3d 664, 672 (Tex.Crim.App.2007) (citing Schriro v. Smith, 546 U.S. 6, 7-8, 126 S.Ct. 7, 163 *67L.Ed.2d 6 (2005)).2 And while this Court has endorsed a jury finding on intellectual disability, this Court has not held that it is constitutionally required. See, e.g., Williams v. State, 270 S.W.3d 112, 132 (Tex.Crim.App.2008). The majority is exactly right that this Court has repeatedly left the door open for the legislature to act, and our stop-gap measures should not be mistaken for constitutional requirements.
But this lack of legislative guidance does not necessarily translate into unfettered judicial discretion. It is well settled that courts lack the authority to address claims that are not ripe for review. “At the time a lawsuit is filed, ripeness asks whether the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote.” Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 442 (Tex.1998) (citing 13A Wright et al., Federal Practice and Procedure, § 3532.1, at 130 (2d ed.1984)). Though this Court has not directly quoted Professor Wright, we have repeatedly rejected claims that were not ripe for review. See, e.g., Ex parte Smith, 185 S.W.3d 887, 893 (Tex.Crim.App.2006) (rejecting an in pari materia claim because it was not ripe for review); Ex parte Weise, 55 S.W.3d 617, 621 (Tex.Crim.App.2001) (declining to address whether the illegal-dumping statute required a culpable mental state prior to trial because the issue was not ripe). The courts of this state are not empowered to give advisory opinions; this prohibition extends to cases that are not ripe. Patterson, 971 S.W.2d at 443. Yet the majority would authorize the trial court to enter an advisory opinion by allowing the trial court in this case to prematurely adjudicate Relator’s intellectual-disability claim before he has been convicted of capital murder.
This Court has already considered and rejected a claim that Jonathan Bruce Reed was entitled to a pre-trial hearing to determine whether a lengthy delay in obtaining post-conviction relief had rendered mitigation evidence unavailable for his death-penalty retrial. State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 502-06 (Tex.Crim.App.2011). The State argued that the trial court could not preclude the death penalty for a death-penalty offense based upon the contingency that the defendant would be found guilty of capital murder, that a jury would find beyond a reasonable doubt that he would still be a future danger, and that a hypothetical jury would not answer the mitigation question in his favor because some witnesses and records were unavailable. Id. at 502. A majority of this Court agreed with the State, holding:
The issue of the adequacy of Reed’s mitigation case is not “fit” for judicial decision before it is presented. Here, a capital-murder defendant is seeking a pretrial declaratory judgment that any mitigation case that he might mount *68would necessarily be inadequate and therefore any prospective death sentence would, if it occurred, violate the Eighth Amendment, the Sixth Amendment, and the Due Process Clause. “These assumptions are simply not warranted before a jury has considered the evidence in the present case and rendered a verdict.”
Id. at 505-06 (quoting State ex rel. Lykos v. Fine, 330 S.W.3d 904, 916 (Tex.Crim.App.2011)).
The majority distinguishes Fine and Creuzot by focusing upon the form of the motion before the trial courts in those cases. But this Court’s holdings in those cases did not turn on the form of the motions. Rather, this Court granted mandamus relief because the real parties-in-interest had not yet been convicted. Regardless of the merit of the claims, the alleged constitutional injury was just as contingent upon future events in those cases as the alleged constitutional injury is in this case.3
I believe the same reasoning applies in this case. The United States Supreme Court has held only that the Eighth Amendment prohibits the imposition of the death penalty upon a defendant with intellectual disabilities. Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Under existing law, it is a sentencing issue. Regardless of whether the determination that a defendant is intellectually disabled can be made by a judge or a jury, holding the hearing on the matter prior to a finding of guilt puts the cart before the horse and results in an advisory opinion. More simply, Allen’s claim of intellectual disability is not ripe.
Because I believe allowing the pre-trial evidentiary hearing to consider the adequacy of Allen’s intellectual-disability claim is inconsistent with this Court’s prior precedent, I respectfully dissent.
. See In re Watkins, Nos. 05-14-01167-CV, 05-14-01168-CV, 2014 WL 5903105 (Tex.App.—Dallas Oct. 3, 2014).
. I am not suggesting that the majority is advocating for this procedure. Nevertheless, the effect of the majority's decision opens the door for the exact procedure that the majority seems to decry. And the effect of this ruling will be felt not only in this case, but in other cases as well. I share the majority’s hope that the impact of this case might encourage the legislature to provide much needed guidance on how the State should address intellectual-disability claims in death-penalty cases. But I reluctantly dissent because I am unwilling to abandon our precedent regardless of how much I might want to spur the legislature to action.
. In Schriro, the United States Supreme Court held that the Ninth Circuit exceeded its habeas jurisdiction by demanding that Arizona courts conduct a jury trial to resolve habeas corpus claims regarding intellectual disability when Arizona had not had the chance to implement its own chosen procedures. Schriro, 546 U.S. at 7-8, 126 S.Ct. 7. Schriro stands more for the proposition that a federal court cannot interfere with a state’s ability to promulgate procedures for addressing intellectual-disability claims than it does for the idea that a trial court has discretion to consider such claims prior to trial. Moreover, the United States Supreme Court has recently granted certiorari to determine whether Ring v. Arizona requires a jury determination of intellectual disability in a case in which the defendant was deprived of that jury determination. See Hurst v. State, 147 So.3d 435 (Fla.2014), cert. granted, — U.S. -, 135 S.Ct. 1531, 191 L.Ed.2d 558 (2015). But the majority’s point is well-taken; Atkins does not explicitly require a jury determination of intellectual disability. Briseno, 135 S.W.3d at 10.
. It is worthwhile to note that both Fine and Creuzot were death-penalty cases in which the State had provided notice of its intent to seek the death penalty. Those notices had the same effect upon the nature of those cases as the notice does in this case. And the issues in both Fine and Creuzot do not appear to be any less remote than the issues in this case. Yet, a majority of this Court still held that mandamus relief was appropriate in both cases because the relators had not yet been convicted of capital murder. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283990/ | MEMORANDUM OPINION
LAURA CARTER HIGLEY, Justice.
The State of Texas, appeals from the trial court’s grant of summary judgment against it on liability and subsequent rendition of judgment against it and in favor of Clear Channel Outdoor, Inc. following a trial on damages in an inverse condemnation proceeding. In three issues, the State argues (1) the trial court erred by ruling as a matter of law that the State had taken Clear Channel’s billboards as part of its condemnation of the land; (2) the trial court abused its discretion by allowing certain testimony from Clear Channel’s expert on valuation of the billboards; and (3) the evidence is legally and factually insufficient to support the trial court’s award on damages.
We affirm the judgment of the trial court.
Background
In 2001, Clear Channel obtained a leasehold interest in a parcel of land, identified as Parcel 709, located in Harris County within view of the Katy Freeway. In 2004, Clear Channel obtained a leasehold interest in an abutting parcel of land, identified as Parcel 708. Pursuant to the • leases, Clear Channel erected and maintained two billboards on the parcels. The billboards back each other and form a V shape, each being visible to opposing directions of traffic on the Katy Freeway.
In connection with a planned freeway expansion, the State petitioned to condemn Parcels 708 and 709 in separate proceedings and named the landowner and Clear Channel as defendants in each proceeding. Each of the county civil courts appointed a panel of special commissioners to determine the fair market value of the properties. Clear Channel filed objections to the special commissioners’ award in each proceeding and asserted claims of inverse condemnation, seeking compensation for the billboards.
The State brought a plea to the jurisdiction in each proceeding. Each plea was denied, and the State appealed. Each denial was affirmed.1
During the time that the State brought its pleas to the jurisdiction, Clear Channel brought a motion for partial summary judgment on its interest in Parcel 709, arguing that the billboard on Parcel 709 was part of the realty, that the billboard, therefore, had been condemned, and that the State was required to adequately compensate Clear Channel for the condemned property. The trial court for that proceeding granted the motion for summary judgment.
After the denials to the pleas to the jurisdiction were affirmed on appeal, the State had settled most of its condemnation claims for both parcels. The State had resolved the amount of compensation to be paid to the owners of the parcels and had agreed on the amounts owed to Clear Channel on all of its leasehold interests other than the billboards.
After the interlocutory judgments were entered, the trial court in the proceeding for Parcel 708 granted the parties’ agreed motion to consolidate the two proceedings. Clear Channel subsequently brought a partial motion for summary judgment on its interest in the billboard on Parcel 708, arguing the State had condemned its inter*73est in the billboard on that parcel. The trial court granted this motion for summary judgment as well.
The parties tried the remaining damages issues to a jury. Clear Channel presented Rodolfo Aguilar at trial as its expert for valuation of the billboards. Aguilar presented four methods for valuing the billboards: one based on the cost method, two based on the comparable sales method, and one based on the income method. The State objected to and sought to exclude Aguilar’s testimony regarding the comparable sales methods and the income method. The trial court denied these objections and admitted all of Aguilar’s testimony regarding valuation.
Condemnation of Billboards
In its first issue, the State argues the trial court erred by ruling as a matter of law that the State had taken Clear Channel’s billboards as part of its condemnation of the land.
A. Standard of Review
The summary-judgment movant must conclusively establish its right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Because summary judgment is a question of law, we review a trial court’s summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009).
To prevail on a “traditional” summary-judgment motion, asserted under Rule 166a(c), a movant must prove that there is no genuine issue regarding any material fact and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005).
When a party moves for summary judgment on a claim for which it bears the burden of proof, it must show that it is entitled to prevail on each element of its cause of action. See Parker v. Dodge, 98 S.W.3d 297, 299 (Tex.App.Houston [1st Dist.] 2003, no pet.). The party meets this burden if it produces evidence that would be sufficient to support an instructed verdict at trial. Id.
To determine if there is a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting, favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).
B. Analysis
Clear Channel sought summary judgment on the liability portion of its inverse condemnation claim. “Inverse condemnation occurs when (1) a property owner seeks (2) compensation for (3) property taken for public use (4) without process or a proper condemnation proceeding.” City of Houston v. Boyle, 148 S.W.3d 171, 178 (Tex.App.-Houston [1st Dist.] 2004, no pet.). The trial court granted Clear Channel’s motion.
On appeal, the State’s challenges to the trial court’s grant of summary judgment fall into three categories: (1) whether the billboards must be considered part of the realty; (2) whether the State intended to condemn the billboards; and (3) whether *74Clear Channel consented to any alleged damages. Before we address each of these matters, however, we must address Clear Channel’s argument that this issue has been waived by the State.
1. Waiver
Clear . Channel argues, “The State has not assigned error to the summary judgments and has therefore waived its right to challenge those judgments.” This is incorrect.
As pointed out by the State, the Texas Rules of Appellate Procedure were amended in 1997. One of those changes was allowing an appellant to present either issues or points of error. See Tex.R.App. P. 38.1(f) & Notes & Comments. When a party raises a complaint in an issue, an appellate courfmust “look to the argument to determine the nature of the complaints .... If the court is able to ascertain the nature of the complaint from the argument, the issue will be preserved for appellate review.” John Hill Cayce, Jr., Anne Gardner & Felicia Harris Kyle, Civil Appeals in Texas: Practicing Under the New Rules of Appellate Procedure, 49 Baylor L.Rev. 867, 947-48 (1997).
In its brief on the merits, the State raised an issue complaining of the trial court’s determination that the billboards were part of the condemned realty. This is enough to present the matter for appellate review. It has been the practice in Texas for almost 15 years that failure to assign a point of error to the specific interlocutory summary judgments containing the trial court’s ruling does not waive any error. See id. at 947 (noting that “[t]he new ‘issues presented’ practice signals the intention of the Supreme Court to have all appeals judged on the merits of controversies rather than hypertechnical waiver issues”).
We hold that the State has not waived this issue.
2. Inclusion of the Billboards with the Realty
Clear Channel claimed a right to compensation for its billboards under the federal and state constitutions. See U.S. Const, amend. V (providing “nor shall private property be taken for public use, without just compensation”); Tex. Const. art. I, § 17 (providing “[n]o person’s property shall be taken ... without adequate compensation being made”).
“[I]t is generally held that the power to take property for public use extends to every species of property and every character of right, title, or interest therein.” Hous. N. Shore Ry. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 793 (1936). When the State condemns real property, however, it is' not required to condemn the personal property contained on the premises or reimburse the owner for the expense of removing the property. Luby v. City of Dallas, 396 S.W.2d 192, 198 (Tex.Civ.App.-Dallas 1965, writ refd n.r.e.).
The State argues that the billboards are personalty and that, accordingly, it is not obligated to treat them as part of the condemned property. Clear Channel argues that the billboards are part of the realty and that, accordingly, the State must give just compensation for its condemnation.
The Texas Supreme Court has held, “It is a general rule that improvements situated upon the portion of land taken are to be considered as a part of the realty.” State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979, 980 (1936); see also Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 477 n. 5, 93 S.Ct. 791, 796 n. 5, 35 L.Ed.2d 1 (1973) (holding “[i]f the ... fixtures are attached *75to the real estate, they must be treated as real estate in determining the total award”). While the court identified this as a general rule, it followed with only one exception: “[I]f the improvements which are situated upon the portion of land taken are essential to the use and enjoyment of the remainder of the land, or if their replacement, by removal or reconstruction, is necessary in order to obviate depreciation in the value of the residue, the cost of removal, and/or reconstruction and/or replacement may be a proper inquiry in connection with the issue of diminished market value of the remainder.” Carpenter, 89 S.W.2d at 980-81. In other words, the sole exception is when an improvement would need to be removed and relocated to preserve the value of the remainder, which has not been condemned. See id.
There has been no claim, by the State or Clear Channel, that relocation of the billboards is necessary to preserve the value of any remainder. It is undisputed that the billboards are “improvements situated upon the portion of land taken.” See id. at 980. Accordingly, they are part of the realty, and the State must give Clear Channel adequate compensation for them. See id.; see also State v. Clear Channel Outdoor, Inc., 274 S.W.3d 162, 165 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (applying Carpenter in previous appeal between parties).
The State argues that we should determine whether the billboards are a fixture in order to determine whether they are part of the realty. The State then applies the test for what constitutes a fixture to this case, citing Logan v. Mullis, 686 S.W.2d 605, 607 (Tex.1985). We have already held that Logan does not apply to condemnation claims.2 Clear Channel Outdoor, 274 S.W.3d at 165.
The State points out that Clear Channel agreed with both landowners in the leases that the billboards would be treated as Clear Channel’s personal property. The State argues that this should establish that the billboards are, in fact, personal property and not part of the realty. The United State Supreme Court has already held that this is not a relevant inquiry. Such requirements in leases “ex-istí ] entirely for the protection of the tenant, and cannot be invoked by the con-demnor. If the buildings or fixtures are attached to the real estate, they must be treated as real estate in determining the total award.” Almota, 409 U.S. at 477 n. 5, 93 S.Ct. at 796 n. 5; see also Brazos River Conservation & Reclamation Dist. v. Adkisson, 173 S.W.2d 294, 300 (Tex.Civ.App.-Eastland 1943, writ ref'd3) (holding “that an agreement between landlord and tenant that the tenant shall have the right to remove improvements placed upon the premises by him shall not inure to the benefit of the condemnor, is supported by considerable authority”).
*76From all of these rales, it follows that, “[i]f personalty would be a fixture if attached to the land by the fee owner of the land, then a condemning authority must pay for such property as real estate in a condemnation action.” Harris Cnty. Flood Control Dist. v. Roberts, 252 S.W.3d 667, 670 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Even accepting the State’s characterization of the Billboards as fixtures under Logan, then, the State is still obligated to give adequate compensation for them in a condemnation proceeding.
The State also seeks to avoid application of these rules by arguing that the billboards are treated as personal property by local taxing entities and the Internal Revenue Code and that other states treat billboards as personal property. Regardless of how persuasive the other states’ holdings may be, we are bound by the holdings of the Supreme Court of Texas and the United States Supreme Court. Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (requiring intermediate appellate courts to follow supreme court precedent and leave to the supreme court the matter of abrogating or modifying its own precedent); Ex parte Twedell, 158 Tex. 214, 309 S.W.2d 834, 844 (1958) (holding Texas courts are required to follow United State Supreme Court in its application of the United States Constitution and federal law). To that end, none of the holdings by the Supreme Court of Texas or the United States Supreme Court allow for consideration of how property is characterized for tax purposes in determining whether property is part of the condemned realty. As a result, how the billboards are treated for tax purposes is not relevant to our inquiry in this appeal.
3. Intent to Take
The State correctly argues that, to prevail on an inverse condemnation proceeding, the plaintiff must establish that the State intended to take the property in question. See Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.2004). The question of intent is typically only relevant in regulatory takings cases, however. See, e.g., id. at 554 (concerning regulatory taking by construction of reservoir near property).
Here, it is undisputed that the State has initiated condemnation proceedings on the real property upon which the billboards stand as well as the lease for the property held by Clear Channel. The State appears to argue that, because it does not want to compensate Clear Channel for the billboards, it lacks the intent to condemn the billboards. As we have held above, the billboards are part of the condemned property. Because the State has intended to condemn the property, it follows that the State has intended to condemn the billboards, regardless of whether it wanted to condemn the billboards.
4. Consent
Finally, the State argues that Clear Channel consented to the taking of its billboards. The State correctly asserts that article one, section 17 of the Texas Constitution applies only when property is taken without the owner’s consent. See Tex. Const, art. I, § 17. The State argues that Clear Channel consented to the taking of its billboards because “it intentionally declined the opportunities offered pursuant to [the Texas Department of Transportation's Relocation Assistance Program.” The Relocation Assistance Program allows municipalities to pay relocation benefits for billboards relocated under the program. See 43 Tex. Admin. Code §§ 21.195, .196 (2011) (Tex. Dep’t of Transp., Relocation of Sign within Municipality, Relocation Benefits). Under this program, the City of Houston has established a process for relocation of billboards and payment of related *77relocation benefits. Houston, Tex., Building Code ch. 46, § 4617.4
As Clear Channel points out, however, it was not required to relocate its billboards under this program. Id. § 4617(b) (providing “[njothing contained in this section shall be construed to abrogate the right of a sign owner ... to refuse to accept the proposal by the governmental unit for the alteration or relocation of a sign under this section and to choose instead to seek monetary compensation”). Instead, Clear Channel had the choice to relocate its signs and obtain relocation benefits or to seek monetary compensation for the loss of the billboards. Id. The State cannot legitimately claim that a party given two choices loses its rights to the second by declining the first.
We hold that the trial court did not err by granting summary judgment on the liability portion of Clear Channel’s inverse condemnation claim. We overrule the State’s first issue.
Evidence of Valuation of Billboards
In its second issue, the State argues the trial court abused its discretion by allowing certain testimony from Clear Channel’s expert on valuation of the billboards.
A. Standard of Review
An expert’s opinion ■ must be relevant and reliable. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex.2009); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998). “Appraisal expertise is a form of ‘specialized knowledge used to assist the trier of fact to determine a fact in issue.’ It is therefore subject to Gammill’s relevance and reliability requirements.” Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.2002) (quoting Tex.R. Evid. 702).
We review the trial court’s ruling on admission of an expert’s opinion based on relevance and reliability for an abuse of discretion. Cent. Expressway Sign Assocs., 302 S.W.3d at 870. A trial court does not abuse its discretion by admitting expert testimony if the testimony is relevant to the issues in the case and is based on a reliable foundation. See id.
In determining the reliability of an expert’s opinion, the trial court must independently, evaluate the underlying data. Kraft, 77 S.W.3d at 808; Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 713 (Tex.1997). “If the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable.” Havner, 953 S.W.2d at 714.
B. Analysis
In a condemnation proceeding, the burden to establish the value of the condemned property is on the condemnee. Religious of Sacred Heart of Tex. v. City of Hous., 836 S.W.2d 606, 613 (Tex.1992). Texas has recognized three approaches to determining the market value of condemned property: the comparable sales method, the cost method, and the income method. Cent. Expressway Sign Assocs., 302 S.W.3d at 871 (citing City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex.2001)). The comparable sales method is the preferred method for valuation, and the other two methods should only be used “[w]hen comparable sales figures are lacking or the method is *78otherwise inadequate as a measure of fair market value.” Estate of Sharboneau, 48 S.W.3d at 182, 183.
Clear Channel’s valuation expert, Rodolfo Aguilar, valued the billboards based on all three methods for valuation and testified on the results of each of these methods. The State objected to Aguilar’s testimony regarding the comparable sales method and the income method. The trial court denied these objections. The State raises each of these objections again on appeal. We begin with the income method. The State argues that Aguilar’s income method was improperly based on advertising revenue. We disagree.
The State correctly argues that, in a condemnation proceeding, “income from a business operated on the property is not recoverable and should not be included in a condemnation award.” Cent. Expressway Sign Assocs., 302 S.W.3d at 871. However, any valuation method is meant “to approximate the amount a willing buyer would pay a willing seller for the property.” Id.
While the income method, as its name suggests, values a property according to the income- that it generates, this method has been approved by the Supreme Court of Texas as a proper valuation method in certain instances. Estate of Sharboneau, 48 S.W.3d at 183; see also State v. Bristol Hotel Asset Co., 293 S.W.3d 170, 172 (Tex.2009) (holding “the income approach is especially appropriate when ... property would be valued on. the open market according to the amount of income it already generates”); Cent. Expressway Sign Assocs., 302 S.W.3d at 871 (noting “[t]he income approach is appropriate when the property would be priced according to the rental income it generates”). The State cannot assert, then, that this is an impermissible method of valuation. We hold that the State has not established that the trial court abused its discretion by allowing Aguilar’s testimony regarding the income method.
