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https://www.courtlistener.com/api/rest/v3/opinions/5283995/ | OPINION OF THE COURT BY
JUSTICE VENTERS
Appellant, Arnold Moore, appeals from a judgment of the Lawrence Circuit Court imposing a sentence of fifty years’ imprisonment following a jury trial in which he was convicted of manufacturing methamphetamine (first offense), first-degree possession of a controlled substance, and of being- a first-degree persistent felony offender (PFO). Appellant alleges two errors: (1) the trial court refused to allow his girlfriend to testify under the statements-against-interest exception to the general exclusion of hearsay evidence about certain out-of-court statements uttered to her by a declarant whose unavailability at trial was not shown; and (2) the trial court declined to grant a directed verdict on the PFO charge.
We reject Appellant’s arguments with respect to the trial court’s evidentiary ruling excluding the hearsay testimony of Melinda Keeton, and so we affirm his convictions for the offenses of manufacturing methamphetamine (first offense) and first-degree possession of a controlled substance. However, based upon our conclusion that the evidence presented was insufficient to sustain the PFO verdict, we reverse that conviction and vacate the en*380hanced sentence arising therefrom. We remand the case to the Lawrence Circuit Court for sentencing on the underlying felony convictions and entry of a judgment consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the fall of 2011, an unidentified woman entered the sheriffs office in Lawrence County to complain of criminal activity at a house rented by Appellant. Two police officers went to investigate. Upon arriving at the house, they smelled ammonia, an odor commonly associated with the manufacture of methamphetamine, and they saw Appellant fleeing from the side entrance of the house. Upon command from the officers, he halted and joined them on the front porch where he gave the officers permission to enter the house.
Almost immediately after entering, the officers encountered Rodney Young. They escorted both Young and Appellant outside, placed them in separate cruisers, and informed them of their Miranda rights. A search of the residence produced an array of methamphetamine paraphernalia and ingredients indicative of an active-methamphetamine lab. At the scene, Appellant admitted to using and manufacturing methamphetamine.
Appellant was indicted for manufacturing methamphetamine (first offense), first-degree possession of a controlled substance, and for being a first-degree persistent felony offender. At the conclusion of the guilt phase of the trifurcated trial, the jury returned a guilty verdict on both drug offenses and, during the sentencing phase, recommended a sentence of fifteen years’ imprisonment. In the phase that followed, the jury convicted Appellant of being a first-degree persistent felony offender, for which the jury recommended an enhanced sentence of fifty years’ imprisonment. The trial court accepted the jury’s recommendation and sentenced Appellant accordingly.
II. ANALYSIS
A. Mere Speculation That a Witness may Assert his Right Against Self-Incrimination Does not Render a Witness Unavailable for Purposes of KRE 804(b)(3).
At the time of his arrest, Appellant was involved in a romantic relationship with Melinda Keeton. Appellant’s cousin, Jason Moore, and Jason’s brother, Dale Moore, reportedly resented this relationship. Dale had been Keeton’s long-time boyfriend. Shortly after breaking up with Dale, Keeton began cohabiting with Appellant. She gave birth to Appellant’s child; the child was eight-months old at the time of Appellant’s arrest.
While Appellant awaited trial, Keeton was jailed on a matter unrelated to this case. At the same time, Dale was lodged in the same jail and the two were placed in adjacent holding cells. According to Kee-ton, Dale made three critical statements to her during their time together in jail: (1) he had set up Appellant for his pending prosecution; (2) he was glad Appellant was going down for something he did not do; and (3) he was glad Appellant’s child would grow up without a father.
At trial, Appellant attempted to mount an alternative perpetrator defense. In support of this defense, he called Keeton to testify to the exculpatory; statements purportedly uttered to her by Dale while they were incarcerated together. The trial court sustained the Commonwealth’s objection to Keeton’s proposed testimony on hearsay grounds. Appellant properly inserted Keeton’s avowal testimony into the record to preserve the trial court’s ruling for appeal.
*381Hearsay — an out-of-court statement by a declarant offered to prove the truth of the matter asserted — is generally inadmissible at trial unless “it meets one of our well established exceptions.” Wells v. Commonwealth, 892 S.W.2d 299, 301 (Ky.1995); KRE 802. These exceptions, “supported by the theory that the character and context of [the] statement adds sufficient reliability to permit admission[,]” “grew from ancient common law.” Id. The only exception potentially applicable to the instant case is the “statement against interest” exception codified as KRE 804(b)(3).
KRE 804(b)(3) allows the admission of a “statement which ... so , far tended to subject the declarant to civil or criminal liability ... that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” However, before we examine whether Dale’s statements to Keeton would qualify under KRE 804(b)(3) as a “statement against interest,” we must first address the overarching condition for admitting any of the hearsay exceptions covered by KRE 804: the unavailability of the declarant as a witness. At this point, Appellant’s argument crumbles.
In the broad sense, KRE 804 applies only to situations in which the declarant— the individual whose out-of-court statements are proffered as evidence — is unavailable as a witness.
Unavailability of the declarant arises when the declarant: (1) is “exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement”; (2) “[p]ersists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so”; (3) “[t]estifies to a lack of memory of the subject matter of the declarant’s statement”; (4) “[i]s unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity”; or (5) “[i]s absent from the hearing and the proponent of the statement has been unable to procure the de-clarant’s attendance' by process or other reasonable means.” KRE 804(a)(l)-(5).
It is conceded that Dale’s alleged jailhouse statements are against his penal interest.1 And, although these out-of-court statements may be construed as tending to exonerate Appellant, Appellant has never shown that Dale was unavailable to personally testify at trial about the subject matter of the statements. Appellant argues that if Dale had been called to testify at trial, he would have invoked his privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. But because no one attempted to procure Dale’s testimony at trial, Appellant’s claim is nothing more than conjecture. Appellant’s argument runs headlong into our own precedent addressing this issue.
In Marshall v. Commonwealth, 60 S.W.3d 513 (Ky.2001), we rejected virtually the same argument Appellant attempts to now promote. Marshall involved the Commonwealth’s attempt to admit a com-plicitor’s out-of-court statements through his father’s testimony. The trial court in Marshall concluded that the declarant was ■unavailable and so it permitted the hearsay evidence to be admitted. • Like Appellant in this case, the Commonwealth in *382Marshall had “made no attempt to call [the complicitor] to the stand but only asserted [the complicitor] could claim the privilege if called.” Id. at 519. This Court reversed the trial court, rejecting the notion that the declarant’s unavailability could be established on such thin speculation. Indeed, “[i]n order to satisfy the requirements of the Confrontation Clause, the prosecution must at least make a good faith effort to obtain the declarant’s presence at trial.” Id. We then emphatically stated what is required when the Fifth Amendment privilege is asserted as the basis for a declarant’s unavailability:
A trial court cannot merely rely on the Commonwealth’s assurances of unavailability in deciding to admit hearsay evidence that is conditioned upon unavailability. Before a declar-ant may be excused as unavailable based on a claim of privilege, the de-clarant must appear at trial, assert the privilege, and have that assertion approved by the judge.
Id. (citations omitted). ' This rule set forth in Marshall is not a novel concept. In fact, it is nothing more than a straightforward reading of KRE 804(a)(1), which requires a “ruling of the court on the ground of privilege from testifying” before excusing a declarant as unavailable. Here, the record simply does not indicate that Appellant attempted in good faith to secure Dale’s presence as a witness or that Dale otherwise invoked his privilege against self-incrimination.
• It is certainly possible, if not likely, that Dale would have invoked his privilege given the instant circumstances, but KRE 804 requires more than that mere supposition. Indeed, regardless of whether Appellant is correct in his assessment of Dale’s strategy, speculation — correct or not — does not satisfy the requirements of KRE 804(a)(1). Therefore, none of the hearsay exceptions provided by KRE 804, including KRE 804(b)(3), apply. As such, the trial court correctly declined Appellant’s attempt to introduce Dale’s statements through Kee-ton’s testimony.
B. The Commonwealth Failed to Introduce Sufficient Evidence to Permit the Jury to Draw a Reasonable Inference of Appellant’s PFO Status.
Appellant’s remaining argument is that the Commonwealth failed to present sufficient proof to establish all of the necessary elements of a PFO charge, and therefore the trial court erred by failing to grant a directed verdict on that charge. Rather than calling witnesses to provide testimony to establish the essential elements of Appellant’s PFO status, the Commonwealth introduced certified copies of Appellant’s prior convictions. Appellant asserted at trial, and reasserts on appeal, his argument that the documentary evidence so adduced did not adequately provide the necessary information from which the jury could reasonably infer that Appellant met the criteria for PFO status. He argues that he was entitled to a directed verdict dismissing the PFO charge. For the reasons explained below, we agree.
The jury convicted Appellant of the underlying offenses of manufacturing methamphetamine (first offense) for which it recommended a sentence of fifteen years’ imprisonment; and first-degree possession of a controlled substance for which it recommended a sentence of three years. The jury recommended that the sentences be served concurrently. The jury then made the additional determination that Appellant was a first-degree persistent felony offender, and as a result of the PFO sentencing enhancement, the jury ultimately sentenced Appellant to fifty years’ imprisonment. Accordingly, thirty-five years of Appellant’s fifty year sentence is exclusive*383ly the consequence of his PFO status. This sentencing progression unambiguously illustrates the importance of the PFO stage of the trial, and it demonstrates with disquieting clarity why the PFO phase of the trial is not a lesser aspect of the trial proceedings, undeserving of even a single witness to testify regarding how the defendant falls within the criteria of KRS 532.080 such that he may, beyond a reasonable doubt, be adjudged eligible for the enhanced sentence.
As relevant here, to establish that Appellant was eligible for the sentencing enhancements provided for first-degree persistent felony offenders, KRS 532.080(3) required the Commonwealth to prove beyond a reasonable doubt all of the following: (a) that Appellant was more than twenty-one years of age;2 (b) that he stood convicted of a new felony offense; (c) that he was previously convicted of two other felony offenses for each of which he was sentenced to a term of imprisonment of at least one year; and (d) that he was over eighteen years of age when he committed the prior felony offenses. Appellant does not challenge the sufficiency of the Commonwealth’s proof on any of those elements.
However, pursuant to KRS 532.080(3)(e), the Commonwealth was further required to prove beyond a reasonable doubt at least one of the following facts:
That Appellant:
1.Completed service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted; or
2. Was on probation, parole, postincar-ceration supervision, conditional discharge, conditional release, furlough, appeal bond, or any other form of legal release from any of the previous felony convictions at the time of commission of the felony for which he now stands convicted; or
3. Was discharged from probation, parole, postincarceration supervision, conditional discharge, conditional release, or any other form of legal release on any of the previous felony convictions within five (5) years prior to the date of commission of the felony for which he now stands convicted; or
4. Was in custody from the previous felony conviction at the time of commission of the felony for which he now stands convicted; or
5. Had escaped from custody while serving any of the previous felony convictions at the time of commission of the felony for which he now stands convicted.
KRS 532.080(3)(c).
The factual alternatives enumerated in KRS 532.080(3)(c) are of no lesser significance than the other elements of PFO status mentioned above. While subsection (3)(c) obviously provides some leeway as to which specific provisions are applicable in any particular case, it is imperative for the Commonwealth to prove at least one of the factual alternatives beyond a reasonable doubt.
Although in its brief filed with this Court the Commonwealth does not explicitly identify which subsection of KRS 532.080(3)(c) is applicable, it does assert *384that “Appellant’s prior felony convictions contained enough information for the jurors to reasonably infer he had served out the most recent sentence within five years prior to the underlying felony offenses in this case,” thus implying that subsection (1) of KRS 532.080(3)(c) is the applicable provision. And, that was the only alternative upon which the jury was instructed. Therefore, the question is whether evidence was presented to permit the jury to reasonably infer that Appellant had “completed service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of [his current offenses, manufacturing methamphetamine and first-degree possession of a controlled substance.]”
Appellant’s present crimes were committed October 24, 2011; thus, the critical time span for applying subsection (1) runs back to October 24, 2006. ■ The only evidence offered to prove that Appellant potentially fits within either of those alternatives was the judgment documenting Appellant’s March 13, 2006 felony conviction,3 and a document describing parole eligibility guidelines that was introduced during the initial sentencing phase of the trial. No witnesses testified.
The March 2006 judgment reflects that Appellant was. sentenced to two years’ imprisonment with jail credit of 77 days, and that he was denied release on probation. Nothing was presented to show explicitly whether Appellant completed the sentence or whether he was later granted shock probation or parole; nothing was introduced concerning Appellant’s fate following the entry of the March 13, 2006 judgment.
In assessing whether Appellant was entitled to a directed verdict on the PFO charge, we apply the familiar standard as stated in Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky.1991). Pursuant to that standard, we review the evidence in each case to determine whether from the evidence presented, considered in the light most favorable to the Commonwealth, a reasonable jury could reasonably believe beyond a reasonable doubt all of the elements of the crime needed to fairly find guilt. Id. As previously noted, we conclude that the Commonwealth’s evidence falls short of meeting that burden.
The Commonwealth contends that all of the essential elements required for the PFO conviction under KRS 532.080(3)(c)(1) could be gathered from the face of the March 2006 judgment, or from “reasonable inferences” drawn from the judgment. Specifically, the Commonwealth cites to Shabazz v. Commonwealth, 153 S.W.3d 806, 813 (Ky.2005) and Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky.1999), as modified on denial of reh’g (Feb. 21, 2000), for the proposition that the elements of a PFO conviction may be proven by “reasonable inferences” drawn from the evidence. “A reasonable inference is sufficient to meet the requirements of the PFO statute.” Shabazz at 813, quoting Martin. In Martin, we clarified in this context what we mean by “a reasonable inference.” We said:
An inference is the act performed by the jury of inferring or reaching a conclusion from facts or premises in a logical manner so as to reach a conclusion. A reasonable inference is one in accordance with reason or sound thinking and *385within the bounds of common sense without regard to extremes or excess. It is a process of reasoning by which a proposition is deduced as a logical consequence from other facts already proven. Guesswork, on the other hand, is the process of making a judgment without adequate information, or to conjecture, or to speculate.
Martin, at 235.
At this juncture,, it is important to note that neither Shabazz nor Martin relax to any extent the reasonable doubt standard of proof for all elements of a criminal offense, including the enhancement provisions of the PFO statutes; nor could they. The United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) holds that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved, beyond a reasonable doubt” (emphasis added). Indeed, we emphasized in Martin that “[t]he Commonwealth still has the burden of proof as to every element of the PFO status beyond a reasonable doubt.” 13 S.W.3d at 235. See also Merriweather v. Commonwealth, 99 S.W.3d 448, 452 (Ky.2003) (“Proof of Appellant’s prior convictions was an indispensable element of the PFO charge. Accordingly, proof beyond a reasonable doubt was required of the Commonwealth.”).
Based upon the principles described above, our review must focus on the question of whether, from the evidence provided, and primarily the 2006 judgment, a reasonable juror could have inferred “in accordance with reason or sound thinking and within the bounds of common sense without regard to extremes or excess” all of the essential elements of a PFO conviction, and specifically, the applicable provision of KRS 532.080(3)(c) so as to fairly find guilt beyond a reasonable doubt.
In Shabazz, like the case now before us, no witnesses testified at the PFO stage of the trial. There, the Commonwealth introduced certified copies of Shabazz’s indictments (apparently to show when the prior offenses were committed), the resulting judgments, and an October 20,1997, Order of Probation that placed Shabazz on probation for five years. His current felony offenses were committed 3½ years later, on March 30, 2001. We held in Shabazz, and we agree now, that a reasonable juror could reasonably infer that the defendant was still oh probation when he committed his current crimes.
The probation order in Shabazz demonstrated with sufficient clarity to support belief beyond a reasonable doubt that the offenses to be enhanced by the PFO determination were committed during the five-year probationary-period specified in the probation order. The essential element of a PFO conviction provided by KRS 532.080(3)(c)(3) was comfortably inferred. The logical force of that inference, and its ability to sustain a belief beyond reasonable doubt, was not diminished by the Commonwealth’s failui’e to disprove the remote and unlikely - circumstance that Shabazz might have been released from probation “by virtue of executive clemency, reversal on appeal, release by way of habe-as corpus, or by other means whereby persons serving felony sentences may gain relief.” Id. at 814.
In short, the jury had readily available the facts it needed to infer “in accordance with reason or sound thinking and within bounds of common sense” and believe beyond a reasonable doubt that Shabazz was still on probation three and half years after he was sentenced to five years’ probation. The same is not true in this case.
*386The simple and straight-forward inference approved in Shabazz cannot be so readily drawn here. The 2006 judgment imposing Appellant’s two-year sentence is not perfectly, analogous to the five-year Order of Probation in Shabazz. Given the labyrinthine web of statutes and Corrections Cabinet regulations pertaining to good-time credits, parole eligibility time, shock probation, revocation and reinstatement of probation, and the obvious fact that a prison sentence is more likely to be appealed (thus deferring its finality) than a sentence of probation, we cannot agree with the Commonwealth’s assertion that all the jury had to do was apply “ordinary math” or “simple math.”
For example, here is explanation from the Commonwealth’s brief as to how such an inference might be reasonably drawn:
Appellant’s March 15, 2006, conviction and two-year sentence of imprisonment was entered five years and seven months before the October 24, 2011, offense date in this case. That 2006 conviction credited Appellant with just seventy-seven days of time spent in custody before sentencing. Simple math indicates that Appellant would not have been finally discharged from the 2006 sentence — either after serve-out or discharge from parole — until three years, nine months, and twenty-six days before the offense of manufacturing methamphetamine.
Rather than simplicity, that explanation highlights the puzzling nature of the riddle the jury was asked to solve. Of course, the Commonwealth’s argument may be well-taken if the reasonable inferences are being drawn from the evidentiary data by prosecutors, defense attorneys, or judges familiar with KRS 582.080 and the machinations of judgments, parole, probation, serve-outs, and final discharges, or other knowledgeable officials within the corrections and the criminal justice system.
However, it is clear to us that a reasonable jury, even a very-well educated jury, could not with any degree of confidence, much less beyond a reasonable doubt, infer “in accordance with reason or sound thinking and within the bounds of common sense without regard to extremes or excess,”4 and “deduce!] as a logical consequence from facts already proven,”5 that Appellant had “completed service” of the sentence imposed under the prior felony conviction. Indeed, it is manifestly unreasonable to hand over to a jury of reasonable citizens of the community, a series of criminal judgments, a chart of parole eligibility guidelines, and a set of complex statutory-based instructions, and say, in effect: “Here; figure this out for yourselves.”6 ’
*387The scenario here is all the more troubling because we know that any doubts, confusion, or uncertainty of the jury, and similar concerns about the efficacy of its verdict would have been avoided with one simple question addressed to a probation and parole officer on the witness stand: “Had Arnold Moore completed the service of his 2006 sentence when he committed the offense for which he has just been convicted?” Or, “As of October 24, 2011, had Arnold Moore been discharged from probation, parole, [etc.] arising out of his 2006 felony conviction?” We warned in Whittle v. Commonwealth: “Nevertheless, it is worth noting that the Commonwealth needs to provide some evidence to support a PFO charge_ So to uphold a conviction, an appellate court must be convinced that the evidence supports a reasonable inference and is not just mere ‘guess work.”’ 352 S.W.3d 898, 907 (Ky.2011) (citations omitted).
Having more explicitly stated what is expected by way of evidence to prove a PFO charge, we acknowledge in the Commonwealth’s defense that our case law has been unclear on that point. In Shabazz, a case central to the Commonwealth’s argument, we reiterated that our standard does ■not burden the Commonwealth with “the almost impossible task of proving a negative;” that is, whether a defendant “had been released from probation ‘by virtue of executive clemency, reversal on appeal, release by way of habeas corpus, or by other means whereby persons serving felony sentences may gain relief.... ” Id. (quoting Davis v. Commonwealth, 899 S.W.2d 487, 490 (Ky.1995), overruled on other grounds by Merriweather v. Commonwealth, 99 S.W.3d 448 (Ky.2003)).
Citing to Shabazz, the Commonwealth argues that it was Appellant’s burden to show, if he could, that he was not on probation or parole, or had not served out his sentence as of October 24, 2006. As true as it is that our evidence law requires a defendant to carry the burden “where the negative of an issue does not permit [ ] direct proof, or where the facts are more immediately within the knowledge of the defendant,”7 we find no merit in the Commonwealth’s repeated assertion that proof of Appellant’s current status in relation to his prior conviction is “the negative of an issue.” The evidence essential for Appellant’s PFO conviction is exactly the opposite of negative. The Commonwealth was required to prove the positive of Appellant’s status on October 24, 2006. Either he was in the system, e.g., incarcerated, probated, or paroled, or he was not. It is as simple as that. The defendant should not carry the burden on this information because, just as it is not a negative, it is also not information that would necessarily be unique to the defendant. Indeed, for the defendant to obtain proof of such relief, he would tie required to go through the Commonwealth and its associated agencies, and would most likely do so by calling as witnesses — the clerks and corrections officers — that the Commonwealth did not bother to produce. Forcing the defendant to do so improperly shifts the burden of proof, requiring the defendant to prove that he is not PFO-eligible.
*388The holding of Shabazz and Martin (that the elements of a PFO charge may be established by reasonable inferences drawn from evidence) reflects nothing more than the generally-applied, fundamental principle. that a jury verdict may properly be based upon reasonable inferences drawn from the evidence. “A jury is entitled to draw all reasonable inferences from the eviderice[.]” Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 287 (Ky. 2014), as modified on denial of reh'g (April 7, 2015.); and Beatrice Foods Co. v. Chatham, 371 S.W.2cl 17, 19 (Ky.1963) (Findings of the jury will be sustained on appeal “if there was competent and relevant evidence affording a reasonable and logical inference or conclusion of a definite fact.”).
Our decision today simply reaffirms that fundamental principle with the recognition that, in determining whether the evidence sufficiently supports the inferences to be drawn from it, we assess the reasonableness of the inference— that is: we determine if the inference is “in accordance with reason or sound thinking and within the bounds of common sense without regard to extremes or excess” — from the perspective of reasonable jurors charged with the obligation to evaluate the evidence, not from the perspective of individuals trained in the relevant profession. Trained professionals, relying upon their special expertise and knowledge, may be able to draw sound inferences from eviden-tiary data which, to the ordinary juror, would involve sheer guesswork, conjecture, or speculation. That, we conclude, is the case here. Moreover, the failure to produce accurate and readily available evidence pertaining to PFO status forces the jurors deciding the issue to rely more heavily upon the arguments of counsel than on the evidence presented. We are satisfied that an ordinary, reasonable juror could not “reasonably infei'” from the evidence provided, to the point of proof beyond a reasonable doubt, that at least one of the alternatives of KRS 532.080(3)(e) applied to Appellant. To hold otherwise would require us to modify the meaning of “reasonable inference” as we explained it in Martin, and we decline to do so.
As illustrated by this case, the PFO phase of the trial is of substantial and potentially life-changing significance to all parties involved, and to the general public. Given the gravity of its consequences, we would presume that this phase of the trial would be handled with the utmost respect, not as a mere after-thought or postscript of the guilt phase.
The somewhat haphazard presentation of PFO evidence that we occasionally see suggests a less than serious commitment to this vital aspect of criminal trial procedure. It also suggests a disregard for jurors who are left to make the difficult sentencing decision without readily-available and easily-presented evidence. The obviously better practice is to present, in addition to the essential documentary exhibits, knowledgeable witnesses such as court clerks and probation and parole officers, whose testimony would provide the relevant and necessary evidence establishing the elements of the defendant’s PFO status. Such witnesses could testify with near-certainty about the relevant dates and about the defendant’s status on the relevant dates.
PFO status is typically very easy to prove and is very difficult to seriously challenge. The Commonwealth’s burden in a PFO proceeding is both positive and clear: show, beyond a reasonable doubt, the criminal or corrections status of an individual on a certain date in question. We cannot continue to paint that burden as a negative one, much less one impossible to fulfill.
*389III. CONCLUSION
For the reasons stated above, we affirm Appellant’s conviction with respect to the underlying crimes of manufacturing methamphetamine (first offense) and first-degree possession of a controlled substance, and we affirm the sentences of imprisonment for fifteen years and three years, respectively, imposed for those offenses. We reverse the judgment with respect to the persistent felony offender determination and the enhanced sentence imposed therefor. We further remand this matter to the Lawrence Circuit Court for entry of a new judgment consistent with this opinion.
All sitting. All concur.
. With respect to statements exposing a de-clarant to penal, rather than civil, liability, KRS 804(b)(3) imposes the additional requirement that the statement “is not admissible unless corroborating circumstances clearly indicate [its] trustworthiness[.]” Because of our disposition of the matter based upon lack of proof that Dale was "unavailable,” we need not further address this point.
. See Harris v. Commonwealth, 338 S.W.3d 222, 227 (Ky.2011) (KRS 532.080 "focus[es] upon the age of the defendant at the time of sentencing rather than at the time of the commission of the crime.”) See also Hayes v. Commonwealth, 660 S.W.2d 5 (Ky.1983) (“The PFO statutes provides that a defendant is eligible for a PFO conviction if he is at least twenty-one years old at the time of his conviction, not when his current felony offense was committed.”).
. The relevant judgment was signed by the trial judge on March 13, 2006, but stamped as "Entered” by the clerk on March 15, 2006. The judgments documenting Appellant's other felony convictions date back to 1994 and are clearly out of the range required to establish one of the alternatives of KRS 532.080(3)(c).
. Martin, 13 S.W.3d at 235
. Id.
. Although the trial court here very appropriately and correctly included in its PFO jury instruction only the subsection of KRS 532.080(3)(2) that applied, we have observed that it is not unusuál for trial courts instructing juries in PFO cases to simply recite all five of the statutory alternatives of KRS 532.080(3)(c) 1-5, even those which cannot conceivably be applicable. As always, the better practice is for the trial court to exercise its discretion and individually tailor the instructions to fit the specific evidentiary parameters of the case, as was done here. The trial court’s duty is to instruct upon all theories of the case supported by the evidence, but it is equally the duty of the trial court not to instruct the jury on theories that are not supported by the evidence. And, focusing even more precisely, it is seldom, if ever, appropriate to clutter the instructions by reciting all of the forms of release mentioned in subsections (1) and (3), ("probation, parole, postincarcer-ation supervision, conditional discharge, [and so on]”) because it is always known in advance of the trial which specific form of release is applicable.
*387Only the applicable alternative should be used since there is no evidence to support the others, and doing otherwise creates the possibility of confusion, or worse, the risk of running afoul of the unanimous verdict rules. See generally Travis v. Commonwealth, 327 S.W.3d 456 (Ky.2010) (discussing unanimous verdict rules).
. Id. (quoting Eary v. Commonwealth, 659 S.W.2d 198, 200 (Ky.1983) (quoting Duvall v. Commonwealth, 593 S.W.2d 884, 886 (Ky.App.1979))). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2186175/ | 309 N.W.2d 799 (1981)
BANKERS STANDARD INSURANCE COMPANY, Appellant,
v.
Wanda OLWELL, et al., Respondents, Jenny Leajcher, Respondent, Larry E. Walters, et al., defendants and third party plaintiffs, Respondents, Holmbeck & Associates, Inc., third party defendant, Respondent.
No. 51213.
Supreme Court of Minnesota.
September 4, 1981.
*800 Dean K. Johnson, Bloomington, for appellant.
Wayne Hergott, Minneapolis, for Olwell, et al.
J. W. Cragg, Minneapolis, for Leajcher.
Trygve A. Egge, Minneapolis, for Walters, et al.
James Goetteman, Minneapolis, for Holmbeck & Associates, Inc.
Considered and decided by the court en banc without oral argument.
AMDAHL, Justice.
This is an appeal from an order of the district court granting defendants' motion for summary judgment. We affirm.
The facts are not in dispute. Defendants Walters owned and occupied with their four children, ages 17, 14, 12 and 10, a home in Brooklyn Park, Minnesota, and were insured under a homeowners insurance policy issued by Bankers Standard Insurance Company (Bankers).
The Walters regularly provided day care at their home each week day for James (age 7) and Mark (age 4), children of defendant Wanda Olwell, and were paid $50.00 per week by Mrs. Olwell for that service. The Walters' home was licensed by the State Welfare Department as a day care center and the Walters concede that they operated the day care activity as a business. On December 5, 1978, James and Mark, while in the Walters' care, ignored instructions to remain in the Walters' yard, wandered into the street and were injured when struck by a vehicle operated by defendant Leajcher.
Bankers instituted this declaratory judgment action seeking a determination that it had no obligation under the policy issued to the Walters to any of the named defendants. Bankers and defendants each moved for summary judgment. The trial court denied Bankers' motion and granted defendants' motion.
The narrow issue is whether the business exclusion clause of the policy or the exception contained in that clause applies. The clause provides:
EXCLUSIONS
This policy does not apply:
Under Coverage E Personal Liability...
(d) to bodily injury or property damage arising out of business pursuits of any insured except activities therein which *801 are ordinarily incident to non-business pursuits.
(Emphasis added). Bankers asserts that the injuries suffered by the Olwell children arose out of the business pursuits of the insureds and that the activities of the insureds, child care and supervision, were not ordinarily incident to non-business pursuits, therefore making the exclusion from coverage applicable. Defendants agree that the Walters were engaged in a business pursuit but contend that the activities were ordinarily incident to a non-business pursuit.
The "activities" under consideration are the care and supervision of the Olwell children. Similar activities have been found to be incident to non-business pursuits by some courts. Crane v. State Farm Fire & Casualty Co., 5 Cal. 3d 112, 485 P.2d 1129, 95 Cal. Rptr. 513 (1971); Gulf Insurance Co. v. Tilley, 393 F.2d 119 (7th Cir. 1968). Other courts have found the activities not to be incident to non-business pursuits, Stanley v. American Fire & Casualty Co., 361 So. 2d 1030 (Ala.1978); Peterson v. Highlands Insurance Co., 328 So. 2d 49 (Fla.1976). In Crane, a Mrs. Chamberlain regularly cared for two Crane children while caring for her own children, in return for a payment of cash and groceries. Andrea Crane suffered burns while under the care and supervision of Mrs. Chamberlain. The trial court found that Mrs. Chamberlain was occupied in a business pursuit, child caring, at the time of the accident. The California Supreme Court determined that even if that were true, her activities were incident to nonbusiness pursuits, and held, therefore, that the business pursuits exclusion did not apply.
In Stanley, Mrs. Stanley cared for children in her home for $3.00 per day per child. A one-year-old child in her care was injured while Mrs. Stanley was in the kitchen preparing lunch for herself, her own children and the other children under her care. The Alabama court expressly rejected the rationale of the California Supreme Court in Crane, concluding:
The activity referred to is not preparing lunch, which would ordinarily be incident to a non-business pursuit, but rather the failure to properly supervise a young child. Supervising children on a regular basis for compensation is ordinarily a business pursuit.