The State’s argument for why it has been harmed by the admission of Aguilar’s testimony regarding valuation of the billboards under the income method and under the sales comparison method is that, without both of these valuation methods, there would be legally insufficient evidence in the record to support the jury’s verdict on the value of the billboards. The State raises this same argument again in its third issue: assuming the exclusion of Aguilar’s valuation of the billboards both under the income method as well as under the sales comparison method, there is legally insufficient evidence to support the jury’s verdict on the value of the billboards.
Because we have held that the trial court did not abuse its discretion by allowing Aguilar’s testimony regarding the income method, the State’s argument that the evidence is legally insufficient without both methods necessarily fails. For the reasons provided below, we hold that the evidence is legally sufficient to support the jury’s verdict on the valuation of the billboards based on the income method. Accordingly, we do not need to determine whether the trial court abused its discretion in allowing Aguilar to testify about valuation of the billboards under the sales comparison method. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 253 (Tex.2008) (not reaching sufficiency of the evidence to support other grounds for gross negligence when court had held that one ground was legally sufficient); Hatton v. Grigar, 66 S.W.3d 545, 557 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (not reaching sufficiency of evidence to support finding of easement by prescription when legally and factually sufficient evidence existed of implied public *79dedication of land, which supported trial court’s judgment).
We overrule the State’s second issue.
Sufficiency of the Evidence
In its third issue, the State of Texas argues that the evidence is legally insufficient to support the jury’s determination of the value of the billboards.
A. Standard of Review
In a legal sufficiency, or “no-evidence” review, we determine whether the evidence would enable reasonable and fair-minded people to reach the verdict under review. City of Keller, 168 S.W.3d at 822. In making this determination, we will sustain a legal sufficiency challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the- only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810. We credit favorable evidence if a reasonable fact-finder could, and we disregard contrary evidence unless a reasonable fact-finder could not. We consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight accorded to their testimony. Id. at 819. Although we consider the evidence in the light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.
B. Analysis
As is the case here, absent an objection to the jury charge, the sufficiency of the evidence is reviewed in light of the charge submitted. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex.2001). In two questions, the charge asked the jury to determine the fair market value- of Clear Channel’s interest in each of the two properties — that is, the fair market value of Clear Channel’s billboards — as of a certain date.
Aguilar’s testimony regarding the income method of valuation for each of these billboards is legally sufficient evidence to support the jury’s verdict on these questions. Aguilar testified that, for each billboard, he took “the billboard rent, only the billboard rent, not any other revenue” and deducted “the cost of running that billboard” to determine the “net operating income.” He then applied an “overall capitalization rate,” based on prevailing rates at the time in question, to the net operating income in order to derive the market value of the billboards.
The State’s only complaint on appeal about this testimony is that it is inappropriately based on income, which we have overruled. The State provides no other objection to this testimony or the data upon which Aguilar relied, and we find no flaws in the legal sufficiency of the testimony or the underlying data. Accordingly, we hold that this evidence is legally sufficient to support the jury’s verdict.
Because we have held this evidence is sufficient to support the jury’s verdict, we do not need to determine whether Aguilar’s valuation of the billboards under the comparable sales method is legally sufficient. See Columbia Med. Ctr., 271 S.W.3d at 253 (not reaching sufficiency of the evidence to support other grounds for *80gross negligence when court had held that one ground was legally sufficient); Hatton, 66 S.W.3d at 557 (not reaching sufficiency of evidence to support finding of easement by prescription when legally and factually sufficient evidence existed of implied public dedication of land, which supported trial court’s judgment).
We overrule the State’s third issue.
Conclusion
We affirm the judgment of the trial court.
. See State v. Clear Channel Outdoor, Inc., 274 S.W.3d 162, 166 (Tex.App.-Houston [1st Dist.] 2008, no pet.); State v. Clear Channel Outdoor, Inc., No. 14-07-00369-CV, 2008 WL 2986392, at *5 (Tex.App.-Houston [14th Dist.] July 31, 2008, no pet.).
. In its reply brief, the State of Texas acknowledges this previous holding. It explains that it presented this argument, in part, to preserve it for review by the Supreme Court of Texas. It also invites this Court to overrule or restrict the application of our previous ruling. We decline this invitation.
. In cases decided before September 1, 1997, "writ refused” identifies an opinion as having “equal precedential value with the Texas Supreme Court’s own opinions.” Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 754 n. 52 (Tex.2006) (citing The Greenboolc Texas Rules of Form (Texas Law Review Ass’n ed., 10th ed. 2005)). While the Texas Supreme Court relied on The Green Book for the authority that the effect of this designation arose in 1927, we note that the most recent edition indicates that the effect of this designation arose in 1892. The Greenbook: Texas Rules of Form app. E (Texas Law Review Ass’n ed., 12th ed. 2010).
. Accessed through the City of Houston’s website, Details for Houston Sign Code, http:// documents .publicworks. houstontx. gov/ document-center/doc_details/2498-houston-sign-code.html (last updated September 12, 2011). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283991/ | OPINION
Kem Thompson Frost, Chief Justice
In this appeal we address two issues of first impression. The first relates to the potential federal preemption of a Texas venue statute. The second involves the constitutionality of applying the state venue statute in the context of the federal statute’s collective-action procedure. Acting under section 15.008 of the Texas Civil Practice and Remedies Code, which governs venue in civil cases involving multiple plaintiffs, the trial court dismissed, without prejudice, the claims of thousands of “opt-in plaintiffs” in a collective action filed under the federal Fair Labor Standards Act. We affirm the dismissal of the opt-in plaintiffs’ claims.
I. Factual and Procedural Background
Various Harris County residents who delivered AT & T telephone directories (hereinafter, the “Named Plaintiffs”) asserted claims in the trial court below against appellees Directory Distributing Associates, Inc., AT & T Corporation, and five natural persons (hereinafter, collectively the “Defendants”) alleging various violations of the federal Fair Labor Standards Act (hereinafter, the “Act”). The Named Plaintiffs alleged that Directory Distributing Associates, Inc. engaged in a pattern and practice of classifying individuals as independent contractors, when the individuals actually were employees of Directory Distributing Associates, Inc., to avoid paying the individuals the minimum wage and overtime wages to which they were entitled under the Act. The Named Plaintiffs made allegations seeking to invoke the “collective action” procedure under the Act. See 29 U.S.C. § 216(b) (West, Westlaw through P.L. 113-234).
The trial court conditionally certified a collective action and ordered that notice be sent to all current and former individuals hired by Directory Distributing Associates, Inc. during the period from June 25, 2009, to November 26, 2012, who were classified as independent contractors and hired to deliver telephone directories. This notice allowed these individuals an opportunity to “opt in” to the collective action by filing written consents. Thousands of individuals, from at least thirty-eight states, availed themselves of this opportunity and filed written notices of consent to participate as plaintiffs in the collective action, thus “opting in.” (hereinafter, collectively, the “Opt-in Plaintiffs”).
The Defendants filed a motion to dismiss all Opt-in Plaintiffs who are not Texas residents and who did not deliver telephone directories in Texas (hereinafter, collectively, the “Non-Texas Opt-in Plaintiffs”). There are more than 15,000 Non-Texas Opt-in Plaintiffs. The Defendants asserted that no Texas county is a county *193of proper venue for the claims of any of these plaintiffs and that, under section 15.003 of the Texas Civil Practice and Remedies Code, entitled “Multiple Plaintiffs and Intervening Plaintiffs,” each of the Non-Texas Opt-In Plaintiffs independently must establish proper venue.
The Non-Texas Opt-In Plaintiffs asserted that the collective-action procedure under the Act preempts section 15.003 of the Texas Civil Practice and Remedies Code. The trial court granted the motion to dismiss, and dismissed all of the Non-Texas Opt-In Plaintiffs without prejudice to the refiling of these claims in a court of proper venue that has subject-matter jurisdiction over the claims. The Non-Texas Opt-In Plaintiffs now challenge that ruling in this interlocutory appeal.
II. Issues and Analysis
On appeal, the Non-Texas Opt-In Plaintiffs do not assert that they satisfied the requirements of section 15.003. Instead, they argue that section 15.003 does not apply to this case because this state statute is preempted by the collective-action procedure under the Act or, in the alternative, because applying section 15.003 in the context of this case would violate the Privileges and Immunities Clause of the United States Constitution.
A. Preemption Analysis: Does the collective-action procedure under the Act preempt section 15.003?
The Non-Texas Opt-In Plaintiffs assert that the collective-action procedure under the Act impliedly preempts section 15.003(a). The parties have not cited and research has not revealed any federal or state case addressing this specific preemption issue.
Under the Supremacy Clause of the United States Constitution, the laws of the United States are the supreme law of the land, and a state law that conflicts with federal law is preempted and “without effect.” U.S. Const, art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981). A federal law may expressly preempt state law. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). Preemption also may be implied if the scope of the statute indicates that Congress intended federal law to occupy the field exclusively or if state law actually conflicts with federal law. Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 1487, 131 L.Ed.2d 385 (1995). A state law presents an actual conflict with federal law when “it is ‘impossible for a private party to comply with both state and federal requirements’ or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Myrick, 514 U.S. at 287, 115 S.Ct. at 1487 (quoting, respectively, English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2274-75, 110 L.Ed.2d 65 (1990) and Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)). The Non-Texas Opt-In Plaintiffs do not assert that the Act expressly preempts section 15.003(a) or that Congress intended the Act to exclusively occupy the field.1 We need only decide (1) whether it is impossible to comply with both section 15.003(a) and the collective-action procedure of the Act and (2) whether section 15.003(a) stands as an obstacle to the accomplishment and execution of the full purposes of Congress. See Myrick, 514 U.S. at 287, 115 S.Ct. at 1487.
*194
1. The Texts of the Two Statutes
The starting point for the preemption analysis is the relevant texts of the two statutes.2 Section 216(b) of the Act, which falls under the “Penalties” provision, reads in its entirety as follows:
Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or ■ employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who .violates the provisions of section 215(a)(8) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(8) of this title, including without limitation employment, reinstatement, promotion, and the .payment of wages lost and an additional equal amount as liquidated damages. An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of com- , petent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action, unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be . paid by the defendant, and costs of the action. The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 217 of this title in which (1) restraint is sought of any further delay in the payment of unpaid minimum wages, or the amount of unpaid overtime compensation, as the case may be, owing to such employee under section 206 or section 207 of this title by an employer liable therefor under the provisions of this subsection or (2) legal or equitable relief is sought as a result of alleged violations of section 215(a)(3) of this title.
29 U.S.C. § 216(b) (West, Westlaw through P.L. 113-234) (emphasis added). The first two sentences of section 216(b) establish liabilities for an employer who violates various provisions of the Act. See id. In the third sentence, Congress provides that an action to recover the liability prescribed in either of the previous sentences may be maintained against an employer in any federal or state court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. See id. This action against an employer for and on behalf of other employees similarly situated is what is known as a collective action. See id. But, rather than providing for an opt-out mechanism, section 216(b) states that, in a collective *195action, no employee shall be a party plaintiff unless the employee gives consent in writing to become such a party and this consent is filed in the court in which such action is brought. See id. The statute also provides that, in addition to any judgment awarded to the plaintiff in such an action, the court shall award the plaintiff a reasonable attorney’s fee and costs of the action. See id. Section 216(b) also provides that the right provided by that subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor under certain specified circumstances. See id. Section 216(b) does not expressly state any venue provision for a collective action or an individual claim based on alleged violations of the Act. The statute does not expressly state that an employee/plaintiff in an action to recover liability for a violation of the Act must comply with any particular venue statute, nor does the statute expressly state that such a plaintiff need not comply with any venue statute. See id. Section 216(b) does not state that, if the named plaintiffs in a collective action satisfy the applicable venue statute, then the opt-in plaintiffs need not independently establish venue. See id.
Section 15.003(a), part of the venue chapter of the Texas Civil Practice and Remedies Code, provides in its entirety as follows:
(a) In a suit in which there is more than one plaintiff, whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise, each plaintiff must, independently of every other plaintiff, establish proper venue. If a plaintiff cannot independently establish proper venue, that plaintiffs part of the suit, including all of that plaintiffs claims and causes of action, must be transferred to a county of proper venue or dismissed, as is appropriate, unless that plaintiff, independently of every other plaintiff, establishes that:
(1) joinder of that plaintiff or intervention in the suit by that plaintiff is proper under the Texas Rules of Civil Procedure;
(2) maintaining venue as to that plaintiff in the county of suit does not unfairly prejudice another party to the suit;
(3) there is an essential need to have that plaintiffs claim tried in .the county in which the suit is pending; and
(4) the county in which the suit is pending is a fair and convenient venue for that plaintiff and all persons against whom the suit is brought.
Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a) (West, Westlaw through 2013 3d C.S.). Under section 15.003(a), in a suit in which there is more than one plaintiff, whether the plaintiffs are included by join-der, by intervention, or otherwise, each plaintiff, independently of every other plaintiff, must establish proper venue. See id. If a plaintiff cannot independently establish proper venue, that plaintiffs claims must be transferred to a Texas county of proper venue or dismissed, as is appropriate, unless that plaintiff, independently of every other plaintiff, establishes each of the four propositions listed in section 15.003(a). See id. The statute applies generally to all cases in Texas courts in which there is moré than one plaintiff; it does not apply only to a collective action or only to claims for violations of the Act. See id.
*196Section 15.003(a) establishes a neutral state rule for the administration of Texas courts. See id. The Defendants moved for dismissal of the Non-Texas Opt-in Plaintiffs’ claims, asserting that they had not and could not independently establish proper venue in Harris County or in any other Texas county. See id. None of the Non-Texas OpUn Plaintiffs established each of the four propositions listed in section 15.003(a). See id,.
Unlike class actions, collective actions require putative class members to opt into the class. See 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought”); O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 583 (6th Cir.2009). Though an unnamed class member in a class action is not a plaintiff, each opt-in plaintiff in a collective action has party status. See 29 U.S.C. § 216(b); O’Brien, 575 F.3d at 583; Muhammad v. GBJ, Inc., 2011 WL 863785, at *1-2 (S.D.Tex. Mar. 9, 2011). Because the Non-Texas Opt-in Plaintiffs are plaintiffs, section 15.003(a) requires each of them to independently establish proper venue. On appeal, the Non-Texas Opt-in. Plaintiffs do not assert that they satisfied the requirements of section 15.003(a). Nor do they assert that the trial court erred in dismissing their claims if section 15.003(a) is not preempted by the collective-action procedure and if that statute does not violate the Privileges and Immunities Clause.
2. Whether the Collective-Action Procedure Provides that Opt-in Plaintiffs Need Not Independently Establish Venue
The Non-Texas Opt-in Plaintiffs assert that, under the Act’s collective-action procedure, venue is proper if the named plaintiffs satisfy the applicable venue statute and that the opt-in plaintiffs need not independently establish proper venue. They argue that this part of the collective-action procedure conflicts with section 15.003(a)’s requirement that each plaintiff independently of every other plaintiff, establish proper venue. Nowhere in the text of section 216(b) is there a statement that venue is proper over the entire collective action if the named plaintiffs establish proper venue. See 29 U.S.C. § 216(b). Congress did not say in section 216(b) that opt-in plaintiffs need not satisfy any venue requirement. See id. The Non-Texas Opb-In Plaintiffs assert that, under section 216(b), the only requirements for an employee to opt into a collective action are that the employee be similarly situated to the named plaintiffs and that the employee file a written consent to become a party in the court in which the collective action is pending. Though these are requirements for an employee to opt-in, Congress did not state in section 216(b) that these are the only requirements or that, though employees who opt-in are plaintiffs, they need not satisfy the state or federal venue requirements that apply to plaintiffs.
The Non-Texas Opt-in Plaintiffs assert that federal courts uniformly have held that venue is proper in a collective action if it is proper for the named plaintiffs, without any independent venue requirement for the opt-in plaintiffs. The Non-Texas Opt-in Plaintiffs cite three cases in support of this proposition: Douglas v. Chariots for Hire, 918 F.Supp.2d 24, 27-28 (D.D.C.2013); Marcus v. Am. Contract Bridge League, 562 F.Supp.2d 360, 362-65 (D.Conn.2008); Brown v. Money Tree Mortg., Inc., 222 F.R.D. 676, 682 (D.Kan.2004). For reasons explained below, none of these cases is on point.
In Douglas v. Chariots for Hire, the district court had conditionally certified a *197collective action less than three months before the district court ruled on the defendants’ venue challenges. See 918 F.Supp.2d 24, 27 (D.D.C.2013). In its opinion denying the defendants’ venue motions, the district court did not mention whether any opt-in plaintiffs had opted-in yet and so become plaintiffs by filing written consents. See id. at 27-35. The district court did not rule that any plaintiff could file suit in any federal or state court of competent jurisdiction without regard to any venue requirements; rather, the district court applied the general federal venue statute. See id.; Bredberg v. Long, 778 F.2d 1285, 1287 (8th Cir.1985) (stating that there is no special venue provision for claims under the Act and applying the general federal venue statute to claims under the Act). The Douglas court concluded that venue was proper because the suit was in a judicial district in which a substantial part of the events or omissions giving rise to the claims occurred. See id. at 27-31. In reaching this conclusion, the district court discussed venue facts related to both the named plaintiff and to the opt-in plaintiffs in general. See id. The Douglas court did not address whether any opt-in plaintiff would need to independently establish proper venue. See id. at 27-35.
In Marcus v. American Contract Bridge League, the district court mentions that the two named plaintiffs invoked the collective-action procedure in their complaint, but the court does not mention whether the court already had determined that a collective action should be conditionally certified or, if so, whether any opt-in plaintiffs had opted-in yet by filing written consents. See 562 F.Supp.2d 360, 361-66 (D.Conn.2008). Thus, at the time of the court’s opinion, there may not have been any opt-in plaintiffs in the case. See id. The district court did not rule that any plaintiff could file suit in any federal or state court of competent jurisdiction without regard to any venue requirements; rather, the district court applied the general federal venue statute. See id.; Bredberg, 778 F.2d at 1287. The Marcus court did not address whether any opt-in plaintiff would need to independently establish proper venue. See Marcus, 562 F.Supp.2d at 361-66.
In Broivn v. Money Tree Mortgage, Inc., the court conditionally certifies a collective action, so, at the time of the opinion, it is likely that no plaintiffs had opted-in, and the court does not mention that there were any opt-in plaintiffs. See 222 F.R.D. 676, 678-84 (D.Kan.2004). The district court did not rule that any plaintiff could-file suit in any federal or state court of competent jurisdiction without regard to any venue requirements; rather, the district court applied the general federal venue statute. See id. at 682; Bred,berg, 778 F.2d at 1287. One of the defendant’s arguments against conditional certification of a collective action was that venue was not proper in Kansas because the vast majority of the defendant’s employees were in Georgia. See Broum, 222 F.R.D. at 682. The Broim court concluded that venue was proper in Kansas under the general venue statute because a substantial part of the events giving rise to the claims occurred in Kansas. See id. The Broum court did not state whether it was making this venue determination solely as to the named plaintiff or as to the named plaintiff and the potential opt-in plaintiffs. See id. In any event, the defendants’ deadline for complaining- about improper venue had not yet passed as to any plaintiffs who, in the future, might opt in. See id. at 678-84. The Broum court did not address whether any opt-in plaintiff would need to independently establish proper venue. See id.
The parties have not cited, and research has not revealed, any case in which a court *198concludes that, under the Act’s collective-action procedure, venue is proper as to all opt-in plaintiffs if the named plaintiffs satisfy the applicable venue statute, or that the opt-in plaintiffs need not independently establish proper venue. Research has revealed two published decisions in which a federal district court notes that the opt-in plaintiffs in a collective action are plaintiffs, concludes that these opt-in plaintiffs must comply with the applicable venue statute under the Little Tucker Act, and transfers the claims of all plaintiffs (including all opt-in plaintiffs) who do not satisfy the venue statute to a court in which venue is proper. See Saraco v. Hallett, 831 F.Supp. 1154, 1158-65 & n. 7 (E.D.Pa.1993), aff'd 61 F.3d 863 (Fed.Cir.1995); Brooks v. Weinberger, 637 F.Supp. 22, 23-25 (D.D.C.1986).
The Act does not provide that under its collective-action procedure, venue is proper as to all opt-in plaintiffs if the named plaintiffs satisfy the applicable venue statute. The Act does not provide that the opt-in plaintiffs are exempt from compliance with any venue statute that otherwise would apply to them. And, the Act does not provide that the opt-in plaintiffs are relieved from any state-imposed venue requirement that plaintiffs independently establish proper venue.3 See 29 U.S.C. § -216(b); Saraco, 831 F.Supp. at 1158-65 & n. 7; Brooks, 637 F.Supp. at 23-25.
3. The Effect of the Language Stating that an Action may be Maintained in Ang Federal or State Court of Competent Jurisdiction
. The Non-Texas Opt-in Plaintiffs also rely upon .the statement in section 216(b) that an action may be maintained in any federal or state court of competent jurisdiction. See 29 U.S.C. § 216(b). But, this language does not expressly state that no venue statute may be applied to a collective action or that a collective action may be maintained in any state or federal court that has jurisdiction. See id. Various courts implicitly have rejected this proposition by holding that actions under section 216(b) must be filed in a district of proper venue under the applicable federal venue statute.4 See Bredberg, 778 F.2d at 1287; *199Douglas, 918 F.Supp.2d at 28; Marcus, 562 F.Supp.2d at 363; Brown, 222 F.R.D. at 682; Saraco, 831 F.Supp. at 1162-64; Brooks, 637 F.Supp. at 24-25.
In addition, in Munn v. Mohler, a plaintiff in a Texas district court asserted that language in section 216(b) allowing an action for violations of the Act to be maintained in any court of competent jurisdiction preempted the otherwise applicable Texas venue statute under which venue was proper only in the county of the defendants’ residence. See 251 S.W.2d 801, 802-03 (Tex.Civ.App.-Waco 1952, no writ). The Munn court rejected this preemption argument and held that venue still was mandatory in the county of the defendants’ residence. See id. The Fourteenth Court of Appeals found the Munn court’s reasoning persuasive and relied upon it in concluding that language in a Texas statute allowing the filing of another state’s judgment in the office of the clerk of “any court of competent jurisdiction of this state” did not speak to venue or make the proceeding not subject to the general Texas venue statute. See Cantu v. Howard S. Grossman, P.A., 251 S.W.3d 731, 740-41 & n. 7 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). Thus, this court’s reasoning in Cantu indicates that the language in section 216(b) should not be construed to address venue or to take any opt-in plaintiffs outside the scope of an otherwise applicable venue statute. See Cantu, 251 S.W.3d at 740-41 & n. 7; Munn, 251 S.W.2d at 802-03. We conclude that, under its unambiguous language, section 216(b) does not preclude application of any venue statute to opt-in plaintiffs in a collective action. See 29 U.S.C. § 216(b); Bredberg, 778 F.2d at 1287; Douglas, 918 F.Supp.2d at 28; Marcus, 562 F.Supp.2d at 363; Brown, 222 F.R.D. at 682; Saraco, 831 F.Supp. at 1162-64; Brooks, 637 F.Supp. at 24-25; Cantu, 251 S.W.3d at 740-41 & n. 7; Munn, 251 S.W.2d at 802-03.
4. The Full Purposes and Objectives of Congress
A state law presents an actual conflict with federal law when it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Myrick, 514 U.S. at 287, 115 S.Ct. at 1487 (internal, quotations omitted). The Non-Texas Opt-in Plaintiffs suggest that, even looking beyond the text of section 216(b), the full purposes and objectives of Congress included a purpose or objective that opt-in plaintiffs in collective actions not be hindered by any federal or state venue statute that otherwise would apply to them. Presuming for the sáke of argument that this court may base its preemption analysis on purposes or objectives of Congress that are not reflected in the unambiguous language of the Act, the cases that the Non-Texas Opt-in Plaintiffs cite do not support this proposition, and our research has not revealed any eases that stand for this proposition. See Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169-73, 110 S.Ct. 482, 486-88, 107 L.Ed.2d 480 (1989); Knepper v. Rite Aid Corp., 675 F.3d 249, 253-57 (3d Cir.2012).
*200In Hoffmann-La Roche, Inc., the Supreme Court of the United States held that district courts have discretion, in appropriate cases, to implement section 216(b); as incorporated by the Age Discrimination in Employment Act of 1967, by facilitating notice to potential plaintiffs. See Hoffmann-La Roche, Inc., 493 U.S. at 169-73, 110 S.Ct. at 486-88. The high court made several general statements about the benefits of collective actions and the reason why in 1947 Congress added the written-consent requirement for opt-in plaintiffs. See id. The high court also stated that “[t]he broad remedial goal of the statute should be enforced to the full extent of its terms.” See id., 493 U.S. at 173, 110 S.Ct. at 488. Nonetheless, as discussed above, the terms of statute do not provide that opt-in plaintiffs need not comply with any venue statute that otherwise would apply to them, or that the opt-in plaintiffs may not be required to independently establish proper venue. In addition, the Hoffmann-La Roche court did not address any purposes or objectives that Congress had in this regard.5 See Hoffmann-La Roche, Inc., 493 U.S. at 169-73, 110 S.Ct. at 486-88.
5. The Need for the Utmost Caution Before Deciding that Section 216(b) Requires Texas Courts to Entertain the Non-Texas Opt-in Plaintiffs’ Claims
The normal presumption against preemption is buttressed by the fact that the trial court’s dismissal without prejudice of the Non-Texas Opt-in Plaintiffs’ claims rested squarely on a neutral state statute regarding the administration of a state’s courts. See Johnson v. Fankell, 520 U.S. 911, 918, 117 S.Ct. 1800, 1805, 138 L.Ed.2d 108 (1997); MCI Sales & Service, Inc. v. Hinton, 329 S.W.3d 475, 487-89 (Tex.2010) (discussing the general presumption against pre-emption)..
When a state court refuses to entertain claims based on a neutral state rule regarding the administration of the courts, courts must act with utmost caution before deciding that state courts are obligated by federal law to entertain these claims. See Fankell, 520 U.S. at 919, 117 S.Ct. at 1805; Howlett v. Rose, 496 U.S. 356, 372, 110 S.Ct. 2430, 2440-41, 110 L.Ed.2d 332 (1990). The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the state provide a court in which the federal claims may be presented. See Fankell, 520 U.S. at 919, 117 S.Ct. at 1805; Howlett, 496 U.S. at 372, 110 S.Ct. at 2441. The general rule, based on the belief in the importance of state control of state judicial procedure, is that “federal law takes the state courts as it finds them.” Fankell, 520 U.S. at 919, 117 S.Ct. at 1805 (internal quotations omitted); Howlett, 496 U.S. at 372, 110 S.Ct. at 2441 (internal quotations omitted). Accordingly, the states have great latitude to establish the structure and jurisdiction of them own courts. See Fankell, 520 U.S. at 919, 117 S.Ct. at 1805; Hotvlett, 496 U.S. at 372,110 S.Ct. at 2441.
When preemption of state law is at issue, we respect the principles that are fundamental to our system of federalism. Under this regime, the state courts share responsibility for the application and enforcement of federal law. See Fankell, 520 U.S. at 922, 117 S.Ct, at 1807; Howlett, *201496 U.S. at 372-73, 110 S.Ct. at 2441. This respect is at its apex when we confront a claim such as the one the Non-Texas Opt-in Plaintiffs make today — that federal law requires Texas to undertake something as fundamental as changing the operation of its courts. See Fankell, 520 U.S. at 922, 117 S.Ct. at 1807. These principles do not mean that a federal statute can never preempt á state statute in matters of the administration of the state’s courts. See Fankell, 520 U.S. at 919, 117 S.Ct. at 1805; Howlett, 496 U.S. at 372-81, 110 S.Ct. at 2440-45. Still, the Supreme Court of the United States has indicated that we must act with utmost caution before deciding that section 216(b) preempts section 15.003(a). See Fankell, 520 U.S. at 919, 117 S.Ct. at 1805; Howlett, 496 U.S. at 372, 110 S.Ct. at 2440. Furthermore, though the Non-Texas Opt-in Plaintiffs assert that the procedural rules of section 15.003(a) cannot defeat or unnecessarily burden their fedei'al right to opt into a collective action without any requirement that they independently establish venue, we have concluded that section 216(b) does not provide any such right.6 Therefore, there is no conflict between section 15.003(a) and section 216(b) in this regard.7
6. Conclusion
Section 15.003 does not preclude all employees from opting into a collective action filed in a Texas court. See Tex. Civ. Prac. & Rem.Code Ann. § 15.003(a). Under section 15.003(a), venue is proper over each opt-in plaintiffs claims if the opt-in plaintiff can independently establish proper venue in the forum county, for example based on the defendant’s residence when the claim accrued, if the defendant is a natural person, or based on the defendant’s principal office in Texas, if the defendant is not a natural person. See id. §§ 15.002, 15.003(a) (West, Westlaw through 2013 3d C.S.). If there are claims against more than one defendant, a plaintiff may establish proper venue as to all claims against the defendants arising out of the same transaction, occurrence, or series of transactions or occurrences simply by establishing proper venue as to one of the defendants. See id. §§ 15.005 (West, Westlaw through 2013 3d C.S.). If a corporate employer has a principal office in Texas, the application of section 15.003(a) does not prevent the maintenance of a nationwide collective action against the employer in the county in which this office is located.8 See id. *202§§ 15.002,15.003(a). If employees seeking to opt into a collective action cannot independently establish proper venue, they still may litigate their claims in the forum court if they independently establish the four elements listed in section 15.008(a). See id. § 15.003(a). For employees who cannot do so, trial courts may transfer the claims to a county of proper venue in Texas, or dismiss the claims without prejudice to refiling them in a court of proper venue.9 See id. § 15.003(a).
We conclude that it is not impossi-' ble to comply with both section 15.003(a) and the collective-action procedure of the Act and that section 15.003(a) does not stand as an obstacle to the accomplishment and execution of the full purposes of Congress. See Fankell, 520 U.S. at 917-23, 117 S.Ct. at 1804-07; Myrick, 514 U.S. at 287, 115 S.Ct. at 1487. Accordingly, the trial court did not err in implicitly rejecting the Non-Texas Opt-in Plaintiffs’ assertion that the collective-action procedure of the Act preempts section 15.003(a) so as to preclude dismissal of their claims.10
B. Constitutional Analysis: Should this court reverse the trial court’s order because section 15.003 allegedly violates the Privileges and Immunities Clause?
On appeal, the Non-Texas Op1>-In Plaintiffs argue that, even if section 216(b) does not preempt section 15.003(a), applying the state venue statute in this context would violate the Privileges and Immunities Clause of the United States Constitution by denying access to Texas courts to employees who do not reside in Texas, while permitting access to employees who reside in Texas. See U.S. Const. Art. IV, § 2, cl. 1 (stating that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”). Thus, the Non-Texas *203Opt-In Plaintiffs are asserting that section 15.003(a) is unconstitutional as applied.11
The Defendants assert that the Non-Texas Opt-In Plaintiffs failed to preserve error in the trial court. The alleged constitutional violation that the Non-Texas Opt-In Plaintiffs assert does not fall within the narrow scope of the fundamental error doctrine recognized by the Supreme Court of Texas. See In re B.L.D., 113 S.W.3d 340, 350-52 (Tex.2003). The Non-Texas Opt-In Plaintiffs were required to preserve error in the trial court to be heard on this complaint on appeal. They did not voice this complaint in their response in opposition to the Defendants’ motion to dismiss or at the hearing on that motion. Nonetheless, the Non-Texas Opt-In Plaintiffs assert that they preserved error in their sur-reply to the motion to dismiss, which the trial court considered before granting the motion to dismiss. In the sur-reply they presented further briefing on their preemption argument. They discussed a case that contained a statement that “[t]o deny citizens from other states, suitors under F.E.L.A., access to its courts would, if it permitted access to its own citizens, violate the Privileges and Immunities Clause.” Miles v. Illinois Cent. R. Co., 315 U.S. 698, 704, 62 S.Ct. 827, 830, 86 L.Ed.2d 1129 (1942). They asserted there was a parallel between Miles and this case and argued that the Defendants claim that section 15.003(a) can constitutionally bar residents of other states from Texas courts, even though Congress has not done so. The Non-Texas Opt-In Plaintiffs stated that to sustain the Defendants’ argument would offend not only the Supremacy Clause, but also the Privileges and Immunities Clause. We presume for the sake of argument that they preserved error in the trial court regarding their argument that section 15.003(a), as applied in this case, violates the Privileges and Immunities Clause.
We presume that section 15.003(a) is constitutional. See Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 725 (Tex.1995). As the parties challenging the constitutionality of a statute as applied, the Non-Texas Opt-In Plaintiffs had the burden of proving all facts necessary to show that the statute is unconstitutional as applied to them. See id.; Teel v. Shifflett, 309 S.W.3d 597, 601 (Tex.App.-Houston [14th Dist.] 2010, pet. denied). If the Non-Texas Opt-In Plaintiffs could establish the four elements listed in section 15.003(a), then they would be able to maintain their claims in the trial court even if they could not independently establish proper venue. See Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a). To show that section 15.003(a) violates the Privileges and Immunities Clause as applied, by preventing them from opting into this collective action, they had the burden of proving that section 15.003(a) required the transfer or dismissal of their claims. See id.; Edgewood Indep. Sch. Dist., 917 S.W.2d at 725; Teel, 309 S.W.3d at 601. This means, among other things, that they would need to prove that they could not establish the four items listed in section 15.003(a). See Tex. Civ. Prac. & Rem.Code Ann. § 15.003(a); Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 602-03 (Tex.1999); Edgewood Indep. Sch. Dist., 917 S.W.2d at 725; Teel, 309 S.W.3d at 601.
In their response to the Defendants’ motion, the Non-Texas Opt-In Plaintiffs claimed, in the alternative, that they could satisfy each of these four elements. But, they did not submit any evidence at all in *204response to the Defendants’ motion to dismiss. After reviewing the record, we conclude that the Non-Texas Opt-In Plaintiffs did not prove that they could not establish the four elements listed in section 15.003(a). Therefore, they did not prove all facts necessary to show that, as applied to them, section 15.003(a) violates the Privileges and Immunities Clause. See Teel, 309 S.W.3d at 601 (concluding appellant did not prove all facts necessary to show that, as applied to her, the statutes in question unconstitutionally deprived her of the right to a jury trial); Tex-Air Helicopters, Inc. v. Galveston County Appraisal Review Bd., 76 S.W.3d 575, 584-88 (Tex.App.-Houson [14th Dist.] 2002) (holding party challenging constitutionality of statute did not prove all facts necessary to show that the statute was unconstitutional as applied). Accordingly, presuming that the Non-Texas Opt-In Plaintiffs preserved error in the trial court on a complaint that, as applied to them, section 15.003(a) violates the Privileges and Immunities Clause, the trial court did not err in impliedly rejecting that complaint.12
III. Conclusion
It is not impossible to comply with both section 15.003(a) and the collective-action procedure of the Act. The Texas venue statute does not stand as an obstacle to the accomplishment and execution of the full purposes of Congress. The trial court did not err in implicitly rejecting the Non-Texas Opt-In Plaintiffs’ assertion that the collective-action procedure of the Act preempts section 15.003(a) so as to preclude dismissal of their claims.13 Presuming that the Non-Texas Opt-In Plaintiffs preserved error in the trial court on a complaint that, as applied to them, section 15.003(a) violates the Privileges and Immunities Clause, the trial court did not err in impliedly rejecting this constitutional complaint because they did not prove all facts necessary to show such a violation.
We overrule the Non-Texas Opb-In Plaintiffs’ sole appellate issue and affirm the trial court’s order granting the Defendants’ motion to dismiss under section 15.003(a).
. Even if the Non-Texas Opt-In Plaintiffs had advanced these arguments, we would con-elude that the arguments lack merit.
. In construing a statute, our objective is to determine and give effect to the Legislature's intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision’s words. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the Legislature chose. See id.
. The Non-Texas Opt-in Plaintiffs have submitted a post-submission letter brief in which they attach various filings from a nationwide collective action from the United States District Court for the Southern District of Texas, Houston Division. We have reviewed these materials. None of these filings or orders address the issue of whether, under the Act’s collective-action procedure, venue is proper as .to all opt-in plaintiffs if the named plaintiffs satisfy the applicable venue statute or whether the opt-in plaintiffs need not independently establish proper venue.
. The Non-Texas Opt-in Plaintiffs appear to suggest that their statutory interpretation of section 216(b) must be correct because federal courts áre adjudicating nationwide collective actions. Even if that is so, it would not mandate the conclusion that under the collective-action procedure, opt-in plaintiffs need not independently satisfy any venue requirements. The cases, could involve waiver of venue objections by failure to timely raise them. See Fed.R.Civ.P. 12(h). Or, they could be the result of the liberal venue provisions that apply in federal court. See 28 U.S.C. § 1391(b) (stating that a "civil action may be brought in ... a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located”); 28 U.S.C. § 1391(c)(2) (stating that "an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.... ”). To the extent that federal venue statutes allow for proper venue in a single court as to a nationwide collective action, that result flows from the federal venue statute, which does not apply in state court. See Johnson v. Fan-kell, 520 U.S. 911, 921, 117 S.Ct. 1800, 1806, 138 L.Ed.2d 108 (1997) (noting that the right *199to immediate appellate review that allegedly was the basis for preemption of state law had its source not in title 42, section 1983 of the United States Code, but in title 28, section 1291 of the United States Code, which does not apply in state court). In addition, though research has revealed no case in which a court reaches this conclusion, courts or parties might also reach the conclusion that opt-in plaintiffs do not fall within the scope of any applicable federal venue statute. Even if such a conclusion were correct, it would be based on a construction of the potentially applicable federal venue statutes, which do not apply in state court; it would not be based on section . 216(b).
. Likewise, though the court in Knepper v. Rite Aid Corp. discussed the enactment of the Act in 1938 and the 1947 amendments to the Act, it did not address any alleged purposes or objectives that Congress had as to whether opt-in plaintiffs in a collective action need not comply with any venue statute that otherwise would apply to them. See 675 F.3d 249, 253-57 (3d Cir.2012).
. Likewise, the Non-Texas Opt-in Plaintiffs assert that section 15.003(a) interferes with the methods by which section 216(b) was designed to reach its goal, but the ability to opt into a collective action without complying with any venue statute that otherwise would apply, or without having to independently establish venue is not a method or means contained in section 216(b).
. The Non-Texas Opt-in Plaintiffs rely on the Supreme Court of the United States’s decision in Felder v. Casey. See 487 U.S. 131, 138-41, 108 S.Ct. 2302, 2306-08, 101 L.Ed.2d 123 (1988). The Felder case is not on point because the Wisconsin notice-of-claim statute at issue in the case, if followed, would have resulted in immunity from the liability imposed by Congress in title 42, section 1983 of the United States Code. See id., 487 U.S. at 139-44, 108 S.Ct. at 2307-10. Section 15.003(a) does not immunize from liability any conduct that is actionable under the section 216(b). See Tex. Civ. Prac. & Rem.Code Ann. § 15.003(a). A transfer or dismissal under section 15.003(a) does not determine the outcome on the merits of any federal claim under section 216(b). See id. Therefore, the effect of section 15.003(a) is materially different from the effect of the Wisconsin statute in Felder. See Fankell, 520 U.S. at 920, 117 S.Ct. at 1805-06 (distinguishing Felder on a similar basis).
.The Non-Texas Opt-in Plaintiffs do not argue on appeal that venue was proper as to any of their claims in Harris County if section 15.003(a) is not preempted by the collective-action procedure or if that statute does not violate the Privileges and Immunities Clause.
. The Non-Texas Opt-in Plaintiffs do not argue on appeal that venue was proper as to any of their claims in any Texas county or that the trial court erred in dismissing their claims without prejudice to refiling these claims in a court of proper venue and subject-matter jurisdiction, if section 15.003(a) is not preempted by the collective-action procedure and if that statute does not violate the Privileges and Immunities Clause.
. The Non-Texas Opt-in Plaintiffs state that the Defendants acknowledged in their motion to dismiss that the collective-action procedure authorizes them to bring to Harris County cases that otherwise could not be brought there. But, in this part of the motion, the Defendants said that the Non-Texas Opt-in Plaintiffs were attempting to bring claims in Harris County that could not be brought there; the Defendants did not say that the collective-action procedures authorized this action. The Non-Texas Opt-in Plaintiffs also assert that the Defendants do not deny that the collective-action statute conflicts with section 15.003(a) and that section '216(b) provides that the opt-in plaintiffs need not independently establish proper venue. An appellee’s failure to respond or to deny an appellant’s legal argument does not operate as an admission, nor does it establish the validity of the argument. The trial court granted the Defendants' motion to dismiss under section 15.003(a). On appeal, we conclude the trial court did not err in dismissing without prejudice under section 15.003(a) the Non-Texas Opt-in Plaintiffs’ claims. The Defendants assert that we should affirm the trial court’s order. They argue that section 216(b) does not preempt section 15.003(a) and that the Non-Texas Opt-in Plaintiffs did not preserve error in the trial court as to the alleged violation of the Privileges and Immunities Clause. In any event, even if the Defendants had conceded on appeal that venue is proper as to all opt-in plaintiffs if the named plaintiffs satisfy the applicable venue statute or that section 216(b) provides that the opt-in plaintiffs need not independently establish proper venue, this concession would not be binding on this court, and we still would have to determine independently whether this concession is correct. See Flowers v. Flowers, 407 S.W.3d 452, 457, n. 2 (Tex.App.Houston [14th Dist.] 2013, no pet.).
. The Non-Texas Opt-In Plaintiffs are not asserting that section 15.003(a) is unconstitutional on its face. Even if they had made this argument, it would lack merit.
. Even if the Non-Texas Opt-In Plaintiff had shown that they could not establish the four items listed in section 15.003(a), we still would conclude that, as applied to them, section 15.003(a) does not violate the Privileges and Immunities Clause.
. We need not and do not address the Defendants' argument that the Non-Texas Opt-In Plaintiffs needed to present evidence in the trial court regarding the four items listed in section 15.003(a) for the trial court to have any opportunity to conclude that section 216(b) preempts section 15.003(a). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283992/ | OPINION
YVONNE T. RODRIGUEZ, Justice
Appellants, Telesis/Parkwood Retirement I, Ltd, Telesis/Parkwood Retirement, Inc., Telesis Management Corporation, Party doing business as Parkwood Retirement Community (Parkwood), and Party doing business as The Telesis Company (collectively, “Telesis” or “Parkwood”), appeal a final judgment upon a jury’s verdict finding Telesis’ gross negligence harmed Appellee, Edna Anderson, and awarding Edna compensatory and exemplary damages.1 We affirm the trial court’s judgment.
PROCEDURAL BACKGROUND
Edna filed suit against Telesis alleging that on July 5, 2008, when she was 95 years’ old, she collapsed in the shower area of her apartment at Parkwood Retirement Community, which is an independent-retirement community owned, controlled, and managed by Telesis. In her pleadings, Edna alleged that she was unable to get up and repeatedly pulled the cord on her apartment’s emergency call system. Because no one from Parkwood responded to her calls and no one inquired about Edna’s whereabouts or condition when she failed to appear for her daily mid-day meal at Parkwood on July 6, 2008, Edna remained on the floor of her apartment, naked, without food or water, and eventually in her own waste. Edna alleged that on the evening of July 6, 2008, she pulled a telephone from a desk, striking and injuring her head, and used the telephone to seek help from her family. Edna was hospitalized with injuries and *222diagnosed with rhabdomyolysis, a condition alleged to have resulted from these events.