We are therefore of the opinion that the business exclusion is applicable and the judgment of the trial court is correct.
361 So.2d at 1033. Coverage under the policy was denied.
This court has previously interpreted the business pursuits exception to insurance coverage in Milwaukee Mutual Insurance Co. v. City of Minneapolis, 307 Minn. 301, 239 N.W.2d 472 (1976). There, a police officer was injured when a gun unexpectedly discharged during an informal explanation of the gun's trigger pull by another officer. We held that the officer's homeowners insurance policy would provide coverage for the injured officer because the insurer had not met its burden of proving that the business pursuits exception applied. It was not proven that the object causing the injury was one that would only rarely, if ever, be used for other than business purposes. We there quoted, with approval, the following excerpt from Frazier, The "Business Pursuits" Exclusion in Personal Liability Insurance Policies: What the Courts Have Done With It, 1970 Ins.L.J. 519:
In order for an act to be considered part of a business pursuit it must be an act that contributes to, or furthers the interest of, the business and that is peculiar to it. It must be an act that the insured would not normally perform but for the business and must be solely referrable to the conduct of the business.
307 Minn. at 309, 239 N.W.2d at 476 (emphasis added by the court in Milwaukee Mutual).
We find the rationale of the California Supreme Court in Crane to be more in line with our decision in Milwaukee Mutual. The activities in question here are the care and supervision of children. As the Crane court stated: *802 Assuming that the care of the child constituted a business pursuit, such duties under the circumstances presented here were clearly incident to Mrs. Chamberlain's nonbusiness regimen of maintaining a household and supervising her own children. Indeed, it is difficult to conceive of an activity more ordinarily incident to a noncommercial pursuit than home care of children.
5 Cal.3d at 117, 485 P.2d at 1131, 95 Cal. Rptr. at 515. The insureds are, therefore, entitled to coverage under their homeowners insurance policy.
Affirmed.
OTIS, Justice (dissenting).
I cannot agree that the injuries sustained by James and Mark Olwell arose out of activities which were "incident" to nonbusiness pursuits of Mrs. Walter's licensed day care center. When this accident occurred, these children were being cared for at a time and place for the precise purposes for which the business was conducted, and not "incident" to any other activity.
The trial court found the facts to be undisputed. Evangeline Walters regularly cared for the Olwell boys on weekdays from 6:45 a. m. to 5:45 p. m. for which she was paid $50 per week. This is not a case where a housewife with small children at home informally or sporadically agreed to babysit for other parents from time to time. The Walters children ranged in age from 10 to 17 and as school children, except for the summer months, required a minimum amount of daytime attention. On the other hand, the Olwell boys were only four and seven. The accident occurred on December 5, 1978, at 5:45 p. m., a Tuesday. There is nothing in the record to show that Mrs. Walters' children required any particular care during the hours she was attending her day care charges other than to pick up a daughter in her car.
Clearly the business which she was operating had attendant risks of liability for negligent performance, an unusually high risk where small immature children were involved. Had Mrs. Walters sought unrestricted liability coverage it would certainly have been available to her. However, the Walters never disclosed to their insurance agent that Mrs. Walters was operating a licensed day care center.
Quite obviously the exposure of the insurer to business risks was in no way reduced by virtue of the fact that Mrs. Walters had children of her own to look out for, before and after school hours. Indeed it could be argued that the more children she had in her charge the greater her distractions.
I respectfully submit that under the facts of this case there is no ambiguity in the contract and no rational reason for construing the exception to the exclusion to mean that the risks would be greater if Mrs. Walters had no children of her own at home. I would reverse.
PETERSON, Justice (dissenting).
I join in the dissent of OTIS, J. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5283998/ | OPINION
COMBS, JUDGE:
Gary Hurt appeals the order of Jefferson Circuit Court which denied his motion for summary judgment. This case is before us on remand from the Supreme Court of Kentucky, We rendered our opinion affirming on January 4, 2013. On October 15, 2014, the Supreme Court remanded the case for us to reconsider in light of Marson v. Thomason, 438 S.W.3d 292 (Ky.2014). Upon second review, and in light of Marson, we now vacate and remand.
Hurt is the principal of Valley High School in Louisville. On September 19, 2009, the Valley Youth Football League held a game at the high school. Appellee, Barbara Parker, attended the game. As she was leaving, she tripped on some uneven, cracked concrete in the parking lot *405and fell. Parker suffered significant injuries.
On August 30, 2010, Parker filed a complaint in Jefferson Circuit Court alleging that Principal Hurt; William Raleigh, the athletic director of Valley High; and the Football League negligently failed to maintain the parking lot, thus causing Parker’s injuries. Hurt and Raleigh were named as defendants both in their official capacities and as individuals. The claims against Raleigh and the Football League were subsequently dismissed; they are not involved in this appeal. Hurt filed a motion for summary judgment on June 23, 2011. On September 19, 2011, the court entered an order which granted Hurt’s motion with respect to the claims against him in his official capacity. However, it left intact the claims against Hurt in his individual capacity. This appeal follows.
Hurt argues that the trial court erred when it declined to find that he was entitled to qualified official immunity. We first note that Kentucky Rule[s] of Civil Procedure (CR) 54.01 limits appealable judgments to final orders. Although the court’s order overruling the motion to dismiss based on immunity is not a final order, our Supreme Court has held that such an interlocutory order is properly subject to appeal.
Except for CR 54.02, which permits certain interlocutory appeals that promote judicial economy, these examples are all provisions authorizing interlocutory appeals to address substantial claims of right which would be rendered moot by litigation and thus are not subject to meaningful review in the ordinary course following a final judgment. We agree with the Court of Appeals that orders denying claims of immunity raise this same concern and likewise should be subject to prompt appellate review.
Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky.2009).
The doctrine of immunity is “a bedrock component” of our law. Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 799 (Ky.2009). Immunity takes various forms depending on the actors, functions, and context. Sovereign immunity allows the “state, legislators, prosecutors, judges, and others doing the essential work of the state” immunity from fear of suit. Autry v. Western Kentucky Univ., 219 S.W.3d 713, 717 (Ky.2007). While they are not entitled to sovereign immunity, state agencies have governmental immunity in performing government functions. Yanero v. Davis, 65 S.W.3d 510, 519 (Ky.2001).
... [Governmental immunity shields state agencies from liability for damages only for those acts which constitute governmental functions, i.e., public acts integral in some way to state government.
Id. The immunity does not extend, however, to agency acts which serve merely proprietary ends, i.e., non-integral undertakings of a sort private persons or businesses might engage in for profit.
Id,. Under these rules, we have held that
[a] board of education is an agency of state government and is cloaked with governmental immunity; thus, it can only be sued in a judicial court for damages caused by its tortious performance of a proprietary function, but not its tortious performance of a governmental function, unless the General Assembly has waived its immunity by statute.
Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d at 887. It is settled that school boards enjoy governmental immunity. James v. Wilson, 95 S.W.3d 875, 903 (Ky.App.2002).
When the employees of a governmental agency (e.g., a school board) are *406sued in their individual capacities, they are subject to qualified official immunity. Bolin v. Davis, 283 S.W.3d 752, 757 (Ky.App.2008). ■ Qualified official immunity prevents public officers or employees from being liable for:
the negligent performance ... of (1) . discretionary acts or functions, i.e., those involving the exercise of discretion and judgment or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee’s authority.... Conversely, an officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.
Yanero v. Davis, 65 S.W.3d at 522. (Emphasis added) (Citations omitted).
The parties do not dispute the scope of Hurt’s duties as principal. The record includes a description of them. It shows that as principal, Hurt “ [a]ssumes overall responsibility for the total operation of [the school] including directing and evaluating school operations.... ” Additionally, the principal “[d]ireets the utilization of available services and resources according to clearly established priorities and needs.”
Based on this job description, the trial court found that the duty to maintain the parking lot was ministerial since it is encompassed by “total operation” of the facilities and involves direction of resources to meet the needs of the school. However, in light of Marson, supra, which was rendered after this case went through its trial and first appeal, we must re-visit the discretionary versus ministerial analysis in this matter.
The facts, of Marson are similar to the ones in the case before us. Marson addressed a principal’s responsibilities with respect to school facilities. Anthony Tho-mason was a middle school student who was legally blind. Every morning, the students were assembled in the school gymnasium before classes began. However, one morning, the bleachers were not fully extended. Anthony fell several feet and was injured. Id. at 295. The Thoma-sons filed a complaint, naming the school principal as one of the defendants.
The Supreme Court held that in general, “looking out for children’s safety is a discretionary function for a principal.” Id. at 299. It pointed out that the principal had assigned the specific or ministerial function of preparing the gymnasium to the custodians. Devising procedures, assigning duties, and reasonable determination that those procedures are being performed are discretionary acts. Id. at 299-300. The Court noted that the principal did not have a day-to-day duty to follow custodians or conduct inspections. Thus, the principal was entitled to qualified immunity.
The Court explained as follows:
Immunity is reserved for those governmental acts that are not prescribed, but are done, such as policy-making or operational decision-making, without clear directive. The responsibility for such acts rests on the individual who has made a decision to act based on his judgment, without established routine, or someone else in the process to allow burden-shifting. For this reason, and to ensure that governmental officials will exercise discretion when needed, our law allows qualified immunity from suit on the performance of discretionary acts. This is a policy decision that has long been the law of the Commonwealth.
Id. at 302.
When viewed in light of Marson, Hurt’s duty to supervise the condition of the *407parking lot must be deemed to be discretionary. The scope of the position of principal does not include daily inspection of the parking lot or personally undertaking repairs. Furthermore, we note that the crack in the pavement was approximately one inch. The principal’s job description explicitly designates prioritization of repairs to be performed at his discretion. As the Supreme Court emphasized, such decisions should not be influenced or hampered by fear of litigation.
We must conclude that Hurt’s .duties were discretionary and that, therefore, the trial court erred in denying his motion for summary judgment. We emphasize that neither the trial court nor the appellate panel in the first appeal had the guidance of precedent of Marson.
We vacate the order and remand for entry of an order granting summary judgment.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284000/ | GARY M. GAERTNER, JR., Judge.
Introduction
Linda Gargus (Gargus) appeals the trial court’s entry of judgment and sentence upon a jury’s verdict finding her guilty of elder abuse in the first degree. On appeal, she argues the trial court erred, first, in entering judgment against her because the State merely proved that she failed to act when she did not have a duty to act; second, in submitting Instruction No. 8 to the jury; and third, in overruling her request for a mistrial because the jury returned inconsistent verdicts. We affirm.
Background
The State of Missouri charged Gargus with the class C felony of involuntary manslaughter in the first degree and the. class A felony of elder abuse in the first degree stemming from the death of her mother, Lorraine Gargus (Victim), while in Gargus’ care. The evidence adduced at trial revealed the following, viewed in a light most favorable to the jury verdict.
Victim was an eighty-one-year-old woman suffering from diabetes. After falling in 2005, Victim determined she was unable to walk anymore and became bedbound. Gargus started staying with Victim and Gargus’ father in 2008 to help out, and by December of 2009 she had moved in to care for them. In January of 2010, Gar-gus quit her job at the Clark County Nursing Home, where she had worked since 1973, to care for her parents full time.
Regarding her mother’s care, Gargus testified to the following. She cooked for Victim, gave her daily sponge baths, and changed her clothes daily. Victim had been using a bedpan, but in January of 2010, she became incontinent. Gargus tried to give Victim her medicine, but Vic*419tim resisted medication, frequently hiding it or throwing it away.
Tammy Ramsey, an administrator at the Clark County Nursing Home where Gargus had worked, testified that Gargus received her certified nursing assistant (CNA) certification in 1989 and Gargus also had a certificate in insulin administration. All CNAs received continuing training in infection control, treatment of bedsores, skincare, and basic hygiene. Ramsey further testified that the procedure to treat Stage I bedsores was intervention, such as extra padding on beds and repositioning, and that Stage II bedsores require a doctor’s treatment and covering to help prevent infection.
Victim had been using fleece and protective coverings on her mattress since 2008 to prevent bedsores. Gargus first noticed a bedsore the size of a tennis ball on Victim’s upper buttocks on January 20, 2010. To care for the bedsore, Gargus continued using egg crate and fleece cushioning for Victim’s bed, stopped using Depends diapers on Victim to allow the sore to get air, and attempted to turn Victim every hour — however, Victim was reluctant to change positions and Gargus described it as a “constant battle.” Victim’s husband died on January 31, 2010. At the funeral, family members indicated they wanted to visit Victim, but Gargus discouraged visits. After her husband’s death, Victim stopped eating and did not want to drink.
Cindy Hickman (Cindy), Victim’s granddaughter, visited Victim on February 2, 2010, and described the mobile home as dirty and smelly. Victim’s bed was located in the living room with animal cages stacked around it from floor to ceiling. Cindy testified there were “hundreds” of mice everywhere. Victim was completely covered in a blanket and her eyes were matted shut and she did not recognize Cindy, calling her by her sister Sylvia Winger’s name.
Sylvia Winger (Winger), another granddaughter, also visited Victim on February 5. Winger testified that during her visit, Victim was alert and recognized her. Winger did not see anything alarming about Victim’s health, but noted that Victim was completely covered in a blanket. Winger stated the home was messy, but she did not see any mice. Gargus testified that the mobile home did have mice.
On February 22, 2010, Gargus called an ambulance after noticing a wound on Victim’s foot. She had bathed Victim that morning and put lotion on her feet, but did not see an injury. Victim generally kept her feet uncovered, so any injury would be obvious. Gargus’ son alerted her to the injury later that day. Victim was at first resistant to going to the hospital, but Gar-gus and emergency personnel were quickly able to convince her. The emergency personnel testified that Victim appeared confused and complained of a burning sensation in her rectum. As they moved Victim from her bed to the stretcher, a large mouse or small rat ran out of the bedclothes.
Dr. Neville Crenshaw (Dr. Crenshaw), an osteopathic physician who was Victim’s attending doctor, testified that when Victim was admitted to the hospital she was “acutely and critically ill.” Victim had several large bedsores in various stages of development. The main bedsore was on Victim’s upper buttocks and Dr. Crenshaw descried it as a “huge, gaping, infected wound.” The infection had eaten the skin and subcutaneous fat around the bedsore, and an investigator for the Missouri Department of Health and Senior Services (DHSS) testified she could see Victim’s tailbone through the basketball-sized wound. The infection tested positive for staphylococcus (staph) and had turned sep*420tic — i.e., had spread to her bloodstream. The surgical floor nurse testified the bedsore smelled like rotting flesh. As well, the emergency room nurse testified Victim had open sores over most of her body and large bedsores on her heels.
Dr. Crenshaw further testified that Victim’s second main injury was the trauma to her left foot. Her skin and tissue were removed down to.tendon and bone, consistent with having been eaten by a rodent, as witnessed by the emergency personnel. Victim, however, was in no pain from the wound due to the neuropathy, or nerve damage caused by diabetes, in her lower left leg. The following day, an orthopedic surgeon amputated Victim’s leg and foot below the knee. He noted the leg was no longer getting any blood supply and was cold and blue. Moreover, he could feel gas under the skin, consistent with gangrene. Last, Dr. Crenshaw testified Victim was malnourished and “profoundly dehydrated.”
Victim died on March 11, 2010. Her autopsy revealed that the cause of death was multiple organ failure due to septicemia, stemming from the multiple bedsores and gangrene of the left foot. The medical examiner testified that Victim’s death was caused by the bedsore on her back, and that early care of the bedsore could have stopped the disease from progressing. He noted bedsores occur when patients lie on their backs for long periods of time without moving. He further testified the failure to provide a clean environment, movement treatment for the bedsore, and medical care also led to Victim’s death.
Aftep Victim was admitted to the hospital, Kris Chamley (Chamley) from DHSS received a hotline report of Victim’s condition. She requested that Sheriff Paul Gaudette of Clark County (Sheriff Gau-dette) assist her in investigating Victim’s injuries. Together, they and several more investigators went to the mobile home shared by Victim, Gargus, and Gargus’ son. Gargus consented to a search. The investigators testified that as they approached the mobile home, they could smell rotting flesh from outside. Inside, there were anitaal cages stacked on a bed-frame, the floor, and furniture; investigators counted a total of 40 animals.1 There was fresh and old animal feces in every room. A large rodent ran across the foot of one investigator. There was moldy food on the kitchen counters and sink. In the bathroom, the toilet had waste in it and the sink and bathtub were covered in cobwebs and filth. Gargus reported the toilet had been broken for several weeks. Gar-gus informed them the clothes Victim had been wearing were in a washtub in the kitchen, and inspection of the washtub revealed foul-smelling muddy grey water with fleas in it. Gargus testified that she had burned Victim’s mattress and bedding once she learned Victim had an infection.
At the close of evidence, Gargus moved for acquittal, which the trial court denied. During the jury instruction conference, Gargus objected to Instruction No. 8 on the grounds that it: (1) assumed Gargus took on the care of Victim; and (2) did not comport with the relevant Missouri Approved Instruction (MAI), in that “the State has added additional elements- into this Instruction, where they do not exist.” The trial court overruled the objection and submitted Instruction No. 8 to the jury. Following deliberations, the jury returned a verdict of not guilty on Count I, involuntary manslaughter in the first degree, and *421of guilty on Count II, elder abuse in the first degree. At Gargus’ request, the trial court polled the jury, and each member of the jury confirmed that they found Gargus guilty of elder abuse in the first degree.
After the trial court released the jury for the evening, the court sent the bailiff into the jury room to retrieve the instructions and unused verdict forms. As the court was putting the forms in order, it noticed Verdict Form F finding Gargus guilty of the lesser-included offense of elder abuse in third degree had also been signed by the foreperson. Gargus moved for a misti’ial, citing the inconsistent verdicts. The trial court denied the motion for a mistrial, finding that the polling of' the jury had cured any inconsistency between the signed guilty-verdict form presented to the court and the signed guilty-verdict form left in the jury room. The jury reconvened for the penalty phase of the trial and recommended a sentence of 10 years. Gargus moved for a judgment of acquittal JNOV or a new trial,2 which the trial court denied after arguments. The trial court entered judgment in accordance with the jury’s recommendation, sentencing Gargus to a term of 10 years in the Missouri Department of Corrections. This appeal follows.
Discussion
Point I
In her first point on appeal, Gargus argues the trial court erred in denying her motion for judgment of acquittal at the close of all the evidence and in entering judgment against her, because the State failed to prove she knowingly caused serious physical injury to Victim. Rather, Gargus argues the State proved, at most, that she failed to act when she had no duty to act. We disagree.
We review challenges to the sufficiency of the evidence supporting a criminal conviction for whether sufficient evidence was presented at trial from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt of all the essential elements of the crime. State v. Salter, 250 S.W.3d 705, 710 (Mo. banc 2008); 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.
Gargus asserts two arguments to support her contention that there was insufficient evidence to support her conviction. First, she claims she had no duty to act to protect Victim; and second, she claims the State failed to show she was aware her conduct was certain to cause serious physical injury to Victim.
1. Gargus had a Duty to Act
Gargus was charged with elder abuse in the first degree under Section 565.180, RSMo. (2000),3 which provides: “[a] person commits the crime of elder abuse in the first degree if he attempts to kill, knowingly causes or attempts to cause serious physical injury ... to any person sixty years of age or older.... ” Criminal liability is premised on conduct involving voluntary acts. Section 562.011.1; Salter, 250 S.W.3d at 711. Voluntary acts include “[a]n omission to perform an act of which the actor is physically capable.” Section 562.011.2(2). Nevertheless, a “person is *422not guilty of an offense based solely upon an omission to perform an act unless the law defining the offense expressly so provides, or a duty to perform the omitted act is otherwise imposed by law.” Section 562.011.4. Here, Section 565.180 does not expressly provide that the failure to act constitutes first-degree elder abuse, so we must determine if the law “otherwise imposes” a duty to act under the circumstances here. In this case of first impression, we find that it does.
The commentary to Section 562.011 provides some guidance for when the law imposes a duty to act to preserve the life of another. The comment to Subsection 4 notes the difficulty in analyzing criminal liability by omission in crimes that are 'not defined in terms of a failure -to act, but provides an example of liability for manslaughter “based on the failure to perform some act, such as supplying medical assistance to a close relative.” Thus, in drafting this legislation, the legislature explicitly considered the circumstances we have here, where Gargus failed to provide medical assistance to her mother. Section 562.011, Comment to 1973 Proposed Code, Subsection 4. Moreover, criminal liability is based on an entire course of conduct, considering acts and omissions together. Section 562.011, Comment to 1973 Proposed Code, para. 1.
Further, the comment to Subsection 4 cites Jones v. United States, 308 F.2d 307 (D.C.Cir.1962), for a list of circumstances in which the failure to act may constitute a breach of a legal duty. Jones states:
There are at least four situations in which the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
Jones, 308 F.2d at 310 (citations omitted). While not mandatory authority, the specific reference to Jones as a source for Section 562.011.4 increases Jones’ persuasiveness.
A. Gargus Secluded Victim
We agree with Gargus that only the last of the listed situations, “where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid,” could apply herein. However, we disagree with her assertion that because she did not “so seclude” Victim “as to prevent others from rendering aid,” she did not have a legal duty to act to prevent Victim’s death.
Initially, we note there was sufficient evidence in the record from which the jury could have found Gargus did seclude Victim. With no Missouri cases directly on point, we find cases from other jurisdictions instructive. When a defendant volunteers to assist an ailing victim, thus preventing or hindering others from providing assistance, the defendant is considered to have secluded the helpless victim, creating a duty to then provide aid. See Flippo v. Arkansas, 258 Ark. 233, 523 S.W.2d 390, 394 (1975) (affirming defendants’ conviction for involuntary manslaughter). Likewise, when a person takes a vulnerable victim into his home rather than leaving the victim in a public place where others could take care to prevent harm to the victim, the person can be held criminally liable. See People v. Oliver, 210 Cal.App.3d 138, 149, 258 Cal.Rptr. 138, 144 (1989) (affirming defendant’s conviction for involuntary manslaughter, finding that when defendant brought extremely intoxi*423cated victim to her home — a private place where she alone could provide care — and allowed him to overdose on heroin that created duty to act).
Here, Gargus, voluntarily assumed the care of Victim, moving into her home in December of 2009. The record shows that Gargus had the sole care of Victim and does not show that Victim had frequent visitors after Gargus took over her care. At Victim’s husband’s funeral, Gargus discouraged family members from visiting Victim. Although Gargus testified Victim was generally uncovered, when both Cindy and Winger visited Victim was completely covered in a blanket, thus covering any existing injuries. A jury could infer from this testimony that Gargus covered Victim when company was present. See State v. Webster, 870 S.W.2d 450, 453 (Mo.App. E.D.1994) (this court will not reweigh evidence, but will accept as true evidence and inferences consistent with verdict). Last, while the record repeatedly showed that Victim objected to doctors and hospitals, by not taking Victim to the doctor for routine medical care or calling emergency services — especially considering that Gar-gus, as a CNA, knew the danger Victim’s wounds presented — secluded her from medical help.
B. Gargus’ Duty to Act Arose Solely from her Assumption of Victim’s Care
Regardless of whether or not Gargus secluded Victim, she had a duty to act to prevent injury to Victim. Recent Missouri caselaw suggests a duty to act arises, whether or not the defendant has secluded the victim, when the defendant voluntarily assumes the care of a vulnerable person who is dependent upon the defendant for basic necessities, such as food, clothing, shelter, and medical care. See State v. Shrout, 415 S.W.3d 123, 124-25 (Mo.App. S.D.2013). In Shrout, the parents of a mentally handicapped adult son were held criminally liable for his death when they voluntarily assumed his complete care and then did not provide it. While there are differences between the facts in Shrout and our case, we find the essence of ' Shrout consistent with the case at bar. In both cases, the defendants voluntarily assumed the care of a person who was unable to care for him or herself, and the victim was wholly dependent on the defendant for food, clothing, and medical care. In both cases, the defendants claimed they owed no duty under Missouri law to care for the person in their sole custody. Here, as in Shrout, we do not find that claim persuasive.
Moreover, despite the distinction between omissions sufficient for civil negligence liability and omissions sufficient to give rise to criminal liability, Missouri civil precedent is instructive in determining when the duty to act arises. Importantly, “the ‘measuring stick’ [of duty] is the same in a criminal case as in the law of torts.” Perkins & Boyce, Criminal Law, ch. 7, § 2, p. 843 (3d ed.1982). Negligence that is “so gross and wanton as to import malice” can give rise to criminal liability. State v. Studebaker, 334 Mo. 471, 66 S.W.2d 877, 881 (1933). Missouri courts have held that the duty to act arises when a defendant voluntarily and gratuitously assumes a responsibility to render services to another, even when there was no duty to act originally; and once a defendant assumes the duty to act, he can be held liable for the negligent performance of that act. Bowan v. Express Med. Transporters, Inc., 135 S.W.3d 452, 458 (Mo.App. E.D.2004); Martin v. Mo. Highway & Transp. Dep’t, 981 S.W.2d 577, 585 (Mo.App. W.D.1998). This case law in conjunction with Strout, convinces us that Missouri law does not require proof of seclusion for the duty to act to attach after a defendant voluntarily *424assumes the responsibility to render services to another.
Accordingly, as in Shrout, we find that Gargus had a duty to act. Because the record here showed that Gargus voluntarily assumed the care of Victim, knowing Victim was entirely dependent on Gargus for her care, Gargus had a duty to act reasonably in providing that care. This voluntary assumption of duty created criminal liability for the negligent performance of that duty. See Shrout, 415 S.W.3d at 124-25. There was sufficient evidence in the record to support criminal liability for Gargus’ omissions here.
We are cognizant that elder care by family members presents many difficult challenges. This is a very egregious case, and both prosecutors and trial courts must carefully assess whether the conduct of family caregivers rises to the level necessary for criminal liability under the statute at issue here. Without such extreme facts as Gargus herself being a medical professional, a CNA, combined with Victim’s horrific injuries and Gargus’ inexcusable delay in seeking medical attention for Victim, the State may not have met its burden of proof for elder abuse in the first degree.
2. The State Presented Sufficient Evidence to Show Gargus ivas Aware her Conduct was Certain to Cause Serious Physical Injury to Victim
Gargus next argues that, even if she had a duty to act, there was insufficient evidence to support her conviction, because the State failed to show she was aware her conduct was certain to cause serious physical injury to Victim. Again, Section 565.180 provides that a- person commits the crime of elder abuse in the first degree if he knowingly causes serious physical injury to any person sixty years of age or older. Knowledge is defined in Section 562.016.3. A person acts knowingly or with knowledge when he is aware his conduct is practically certain to cause a result. Section 562.016.3. The State may show a defendant’s knowledge by direct evidence or by reasonable inferences drawn from the totality of the circumstances of the case. State v. Davis, 407 S.W.3d 721, 724-25 (Mo.App. S.D.2013).
Although Gargus argues the evidence did not 'show she knew that allowing Victim to lie on the bed for long periods of time would cause serious injury, we disagree. The record shows that Gargus had worked in a nursing home since 1973 and had been a CNA since 1989. Her supervisor testified that all CNAs received continuing training in infection control, pressure areas, and skin care. More importantly, Gargus’ own testimony revealed that she knew of the importance of preventing and treating bedsores. She testified that since 2008 Victim had had padded bedding to prevent bedsores, and that when she noticed a large bedsore on Victim’s upper buttocks, Gargus stopped putting diapers on Victim to allow the bedsore to breathe and attempted unsuccessfully to change Victim’s position every hour. Gargus’ own testimony established that she knew allowing Victim to lie in the same position on the bed for long periods of time would cause serious injury, i.e. bedsores. See id. Despite Gargus’ admitted knowledge about the treatment of bedsores and her testimony that she bathed Victim every day and saw Victim’s body daily, Gargus let the bedsore progress to Stage IV before calling for medical assistance. When Victim was admitted the hospital, the bedsore was a “huge, gaping, infected wound” through which Victim’s tailbone was visible.
Moreover, when Victim was admitted to the hospital, she was malnourished and dehydrated. Gargus testified that Victim stopped eating when her husband died on *425January 31, yet Gargus did not call for medical assistance until February 22. Gargus cannot claim she did not know that lack of food and water for three weeks was certain to cause serious physical injury or harm to Victim. Further, despite Gargus’ testimony that she bathed Victim daily and rubbed lotion on Victim’s feet as late as February 22, she somehow failed to notice that Victim’s left leg was not getting any blood supply, was cold and blue, and had gas under the skin consistent with gangrene. The jury was entitled to infer that as a trained CNA, Gargus knew that failing to seek treatment for a diabetic whose leg was in such a necrotic condition was practically certain to cause serious physical injury or harm to Victim. See id. Last, as a CNA, Gargus was trained in the importance of hygiene, but isolated Victim in a mobile home infected with mice that had feces on the floor, molding food in the kitchen, and a non-working bathroom. Moreover, Gargus stated to investigators that she washed Victim’s clothing in flea-ridden, foul-smelling muddy grey water. As a CNA trained in the importance of hygiene, the jury could infer Gargus knew the condition of the home was certain to cause serious physical injury or harm to Victim, a diabetic with multiple bedsores in various stages of development. See id. Indeed, Victim later died of a massive infection.
In light of Victim’s horrific and sustained injuries, the jury was entitled to disbelieve Gargus’ testimony that she bathed Victim and changed Victim’s clothes daily. State v. Wrice, 389 S.W.3d 738, 741 (Mo.App. E.D.2013) (jury is free to believe or disbelieve witness’ testimony). We will not act as a “super juror,” but rather will defer to the findings of the trier of fact. Id. The evidence shows that Gar-gus had a duty to act to prevent injury to Victim and that Gargus knew about but failed to provide the proper treatment of bedsores, failed to ensure Victim ate and drank, and failed — despite her 20 plus years as a CNA — to notice the condition of Victim’s leg. Moreover, there was testimony that early care of the bedsores could have stopped the bedsores and resulting infection from progressing. Therefore, we find there was sufficient evidence from which a reasonable trier of fact could conclude Gargus knowingly caused serious physical injury to Victim. See Salter, 250 S.W.3d at 710; Gibbs, 306 S.W.3d at 181. The trial court did not err in overruling Gargus’ motions and in entering judgment.
Point denied.
Point II
In Gargus’ second point on appeal, she argues the trial court erred in submitting jury Instruction No. 8 to the jury, because it included additional paragraphs not authorized by MAI-CR3d. Specifically, she argues the instruction erroneously: (1) presumed — rather than instructing the jury to find — that Gargus assumed the care of Victim; (2) did not require the jury to find she so secluded Victim as to prevent others from rendering aid; and (3) did not require the jury to find an act, required by law, that Gargus had a duty to perform but failed to. We disagree.
The first two arguments in Point II were not preserved for our review, because they were not included in Gargus’ motion for new trial. Under Rule 30.20, we may review an unpreserved claim of error only for plain error, which requires that we find a manifest injustice or a miscarriage of justice resulted from the trial court’s error. State v. Nathan, 404 S.W.3d 253, 269 (Mo. banc 2013).