In her suit against Telesis, Edna presented theories of negligence and premises liability, gross negligence and malice, misrepresentation, breaches of warranty, and product liability. Edna alleged injury and sought compensatory and punitive damages, in addition to other relief. The case proceeded to trial, and before the case was submitted to the jury, the trial court granted Telesis’ motion for directed verdict on Edna’s premises liability, negligent misrepresentation, and product liability causes of action, and denied the motion on her claims of negligence, gross negligence and malice, and breaches of warranty. The trial court charged the jury on Edna’s theories of negligence and gross negligence. The jury found Telesis’ negligence proximately caused Edna’s injuries • and awarded her compensatory damages totaling $636,517.03. The jury also found by clear and convincing evidence that Edna’s harm resulted from Telesis’ gross negligence, and awarded Edna $1,680,000 in exemplary damages. The trial court entered judgment on the jury’s findings in favor of Edna and against the Telesis defendants, jointly and severally, and awarded Edna $636,517.03 in compensatory damages but reduced the exemplary damage award to $587,217.24.
DISCUSSION
Telesis raises eighteen issues challenging the legal and factual sufficiency of the evidence supporting the jury’s findings related to negligence and gross negligence. In addressing its issues, we employ these standards of review as well as those set out hereafter.
Standards of Review
Whereas we provide a more deferential review of factual determinations, we review legal determinations de novo. Reliance Nat. Indent. Co. v. Advance'd Temporaries, Inc., 227 S.W.3d 46, 50 (Tex.2007). When addressing a challenge to the legal sufficiency of the evidence to support the jury’s findings, we review the entire record, credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex.2005); Henson v. Reddin, 358 S.W.3d 428, 434 (Tex.App.-Fort Worth 2012, no pet.). We sustain a legal sufficiency challenge when, among other things, the offered evidence to establish a vital fact does not exceed a scintilla. Kroger v. Texas Ltd. Partnership v. Suberu, 216 S.W.3d 788, 793 (Tex.2006), citing City of Keller, 168 S.W.3d at 810. “When the evidence offered to prove a vital fact is so weak as to do no more-than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex.2010), quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). If more 'than a scintilla of evidence exists to support the jury’s findings, the evidence is legally sufficient. Anything more than a scintilla of evidence is legally sufficient to support the jury’s finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). Evidence that allows only one inference may not be disregarded by jurors or a reviewing court. City of Keller, 168 S.W.3d at 822.
When reviewing a challenge to the factual sufficiency of the evidence to support *223the jury’s findings, we consider all the evidence and set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We must examine both the evidence supporting and that contrary to the judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001).
Under either type of challenge, the jury is the sole judge of the weight and credibility of the evidence, and is entitled to resolve any conflicts in the evidence and to choose which testimony to believe. City of Keller, 168 S.W.3d at 819. We therefore assume that jurors decided questions of credibility or conflicting evidence in favor of the verdict if they reasonably could do so. Id. at 819-20. We do not substitute our judgment for that of the jurors if the evidence falls within this zone of reasonable disagreement. Id. at 822.
We review an assertion that the trial court erred in submitting or refusing to submit a particular instruction to the jury under an abuse of discretion standard of review. Thota v. Young, 366 S.W.3d 678, 687 (Tex.2012), citing In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). We will not reverse a judgment for a charge error unless the error was harmful because it probably caused the rendition of an improper judgment or probably prevented the petitioner from properly presenting the case to the appellate courts. Tex. R.App. P. 44.1(a); Thota, 366 S.W.3d at 687.
Elements of Negligence
A negligence action requires “a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach.” Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.2009) (citations omitted). “Liability is grounded in the public policy behind the law of negligence which dictates every person is responsible for injuries which are the reasonably foreseeable consequence of his act or omission.” El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.1987). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex.2005); see also Nabors Drilling, U.S.A., Inc., 288 S.W.3d at 404 (citations omitted); Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289-90 (Tex.1996)(whether a duty exists is a question of law for the court to decide from the particular facts of the case), citing Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). In deciding whether to impose a duty, the court must weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Greater Houston Transp. Co., 801 S.W.2d at 525. Courts have also emphasized other factors, including whether one party had superior knowledge of the risk or a right to control the actor who caused the harm. See Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993).
I. CAUSATION
To establish proximate causation in a negligence claim, a party must prove both “cause-in-fact” and foreseeability. See Western Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). These elements of proximate causation “cannot be established by mere conjecture, guess, or speculation.” Id., citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). The test for cause in fact is whether the act or omission was a *224substantial factor in causing the injury without which the harm would not have occurred. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 549 (Tex.1985) (citation omitted). If the defendant’s negligence merely furnished a condition that made the injuries possible, there can be no cause in fact. See Urena, 162 S.W.3d at 551; IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.2004). Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. See Doe, 907 S.W.2d at 478. The danger of injury is foreseeable if its “general character ... might reasonably have been anticipated.” ' Id.
Sufficient of the Evidence
The jury found that Parkwood’s negligence proximately caused Edna’s injury. Telesis contends Edna did not meet the cause-in-fact requirement of negligence and asserts that, in one instance, she also failed to establish foreseeability. In its charge, the court instructed:
“Proximate cause” when used with respect to the conduct of Parkwood Retirement Community, means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an independent living facility using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
Telesis’ Issues One and Two respectively complain of the legal and factual sufficiency of the evidence to satisfy the causation element of negligence. Telesis specifically challenges the causation element in the context of the emergency pull cord, the meal no-show check, and the medical evidence. It also presents a sub-complaint alleging there was “insufficient evidence satisfying the foreseeability part of the causation element” regarding the “old, inoperable bathroom cord[.]”
Telesis restricts its complaints in Issues One and Two to the causation element of Edna’s negligence cause of action and does not challenge the evidence regarding the remaining elements, therefore, we accordingly restrict our analysis to the sufficiency of the evidence to support the causation element.
Application
A. Emergency Call System
Telesis specifically argues that Edna failed to satisfy the causation element because she did not attempt to use the emergency call system in her apartment. Telesis also complains that there is insufficient evidence to satisfy the foreseeability component of the causation element regarding the “old, inoperable bathroom cord[.]” Several witnesses testified regarding the events related to causation.
Edna Anderson
Edna, who was approximately 99 years’ old at the time of trial, did not provide live testimony. In her video-recorded deposition testimony which was played for the jury, Edna stated that as she prepared to take a shower, her knees buckled and she fell down. Edna stated that she had repeatedly tried to use the emergency call unit in her apartment but it did not work. When she was asked where the emergency unit was located, Edna stated, “By the shower.” There was evidence that Edna had prior knowledge that the old emergency call unit located in the bathroom was inoperable. Edna testified that she lay on *225the bathroom floor for a long time after her knees buckled, and that she crawled and rolled herself to the desk where her phone was located. Edna denied that she had attempted to crawl into her bedroom. At trial, Edna’s daughter, Janet, agreed that between the time of the incident and the time of the deposition, Edna’s mental faculties had declined somewhat and her recollections were spotty. However, the jury also had before it other evidence.
James Dnermeyer
Edna’s son-in-law, James Duermeyer recalled that when he visited Telesis’ Park-wood facility as a possible independent-living residence for Edna, among the selling points presented to him were the emergency call system that Parkwood provided to residents and the verbal representation by an employee that Parkwood would always check on a resident who did not appear for a scheduled meal to see if the resident was all right. During his visit, James observed a string attached to a switch on the bathroom wall and was informed that it was a monitored safety call system through which a resident could summon help in an emergency by pulling the cord. James considered Parkwood’s safety features to be important because Edna would be living alone, and he relayed the existence of these features to his wife, Janet. One of the brochures provided to James during his visit which was also displayed to the jury listed “Monitored Medical Alert” as a feature under the heading, “Safety Features.” The twenty-four-hour monitored service and the promise that Parkwood would check on residents who did not attend a meal was an important selling point and influenced James’ and Janet’s decision to select Parkwood as Edna’s residence. James testified that Parkwood did not inform him that its “missed meal” check of residents was not a safety feature of Telesis’ Parkwood facility until after Edna filed her suit against Tel-esis. James acknowledged, however, that if a resident fell in the evening hours of a day and did not miss a meal until midday on the following day, the passing of twelve or seventeen hours is “[n]ot a way to respond to an emergency” and would not ensure anyone’s safety.
James did not know that the cord in the bathroom had been rendered non-operational and was no longer a part of the emergency call system after Edna moved into her apartment. Further, he could think of no reason why Parkwood would leave the old, obsolete, dysfunctional cord in the bathroom. James later became aware that Edna had received training on a new emergency call system, and noted that Edna had the mental acuity at that time to understand what was explained to her.
James testified that it was believed that Edna had fallen at about 7 p.m. on the evening of Saturday, July 5, 2008. Edna was only able to secure assistance after telephoning Janet at 4:30 p.m. on July 6, 2008, after she had missed her midday meal. After receiving Edna’s call to come to her apartment, James and Janet arrived and found Edna naked on the floor and appearing almost totally white in color. Urine and feces were all over the floor and the apartment reeked horribly. James described Edna as agitated and upset, and testified that Edna said, “If they had just come, I’d be all right. I pulled the cord three times and nobody came.... Park-wood let me down.” James acknowledged that Edna did not specify to him which cord she had pulled and, although a cord was present in the bathroom when Edna moved in, he did not know for a fact that it was present in Edna’s bathroom on the day Edna called for help. Edna did inform James, however, that she had pulled *226the cord and had then spent the night on the floor.
James explained that Janet called Park-wood’s emergency line as well as Edna’s doctor, Dr. Marc Chapman, and informed-Dr. Chapman that Edna had been lying on the floor in her own urine and feces for twenty-two to twenty-three hours. James used Janet’s cell phone to call 9-1-1, left the apartment to wait for emergency personnel, and upon their arrival escorted them to Edna’s third-floor apartment.
While the emergency medical technicians were examining Edna, James observed a man enter Edna’s apartment and open a cardboard box that the man had brought with him. When James asked the man what he was doing, the man informed James that he was replacing the emergency call system because “[i]t doesn’t work.” The man then replaced the emergency transmitter box in Edna’s bedroom. The transmitter box accepts a signal from a pendant on a lanyard. James later learned during litigation that the transmitter box which had been removed from Edna’s bedroom had been discarded.
James never examined the emergency call system in Edna’s apartment on or before July 6, 2008, when Edna was found in her apartment. He testified . at trial that he had seen Edna’s emergency call device pendant hanging from one of the two posts on her headboard. Using Edna’s lanyard, James demonstrated how far down the cord on the device would dangle from the bedpost. He also acknowledged that during his pretrial deposition he could not specify how high the pendant on the lanyard was from the floor or whether it was hanging from a bedpost or wrapped around the top of the bedstead. He also acknowledged that during his pretrial deposition 'he had stated that he would be speculating “how high from the floor the box portion of the lanyard component was” where Edna kept it on her bedpost. Although James was unaware that the emergency call pendent on the lanyard does not “snap back” on its" own after it is pulled, he demonstrated that it was easy to reset the device. According to James, Edna knew and was very well aware of the newer emergency call system, and asserted that Edna had pulled the lanyard on her bed, next to which he had observed a trail of urine “tracings.” He testified that Edna was mentally alert and knew what she was doing when she attempted to seek assistance.
After Edna left the hospital, James and Janet visited with Parkwood’s Director, Mary Nafziger at the Parkwood facility. James testified that when he asked Mary what had happened, she stated that the emergency call system did not work. When he asked about the failure to visit Edna’s room after she missed a meal, Mary stated that that system failed, too, because a new person who was working in the kitchen “just didn’t get it” that he was supposed to go visit Edna. When James asked Mary what she believed Parkwood’s responsibility was, she replied, “We’re sorry.”
James testified that prior to this incident, Edna was able to “do everything herself’ including cooking her own breakfast, clothing and bathing herself, and walking a long distance to the dining room at Parkwood. After the event, James explained, Edna was unable to do any of those things and, although she could feed herself, she needed assistance with her clothing, bathing, and going to the bathroom.
At the time of trial, Edna was living in a skilled nursing facility where Janet would change Edna’s soiled clothes, assist her in preparing for meals, and ensure that Edna was receiving adequate care. James testi-*227fled that Edna still says that Parkwood let her down, is very fearful of another traumatic experience, and lays in bed gripping her emergency call button in her hand. James explained that, “Janet has to go over and pry her fingers off and get’ that out of her hand .... [s]o she’s very fearful that ... another traumatic episode might occur.”
Janet Duermeyer
Edna’s daughter, Janet Duermeyer, stated that she had previously observed the emergency call device lanyard hanging from her mother’s bedpost and testified that it would be accessible to anyone on the floor. Janet testified, “There was urine and feces just all over — the bathroom was probably the worst, but then on into the bedroom and up along the bed where she would go to pull the cord [and] then out into the room and over to where the phone was.” Janet also specified that she found urine along the side of Edna’s bed up to the bedpost area. Although there was some evidence that Edna was taking medication for incontinence, there was no evidence that Edna had previously urinated on the floor.
Janet also testified that when she and James met with Nafziger after Edna was hospitalized, Naziger was very apologetic and commented that both of their systems had failed. Without objection, Janet testified that while she was at Edna’s apartment, a Parkwood housekeeper informed her that she had known Edna’s emergency call device was not working because she had noticed it several times while making Edna’s bed. The housekeeper informed Janet that she had reported that Edna’s emergency call unit was non-operational.
Howard Allred and John Neill
Howard Allred, the maintenance supervisor at Parkwood, testified that after Edna’s event, he had learned from a housekeeper named Andrea that she had on four occasions reported to Parkwood’s management that Edna’s emergency call device was not working. Allred asserted that Telesis co-owner and CEO, John Neill, had threatened to fire him if he informed anyone of the reports. John Neill was a partner and CEO of The Teles-is Company, most of whose clients are elderly. Mary Nafziger reported to Neill. Neill met with Nafziger on a monthly basis, or sometimes more frequently, but stated that he was never informed by anyone that money should be expended to remove the old cords from the prior emergency call system so that its elderly residents do not become confused and pull old cords that do not work. Neill stated that he did not think he had told anyone that his or her employment would be terminated for discussing what had happened in Edna’s apartment. Nor did Neill recall receiving after Edna’s fall a Parkwood staff-member complaint about the system for checking on residents or anyone ever suggesting that it should not be the cooks’ responsibility to check on residents who do not attend meals. When asked if it was possible that he had “shut down” an employee’s recommendation that a non-slip surface be placed in slippery areas to prevent elderly persons from falling at Park-wood because it cost too much money, Neill replied, “Anything is possible.”
Mary Nafziger
Nafziger, who initially served as Park-wood’s receptionist, began serving as its Operations Manager in 2001, and became Parkwood’s Director in April 2008. Naf-ziger was the person at Parkwood to whom everyone reported. She did not recall informing Janet and James that Edna’s emergency call unit had failed. Nafziger , explained that there was no real way to know if the emergency call unit was'working without testing it and stated that although the base unit recovered from *228Edna’s apartment displayed the word “operate,” she did not pull the “trigger” cord to see if it was functioning but instead threw away Edna’s base transmitter box unit.
Nafziger explained that she was the only person in charge of the emergency call units, including their programming, maintenance, and testing for proper operation, and that it was her responsibility if the units did not work. Nafziger was aware that the manufacturer’s manual for the emergency call devices included a page including a heading, “Important. Please read this page,” informing the reader that the emergency call units should be tested regularly. Nafziger admitted that she knew that the manufacturer’s manual urged that the units be tested weekly and included a checklist on which to record the weekly testings. However, Nafziger only tested the units annually on the date of the resident’s “move-in” anniversary. Nafziger explained that she was trained by a technician from Telesis’ corporate office and it was her understanding that weekly testing was not necessary. Although Naf-ziger admitted that she may have made the decision to not test the emergency device systems weekly, she believed that the corporate office had made that decision.
She admitted knowing that the manufacturer’s manual indicated that it is a foreseeable possibility that, unless the emergency call units are tested, they may not be working and agreed with that warning. Nafziger also agreed that it is foreseeable that if a unit is not tested and it is not working when someone needs to use it in an emergency, someone can be seriously injured or may die. Nafziger explained that there had been three or four instances where she discovered that units were non-functioning and the resident was unaware that his or her emergency call units were non-operational, but noted that those circumstances rarely happened. However, Nafziger also testified that on approximately six occasions she had replaced units when residents had complained about them but she did not know whether the units really worked, as it was not her practice to test emergency call units about which residents had concerns but to discard and replace them with new units.
Nafziger explained that it is her understanding that if the transmitter/receiver box displays the word, “operate,” she can rely on the fact that everything is working. However, when asked what would happen if the batteries were not in the lanyard but the transmitter box was plugged in, Naf-ziger admitted that the transmitter/receiver box “would probably still say ‘operate.’ ”
Nafziger stated that she did not instruct Dennis Jackson, the maintenance man who initially responded to Edna’s apartment that evening, to swap out the emergency call unit but rather initially told him that she was going to check the system and install a new one. She testified that Edna’s emergency call system lanyard was wrapped around the middle portion of Edna’s twin bed headboard and was not in a pulled position when she arrived at Edna’s apartment later. Nafziger testified that she saw that the call box displayed the word “operate,” and did not test the unit because she believed it was working. She proceeded to discard the emergency call box component of the emergency call system on the night Edna was found, before a corporate risk manager requested that she save the device. Nafziger explained, “[This] is what I do when I change out all of the boxes.” She kept the lanyard component of the system and laid it on her desk. According to Nafziger, the corporate risk manager instructed her “two days after the fact” to save the lanyard, and Nafziger explained that she did *229not know why she had kept the lanyard because “it could have easily been gone by then.”
When asked if she thought it was important to confirm whether the call box was working because Janet and James had said that it did not work, Nafziger said it was her opinion that it would have worked if it had been activated, and she observed that it had not been activated. She explained that she threw away the box that she believed was working “[o]nly because I wanted to reassure Ms. Anderson and her family that what we would provide for her would be brand new and they could have any fears arrested.” Based on what she was told by Dennis Jackson, the on-site responder, Nafziger stated that she was aware that “they felt there was a problem with [Edna’s] emergency box.”
Nafziger eventually admitted that Park-wood’s housekeeper, Andrea, had informed her on one occasion that Edna’s emergency call unit was not working, but observed that she did not recall that the notification “was real quick — short before” Edna’s incident. She also explained that Parkwood has no policy for documenting incidents or injuries through the creation of reports, and none were made in this case. Nafziger shredded a sheet documenting battery changes because she did not feel she would need it. Nafziger disagreed that the emergency call system at Parkwood is a safety and security feature and disagreed that the main selling point of having an emergency call system is to aid someone who has fallen and cannot get up. She also disagreed that checking on a person who does not show up for a meal is a safety feature. According to Nafziger, residents should count on the emergency call system working, but not as a safety feature. Nafziger explained that the purpose of the emergency call system is to alert Parkwood in the event of an unforeseen accident such as an overflowing commode by permitting the resident to activate the caller and quickly receive someone at the apartment.
She acknowledged that she informs prospective new residents that the system is to be used “in case your commode is overflowing, in case you have become ill, in case you have fallen.” When asked about the promotional brochure Parkwood provided to James, Nafziger explained that the “Safety Features, Monitored Medical Alert” referenced in the brochure indicated a medical device like a bracelet that is “monitored by an outside company ... [t]hat’s not something that we do,” and stated that she was not aware that Park-wood provides that type of service. Instead, Nafziger explained she informs people that “we provide them with an emergency caller” and does not tell them that they should rely on it for safety. Nafziger said she instructed residents to wear the lanyard or place it where they would be able to reach it in the event they fall and are laying on the floor.
B. Missed-Meal Cheeks
Telesis also argues that there is insufficient evidence of negligence concerning its practice of checking on residents who fail to attend scheduled meals, which it argues was provided as a courtesy and notes is not included within the occupancy agreement that Edna signed. Although this practice had been satisfactorily implemented on a prior occasion when Edna had overslept, it was not implemented on July 6, 2008, when Edna failed to attend her meal.
Parkwood employee Reginald Austin testified that he had worked at Parkwood for fourteen years and explained that Tel-esis’ Parkwood facility routinely monitored residents’ attendance at meals. Absent a resident’s advance notification that he or she would not be attending a meal, a Tel-*230esis employee would check on an absent resident’s welfare. Austin explained that a phone call would first be placed to the resident’s apartment and, if the resident did not answer the telephone, someone would go to the resident’s apartment to check on the resident and ensure “everything [was] okay.” Austin testified that he was not on duty on the day Edna missed her meal, and explained that the kitchen manager who was on duty that day had failed to check on Edna.
Austin also testified regarding a previous occasion when a Parkwood resident who had fallen in her apartment was taken to the hospital. When the resident did not appear for a meal, the staff assumed that the resident was still in the hospital, and no one followed the procedure of checking on the resident. In fact, the resident had returned to her apartment that same evening, had slipped and fallen, and had died.
"When asked if she took any responsibility for the event involving Edna, Nafziger replied that she was sorry it happened and she took responsibility for the fact that “we didn’t close the loop with checking on her after lunch.” She testified that when she met with James and Janet, she informed them “that if we had not checked on Ms. Anderson as we should, I was very sorry that that system failed and that I would certainly check into why [our practice] had not been followed[.]” Nafziger agreed that it was reasonable for the residents to rely on the fact that in the event they miss a meal, they will be checked on before more than one day passes, that a reasonable and prudent facility would ensure such residents were checked on, and that the failure of Parkwood’s cook to check on Edna after she missed a meal was negligence. She also conceded that it was foreseeable that failing to check on someone who had fallen could lead to great harm and even death.