Here, we find no error, plain or otherwise, in the unpreserved claims. First, contrary to Gargus’ assertion, our review of the plain language of Instruction *426No. 8 reveals that it did require the jury to find whether Gargus assumed the care of Victim. The instruction stated in relevant part:
[I]f you find and believe from the evidence beyond a reasonable doubt:
First, that between December 1, 2009, and February 22, 2010, in the County of Clark, State of Missouri, the Defendant, Linda Gargus, by having voluntarily assumed the care of her mother, [Victim], a person unable to meet her physical and medical needs, by moving into [Victim’s] house, performing basic caregiv-ing functions such as providing food and water, and representing that she was the primary caregiver for [Victim], and
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Third, that she knowingly caused serious physical injury to [Victim] by leaving her on the bed for long periods of time in unsanitary, rodent infested conditions, causing her to develop gangrenous ulcers and injuries from animal bites,
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then you will find the defendant guilty under Count II of elder abuse in the first degree under this instruction.
Each paragraph lists facts the jury must “find and believe from the evidence.” The use of the phrase by having in first paragraph does not create a presumption of fact, but rather indicates a list of facts the jury must find..
Second, Gargus argues the instruction was required under Jones to include language stating she had “so secluded” Victim “as to prevent others from rendering aid.” However, as discussed in Point I, Missouri law does not require the seclusion of a helpless person in order for the duty to act to attach. Thus it was not error for the trial court to submit Instruction No. 8 to the jury without language requiring seclusion.
The third assertion of instructional error in Point II was sufficiently preserved for our review, and we review it de novo. State v. Pennell, 399 S.W.3d 81, 92 (Mo.App. E.D.2013). If there is an applicable MAI-CR instruction, then under the law the instruction form shall be used to the exclusion of any other instruction. Rule 70.020(b). To reverse a jury verdict for instructional error, the party challenging the instruction must show that the instruction as submitted mislead, misdirected, or confused the jury, and that prejudice resulted from the instruction. Pennell, 399 S.W.3d at 92. If a jury instruction does not follow an applicable MAI, we presume such errors prejudice the defendant unless it is clearly established that no prejudice occurred. Id.
Instruction No. 8 was based on MAI-CR 319.50, the verdict director for Section 565.180, elder abuse in the first degree. MAI-CR 319.50 reads in full:
(As to Count —, if) (If) you find and believe from the evidence beyond a reasonable doubt:
First, that (on) (on or about) [date ], in the (City) (County) of State of Missouri, the defendant [Insert one of the following. Omit brackets and number.]
[l] attempted to (kill) (or) (cause-serious physical injury to) [name of victim] by [insert means by which attempt was made, such as “shooting, ” “stabbing, ” etc.] him,
[s] knowingly caused serious physical injury to [name of victim ] by [insert means by which attempt was made, such as “shooting,” “stabbing,” etc.] him,
and
Second, that at that time [name of victim] was sixty years of age or older, and
*427Third, that defendant (knew) (or) (was aware) [name of victim ] was sixty years of age or older,
then you will find the defendant guilty (under Count-) of elder abuse in the first degree (under this instruction).
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense (under this instruction).
(As used in this instruction, a person attempts to (kill) (or) (cause serious physical injury) when, with the purpose of causing that result, he does any act that is a substantial step towards causing that result. A “substantial step” is conduct that is strongly corroborative of the firmness of the actor’s purpose to cause that result.)
(As used in the instruction, the term “serious physical injury” means physical injury that creates substantial risk of death or that causes serious disfigurement of protracted loss or impairment of the function of any part of the body.)
MAI-CRBd 319.50 (2012).
Here, Instruction No. 8 reads in full:
As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that between December 1, 2009, and February 22, 2010, in the County of Clark, State of Missouri, the Defendant, Linda Gargus, by having voluntarily assumed the care of her mother, [Victim], a person unable to meet her physical and medical needs, by moving into [Victim’s] house, performing basic caregiv-ing functions such as providing food and water, and representing that she was the primary caregiver for [Victim], and
Second, that she was physically capable of providing care for her mother, [Victim], and
Third, that she knowingly caused serious physical injury to [Victim] by leaving her on the bed for long periods of time in unsanitary, rodent infested conditions, causing her to develop gangrenous ulcers and injuries from animal bites, and
Fourth, that at the time [Victim] was sixty years of age or older, and
Fifth, that defendant knew [Victim] was sixty years of age or older,
then you will find the defendant guilty under Count II of elder abuse in the first degree under this instruction.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense under this instruction.
As used in this instruction, the term “serious physical injury” means physical injury that creates a substantial risk of death or that causes serious disfigurement of protracted loss or impairment of the function of any part of the body.
Gargus asserts that Instruction No. 8 did not comply with MAI-CR 319.50, because it did not require the jury to find an act, required by law, that Gargus had a duty to perform but failed to do. The instruction listed “leaving her on the bed for long periods of time in unsanitary, rodent infested conditions” as the means by which Gargus knowingly caused serious physical injury to Victim. Gargus’ brief on appeal gives short shrift to this argument, but it appears she asserts that because leaving someone on the bed is an omission, rather than an act, such as shooting or stabbing, the instruction failed to comply with the letter of MAI-CR 319.50. This argument is unavailing. As discussed in Point I, although Section 565.180 does not explicitly assign criminal liability for omissions, we conclude that where the duty to act is otherwise imposed by law, any omis*428sion of that duty constitutes a voluntary act, giving rise to criminal liability under Section 565.180. For this reason, it was not error for Instruction No. 8 to base criminal liability upon an omission, because the omission here constituted a voluntary act. The trial court did not err in submitting Instruction No. 8 to the jury.
Point denied.
Point III
In Gargus’ third and final point on appeal, she argues the trial court erred in overruling her request for a mistrial and plainly erred in failing to sua sponte refuse to accept the jury’s guilty verdict of elder abuse in the first degree, after the jury returned inconsistent verdicts. We disagree.
The trial court has a duty to ensure verdicts are free from defects, inconsistencies, and ambiguities, and the failure to do so may result in reversible error. State v. McNeal, 986 S.W.2d 176, 179 (Mo.App. E.D.1999). Inconsistencies can be resolved, however, by polling the jury. Id.
Here, the jury, while still deliberating in the jury room, signed two separate verdict forms finding Gargus guilty of both elder abuse in the first degree and the lesser-included offense of elder abuse in the third degree. Nevertheless, the sole verdict form the jury presented to the trial court was for elder abuse in the first degree, and, when polled at Gargus’ request, each jury member confirmed they had found Gargus guilty of elder abuse in the first degree, specifically. The jury did not present the verdict form for the lesser included offense of elder abuse in the third degree to the trial court, but left it in the jury room with the remaining instructions and unused verdict forms. Thus, we find the jury did not present inconsistent verdicts to the court.4 Regardless, following McNeal, even if .the jury had presented inconsistent verdicts to the court, any inconsistency was cured by polling the jury. Id. at 179. In polling the jury, the circuit -judge questioned whether each juror had found Gargus guilty of elder abuse in the first degree, and each jury member answered in the affirmative on the record that they had.
We find the trial court did not err in overruling Gargus’ motion for a mistrial or in failing sua sponte to retroactively reject the jury’s verdict. Point denied.
Conclusion
The judgment of the trial court is affirmed.
CLIFFORD H. AHRENS, J„ concurs.
KURT S. ODENWALD, J., concurs.
. Victim had several animals, including several birds and indoor and outdoor dogs. When Gargus and her son moved in, they brought a cat, more birds, gecko lizards, a ferret, and a chinchilla.
. As relevant on appeal, Gargus argued the trial court erred in overruling her objection that Instruction No. 8 added two elements not supported by the MAI, which had the effect of-punishing Gargus for omissions rather than acts.
. All statutory references are to RSMo. (2000), unless otherwise indicated.
. Gargus cites several cases for the proposition that inconsistent verdicts should be sent back to the jury for further deliberation. In these cases, however, the verdicts actually presented to the court were inconsistent on their face. In State v. Zimmerman, 941 S.W.2d 821 (Mo.App. W.D.1997), the jury handed the bailiff two verdict forms for Count I. Id. at 823-24. In State v. Peters, 855 S.W.2d 345 (Mo. banc 1993), the jury initially returned different verdicts of not guilty of assault but guilty of armed criminal action based on assault, which the court noted was inherently inconsistent. Id. at 347-48. Such is not the case here. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284001/ | ORDER
PER CURIAM.
St. Louis County appeals the judgment entered upon the jury’s verdict awarding $750,000 in damages to River Bend Estates Homeowners Association for land taken as part of a St. Louis County highway project. We have reviewed the briefs of the parties and the record on appeal, and no error of law appears. An extended opinion would have no precedential value. 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/5284002/ | Order
Per Curiam:
Carla Klippel appeals from the Labor and Industrial Relations Commission’s dismissal of her appeal of the Division of Employment Security’s denial of unemployment benefits. Because appellate review is limited to issues determined by the Commission, and Klippel has not challenged the Commission’s dismissal of her application for review as untimely, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2180665/ | 544 A.2d 1272 (1988)
STATE of Maine
v.
Bryan D. INGALLS.
Supreme Judicial Court of Maine.
Argued June 8, 1988.
Decided July 25, 1988.
Paul Aranson, Dist. Atty., Laurence Gardner (orally), Deputy Dist. Atty., Anne B. Judd, Asst. Dist. Atty., Portland, for plaintiff.
David P. Silk (orally), Portland, for defendant.
Before McKUSICK, C.J., and WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.
McKUSICK, Chief Justice.
After a jury trial in Superior Court (Cumberland County) defendant Bryan Ingalls was convicted of Class A robbery (17-A *1273 M.R.S.A. § 651(1) (1983)) and Class C possession of a firearm by a felon (15 M.R.S.A. § 393 (1980)). On his appeal defendant contends that the prosecuting attorney in closing argument twice impermissibly commented on his refusal to testify at trial and also contends that the evidence presented at trial was insufficient to support the jury's verdict. We find no merit in defendant's sufficiency of the evidence contention or characterization of one of the prosecuting attorney's statements as a comment on defendant's failure to testify. Although the other statement made by the prosecuting attorney could be understood as an ambiguous reference to defendant's failure to testify, we find it harmless error and affirm the judgment.
I.
On January 12, 1987, a man wearing a brown ski mask and blue ski jacket robbed the Puffin Stop convenience store on the corner of Route 302 and River Road in Windham. For at least one half hour before the robbery, the store cashier and store manager watched a man wearing a blue ski jacket standing across the street from the store but were unable to see his face clearly. The manager watched the man cross the street and walk to the side of the store. When the manager walked out of the store to see what the man was doing, the man dove behind an ice machine at the side of the store. Minutes later a man entered the store with his face covered by a brown ski mask. He was wearing a blue ski jacket with orange lining and two tears in the fabric. The man placed a rifle against the manager's cheek and demanded money. After taking the paper money from the cash drawer, the robber left the store and ran down River Road. After checking the store receipts, the manager determined that $222 in bills had been taken, with about $50 of that amount in one dollar bills.
The police very promptly arrived and began their investigation. A woman who had been driving down River Road just after the robbery reported to the police that a man with his face covered by a brown ski mask had run away from Puffin Stop along River Road and turned off onto a side road or driveway. A police officer drove down River Road and stopped to talk with Janet Winslow who lives approximately one half mile from the Puffin Stop and was shoveling snow from her driveway. Mrs. Winslow told the officer that she had not seen anyone run by and agreed to call the police if she saw anything suspicious. About ten minutes after talking with the police officer, Mrs. Winslow saw a man walk out onto River Road from beside the Ingalls house that stands closer to the Puffin Stop than her house, and start to hitchhike toward Portland away from the Puffin Stop. Mrs. Winslow immediately called the police and reported that the man had been picked up by someone driving a white car.
An officer on River Road heard the dispatch and stopped the white car. Defendant was the only passenger in the white car which was being driven by a woman. He was carrying $223 in bills; a roll of 53 one dollar bills in his front pocket and 4 fives, 11 tens, and two twenties in his wallet. After defendant claimed that he had recently been paid in cash and had been skiing all day, the officer accompanied him to the Ingalls house on River Road where defendant showed him a mutilated ski ticket as well as a rifle that did not match the description of the rifle used in the robbery.
Upon arrival at the store, officers investigating the crime scene went to the side of the store and noticed at a location behind the ice machine several footprints in the snow as well as an indentation in the snow shaped like a rifle butt. A police dog tracked the footprints from the store one quarter mile to the Ingalls residence on River Road where defendant lives with his mother and brother. An officer observed footprints near the door of the Ingalls house identical to those observed at the side of the Puffin Stop.
The police arrested Bryan Ingalls. When the police searched the Ingalls home they found in an upstairs bedroom closet a rifle with Bryan Ingalls' fingerprint on the scope. That rifle was identified at trial as the rifle used in the robbery. The police *1274 also found on the living room coffee table a bullet that a firearms expert testified had been loaded in that rifle. In the downstairs front hall closet, the police found the ski jacket and ski mask worn by the robber. At the bottom of the cellar stairs, the police found boots with soles matching those making the footprints at the Puffin Stop and the Ingalls house.
At trial the State presented the testimony of the man whom Ingalls worked for part time to the effect that Ingalls had received $160 in cash several days prior to the robbery. Another witness testified that she worked at a business located across Route 302 from the Puffin Stop and as she was leaving work just before the robbery noticed a man watching the Puffin Stop from across the road. She further testified that she knew Ingalls and thought that the individual was Bryan Ingalls because he was wearing a blue ski jacket similar to the one she knew Ingalls had been given several years earlier.
The defense called defendant's brother Glenn, who testified that defendant often carried large sums of cash divided between his front and back pockets, that defendant had helped him to adjust the scope of the rifle on which his fingerprint was found, and that he had never seen defendant wear the items of clothing identified as having been worn by the robber.
II.
Defendant contends that certain comments by the prosecuting attorney in closing argument impermissibly directed the jury's attention to defendant's failure to testify. In State v. Tibbetts, 299 A.2d 883, 889 (Me.1973), we held that a prosecutorial comment on a defendant's failure to testify can never be deemed harmless error when the comments were "direct, non-ambiguous and unequivocal ... on the failure of a criminal defendant to become a witness" or "indirect ... without equivocation or ambiguity, suggest[ing] that a jury must accept as true the State's evidence because it is undenied by a criminal defendant as a witness." Defendant admits that the comments were not direct, unambiguous references to his failure to testify, but correctly points out that even ambiguous and indirect prosecutorial comments might be prejudicial error if they could be understood as a comment on the defendant's failure to testify. Id. As a first step, we look at the prosecutorial statements pointed to by defendant to see if they could be understood as at least ambiguous comments on defendant's failure to testify.
In his principal closing argument, the prosecuting attorney summarized the evidence presented at trial and suggested that the inferences drawn from the circumstantial evidence when viewed as a whole left no reasonable doubt that defendant was the person who robbed the Puffin Stop. The prosecuting attorney then observed:
Now, there were some promises that haven't been fulfilled to you, and those were the Defendant's promises himself when in his opening he was going to tell you about the access that the whole neighborhood had apparently to the Ingalls' residence. Now you have not heard one bit of testimony about anybody, about a key over a ledge or the open door or any access that anybody had to that house.
The prosecuting attorney's comments referred to defense counsel's statement in his opening remarks that:
You are going to hear evidence from Mr. Ingalls' brother, Glenn, that the house, it's in a rural neighborhood, is always open, the front door is always open. There is a key above the ledge on the side door. Everybody knows it's there.
We reject defendant's characterization of the prosecuting attorney's linking of certain promises made in defense counsel's opening with the complete absence of any testimony concerning public access to the Ingalls home as an indirect comment on defendant's failure to testify. When those statements are considered in the context of the entire record, as they must be, see Tibbetts, 299 A.2d at 890, it is obvious that the prosecuting attorney was referring to defense counsel's representation in his *1275 opening that Glenn Ingalls would testify about the access that allegedly anybody in the neighborhood had to the Ingalls house. It is to be noted that even though defense counsel put Glenn Ingalls on the stand, he was not questioned on the subject matter referred to in counsel's opening. Defense counsel himself recognized the prosecutor's remark as a reference to his own opening statement concerning Glenn Ingalls' testimony and acknowledged in his closing argument that "[the prosecuting attorney] correctly points out, I sort of fell asleep, and I did not demonstrate the access, so I won't even talk about that at this point." Since the jury could not understand the prosecuting attorney's remarks as a comment on defendant's failure to testify, there is no error.
Defendant contends as well that statements made by the prosecuting attorney during his rebuttal closing argument also impermissibly directed the jury's attention to defendant's failure to testify. In that rebuttal closing argument the prosecuting attorney summarized the evidence refuting the defense theory offered in closing argument that someone placed the items used in the robbery in Bryan Ingalls' home without his knowledge. The prosecutor then stated:
[T]hat is not what occurred and there's no reasonable doubt in this case, all of these things did not occur, there is no testimony that anybody had anything against Bryan Ingalls, there's no testimony that anybody had access to his house, that anybody was looking to frame him, that anybody had a revenge motive against him, nothing. So you would have to believe that somebody dropped out of the blue. And what kind of planning would that have taken for someone to have doneto frame Bryan Ingalls? Think of that.
Unlike the earlier remark concerning the access to the Ingalls home, the prosecuting attorney's remarks about the lack of testimony concerning the existence of a grudge or revenge motive to explain the alleged framing of Bryan Ingalls was not a direct response to any remark by defense counsel. The prosecuting attorney apparently was attempting to discredit the defense theory outlined in closing that the actual robber had left the items used in the robbery at the Ingalls home. A jury could infer from the prosecuting attorney's remarks, however, that Bryan Ingalls was the logical and best witness to identify individuals holding grudges against him. One inference from the prosecuting attorney's reference to the lack of testimony concerning grudges against Bryan Ingalls is that since Ingalls did not testify to any grudges, no grudges exist to support the defense theory that someone else put the items used in the robbery in Bryan Ingalls' home. Although not a direct, unambiguous comment on the defendant's failure to testify, a jury could understand the prosecuting attorney's rebuttal statements as an ambiguous comment on defendant's failure to take the stand and offer support for the defense theory.
In Tibbetts we formulated a standard for appeals from improper prosecutorial comments on defendant's failure to testify. In developing the standard that we felt was "constitutionally required and made obligatory upon us under the Fifth Amendment through the medium of the Fourteenth Amendment," we looked to the Supreme Court's definition of harmless error set forth in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), as further refined by Anderson v. Nelson, 390 U.S. 523, 88 S. Ct. 1133, 20 L. Ed. 2d 81 (1968), and Fontaine v. California, 390 U.S. 593, 88 S. Ct. 1229, 20 L. Ed. 2d 154 (1968). Tibbetts, 299 A.2d at 888. In a more recent refinement of the Chapman inquiry as applied specifically to improper prosecutorial comments on defendants' failure to testify, issued after our decision in Tibbetts, the Supreme Court has more clearly articulated the proper question to ask when the prosecuting attorney has at least ambiguously commented on a defendant's failure to testify: "[A]bsent the prosecutor's allusion to the failure of the defense to proffer evidence to rebut the testimony [at trial], is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?" United States *1276 v. Hasting, 461 U.S. 499, 510-11, 103 S. Ct. 1974, 1981, 76 L. Ed. 2d 96 (1983). Although in Tibbetts we articulated the standard as whether beyond a reasonable doubt the evidence would not support acquittal, it is now apparent from Supreme Court cases decided in the 15 years after Tibbetts that the appropriate focus is whether on the whole record before us the prosecutorial comment though error was harmless beyond a reasonable doubt. See id. at 510, 103 S. Ct. at 1981. Again we quote the Supreme Court's Hasting opinion, which involved the identical type of constitutional error as the case at bar:
Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations. The goal, as Chief Justice Traynor has noted, is "to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error." [R. Traynor, The Riddle of Harmless Error 81 (1970).]
Id. at 509, 103 S. Ct. at 1980 (citations omitted). In applying the harmless error rule to an improper prosecutorial comment, we are not required to reverse merely because it is possible for an appellate court to "imagine a single juror whose mind might have been made up because of [that comment] and who otherwise would have remained in doubt and unconvinced." Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 1728, 23 L. Ed. 2d 284 (1969). Instead, "[o]ur judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the [improper prosecutorial comment] on the minds of an average jury." Id. As Chief Justice Traynor explained in his discussion of the Harrington case, "The Court's inquiry was directed, not to the effect of the error on the actual jury or to the reasonably possible effect of the error on an average jury, but to its probable impact on such a jury." R. Traynor, The Riddle of Harmless Error at 45 (emphasis in original).
Looking at the entire record in this case, we conclude that the prosecutor's statement pointing out the absence of any evidence to support the defense theory that some unnamed individual set up defendant by leaving the items used in the robbery at his home was harmless in its probable impact. In the case at bar, defense counsel, through cross-examination of the State's witnesses and the testimony of Glenn Ingalls, attempted to suggest that despite the overwhelming circumstantial evidence linking defendant to the robbery at the Puffin Stop, someone other than defendant ran from the Puffin Stop to defendant's home, entered and placed the items used in the robbery in four separate locations on three different floors of the home and left before police arrived. We can say here exactly as we did in State v. Inman, 350 A.2d 582, 595 (Me.1976):
The complete absence of evidence tending to show that [defendant] could not have committed the crime, the meager amount of evidence which, if believed, would tend to show that it was unlikely that he did so when viewed against the evidence pointing toward guilt ... satisfy us beyond a reasonable doubt that the prosecutor's ill-advised comment was, in fact, harmless.
(Emphasis in original)
III.
Defendant's contention that the evidence was not sufficient to support the jury's guilty verdict is utterly without merit. "A conviction based on circumstantial evidence is not for that reason any less conclusive." State v. Gagnon, 383 A.2d 25, 31 (Me.1978).
When each separate circumstance as appears in this case is viewed in the context of its relation to the others, the resulting pattern knitted together by the forceful rational inferences to be drawn from the several circumstances compels the irresistible conclusion of guilt.
Id. A jury rationally could find beyond a reasonable doubt every element of the crime charged. See State v. Barry, 495 A.2d 825, 826 (Me.1985).
*1277 The entry is:
Judgment affirmed.
All concurring. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284247/ | Joseph M. Ellis, Judge
Ameren Transmission Company of Illinois (“ATXI”) is an Illinois corporation authorized to do business in the State of Missouri. ATXI intends to construct interstate electrical transmission lines that will be located partially in this state that will be used by others to transmit electricity in interstate commerce.
In 2012, ATXI filed a petition for declaratory judgment in the Circuit Court of Cole County against the Missouri Public *878Service Commission (“the PSC”), seeking a declaration that the PSC had no statutory authority to regulate ATXI’s actions related to the construction of its interstate electrical transmission lines, asserting that ATXI is not one of the types of entities over which the PSC has been granted authority. It claimed that “ATXI is not subject to the jurisdiction of the Commission because it does not hold itself out as a provider of electricity for light, heat or power to the general public within Missouri, nor does it manufacture, sell, or distribute electricity for light, heat or power within the state.” ATXI further sought a declaration that it is not required to obtain certificates of convenience and necessity (“a CCN”) or other permission or approval from the PSC before beginning construction of its transmission lines because the PSC has no siting authority over those projects.
On June 6, 2014, the PSC filed a motion for summary judgment, asserting that, under the undisputed material facts, ATXI was not entitled to obtain declaratory relief. It argued that the provisions of § 386.510 preclude a circuit court from granting any declaratory relief against the PSC. It further maintained that, because the PSC had not yet taken any administrative action against or issued an order or decision related to ATXI, no justiciable controversy existed between the parties and that declaratory relief was, therefore, improper. ATXI filed a cross-motion for summary judgment, arguing that, based upon the undisputed facts, it was entitled to judgment as a matter of law on the merits of the claims asserted in its petition.
On October 6, 2014, multiple property owners, who had been notified by ATXI that its interstate transmission line project might require their properties to be subject to a utility easement, filed a motion to intervene in this declaratory judgment action.1 On October 20, 2014, the trial court granted the motion to intervene and heard argument on the motions for summary judgment that had been filed by ATXI and the PSC.
After hearing argument on the parties’ motions for summary judgment, the circuit court denied ATXI’s motion and entered summary judgment in favor of the PSC. In so doing, the court stated:
The Court finds that, based on the un-controverted facts submitted in support of the Commission’s motion for summary judgment, the Commission is entitled to judgment as a matter of law as a defending party. This court finds no controverted facts — and therefore no. persuasive evidence — that the Defendant has taken any administrative action against the Plaintiff. There is no justiciable controversy. It is not enough for Plaintiff to claim a fear of future action, with no indication at all of any present action, threatened or otherwise, by the Defendant. For this Court to rule otherwise would constitute a speculative or hypothetical advisory opinion.
ATXI brings three points on appeal.2
In its first point, ATXI contends that the trial court erred in granting sum*879mary judgment in favor of the PSC because a justiciable controversy exists between them. “This Court’s review of an appeal from summary judgment is de novo.” Missouri Bankers Ass’n v. St. Louis Cray., 448 S.W.3d 267, 270 (Mo. banc 2014). “Summary judgment is appropriate when the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law.” Roberts v. BJC Health Sys., 891 S.W.3d 433, 437 (Mo. banc 2013). “A defending party can demonstrate entitlement to summary judgment by showing: (1) facts negating any of the claimant’s necessary elements; (2) the claimant, after an adequate period of discovery, has been unable, and will not be able, to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements; or (3) there is no genuine dispute of the existence of facts required to support the defending party’s properly pleaded affirmative defense.” Scottsdale Ins. Co. v. Addison Ins. Co., 448 S.W.3d 818, 826 (Mo. banc 2014). “A summary judgment, like any trial court judgment, can be affirmed on appeal by any appropriate theory supported by the record.” Columbia Cas. Co. v. HIAR Holding, L.L.C., 411 S.W.3d 258, 264 (Mo. banc 2013).
“A declaratory judgment action requires a judiciable controversy.”3 Missouri Alliance for Retired Ams. v. Dep’t of Labor & Indus. Reis., 277 S.W.3d 670, 676 (Mo. banc 2009). “Justiciability is a ‘prudential’ rather than a jurisdictional doctrine.” Schweich v. Nixon, 408 S.W.3d 769, 773 (Mo. banc 2013). “In the context of a declaratory judgment action, a justiciable controversy exists where the plaintiff has a legally protective [sic] interest at stake, a substantial controversy exists between parties with genuinely adverse interests, and that controversy is ripe for judicial determination.” Mercy Hosps. E. Cmtys. v. Missouri Health Facilities Review Comm., 362 S.W.3d 415, 417 (Mo. banc 2012) (internal quotation omitted). “In other words, justiciability requires that the plaintiffs claim is ripe and that the plaintiff has standing to bring the underlying claim.” Id. at 418.
“A court cannot render a declaratory judgment unless the petition presents a controversy ripe for judicial determination.” Schweich, 408 S.W.3d at 774 (internal quotation omitted). “The ripeness doctrine allows a court to apply a pragmatic test to determine whether the agency action is sufficiently binding and sufficiently clear in scope and implications *880to be susceptible to judicial evaluation.” Missouri Ass’n of Nurse Anesthetists, Inc. v. State Bd. of Registration for the Healing Arts, 343 S.W.3d 348, 354 (Mo. banc 2011) (internal quotation omitted). “The basic rationale of the ripeness doctrine is to ‘prevent the courts, through avoidance of premature adjudication, from entangling themselves in ¡abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’ ” Missouri Soybean Ass’n v. Missouri Clean Water Comm’n, 102 S.W.3d 10, 26 (Mo. banc 2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “Ripeness is determined by whether the parties’ dispute is developed sufficiently to allow the court to make an accurate determination of the facts, to resolve a conflict that is presently existing, and to grant specific relief of a conclusive character.” Schweich, 408 S.W.3d at 774 (internal quotation omitted).
The undisputed facts before the trial court reflected that the PSC had not taken any action against ATXI, nor had it threatened to do so. Likewise, the PSC had not issued any rule, regulation, or official statement generally setting forth a position on whether it has authority over companies solely engaged in the interstate transmission of electricity. Furthermore, ATXI’s proposed projects were still in the planning phase, and ATXI had not yet acquired land or begun construction in this State.
In bringing its declaratory judgment action, ATXI was merely speculating that the PSC would, at some later date, if ATXI chose to proceed with the proposed construction projects, attempt to assert regulatory authority over ATXI. ATXI was asking for an advisory opinion regarding whether such an assertion of authority, were it ever to occur, would be proper.4
“Declaratory judgments are not available to adjudicate hypothetical or speculative 'situations that may never come to pass.” Id. at 778 (internal quotation omitted). “Missouri courts do not issue opinions that have no practical effect and that are only advisory as to future, hypothetical situations.” Henry v. Farmers Ins. Co., 444 S.W.3d 471, 477 (Mo.App.W.D.2014) (internal quotation omitted). Because uncontroverted facts reflected that there was no presently existing controversy between the parties that was ripe for judicial determination, the trial court did not err in granting summary judgment in favor of the PSC.5 Point denied.
The judgment is affirmed.
All concur.
. The interveners are Gena Briggs, Billy Briggs, David Schaefer, Beth Schaefer, Margaret Hollenbeck, Clifford Hollenbeck, Aaron Hollenbeck, Richard Gregory, Jeanette Gregory, William DeFries, and Kamra DeFries.
. The PSC has filed a Motion to Dismiss Appeal as Moot, contending that ATXI's filing with the PSC of conditional applications for certificates of need for its two currently planned projects and the PSC's granting of a certificate of need for one of those projects renders this appeal moot. ATXI’s applications, which were filed subsequent to the trial court's entry of summary judgment in favor of the PSC in this case, maintained that the PSC *879has no authority over ATXI but asked, in the event that it does, for the PSC to issue certificates of need to ATXI. With regard to one of the applications, the PSC found that it had authority over ATXI and issued a certificate of need for that project.
The question before this Court on appeal is whether the trial court properly entered summary judgment in favor of the PSC based upon a finding of a lack of a justiciable controversy. Neither the filing of the applications nor the PSC’s granting of a certificate of need render this appeal moot. Accordingly, the PSC’s motion is denied.
. "The declaratory judgment act, section 527.010, RSMo 2000, vests trial courts with the power ‘to declare rights, status, and other legal relations whether or not further relief is or could be claimed.’ ” Schaefer v. Koster, 342 S.W.3d 299, 300 (Mo. banc 2011). "A court may grant a declaratory judgment if presented with: (1) a justiciable controversy that presents a real, substantial, presently existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation; (2) a plaintiff with a legally protectable interest at stake, consisting of .a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief; (3) a controversy ripe for judicial determination; and (4) an inadequate remedy at law.” Id.