C. Causation
Telesis also complains that the medical evidence fails to show causation because Dr. Chapman was unable to testify to a reasonable degree of medical probability how long Edna had been on the floor before suffering permanent muscle damage, and provided only a range of hours between four and eight to twelve hours in which rhabdomyolysis could commence.
Allred testified that prior to the incident, Edna “was really in good condition for her age,” was not in a wheelchair, was able to walk and cooked, would engage in activities with other residents, and whatever health problems she may have had, they were “not anything that kind of restricted her[.]” Janet described the incident as a turning point in her mother’s health, before which Edna lived independently, walked, cooked, could clothe and bathe herself, was happy, and enjoyed life. Dr. Chapman, who was Edna’s personal physician, testified that Edna was in good health generally, had some arthritis in her knees, which had improved in some regards, was independent, did not need much assistance, and had limited complaints.
Dr. Chapman learned from Edna that she had collapsed and remained on the floor for more than 20 hours before being found, and confirmed this information from the history Edna had provided to the emergency room physician. He determined that Edna did not suffer any serious injuries such as fracture, head injury, stroke, or a cardiac event when she “fell,” and determined that she may have experienced fatigue or weakness rather than a fall. .
From laboratory tests, Dr. Chapman determined that Edna had suffered from rhabdomyolysis, a deterioration or necrosis of the muscles that can be caused by trau*231ma to the muscles, such as lying on the floor or being in an immobile state. After ruling out other causes, Dr. Chapman concluded that the length of time Edna spent on the floor and her inability to move well during that time was, within a reasonable degree of medical probability, the most likely cause of Edna’s rhabdomyolysis.
Although Dr. Chapman testified he could not predict how early Edna would have experienced the effects of rhabdo-myolysis, he explained that the muscle damage Edna experienced could have been prevented or reduced if someone had attended to Edna earlier because the extent of the damage from rhabdomyolysis correlates with the amount of time the muscle is experiencing the damage under circumstances such as Edna’s. He explained that, “[T]he issue ... is just the total time you’re down ... [because] you’re just going to get weaker the longer you’re down.” While there may be some acceleration of damage in the last few hours, Dr. Chapman observed that the quantification of that time period would be different for every person. Dr. Chapman acknowledged that he could not to a reasonable degree of medical probability state how long Edna had to be on the floor before suffering permanent muscle damage but noted that he could state within a reasonable degree of medical probability that the longer someone like Edna is on the floor, the worse the rhabdomyolysis will become and given Edna’s very high level of myo-globin, testified that he could state with certainty that Edna suffered more damage with each hour that passed. He also explained that if Edna had been found on the evening of her fall, it would have been much less likely that Edna would have suffered permanent muscle damage as she did, and specified that if Edna had been found after four hours, she would not have suffered as much damage as was present at twenty-four hours.
According to Dr. Chapman, nothing other than the rhabdomyolysis prevented Edna from returning to her pre-event condition. Myoglobin, the enzyme that is released during rhabdomyolysis is also a cardiac enzyme for which the emergency room physicians tested Edna. Dr. Chapman explained the myoglobin value can be used to quantitate to some degree the amount of a person’s injury and noted that in a mild case, as when a person has muscle pain from exercising excessively or due to medication, such levels will be between 300 and 400 ng/ml and, even then, steps will be taken to stop the ongoing damage because damage over time is the most concerning factor. Dr. Chapman testified that Edna’s myoglobin measured “dramatically high,” at more than 10,000 ng/ml, a level “[w]e would call ... a severe increase in the myoglobin.” A normal level of myoglobin is 40 ng/ml. Regarding these myoglobin levels, Dr. Chapman explained, “The higher the number, the more the injury ... [and] the worse the outcomes.”
Dr. Chapman stated that although Edna did not suffer acute kidney injury or cardiac injury and experienced mild elevation of liver enzymes, she suffered permanent muscle damage. He explained that Edna’s prolonged time on the floor was the beginning of a “downhill course” for her.
Edna Anderson presented evidence that Parkwood’s act or omission was a substantial factor in causing the injury, permanent muscle damage, without which the harm to her would not have occurred, and presented evidence that a person of ordinary intelligence should have anticipated the foreseeable danger of injury created by the negligent act or omission because its general character might have been reasonably anticipated. See Marathon Corp., 106 S.W.3d at 727; Doe, 907 S.W.2d at 478.
*232We have reviewed the entire record, credited favorable evidence if reasonable jurors could, disregarded contrary evidence unless reasonable jurors could not, and conclude that more than a scintilla of evidence exists to support the jury’s findings regarding Parkwood’s negligent causation of Edna’s harm. City of Keller, 168 S.W.3d at 827. Having considered all of the evidence, we further conclude the judgment is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Because the evidence is legally and factually sufficient to support the jury’s findings as to causation, Issues One and Two are overrated.
II. NEGLIGENT UNDERTAKING
A. Broad Form Question
Telesis next broadly complains that “Plaintiff failed to request and the judge failed to submit a jury question concerning, and there was not sufficient proof of, the elements of a negligent undertaking.” In Issues Three, Four, and Five, Telesis complains respectively that: (1) the trial coui’t eired in submitting a broad form negligence jury question instead of a negligent undertaking instraction and question; (2) there was no evidence to support a negligent undertaking claim against Teles-is; and (3) there was factually insufficient evidence to support a negligent undertaking claim against Telesis.
After Telesis had objected to portions of the trial court’s proposed charge, it ten-dei’ed to the tidal court the following granulated Question 1, which the court l'efused:
Did the negligence, if any, of Parkwood Retirement Community proximately cause the injury in question?
Parkwood Retirement Community was negligent if—
1. Parkwood Retirement Community undei’took to perform services that it knew or should have known were necessary for Edna Anderson’s protection, and
2. Parkwood Retii’ement Community failed to exercise l’easonable cai'e in performing those services, and
3. [Ejither Edna Anderson relied on Pai’kwood Retirement Community’s performance or Parkwood Retirement Community’s performance increased Edna Anderson’s risk of harm.
Answer Wes” or “No”: ...
Telesis then objected to Question 1 of the trial court’s proposed charge on the basis that there was “no evidence regarding a duty on behalf of Parkwood Retirement Community that was breached.” The trial court overruled that objection and submitted in its charge Question 1 which asked, “Did the negligence, if any, of Parkwood Retirement Community proximately cause the injury in question?”
On appeal, Telesis presents specific broad-form instruction complaints not expressly presented to the trial court. Edna initially counters that Telesis failed to preserve its broad form jury question complaint for our consideration because its objection fails to explain why the broad form question was not appropriate and fails to identify the legal basis Telesis now asserts on appeal.
1. Preservation
We first consider whether Telesis has preserved for appellate review its complaint regarding the broad form of Question 1, and we conclude that it has preserved the complaint.
Rule 274 requires that a party objecting to a charge point out distinctly the objectionable matter and the grounds of the objection. Tex.R. Civ. P. 274. Any *233complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. Id. The purpose of this rule is to afford the trial court an opportunity to correct charge errors by requiring an objecting party to clearly designate the error and explain the grounds for its complaint. See Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex.2014) (citations omitted).
The Texas Supreme Court has reiterated that the procedural requirements for determining whether a party has preserved error in the jury charge are explained by one basic test: “whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” See Thota, 366 S.W.3d at 689, quoting State Dep’t of Highways v. Payne, 838 S.W.2d 235, 241 (Tex.1992). Additionally, to preserve error for appellate review, the rules generally require the complaining party to make a timely objection to the trial court stating the grounds for the ruling that the complaining party seeks with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context, and obtain a ruling. Tex.R.App. P. 33.1.
In resolving this preservation issue, we are guided by the Texas Supreme Court’s consideration of a similar complaint in Thota. Thota, 366 S.W.3d at 691. There, the Court considered whether a complaint regarding a broad-form question as to an element of damages was preserved. Id. Following Its ruling in Harris Cnty. v. Smith, 96 S.W.3d 230, 236 (Tex.2002), in which the Court had determined that “[a] timely objection, plainly informing the court that a specific element of damages should not be included in a broad-form question because there is no evidence to support its submission, therefore preserve[d] the error for appellate review[,]” the Thota Court ruled that a party’s objection to a submitted charge along with its submission and presentation of a proposed charge to the trial court according to its theory of the case was sufficient to place the trial court on notice that the party believes the evidence does not support the challenged instruction. Thota, 366 S.W.3d at 691. The Court noted that it has long favored a common sense application of its procedural rules that serves the purpose of the rules, rather than a technical application that rigidly promotes form over substance. Thota, 366 S.W.3d at 690.
Telesis requested a granulated Question 1 and objected to the trial court’s broad form Question 1 in immediate succession, without the interposing of other objections or requests by any party. From the context of Telesis’ requested Question 1 and its immediate, subsequent objection to the trial court’s proposed Question 1, we conclude the specific grounds of Telesis’ objection, which included seeking a granulated question rather than a broad form question, were apparent to the trial court. Therefore, Telesis has preserved for our consideration its objection to the trial court’s broad form question.
2. Proper Form of Jmy Question
Telesis contends that Edna’s claims “plainly would be characterized as claims for negligent undertakings,” and complains that Edna failed to request, and the trial court failed to submit, a jury instruction on negligent undertaking. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 838-39 (Tex.2000). To establish a negligent undertaking, a plaintiff must show that the defendant undertook to perform services that it knew or should have known were necessary for the plaintiffs protection, that the defendant failed to exercise reasonable care in performing those services, and either that the plaintiff relied *234upon the defendant’s performance, or that the defendant’s performance increased the plaintiffs risk of harm. Nall v. Plunkett, 404 S.W.3d 552, 554-56 (Tex.2013); see also Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 598 (Tex.App.-Fort Worth 2008, pet. denied), citing Torrington Co., 46 S.W.3d at 839. The broad-form submission for a typical negligence claim and a negligent-undertaking claim is the same, except that an undertaking claim requires the trial court to instruct the jury that a defendant is negligent only if the defendant undertook to perform services that it knew or should have known were necessary for the plaintiffs protection, the defendant failed to exercise reasonable care in performing those services, and either the plaintiff relied upon the defendant’s performance, or the defendant’s performance increased the plaintiffs risk of harm. Nall, 404 S.W.3d at 555-56, citing Torrington, 46 S.W.3d at 838-39; Restatement (Second) of Torts § 324A (providing the rule for liability arising from negligent performance of an undertaking).
After the trial court ruled on Telesis’ motion for directed verdict, Edna’s causes of action for negligence, gross negligence and malice, and breaches of warranty remained. Our review of the pleadings, record, evidence, and arguments reveals at no time did Edna plead, try, or argue a negligence cause of action against Telesis based on negligent undertaking. Rather, our review of the record indicates that Edna presented a negligence cause of action based upon one or more duties arising from an ordinary duty of care. Indeed, in conformity with Edna’s pleadings and the evidence admitted at trial, the trial court instructed the jury in the court’s charge:
“Negligence,” when used with respect to the conduct of Parkwood Retirement Community, means failure to use ordinary care, that is, failing to do that which an independent living facility of ordinary prudence would have done under the same or similar circumstances or doing that which an independent living facility of ordinary prudence would not have done under the same or similar circumstances.
“Ordinary Care,” when used with respect to the conduct of Parkwood Retirement Community, means that degree of care that would be used by an independent living facility of ordinary prudence under the same or similar circumstances.
“Proximate cause” when used with respect to the conduct of Parkwood Retirement Community, means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an independent living facility using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
For these reasons, we conclude the trial court did not abuse its discretion in refusing to submit a negligent undertaking instruction. Thota, 366 S.W.3d at 687, citing In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). Issue Three is overruled.
B. Evidence of Negligent Undertaking
In Issue Four, Telesis asserts that there was no evidence of the necessary elements of a negligent undertaking claim, and in Issue Five contends it is entitled to a new trial because any negligent undertaking claim was against the overwhelming weight'of the evidence or against the great weight and preponderance of the evidence. As we have determined Edna’s negligence *235theory was not based upon negligent undertaking but rather upon the existence of a duty of ordinary care, thus, she was not required to prove the elements of negligent undertaking. Issues Four and Five are overruled.
III. COMPENSATORY DAMAGES
In Issues Six, Seven, Eight, Nine, and Ten, Telesis challenges the sufficiency of the evidence to support the jury’s award of compensatory damages.
Standard of Review
We review a challenge to the propriety of a damages award for factual sufficiency of the evidence. See Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). When conducting a factual sufficiency review, we must consider and weigh all of the evidence, both in support of and against the findings, in order to decide whether the verdict should be set aside. Doctor v. Pardue, 186 S.W.3d 4, 17 (Tex.App.-Houston [1st Dist.] 2006, pet. denied), citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); see Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Lofton, 720 S.W.2d at 805. We reverse and remand for a new trial only if the verdict is so against the great weight and preponderance of the evidence that it is manifestly unjust or shocking to the conscience. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Pool, 715 S.W.2d at 635.
In conducting our review, we must bear in mind that the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Golden Eagle Archery, 116 S.W.3d at 761; Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex.1982). As this court is not a fact finder, we may not substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Pool, 715 S.W.2d at 634. Further, as fact finder, the jury is free to believe one witness and disbelieve another. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). The jury also resolves any inconsistencies in any witness’s testimony. Id. Where the award is based on non-empirical damages such as mental anguish and pain and suffering, the court will generally leave that determination to the discretion of the jury. See Dico Tire, Inc. v. Cisneros, 953 S.W.2d 776, 791-92 (Tex.App.-Corpus Christi 1997, pet. denied).
Where, as here, someone suffers personal injuries, the damages fall within two broad categories: economic and non-economic damages. Golden Eagle Archery, 116 S.W.3d at 763. Texas recognizes the following categories of non-economic damages: pain, suffering, mental anguish, disfigurement, and physical impairment. Id. at 769. These categories of non-economic damages may overlap. Id. at 770.
Generally, our starting point for conducting a factual sufficiency review is the charge and instructions to the jury. Id. at 762. In the instant case, Question 2 asked the jury to fill in five blanks: (1) past physical pain and mental anguish; (2) future physical pain and mental anguish; (3) past physical impairment; (4) future physical impairment; and (5) past medical expenses.
The jury was instructed:
Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not *236include interest on any amount of damages you find.
Do not include any amount for any condition not resulting from the injury in question.
Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Edna Anderson.
Unless the record demonstrates otherwise, we must presume the jury followed the instructions given. Id. at 771.
Analysis
In Issues Six and Seven respectively, Telesis argues we should set aside the compensatory damages award and remand for a new trial because the evidence is legally and factually insufficient to support the jury’s finding of negligence. Telesis specifically argues, “If the cause-in-fact and foreseeability elements of causation are missing for Question 1, ... then no compensatory damages can stand.” In Issues One and Two, we determined the evidence of causation is legally and factually sufficient to support the jury’s finding that Telesis was negligent. Therefore, Issues Six and Seven are overruled.
In Issue Eight, Telesis complains the evidence was legally and factually insufficient to allow the jury to allocate Edna’s damages between those indisputably not caused by Telesis and those claimed to have been caused by Telesis. Telesis first raised its legal sufficiency challenge regarding allocation of damages in its post-trial amended motion for judgment notwithstanding the verdict and again in its motion for new trial, which the trial court denied.2 To preserve a factual sufficiency challenge, a party must raise the issue in a motion for new trial. Tex.R. Civ. P. 824(b)(2); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex.1991). In its motion for new trial, Telesis broadly complained that “there was insufficient evidence admitted that would allow the jury to allocate damages,” “the sums determined were for the entire injury,” and provided “no basis for fashioning a proper judgment in any amount.”
As in its post-trial motions, Telesis’ brief neither cites any legal authority nor provides any discussion of law in support of its complaints regarding the allocation of damages and the evidence necessary to support an award of damages.3 Tex.R.App. P. 38.1(i)(brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). According to Telesis, the jury awarded the entirety of the medical expenses and other compensatory damages “against” Telesis, and complains that the stipulated medical expense consisted of all harm and injury between Edna’s fall and her attempt to summon aid and from the fall to lunchtime on July 6, 2008.
Telesis does not direct us to any evidence demonstrating that any damages found by the jury relate back to Edna’s unexplained collapse rather than to Teles-is’ sole negligence, but instead contends the proof did not allow the jury to logically and properly allocate between damages attributable to Edna’s fall and incremental *237damages thereafter occurring when the meal “no-show” check failed. Asserting that there is no evidence of the time when Edna pulled the emergency call system cord, Telesis contends the “injury in question” set out in the trial court’s charge “became the full injury from the incident” rather than any injury resulting from Edna’s prolonged stay on the floor as caused by Telesis’ negligence. We note that Telesis did not present these exact arguments to the trial court in its motion for new trial.
In its charge, the trial court instructed the jury to base its answers only on the evidence admitted in court and on the law contained in the instructions and questions set out within the charge. The charge also instructed the jury to answer each question about damages separately, prohibited the jury from increasing or reducing the amount of damages in one answer because of its answer to another question about damages, and instructed the jury to refrain from considering, discussing, or speculating regarding other matters specified in the charge.
Question 1 asked the jury to determine whether Telesis’ negligence proximately caused the injury in question. In Question 2, the trial court’s instruction directed that the jury neither include any amount of damages for any condition not resulting from the injury in question nor reduce the amount of its answers to the damages questions because of Edna’s negligence, if any. The damages at issue in Questions 1 and 2 were those proximately resulting from Telesis’ negligence. Whether damages were proximately caused by Telesis’ breach of a duty was an element of Edna’s negligence claim, which the jury affirmatively determined in its answer to Question 1. See Nabors Drilling, U.S.A., Inc., 288 S.W.3d at 404. The determination of the amount of such damages as set out within Question 2 was within the province of the jury. See Gibbins v. Berlin, 162 S.W.3d 335, 343-44 (Tex.App.-Fort Worth 2005, no pet.)(amount to be awarded for pain and suffering damages best left to province of jury).
We find no evidence in the record that the jury failed to follow the trial court’s instructions, and Telesis has failed to direct us to any. Unless the record demonstrates otherwise, and it does not, we must presume that the jury followed the trial court’s instructions. See, e.g., Golden Eagle Archery, Inc., 116 S.W.3d at 771; Tesfa v. Stewart, 135 S.W.3d 272, 279 (Tex.App.Fort Worth 2004, pet. denied). Moreover, Telesis’ failure to cite to any law or legal authority in support of its allocation complaints fails to persuade us that its allocation arguments are meritorious. Issue Eight is overruled.
In Issues Nine and Ten respectively, Telesis again challenges the legal and factual sufficiency of the evidence to support the jury’s compensatory damage awards. Telesis generally contends that the “compensatory damage award is unsupportable because of the lack of proof linking any quantifiable negative change concerning [Edna] on or after July 5-6, 2008, in any way to the events of those two days,” and asserts that the record is devoid of proof justifying the jury’s award in the five categories of damages. We address each component separately.
Past and Future Pain and Mental Anguish
Question 2 of the trial court’s charge asked what sum of money would fairly and reasonably compensate Edna for her damages, if any, resulting from the injury in question. For physical pain and mental anguish sustained in the past, the jury’s answer was $150,000. For Edna’s future *238physical pain and mental anguish, the jury awarded Edna $36,000.
Even where a defendant’s conduct is merely negligent, “Texas has authorized recovery of mental anguish damages in virtually all personal injury actions.” City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex.1997), quoting Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex.1995). However, in Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995) (citations omitted), the Texas Supreme Court held that mental anguish damages cannot be awarded without either direct evidence of the nature, duration, or severity of plaintiffs anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine, or other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. See also Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex.2013).
We apply a traditional no-evidence standard to a mental anguish finding to determine whether the record reveals any evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. Parkway Co., 901 S.W.2d at 444. To support an award for future mental anguish, a party is required to demonstrate a reasonable probability that she will suffer compensable mental anguish in the future. Adams v. YMCA of San Antonio, 265 S.W.3d 915, 916-17 (Tex.2008). In reviewing the jury’s finding, we consider whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 822, 827. We consider all of the evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it. Id. at 822.
It is well-settled that there must be both evidence of the existence of com-pensable mental anguish and evidence to justify the amount awarded. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex.2011); Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex.2002), quoting Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996). Mental anguish damages cannot be determined with mathematical precision but only through the exercise of sound judgment. Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex.2002). The Fort Worth Court of Appeals has explained:
The process of awarding damages for amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidat-ed, nonpecuniary loss. The presence or absence of pain, either physical or mental, is an inherently subjective question. No objective measures exist for analyzing pain and suffering damages. Once the existence of some pain and suffering has been established, however, there is no objective way to measure the adequacy of the amount awarded as compensation.
HCRA of Texas, Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex.App.-Fort Worth 2005, no pet.). A great deal of discretion is given to the jury in awarding an amount of damages it deems appropriate for pain and suffering. Id. While the impossibility of any exact evaluation of mental anguish requires that a jury be given a measure of discretion in finding damages, that discretion is limited and the jury must find an amount that, in the standard language of the jury charge, “would fairly and reasonably compensate” for the loss. Saenz, 925 S.W.2d at 614 *239(citations omitted). An award of mental anguish damages will survive a legal sufficiency challenge when the plaintiff has introduced direct evidence of the nature, duration, and severity of her mental anguish, thus establishing that there was a substantial disruption in her daily routine. Parkway Co., 901 S.W.2d at 444; O’Dell v. Wright, 320 S.W.3d 505, 514 (Tex.App.Fort Worth 2010, pet. denied).