. ATXI contends that State ex rel. Public Service Commission v. Blair, 347 Mo. 220, 146 S.W.2d 865 (1940), establishes the propriety of its claim for declaratory judgment. That case is easily distinguishable from the case at bar because, in that case, the PSC had declared that the businesses conducted by the plaintiffs were subject to the Bus and Truck Act and, at the request of the PSC, law enforcement agencies had arrested several of the plaintiffs and their employees for violations of the penal provisions of the act. Id. at 867. Thus, the PSC had clearly taken affirmative action and asserted authority over the plaintiffs, and the case was, therefore, ripe for adjudication.
. Having reached this conclusion, we need not consider ATXI’s two remaining points which assert that the trial court erred in deny*881ing ATXI's cross-motion for summary judgment. We gratuitously note that, except where the merits of the denied motion for summary judgment are inextricably intertwined with the propriety of an appealable order granting summary judgment, the denial of a motion for summary judgment "is not a final judgment and is therefore not subject to appellate review.” Kershaw v. City of Kansas City, 440 S.W.3d 448, 452 (Mo.App.W.D. 2014) (internal quotation omitted); see also Shelton v. Director of Revenue, 439 S.W.3d 301, 302 (Mo.App.S.D.2014). ATXI’s assertion to the contrary notwithstanding, the issues raised in the cross-motions for summary judgment in this case are not remotely intertwined, and that exception would clearly not apply to this case. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284248/ | Gary D. Witt, Judge
Daryl Nigro (“Nigro”) appeals the circuit court’s judgment denying his motion for post-conviction relief pursuant to Rule 29.151 following an evidentiary hearing in *883the Circuit Court of Lafayette County.2 He claims error in the motion court’s rulings that: (1) trial counsel’s alleged failure to file a motion to suppress certain physical evidence found in the building in which he was living did not prejudice Nigro, and (2) trial counsel’s alleged failure to object to hearsay testimony did not prejudice Nigro. Because we agree with the motion court that Nigro cannot establish prejudice for either claim, we affirm.
Factual Background3
On September 10, 2010, at 11:50 p.m., Officer Chris Chamberlin (“Officer Cham-berlin”) responded to a call regarding an audible alarm at Northwest Elementary School in Marshall, Missouri. Paul Ed-monds (“Edmonds”), a neighbor made the call. After the alarm had sounded, Ed-monds observed a person walking away from the school toward an automotive garage southeast of the school. It was raining. Officer Chamberlin arrived at the school at 11:52 p.m. and investigated the premises. A window was broken in the school’s media room where media equipment and computers were kept. Inside, there was a muddy shoe impression and a screwdriver with a green handle on the floor. Officer Chamberlin also found blood on the wall of the media room next to the control panel for the alarm system, which later proved to be a DNA match for Nigro. Nothing was taken from the room or the school.
Yensi Flores (“Flores”), who lives nearby, also observed a man walking southeast away from the school in the direction of the automotive garage after hearing the alarm. Flores identified the man as Nigro and indicated Nigro was staying at the automotive garage. The school had several video surveillance cameras surrounding the premises. These cameras recorded a male in dark clothing wandering the school grounds.
Officer Chamberlin and several officers went to the automotive garage to talk with Nigro. After several knocks, Nigro opened the door wearing only his underwear and was dripping wet. Nigro had cuts and abrasions on his arms and legs which were still.bleeding. ' Nigro allowed the officers to come inside the building. Officer Chamberlin observed wet clothing, muddy boots, and a green screwdriver, similar to the one found inside the school, lying on an open, tool box on the floor.
The officers seized the wet clothing and screwdriver as evidence and arrested Nig-ro. Nigro was taken to the Marshall Police Department for a twenty-four hour hold. See § 544.170.1.
The next morning, Nigro agreed to be interviewed by Detective William McMel-len (“Detective McMellen”) of the Marshall Police Department. Nigro was read his Miranda4 rights prior to the interview. Nigro admitted to breaking the window and entering the school through the media room. Nigro said he needed money to get to Kansas City to see his ailing father; he also admitted to bringing the screwdriver found at the scene to the elementary school. Nigro said a man named Trent, with an unknown last name, approached him prior to the break-in and asked whether he wanted to be a part of a “hustle.” *884Nigro inquired further and learned his role would be to break into the school and Trent would enter the school after Nigro gained entry. Nigro agreed to the plan and admitted to breaking in, unlocking the front doors, and then leaving the school through the front doors. Nigro signed a voluntary confession.
During Nigro’s jury trial, Officer Cham-berlin presented evidence of what Flores and Edmonds stated during the investigation; however, Flores and Edmonds did not testify. Nigro was convicted of burglary in the second degree in violation of section 569.170, and the court sentenced Nigro as a prior and persistent offender to twelve years in prison.
Nigro timely filed a pro se Rule 29.15 motion alleging ineffective assistance of counsel, which was later amended by appointed counsel. Nigro’s amended motion alleged, inter alia: (1) trial counsel provided ineffective assistance of counsel by failing to file a pre-trial motion to suppress the physical evidence seized from Nigro’s residence, and (2) trial counsel failed to object to Officer Chamberlin’s testimony on the basis of hearsay. The court denied Nigro’s motion following an evidentiary hearing.
Nigro timely appeals.
Analysis
Nigro brings two points on appeal. First, he claims the motion court erred in finding that trial counsel’s failure to file a motion to suppress evidence regarding the items seized from his residence did not prejudice him. Second, he claims the court erred in finding that trial counsel’s failure to object to hearsay testimony did not prejudice him.
Standard of Review
In a Rule 29.15 post-conviction relief case, we review the motion court’s findings of fact and conclusions of law and determine whether they are clearly erroneous. Johnson v. State, 333 S.W.3d 459, 463 (Mo. banc 2011). “We will only find the findings and conclusions clearly erroneous if, after reviewing the entire record, we are left with a ‘definite and firm impression that a mistake was made.’ ” Cothran v. State, 436 S.W.3d 247, 251 (Mo.App.W.D.2014) (citation omitted). We presume that the motion court’s findings are correct. Id. (citation omitted). Our standard of review is the same for both points and will not be repeated below.
Point I
In his first point, Nigro argues that the motion court clearly erred in denying his motion because trial counsel was ineffective for failing to raise an argument in a motion to suppress that the “physical evidence” found in his residence was the result of an unlawful warrantless search and seizure. Nigro argues that he was prejudiced because the motion would have been sustained, the improperly seized evidence would not have been admitted, and without it, a reasonable probability exists that the result would have been different.
To establish ineffective assistance of counsel, the movant must satisfy both parts of the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Stiickland, the movant must show (1) that his attorney failed to exercise the level of skill and diligence that a reasonably competent attorney would exercise in a similar situation, and (2) the failure to do so has prejudiced the movant. Strong v. State, 263 S.W.3d 636, 642 (Mo. banc 2008) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
Under the first prong, there is a strong presumption that trial counsel acted *885professionally and that any challenged action or omission on behalf of trial counsel was part of trial counsel’s trial strategy. Strong, 263 S.W.3d at 642. To succeed on an ineffective assistance of counsel claim, the movant must overcome this presumption and prove that trial counsel’s acts or omissions fell outside the range of a professionally competent attorney. Id. In addition, claims of ineffective assistance of counsel will not lie where the conduct involves the attorney’s use of reasonable discretion in matters regarding trial strategy, “and it is the exceptional case where a court will hold a strategic choice unsound.” Barton v. State, 432 S.W.3d 741, 749 (Mo. banc 2014).
The prejudice prong is satisfied when it can be shown that, but for the trial attorney’s poor performance, there is a reasonable probability the outcome of the proceeding would have been different. Id. If either “the performance prong or the prejudice prong is not met, then we need not consider the other, as the claim of ineffective assistance of counsel must fail if either prong is not present.” Rollins v. State, 454 S.W.3d 380, 384 (Mo.App.W.D. 2015) (citation omitted). If the matter can be decided under the prejudice prong, that course should be followed. Taylor v. State, 382 S.W.3d 78, 81 (Mo banc 2012).
Second-degree burglary requires proof that the defendant knowingly entered unlawfully or knowingly remained unlawfully in a building or inhabitable structure for the purpose of committing a crime therein. § 569.170.1. “The elements of burglary in the second degree may be proved by circumstantial evidence.” State v. Jenkins, 741 S.W.2d 767, 768 (Mo.App. E.D.1987) (citation omitted). “Proof of conduct before, during or after the offense are circumstances from which one’s participation may be inferred.” Id. at 768 (citation omitted). “Consummation of the intended crime of stealing is not essential to establishing that the intruder entered the building with the necessary intent to sustain the burglary charge.” State v. Haslar, 887 S.W.2d 610, 614 (Mo.App.W.D.1994) (internal citation and quotation marks omitted).
In this case, Nigro confessed to all of the elements of the crime. Nigro said that he entered the school because he needed money. Nigro said he entered the school as part of a hustle and the detective’s understanding “was they were going to steal something.” A window was broken into a room where multimedia equipment, computers and other electronic equipment were located and the alarm system had been tripped. Blood matching Nigro’s DNA was on the wall next to the alarm control panel. Nigro admitted that he brought the screwdriver to the scene. When the officers contacted him, he was dripping wet and had fresh cuts that were still bleeding on his arms and legs.
Even if the items from his residence (the matching screwdriver and the wet clothing) had been excluded from evidence, Nigro’s confession, his DNA located within the school where the break in occurred, and his appearance when the officers first contacted him (including being dripping wet and having fresh cuts) would have constituted overwhelming evidence of his guilt. Nigro has not established a reasonable probability that the outcome of the proceeding would have been different had the evidence at issue been excluded. Barton, 432 S.W.3d at 749. Accordingly, we need not analyze the performance prong. Rollins, 454 S.W.3d at 384.
Point I is denied.
Point II
In his second point, Nigro argues that his trial counsel’s failure to object on *886grounds of hearsay to Officer Chamberlin’s testimony regarding what Edmonds and Flores told him constituted ineffective assistance of counsel. Nigro argues that he was prejudiced because, had counsel objected, a reasonable probability exists that the trial court would have sustained the objection, and without the improper testimony, the result of the trial would have been different.
This Point is also subject to the two pronged analysis of Strickland v. Washington, 466 U,S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which will not be repeated herein.
In criminal proceedings, the defendant has a right to confront witnesses that testify against him, and certain hearsay testimony violates this right. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). To succeed on an ineffective assistance claim based on counsel’s failure to object, Nigro must show that (1) the objection would have been meritorious, and (2) the failure to object resulted in substantial deprivation of his right to a fair trial. Hays v. State, 360 S.W.3d 304, 312 (Mo.App.W.D. 2012). In Johnson v. State, the court noted that a failure to object is rarely found, to be ineffective assistance of counsel. 330 S.W.3d 132, 139 (Mo.App.W.D.2010). Further, “[i]n many instances, seasoned trial counsel do not object to otherwise improper questions or arguments for strategic purposes.” Bracken v. State, 453 S.W.3d 866, 871 (Mo.App.E.D.2105) (citation omitted). “A trial counsel’s failure to object is ordinarily trial strategy and therefore afforded considerable deference.” Shelton v. State, 440 S.W.3d 464, 470 (Mo.App.E.D.2014) (citation omitted).
The facts here are similar to those in Minicky v. State, 400 S.W.3d 899, 900 (Mo.App.E.D.2013). There, the movant asserted he had received ineffective assistance of counsel because his attorney failed to object to hearsay testimony regarding movant’s incriminating actions. Id. During a police interview, the movant confessed to the crime and voluntarily signed a written confession. Id. at 901-02. The court detailed the overwhelming evidence against the defendant apart from the hearsay testimony in question and determined that there was not a reasonable probability that the outcome of the proceeding would have been different had counsel objected to the hearsay testimony and had it been sustained. Id. at 902. The court’s reasoning was based, in part, on the movant’s confession to the crime. Id.
Here, as in Minicky, even assuming that the hearsay statements would have been excluded, Nigro cannot establish prejudice. As in Minicky, despite the alleged error in the admission of hearsay testimony, there is not a reasonable probability of a different outcome at trial because of Nigro’s confession to the crime and the overwhelming additional evidence of his guilt, as detailed above.
Point II is denied.
Conclusion
The judgment of the motion court is affirmed.
All concur
. All rule references are to Missouri Supreme Court Rules (2015).
. Nigro’s conviction was affirmed on direct appeal in a per curiam order. State v. Nigro, 391 S.W.3d 920, (Mo.App.W.D.2013).
. The facts are recited in a light most favorable to the verdict. Ferguson v. State, 325 S.W.3d 400, 404 n.2 (Mo.App.W.D.2010).
.Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284249/ | Gary M. Gaertner, Jr., Judge
Introduction
Dwayne Houston (Defendant) appeals from the sentence and judgment entered following a jury trial convicting him of *897burglary in the first degree, attempted forcible rape, and sexual misconduct. On appeal he asserts the trial court abused its discretion in allowing certain testimony and plainly erred in failing to hold a hearing to determine whether juror misconduct occurred. The trial court did not abuse its discretion in allowing the challenged testimony and Defendant waived his claim of juror misconduct by not raising it at the earliest opportunity. We affirm.
Background,
The State charged Defendant as a prior and persistent offender with the class B felony of burglary in the first degree (Count I), the unclássified felony of attempted forcible rape (Count II), and the class B misdemeanor of sexual misconduct in the second degree (Count III). At trial, the following occurred. During voir dire, after the panel was sworn, the trial court had Defendant stand and asked the panel members if anyone knew him. One juror indicated he possibly knew Defendant and was struck for cause. No other jurors, including juror Rose Clemons (Juror Clemons), indicated they knew Defendant. Also during voir dire, Juror Clemons stood and stated that she knew of no reason she could not be fair. The evidence at trial revealed the following.
On July 23, 2011, K.H. (Victim) and her male friend returned to her home around 2:30 a.m. They barricaded the door, as she often did because her home was located in a dangerous neighborhood, and her friend went to sleep on the couch and Victim went to bed upstairs. She awoke at some point after 4:00 a.m. when she felt someone, whom she identified as Defendant, in her bed kissing her. She reached out to touch the person’s face and realized that the person in her bed was not her friend.1 She began screaming and struggling, and Defendant attempted to remove her underwear. K.H. was able to get away, and she ran downstairs. She and her friend ran outside and called the .police.
While they were waiting for the police, K.H. decided to go inside to get dressed. Once inside, she discovered that Defendant was still in her bed, where he had taken off 'all of his clothes and was masturbating. K.H. yelled at Defendant to get out of her house, and he slowly walked out while putting his clothes back on. After Defendant had left, her friend came back inside, and they locked the door and went upstairs to watch the street while they continued to wait for the police. They could see Defendant across the street, sitting on the steps. As they watched him, he approached her front door with his pants down while he continued to masturbate. Defendant yanked on her door knob, trying to get back in. K.H. recognized Defendant from the neighborhood, but she had never before spoken with him, invited him into her house, or given him permission to touch her. When the police arrived they witnessed Defendant standing in front of KH.’s home pulling up his pants. Defendant appeared highly intoxicated. We discuss further details of the trial as necessary in the points on appeal.
After a trial, a jury found Defendant guilty on all three counts. Defendant does not challenge the sufficiency of the evidence supporting his convictions. At the start of the sentencing hearing, counsel for Defendant sought a ruling on his pending motion for new trial, asserting that in addition to the written grounds, he had just *898learned that Defendant knew one of the jurors, Juror Clemons. Counsel asserted that Juror Clemons had contacted Defendant’s family to let them know she was on the jury, and that Juror Clemons and Defendant had dated in the past, but she did not disclose during voir dire that she knew Defendant. Counsel did not request an evidentiary hearing to provide testimony on the new claim and did not submit to the court any affidavits in support of the new claim. The trial court denied the motion' for new trial, stating:
[T]he question was asked to the entire panel if anyone knew of the participants, lawyers or the defendant. No one indicated a distinct knowledge of anyone, ... Without knowledge of [a relationship between Clemons and Defendant], I mean, to me, I have to take their answers under oath at face value. The defendant was asked to rise, clear view of the entire jury panel, and no one disclosed [knowing him]. So I take that, the fact that no one acknowledged that, at face value. So the motion is preserved and overruled.
The trial court sentenced Defendant to concurrent terms of seventeen years’ imprisonment in the Missouri Department of Corrections- on Counts I and II, and six months in a medium security institution on Count III, which was discharged for time served awaiting trial. This appeal follows.
Discussion
Point I
In his first point on appeal, Defendant argues the trial court abused its discretion in overruling his objection and allowing the State to ask Victim to testify about whether she continued to live in the same house after the incident and whether she had planned to move from St. Louis before the incident occurred, because this testimony was not directly related to any of the charged offenses, was inherently prejudicial, and had no probative value. We disagree.
We review the trial court’s admission of evidence for an abuse of discretion. State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002). Missouri courts determine the admissibility of evidence by its relevance. Id. Relevance has two tiers; logical and legal. Id. Evidence is logically relevant if it tends to make the existence of a material fact more or less probable, and evidence is legally relevant if its probative value outweighs any costs related to its admission, such as unfair prejudice, confusion, misleading the jury, or cumula-tiveness. Id. Logical relevance has a very low threshold. Id. at 277. Moreover, we review challenges to the admissibility of evidence for prejudice, not mere error, and will reverse only when the error was so prejudicial that it deprived the defendant of a fair trial. Id.
During Victim’s testimony, the following exchange occurred:
[The State]: After this incident, did you continue living at 4237 Kossuth?
[Victim]: No.
[Counsel for defense]: Objection. Relevance.
The Court: I’ll permit some inquiry. Not extensive. You said no?
[Victim]: No, I did not.
[The State]: Where did you go when you left?
[Victim]: I immediately moved. The next day, I put in for a transfer with my job to leave the city. Two to three weeks it took for them to answer, and I left.
[The State]: You left the city entirely?
[Victim]: I left the city and the state.
*899[The State]: Okay. Had you been planning on doing that prior to this incident?
[Victim]: No.
[Counsel for defense]: Objection, your honor.
The Court: I’ll allow the answer.
[Victim]: No.
In cases of sexual assault, the State may produce circumstantial evidence of the victim’s psychological condition after the attack to prove lack of consent. State v. Burke, 719 S.W.2d 887, 889 (Mo. App. E.D. 1986). Lack of consent is an element of rape and attempted rape, and thus evidence tending to prove whether Victim consented to the sexual activity is logically and legally relevant to the crime charged. Section 566.030.1, RSMo. (Cum. Supp. 2013) (“A person commits the offense of rape in the first degree if he or she has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capability to consent, or by the use of forcible compulsion”); see also State v. Dowell, 25 S.W.3d 594, 603 (Mo. App. W.D. 2000) (evidence that tends to prove element of crime charged is logically and legally relevant). Further, testimony that the victim made major life changes after an alleged sexual assault is relevant to the issue of whether the victim had consented to the sexual activity. See State v. Johnson, 637 S.W.2d 157, 161 (Mo. App. E.D. 1982).
Moreover, the evidence that Victim moved out of her house the day after the burglary and attempted rape was not prejudicial to Defendant. Prejudice occurs when the evidence is so inflammatory as to deprive the defendant of a fair trial, meaning that the evidence more likely than not had an effect on the outcome of the trial. State v. Evans, 455 S.W.3d 452, 455 (Mo. App. E.D. 2014). Outcome-determinative prejudice is when the erroneously admitted evidence so influenced the jury that there is a reasonable probability the jury would have acquitted but for the erroneously admitted evidence. State v. Black, 50 S.W.3d 778, 786 (Mo. banc 2001). Here, even if the challenged evidence was erroneously admitted, which we find that it was not, it was not so inflammatory as to deprive Defendant of a fair trial and did not, when balanced against the other evidence admitted at trial, affect the outcome of the trial. Thus, we find the trial court did not abuse its discretion in allowing the challenged evidence.
Point denied.
Point II
In his second point on appeal, Defendant argues the trial court plainly erred in failing to hold an evidentiary hearing on his claim that Juror Clemons was not an impartial juror. We disagree.
Defendant concedes that because he did not include the claim of juror misconduct in his motion for new trial, he did not preserve this issue for appellate review. He thus requests plain-error review under Rule 30.20. Under plain-error review, we will reverse only if a plain error affecting substantial rights results in manifest injustice or a miscarriage of justice. State v. Floyd, 347 S.W.3d 115, 123-24 (Mo. App. E.D. 2011), We review for plain error using a two-step analysis. First, we determine whether the record facially establishes substantial grounds to believe plain error occurred, which is error that is evident, obvious, and clear. Id. If so, we then consider whether the error resulted in manifest injustice or a miscarriage of justice. Id. Plain error review requires that the alleged error have a decisive effect on the verdict. See State v. White, 247 S.W.3d 557, 563 (Mo. App. E.D. 2007). However, if facially substantial grounds do *900not exist, this Court will decline to exercise its discretion to review the claim of plain error. Id. at 561 (“Rule 30.20 is no panacea which a criminal defendant can use to obtain appellate review, of any alleged error that is unpreserved.”).
“Venirepersons must have an ‘open mind, free from bias and prejudice.’ ” State v. Ess, 453 S.W.3d 196, 203 (Mo. banc 2015). Likewise, venirepersons have the duty to answer all questions fully and truthfully during voir dire, because failing to do so can deprive counsel of information needed to exercise a peremptory challenge or challenge for cause. Id. Silence to an unequivocal question establishes juror nondisclosure, when the requested information was known to the venireperson. Id. at 204. A new trial on the basis of juror nondisclosure is appropriate when the juror’s. nondisclosure was intentional or if prejudice resulted from the unintentional nondisclosure. State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc 2001).
However, the party claiming juror misconduct is required to bring this misconduct to the court’s attention as soon as he learns of it and has the opportunity to do so. Id. Failure to do so will result in a waiver, of review on that claim. See State v. Baumruk, 280 S.W.3d 600, 615 (Mo. banc 2009). “The rule requiring contemporaneous objections to the qualifications of jurors is well founded. It serves to minimize the incentive to sandbag in the hope of acquittal and, if unsuccessful, mount a post-conviction attack on the jury selection process.” Id. (citation omitted). Sandbagging is the practice in which counsel or the defendant himself remains intentionally silent when a possible error occurs at trial, with the hope of preserving the issue for appeal if the trial court does not correct the error. See Black’s Law Dictionary 1459 (9th ed. 2009). Such sandbagging tactics will not usually preserve the issue for appeal, because the defendant must make objections promptly to alert the trial court to the possible error. Id. Moreover, a defendant claiming juror misconduct during voir dire “must present evidence through testimony or affidavits of any juror, or other witness either at trial or at the hearing on his motion for new trial,” or must “at a minimum, allege intentional concealment in his motion for new trial and file an affidavit from the juror setting forth the facts surrounding the alleged concealment.” Mayes, 63 S.W.3d at 625-26 (internal quotation marks and citations omitted).
Here, during voir dire, Juror Clemons was silent in response to the question of whether any of the panel members knew Defendant. She further stood while Defendant was present in the courtroom and stated that she knew of no reason she could not be fair. Juror Clemons then served on the jury, which found Defendant guilty on all charges. Following the verdict, the trial court polled the jury and Juror Clemons stood in open court and confirmed that she had entered a verdict of guilty. Only immediately prior to sentencing did Defendant alert the court that he knew Juror Clemons.
It was Defendant’s burden to make a timely and proper objection about members of the jury panel, and his failure to do so constitutes a waiver of his claim for juror misconduct. See Baumruk, 280 S.W.3d at 615. Here, it is not believable that Defendant, who was present in the courtroom during the entire trial, did not observe Juror Clemons during voir dire when she stood to answer a question, during the three-day trial, and again after the verdict when Juror Clemons individually stood while the trial court polled her verdict. Defendant failed, however, to acknowledge at any point during the proceedings prior to the sentencing hearing *901that he knew Juror Clemons or had an alleged relationship with her. If Defendant in fact knew Juror Clemons, we find his earlier silence to be an attempt to sandbag the trial court by not revealing this alleged information when it first became available. It stretches the credulity of this Court that Defendant only realized he had dated Juror Clemons after' the verdict was announced.2 Rather, if Defendant’s claims are in fact true, it is likely that he intentionally did not reveal this information because he wanted Juror Clemons to serve on the jury, in the hopes that she would be favorable to him and find him not guilty. Now, after Juror Clemons and the rest of the jury found him guilty, he complains of error. His claim of error is too late. See id. This is a classic example of sandbagging and demonstrates the reason for the requirement that a defendant must raise a jury issue when it first comes to light.
Moreover, it was Defendant’s burden to prove juror misconduct through witness testimony or affidavits, but he presented no accompanying affidavits to the trial court in support of his claim that Juror Clemons knew Defendant. See Ess, 453 S.W.3d at 202. He did not inform the trial court he intended to produce supporting witnesses, such as Juror Clemons herself or family members who could support his claim. Defendant asserts on appeal that the trial court committed plain error in denying him the opportunity to produce evidence to support his claim, but his opportunity to produce evidence was when he brought the claim to the court’s attention. He failed, however, to produce any supporting evidence. He merely asserted— for the first time — -that he knew Juror Clemons and Juror Clemons knew him, which contradicted Juror Clemons’ silence during voir dire in response to the question if any of the panel members knew Defendant. The trial court, without more evidence than Defendant’s self-serving statement, believed Juror Clemons. We see no error in the trial court’s credibility determination. See Mayes, 63 S.W.3d at 625 (no error in trial court denying motion for new trial on grounds of juror misconduct when defendant failed to offer evidence, either by affidavit or testimony, supporting his claims); see also Ess, 453 S.W.3d at 202 (in general, trial court is free to believe all, part, or none of testimony presented).
With no evidence of evident, obvious, and clear error by the trial court, Defendant has failed to show plain error. See Floyd, 347 S.W.3d at 123-24. Point denied.
Conclusion
The judgment of the trial court is affirmed.
Philip M. Hess, P.J., concurs.
Angela T. Quigless, J., concurs.
. K.H. testified she knew the person in her bed was not her male friend, because her friend has facial hair and is heavier than Defendant. Moreover, she testified that her friend is gay, and so she would have been surprised if he had been kissing her in the middle of the night.
. At the time of trial, Defendant was 33 years old. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5286391/ | OPINION
Alcala, J.,
delivered the opinion for a unanimous Court.
In this opinion, we address whether expert testimony on the subject of abusive head trauma is reliable. Jennifer Banner Wolfe, appellant, presents this issue in her petition for discretionary review following her conviction in a bench trial for first-degree-felony injury to a child after an infant under her care sustained serious internal head injuries. The primary evidence presented at appellant’s trial was the testimony of the State’s three expert witnesses, each of whom opined that the complainant’s injuries were indicative of intentionally inflicted impact, also known as abusive head trauma, rather than accidental injury or a preexisting medical condition as appellant had suggested. Appellant objected to the State’s experts’ testimony on the basis that it was unreliable, but the trial court overruled her objection. On discretionary review, appellant challenges the court of appeals’s ruling upholding the admissibility of this evidence on two bases. First, appellant contends that the court of appeals erred by concluding that the experts’ testimony on abusive head trauma “based solely on a constellation of symptoms” was sufficiently reliable so as to render it admissible under the rules of evidence. Second, appellant contends that the court of appeals incorrectly determined that her appellate challenge to the reliability of the experts’ testimony on abusive head trauma did not fairly include the issue of whether the expert testimony was unreliable “given this specific injured party’s history.”1 *327With respect to appellant’s contention challenging the reliability of the experts’ testimony of abusive head trauma based solely on a constellation of symptoms, we agree with the court of appeals’s assessment that the experts’ testimony was sufficiently reliable so as to warrant a conclusion that the trial court did not abuse its discretion by admitting that evidence, and we thus overrule appellant’s complaint as to this matter. With respect to appellant’s contention that the court of appeals erred by declining to consider this particular complainant’s history in conducting its reliability analysis, we conclude that the court of appeals’s analysis reflects that it did consider whether the experts’ opinions were reliable in light of this complainant’s particular injuries. Further, to the extent that appellant complains that the court of appeals improperly declined to consider the complainant’s medical history of prior bleeding in the brain as a basis for rejecting the reliability of the State’s experts’ testimony, we conclude that appellant did not rely on the complainant’s history of prior bleeding as a basis for arguing that the experts’ opinions were unreliable, and thus the court of appeals did not err by declining to address that issue. Finding no error in the court of appeals’s analysis, we overrule appellant’s grounds for review, and we affirm the court of appeals’s judgment upholding appellant’s conviction.
I. Background
Appellant ran an in-home daycare and was a licensed child-care provider. One morning, one of the children in appellant’s care, seven-month-old Jack, sustained internal head injuries that caused him to lose consciousness.2 After appellant called 911, Are department officials arrived on the scene and began giving Jack CPR. By the time paramedics arrived, Jack’s skin had turned blue, he did not have a pulse, and he was not breathing. Appellant told paramedics that, after feeding Jack, she had set him down on a foam-padded floor, he was crying and screaming loudly, and then he “just fell back unconscious.”3 While he was being transported in the ambulance, as a result of CPR and other advanced life-support procedures, Jack’s pulse and spontaneous breathing resumed. By the time he reached the hospital, Jack was awake and crying.
The doctors who examined Jack at the hospital determined that he needed immediate surgery to stop bleeding in his brain. Jack’s injuries included a subdural hema-toma, retinal hemorrhaging, and brain swelling—symptoms sometimes referred *328to as the “triad” of symptoms associated with abusive head trauma.4 He had no fractures, bruising, or other external physical injuries. A pre-operative CT scan of Jack’s brain showed the presence of two older stages of blood in his brain as well as new bleeding, indicating that there had been bleeding in his brain in the past. Dr. Roberts, a pediatric neurosurgeon, performed an emergency craniotomy to evacuate the hematoma and to alleviate pressure in Jack’s brain.
Trial Proceedings
Appellant was charged with the offense of first-degree-felony injury to a child. The indictment alleged that she knowingly caused serious bodily injury to Jack by shaking him and/or by striking him against a hard surface. Appellant pleaded not guilty. She waived her right to a jury trial and the case proceeded to a bench trial.
In anticipation of the likelihood that the State would present expert testimony at trial, appellant filed a pretrial motion to determine the admissibility of that evidence. In her motion, she requested a hearing pursuant to Rules of Evidence 702, 703, and 705, as well as Daubert v. Merrell Dow Pharmaceuticals, Inc.,5 to determine the experts’ qualifications and the reliability of the evidence. The trial judge granted appellant’s motion for a hearing as to each of the State’s expert witnesses.
At the commencement of the trial proceedings, appellant’s counsel addressed the basis for her challenge to the reliability of the State’s experts’ testimony in this case. Counsel stated,
[I]n this particular case, given the nature of the evidence as I believe it’s going to be introduced, I believe the State is going to rely on shaken baby syndrome as virtually the only proof of intent as well as causation in this particular case. And that is a—the scientific basis and theory that I want to challenge, and I’m urging to challenge in a Daubert/Kelly 702 through 705 hearing. So I think I needed to put that on the record at this point challenging any references to shaken baby syndrome and that we are challenging the underlying principle as unreliable in the scientific community and not reliable in this case under Daubert and Kelly.6
Appellant’s counsel then asked the trial court for a “running objection to any mention of [] shaken baby syndrome.” She further requested that the trial court carry the motion with the trial and make a ruling on her motion after hearing all the experts’ testimony in the case.7 The trial court *329agreed to carry appellant’s motion with the trial.
In its case in chief, the State offered into evidence the testimony of three expert witnesses. The first of these witnesses was Dr. Roberts, the pediatric neurosurgeon who had performed Jack’s craniotomy. Dr. Roberts stated that he had been actively practicing pediatric neurosurgery for approximately four years and that he had treated “many” children under the age of five who had suffered head trauma.8 He testified that Jack had presented with a subdural hematoma, or bleeding beneath the brain’s dura, brain swelling, and compression of the brain that was “worrisome for surviving.” While performing Jack’s craniotomy, Dr. Roberts discovered that Jack had what was likely an avulsed bridging vein that had been pulled off the point where it ordinarily would connect to the sagittal sinus, resulting in brisk bleeding that was in turn causing compression of the brain.9 Dr. Roberts agreed with the suggestion that an avulsion of a bridging vein does not just happen within the course of everyday life, but instead would require some sort of force to cause it. Specifically, he stated, that, in the typical case, the cause will be “high-energy impact[ ] where force is sufficient to move the brain far enough away from the covering of the brain to stretch those bridging veins and tear them or avulse them.” Although he indicated that Jack’s injuries could not have been caused by shaking alone, Dr. Roberts stated that the injuries could have been caused by shaking plus impact or striking Jack against a hard surface, such as the floor. When asked how he could explain the lack of external injuries to Jack in light of his opinion that some impact was necessary to cause Jack’s injuries, Dr. Roberts indicated that, if the “surface was a non-marking surface,. say, something softer than concrete, we would not necessarily have to have a bruise, or it may not be evident as a bruise.” He also found it significant that Jack had retinal hemorrhaging and retinal tearing, or retinoschi-sis. He stated that Jack’s combined symptoms were “all classically associated with high-energy input to the head.” He indicated that, typically, there would have to be acceleration and deceleration in order to cause the types of injuries that Jack presented with and that his injuries did not “fit the story” of Jack merely falling backwards onto a padded surface from a seated position. Dr. Roberts opined that, “in a normal, healthy brain, we see car accidents or falls from second-story windows to cause those types of injuries.” As a result, it was his opinion, based on the “constellation” of symptoms, that Jack’s injuries were caused by non-accidental trauma. Specifically, Dr. Roberts stated, “[Biased on our history of seeing other non-accidental traumas with these exact same constellation of symptoms, then we would diagnose this as a ... subdural hematoma due to trauma and given the story, non-accidental because the story does not match the—the story doesn’t match what I’m seeing clinically.” Dr. Roberts agreed with the suggestion that his opinion was based on his training, experience, and education within pediatric neurosurgery, and that *330the basis for his opinion was generally accepted within the medical community.
With respect to the evidence of prior subdural bleeding in Jack’s brain, Dr. Roberts described Jack’s pre-operative OT scan as showing the presence of one or possibly two prior stages of bleeding in the brain as well as the new bleeding. Upon operating on Jack, Dr. Roberts observed, in addition to the new bleeding, “a rapid efflux of older-appearing blood, so very dark, purplish blood ... as well as some clotted material.” He indicated that it was his opinion that Jack “had, at some point prior, another hemorrhage.” He indicated that he was unaware of any method for estimating when the prior bleeding had occurred. Dr. Roberts agreed with the suggestion on cross-examination that, due to the prior bleeding, “we are not talking about a healthy brain.” He could not offer any explanation for the cause of the old bleeding in Jack’s brain, and he further stated, “It is not normal for anyone to have blood inside their head outside of the blood vessels[.]” He also appeared to acknowledge that it was “possible” that the old bleeding had caused some displacement of the brain and had stretched Jack’s bridging vein in a way that could contribute to the new bleeding.10 But he opined that the old bleeding by itself would not have caused Jack’s injuries. Specifically, asked whether the old blood could have caused the “constellation” or the “entirety of the injuries,” Dr. Roberts responded, “Not by itself and certainly not because I—I found a brisk bleeding point when I did the surgery.” Asked to explain how Jack’s prior bleeding could have caused no observable symptoms and required no medical care, Dr. Roberts opined that “chronic subdurals are sometimes asymptomatic” and they “certainly can” heal on their own without treatment.
Dr. Ranelle, a pediatric ophthalmologist, examined Jack after his craniotomy.11 She determined that, although his right eye was uninjured, Jack’s left eye showed signs of multilayered intra-retinal hemorrhages and retinoschisis, which occurs when the retina splits apart. The left eye also exhibited a chemosis, which is swelling in the conjunctiva. Dr. Ranelle testified that chemosis can occur with traumatic injury. According to Dr. Ranelle, the vitreous base had also separated from the retina in Jack’s left eye. Dr. Ranelle opined that Jack’s eye injuries were consistent with nonaccidental trauma “in a normal healthy baby.” She acknowledged that, given the evidence of prior brain bleeding, Jack was not a “completely healthy child.” But she asserted that it was not possible that appellant’s version of events had caused Jack’s injuries, nor could his injuries have been caused by his prior brain bleeding. Dr. Ranelle agreed with Dr. Roberts’s suggestion that Jack’s injuries were caused by an accelerating force followed by deceleration. She opined that his collection of symptoms was suggestive of *331non-accidental injury and was consistent with a very significant traumatic, violent, high-energy force. She indicated that the type of unilateral hemorrhaging exhibited by Jack was “well described in the literature” as being present in cases of non-accidental trauma. Regarding the lack of external physical injuries on Jack, Dr. Ra-nelle stated that this is “sometimes the case in nonaccidental trauma. You sometimes don’t see it outwardly, especially in babies.” On cross-examination, she denied being aware of any literature that challenged the use of retinal hemorrhages as a basis for diagnosing intentionally inflicted head trauma. She disagreed with the suggestion that there was a state of unrest in the field of pediatric ophthalmology regarding the validity of a diagnosis of abusive head trauma. She stated, “I would say the majority of my peers would look at this case and come to a similar conclusion as I did.” She acknowledged that there were some doctors “who question the validity of retinal hemorrhages in [diagnosing] nonac-cidental trauma,” but indicated that she did not “personally know any of them.”
Dr. Coffman, a board certified physician in both general pediatrics and child-abuse pediatrics, evaluated Jack after the initial assessment, surgery, and treatment.12 She testified that the torn bridging vein and retinoschisis had to be from severe trauma—in particular, a high-energy violent impact or a combination of impact and shaking. She said the injuries could not have been caused by Jack’s prior brain bleeding or from falling onto a foam-padded floor from a seated position. In particular, regarding the prior bleeding in Jack’s brain, she stated that old blood could not create or contribute to a torn blood vessel, and she further indicated that “rebleeding of chronic subduralf] [hematomas] does not cause massive retinal hemorrljages and retinoschisis.” Regarding the lack of external bruising, Dr. Coffman stated, “If [the impact is] onto something that’s padded, we don’t ... necessarily see external bruising. That doesn’t mean that there’s not bruising ... underneath the scalp.” She explained that, in her experience, she had observed child autopsies in which the child did not exhibit any external bruising following head trauma, but, “when the child went to autopsy and they reflect the scalp back, there’s bruising underneath the scalp.” She also testified that there is no “unrest” within the various sub-fields of pediatrics, including pediatric ophthalmology, radiology, and neurosurgery, about abusive head trauma. She indicated that any unrest regarding the diagnostic criteria for abusive head trauma existed in the “biomechanical world” and the “medical examiner world,” but not in the field of pediatrics. She indicated that the American Academy of Pediatrics recognizes abusive head trauma as a valid diagnosis. She also testified that she did not diagnose abusive head trauma based on any triad of symptoms. She described the triad as a “fallacy because we don’t make our diagnosis based on a triad.” Instead, she suggested that the diagnosis “is based on the individual patient’s history, presentation, and findings.”
In contrast to the State’s three experts, the defense presented testimony from Dr. Rothfeder, an emergency-room physician who had treated multiple child trauma cases during his decades-long experience as a treating physician and has privately researched abusive head trauma for fifteen years. He testified that the medical corn-*332munity was in a state of disagreement about the principles for diagnosing abusive head trauma and that the dispute was by “far and away the area of greatest dispute in any medical topic I’ve ever encountered.” He stated that the diagnosis of abusive head trauma based on the triad of symptoms was accepted “by the majority of the pediatricians, and I think by the minority of anyone else who is active in the field.” He said that the classic triad of symptoms—subdural hematoma, retinal hemorrhages, and brain swelling—previously would have resulted in a shaken-baby-syndrome diagnosis, but that diagnosis has now become the abusive-head-trauma diagnosis. He indicated that some within the biomechanical sciences, ophthalmology and neuro-radiology communities have “come to a different set of conclusions regarding the cause and effect and the medical certainty associated with those conclusions.” But he also acknowledged that members of the pediatric-medicine community disagree with those contrary conclusions. He said that the problem with the diagnosis in a case such as this is that a child with no external signs of injury could not likely have suffered an impact in a way significant enough to cause the internal injuries.
Regarding the particular facts of this case, Dr. Rothfeder stated that the “big issue in this case” is the fact that this “was not a normal child ... with a normal brain” due to the presence of old bleeding in the brain. Dr. Rothfeder observed that the cause of Jack’s prior bleeding could not be identified and that there was “no clinical history that makes any sense that explains where those fluid collections came from.” He suggested that, given the existence of prior bleeding, new bleeding could take place “either spontaneously or with minimal trauma”—for example, he cited possible causes of new bleeding as being forceful crying, vomiting, long periods of coughing, or possibly setting a baby down hard. Dr. Rothfeder opined that the old blood in Jack’s brain had likely stretched the bridging vein, “putting a tension on” it and “weakening the vein.” He stated that, given the old bleeding, “the issue then becomes, well, how does one know in that set of circumstances how much force, if any, is required to ... initiate that hemorrhage?” He continued by explaining that “the child who has subdural hematomas that are chronic sitting inside the head where one already knows in retrospect that there’s been rebleeding is just like a bomb waiting to go off and ... those were capable of rebleeding almost at any point in time with—with who knows what kinds of trigger.” He opined that Jack’s brain swelling was probably caused by cardiac arrest, which then led to retinal hemorrhaging. Another possible theory put forth by Dr. Rothfeder was that Jack suffered an asymptomatic birth-related subdural hematoma that did not resolve and finally broke loose on the day in question.
In addition to the witness testimony, both appellant and the State presented the court with scholarly articles addressing the reliability question in this case. The State provided the court with an article by Dr. Sandeep Narang, J.D., M.D., titled, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome, in which the author concludes that the theory of abusive head trauma is widely accepted within the relevant scientific community and has been thoroughly researched.13 Appellant provided several articles that appeared to question the validity of abusive head trauma as a proper diagnosis, including an article by Dr. Steven Gabaeff titled, Challenging the Pathophysiologic Connection *333between Subdural Hematoma, Retinal Hemorrhage and Shaken Baby Syndrome; 14 an article by Dr. Mark Donohoe titled Evidence-Based Medicine and Shaken Baby Syndrome;15 and a law review article titled, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts.16
At the conclusion of the evidence, appellant asked the trial judge, “as the gatekeeper ... to find this medical theory that is being urged in the court unreliable.” Counsel stated that her objection was “based on the ... medical evidence in general, as well as the specific facts of this particular case and how that runs in conjunction with the facts we have presented before this Court.” She asserted that the State’s experts had relied upon a faulty or unproven medical theory in forming their opinions and that their “expert diagnosis that a child has been abused” was also flawed. In response, the State argued that the pediatric medical community was in broad agreement that abusive head trauma was a valid diagnosis; that the theory had been the subject of extensive research and testing; and that those who challenged the theory’s validity constituted a “vocal minority.” In addition, regarding the facts of this case, the State noted that Jack’s injuries went beyond the “triad” of symptoms because he also had avulsion of a bridging vein and retinoschisis “that they’ve never seen in anything other than violent trauma.” After the parties made their respective arguments on appellant’s Daubert/Kelly motion, the trial judge stated that he would delay his ruling on the motion because he “need[ed] some time to review all of this material.” The trial judge did not rule on appellant’s motion until a later hearing. At that subsequent hearing, the judge overruled appellant’s motion, found appellant guilty, and sentenced her to five years’ imprisonment. The judge explained that his decision to overrale appellant’s motion was premised on his determination that the State’s experts’ testimony met the reliability requirements of Rule 702, Kelly v. State17 and Daubert.
Proceedings in the Court of Appeals
On appeal, appellant raised a single point of error in which she challenged the trial court’s admission of what she characterized as unreliable medical expert opinion testimony on abusive head trauma. Wolfe v. State, 459 S.W.3d 201 (Tex. App.-Fort Worth 2015). At the outset of its analysis, the court of appeals determined that the arguments presented in appellant’s brief were limited to challenging “only the reliability of the State’s medical expert testimony regarding a diagnosis of abusive head trauma—in general—on the basis of the ‘triad’ of subdural hematoma, retinal hemorrhaging, and brain swelling, without evidence of external injuries.” Id. at 211. Thus, the court concluded that appellant’s complaint did not encompass any argument that the experts’ diagnosis in this particular case was unreliable based on Jack’s medical history of previous bleeding in the brain. Id. (“In other words, [appellant] argues only that the general theory behind diagnosing abusive head trauma is flawed, relying on debate and disagreement within the scientific community about the general theory. ... Appellant does not, at any point within her brief, alternatively argue that even if a diagnosis of abusive head trauma could be reliable with respect to a typical patient based on *334the symptoms that Jack presented with, it was not reliable as to Jack based on his prior medical history, including the prior bleeding in his brain.”). Based on this assessment, the court of appeals indicated that it would “examine only the general reliability of testimony relating to diagnosing abusive head trauma.” Id.
Second, the court of appeals held that the trial court did not abuse its discretion by overruling appellant’s objection and admitting the evidence provided by the State’s experts. Id. at 212. Applying the factors from Kelly v. State,18 the court of appeals reasoned that the experts, who “demonstrated their unchallenged qualifications to testify about pediatrics generally and the injuries Jack suffered specifically, clearly articulated the conditions under which they diagnosed abusive head trauma and confirmed that the pediatric medical community generally accepts the diagnosis of abusive head trauma from the types of injuries that Jack suffered.” Id. The court of appeals further noted that the State had provided the trial court with “literature supporting the diagnosis of abusive head trauma with the types of injuries that are present here,” and it took note of decisions from other courts “that have upheld convictions based on such testimony.” Id. Regarding appellant’s evidence that suggested the existence of some unrest within certain areas of the medical and biome-chanical engineering communities regarding the validity of a diagnosis of abusive head trauma based on the “triad” of symptoms, the court of appeals acknowledged that evidence but determined that “that disagreement in and of itself does not make the State’s expert testimony unreliable.” Id. at 213; see also id. at 213-14 (“[E]ven if the principles supporting the testimony are not universally accepted in various medical fields, we cannot hold that the State presented inadmissible junk science.”) (citations omitted). Further, to the extent that appellant had cited sources challenging the reliability of a diagnosis of abusive head trauma based on shaking alone, the court of appeals deemed those sources “inapposite because both Dr. Roberts and Dr. Coffman testified that Jack’s injuries could not have occurred by shaking alone.” Id. at 213. The court of appeals concluded that the trial court had not abused its discretion by admitting the challenged evidence, and it overruled appellant’s sole point of error. Id. at 214,
Justice Walker dissented. Id, at 214, She disagreed with the majority opinion’s apparent assessment that appellant’s argument on appeal did not encompass a challenge to the reliability of the State’s experts’ testimony concerning abusive head trauma as applied to Jack. Id. Justice Walker would have held that the “subsidiary question of the reliability of the State’s experts’ testimony concerning abusive head trauma as applied to Jack is fairly included in [appellant’s] issue on appeal.” Id. Thus, she would have addressed “the issue of whether the expert opinion testimony ... diagnosing Jack with abusive head trauma (that is, non-accidentally inflicted head trauma) was reliable.” Id. Justice Walker further found that a “serious question” existed as to the reliability of the experts’ conclusion that Jack suffered abusive head trauma in this case, given Jack’s medical history of bleeding in the brain and the lack of any external injuries. Id.
II. Experts’ Testimony On Abusive Head Trauma Based on a Constellation of Symptoms Was Reliable
In her second ground in her petition for discretionary review, appellant *335challenges the court of appeals’s conclusion that the experts’ testimony on abusive head trauma based on a constellation of symptoms was reliable. In particular, appellant asserts that there is extensive “ongoing debate” in the medical community regarding the validity of the diagnosis based “exclusively” on symptoms of sub-dural hematoma, retinal hemorrhaging, and brain swelling, and she contends that the existence of this debate serves to undermine the reliability of the experts’ opinions in this case. In response to this argument, the State contends that the experts’ opinions in this ease were not based exclusively on a “triad” of symptoms, but were instead arrived at through a process of differential diagnosis that is an “all-encompassing process-of-elimination consideration of every possible cause” based on the particular patient’s history and presentation. The State further contends that the abusive-head-trauma diagnosis is widely accepted amongst most esteemed national and international medical organizations as a valid diagnosis and has been the subject of extensive research.
As we will explain further below after reviewing the applicable standard in Kelly v. State and applying the relevant factors to this case, we disagree with appellant’s arguments, and we agree with the State that the experts’ testimony in this case was sufficiently reliable. See Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). We hold that the court of appeals correctly determined that the trial court did not abuse its discretion by admitting the experts’ testimony on abusive head trauma based on the types of injuries that Jack exhibited in this case.
A. Applicable Law
A trial judge’s ruling on the admissibility of expert testimony is reviewed under 'an abuse-of-discretion standard and will not be disturbed if it is within the zone of reasonable disagreement. Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). The admissibility of expert testimony is governed by Texas Rule of Evidence 702, which provides that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of ah opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact1 in issue.” Tex. R. Evid. 702. In addition, Rule 705 provides that, if the court determines that “the underlying facts or data do not provide a sufficient basis” for the expert’s opinion under Rule 702, the opinion is inadmissible. Tex. R. Evid. 705(c). For expert testimony to be admissible under these rules, the proponent of the expert scientific evidence must demonstrate by clear and convincing evidence that the testimony is “sufficiently reliable and relevant to help the jury in reaching accurate results.” Kelly, 824 S.W.2d at 572. “In other words, the proponent must prove two prongs: (1) the testimony is based on a reliable scientific foundation, and (2) it is relevant to the issues in the case.” Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).19 Here, we limit our analysis to the first prong addressing reliability because appellant has not challenged the second prong addressing the relevancy of the testimony to the issues in the case.
*336This Court in Kelly set forth three criteria for reliability that the proponent of scientific evidence must prove: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Kelly, 824 S.W.2d at 573. This Court in Kelly went on to suggest a nonexclusive list of factors that might influence a finding of reliability: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the testifying experts; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question. Id. In weighing these factors as a means of assessing reliability, the focus “is to determine whether the evidence has its basis in sound scientific methodology such that testimony about ‘junk science’ is weeded out.” Tillman, 354 S.W.3d at 435 (citing Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)); see also Massey v. State, 933 S.W.2d 141, 152 (Tex. Crim. App. 1996) (“The overarching concern under Rule 702 is the scientific validity of the evidence; its reliability depends upon whether it is rooted in sound scientific methodology.”). Unreliable scientific evidence is inadmissible because it “simply will not assist the jury to understand the evidence or accurately determine a fact in issue; such evidence obfuscates rather than leads to an intelligent evaluation of the facts.” Kelly, 824 S.W.2d at 572.
In sorting untested or invalid theories from those that are grounded in “good” science, trial judges are called upon to serve as gatekeepers. See Jordan, 928 S.W.2d at 555 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595-99, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). “The trial court’s essential gatekeeping role is to ensure that evidence that is unreliable because it lacks a basis in sound scientific methodology is not admitted.” Coble v. State, 330 S.W.3d 253, 273 (Tex. Crim. App. 2010); see also Vela v. State, 209 S.W.3d 128, 134 (Tex. Crim. App. 2006) (“The court in discharging its duty as gatekeeper must determine how the reliability of particular testimony is to be assessed. The reliability inquiry is, thus, a flexible one.”). The trial court’s gatekeep-ing function under Rule 702 does not supplant cross-examination as “the traditional and appropriate means of attacking shaky but admissible evidence.” Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 728 (Tex. 1998) (quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786).
B. Application of Relevant Factors Demonstrates that Experts’ Testimony on Abusive Head Trauma was Sufficiently Reliable so as to Render it Admissible
Applying the seven Kelly factors to the evidence presented in this case, we conclude that the court of appeals correctly determined that the trial court did not abuse its discretion in admitting the expert opinion testimony of Dr. Roberts, Dr. Ra-nelle, and Dr. Coffman. As we will explain further below, we hold that the State’s experts provided reliable testimony that addressed the subject of abusive head trauma generally and further indicated, based on the particular types of injuries Jack suffered, that those injui’ies were the product of an intentionally inflicted impact.
*337
Acceptance of Theory in Scientific Community
Regarding the first Kelly factor—the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community—-we agree with the court of appeals’s assessment that the experts’ testimony was adequately shown to be accepted within the pediatric medical community. See Wolfe, 459 S.W.3d at 212. In particular, we note that all three experts testified consistently that their opinions were based on then-training in medical school and on their experience as physicians in their respective specialties actively treating pediatric head trauma. As the court of appeals noted, Dr. Roberts indicated that his opinion was based on principles that are generally accepted within the medical community, and he opined that, in the absence of any explanation or known cause for the types of injuries that Jack sustained, those symptoms were “classically associated” with high-energy input to the head of a non-accidental source. Dr. Roberts’s testimony regarding the widespread acceptance of abusive head trauma as a valid diagnosis under these circumstances was corroborated by the testimony of Dr. Ra-nelle, who indicated that the majority of her peers would have reached the same conclusion as she did in this case, and by the testimony of Dr. Coffman, who testified that there was “no unrest” within the field of pediatrics regarding a diagnosis of abusive head trauma based on these types of symptoms.
In addition to the agreement of the three experts in this case as to the mainstream acceptance of abusive head trauma as a valid medical diagnosis based on a patient’s presentation with the constellation of symptoms exhibited by Jack, we observe that at least two courts in other jurisdictions have concluded that this type of evidence is admissible over a challenge to its reliability. See In re Morris, 189 Wash.App. 484, 493, 355 P.3d 355 (2015) (holding that abusive head trauma is a “generally accepted theor[y] in the relevant scientific community,” and observing that “the American Academy of Pediatrics, the Academy of Ophthalmology, and the National Association of Medical Examiners, as well as a publication from the Centers for Disease Control and Prevention” each “recognizes abusive head trauma” as a valid diagnosis); Day v. State, 303 P.3d 291, 296 (Okla. Crim. App. 2013) (rejecting defendant’s contention that he was entitled to a Daubert hearing on expert evidence applying theory of abusive head trauma because that theory has been accepted as valid by Oklahoma courts, has not been discredited by recent scientific research, and is “not a novel scientific theory”). This Court has observed that the acceptance of a scientific theory by other courts is a relevant consideration in assessing a trial judge’s ruling on questions of reliability. See Somers v. State, 368 S.W.3d 528, 536-37 (Tex. Crim. App. 2012) (“When evaluating a trial judge’s gatekeeping decision, appellate courts may take judicial notice of other appellate opinions concerning a specific scientific theory or technique.”). In light of these considerations, we conclude that the first factor weighs strongly in favor of upholding the trial court’s reliability determination here.
Expert’s Qualifícations, Experience, and Skill
Regarding the second and seventh Kelly factors—the experts’ qualifications and their experience and skill—the record reflects that all three experts were eminently qualified through both training in pediatric medicine and experience as treating physicians to render opinions both as to the nature of Jack’s injuries and the likely causes of those injuries. All three *338physicians testified that they had treated pediatric patients on many occasions involving head trauma, both accidental and non-accidental. Although we recognize that a medical license does not “automatically qualify the holder to testify as an expert on every medical question,” if the offering party has “established] that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court,” then the expert is qualified to render an opinion on that issue. Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003) (citing Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)). We conclude that this requirement was met here, and we thus agree with the court of appeals’s assessment that this factor also weighs in favor of upholding the trial court’s determination of reliability. See Wolfe, 459 S.W.3d at 212 (describing experts’ qualifications in this case as “unchallenged”).
Existence of Scholarly Literature
Regarding the third Kelly factor, the existence of scholarly literature supporting the validity of a diagnosis of abusive head trauma based on a patient’s presentation with certain symptoms, we conclude that the trial court’s ruling was supported by the article by Dr. Sandeep Narang, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome,20 which was provided to the trial judge by the State as evidence of the reliability of the experts’ testimony in this case. As the court of appeals correctly noted, Dr. Narang’s article reviews the medical literature and research- and evidence-based studies on the relation of subdural hematoma and retinal hemorrhaging in abusive head trauma, and it details “several studies demonstrating the significant statistical association” of both subdural hematomas and retinal hemorrhages with intentional child abuse. Wolfe, 459 S.W.3d at 212. Specifically, Dr. Narang’s article indicates that there are over 700 peer-reviewed, clinical medical articles published by over 1,000 different medical authors in twenty-eight countries addressing the topic of abusive head trauma.21 In addition, Dr. Narang’s article asserts that “there have been at least eight systematic reviews, over fifteen controlled trials, over fifty comparative cohort studies or prospective cases series, and numerous well-designed, retrospective case series/reports, comprising thousands of cases, supporting the diagnosis of [abusive head trauma],” and his article details the findings of those studies as showing a strong correlation between subdural hematoma and retinal hemorrhaging with nonacci-dental injury.22 He states that it is “virtually unanimous among national and international medical societies that AHT is a valid medical diagnosis.”23 Given the thoroughness with which the Narang article discusses the current medical and legal theories supporting a diagnosis of abusive head *339trauma as being valid and based on widely accepted medical principles, we conclude that this factor also weighs in favor of upholding the trial court’s ruling.
The Rate of Error
Regarding the fourth Kelly factor, the rate of error, we conclude that this factor weighs slightly against a finding of reliability in this case because the State’s experts opined that, given the types of injuries that give rise to a diagnosis of abusive head trauma, there is no way to engage in controlled trials to directly test the degree of force required to cause these injuries in an infant, and the actual rate of error is thus unknown. Specifically, Dr. Roberts opined that it would be impossible to “do a double-blind and randomized trial with a healthy baby to see what kind of forces need to be applied to the head to cause a subdural hematoma.” Dr. Ranelle also acknowledged that it “would be pretty hard to study the actual forces” required to cause the injuries that give rise to the diagnosis because no one could subject babies to that type of trauma in experimentation. In a factually analogous case involving an expert’s diagnosis of inflicted pediatric injury, the Kentucky Supreme Court has observed that these types of diagnoses “generally ha[ve] not been and cannot be tested through randomized, controlled trials.” Futrell v. Commonwealth, 471 S.W.3d 258, 284 (Ky. 2015). But, as to this matter, the Court in Futrell also noted that any concerns regarding the lack of a known rate of error were minimized due to the underlying theory having “been tested by repeated scrutiny in peer-reviewed observational studies conducted in accord with well-established statistical principles.” Id. This observation is echoed by Dr. Nar-ang’s article, which states that, with respect to the rate of error, any concerns with respect to that factor should be minimal because “there are numerous systematic reviews, controlled trials, and well-designed, prospective, and retrospective studies that demonstrate a highly significant statistical association of [subdural he-matomas] and [retinal hemorrhages] with AHT.”24 In sum, although the inability to directly test the theory of abusive head trauma to produce a known rate of error weighs slightly against a determination of reliability here, we cannot conclude, in light of other sources indicating that the diagnosis is generally valid, that this factor alone would serve as an adequate basis for disturbing the trial court’s ruling.
Availability of Other Experts and Clarity of Explanation to a Court
With respect to the remaining two factors—the availability of other experts to test and evaluate the technique and the clarity with which the underlying scientific theory and technique can be explained to the court—we determine that these considerations also weigh in favor of upholding the trial court’s ruling. The experts in this case explained that the technique employed as a means of diagnosing abusive head trauma involves differential diagnosis, which is the process by which “a child-abuse pediatrician presented with an injured child will' attempt to eliminate from a list of potential causes of the injury those causes not likely in the given case until arriving at the cause that is most likely.” Futtrell, 471 S.W.3d at 283.25 This type of *340deductive-reasoning process is conducive to evaluation by other experts, as is demonstrated by the experts’ testimony in the instant case, and, further, it is the type of process-of-elimination reasoning that can be clearly explained to the court. Moreover, other courts have recognized differential diagnosis as a “reliable method of ascertaining causation” and as being “well-recognized and reliable.” Morris, 355 P.3d at 361; see also Coastal Tankships, U.S.A., Inc., v. Anderson, 87 S.W.3d 591, 604-05 (Tex. App.-Houston [1st Dist.] 2002) (observing that a “properly conducted and explained differential diagnosis is not junk science”; differential diagnosis is “in itself a reliable and widely accepted methodology”). We recognize here, however, that there is some inherent degree of subjectivity in reaching a diagnosis by using differential diagnosis, because two equally qualified physicians may apply that technique in a slightly different manner based on different reasoning and experience, and thus the process may in some cases be susceptible to a degree of inconsistency amongst experts. See Clausen v. M/V NEW CARISSA, 339 F.3d 1049, 1058 (9th Cir. 2003) (with respect to opinions based on differential diagnosis, a court is justified in “excluding evidence if an expert utterly fails ... to offer an explanation for why the proffered alternative cause was ruled out”; “The expert must provide reasons for rejecting alternative hypotheses using scientific methods and procedure and the elimination of those hypotheses must be founded on more than subjective beliefs or unsupported speculation”); see also Transcont'l Ins. Co. v. Crump, 330 S.W.3d 211, 217 (Tex. 2010) (“The mere fact that differential diagnosis was used does not exempt the foundation of a treating physician’s expert opinion from scrutiny—it is to be evaluated for reliability as carefully as any other expert’s testimony.”). In any event, here, given the consistency with which the experts in this case explained the basis for their opinions and the methodology underlying those opinions, we conclude that these considerations support the trial court’s ruling.