Evidence of past pain and mental anguish may be proven through a plaintiffs testimony or other evidence, including circumstantial evidence. See Providence Health Ctr. v. Dowell, 167 S.W.3d 48, 59 (Tex.App.-Waco 2005), rev’d on other grounds, 262 S.W.3d 324 (Tex.2008). In the absence of direct evidence of pain, the jury is permitted to infer the occurrence of pain from the nature of the injury. Escoto v. Estate of Ambriz, 200 S.W.3d 716, 730 (Tex.App.-Corpus Christi 2006), rev’d on other grounds sub nom. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex.2009); HCRA of Texas, Inc., 178 S.W.3d at 871 (existence of conscious pain and suffering may be established by circumstantial evidence; pain and suffering may be inferred or presumed as a consequence of severe injuries). The duration of the pain and mental anguish is an important consideration for the fact finder. HCRA of Texas, Inc., 178 S.W.3d at 871.
A plaintiff who proves some physical injury may recover damages for past mental anguish. Parkway Co., 901 S.W.2d at 444. Texas permits recovery of mental anguish damages in virtually all personal injury actions, even where the defendant’s conduct was merely negligent. City of Tyler, 962 S.W.2d at 495; Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex.1995). When serious bodily injury is inflicted, physical and mental suffering may be inferred. Likes, 962 S.W.2d at 495; see also Kennedy v. Missouri Pac. R.R., 778 S.W.2d 552, 557 (Tex.App.-Beaumont 1989, writ denied).
As long as sufficient probative evidence exists to support the jury’s verdict, neither the reviewing court nor the trial court is entitled to substitute its judgment for that of the jury. HCRA of Texas, Inc., 178 S.W.3d at 871. On appeal, we will set aside the verdict only where the record clearly indicates that the award was based on passion, prejudice, or improper motive, or is so excessive as to shock the conscience. Id. at 871-72.
Telesis asserts there is no basis for the jury’s awards, notes that Edna only testified by deposition despite the fact that she was present at trial, and argues that nothing in the admitted evidence mentions that Edna experienced any pain or mental anguish. Telesis also notes that Edna informed Dr. Chapman that she had no pain, and that no witness established that Edna would experience future pain. It attributes testimony that Edna is not as outgoing as she was before the incident to Edna’s hearing problems. Telesis attributes Edna’s fears to her age and prior injuries, and contends without evidentiary support that “Few 99-year-olds are free of fear or impervious to loneliness.” It next directs us to evidence that at the time of trial, Edna was “very alert inwardly,” read daily newspapers, and played cards and bingo, and at the time of her pretrial deposition, she was not taking medications regularly and could not remember what she was thinking between the time of her collapse and getting to the telephone. Finally, Telesis notes Edna’s past medical history, specifically that she was at one time treated for anxiety and depression for which she was prescribed medication. Dr. Chapman’s testimony revealed that Edna was seen in approximately 2004 for lethar*240gy, was determined to be nervous about upcoming travel and experiencing mild chronic depression, and was prescribed a “very low dose” anti-depressant. All subsequent examinations indicated Edna was “doing well from the depression standpoint.” For these reasons, Telesis contends there was no proof of past mental anguish. We disagree.
After Janet arrived at the apartment, Edna informed Janet that she could not get up and had dragged herself. Janet then observed “burns on her arm, like rug burns, and on the side of her knees and on the side of her ankles.” The medical records admitted into evidence show that Edna reported experiencing little, if any, pain during her emergency and hospital care, and was advised upon discharge from the hospital to take Tylenol as needed for pain:4 Dr. Chapman did not speak with Edna until the morning of July 7, 2008, after she had been discovered, transported to the hospital, and treated in the emergency room and hospital. He testified that Edna did not complain of pain but stated that rhabdomyolysis can be painful. Dr. Chapman also testified that Edna suffered permanent muscle damage and weakness, stated that had Edna not received intravenous fluids, she could have suffered kidney failure or liver damage, and explained that because the emergency room personnel quickly recognized Edna’s condition and commenced treatment, Edna was out of mortal danger within twenty-four hours. When asked whether she had observed Edna to be in pain because of what happened at Parkwood, Janet testified that she has observed her mother moan or move upon attempting “to move or transfer from the bed to the wheelchair or something.”
The jury also had before it some evidence regarding Edna’s past and future mental anguish. Janet described Edna as sounding “hysterical” when she telephoned for help, and said, “Can you come? I need help. I haven’t had any food or water for a long time. Help. Come.” After Janet’s arrival, Edna stated, “I’m so weak,” and Janet described Edna as being excited, angry, and frustrated. Edna complained, “They didn’t come. I tried three different times to call — to get them.” James described Edna as being agitated and very upset at her apartment, where she complained, “If they had just come, I’d be all right. I pulled the cord three times and nobody came.... Parkwood let me down.” Janet explained that her mother was a fastidious person and observed urine and feces “just all over[.]” At trial, James testified that after the incident, Edna remained nervous or worried about emergencies, and specified:
She still to this day ... is very fearful of something again happening, another traumatic experience. She lays in her bed at the nursing home with her emergency call button in her hand gripping it. Janet has to go over and pry her fingers off and get that out of her hand, get her up, get her out of bed and into lunch and dinner and what have you. So she’s very fearful that something— another traumatic episode might occur.
Janet acknowledged observing immediate changes in Edna’s demeanor after the incident, and explained her mother’s fear of being alone:
She’s been and to this day is very fearful of being by herself. Even when I’m in the room and she’s in her wheelchair, which would be a very safe situation, she always [asks] ... for the call button in *241her room. It’s, right beside her bed. And I’ll say, “You don’t need that.”
Although the direct evidence of any pain Edna suffered may be deemed scarce, and the medical records and Dr. Chapman noted that Edna did not report any pain, the jury had before it evidence that Edna had dragged herself through the apartment as she attempted to summon help and suffered rug burns, was struck in the shoulder by the telephone as she attempted to retrieve it and call for help after being without food and water, was hysterical when she spoke with Janet by phone, displayed anger, frustration, and excitement upon being found by Janet and James, and after the incident and through trial, was fearful of being without her emergency call button. At a minimum, Edna’s fear of being without an emergency call button constitutes some direct evidence of the nature, duration, and severity of Edna’s mental anguish evidencing “ ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger.’ ” Parkway Co., 901 S.W.2d at 444. Indeed, that Edna’s fingers must be pried off of the emergency button while she is in bed arguably constitutes some physical manifestation and evidence of Edna’s mental anguish which continued through the time of trial.
Telesis’ complaint as to damages for future physical pain and suffering is restricted to, “Dr. Chapman’s statement that [Edna] told him she had no pain[,]” and “[t]here was no ... factual basis for projecting mental anguish into the future.” In support of these contentions, Telesis relies on Adams v. YMCA of San Antonio, 265 S.W.3d 915, 917 (Tex.2008), which provides that a party must demonstrate a reasonable probability that she will suffer compensable mental anguish in the future to support an award for future mental anguish. However, a personal injury, as in this case, may provide an adequate basis to permit a jury to reasonably conclude that a plaintiff will continue to suffer substantial disruptions in her daily routine of the kind that the evidence has shown the plaintiff has suffered in the past, and will support an award of damages for future mental anguish. See Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 797-98 (Tex.2006); cf Parkway Co., 901 S.W.2d at 442 (setting out the type of proof necessary to establish mental anguish in non-personal injury case).
We conclude that sufficient probative evidence exists to support the jury’s physical pain and mental anguish awards, as a category of damages, and that the awards were not based on passion, prejudice, or improper motive, nor are so excessive as to shock the conscience. HCRA of Texas, Inc., 178 S.W.3d at 871-72. We also conclude that the jury’s determination that Edna will continue to suffer physical pain and mental anguish of the type she has suffered in the past is a reasonable one, and that the evidence supports, as a category of damages, the jury’s award of future physical pain and mental anguish damages.
After reviewing all the evidence, we conclude the evidence is legally sufficient to support the jury’s finding of and awards of damages for past and future physical pain and mental anguish. Similarly, bearing in mind that we must not substitute our judgment for that of the fact finder, we cannot say that the evidence supporting the jury’s finding of and awards for past and future physical pain and mental anguish damages is so weak or so contrary to the overwhelming weight of all the evidence as would lead us to conclude that the jury’s determinations are wrong.
Physical Impairment
The jury awarded Edna $300,000 for past physical impairment and $15,000 *242for physical impairment that Edna would reasonably sustain in the future. Telesis complains that these sums are not supported by legally and factually sufficient proof.
Physical impairment, which is sometimes called loss of enjoyment of life, encompasses the loss of the injured plaintiffs former lifestyle. See Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 412 (Tex.App.-Houston [14th Dist.] 2001, pet. granted, judgment vacated w.r.m.), disapproved on other grounds by Roberts v. Williamson, 111 S.W.3d 113 (Tex.2003); Wal-Mart Stores, Inc. v. Holland, 956 S.W.2d 590, 599 (Tex.App. — Tyler 1997), rev’d on other grounds, 1 S.W.3d 91 (Tex.1999)(per curiam). “To receive damages for physical impairment, the injured party must prove that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated.” Schindler Elevator Corp., 78 S.W.3d at 412; Peter v. Ogden Ground Serv., Inc., 915 S.W.2d 648, 650 (Tex.App. — Houston [14th Dist.] 1996, no writ). A plaintiff must produce some evidence showing the tasks or activities she is unable to perform, unless the separate and distinct loss is obvious. Estrada v. Dillon, 44 S.W.3d 558, 561 (Tex.2001)(evidence of physical impairment must focus on restriction of activities caused by the injury). However, a plaintiff need not prove an inability to perform an act that she was previously able to perform. Dodge v. Watts, 876 S.W.2d 542, 543-44 (Tex.App.-Amarillo 1994, no writ). Nor must a plaintiff prove egregious injuries to recover physical-impairment damages. Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 824 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).
Prior to the event in her apartment, Edna had been living in a completely independent manner, was very outgoing and lively, walked within her apartment without a walker, and would use a rolling walker outside of her apartment to walk “quite a distance” to the dining hall and central activities area where she would play cards, bingo, and dominoes with her friends in the afternoon, making trips back and forth daily, and could still do the things she enjoyed. Edna was happy and enjoyed the people and her neighbors at Parkwood. Janet explained that Edna liked to play cards and dominoes with her friends, go to the library, and would sometimes attend church services at Parkwood. Edna would eat dinner in her apartment, and bathe herself before watching television and going to bed. Although Edna was at that time experiencing progressive hearing loss and arthritic knees, she had no special needs or special risks that existed before July 2008. Janet testified that at the time of trial, Edna had a very strong heart, did not have high blood pressure, diabetes, or any other underlying medical conditions, and had no need to check on Edna every day because there was no concern that she was at risk for sudden events. James testified that before the incident, Edna did everything herself, cooked her own breakfast, clothed and bathed herself, and walked a long distance to the Parkwood dining room. Dr. Chapman testified that Edna suffered permanent muscle damage and weakness. He agreed that it would be best that Edna no longer live in ah independent retirement facility because the initial cause of the event was unexplained and “this could happen again.” He also recalled a “physical therapy note” suggesting that Edna “go to skilled nursing also.”
Janet explained that Edna’s ability to maneuver and get around changed vastly after July 2008, as Edna is now physically *243confined to a wheelchair and “needs assistance with basically everything” twenty-four hours a day. Although Edna reads the newspaper and plays cards and bingo, Janet and James no longer take Edna to their home because it is “very difficult to transport her,” and in arranging for Edna to be present during trial, “hired a medical taxi so that they could push the wheelchair into that and she wouldn’t have to transfer.” At the time of trial, James explained that Edna was in a skilled nursing facility and her lifestyle had dramatically changed. Edna was no longer able to clothe or bathe herself or walk long distances as she did before the injury, and could no longer cook her own breakfast, or use the bathroom by herself. Janet goes to the facility daily and assists Edna by changing her clothes and soiled clothing, preparing Edna to go to her meals, and making sure everything is taken care of.
In Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex.2003), the Texas Supreme Court directed that a jury should be instructed that the effect of any physical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages or diminished earning capacity and that a claimant should not be compensated more than once for the same elements of loss or injury. Id. Here, the trial court instructed in part:
Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss[J Do not include interest on any amount of damages you find. Do not include any amount for any condition not resulting from the injury in question.
This instruction substantially comports with the Texas Supreme Court mandate in Golden Eagle Archery, Inc., 116 S.W.3d at 772; see also Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 554 (Tex.App. — Fort Worth 2006, pet. denied) (instruction that jury consider the elements of damages listed and none other, consider each element separately, and in answering question jury not award any sum of money on any element if has otherwise, under some other element, awarded sum of money for same loss, “that is, do not compensate twice for the same loss[,]” held to substantially comport with Golden Eagle).
Because there is more than a scintilla of evidence to show that Edna suffered a loss of enjoyment of life in her style of living, and because the evidence is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, we conclude the evidence is legally and factually sufficient to support the jury’s award of past and future physical impairment damages.
Medical Damages
The jury awarded Edna the sum of $43,108.62 in medical care expenses incurred in the past. Telesis stipulated to this “amount [as] they were reasonable and necessary costs paid in connection with the treatment of Ms. Anderson arising out of the event.” At the conclusion of trial, Edna’s counsel objected to the inclúsion of medical damages as a component of Question 2 and moved for directed verdict on the stipulated medical damages. Teles-is countered that although it had stipulated to the amount of the damages, “there is a causal link between that and conduct on the part of Parkwood [that] was not stipulated to.” The trial court informed counsel that it would reopen the evidence the following morning and read the stipulation to the jury. Telesis then objected to Question 2, asserting that there was no evi*244dence linking causation of Edna’s medical care expenses to Telesis’ conduct. The trial overruled the objection.
On appeal, Telesis now complains “[n]o logical basis exists for the jury’s implicit conclusion that [Edna] suffered no harm requiring medical treatment due to the fall and her time on the [ground] before an act or omission of Parkwood became significant.”' It argues, “The medical damages award should be reversed along with the four other categories of compensatory damages.” This is almost verbatim the entirety of Telesis’ complaint. As Tel-esis cites no legal authority in support of its complaint, the complaint is improperly briefed. Tex.R.App. P. 38.1(i). We also note that Telesis’ complaint on appeal does not comport with its complaint to the trial court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997)(complaint on appeal must be same as that presented in trial court). An appellate court cannot reverse based on a complaint not raised in the trial court. Id.
Nonetheless, we again observe that the jury concluded by sufficient evidence that Telesis’ negligence caused Edna’s “injury in question.” We additionally observe that Dr. Chapman testified that it was a fair characterization to say that the length of time Edna was on the floor was the most likely cause of her rhabdomyolysis and, had she been attended to earlier, she would have experienced less muscle damage. The doctor noted that it did not appear that anything had fallen on Edna or had crushed a limb, she had no fractures, head injury, or acute stroke, and he was confident she had not experienced a cardiac event, and he testified that there was nothing about Edna’s condition other than the muscle disintegration she experienced that prevented her from returning to her pre-event physical status.
Sympathy
Telesis complains that “Anderson’s family made a pitch for sympathy from the jury through testimony irrelevant to any proper category of damages,” and argues, “The law does not countenance awarding compensatory damages based upon such pure sympathy pleas.” Telesis has failed to direct us to any portion of the record where this complaint was preserved in accordance with Rule 33.1. Tex.R.App. P. 33.1(a). Having reviewed the complained-of testimony, we find that Telesis did not object to this testimony during trial. Therefore, we conclude Telesis has failed to preserve this issue for our consideration. Tex.R.App. P. 33.1(a). For the foregoing reasons, Issues Nine and Ten are overruled.
IV. GROSS NEGLIGENCE
In multiple issues, Telesis challenges the legal and factual sufficiency of the evidence to support the jury’s gross negligence findings. Before analyzing the issues, we set out the relevant provisions and standards for finding and reviewing gross negligence.
Gross negligence consists of both objective and subjective elements. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137-38 (Tex.2012) (citations omitted). A plaintiff asserting a gross negligence cause of action must prove by clear and convincing evidence: (1) that when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. See id; Tex. Civ. Prac. & Rem.Code Ann. § 41.001(11)(West 2015).
*245“ ‘Clear and convincing’ means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Civ. Prac. & Rem.Code Ann. § 41.001(2)(West 2015); U-Hcml Int’l, Inc., 380 S.W.3d at 137. “[I]n other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care.” La-Pac. Corp. v. Andrade, 19 S.W.3d 245, 246-47 (Tex.1999).
Under the objective component of gross negligence, “extreme risk” is not a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiffs serious injury. U-Haul Int’l, Inc., 380 S.W.3d at 137; Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998). The subjective prong requires that the defendant knew about the risk, but that the defendant’s acts or omissions demonstrated indifference to the consequences of its acts. U-Haul Int’l, Inc., 380 S.W.3d at 137-38. Awareness of an extreme risk does not require proof that the defendant anticipated the precise manner in which the injury would occur or be able to identify to whom the injury would befall. Id. at 139. The fact that a defendant exercises some care does not insulate the defendant from gross negligence liability. Ellender, 968 S.W.2d at 923-24 (citations omitted). Circumstantial evidence may suffice to prove either element of gross negligence. Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex.2014).
Thus, to support her gross negligence claim, Edna was required to show that Telesis was aware that either the failure to check on Parkwood residents who missed a meal or the failure to maintain an operational emergency call unit in Edna’s apartment posed an extreme degree of risk, that is, likelihood of harm to Edna, and had actual, subjective awareness of the risk involved in failing to check on a Park-wood resident who missed a meal or leaving a non-working emergency call unit in a Parkwood resident’s apartment, but nevertheless proceeded to fail to check on Edna or to repair her non-working emergency call unit with conscious indifference to Edna’s safety or welfare.
Clear and Convincing Evidence Standards of Revieiu
We employ heightened standards of review when a sufficiency challenge is made on evidence to be established by clear and convincing evidence. “A legal sufficiency review of a finding required to be based on clear and convincing evidence must take into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter required to be established by clear and convincing evidence.” HCRA of Texas, Inc., 178 S.W.3d at 868, citing In re J.F.C., 96 S.W.3d 256, 264-68 (Tex.2002) (citations omitted). We consider all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. See In re J.F.C., 96 S.W.3d at 266. That is, if after conducting our legal sufficiency review of the record evidence, we determine that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient. Id.
In conducting a factual-sufficiency review of evidence to be proven by clear and convincing evidence, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. Our inquiry is whether the *246evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth- of the allegations. Id. We consider whether disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. Id. at 266-67. Evidence is factually insufficient if, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction. ■ Id.
Procedural Background
In the trial court, Telesis sought, and the trial court denied, a directed verdict on Edna’s gross negligence and malice claims on the basis she had failed to present evidence of an actual awareness of an extreme degree of risk considering the probability of the harm. Telesis objected to the trial court’s “Question 5” on the basis that there was no evidence of a subjective awareness by a Parkwood vice-principal regarding conduct that would involve an extreme degree of risk considering the probability of harm. The trial court overruled the objection and denied Telesis’ tendered instruction, which included a definition of “vice-principal.” Telesis did not object to Question 3 of the trial court’s charge, which asked and instructed:
Do you find by clear and convincing evidence that the harm to Edna Anderson found in response to Question 1, if any, resulted from gross negligence?
“Clear and convincing evidence” means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.
“Gross negligence” means an act or omission by Parkwood Retirement Community,
(a) which when viewed objectively from the standpoint of Parkwood Retirement Community at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(b) of which Parkwood Retirement Community has actual, subjective awareness of the risk involved, but neverthe- • less proceeds with conscious indifference to the rights, safety, or welfare of others.
To this question the jury answered, “Yes.” In response to Question 4, which asked the jury what sum of money, if any, should be assessed against Parkwood Retirement Community and awarded to Edna as exemplary damages for the conduct found in response to Question 3, the jury awarded exemplary damages of $1,680,000.5
• In its motion for new trial, Telesis complained the evidence was factually insufficient to support either the elements of gross negligence or the jury’s finding that Parkwood’s gross negligence proximately caused injury to Edna. It specifically complained the evidence was insufficient to show that Nafziger or anyone else acting for Parkwood had any objective or subjective awareness of an extreme risk of serious injury to Edna, or that Nafziger had any subjective awareness that Edna was at risk of falls or collapses that were likely to result in serious injury in the event that help was not immediately forthcoming.
*247
Analysis
In Issues Eleven and Twelve respectively, Telesis argues there was no clear and convincing evidence that was legally or factually sufficient to show Park-wood’s gross negligence caused harm to Edna. We address these issues together.
We first note that Edna was not required to show that Telesis’ “gross negligence” caused Edna’s harm. Indeed, it has been said, ‘What lifts ordinary negligence into gross negligence is the defendant’s mental attitude.” Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 721 (Tex.App.-San Antonio 1994, writ denied) (citations omitted). Ordinary negligence is a prerequisite to establish gross negligence. Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex.App.-Fort Worth 1996, writ denied). We have already determined that Edna presented legally and factually sufficient evidence to warrant the jury’s verdict finding Telesis’ negligence caused her harm. However, evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. See Ellender, 968 S.W.2d at 921; HCRA of Texas, Inc., 178 S.W.3d at 873. We therefore interpret and address Telesis’ Issues Eleven and Twelve as challenges to the legal and factual sufficiency of the evidence to prove gross negligence by clear and convincing evidence and disregard Telesis’ contentions regarding the sufficiency of the evidence to support a finding of causation of “ordinary” negligence. As Telesis did not challenge the sufficiency of the evidence to support the objective component of gross negligence, we further restrict our review to the sufficiency of the evidence to support the jury’s finding regarding the subjective component of gross negligence.
In examining proof of the subjective component of gross negligence, courts focus on the defendant’s state of mind, examining whether the defendant knew about the peril caused by his conduct but acted in a way that demonstrates he did not care about the consequences to others. Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789, 796 (Tex.2012) (citations omitted) (non-personal injury case). Determining whether an act or omission involves peril requires “an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.” Id.