Whether the Trial Court’s Assessment of the Factors Was an Abuse of Discretion
We agree with the court of appeals’s application of the Kelly factors to the evidence presented at appellant’s trial and its ultimate conclusion that the trial court’s ruling was not outside the zone of reasonable disagreement. We, therefore, agree with the court of appeals that, affording appropriate deference to the trial court’s ruling in this case, the trial court did not abuse its discretion in admitting the experts’ testimony on abusive head trauma based on the particular constellation of symptoms exhibited by Jack. See Tillman, 354 S.W.3d at 442. Although appellant seeks to avoid this conclusion by pointing to her expert’s testimony that there is some significant disagreement within various segments of the medical and biome-chanical communities regarding the validity of the diagnosis based on the triad of symptoms, we agree with the court of appeals’s assessment that a lack of universal agreement would not render the State’s *341evidence “junk science,” given the other indications of reliability described above. See Wolfe, 459 S.W.3d at 214. Moreover, to the extent that appellant relies on her own expert’s opinion regarding the ongoing debate about the validity of the abusive-head-trauma diagnosis as a basis to refute the reliability of the State’s experts’ testimony in this case, we agree with the court of appeals’s observation that even appellant’s own expert acknowledged that the diagnosis is widely accepted as valid in the pediatric medical community. See id. at 213 n.20. Further, even accepting that appellant’s expert and the State’s experts were all qualified, their disagreement about their methods and conclusions would not necessarily render one side’s testimony unreliable. See Commonwealth v. Martin, 290 S.W.3d 59, 68-69 (Ky. 2008) (“Merely because two qualified experts reach directly opposite conclusions using similar, if not identical, data bases, or disagree over which data to use or the manner in which the data should be evaluated, does not necessarily mean that ... one opinion is per se unreliable. ... That some scientists in a field disagree with an expert’s theories or conclusions does not render those theories or conclusions unreliable[.]”) (citations and internal quotations omitted).
In light of all the foregoing considerations, we conclude that the trial court did not abuse its discretion in admitting this evidence, and we thus uphold the court of appeals’s ruling as to the admissibility of the experts’ testimony on abusive head trauma based on the types of injuries that Jack suffered. We overrule appellant’s second ground.
III. Court of Appeals Properly Addressed All Arguments Made by Appellant on Appeal
In her first ground in her petition for discretionary review, appellant contends that the court of appeals erred by declining to consider whether the State’s experts’ testimony was unreliable “given this specific injured party’s history.” In particular, appellant asserts that the court of appeals erred to hold that her complaint on appeal did not fairly include any argument that the State’s experts’ opinions were unreliable given Jack’s particular injuries and his medical history of bleeding in the brain. We disagree. Based on a careful reading of the court of appeals’s opinion, we conclude that it reflects that the court of appeals did review the reliability of the experts’ conclusions that Jack suffered abusive head trauma in light of the particular injuries that he suffered, including subdural hematoma, retinal hemorrhaging and tearing, and brain swelling in the absence of any external injuries. We thus disagree with the suggestion by appellant that the court of appeals wholly declined to consider whether the experts’ opinions were reliable in applying a diagnosis of abusive head trauma to the facts of this case. To the extent that appellant complains to this Court that the court of appeals improperly declined to consider Jack’s history of prior brain bleeding in conducting its reliability analysis, we agree with the court of appeals’s assessment that appellant failed to brief that issue as a basis for rejecting the reliability of the State’s experts’ testimony, and we further conclude that that issue was not fairly included within her arguments on appeal.
Appellant asserts that the court of appeals failed to consider the reliability of the experts’ conclusions as they pertained to Jack’s particular injuries, but that suggestion is inaccurate. A fair reading of the court of appeals’s opinion in this case shows that it considered not only the reliability of a diagnosis of abusive head trauma in the abstract, but also the reliability of the experts’ conclusions that Jack had suffered abusive head trauma based on his *342particular injuries. Specifically, the court of appeals explained that it was considering whether the State’s experts provided reliable testimony regarding a diagnosis of abusive head trauma based on the “triad” of symptoms, without evidence of external injuries, which were the exact symptoms presented by Jack. See Wolfe, 459 S.W.3d at 211. In the course of addressing appellant’s reliability complaint, the court of appeals referred at multiple points to the particular injuries that Jack had suffered, and it suggested that the experts’ conclusions were reliable in applying the diagnosis to a patient with those symptoms. See id, at 212 (explaining that the experts were qualified to testify about “the injuries Jack suffered specifically” and that the experts “confirmed that the pediatric medical community generally accepts the diagnosis of abusive head trauma from the types of injuries that Jack suffered”); see also id. (explaining that the Narang article supported “the diagnosis of abusive head trauma with the types of injuries that are present here”). The court of appeals further rejected appellant’s reliance on sources challenging the reliability of a diagnosis of abusive head trauma based on shaking alone, given that the experts in this case testified that “Jack’s injuries could not have occurred by shaking alone.” Id. at 213. Given these portions of the court of appeals’s analysis, it is clear that the court did in fact take into consideration the complainant’s particular injuries in assessing the reliability of the experts’ testimony applying a diagnosis of abusive head trauma to this case.
In explaining the scope of its reliability analysis as one that would consider only the “general reliability” of the experts’ testimony, the court of appeals indicated that it would not consider the significance of Jack’s history of bleeding in the brain. Id. at 211. The court stated, that, although she had presented a challenge to “the reliability of the State’s medical expert testimony regarding a diagnosis of abusive head trauma—in general—on the basis of the ‘triad’ ... without evidence of external injuries,” appellant had not “at any point within her brief, alternatively argue[d] that even if a diagnosis of abusive head trauma could be reliable with respect to a typical patient based on the symptoms that Jack presented with, it was not reliable as to Jack based on his prior medical history, including the prior bleeding in his brain,” Id. The court of appeals further noted that all cites to authority within appellant’s brief “focus[ed] only on attacking the theory of diagnosing abusive head trauma generally,” and that only three sentences within the eleven-page argument portion of her brief “even mentioned Jack’s old brain bleeds.” Id. The court continued by observing that these sentences were “unconnected with legal citations and do not purport to challenge the reliability of the experts’ testimony based on the old bleeds.” Id. It was within this context that the court of appeals indicated that it would review only the “general reliability” of the experts’ testimony. Id. Although this statement, taken out of context, may appear to suggest that the court broadly declined to consider the reliability of the experts’ conclusions in this case at all, when viewed in context, this portion of the court of appeals’s analysis is more properly viewed as a narrow holding that the court would not consider any challenge to the reliability of the experts’ testimony based on the evidence of Jack’s history of bleeding, due to appellant’s failure to brief that issue on appeal. We now turn to consider whether this narrow holding by the court of appeals was in error.
The Rules of Appellate Procedure provide that an appellate brief “must contain a clear and concise argument for the contentions made, with appropriate citations *343to authorities and to the record.” Tex. R. App. P. 38.1(i). Further, the “brief must state concisely all issues or points presented for review,” and the “statement of an issue or point will be treated as covering every subsidiary question that is fairly included.” Id. 38.1(f). In addressing appellate briefing requirements, this Court has explained that “Rule 38.1 allows an appellant to present whatever issues for review he or she desires, with very few limitations. Thus, an appellant is the master of his or her own destiny with respect to what issues the court of appeals is required to address within its written opinion.” Garrett v. State, 220 S.W.3d 926, 928-29 (Tex. Crim. App, 2007). On the other hand, we have emphasized that, given this wide latitude afforded to appellants, an appellate court has no “obligation to construct and compose [an] appellant’s issues, facts, and arguments with appropriate citations to authorities and to the record.” Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); see also Lucio v. State, 353 S.W.3d 873, 877-78 (Tex. Crim. App. 2011) (holding that “sole reference to [an] assertion in the argument section of [an appellant’s] brief’ that was “unaccompanied by any other argument or authorities” supported conclusion that argument was inadequately briefed, and court of appeals thus properly declined to consider that argument); Cardenas v. State, 30 S.W.3d 384, 393-94 (Tex. Crim. App. 2000) (holding that defendant’s points of error were inadequately briefed “by neglecting to present argument and authorities” in support of them). Stated more succinctly, an appellate court is not required to make an appellant’s arguments for her. See Lucio v. State, 351 S.W.3d 878, 898 (Tex. Crim. App. 2011) (holding that appellant’s point of error was “inadequately briefed and presents nothing for review as this Court is under no obligation to make appellant’s arguments for her”).
Here, a review of appellant’s summary of her argument and her arguments shows that the court of appeals correctly determined that appellant failed to advance any argument on appeal that could plausibly be interpreted as challenging the reliability of the experts’ conclusions in light of Jack’s prior history of bleeding in the brain. Appellant’s summary of her argument was, in total, that
The trial court abused its discretion by allowing medical expert testimony on shaken baby syndrome (or its current vernacular, “abusive head trauma") as support for its findings. The State presented testimony that the child suffered a non-accidental, intentional head injury; yet the child displayed no external, physical signs of trauma. There is a vigorous debate supported from multiple sources and studies against the opinion that subdural hemorrhage and retinal hemorrhage in an infant is indicative of Shaken Baby Syndrome (SBS).
The fact of the matter is that there is growing unrest in the medical community regarding the diagnosis of abusive head trauma on the basis of subdural hematoma, retinal hemorrhaging, and brain swelling, and the trial court abused its discretion to admit and consider the opinions relying upon these markers.
The “Argument and Authorities” section of appellant’s brief included the following assertions:
• Appellant characterized her contentions at trial as “complaining] that the State experts issued the opinion of non-accidental, intentional injury based upon finding subdural hemato-ma, retinal hemorrhage, and brain swelling. Furthermore, especially given no external, physical signs of trauma or injury, the State experts were ‘medically diagnosing1 a crime. *344[Appellant] complained in essence that the trial court should disregard the State experts’ opinions due to the general disagreement and retraction in the medical community that a certain constellation of symptoms was exclusively child abuse.”
• Appellant discussed several cases from this Court as well as opinions from other courts addressing convictions that had been based upon expert medical testimony related to shaken baby syndrome. See Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012); State v. Edmunds, 308 Wis.2d 374, 746 N.W.2d 590 (Wis. Ct. App. 2008); Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011) (Ginsburg, J., dissenting); Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011). Appellant contended that these sources were “illustrative of the modern unease in the medical community with the reliability of shaken baby or shaken with impact syndrome.”
• In light of these arguments and authorities, appellant urged the court of appeals to “find that the trial court abused its discretion by admitting and relying upon the state experts’ opinions that the injuries sustained were non-accidental.”
Throughout her brief to the court of appeals, appellant mentioned Jack’s history of bleeding only in two places.26 In both instances, appellant was merely describing the testimony of Dr. Roberts, and her description of that testimony was unconnected to any legal authority or argument. Even construing appellant’s arguments liberally, we can find no basis for concluding that the arguments in her brief expressly or implicitly addressed Jack’s history of prior bleeding as a basis for refuting the reliability of the experts’ conclusions of abusive head trauma in this case.
The question then arises whether, in spite of appellant’s failure to present any argument in her brief pertaining to Jack’s prior brain bleeds, the court of appeals was nevertheless obligated to consider that matter as a subsidiary question that was “fairly included” within appellant’s complaint on appeal. See Tex. R. App. P. 38.1(f). Appellant now raises this contention on discretionary review and asks this Court to hold that the court of appeals erred by declining to address Jack’s history of bleeding in the brain as an issue that was fairly included within her reliability challenge on appeal. We decline to do so. Here, it is apparent that, although she may have placed substantial emphasis on Jack’s history of prior bleeding at trial, appellant chose not to advance that argument on appeal as a basis for refuting the reliability of the experts’ conclusions in this case. Instead, she narrowed her challenge on appeal to focus solely on the types of injuries that Jack presented with and on the sources that allegedly undermined the reliability of a diagnosis of abusive head trau*345ma based on those types of injuries. When an appellant has narrowed her arguments on appeal to address only a particular basis for disturbing a trial court’s ruling, it is not for the appellate court to then scour the record in search of other possible bases for reversing the trial court’s ruling on appeal. See Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (observing that, as an appellate court, “it is not our task to pore through hundreds of pages of record in an attempt to verify an appellant’s claims,” nor is it “our task to speculate as to the nature of an appellant’s legal theory”). To hold that the court of appeals erred by declining to consider an issue that appellant elected not to argue on appeal would conflict with the principle that an appellate court is under no obligation to make an appellant’s arguments for her, and it would further conflict with the principle that an appellant is the master of her own destiny on appeal. See Busby, 253 S.W.3d at 673; Garrett, 220 S.W.3d at 928. Thus, under the circumstances of this case which show that appellant narrowed hex-arguments on appeal to challenge only the expei-ts’ conclusions of abusive head trauma based on Jack’s particular injuries and ongoing debate in some segments of the medical community regarding the validity of the diagnosis based on those injuries, we decline to hold that the distinct issue of Jack’s medical history of bleeding in the brain was an issue “fairly included” within her arguments. We, therefore, hold that the coux-t of appeals was not obligated to consider whether the experts’ conclusions were unreliable in light of Jack’s medical history. We overrule appellant’s first ground.
IV. Conclusion
We agree with the court of appeals’s assessment that the trial court did not abuse its discretion by admitting the State’s experts’ medical opinion testimony on abusive head trauma. We, therefore, affirm the judgment of the court of appeals.
. Appellant’s grounds for review ask, ,
1. Whether the court of appeals wrongly decided that the appellant's point of error that the trial court abused its discretion by admitting unreliable expert testimony of abusive head trauma based solely on a con*327stellation of symptoms did not fairly include the issue [of] whether the expert testimony was unreliable given this specific injured party’s history.
2. Whether the court of appeals wrongly decided that the trial court did not abuse its discretion by admitting unreliable expert testimony of abusive head trauma based solely on a constellation of symptoms.
To facilitate our analysis, we will address appellant's grounds for review in reverse order.
. The court of appeals’s opinion used a pseudonym for the complainant in this case. For consistency’s sake, we will also adopt that pseudonym.
. In her subsequent explanations for what had occurred, appellant told Jack’s mother that she had put him on the floor in a seated position and he had fallen backwards. Appellant later told a police officer and personnel from the Texas Department of Health and Human Services that she had set Jack down and he had fallen backwards onto a foam-padded floor and had immediately gone limp. In a subsequent written statement, appellant conceded that, “when [she] set [Jack] down, it was possibly hard,’’ but she maintained that she did not shake or strike Jack against anything.
. A subdural hematoma is a collection of blood between the covering of the brain, also known as the dura, and the surface of the brain. A retinal hemorrhage is abnormal bleeding of the blood vessels in the retina, the membrane in the back of the eye. Brain swelling, also known as cerebral edema, consists of tissue swelling caused by the accumulation of fluid in the brain.
. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Appellant’s counsel later clarified that she was using the terms "shaken baby syndrome,” “abusive head trauma,” and "sudden impact injury” interchangeably to refer to the same medical theory that was the basis for the State’s case.
.Specifically, counsel stated,
What I propose to the Court, though, is—so we don’t have to have a hearing and—and do it all twice, I think the case law shows that ... we can respect the Judge’s position and the intellect to go, 'Okay, if I believe it’s not reliable, I can disregard it even though I’ve heard it.’ So if I can have an ongoing and running objection to any mention of that, shaken baby syndrome, so I don’t have to object every time it’s mentioned. And that once we—once you make a determination after you've heard all the medical experts and make a finding on that, if you find *329that it’s not reliable, then you won’t consider it. And if you find that it is reliable, obviously you would consider it.
. Dr. Roberts attended medical school at Louisiana State University. Prior to commencing his practice at Cook Children's Hospital in Fort Worth, he completed a six-year residency in neurosurgery and an additional year-long fellowship in pediatric neurosurgery.
. According to Dr. Roberts, bridging veins are "small, lateral-lilce veins entering [a] larger vein.” The sagittal sinus is "the main draining vein for the top part of the brain.”
. As to this matter, the following exchange occurred:
[Defense counsel]: Isn't it possible that that old blood that is sitting there has something to do with the—with how compromised the child is already? It’s got to take up volume.
[Dr. Roberts]: It's going to—it's going to take up space, yes.
[Defense counsel]: Okay, So the bridging vein that we’re talking about is already stretched. The volume—that old blood—isn’t it possible? Isn’t it possible?
[Dr. Roberts]: It is—it is possible.
. Dr, Ranelle attended medical school at Kansas City University of Biomedical Sciences. She completed her six-year residency in osteopathic ophthalmology and a one-year fellowship in pediatric ophthalmology. At the time of trial, she had been practicing pediatric ophthalmology in Fort Worth since 2005,
. Dr. Coffman attended medical school at the University of Texas Health Science Center in San Antonio. She completed her residency in pediatrics and later opened a private pedia-tries practice. At the time of trial, she had worked at Cook Children’s Medical Center since 2000 and had been practicing pediatric medicine since 1990.
. 11 Hous. J. Health L. & Pol’y 505 (2011).
. 12 West. J. Emerg. Med. 144 (2011).
. 24 Am. J. Forensic Med. Pathology 239 (2003).
. 87 Wash. Univ. L. Rev. 1 (2009).
. 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).
. 824 S.W.2d at 573.
. In addition, a trial court must determine whether a witness is qualified to testify as an expert. See Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Tex. R. Evid. 702. Because no question has been raised as to the qualifications of the State’s experts in this case, we do not address that matter.
. 11 Hous. J. Health L. & Pol'y 505 (2011),
. Id. at 539-40.
. Id. at 540.
. Id. at 574-76, 583. He lists several of those organizations as follows: (1) The World Health Organization; (2) The Royal College of Paediatrics and Child Health; (3) The Royal College of Radiologists; (4) The Royal College of Ophthalmologists; (5) The Canadian Paediatric Society; (6) The American Academy of Pediatrics; (7) The American Academy of Ophthalmology; (8) The American Association for Pediatric Ophthalmology and Strabis-mus; (9) The American College of Radiology; (10) The American Academy of Family Physicians; (11) The American College of Surgeons; (12) The American Association of Neurologic Surgeons; (13) The Pediatric Or-thopaedic Society of North America; (14) The American College of Emergency Physicians; and (15) The American Academy of Neurology.
. 11 Hous. J. Health L, & Pol’y 505, 579 (2011).
. See also Dr. Sandeep Narang, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome-Part II: An Examination of the Differential Diagnosis, 13 Hous. J. Health L. & Pol'y 203, 303-04 (2013) ("In the differential diagnosis methodology, the physician gathers historical information on a patient's symptoms and signs and generates hypotheses (a.lc.a., the differential diagnosis). Through the attainment of additional clinical information *340(via various diagnostic tests), the physician goes through an inferential and deductive process of hypothesis refinement until a consistent ‘working diagnosis’ is achieved. Hypothesis refinement utilizes a variety of reasoning strategies—probabilistic, causal, and deterministic—to discriminate among the existing diagnoses of the differential diagnosis.... In the simplest sense, the methodology relies on process-of-elimination reasoning. As one eminent evidentiary scholar stated, ‘[I]n differential diagnosis, if there are four possible diagnoses and you eliminate three, logic points to the last illness as the correct diagnosis.’ ") (citations and quotations omitted).
. In one place, appellant stated that Dr. Roberts, upon commencing the craniotomy, "saw a rapid efflux of older-appearing blood.” In another place, appellant described in further detail Dr. Roberts’s testimony regarding the evidence of prior bleeding. She stated,
Dr. Roberts also noted from the CT scans a chronic, or "old bleed.” According to Dr. Roberts, [Jack] must have had another pri- or hemorrhage, but according to Dr. Roberts the old blood would not have caused the constellation or entirety of the injuries. Dr. Roberts further acknowledged that there were two older bleeds, and both were subdural. On cross-examination, Dr. Roberts unequivocally stated more than once that his opinion that non-accidental trauma (child abuse) occurred was based upon a patient with a subdural hematoma, retinal hemorrhaging, and brain swelling. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284004/ | ORDER
PER CURIAM
The defendant, William Prada, appeals the judgment entered by the Circuit Court of the City of St. Louis following his conviction by the trial court of one count of second-degree assault. The State charged the defendant with three counts of first-degree assault and three corresponding counts of armed criminal action for firing a gun in the direction of three persons in an alley.' The trial court acquitted the defendant on five of the six charges, and found him guilty of second-degree assault as to *455one victim. The trial court sentenced the defendant to five years of imprisonment for second-degree assault, suspended execution of his sentence, and placed him- on two years of supervised probation. Finding no error, we affirm.
An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.
We affirm the trial court’s judgment. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284006/ | ORDER
PER CURIAM.
Victor R. Moore, Sr. appeals the judgment denying his Rule 74.06(b)(5)1 motion for relief from the trial court’s judgment dismissing his discrimination claim against MBR Management Corporation D/B/A Do-minos Pizza for failure to prosecute. We find that 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 84.16(b).
. All references to Rules are to Missouri Supreme Court Rules (2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284007/ | ORDER
PER CURIAM
Erik Burle (“Movant”) appeals from the motion court’s denial, following an eviden-tiary hearing, of his Rule 24.035 motion for post-conviction relief to vacate, set aside or correct the sentence and judgment. Mov-ant entered guilty pleas to the charges of the class C felony of possession of a controlled substance, the class D felony of resisting arrest, and the class D felony of tampering with the evidence in one case, cause No. 1111-CR06Í23-01. Additionally, Movant entered guilty pleas to the class C felony of stealing, the class D felony of property damage in the first degree, and the class A misdemeanor of stealing in a second case, cause No. 1211-CR02074-01. He was sentenced as a prior and persistent offender and a prior and persistent drug offender, to twenty-five years in prison on Count I, seven years on Count II, and seven years on Count IV in the first case, and ten years on Count I and seven years on Count II in the second case, with all sentences to be served concurrently.
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 *457only, 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/5284008/ | ■ ORDER
PER CURIAM
Gina and Harlin Mitauer (the Mitauers) appeal from the judgment in favor of HSBC Mortgage Corporation, Safeguard Properties LLC, Rodney Thomas, T.O.C.G.C. LLC d/b/a Touch of Class, and Luke Scherrer on the Mitauers’ “Second Amended Petition in Negligence, Breach of Contract, Breach of Fiduciary Duty, Promissory Estoppel and for Punitive Damages.” We affirm.
We have reviewed the briefs' of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential or precedential purpose. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284009/ | ORDER
PER CURIAM.
Leonard Malloy appeals the judgment entered upon a jury verdict convicting him of one count of statutory rape in the second degree and one count of statutory sodomy in the second degree. 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/590352/ | 974 F.2d 1248
59 Fair Empl. Prac. Cas. (BNA) 1368,59 Empl. Prac. Dec. P 41,755, 24 Fed. R. Serv. 3d 195
John W. WHALEN, Plaintiff-Appellee,v.UNIT RIG, INC., a Delaware Corporation; Terex Corporation,a Delaware Corporation; MRL AcquisitionCorporation, a Delaware Corporation,Defendants-Appellants.
No. 91-5069.
United States Court of Appeals,Tenth Circuit.
Sept. 10, 1992.On Rehearing Oct. 20, 1992.
J. Patrick Cremin of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. (with Frank M. Hagedorn on the briefs) Tulsa, Okl., for defendants-appellants.
J. Douglas Mann of Rosenstein, Fist & Ringold (with Eric P. Nelson on the briefs) Tulsa, Okl., for plaintiff-appellee.
Before McKAY, Chief Judge, McWILLIAMS, Circuit Judge, and EISELE, District Judge.1
McKAY, Chief Judge.
1
This age discrimination lawsuit arises from actions taken during a corporate acquisition. Plaintiff won a jury verdict and judgment for damages, attorney's fees, costs and expenses. Defendant companies appeal, arguing that plaintiff failed to prove his case and that the district court made various errors at trial. We affirm.
2
Unit Rig and Equipment Company ("URE"), after several years of financial troubles, was sold in 1988 to Terex Corporation ("Terex") with the assistance of MRL Acquisition Corporation ("MRL"). The newly acquired entity was named Unit Rig, Inc. ("URI"). As part of the acquisition process, all URE employees (approximately 500 people) were discharged on July 14, 1988, and all but forty-six were hired by URI on the following day without a formal job application process.
3
Plaintiff John Whalen was among the forty-six employees not hired by URI. He had been employed at URE since 1977 and had held the job of Controller for three years. He was sixty-three years old at the time of his discharge.
4
Frank Hill became president of URI when the acquisition was completed. He immediately merged the duties of Controller and Director of Finance, naming a Terex employee he knew to fill the new position of Vice President of Finance. This job merger lasted only two weeks, however, before the Vice President of Finance named another Terex employee as Controller. This new Controller was twenty-nine years old.
5
Shortly after Mr. Whalen heard that a new Controller had been hired, he filed documents with the Oklahoma Human Rights Commission ("OHRC") alleging that he had been the victim of age discrimination.2 Mr. Whalen filed this lawsuit pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1982) ("ADEA"), after the sixty-day deferral period mandated by ADEA had expired.3
6
Evidence was introduced at trial that a Terex vice president, Larry Skaff, had requested lists of URE employees in declining order of age and that these lists were delivered to Mr. Skaff and Mr. Hill at the time these two men made employment decisions regarding URI. One witness testified to hearing Mr. Hill describe his intent to hire a "young controller" during the acquisition process.
7
Defendants filed motions at various stages of litigation to challenge the sufficiency of the evidence to support a verdict of age discrimination. The companies now appeal from denial of these motions. Defendants also challenge the district court's decision to admit into evidence the lists of URE employees allegedly prepared at Mr. Skaff's request. Defendants further argue that the district court erred by allowing Mr. Whalen to dismiss his claim of willful age discrimination while the jury deliberated, and, finally, they raise various objections to the award of attorney's fees, costs and expenses.
8
As a preliminary matter, Mr. Whalen argues that the district court's denial of defendants' Motion for Summary Judgment is now moot and cannot be raised on appeal. He also argues that some issues raised in that motion were not preserved for appeal because they were not raised in defendants' Motion for Directed Verdict. This court has held that denial of a motion for summary judgment is not appealable. Boyles Galvanizing & Plating Co. v. Hartford Accident & Indem. Co., 372 F.2d 310, 312 (10th Cir.1967); cf. Grubb v. FDIC, 868 F.2d 1151, 1160 (10th Cir.1989) (issue of standing, first raised in summary judgment motion, could be addressed on appeal although summary judgment was denied).
9
Other circuit courts have recently adopted a rule that denial of summary judgment is not properly reviewable on an appeal from a final judgment entered after trial. Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir.1990); Holley v. Northrop Worldwide Aircraft Serv., 835 F.2d 1375, 1377-78 (11th Cir.1988); Locricchio v. Legal Services Corp., 833 F.2d 1352, 1358-59 (9th Cir.1987); Senza-Gel Corp. v. Seiffhart, 03 F.2d 661, 669 (Fed.Cir.1986); Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed.Cir.1986), cert. dismissed, 479 U.S. 1072, 107 S. Ct. 1262, 94 L. Ed. 2d 124 (1987). As the Federal Circuit explained, a denial of summary judgment is not a judgment, but "merely a judge's determination that genuine issues of material fact exist." Glaros, 797 F.2d at 1573 (citing Switzerland Cheese Ass'n, Inc. v. E. Horne's Mkt., Inc., 385 U.S. 23, 25, 87 S. Ct. 193, 195, 17 L. Ed. 2d 23 (1966) (denial of summary judgment "is strictly a pretrial order that decides only one thing--that the case should go to trial")). The Ninth Circuit has elaborated on the injustice of "depriv[ing] a party of a jury verdict after the evidence was fully presented, on the basis of an appellate court's review of whether the pleadings and affidavits at the time of the summary judgment motion demonstrated the need for a trial." Locricchio, 833 F.2d at 1359.4
10
We agree with the Eleventh Circuit that "[s]ummary judgment was not intended to be a bomb planted within the litigation at its early stages and exploded on appeal." Holley, 835 F.2d at 1377-78. We now hold that even if summary judgment was erroneously denied, the proper redress would not be through appeal of that denial but through subsequent motions for judgment as a matter of law ("JAMOL") and appellate review of those motions if they were denied.5
11
Defendants challenged the legal sufficiency of the documents Mr. Whalen filed with the OHRC in their Motion for Summary Judgment, claiming that the documents did not constitute a proper charge within statutory requirements. Summary judgment was denied. Defendants subsequently made an oral Motion for Directed Verdict and explicitly declined to revisit the issue of the OHRC documents.6 This court has held that "[o]nly questions raised in a prior motion for directed verdict may be pursued in a motion for judgment notwithstanding the verdict." Dow Chem. Corp. v. Weevil-Cide Co., 897 F.2d 481, 486 (10th Cir.1990) (citation omitted). Defendants' decision not to address the issue in the Motion for Directed Verdict thus barred them from raising it in subsequent motions JAMOL. Because the issue was not properly raised below, we do not consider it on appeal. Farmers Ins. Co. v. Hubbard, 869 F.2d 565, 570 (10th Cir.1989). We now address other issues that were properly raised and preserved for appeal.
12
Defendants argue in their motions for directed verdict and judgment notwithstanding the verdict ("j.n.o.v.") that Mr. Whalen's case fails because he did not prove that he applied for a job with URI. Error in denying a motion j.n.o.v. will only be found if the evidence conclusively favors the moving party and is susceptible to no reasonable inferences that would sustain the non-moving party's position. Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir.1988). In reviewing the district court's action, this court cannot assess credibility of witnesses or substitute its judgment for that of the jury. Id. The same standard of review applies to a motion for directed verdict. Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047, 1051 (10th Cir.1988) (citation omitted).
13
Employment discrimination law does not require that a plaintiff formally apply for the job in question. Rather, the law requires either that the employer be on specific notice that the plaintiff seeks employment or, where informal hiring procedures are used, that the plaintiff be in the group of people who might reasonably be interested in the particular job. Grant v. Bethlehem Steel, 635 F.2d 1007, 1017 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S. Ct. 3083, 69 L. Ed. 2d 954 (1981); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir.1984).
14
After thorough review of the record, we conclude that the evidence here does not conclusively favor defendants. Mr. Hill testified that no formal employment application procedures were followed. In addition, Mr. Whalen testified that he informed Mr. Skaff when he left his job as Controller that he needed work. A jury could reasonably infer from this evidence that even without a formal job application, Terex officials were on specific notice that Mr. Whalen was interested in the job of Controller. The jury could also have found that as the recently discharged Controller and the last person to hold that job, Mr. Whalen would certainly have been in the group of people who might reasonably be interested in the job when defendants filled it within two weeks of his departure. The jurors apparently found Mr. Whalen credible, and we cannot substitute our judgment for theirs. We therefore affirm the district court's denial of defendants' motions for directed verdict and for j.n.o.v. based on this claim.
15
Defendants next contend that Mr. Whalen failed to prove that age was a determining factor in defendants' actions and that their proferred reasons for the actions were pretextual. The plaintiff in an ADEA case has the burden of establishing that age was a determining factor in the employer's actions. EEOC v. Sperry Corp., 852 F.2d 503, 507 (10th Cir.1988). After the plaintiff has established the prima facie case, the burden shifts to the defendant to show that a legitimate, nondiscriminatory reason motivated the challenged decision. Id. The plaintiff may then rebut the defendant's case by showing that the proferred justification is a pretext. Id. In considering defendants' challenge to the district court's denial of the motions for directed verdict and for j.n.o.v., we examine the evidence and the district court's decision under the standard of review described earlier, noting that "[t]he plaintiff retains throughout the ultimate burden of proving that age was a determining factor in the challenged decision." Lucas v. Dover Corp., 857 F.2d at 1401.
16
Defendants argued at trial that Terex officials wanted Terex employees in the top financial positions at URI and that they originally planned to consolidate positions to eliminate the job of Controller. As described earlier, Mr. Whalen introduced evidence to challenge these claims of nondiscriminatory motivation. A witness for Mr. Whalen testified that Mr. Skaff requested employee lists in declining order of age at the time Mr. Skaff and Mr. Hill made employment decisions during the acquisition. The witness testified that he produced and delivered the lists to Mr. Skaff and Mr. Hill at this time. Undisputed evidence showed that a twenty-nine-year-old Terex employee was hired as Controller approximately two weeks after Mr. Whalen's discharge and the purported elimination of that job. Finally, a witness for Mr. Whalen testified to hearing Mr. Hill comment that he would hire a "young controller." All of this evidence is susceptible to the reasonable inference that Mr. Whalen's age was a determining factor in defendants' actions toward him and that defendants' proferred explanations were pretextual. The jury apparently made this inference, and we affirm the district court's decision to leave the verdict undisturbed.
17
Defendants argue that the district court erred by allowing into evidence the URE employee lists offered by Mr. Whalen. Defendants specifically claim that the lists were not relevant to issues at trial and that they caused prejudice to defendants and confused the jurors. We review the district court's decisions under Fed.R.Evid. 401 and 403 for abuse of discretion. United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988) (Fed.R.Evid. 401); Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir.1990) (Fed.R.Evid. 403).
18
Mr. Whalen presented testimony that the lists of employees in declining order of age were prepared at the request of Mr. Skaff for Mr. Hill, were delivered to both men, and could have been consulted in employment decisions regarding Mr. Whalen. This testimony laid an adequate foundation for the district court's determination that the lists were relevant to the issue of age discrimination. We affirm the district court's determination of relevance.
19
Defendants argued at trial that the lists were not used in making employment decisions and that jurors would be confused and defendants prejudiced by admission of the lists into evidence. Resolving the factual dispute over whether the lists were used for employment decisions would properly be a matter for the jury. We hold that the district court did not abuse its discretion in finding that the lists would neither confuse the jury nor unfairly prejudice defendants on this matter.
20
Defendants argue that the district court erred when it allowed Mr. Whalen to dismiss his claim that defendants' age discrimination was willful. The dismissal came after the case had been submitted to the jury and after the parties were advised that the jury could not agree as to willfulness.
21
The decision to dismiss a cause of action under Fed.R.Civ.P. 41 is left to the discretion of the trial court and can be reversed only upon abuse of that discretion. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976); Standard Indus., Inc. v. Mobil Oil Corp., 475 F.2d 220, 232 (10th Cir.), cert. denied, 414 U.S. 829, 94 S. Ct. 55, 56, 61, 38 L. Ed. 2d 63 (1973). When deciding whether to allow dismissal, the trial court should consider whether the non-moving party will suffer legal prejudice due to dismissal. LeCompte, 528 F.2d at 604.
22
In the case before us, the only prejudice defendants claim from the dismissal is loss of bargaining power with Mr. Whalen regarding other claims in the lawsuit. Even if Mr. Whalen did gain some tactical advantage from dismissing the claim late in the proceedings, the detriment arguably resulting for defendants would not have reached the level of legal prejudice that the district court is required to consider in granting the motion to dismiss a claim. LeCompte, 528 F.2d at 604 (gain in tactical advantage not a bar to dismissal) (citation omitted). We hold that allowing Mr. Whalen to dismiss his willfulness claim at this stage was not an abuse of the district court's discretion.
23
Defendants appeal from denial of their Motion for New Trial, claiming that the verdict was against the law and the weight of the evidence.7 We review the district court's decision for abuse of discretion. Richardson v. City of Albuquerque, 857 F.2d 727, 730 (10th Cir.1988). After thorough review of the record and for reasons cited earlier in this opinion, we conclude that the verdict was neither against the law nor against the weight of the evidence. Finding no abuse of discretion, we affirm the district court's denial of the motion.
24
Defendants contend that the district court erred in its award of attorney's fees, costs and expenses. This is a matter clearly within the district court's discretion. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 1941, 76 L. Ed. 2d 40 (1983); Spulak v. K Mart Corp., 894 F.2d 1150, 1159-60 (10th Cir.1990).
25
Defendants first object to Mr. Whalen's recovering attorney's fees incurred during the administrative process preceding litigation. When this court addressed a similar issue under Title VII, our analysis focused on whether the administrative process was a prerequisite to court action. Manders v. Oklahoma ex rel. Dept. of Mental Health, 875 F.2d 263, 266-67 (10th Cir.1989) (citing New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S. Ct. 2024, 64 L. Ed. 2d 723 (1980)). We now hold that because ADEA requires private plaintiffs to seek an administrative remedy prior to bringing suit, a fee award under ADEA may properly include fees for time spent on the administrative proceedings. See Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 282-83 (2d Cir.1987) (congressional intent supports fee award for administrative proceedings under ADEA). Thus we affirm the district court's award in this regard.
26
Defendants also challenge the award of attorney's fees for time spent pursuing actions against URE that settled out of court. The Supreme Court has instructed that a fee award should be determined by examining "the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley, 461 U.S. at 435, 103 S.Ct. at 1940; see also Ramos v. Lamm, 713 F.2d 546, 556 (10th Cir.1983). "Reasonably expended" hours would not include time spent on claims "unrelated" to those on which the plaintiff prevails. Hensley, 461 U.S. at 434-35, 103 S.Ct. at 1940; Ramos at 556. The Hensley court held that a plaintiff cannot receive fees for time spent on "distinctly different claims for relief that are based on different facts and legal theories" and on which the plaintiff does not succeed. Hensley at 434-35, 103 S. Ct. at 1940. In the current case, Mr. Whalen's claims against all original defendants involved the same facts and legal theories. Because of the corporate acquisition in progress when Mr. Whalen was discharged, his claim against URE was substantially interrelated with his successful claims against the other defendants. We find no abuse of discretion in the district court's award of attorney fees for time spent on claims against URE that were settled before trial.
27
Defendants raise a similar objection to the award of attorney's fees for time spent litigating the willfulness claim which was dismissed on Mr. Whalen's motion. This argument falls squarely within the Hensley rationale as described above. The willfullness claim was based on the same core of facts and legal theories as Mr. Whalen's other claims. This court has allowed a fully compensatory fee where claims for relief were based on a common core of facts and the plaintiff obtained excellent results even though the plaintiff did not prevail on every contention. Spulak, 894 F.2d at 1160 (citing Hensley, 461 U.S. at 435, 103 S.Ct. at 1940). In light of Hensley and Spulak, we find no abuse of discretion in the district court's award of attorney's fees for time spent pursuing the claim that discrimination was willful.
28
Defendants also challenge the award of attorney's fees for time spent working with a statistical expert who did not testify at trial. Under Hensley and Ramos, the question for the district court was whether such time was reasonably expended in pursuit of Mr. Whalen's case. We find no abuse of discretion in the district court's finding that time spent researching a statistical argument in the instant case was reasonable, and we affirm the award of attorney's fees in this regard.
29
Defendants object, finally, to an award covering expenses for photocopying and computer research, complaining that the expenses are not adequately identified. Defendants have not directly attacked the affidavits of Mr. Whalen's counsel certifying the reasonableness and necessity of the charges. Neither have defendants cited legal authority for requiring more specificity in identifying expenses. We find defendants' bald assertion that expenses were inadequately identified to be unpersuasive. See Shorter v. Valley Bank & Trust Co., 678 F. Supp. 714, 727 (N.D.Ill.1988) (court declined to require that photocopying invoices identify each document copied where all invoices were identified to lawsuit and total amount was not excessive). We hold that the district court did not abuse its discretion in awarding these expenses.
30
For the foregoing reasons, we AFFIRM the district court decisions.
ORDER ON PETITION FOR REHEARING
31
On Petition for Rehearing, Appellants properly point out that it in fact preserved the issue of the adequacy of plaintiffs' filing with the Oklahoma Human Rights Commission (OHRC). Thus, this Court erroneously refused to consider the issue.
32
The Court has reviewed this issue as briefed, together with the record and the trial court's order of April 17, 1990, denying defendants' Motion for Summary Judgment on that issue. We conclude that the trial court was correct in its analysis and conclusion contained in its Order on pages one through seven. We therefore conclude that our initial affirmance of the Judgment was correct. As herein modified, our opinion and order is affirmed on rehearing.
1
Honorable G. Thomas Eisele, Senior District Judge, United States District Court for the Eastern District of Arkansas, sitting by designation
2
The OHRC is authorized by the Equal Employment Opportunity Commission ("EEOC") to process charges of age discrimination in employment
3
URE was dismissed from the suit prior to trial by joint stipulation
4
We have found no case in which an appellate court overturned a jury verdict based on erroneous denial of summary judgment
5
This holding is consistent with the analysis of Grubb v. FDIC, 868 F.2d 1151 (10th Cir.1989), where the issue of standing was examined on appeal from a final judgment after a full trial even though the moving party had been denied summary judgment on the matter and had not raised it in later motions for JAMOL. A challenge to standing, which is a jurisdictional issue, may be raised at any time. See Allen v. Wright, 468 U.S. 737, 750-51, 104 S. Ct. 3315, 3324-25, 82 L. Ed. 2d 556 (1984); Fed.R.Civ.P. 12(h)(3)
6
Defendants' counsel explained to the district court in his oral Motion for Directed Verdict that "I'm not moving for a directed verdict on the grounds that his [OHRC] complaint is inadequate. I've already been through that field with you before on a motion for summary judgment." (Appellants' Appendix at 580.)
7
Defendants also reiterate their claim regarding admissibility of the employee lists. Having affirmed the district court's decision on this matter, we do not consider the claim in the Motion for New Trial | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5285519/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/07/2022 01:07 AM CST
- 355 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. MORTON
Cite as 310 Neb. 355
State of Nebraska, appellee, v.
Natavian Q. Morton, appellant.
___ N.W.2d ___
Filed November 12, 2021. No. S-19-1168.
1. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
2. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
3. Sentences: Appeal and Error. When sentences imposed within statu-
tory limits are alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering well-established factors and any applicable legal principles.
4. Sentences. The relevant factors for a sentencing judge to consider
when imposing a sentence are the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for
the offense, as well as (7) the nature of the offense and (8) the amount
of violence involved in the commission of the crime.
5. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
6. Sentences: Prosecuting Attorneys. So long as the facts provide a suf-
ficient basis to find all elements beyond a reasonable doubt for the
crimes the defendant is convicted of, whether an alternative crime fits
those facts best is a matter of prosecutorial discretion and not a reason
to question the trial court’s sentence on the crimes found to have been
committed.
- 356 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. MORTON
Cite as 310 Neb. 355
7. Constitutional Law: Prosecuting Attorneys: Probable Cause.
Prosecutorial discretion is an inherent executive power under which the
prosecutor has the discretion to choose to charge any crime that prob-
able cause will support or, if the prosecutor chooses, not to charge the
accused at all.
8. Criminal Law: Intent. A trier of fact may infer that the defendant
intended the natural and probable consequences of the defendant’s vol-
untary acts.
9. Homicide: Intent. An indiscriminate killer is just as culpable as one
who targets a specific person.
10. Sentences: Plea Bargains. In deciding the appropriate sentence, a
sentencing court can account for the fact that the defendant received a
substantial benefit from a plea bargain agreement.
11. Sentences: Statutes. There is nothing in the statutory scheme requiring
proportionality between the sentences imposed for the crimes of use or
possession and the sentences imposed for their predicate offenses.
12. Constitutional Law: Sentences: Appeal and Error. Comparative
analysis is not mandatory in a challenge under the Eighth Amendment
and is useful only to validate an initial judgment that a sentence is so
grossly disproportionate to a crime as to be excessive; review of an
excessive sentence claim under Neb. Rev. Stat. § 29-2308 (Reissue
2016) is not subject to a higher standard.
13. Sentences: Appeal and Error. Appellate courts are under no duty to
conduct a de novo review of the record to determine whether a sentence
is proportionate.
14. Constitutional Law: Sentences: Statutes: Appeal and Error. Once
it is determined that the sentence prescribed by statute is constitutional
and that the sentence imposed is within statutory limits, the issue in
reviewing a sentence is not whether someone else in a different case
received a lesser sentence, but whether the defendant in the subject case
received an appropriate one.
15. Sentences: Appeal and Error. The power to impose sentences is
entrusted to the sentencing court and not to an appellate court.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Reversed and remanded with direction.
Jonathan M. Braaten and Mona L. Burton, of Anderson,
Creager & Wittstruck, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
In the defendant’s appeal to the Nebraska Court of Appeals
from plea-based convictions of manslaughter and possession
of a firearm during the commission of a felony, the Court of
Appeals reduced the sentence imposed for the firearm convic-
tion as excessive. We granted the State’s petition for further
review assigning as error the Court of Appeals’ reduction of
the sentence.
BACKGROUND
Natavian Q. Morton was originally charged with second
degree murder, 1 a Class IB felony; two counts of use of a fire-
arm to commit a felony, 2 both Class IC felonies; and unlaw-
ful discharge of a firearm, 3 a Class ID felony. The charged
offenses were alleged to occur at a time when Morton was 16
years of age. Morton’s motion to transfer to juvenile court was
denied after a hearing in August 2018.
Pursuant to a plea agreement, Morton pled no contest to
manslaughter, 4 a Class IIA felony, and possession of a firearm
during the commission of a felony, a Class II felony. After a
colloquy between the court and Morton regarding the potential
penalties for the offenses and the rights he was waiving by
entering no contest pleas, the State provided a factual basis.
The State informed the trial court that on March 26, 2018,
a young man had been shot and killed. The dispute had origi-
nated earlier in the day at a high school in Lincoln, Nebraska,
where a fight had occurred which resulted in the suspen-
sion of several individuals, including Perrion Bluford and
1
Neb. Rev. Stat. § 28-304 (Reissue 2016).
2
Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016).
3
Neb. Rev. Stat. § 28-1212.02 (Reissue 2016).
4
Neb. Rev. Stat. § 28-305 (Reissue 2016).
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three residents of the house where the shooting occurred. The
Lincoln Police Department investigator in charge of investigat-
ing the shooting also learned that there had been electronic
communication between the two groups involved in the fight
regarding continuing the fight later on that same day.
Video surveillance from another Lincoln high school, which
Morton attended, showed Morton, wearing a black jacket, blue
jeans, and tan shoes, leaving the high school at approximately
1:06 p.m. with two other individuals and getting into one of
two vehicles that came to pick them up. One of the vehicles
belonged to Bluford.
The Lincoln Police Department was detailed to the area
of South 47th Street and Cooper Avenue at approximately
1:56 p.m. on a report of 15 people fighting outside a residence.
Dispatch further indicated that someone had been hit by a
vehicle and that shots had been fired. Upon arrival, officers
observed an injured person on the porch who had suffered a
gunshot wound. The victim, later identified as Edgar Union,
Jr., died at the scene.
An individual involved in the incident informed law enforce-
ment that Morton was one of approximately eight people who
went to the residence to fight the occupants. Upon arrival, a
verbal altercation ensued between the groups.
While this was occurring, a white sport utility vehicle (SUV)
driven by a woman arrived with several passengers who exited
the SUV and ran onto the porch. Later, the woman driving the
SUV made a comment about running people over, reentered the
SUV, drove in a circle, and struck an individual in the yard.
The witness then heard a gunshot, but did not know who
fired it, because he was trying to help the victim struck by the
SUV. Other witnesses corroborated much of the same infor-
mation, identified Morton as someone present at the scene of
the shooting, and stated that they saw an outline of a gun in
his jacket pocket. No witnesses stated they saw Morton fire
the gun.
An arrest warrant was issued for Morton on April 24,
2018, who was located and arrested in Mississippi. Police
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interviewed Morton, who waived his Miranda rights and told
officers that after he was picked up at the high school he
attended, he rode with Bluford to the scene of the shoot-
ing. Upon their arrival at the scene, Bluford handed him the
gun while they were still inside the vehicle and asked him
to hold it. He agreed and put the gun in his jacket pocket.
Morton admitted to firing the shot that killed the victim and
provided information consistent with that of other witnesses.
Specifically, Morton confirmed that there was a verbal alterca-
tion between his group and the occupants of the residence on
South 47th Street, including those who had arrived in a white
SUV with the victim as a passenger.
Morton told the officers that as the occupants of the SUV
walked toward the porch, he saw that one of them had a gun in
his hand. Further, Morton stated the woman driving the white
SUV threatened to hit people with her SUV and then, in fact,
did hit an individual with the SUV.
Morton stated that when the woman in the SUV was trying
to hit people, he was running back toward the vehicle he had
arrived in, but that the people in his group began yelling at
him to shoot. Morton described facing the house, but walking
backward toward the vehicle, when he pulled the gun out of his
pocket and fired one shot toward the house.
Morton stated he was not aiming at anyone in particular,
but was just pointing the gun in the direction of the house and
porch. Morton did not claim to be aiming at the SUV in self-
defense. There is no indication from the factual basis that the
former passenger of the SUV, whom Morton had observed with
a gun, had aimed it at Morton or anyone else in his group.
The district court accepted Morton’s pleas, found the factual
basis sufficient, and found Morton guilty. The court ordered a
presentence investigation be completed and continued that mat-
ter for sentencing.
Sentencing
Defense counsel noted at sentencing that Morton was
“extremely remorseful” for the poor decisions he made, which
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resulted in the “untimely death” of the victim, and that he
fully acknowledged the seriousness of the particular situation.
Defense counsel noted that these comments for sentencing
were not to undermine the seriousness of the situation but to
provide context and some mitigation for the court to consider
in hopefully imposing lenient sentences.
Defense counsel stated that a number of factors present in
this case warranted sentences of probation or a minimal period
of incarceration. He highlighted the fact that Morton had no
prior criminal record whatsoever and was only 16 years old at
the time of the incident and 17 years old at sentencing. Based
on Morton’s age, defense counsel highlighted U.S. Supreme
Court cases that discuss three primary factors that supported
his argument that children should be treated differently than an
adult, such as the following: Children lack maturity and have
an underdeveloped sense of responsibility, children are more
vulnerable to negative influences and outside pressure, and a
child’s character is not as well informed as an adult.
Further, defense counsel noted Morton’s traumatic past
experience in his life, in that Morton was 13 years old and
home at the time his father was murdered in the living room.
This traumatic situation and the lack of a constant, steady male
influence in his life during the very formative years of his life
rendered him incapable of properly responding to the violently
escalating situation during this incident.
Defense counsel further pointed out that it was Morton’s
assertion he was not the one who originally obtained the gun
used in this particular incident, that he did not have a reputa-
tion for carrying guns, that Morton was not involved in the
original circumstances that led to the altercation, and that
Morton believed he was responding to a perceived threat when
he fired the shot.
Defense counsel also asserted Morton did not have any
intent to kill the victim in this incident. Rather, the statements
provided by Morton suggested that he fired one shot from
across the street with a trajectory that was well over the heads
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of anyone standing in the yard, but that the victim “was in
an elevated position on the porch, and that’s where the bullet
ended up striking him.”
Counsel asked the court to consider that during the 511
days Morton was at the juvenile detention center, he received
66 credits toward his high school diploma, underwent ther-
apy and counseling, and received numerous positive reviews
from various teachers. Counsel submitted to the court that
Morton’s efforts during his time at the juvenile detention center
showed he is someone capable and willing for rehabilitation
and requested the court impose probation or a minimal period
of incarceration in order for Morton to have an opportunity for
a meaningful and productive life. Morton’s presentence inves-
tigation report (PSR) indicated he was at a medium-low risk
to reoffend.
When Morton was given the chance to make a statement,
he said, “I just want to take full responsibility for what I did.
To the family, because I know how it feels to grow up without
a father, I ask if they could forgive me for that, and yeah. So
that’s all I got to say.”
The State asked for sentences of incarceration, noting that
the social group conflict and handguns made it predictable that
someone was going to get hurt or killed. The State pointed out
that Morton pulled the trigger, that he took a life, and that there
are consequences for that behavior.
The district court stated it considered the PSR, as well as
a letter from defense counsel, the assessments, the private
investigator’s report, and character references from several
sources. The court noted specifically that it took into consid-
eration Morton’s young age, but also that someone lost his
life. The court observed that Morton had no criminal history.
The court acknowledged that no sentence handed down would
bring the victim back and that “[t]o say that this was a seri-
ous offense doesn’t do it justice . . . .” The court commented
on the extreme benefit Morton received as part of the plea
agreement.
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Ultimately, the court stated,
Having regard for the nature and circumstances of the
crime, the history, character, and condition of [Morton],
I do find that imprisonment of [Morton] is necessary for
the protection of the public because the risk is substantial,
that during any period of probation, [he] would engage in
additional criminal conduct, and because a lesser sentence
would depreciate the seriousness of [his] crime and pro-
mote disrespect for the law.
The district court sentenced Morton to 15 to 20 years’ impris-
onment on count I and 30 to 40 years’ imprisonment on count
II, to be served consecutively, as § 28-1205(3) requires, with
credit for 570 days served.
Morton appealed to the Court of Appeals, assigning that
there was insufficient evidence to establish he possessed a fire-
arm during the commission of a felony, that the district court
abused its discretion in not imposing probation, that the terms
of incarceration imposed by the district court were excessive,
and that his trial counsel was ineffective by not objecting to
the State’s factual basis concerning the predicate felony for
the possession of a firearm charge and by not having an expert
witness evaluate Morton as to his development and behavior.
Court of Appeals’ Decision
The Court of Appeals found no merit in Morton’s insuffi-
cient evidence and ineffective assistance of counsel claims and
affirmed the district court’s sentence of 15 to 20 years’ impris-
onment for Morton’s manslaughter conviction. 5 However, the
Court of Appeals found the district court abused its discretion
in imposing a sentence of 30 to 40 years’ imprisonment for
Morton’s possession of a firearm during the commission of a
felony conviction and accordingly reduced it.
In finding an abuse of discretion regarding Morton’s sen-
tence on count II, the Court of Appeals acknowledged the
5
State v. Morton, 29 Neb. App. 624, 957 N.W.2d 522 (2021).
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facts in the PSR that addressed the customarily considered
factors, but also compared the sentence imposed on Morton to
different Nebraska cases which it determined involved simi-
larly situated defendants convicted of like crimes. 6 The Court
of Appeals found instructive the cases of State v. Neuberger 7
(20 to 20 years’ imprisonment on manslaughter conviction
with consecutive 10 to 15 years’ imprisonment on firearm
conviction); State v. Iromuanya 8 (25 to 35 years’ imprisonment
on attempted second degree murder conviction, life to life
imprisonment on second degree murder conviction that was
reduced to 50 years’ to life imprisonment, and 10 to 20 years’
imprisonment on each of two weapon convictions, all to be
served consecutively); State v. Aragon 9 (concurrent terms of
14 to 20 years’ imprisonment on each of two robbery convic-
tions and concurrent sentence of 3 to 5 years’ imprisonment
on weapon conviction); and State v. Bradley 10 (number of seri-
ous sentences imposed across number of cases which included
convictions for terroristic threats, weapons charges, and other
charges). These cases involved convictions of possession of a
firearm during the commission of a felony or use of a weapon
to commit a felony and various underlying felonies committed
by defendants from 16 years of age to 23 years of age.
Comparing these cases to the current one, the Court of
Appeals determined that the district court did not abuse its
discretion in sentencing Morton to 15 to 20 years’ imprison-
ment for his manslaughter conviction, but found that the sen-
tence of 30 to 40 years’ imprisonment for the possession of
6
Id.
7
State v. Neuberger, No. A-13-411, 2014 WL 46420 (Neb. App. Jan. 7,
2014) (selected for posting to court website).
8
State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
9
State v. Aragon, No. A-17-450, 2018 WL 1597372 (Neb. App. Jan. 13,
2018) (selected for posting to court website).
10
State v. Bradley, No. A-17-644, 2018 WL 3868987 (Neb. App. Aug. 14,
2018) (selected for posting to court website).
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a firearm during the commission of a felony conviction was
an abuse of the district court’s discretion.
The Court of Appeals acknowledged that possession of a
firearm during the commission of a felony carries with it a
potential sentence of 1 to 50 years’ imprisonment 11 and that no
two criminal cases are alike, because unique factors may prove
determinative when a court considers a sentence. However,
the Court of Appeals, in comparing the facts and outcome of
Morton’s case to the other Nebraska cases discussed, found
Morton’s sentence to be an “extreme outlier.” 12 It also found it
“incongruous that the sentence for Morton’s weapons convic-
tion should be double that of his sentence for manslaughter”
and believed that the “disproportionate nature of the two sen-
tences” was “logically inconsistent” and that the disparity was
not explained by the district court on the record. 13
The Court of Appeals noted, further, that neither the factual
basis nor the PSR showed Morton intentionally shot the victim,
but, rather, that Morton’s actions took place amidst a “chaotic,
melee-like atmosphere” and that there was nothing to suggest
that Morton aimed his gun at the house with the intent to harm
any specific individual. 14 The Court of Appeals believed the
factual basis “best support[ed]” the conclusion that the predi-
cate felony for Morton’s weapon conviction was unlawful dis-
charge of a firearm, not manslaughter, for which Morton was
convicted, or even assault. 15 However, the Court of Appeals did
not reverse Morton’s conviction of manslaughter, which was
not challenged on direct appeal.
Especially considering Morton’s young age and background
and the fact that similarly situated defendants received sig-
nificantly lower sentences on similar charges, the Court of
11
Neb. Rev. Stat. § 28-105 (Reissue 2016).
12
State v. Morton, supra note 5, 29 Neb. App. at 642, 957 N.W.2d at 537.
13
Id.
14
Id. at 643, 957 N.W.2d at 537.
15
Id.
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Appeals believed that the district court’s reasons and rulings
were untenable and that Morton was denied a just result in sen-
tencing. 16 Accordingly, the Court of Appeals found Morton’s
sentence of 30 to 40 years’ imprisonment on count II to be
excessive and, through its statutory authority in Neb. Rev. Stat.
§ 29-2308(1) (Reissue 2016) that allows an appellate court
to reduce a sentence rendered by the district court, reduced
Morton’s sentence on count II to a sentence of 10 to 15 years’
imprisonment to run consecutively to the sentence imposed by
the district court for Morton’s manslaughter conviction. 17
We granted the State’s petition for further review.
ASSIGNMENT OF ERROR
The State assigns that the Court of Appeals erred in find-
ing that the district court abused its discretion in its sentence
imposed for count II, possession of a firearm in the commis-
sion of a felony.
STANDARD OF REVIEW
[1,2] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. 18 A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying a just result in matters submitted for disposition. 19
ANALYSIS
Under § 29-2308(1), the appellate court “may” reduce the
sentence rendered by the district court “when in its opinion
the sentence is excessive.” Where, as here, a sentence imposed
within the statutory limits is alleged on appeal to be exces-
sive, the appellate court must determine whether a sentencing
16
Id.
17
State v. Morton, supra note 5.
18
State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).
19
Id.
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court abused its discretion in considering and applying the
relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. 20
[3] It is well established that an appellate court will not
disturb sentences within the statutory limits unless the district
court abused its discretion in establishing the sentences. 21 When
sentences imposed within statutory limits are alleged on appeal
to be excessive, the appellate court must determine whether
the sentencing court abused its discretion in considering well-
established factors and any applicable legal principles. 22
[4,5] The relevant factors for a sentencing judge to consider
when imposing a sentence are the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the amount of violence involved
in the commission of the crime. 23 The sentencing court is not
limited to any mathematically applied set of factors, but the
appropriateness of the sentence is necessarily a subjective
judgment that includes the sentencing judge’s observations of
the defendant’s demeanor and attitude and all the facts and cir-
cumstances surrounding the defendant’s life. 24
[6,7] We find that it was inappropriate for the Court of
Appeals to second-guess the district court’s discretion in sen-
tencing Morton under the crime of possession with the predi-
cate offense of manslaughter, by opining the State’s factual
basis “best” supported a crime he was not convicted of, unlaw-
ful discharge of a firearm. 25 So long as the facts provide
a sufficient basis to find all elements beyond a reasonable
20
State v. Stabler, 305 Neb. 415, 940 N.W.2d 572 (2020).
21
State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
22
State v. Greer, supra note 18.
23
See id.
24
Id.
25
§ 28-1212.02.
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doubt for the crimes the defendant is convicted of, whether
an alternative crime fits those facts “best” is a matter of
prosecutorial discretion and not a reason to question the trial
court’s sentence on the crimes found to have been committed.
Prosecutorial discretion is an inherent executive power under
which the prosecutor has the discretion to choose to charge
any crime that probable cause will support or, if the prosecutor
chooses, not to charge the accused at all. 26
We also find the Court of Appeals’ reasoning that “[t]here
is no suggestion that Morton aimed his gun at the house with
the intent to harm any specific individual” to be misleading. 27
The intent to harm a specific individual is not dispositive of
the elements of manslaughter. Nor would it have been dis-
positive of second degree murder, which Morton was originally
charged with.
[8] To illustrate, second degree murder requires causing the
death of “a person” intentionally, but without premeditation. 28
In the context of a criminal statute, “intentionally” means will-
fully or purposely, and not accidentally or involuntarily. 29 But
it is a fundamental maxim of criminal law that a trier of fact
may infer that the defendant intended the natural and probable
consequences of the defendant’s voluntary acts. 30
Thus, in State v. Jones, 31 we affirmed the defendant’s con-
victions for first degree murder, use of a deadly weapon, and
possession of a deadly weapon by a prohibited person (and
his sentences of life imprisonment for murder plus 10 to 20
years’ imprisonment on each of the other two convictions),
when the victim was killed after an altercation turned physical,
the defendant shot several shots into the air and then toward
26
See Polikov v. Neth, 270 Neb. 29, 699 N.W.2d 802 (2005).
27
State v. Morton, supra note 5, 29 Neb. App. at 643, 957 N.W.2d at 537.
28
§ 28-304(1).
29
See, e.g., State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
30
See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(f) (3d ed. 2018).
31
State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (2016).
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the house, and where the victim, who was not part of the alter-
cation, had been standing on the porch. Similarly, in State v.
Moore, 32 we affirmed the defendant’s convictions for assault
in the first degree and use of a weapon to commit a felony
(and his sentence to two consecutive terms of 20 to 20 years’
imprisonment), when, without taking any real “‘aim,’” the
defendant fired one shot toward a house with little indication
anyone was home, the shot pierced the house, and it hit the
victim who was sitting inside, paralyzing her.
[9] Under the factual basis presented here, a trier of fact
could infer that Morton, intentionally firing a lethal weapon
toward the front of the house and porch where several people
were congregating, had intended to cause the death of “a per-
son.” While there was no evidence Morton intended to harm
any specific individual, an indiscriminate killer is just as
culpable as one who targets a specific person. 33 The Court of
Appeals, by concluding the facts better fit the crime of unlaw-
ful discharge of a firearm, failed to recognize that the facts
could support that level of culpability, and that they indisput-
ably supported manslaughter, and thus, it was not an abuse
of discretion for the court to impose a commensurate level
of punishment.