Reginald Austin, Telesis’ Food Services Director at Parkwood at the time of Edna’s incident provided testimony regarding the meal no-show check that was not performed. Austin, a fourteen-year employee at Parkwood, explained the meal no-show check procedures, which included comparing the meal no-show list to a list “in front of the office” noting that a resident would not be present for a meal, and explained that “a lot of times no one on the staff went to check on somebody because a lot of times there wasn’t a manager there when we checked.” Austin would then call no-show residents and would go to the .apartment of those residents who could not be contacted by phone. On the date that Edna missed her meal, Austin was not working and his cook bore his responsibilities for the meal no-show check but did not perform them. Austin disagreed that the meal no-show check was a safety feature but was a courtesy “just in ease” but understood the procedure to serve the purpose of notifying a resident’s family members if the resident was found to have died. Austin recalled an occasion many years earlier regarding a resident who had been seen being transported to the hospital but returned to her apartment that same night. Believing that the resident was still at the hospital when she did not appear for her meal, no one from Parkwood checked *248on her. The resident was later found to have slipped and fallen in her apartment and had died. The cook who failed to check on Edna did not testify.
Nafziger described the meal no-show check as “a practice that we would hope would catch something very bad from happening before more than a day goes by.” She did not believe the practice was a safety feature but when asked whether the cook’s failure to check on Edna was negligence, Nafziger answered, “I would probably have to say yes.” Nafziger also admitted that it was possible to foresee in certain circumstances that negligently failing to check on someone who had fallen could lead to great harm, including death. Nafziger denied knowledge of the incident described by Austin where a Parkwood resident was found dead after failing to perform a meal no-show check. However, the evidence shows that she knowingly did not test the emergency call units weekly in accordance with the manufacturer’s warnings, she knew that residents may not be aware when the system is not operational as she had discovered non-working systems under such circumstances, she admitted that no policy for documenting injuries or incidents exists other than her entering her own notations on her calendar, she acknowledged that on one occasion she had been notified that Edna’s emergency call unit was not operational, and she stated that it was her practice to throw away units without performing tests to verify whether they are operational.
Viewing all of the evidence in the light most favorable to the jury’s gross negligence finding, we conclude that Edna proved by clear and convincing evidence, such that the jury could reasonably form a firm belief or conviction about the truth of the matter, that Nafziger objectively knew that the failure to test and keep the emergency call units properly functioning involved the likelihood of serious injury to Parkwood’s residents, considering the probability and magnitude of the potential harm to those residents, and that Nafziger subjectively knew of the risk involved, but nevertheless proceeded with conscious indifference to the safety or welfare of Park-wood’s residents, including Edna. Because the evidence to support the jury’s gross negligence finding is supported by legally-sufficient clear and convincing evidence, Issue Eleven is overruled.
Giving due consideration to evidence that the fact finder could reasonably have found to be clear and convincing, inquiring whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the allegations, and considering whether disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding, we conclude, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is not so significant that the fact finder could not reasonably have formed a firm belief or conviction. Because the jury’s gross negligence finding is supported by clear and convincing factually-sufficient evidence, Issue Twelve is overruled.
In Section Six of its brief, Telesis intertwines without delineation Issues Thirteen, Fourteen, Fifteen, Sixteen, and Seventeen. In its “Issues Presented” provided at the outset of its brief, Telesis initially complains in Issues Thirteen and Fourteen that, given the legal and factual insufficiency of clear and convincing evidence to support the finding of gross negligence, we should set aside the exemplary damages and render judgment or remand the case accordingly. As we have determined that the jury’s gross negligence finding is supported by legal and factual sufficient evi*249dence under a clear and convincing burden of proof, Issues Thirteen and Fourteen are overruled.
In Issue Fifteen, Telesis asserts that we should reverse the punitive damages and render judgment because the trial court erroneously refused to instruct the jury regarding the necessity of acts or omissions of a Telesis vice-principal for gross negligence punitive damages. We observe that although Telesis tendered to the trial court a requested instruction that was rejected, Telesis did not object to the trial court’s gross negligence question or instruction set out in Question 4 on the basis that it did not include a vice-principal instruction but rather objected on the basis that evidence of subjective awareness by a vice-principal was lacking. Unlike the negligent undertaking instruction to which Telesis objected and tendered a requested question and instruction, in this instance, Telesis tendered a proposed gross negligence instruction but did not object to Question 3 of the trial court’s charge regarding gross negligence as tendered to the jury. Tex.R.App. P. 33.1(a); Tex.R. Civ. P. 274; see Thota, 366 S.W.3d at 691 (party’s objection to submitted charge along with submission and presentation of proposed charge to the trial court according to its theory of the case sufficient to notify trial court of its belief that evidence does not support the challenged instruction). As Telesis has failed to properly preserve or argue its complaint, Issue Fifteen is overruled.
In Issues Sixteen and Seventeen, Telesis argues that that we should reverse the jury’s punitive damages award and render judgment because the evidence is legally and factually insufficient in showing an act or omission of a Telesis vice-principal constituting gross negligence. In its argument, however, Telesis does not present the issues it previously identified in its “Issues Presented” but rather sets out four sub-issues complaining of legal and factual insufficiency under a burden of proof of clear and convincing evidence to show its vice-principle committed a grossly-negligent act or omission regarding Parkwood’s meal no-show check and emergency call systems, and a fifth sub-issue complaining that the trial court erred in refusing a proper instruction regarding the vice-principal requirement for gross negligence punitive damages. Arguments in support of Issues Thirteen and Fourteen, which we have overruled, appear also to have been subsumed within the arguments of Issues Sixteen and Seventeen in Telesis’ brief but are not distinctly set out as such.
In the body of its argument, Telesis first argues there is no evidence that accords Parkwood’s cook, Mitzy Huckaby, the status of a vice-principal, therefore, no punitive damages are appropriate based upon the negligence related to the meal-no show. Telesis next contends, “The only employee related to the call system negligence claim who could be argued by Plaintiff to be a vice-principal is Mary Nafziger.” Telesis seems to argue that although Nafziger was the director of Parkwood, that position was insufficient to qualify her as one who “ran a ‘department or division’,” and vigorously asserts that the jury’s gross negligence finding and punitive damage award must be stricken.6 Again without citation to any legal authority, Telesis then argues that coupling negli*250gence as to the meal no-show check with the vice-principal acts of Nafziger in relation to the emergency call system because the vice-principal must commit the grossly negligent acts or omissions causing damages. Tex.R.App. P. 33.1(a), 38.1(i). Teles-is concludes its “argument” by asserting that Edna failed to plead, argue, or prove “the other theoretical means of supporting gross negligence punitive damages ... [relating to the] hiring [of] an unfit agent or authorizing or ratifying [such] agent’s gross negligence” and must persuade this Court that she satisfied the vice-principal requirement.
A corporation may be liable in punitive damages for gross negligence only if the corporation itself commits gross negligence. Ellender, 968 S.W.2d at 921. However, a corporation can act only through “agents of some character[.]” Id. (citation omitted). Thus, a corporation can be held to have committed acts of gross negligence by the actions of a vice-principal. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 388-89 (Tex.1997). The term “vice-principal” encompasses: (a) corporate officers; (b) those who have authority to employ, direct, and discharge servants of the master; (c) those engaged in the performance of non-delegable or absolute duties of the master; and (d) those to whom the master has confided the management of the whole or a department or a division of the business. Ellender, 968 S.W.2d at 922. A corporation is also liable for punitive damages if it authorizes or ratifies an agent’s gross negligence or if it is grossly negligent in hiring an unfit agent. Id. at 921.
As opposed to looking only to a single detail or group of factors, in determining whether a corporation itself is grossly negligent, we must look to the totality of the surrounding facts and circumstances. Id. at 922. “Whether the corporation’s acts can be attributed to the corporation itself ... is determined by reasonable inferences the factfinder can draw from what the corporation did or failed to do and the facts existing at relevant times that contributed to a plaintiffs alleged damages.” Id. If the totality of the evidence is sufficient to lead to the inference that agents of the corporation were aware of the risk to which others were being exposed, such an inference is sufficient to support corporate liability. Id. at 924.
We agree the evidence does not support a finding that Ms. Huckaby, the cook on duty oh the day Edna was discovered, was a vice-principal of Telesis. However, there is ample evidence that Mary Nafziger is Telesis’ vice-principal under these facts. Nafziger was Parkwood’s director, the person to whom everyone at Parkwood reported on a daily basis, the only person who was responsible for testing and rendering the emergency call units operational, and the person who twelve years earlier had read the warnings that the emergency call unit, recalled that the manual instructed that the units be tested weekly and included a weekly checklist for such testing, and admitted that weekly tests were not performed on the emergency call units. For twelve years of her employment at Parkwood, Nafziger alone was responsible for working with the emergency call systems and changing the batteries in them, including the period when Edna was a resident at Parkwood. According to Nafziger, she believed that “corporate” probably had informed her she did not need to test the emergency call units weekly.
There was unobjected-to evidence that a Parkwood housekeeper had informed Janet that she had reported that Edna’s emer*251gency call device had not been working.7 Parkwood’s maintenance supervisor also testified that Andrea, a Parkwood housekeeper, had reported four times to Park-wood’s management that Edna’s emergency call unit was not working. Nafziger recalled an occasion when Anderson’s emergency call unit had been reported but could not recall when the report had been made.
Nafziger agreed that the units could malfunction not only due to depleted batteries but also because of electrical surges or damage from being, dropped. Nafziger explained that work orders are not created for malfunctioning emergency call systems, and that she would check the emergency call box herself. She also purchased batteries for the pendants and replaced them, and said she had changed Edna’s batteries three months earlier. Nafziger expressly stated, “I take responsibility for making sure that [the emergency call unit is] in a working mode.” When asked if it is foreseeable that if she failed to check the unit, it may not be working, Nafziger acknowledged that it was a possibility. Nafziger stated that she knew of three or four occasions when she had gone to change batteries in emergency call units and found them to not be operational. Nafziger threw away Edna’s emergency call unit box away on the night Edna was discovered, without testing any components for functionality, because she understood from her Parkwood’s maintenance supervisor Dennis Jackson, the on-site responder, that it was felt there was a problem with Edna’s “emergency box,” a component of the system which is plugged into an outlet and contains a backup battery. ' Nafziger kept Edna’s pendant component of the emergency call system but replaced Edna’s emergency call unit that she threw away.
Nafziger admitted that she informed James and Janet that Parkwood’s back-up system of checking on residents had broken down and apologized for not checking on Edna “as we should.” Nafziger admitted that she realized that if Edna had not been able to reach her family on the phone, she could have died before the next day because she had not been checked on.
Because legally and factually sufficient clear and convincing evidence shows an act or omission of Telesis’ vice-principal constituted gross negligence, Issues Sixteen and Seventeen are. overruled.
V. SPOILATION INSTRUCTION
In Issue Eighteen, Telesis initially complains the trial court’s charge included an improper spoliation instruction which probably caused the rendition of an improper verdict. In its charge, the trial court instructed the jury that Parkwood Retirement Community had a duty to exercise reasonable care to preserve the call box and a list of replacement units, and that it may presume from the destruction of these items of evidence that they would have been unfavorable to Parkwood. Of course, Telesis did not tender or request a spoliation instruction.8
*252
Preservation
Edna counters that Telesis did not preserve its specific spoliation complaints. Telesis made a single objection to the trial court’s spoliation instruction:
[0]n the grounds that there is not a proper predicate in the evidence, and specifically in the Texas Supreme Court as required in the Wal-Mart v. Johnson case that Parkwood knew or should have known that there was a substantial chance that a claim would be filed and that the evidence in Parkwood’s possession and control would be material or relevant to that claim. We don’t believe that the evidence supports that, and so we would object to that instruction.9
A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Tex.R. Civ. P. 274; see also Tex.R. Civ. P. 272 (all objections not presented to the court in writing or dictated to the court before the charge is read to the jury are considered waived); Tex.R.App. P. 33.1. The Texas Supreme Court has noted that the important “purpose of Rule 274 is to afford trial courts an opportunity to correct errors in the charge by requiring objections both to clearly designate the error and to explain the grounds for complaint.” Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex.2014), quoting Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex.1987). Ultimately, the test is “whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” Burbage, 447 S.W.3d at 256, quoting State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992).
Within Issue Eighteen of its appellate brief, Telesis complains in five sub-parts that the trial court improperly determined and instructed the jury that Telesis had a duty to preserve two items and had improperly instructed the jury that Telesis breached its duty to preserve two items, that it erred in using a spoliation instruction against it concerning a “ ‘list of replacement units’ when there was no evidence such a list ever existed,” that the instruction improperly and conclusively instructed the jury that Telesis’ discarding of potential evidence was more significant than the discarding of evidence under Edna’s control, and improperly foreclosed Telesis’ ability to rebut its adverse presumption. None of these specific complaints were presented to the trial court. *253Because Telesis did not present these specific complaints to the trial court and they did not form the basis of Telesis’ objection to the trial court, they are not preserved for our consideration.
The specific ground on which Telesis objected to the spoliation charge was its assertion that the predicate for a spoliation instruction was not supported by evidence that there was a substantial chance that Edna would pursue a claim and that the evidence in Telesis’ possession and control would be material or relevant to that claim. This is the only ground preserved for our consideration on appeal. To the extent Telesis has presented legal authority and argument within Issue Eighteen bearing on its preserved complaint as may be enrobed within its broad, general assertion that the trial court “erred in including a spoliation instruction” in its charge, we restrict our analysis to a determination of whether there is evidence that there was a substantial chance that Edna would pursue a claim and that the evidence within Teles-is’ possession and control would be material and relevant thereto.
Spoliation Analytical Framework
Evidentiary matters are to be resolved by the trial court, and discovery matters, too, are within the trial court’s sole province.10 See Brookshire Bros. Ltd. v. Aldridge, 438 S.W.3d 9, 18, 19-20 (Tex.2014) (citations omitted unless noted). Spoliation is both an evidentiary concept and, as it results in the failure to produce discoverable evidence, a particularized form of discovery abuse. Id. at 20. Therefore, it is the trial court that “must determine whether a party spoliated evidence and, if so, impose the appropriate remedy.” Id. The placement of this responsibility on the trial court is key to ensuring the jury’s focus remains on the merits of the case. Id.
Texas courts necessarily enjoy wide latitude in determining the proper remedy for acts of discovery abuse, including spoliation. Id. at 18. Regarding spoliation, courts have broad discretion to utilize a variety of remedies, including a spoliation instruction. Id. at 17. A spoliation instruction “is given to compensate for the absence of evidence that a party had a duty to preserve^]” Wal-Mart Stores v. Johnson, 106 S.W.3d 718, 724 (Tex.2003). Although important, the very purpose of a spoliation instruction remedy is to nudge or tilt the jury toward a finding that is adverse to the alleged spoliator. Brookshire Bros., Ltd., 438 S.W.3d at 17. The presentation of evidence that emphasizes the spoliator’s wrongful conduct magnifies this nudging or tilting. Id. Often, the unfortunate consequence of submitting a spoliation instruction that constitutes too difficult a hurdle for a spo-liator to overcome is the ending of the litigation. Id.
Evidence spoliation is a serious issue. Brookshire Bros., Ltd., 438 S.W.3d at 16. The failure to reasonably preserve discoverable evidence may significantly hamper the ability of the nonspoliating party to present its claims and defenses. Id. citing Wal-Mart Stores, 106 S.W.3d at 721. Spoliation of evidence can also undermine the “truth-seeking function of the judicial system and the adjudicatory process[.]” Brookshire Bros., Ltd., 438 S.W.3d at 16-17. The Texas Supreme Court has ae-*254knowledged that a missing piece of evidence can be irreplaceable, and has observed, “Testimony as to what the lost or destroyed evidence might have shown will not always restore the nonspoliating party to an approximation of its position if the evidence were available; sometimes a picture is indeed worth a thousand words.” Id. at 17.
“[A] party alleging spoliation bears the burden of establishing that the nonproducing party had a duty to preserve the evidence.” Brookshire Bros., Ltd., 438 S.W.3d at 20, citing Wal-Mart Stores, 106 S.W.3d at 722. A duty to preserve evidence arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in the party’s possession or control will be material and relevant to that claim. Brookshire Bros., Ltd., 438 S.W.3d at 20, citing Wal-Mart Stores, 106 S.W.3d at 722. The Texas Supreme Court has explicitly recognized that a party seeking a spoliation remedy must demonstrate that the other party breached its duty to preserve material and relevant evidence, and that such duty is inherently breached by failing to exercise reasonable care to preserve evidence. Brookshire Bros., Ltd., 438 S.W.3d at 20, citing Wal-Mart Stores, 106 S.W.3d at 722.
Analysis
We employ an abuse of discretion standard when reviewing a trial court’s imposition of a spoliation remedy, including its submission of a spoliation instruction to the jury, and when evaluating a trial court’s admission of evidence. Brookshire Bros., Ltd., 438 S.W.3d at 27. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id. at 242. A trial court’s error is reversible only if it probably caused the rendition of an improper judgment. Brookshire Bros., Ltd., 438 S.W.3d at 29. “[I]f a spoliation instruction should not have been given, the likelihood of harm from the erroneous instruction is substantial, particularly when the case is closely contested.” Brookshire Bros., Ltd., 438 S.W.3d at 29, quoting Wal-Mart Stores, 106 S.W.3d at 724.
The evidence at trial showed that after Janet had called Parkwood’s emergency line and Dr. Chapman, and after James had dialed 9-1-1, and while emergency technicians were tending to Edna in her apartment, a Telesis employee, Dennis Jackson, entered the apartment and informed James that he was replacing the emergency call system because it did not work. A housekeeper informed Janet that she had reported that Edna’s emergency call device was not working on several occasions while making Edna’s bed and had reported that the unit was not operating. Howard Allred, the maintenance supervisor, testified that Andrea, a housekeeper, had informed him that she had reported on four occasions that Edna’s emergency call device was not working, and there was evidence that Telesis’ CEO had threatened to terminate Allred’s employment if he notified anyone of those reports. Nafziger admitted that a housekeeper, Andrea, had informed her on one occasion that Edna’s emergency call unit was not working.
*255Edna was hospitalized on July 6, 2008, and was discharged on July 9, 2008. James and Janet testified that when they met with Nafziger after Edna left the hospital, Nafziger admitted to them that the emergency call system did not work. Although Nafziger did not recall informing James and Janet that the emergency call unit had failed, she was the only person responsible for the programming, maintenance, and testing of the emergency call units, and admitted that she did not test the units weekly in accordance with the manufacturer’s warnings but, rather, only on an annual basis. Nafziger admitted previously discovering that emergency call systems were not. operational when residents had not been aware of this fact. Nafziger did not test the pendant component of Edna’s emergency system and threw away Edna’s base transmitter unit, purportedly before a corporate risk manager requested that she save the device, but admitted that there was no way to know whether Edna’s system worked without testing it.
We conclude the trial court did not err in overruling Telesis’ single objection to the spoliation instruction on the sole basis that the evidence did not establish that it knew or should have known that there was a substantial chance that a claim would be filed and that the evidence in its possession and control would be material or relevant to that claim, or in giving the spoliation charge. The evidence shows and supports the trial court’s conclusion that Telesis knew or reasonably should have known that there was a substantial chance that Edna would file a claim, and that the emergency call unit, specifically the transmitter from Edna’s room that was replaced before she was transported from her apartment to the hospital and was then thrown away by Nafziger, would be material and relevant to that claim. Because the trial court did not err, Issue Eighteen is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Rivera, J., not participating
. As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the precedent of that court. Tex. R. Apr P. 41.3.
. Telesis lodged no objections or arguments at trial regarding allocation of compensatory damages, nor requested the trial court to instruct the jury regarding allocation of compensatory damages during trial.
. The issues initially identified in the “Issues Presented” portion of Telesis' brief do not strictly align with the arguments later presented. Indeed, it may be said that the issues presented are multifarious, but we address those issues we have reasonably discerned from the arguments.
. There is only one medical record in evidence noting that Edna reported her pain level as registering 1 out of 10. All other medical records indicate Edna reported no pain.
. In its judgment, the trial court awarded exemplary damages in the sum of $587,217.24.
. Telesis alternatively argues that if the evidence is sufficient to qualify Nafziger as a vice-principal but the evidence is insufficient as to the negligent causation of harm arising in relation to the emergency call system, the punitive damages cannot survive. As we have concluded the evidence is sufficient to support the jury’s negligent causation finding, we need not address this alternative argument.
. Inadmissable hearsay admitted without objection shall not be denied probative value merely because it is hearsay. Tex. R. Evid. 802.
. Interestingly, Edna’s amended pretrial jury charge proposed this instruction:
"You are instructed that, when a party has possession of a piece of evidence at a time he knows or should have known it will be evidence in a controversy, and thereafter he . disposes of it, alters it, makes it unavailable, or fails to produce it, there is a presumption in law that the piece of evidence, had it been produced, would have been unfavorable to the party who did not produce it. If you find by a preponderance of the evidence that Parkwood had possession of the *252Emergency Call System from Edna Anderson's apartment at a time it knew or should have known it would be evidence in this controversy, then there is a presumption that the Emergency Call System from Edna Anderson’s apartment if produced, would be unfavorable to Parkwood[.] This presumption may be rebutted by Parkwood with the evidence of a reasonable explanation for the non-production of the evidence. Approved by Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214, 225 (Tex.App.Amarillo 2003)(no pet.)[.]"
In its brief, Telesis, too, cites this specific instruction and case and asserts, "Use of that approach would have allowed the jury to assess the circumstances facing Nafziger on July 6, 2008, and weigh the overall actions of Defendants to decide whether a duty existed.”
. In its motion for new trial, Telesis complained that the trial court erred in submitting the spoliation instruction generally, and specifically on bases that: (1) it instructed the jury that it had a duty to preserve "two items” when a factual dispute exited regarding whether it knew or should have known of a substantial chance of litigation and destroyed items that would have been material to the litigation; (2) no evidence that a list of replacement units ever existed; (3) it did not allow the jury to consider evidence rebutting the presumption that the destroyed evidence was unfavorable to Telesis; and (4) undisputed evidence showed Telesis promptly tried to preserve potential evidence.
. After this case was submitted for our consideration, the Texas Supreme Court crafted an analytical framework for finding spoliation and imposing an appropriate remedy in the event of such finding. See Brookshire Bros. Ltd. v. Aldridge, 438 S.W.3d 9, 18, 19-20 (Tex.2014) (citations omitted unless noted). Neither the trial court nor the parties had the benefit of this framework at relevant times prior to submission of the case on appeal. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5283994/ | WAYMOND M. BROWN, Judge |,Appellant appeals from the circuit court’s disposition order in her juvenile delinquency case. On appeal, her sole argument is that the trial court erred by imposing an illegal sentence. We affirm. Appellant and her mother entered a Kohl’s department store in Rogers, Arkansas, on three different occasions.1 On each occasion,''appellant would enter with a visibly empty bag; select clothing; enter the dressing room, where she would remain for no more than two minutes; exit the dressing room with no merchandise, but a visibly larger bag; and then return merchandise from her now visibly larger bag to the store at its point-of-sale register for a merchandise credit card. Appellant always returned the merchandise by herself. IgBecause there was no receipt for the merchandise on any occasion, appellant was required to provide identification to complete the returns. She provided her driver’s license. She was identified by the store’s loss-prevention supervisor via the excessive number of returns to the store without a receipt under her driver’s license number. Her thefts on each occasion were verified by video. She was apprehended and detained on March 22, 2013, when appellant and her mom completed the same actions and attempted to return the stolen merchandise. A delinquency petition for one count of theft of property, a Class A misdemeanor, was filed on March 10, 2014.2 A trial was held on the matter on July 16, 2014. At its conclusion, ruling from the bench, the circuit court stated that is was “going to defer finding [appellant] guilty for three months. Pay court costs of $35. Pay a fine of $100.” The court then set a review hearing for October 8, 2014, informing appellant that “if [she stays] out of trouble, and pay[s] that, [the court will] probably just dismiss the case at that time.” Appellant was required to report to probation during the intervening three months before the review hearing. In its August 5, 2014 order, the circuit court found appellant guilty of theft of property, a Class A misdemeanor; placed appellant on probation for three months; and further ordered her to “pay Court Costs of thirtyrfive dollars ($35.00) and ^restitution to Benton County in lieu of a fine in the amount of one hundred dollars ($100.00).” This timely appeal followed. An issue of an illegal sentence goes to subject-matter jurisdiction, and we may review the issue whether or not an objection was made in the circuit court.3 A sentence is void or illegal when the court lacks authority to impose it.4 Referring to the circuit court’s ruling from the bench, appellant asserts that the court entered an illegal sentence against her for deferring her delinquency-finding, but imposing a sentence on her nonetheless. Her argument is in error as it ignores the circuit court’s written order. If a juvenile is found to be delinquent, the circuit court may enter an order making any of the following dispositions, among other listed actions, based upon the best interest of the juvenile: 1. Place the juvenile on probation under those conditions and limitations that the court may prescribe pursuant to Arkansas Code Annotated section 9-27-339(a),5 2. Assess a court cost of no more than thirty-five dollars to be paid by the juvenile, his or her parent, both parents, or his or her guardian,6 and 3. Order restitution to be paid by the juvenile, a parent, both parents, the guardian, or his or her custodian.7 |4The circuit court did orally state that it was deferring a finding of delinquency before orally sentencing appellant three months’ probation, ordering her to pay to $35 for court costs, and ordering her to pay a fíne of $100. However, the circuit court’s written order included a finding of guilt of theft of property, a Class A misdemeanor, thereby finding appellant delinquent, before ordering the same court costs, $100 in restitution, and three months’ probation. When there is a discrepancy between the judgment and commitment order and the pronouncement of sentence, it is the entered judgment and commitment order that controls.8 Because the court adjudicated appellant delinquent in its written order, the sentence it imposed was not illegal. Affirmed. Vaught and Hoofman, JJ., agree. . The dates were February 16, 2013; February 23, 2013; and March 5, 2013. .There was a "glitch” in the system at the Rogers Police Department (RPD), which caused’Kohl’s theft reports not to be assigned to detectives. By the time the RPD recognized the problem, speedy-trial time limitations had run on appellant’s February 16, 2013 theft. Though discussed -at trial, with video provided, it appears that the February 23, 2013 theft was not reported to the RPD, as Officer Jeffrey Lane testified to being dispatched to Kohl's on March 20, 2013, for delayed shoplifting reports for incidents occurring on February 16, 2013, and March 5, 2013. Accordingly, the State was able to prosecute only the March 5, 2013 theft. See Ark. R.Crim. P. 28.1 (2014). . Richie v. State, 2009 Ark. App. 522, at 1-2, 337 S.W.3d 529, 530 (citing Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007)). . Id., at 2, 337 S.W.3d at 530 (citing Donaldson, 370 Ark. 3, 257 S.W.3d 74). . Ark.Code Ann. § 9-27-330(a)(4)(A) (Repl. 2009). . Ark.Code Ann. § 9-27-330(a)(6). . Ark.Code Ann. § 9-27-330(a)(7). . Vance v. State, 2011 Ark. 243, at 35, 383 S.W.3d 325, 347 (citing Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005) (citing Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997), and Ark. Sup.Ct. Admin. Order No. 2 (2005))). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2182184/ | 475 A.2d 989 (1984)
INLEASING CORP.
v.
Claude A. JESSUP.
No. 81-251-Appeal.
Supreme Court of Rhode Island.
April 25, 1984.
Reargument Denied May 18, 1984.
*990 John H. Blish, Joseph V. Cavanagh, Jr., Edwards & Angell, Providence, for plaintiff.
Edward W. Moses, Maury A. Ryan, Asquith, Merolla, Anderson, Ryan & Wiley, Providence, for defendant.
OPINION
KELLEHER, Justice.
This is an appeal from a Superior Court judgment in which the defendant, Claude A. Jessup (Jessup), presently finds himself liable as a guarantor to the plaintiff, Inleasing Corp. (Inleasing), for over $1 million. Jessup's appeal presents three issues. They include his effort to amend his answer under Rule 15(a) of the Superior Court Rules of Civil Procedure as well as two significant questions of law, one involving the parol-evidence rule and the other *991 relating to the scope and existence of an agent's authority.
Jessup, a Virginia resident, was a member of the board of directors and a 20 percent shareholder of a Delaware corporation that owned the entire stock of a North Carolina corporation named Pargo, Inc. (Pargo). Pargo manufactured and leased golf carts. Jessup, a retired chairman of the board of Continental Trailways, has had considerable experience in lending money for various business endeavors. Pargo was one such venture. He invested nearly $2 million in the company.
Inleasing, affiliated with what is now known as Fleet National Bank, is engaged in the business of financing and leasing various types of equipment and machinery. Since Pargo experienced financial difficulty in performing both the manufacturing and leasing functions, it turned to Inleasing for help. Inleasing purchased the carts manufactured by Pargo, providing an instant infusion of cash into the manufacturing concern. Pargo then leased the carts from Inleasing and subleased them to golf courses in the southeastern portion of the United States. This transaction is commonly referred to as a "sale and leaseback" transaction.
Pargo and Inleasing entered into the first of their thirty-three sale and leaseback transactions in April of 1972. By the spring of 1974, Pargo, encountering further serious financial difficulties, had defaulted on several of its lease payments.
In the spring and summer of 1974, Pargo failed to make its monthly payments as obligated. Subsequently, Inleasing came to realize that many of the carts that it had purchased and leased back to Pargo were missing. The lender then began to take an inventory of its carts and immediately found that many of them were either missing, inoperative, or inert while awaiting service at one of the two repair centers maintained by Pargo under the terms of the sale-leaseback agreement. Further negotiations were immediately undertaken by the parties to rectify the situation.
Inleasing refused to continue its relationship with Pargo absent a guaranty by Jessup for the value of the missing carts. The guaranty would assure payment of money to Inleasing under the terms of a collateral note to be executed by Pargo. The value of the note was to be the same as the value of the missing carts.
On December 19, 1974, Jessup, while in Virginia, executed the so-called missing-cart guaranty and delivered it to Charles Bradley (Bradley), Pargo's chief operating officer. However, at the time Jessup signed the guaranty, the exact value of the collateral note to be signed by Pargo was unknown. The specific amount of the note and the guaranty was not determined until a month later when on January 27, 1975, Pargo, through Bradley, signed a note for $1,037,456. This amount was then inserted in the appropriate blank spaces on the guaranty signed by Jessup about a month earlier. Once the insertions were made, the note and the guaranty were delivered by Bradley to Inleasing's representative. This fact is the focal point of Jessup's appeal, for neither he nor his attorney, Frederick Russell (Russell), a member of the Virginia bar, was present at the January 27 "closing" meeting, which took place in Hartford, Connecticut. Present at the meeting were Bradley, Inleasing's president, and its counsel.
Jessup insists that he did not know that the ultimate value of the note would be so high as it was, and he contends that he would never have guaranteed such an amount. However, Jessup's ability to present this theory was hampered by the trial justice's refusal to allow him to amend his answer to the complaint.
Jessup's initial answer, filed in October 1975, pleaded three affirmative defenses, specifically, (1) insufficient service of process, (2) lack of jurisdiction over the subject matter, and (3) lack of jurisdiction over the person. In April of 1979, he moved to amend his answer under Super.R.Civ.P. 15(a) to include the defenses of fraud or *992 misrepresentation. The Superior Court justice who heard this motion cursorily denied it without explanation.
When the case came on for trial, Jessup attempted unsuccessfully on several occasions, both before and during the trial, to amend his answer to include the defenses of fraud, misrepresentation, or mistake. The trial justice's rationale for rejecting these attempts was that Jessup's trial motions were no different from the earlier motion that was denied by a justice in charge of the motion calendar.
Rule 15(a) provides that after a pleading has been served, it may be amended "only by leave of [the] court or by written consent of the adverse party; and leave shall be freely given when justice so requires." It is modeled after Rule 15(a) of the Federal Rules of Civil Procedure.
We have held that it is this final sentence of the rule which embodies its true spirit. Kenney v. Providence Gas Co., 118 R.I. 134, 140, 372 A.2d 510, 513 (1977). In the past we have emphasized the desirability of permitting the desired amendments and having the dispute resolved on its merits and not by a blind adherence to procedural technicalities. Id.; 3 Moore, Federal Practice ¶ 15.02 at 15-13 (2d ed. 1983).
The opportunities we have had to interpret the rule indicate that liberality in allowing amendments is to be favored. In Ricard v. John Hancock Mutual Life Insurance Co., 113 R.I. 528, 324 A.2d 671 (1974), we addressed a motion to amend made at trial and noted the deference paid the trial court in such a situation.
"The granting or denial of such a motion is a matter within the sound discretion of the trial justice, and when he has acted in the exercise of his discretion his ruling should not be disturbed on review in the absence of a clear showing that he abused his discretion." Id. at 540, 324 A.2d at 677.
In Ricard the defendant Industrial National Bank originally admitted that the defendant John Hancock was indebted to it under the terms of the plaintiff's life insurance policy. At trial the bank desired to change this theory and force the plaintiff to prove the indebtedness.
The trial justice denied the amendment because he felt "that the case had gone on too long on the basis of the pleadings as they were at the time of trial." Id. at 539, 324 A.2d at 677. In faulting the trial justice, this court ruled that the trial justice's denial was a clear abuse of his discretion.
We reach the same conclusion here. The dismissal of the motion to amend in the first instance was summary and at trial unpersuasive. The burden rests on the party opposing the motion to show a compelling reason warranting dismissal, such as substantial prejudice. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S. Ct. 795, 28 L. Ed. 2d 77 (1971). At no time in the Superior Court was this burden sustained.
Inleasing's only reason for objecting to the grant of the motion was its claim that the sole purpose for the motion was to delay Jessup's day of reckoning. Our review of the record indicates that there is no such basis for this assertion. Jessup's desire was to amend his answer so that he could present at trial the affirmative defenses related to fraud, misrepresentation, or mistake.
Inleasing claims that no excuse exists for the failure to amend the answer from the date the answer was initially filed until just before trial. It infers a dilatory motive from the fact that defendant's actions occurred shortly after a thirty-day trial notice.
However, mere delay is not enough to deny the amendment. In Howey v. United States, 481 F.2d 1187, 1190 (9th Cir.1973), the court found no reason to deny an amendment by the plaintiff even though it was offered on the second day of trial and five years after the action was commenced. No prejudice was shown, and the motion was granted.
*993 Together with Ricard and Kenney, our holding in Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972), which allowed the amendment after trial, conclusively indicates our determination to permit such amendment absent a showing of extreme prejudice. The sentiments we have expressed here relative to the amendment of pleadings were recently affirmed in Kuczer v. City of Woonsocket, 472 A.2d 300 (R.I. 1984), and Serra v. Ford Motor Credit Co., ___ R.I. ___, ___, 463 A.2d 142, 150 (1983).
No substantial prejudice is indicated by the allowance of the requested amendment. When the request was originally made in April 1979, the trial had not commenced; in fact, it did not commence until late November 1979. The obvious purpose of the amendment was to afford an opportunity to Jessup to show that there was no meeting of the minds about the amount of the guaranty. It is our belief that justice will be served by a remand and an amendment of Jessup's answer to include the grounds of fraud, misrepresentation, and mistake.
We next address ourselves to the parol-evidence rule. Jessup's claim is that he was totally unaware that the amount of the note would be anywhere near $1 million, and that the amount was indeed much larger than he had ever anticipated when he signed the blank guaranty. In an attempt to demonstrate this lack of awareness, a question was posed to Inleasing's president asking whether he "recalled" that any amounts (other than the $1 million figure) were discussed "prior to the Hartford meeting." An objection to this inquiry was sustained under the parol-evidence rule.
This rule states that "in the absence of fraud or mistake, parol evidence of prior or contemporaneous agreements is generally inadmissible for the purpose of varying, altering or contradicting a written agreement." Fram Corp. v. Davis, 121 R.I. 583, 586-87, 401 A.2d 1269, 1272 (1979); see also Industrial National Bank v. Peloso, 121 R.I. 305, 310, 397 A.2d 1312, 1314 (1979). This is a substantive area of the law, not procedural or evidentiary, and it attaches when "parties to a contract have adopted a written agreement as the final expression of their intention in regard to a portion of or the entire subject matter of the transaction * * *." Fram Corp., 121 R.I. at 587, 401 A.2d at 1272.
Although established as a rule, the bar against the use of parol evidence is a doctrine with many exceptions. Indeed, its very definition states that it does not apply in the absence of fraud or mistake. This exception is, of course, sensible. It would be impossible to prove fraud or mistake if the only admissible contract is the final one; the fraud would not be apparent from the face of the instrument.
The application of the rule in situations alleging fraud or mistake is best explained by Professor Corbin. He decries the nomenclature of the doctrine as a rule.
"The use of such a name for this rule has had unfortunate consequences, principally by distracting the attention from the real issues that are involved. These issues may be any one or more of the following: (1) Have the parties made a contract? (2) Is that contract void or voidable because of illegality, fraud, mistake, or any other reason? (3) Did the parties assent to a particular writing as the complete and accurate `integration' of that contract?" 3 Corbin on Contracts, § 573 at 358-59 (1960).
If any of these issues is a subject of the litigation, then there is no parol-evidence rule to be applied. "On these issues, no relevant evidence, whether parol or otherwise, is excluded." Id. at 360. See also Jay Realty, Inc. v. Ahearn Development Corp., 189 Conn. 52, 453 A.2d 771 (1983).
Consequently, the exception for fraud or mistake is directly applicable to the theory of the defense. By amending his answer to assert the defenses of fraud, misrepresentation, or mistake, Jessup sought to demonstrate that at no time when he executed the guaranty was he led to believe that the value of his guaranty would exceed $500,000. The line of inquiry *994 being asked of Inleasing's chief executive would certainly have been probative of the reason why Jessup did not honor the $1 million guaranty. Jessup has no quarrel with a half-million-dollar guaranty. However, in the parlance of the golfing world, he obviously believes that a $1 million guaranty represents a completely different golf game something akin to a golfer with a 12 handicap who arrives at the eighteenth tee leading the field in the club's annual tournament and suddenly learns that the tournament committee, during his walk to the tee, has reduced his handicap to 2.
Inleasing asserts that Jessup was not harmed by the sustaining of his objection. It notes that Jessup himself testified that he thought the notes would be in the $500,000 range and that the trial justice was therefore well aware of the respective positions of the litigants.
However, Jessup's statement certainly does not put the full impact of his defense before the court. The injury to Jessup's cause lies in his inability to present to the trier of fact his version of what happened during an interstate transaction based on a blank guaranty that in Jessup's eyes ballooned with a few swipes of the pen from a half million to over a million dollars' indebtedness.
The final phase of this appeal concerns the issue of his agent's authority and, indeed, the very existence of an agency relationship. As we have noted, Jessup was not present when the note was signed. In fact the record indicates that the note was signed by Bradley for Pargo and that no one who was present at the Hartford meeting ever informed Jessup of the final amount. Inleasing's attorney offered testimony that at the Hartford meeting Bradley called Russell, Jessup's attorney, in Virginia and informed him of the $1 million amount. At trial when Russell was asked by Jessup's trial counsel if he had authority to assent to the $1 million figure, an objection to the question was sustained notwithstanding an offer of proof that the answer would be negative.
In sustaining the objection, the trial justice observed that since Russell denied ever learning of the $1 million figure, any question about his authority in this area was irrelevant. We believe that the trial justice's rationale is somewhat faulty. In his findings of facts, the trial justice stated that "an examination of the evidence satisfies the Court that the defendant by his attorney was aware of the amount of the collateral note before it was executed and the guaranty delivered." Clearly, the trial justice imputed knowledge of the amount of the note to Jessup because of the alleged phone call made by Bradley to Russell. In taking this approach, the trial justice obviously applied the concept of agency. Yet he reaches this conclusion without benefit of the response of Jessup's attorney about the extent of his authority.
The critical issue is whether Russell, as Jessup's attorney, had any authority to bind his client to a guaranty of $1 million. His testimony on this question was not only relevant but also quite probative. Rea v. Ford Motor Co., 355 F. Supp. 842 (W.D.Pa. 1972); Nadeau Lumber, Inc. v. Johnson, 138 Vt. 556, 420 A.2d 115 (1980).
Inleasing insists that this entire area of inquiry is irrelevant. It argues that the amount of the note is immaterial because Jessup signed an unlimited guaranty. Once Jessup signed the guaranty, Inleasing contends, any amount ultimately included in the note would be covered.
However, this argument ignores one crucial aspect of the case. Jessup was not a party to the note; Pargo was. Therefore, Inleasing seeks to make Jessup bound by a note although he had no part in its preparation. Professor Williston expressed the danger inherent in such a position.
"`If a writing not in existence when a memorandum is signed may be considered by way of amplification of such memorandum, and the terms of the later writing be made binding upon the party *995 to be charged by the memorandum though he had no part in the preparation of the later writing, there would be presented a situation wherein certainty of contract would be thrown to the winds, and opportunities for fraud and imposition would be open and notorious."' 4 Williston, Contracts § 581 at 139 (3d ed. 1961).
See also Tutko v. Banks, 167 So. 2d 110 (Fla. Dist. Ct. App. 1964).
This court has implicitly recognized the possibility of this danger, although in an agency situation. In H.W. Ellis, Inc. v. Alofsin, 87 R.I. 252, 140 A.2d 131 (1958), the plaintiff was a painting contractor who sued the defendant for $1,149.10, the cost of painting a house owned by the defendant. The defendant denied any obligation to pay this amount, claiming that the plaintiff's foreman assured him that the cost would not exceed $550.
Noting the business problems that flow from an agency situation, this court held that "[t]he defendants had the burden of proof on the issue of the authority of the foreman to make such a contract." Id. at 254, 140 A.2d at 131-32. The rationale behind this holding is as much common sense as legal doctrine. "[I]t was inconceivable that plaintiff would grant such authority, as one bad contract `could easily put him out of business.'" Id. For this same reason, Inleasing must show that Jessup's attorney could bind his client to the $1 million amount. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980).
The extent of Russell's authority plays a pivotal role in Jessup's refusal to pay the $1 million plus sought by Inleasing. At trial Jessup testified both that he was told by a representative of Inleasing that Pargo's missing-cart indebtedness was approximately $500,000 and he signed the blank guaranty on the basis of this figure. Perhaps Jessup's attorney on the evening when the deal was closed in Hartford was told of the $1 million figure, but before Inleasing is entitled to the amount set forth in the note, it must prove that the attorney had the authority to approve the placement of the $1 million-plus figure into the guaranty. Absent such proof, simple justice requires that this issue and the others to which we have previously alluded be redetermined.
The defendant's appeal is sustained, the judgment entered on the missing-carts guaranty is vacated,[1] and the case is remanded to the Superior Court for amendment of the plaintiff's answer and a new trial.
NOTES
[1] The complaint filed by Inleasing in this controversy contained two counts. One concerned the December 1974 missing-carts guaranty, and the second count related to a July 1974 guaranty that dealt with the payments due Inleasing for equipment leased to Pargo and the obligations set forth in a document entitled "Restructured Lease Agreement." The second count was tried before a Superior Court jury, which returned a verdict for Inleasing for $452,466. Jessup takes no issue with the jury's award. His sole concern is with the missing-carts $1 million-plus judgment. | 01-04-2023 | 10-30-2013 |
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