[10] And while we note that the sentencing range for unlaw-
ful discharge is greater than that of manslaughter, it appears
the Court of Appeals also used its reasoning as to what crime
it believed better fit the facts to minimize the substantial bene
fit Morton received from the plea bargain agreement. The
sentencing court took into account that but for his plea bar-
gain agreement, Morton would have been facing a charge of
second degree murder—in addition to unlawful discharge and
two charges of use of a firearm—instead of the manslaughter
and one count of possession of a firearm he was convicted
32
State v. Moore, 276 Neb. 1, 3, 751 N.W.2d 631, 633 (2008).
33
See People v. Perez, 50 Cal. 4th 222, 234 P.3d 557, 112 Cal. Rptr. 3d 310
(2010).
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of pursuant to the agreement. In deciding the appropriate
sentence, a sentencing court can account for the fact that
the defendant received a substantial benefit from a plea bar-
gain agreement. 34
Under the mandatory minimum of 20 years’ imprisonment
for second degree murder, the mandatory minimum of 3 years
for unlawful discharge, and the mandatory minimums of 5
years each for use of a firearm, running consecutively to the
underlying felonies, Morton would have faced a mandatory
minimum sentence of 33 years’ imprisonment but for the plea
bargain agreement. He would have been subject to a maximum
term of life imprisonment for the charge of second degree
murder alone and of 50 years’ imprisonment for each of the
other three charges. Under the amended complaint, in contrast,
Morton was subject to a combined minimum of only 1 year’s
imprisonment and a combined maximum of 70 years’ impris-
onment. The sentencing court did not abuse its discretion in
finding this significant.
[11] We find no support for the Court of Appeals’ reasoning
that it was “logically inconsistent” for Morton’s sentence on
the possession conviction to be “disproportionate[ly]” lengthy
in relation to his sentence on the predicate felony of man-
slaughter. While often the predicate crime is the more serious
crime, it is not necessarily so, and there is nothing in the statu-
tory scheme requiring proportionality between the sentences
imposed for the crimes of use or possession and the sen-
tences imposed for their predicate offenses. Similar arguments
have been rejected elsewhere. 35 We are unaware of any legal
inquiry pertinent to review of a defendant’s sentence, which
34
See State v. Elliott, 21 Neb. App. 962, 845 N.W.2d 612 (2014). See, also,
State v. Gibbs, 238 Neb. 268, 470 N.W.2d 558 (1991); State v. Leek, 192
Neb. 640, 223 N.W.2d 489 (1974); State v. Weidenfeller, 189 Neb. 505,
203 N.W.2d 784 (1973).
35
See State v. Roland, 162 So. 3d 558 (La. App. 2015) (life imprisonment
upon adjudication as third felony habitual offender not excessive, because
sentences for predicate offenses were very light).
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analyzes proportionality vis-a-vis different sentences for dif-
ferent crimes imposed for the same defendant and arising from
the same series of events.
Instead, for a defendant who has been sentenced consecu-
tively for two or more crimes, we generally consider the aggre-
gate sentence to determine if it is excessive. 36 The “dispropor-
tionate” nature of Morton’s sentence for possession was that
the maximum sentence imposed by the court for manslaughter
was the maximum allowable by law, and the court apparently
believed the aggregate seriousness of the crime required a
higher aggregate sentence than would be possible if the court
imposed a sentence for possession that was less than the sen-
tence for manslaughter. We find no abuse of discretion in so
utilizing the statutory sentencing ranges available to it.
The Court of Appeals deemed Morton’s sentence to be an
“extreme outlier” 37 compared to the sentences imposed in the
other cases that it found “instructive,” 38 but it did so by looking
only at the crime of possession. While not necessarily agreeing
with the conclusion reached by the Court of Appeals in doing
so, when looking at Morton’s sentence in the aggregate, it
clearly is not an “extreme outlier.”
In Iromuanya, for example, we said that the defendant’s
sentence to a maximum of life imprisonment for second degree
murder was not excessive, because the defendant “arrived at
the party carrying a loaded, concealed handgun and used it
without justification to extinguish a life” in a “senseless act of
violence.” 39 We found excessive only the minimum term of life
imprisonment, which left the defendant ineligible for parole,
because the defendant had no significant criminal record or
36
See, e.g., State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019); State v.
Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019); State v. Castaneda, 295
Neb. 547, 889 N.W.2d 87 (2017).
37
State v. Morton, supra note 5, 29 Neb. App. at 642, 957 N.W.2d at 537.
38
Id. at 640, 957 N.W.2d at 535.
39
State v. Iromuanya, supra note 8, 272 Neb. at 216, 719 N.W.2d at 295.
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history of violence and “[t]he court could not have imposed
a more severe minimum term for second degree murder on
a hardened criminal with a lengthy history of violent felony
convictions.” 40 Here, in contrast, Morton was sentenced to a
minimum of 15 years’ imprisonment for manslaughter and 30
years’ imprisonment for possession, for an aggregate minimum
term of 45 years’ imprisonment with parole eligibility in half
that time. 41 We also note our decisions in Jones 42 and Moore 43
set forth above.
In any event, we have explained that “[t]he problem” with
appellate courts conducting comparative analyses of appellants’
sentences with sentences of “‘similar’” cases “is the difficulty
of determining that they were similar.” 44 “Referring only to
the printed opinions found in our published reports, we are
not able to fully comprehend the facts and circumstances with
which the sentencing judge had to deal.” 45
[12-14] Proportionality review conducted under the Eighth
Amendment considers each sentence individually to determine
whether it was grossly disproportionate to the crime. 46 We
have held that a comparative analysis is not mandatory in a
challenge under the Eighth Amendment and is “useful only to
validate an initial judgment that a sentence is so grossly dis-
proportionate to a crime as to be excessive.” 47 Review of an
excessive sentence claim under § 29-2308 is not subject to a
higher standard. In the context of excessive sentence claims,
we sometimes “refer[] to sentences imposed in other cases
40
Id.
41
See Neb. Rev. Stat. § 83-1,110 (Reissue 2014).
42
State v. Jones, supra note 31.
43
State v. Moore, supra note 32.
44
State v. Riley, 242 Neb. 887, 893, 497 N.W.2d 23, 27 (1993). See, also,
State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).
45
State v. Riley, supra note 44, 242 Neb. at 893, 497 N.W.2d at 27.
46
See State v. Becker, supra note 36.
47
State v. Riley, supra note 44, 242 Neb. at 893, 497 N.W.2d at 27.
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as a means of illustrating an abuse of discretion,” 48 but we have
clearly held that appellate courts are under no duty to conduct a
de novo review of the record to determine whether a sentence
is proportionate. 49 To the contrary, once it is determined that
the sentence prescribed by statute is constitutional and that
the sentence imposed is within statutory limits, “the issue in
reviewing a sentence is not whether someone else in a different
case received a lesser sentence, but whether the defendant in
the subject case received an appropriate one.” 50
In sentencing Morton, the district court was under no obliga-
tion to conduct a comparative analysis of “similar” cases—an
inquiry that would be entirely impractical for trial courts to
undertake. Instead, the court properly considered the PSR and
accompanying letters, character references, and assessments.
It acknowledged Morton’s young age, but also focused on
the fact that someone lost his life from Morton’s actions. The
court further took into consideration the “extreme benefit” that
Morton received as part of the plea agreement in this case. The
court acknowledged that Morton did not have any criminal
history, but found that imprisonment of Morton was necessary
for the protection of the public, taking into account the nature
and circumstances of the crime and the history, character, and
condition of Morton. The court believed “a lesser sentence
would depreciate the seriousness of [Morton’s] crime and pro-
mote disrespect for the law.” There is no dispute that no part of
the district court’s sentence was outside of the relevant statu-
tory range.
[15] A judicial abuse of discretion exists only when the
reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
a just result in matters submitted for disposition. 51 Morton’s
48
State v. Philipps, 242 Neb. 894, 897, 496 N.W.2d 874, 877 (1993).
49
Id.
50
Id. See, also, State v. Sianouthai, 225 Neb. 62, 402 N.W.2d 316 (1987).
51
State v. Greer, supra note 18.
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s entence properly reflected the seriousness of the crime com-
mitted and was supported by competent evidence. The fact of
the matter is Morton traveled with several others to an adver-
sary’s dwelling in order to continue a fight that had started
earlier that day, took a gun to the scene or took possession
of the gun from someone else upon arrival, deliberately shot
toward the porch where several individuals were present, and
ultimately hit someone, taking that person’s life. The power to
impose sentences is entrusted to the sentencing court and not to
an appellate court, 52 and the sentencing court did not abuse its
discretion in the exercise of that power.
CONCLUSION
We reverse the judgment of the Court of Appeals and
remand the cause with direction to affirm the judgment of the
district court.
Reversed and remanded with direction.
52
See State v. Philipps, supra note 48.
Cassel, J., concurring.
Mark Twain is reputed to have said that history does not
repeat, but it often rhymes. In this court’s decision today, which
I join in full, one finds a familiar verse from an old theme.
It began with a trilogy of decisions by this court reversing
decisions of the Nebraska Court of Appeals reducing sen-
tences which had been imposed by trial courts. 1 In the first
one, this court recognized that “minimum sentencing limita-
tions are a matter for the Legislature, and a sentence imposed
within those limitations a matter left to the discretion of the
sentencing court.” 2 The second one discounted comparative
analysis of sentences except to “validate an initial judgment
that a sentence is so grossly disproportionate to a crime as to
1
See, State v. Philipps, 242 Neb. 894, 496 N.W.2d 874 (1993); State v.
Riley, 242 Neb. 887, 497 N.W.2d 23 (1993); State v. Reynolds, 242 Neb.
874, 496 N.W.2d 872 (1993).
2
Reynolds, supra note 1, 242 Neb. at 877, 496 N.W.2d at 874.
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be excessive.” 3 In the last decision, this court rejected the use
of Neb. Rev. Stat. § 29-2308 (Cum. Supp. 1992) to reduce
a sentence deemed excessive by the appellate court despite
its acknowledgment that the sentencing court had not abused
its discretion. 4 As pertinent to the situation here, the statute
remains unchanged. 5
A few years later, in reversing a Court of Appeals deci-
sion which had vacated probationary sentences and mandated
imprisonment, this court relied upon an earlier decision holding
that the same scope of review applies in the lenient sentence
context as applies in the excessive sentence context. 6 Thus, this
court determined, “regardless of whether an appellate court is
reviewing a sentence for its leniency or for its excessiveness,
a sentence imposed by a district court that is within the statu-
torily prescribed limits will not be disturbed on appeal unless
there appears an abuse of the trial court’s discretion.” 7
Only a short time after that, the Court of Appeals, with one
dissent, captured its view of this court’s then-recent precedent,
stating that “‘an appellate court . . . has an extremely limited
review of sentences, and sentences within statutory limits are
uniformly and routinely affirmed despite the appellate court’s
opinion of the sentence.’” 8 Thus, the majority said, “[s]o long
as a trial court’s sentence is within the statutorily prescribed
limits, is supported by competent evidence, and is not based
on irrelevant considerations, an appellate court cannot say that
the trial court has abused its discretion . . . .” 9 The dissenting
3
Riley, supra note 1, 242 Neb. at 893, 497 N.W.2d at 27.
4
See Philipps, supra note 1.
5
See § 29-2308(1) (Reissue 2016).
6
See State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999) (citing State
v. Jallen, 218 Neb. 882, 359 N.W.2d 816 (1984)).
7
Harrison, supra note 6, 255 Neb. at 1000, 588 N.W.2d at 562.
8
State v. Ruisi, 9 Neb. App. 435, 444, 616 N.W.2d 19, 27 (2000) (quoting
State v. Hopkins, 7 Neb. App. 895, 587 N.W.2d 408 (1998)).
9
Ruisi, supra note 8, 9 Neb. App. at 444, 616 N.W.2d at 26.
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judge viewed the majority’s language as having concluded that
“any sentence—without exception—that is within statutory
limits is not an abuse of discretion and thus not excessive.” 10
Further review was not sought in that appeal.
Nonetheless, this court soon disapproved the State v. Ruisi 11
majority opinion to the extent it suggested that a sentence
within statutory limits can never be the product of an abuse
of discretion. 12 In doing so, this court quoted the Ruisi dis-
sent’s observation that “‘[t]he Nebraska Supreme Court has
left the door ajar—however slightly. It has not foreclosed any
sentence within statutory limits from being excessive, but it
strongly [has] suggest[ed] it is a rare exception.’” 13 This court
also stated that the Ruisi dissent “sets forth an accurate char-
acterization of the law by which appellate courts must review
sentences claimed to be excessive.” 14
In the intervening years, instances of excessive or exces-
sively lenient sentences have indeed been rare. 15 On similarly
rare occasions, this court has on further review reversed an
intermediate appellate court’s conclusion that a sentencing
court abused its discretion. 16 This suggests to me that both sen-
tencing courts and intermediate appellate courts have largely
embraced their respective roles. Yet, recalling these jurispru-
dential developments seems worthwhile, because, in words
attributed to Winston Churchill, the farther backward you can
look, the farther forward you are likely to see.
10
Id. at 451, 616 N.W.2d at 31 (Buckley, District Judge, Retired, dissenting).
11
Ruisi, supra note 8.
12
State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
13
Id. at 398, 622 N.W.2d at 917 (quoting Ruisi, supra note 8 (Buckley,
District Judge, Retired, dissenting)).
14
Decker, supra note 12, 261 Neb. at 398, 622 N.W.2d at 917.
15
See, e.g., State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006); State
v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005).
16
See, e.g., State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019); State v.
Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284011/ | ORDER
PER CURIAM.
DJC/CMS Inc., d/b/a Suntrup Kia (Employer) appeals the decision of the Labor and Industrial Relations Commission of Missouri (Commission) awarding Eric Hartmann (Claimant) workers’ compensation benefits for injuries sustained when he slipped and fell on ice in Employer’s parking lot. Employer claims that the Commission erred in awarding benefits to Claimant because: (1) Claimant was not an employee at the time of his injury; and (2) Claimant’s injury was caused by a hazard or risk unrelated to his employment.
We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err. 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/5284013/ | Order
Per Curiam:
Darrell Diehl appeals the trial court’s division of the assets following the dissolution of his marriage to Joyce Rider-Diehl. Finding no error warranting reversal, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284015/ | ORDER
PER CURIAM: .
On the second day of a jury trial in the Circuit Court of Jackson County, Richard Davis entered pleas of guilty to forcible rape and forcible sodomy. He was sentenced to concurrent terms of ten years in prison for each count, to run concurrently with a previously imposed ' sentence. Davis filed a motion for post-conviction relief under Supreme Court Rule 24.035, claiming that his guilty pleas were involuntary. Davis claimed that his counsel was ineffective in the manner in which he cross-examined the victim during trial, and in failing to develop expert handwriting testimony to show that Davis’ purported signature on a Miranda waiver form was . forged. Because of counsel’s deficient performance, Davis contended that he was left with no realistic option but to plead guilty.
The circuit court denied Davis’ post-conviction relief motion following an evidentia-ry hearing. Davis appeals. We. affirm. Because a published opinion would have no precedential value, a 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/5284016/ | Order
Per Curiam
Sara Myers was convicted on two counts of delivery of a controlled substance and sentenced to consecutive fourteen-year prison terms. On appeal, Myers contends the trial court abused its discretion during the sentencing hearing by admitting a statement she made to investigators. After a thorough review of the briefs and the record, we find no error and affirm the judgment of conviction. A formal, published opinion would serve no jurisprudential purpose; however, a memorandum explaining the reasons for our decision has been provided.to the parties.
AFFIRMED. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284017/ | RAYMOND R. ABRAMSON, Judge | jOn May 22, 2014, the State of Arkansas filed a delinquency petition seeking to adjudicate B.J. a juvenile delinquent for committing the offense of rape, a Class Y felony, in violation of Arkansas Code Annotated section 5-14-103. In the petition, the State alleged that B.J. engaged in sexual intercourse or deviate sexual behavior with another person who was less than fourteen years old. After a bench trial on August 29, 2014, the Clark County Circuit Court adjudicated B.J. delinquent. He was sentenced to two years of supervised probation and ordered to complete a psy-chosexual assessment. He was also ordered to have no contact with the victim, to have no contact with children younger than him without adult supervision, and to attend school. The circuit court also indicated that, after a treatment-center assessment was performed, other supplemental orders might be entered. On appeal, B.J. raises two issues. First, he argues that the trial court erred in finding |2sufficient evidence of deviate sexual activity for the offense of rape. Second, he maintains that the trial court erred in admitting into evidence statements made by Marie James through the testimony of Jamie Kuykendall. We disagree, and accordingly, we affirm. On April 30, 2014, B.J., who was ten years old at the time, and his mother, Marie James, went next door to Jamie Kuykendall’s house. Jamie’s five-year-old son, D.K., was also at the house. Marie and Jamie watched TV in Jamie’s bedroom together until about 8:15 p.m. Both B.J. and D.K. were playing in the living room. Jamie testified that Marie went to look in on the boys, saw B.J.’s pants down, and yelled at him to pull them up. Jamie also testified that D.K. told her that he was “poked from behind.” The medical report from Arkansas Children’s Hospital that was completed after an examination of D.K. showed no physical signs of sexual abuse. Lieutenant Blake Zaffadil of the Caddo Valley Police Department testified that B.J. told him that D.K. had made up the game called humping, and that D.K. asked him to play it with him. Aaron Triplett, a forensic interviewer at Cooper Anthony Mercy Child Advocacy Center in Hot Springs, testified that he interviewed B.J. on May 6, 2014. The taped interview was admitted into evidence and played in court. The State then rested its case, and B.J.’s counsel moved for a directed verdict arguing that the prosecution had failed to establish a prima facie case of rape — spe-eifically that there had been insufficient evidence presented to the court with respect to penetration and that there was no evidence presented to establish that any act of sexual gratification had occurred. The court denied the motion. |sThe defense’s first and only witness was Marie James. Marie testified that while she and Jamie were watching CSI on television, she did not know how late it had gotten. When the show was almost over, she realized it was about 8:15 or 8:20 p.m. She knew the boys were playing in the other room, but they were quiet. She went to see where they were, and B.J. popped up from behind the couch and said he needed to go to the bathroom. Marie testified that B.J.’s pants were not pulled down, but they were unfastened and that D.K. had his shirt off, but his pants were pulled up and fastened. Marie testified that B.J. told her that D.K. made up a game called the hump game. The defense also introduced a report from the State Crime Lab that showed no semen or blood was found on D.K. At the conclusion of Marie’s testimony, the defense rested and closing arguments began. The defense did not renew its motion for a directed verdict. In his closing arguments, B.J.’s counsel made a dismissal argument on virtually all of the same points as he had in his original motion for a directed verdict. B.J.’s first argument on appeal is that the trial court erred in finding sufficient evidence of deviate sexual activity for the offense of rape. This argument is not preserved for this court’s review. While B.J.’s motion for a directed verdict was specific, he failed to renew it at the close of all the evidence, as required by Rule 33.1 of the Arkansas Rules of Criminal Procedure. Our appellate courts have held on numerous occasions that Rule 33.1 is to be strictly construed, See Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001); Hendrix v. State, 2014 Ark. App. 696, 450 S.W.3d 692. |4As Rule 33.1 states: (a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor. (b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence. (c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. Ark. R.Crim. P. 33.1. In the instant case, the appellant failed to renew the motion for a directed verdict at the close of all of the evidence. Therefore, this argument is waived for appellate review. The appellant gives no explanation or argument for this failure. We have recently held that a dismissal argument made in a closing argument does not preserve the issue of sufficiency, even in a bench trial. See Doty v. State, 2015 Ark. App. 193, 2015 WL 1299886. However, this is not a new concept; in 2003, our supreme court refused to consider the appellant’s closing argument as a dismissal motion in a bench trial when no motion for dismissal was made. See McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003). Here, at the conclusion of the evidence, B.J. failed to renew his motion; consequently, we cannot address his sufficiency-of-the-evidence challenge now. B.J.’s second argument on appeal is that the trial court erred in allowing the State to introduce a statement made by Marie James through the testimony of Jamie Kuykendall. B.J. argues that it was hearsay and that it should not have been admitted under the excited-! sufferance exception. Rulings on the admissibility of evidence are matters within the trial court’s wide discretion, and this court will not reverse such rulings absent an abuse of such discretion. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Nor will we reverse without a showing of prejudice. Eubanks v. State, 2009 Ark. 170, 303 S.W.3d 450. Hearsay is generally inadmissible under Arkansas Rule of Evidence 802. An exception to the hearsay rule is excited utterance, i.e., a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Ark. R. Evid. 803. Here, it is not clear that the trial court overruled the defense’s hearsay objection based on the excited-utterance exception. While the State responded to the objection with that specific exception, the trial court did not expressly rule that the statements qualified under it. However, even if the testimony was not proper under Arkansas Rule of Evidence 801(c) and did not qualify as a Rule 803 hearsay exception, we need not decide whether the statements were hearsay, as any error in its admission was harmless. The availability of a declai-ant for cross-examination renders harmless any error caused by the admission of hearsay. Martin v. State, 2013 Ark. App. 110, 426 S.W.3d 515. Here, Marie James testified on behalf of the defense, and she was cross-examined by the State regarding the very' statements she made to which Jamie Kuykendall testified. Accordingly, the decision of the trial court is affirmed. Affirmed. Gladwin, C.J., and Harrison, J., agree. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284018/ | OPINION
THOMPSON, JUDGE:
The matter is before us on remand from the Kentucky Supreme Court. Our Supreme Court vacated this Court’s opinion rendered on June 7, 2013, and directed that we consider the issue of qualified official immunity in light of its decisions in Marson v. Thomason, 438 S.W.3d 292 (Ky.2014). We have done so and conclude that qualified official immunity does not apply to the claims asserted against Marian Mucker, in her individual capacity as an employee of the Jefferson County Board of Education, and affirm an order of the Jefferson Circuit Court denying her motion for summary judgment.
As a plant operator at the Minors Lane Elementary School, Mucker was familiar with the plant operator’s manual. She testified that pursuant to the manual, a plant operator had a duty to keep the sidewalks clear of ice and snow. She further testified that she was to begin her work at 6:00 a.m. and had a duty to inspect and treat the sidewalks for ice and snow. If needed, she normally began treating the grounds for ice and snow in preparation for the arrival of children and parents at approximately 7:00 a.m. Mucker testified that she was aware that the gym door entrance was used to enter the school.
On February 1, 2010, Mucker arrived at the school. It had been below freezing the previous night and she observed ice on .the sidewalks outside the school. She first attended to other duties within the school before removing the ice and then began treating the sidewalks for ice in front of the building, an area away from the gym entrance.
Eulene Brown was an instructor at the school and a site director at the YMCA Child Enrichment Program operated on the school’s premises. The Program began at 7:00 a.m. On February 1, 2010, while entering the school, Brown slipped and fell on a walkway leading to the gym entrance that had not been cleared of ice.
*721In addition to Mucker’s deposition, Brown submitted the affidavit of Wanda Arnold, a Jefferson County Public School instructor and YMCA Child Enrichment Program employee, in opposition to Muck-er’s motion for summary judgment. She stated that when she arrived at the school at approximately 6:30 a.m., Mucker was present but the sidewalks had not been cleared of ice. She further stated that at approximately 7:00 a.m., a student had slipped and fallen on ice accumulated on the sidewalk by the gym door. When she went to advise Mucker that the sidewalks needed to be cleared, Mucker was in the teacher’s lounge. During the ten- to fifteen-minute delay it took Mucker to clear the sidewalks, Brown slipped and fell.
The sole issue presented is whether the circuit court properly denied Mucker’s assertion that she is entitled to qualified official immunity. Although generally an order denying a summary judgment is interlocutory and not appealable, an order denying a substantial claim of immunity is immediately appealable even in the absence of a final judgment. Breathitt County Board of Education v. Prater, 292 S.W.3d 883, 887 (Ky.2009).
School boards and their employees are considered agencies of the state and enjoy governmental immunity. James v. Wilson, 95 S.W.3d 875, 904 (Ky.App.2002). “The immunity that an agency enjoys is extended to the official acts of its officers and employees. However, when such officers or employees are sued for negligent acts in their individual capacities, they have qualified official immunity.” Autry v. Western Kentucky University, 219 S.W.3d 713, 717 (Ky.2007). Mucker was sued in her individual capacity.
The doctrine of qualified official immunity is one that has been repeatedly problematic for litigants and the judiciary. Yanero v. Davis, 65 S.W.3d 510 (Ky.2001), is often quoted when attempting to explain the scope of that immunity. In that case, it was written that public officers and employees are shielded from liability for the negligent performance of discretionary acts in good faith and within the scope of their authority. Negligently performing or negligently failing to perform ministerial duties is not shielded by the doctrine of qualified official immunity and a state employee may be sued in court. Id. at 522. While the rule appears straightforward, the distinction between a discretionary act and a ministerial act is often blurred. In Yanero, the Court purported to clarify the difference by defining the terms discretionary and ministerial.
A discretionary act involves the exercise of discretion and judgment or personal deliberation. Id. A ministerial act is one that is “absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Id. The Yanero Court elaborated: “An act is not necessarily ‘discretionary’ just because the officer performing it has some discretion with respect to the means or method to be employed.” Id. The Court emphasized “[tjhat a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature.” Id. (quoting Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky.1959)).
Since Yanero, the doctrine of qualified official immunity and its discretionary versus ministerial duties analysis continues to perplex even the most learned jurists. As noted in Haney v. Monsky, 311 S.W.3d 235, 240 (Ky.2010), the distinction between a discretionary act and ministerial act is one not easily made because “few acts are purely discretionary or purely ministerial [.] ” In Marson, the Court again attempted *722to explain the amorphous concept of qualified official immunity.
In Marson, the parents of child who was injured when he fell from bleachers in a school gym filed an action against two school principals and a teacher who was supervising the children that day. They alleged the bleachers were not fully extended, and that their legally blind son walked off the retracted portion of the bleachers.
The Court reaffirmed the principles espoused in Yanero, and noted that “át their core, discretionary acts are those involving quasi-judicial or policy-making decisions.” Marson, 438 S.W.3d at 297. The Court continued and attempted to simplify the distinction between discretionary acts and mandatory acts:
The distinction between discretionary acts and mandatory acts is essentially the difference between making higher-level decisions and giving orders to effectuate those decisions, and simply following orders. Or, as we have stated, “Promulgation of rules is a discretionary function; enforcement of those rules is a ministerial function.” Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145, 150 (Ky.2003).
Id.
The Court concluded that based on the evidence, “extending the bleachers was a routine duty, regularly performed by the custodian on duty, and is thus ministerial in nature to the person charged with that job.” Id. at 298. However, the named principals did not have the ministerial duty to actually extend the bleachers but only the general duty to provide a safe environment for the children’s safety and assign the task of extending the bleachers. As the Court stated:
There is a qualitative difference in actually extending the bleachers and assigning someone to fulfill that task. Actually extending the bleachers is a certain and required task for the custodians to whom the task is assigned, and is thus ministerial to them. It is not a task that is assigned to the principals, and is not a ministerial task as to them. Principals do have a duty to provide a safe school environment, but they are not insurers of children’s safety. They must only be reasonably diligent in this task. Because that task is so situation specific, and because it requires judgment rather than a fixed, routine performance, looking out for children’s safety is a discretionary function for a principal, exercised most often by establishing and implementing safety policies and procedures.
Id. at 299. Because their acts were discretionary in nature, the principals were entitled to qualified official immunity.
The teacher named in the complaint in his individual capacity had distinctively different duties. Although the unnamed custodian had the specific duty to extend the bleachers, the teacher also had specific duties performed on a routine basis when the children arrived at the school. Even though there was not a written procedure, “it was clear that there was a standard procedure[.]” Id. at 301. Applying the facts, the Court held the teacher “was given a specific task to do bus duty, which included looking out for safety issues and taking the routine steps that were the established practice for bus duty at that school. As such, his job required him to perform specific acts that were not discretionary in nature.” Id. The teacher was not entitled to qualified official immunity. Id.
As instructed by our Supreme Court and with its most recent guidance on the issue, we address whether Mucker is entitled to qualified official immunity. *723Mucker acknowledged her job duties required that she clear ice from the school’s sidewalks. She was aware that on the morning of February 1, 2010, ice had accumulated on the sidewalk outside the gym, and students, parents and school personnel would be using the gym entrance by 7:00 a.m. Like the unnamed custodian in Mar-son who had the specific duty to extend the bleachers, Mucker had the specific duty to clear the sidewalks prior to the arrival of students, parents, and school personnel.
Despite the ministerial nature of her duties, Mucker contends she had discretion to decide when and where to begin removing the ice and, therefore, is entitled to qualified official immunity. While Mucker may have had some discretion where to begin her duties, she nevertheless had. the ministerial duty to remove all ice and snow prior to the arrival of students, parents and school personnel. We find this case analogous to Faulkner v. Greenwald, 358 S.W.3d 1 (Ky.App.2011).
In Faulkner, this Court held that a school athletic director’s duty to safely maintain a concession stand was a ministerial duty. Although the athletic director may have possessed some discretion regarding the means and methods used, the task of safely maintaining the concession stand was ministerial in nature. Id. at 4.
Likewise, clearing the snow and ice was the act Mucker was required to perform and was ministerial. Whether she performed that act unreasonably is a question properly to be resolved by the jury. As our Supreme Court emphasized in Mar-son, the focus of the inquiry is on the act itself. “If we do not focus on the act, we risk limiting ministerial acts to almost nothing except those acts that are directly compelled by an order or rule.” Marson, 438 S.W.3d at 302. The rule that “an act can be ministerial even though it-has a component of discretion” would be undermined. Id.
Because we conclude that Mucker’s duties were ministerial in nature, we do not need to determine whether she acted in good faith. Bryant v. Pulaski County Detention Center, 330 S.W.3d 461, 466 (Ky.2011). Mucker is not entitled to qualified official immunity.
Finally, in response to Mucker’s public policy argument that the denial of qualified official immunity renders her absolutely and strictly liable, we stress that our holding is limited to affirming the trial court’s ruling that Mucker is not entitled to qualified official immunity and all defenses to claims against her remain. The elements of negligence must be proven and dismissal on other grounds, including the open and obvious doctrine, is not precluded.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284019/ | OPINION
MAZE, JUDGE:
Kentucky Spirit Health Plan, Inc., (hereinafter “Kentucky Spirit”) appeals from a decision of the Franklin Circuit Court granting summary judgment in favor of *726the numerous appellees in this case (collectively “the Commonwealth”). Specifically, Kentucky Spirit argues that the circuit court erroneously interpreted the terms of its Medicaid Managed Care Contract (hereinafter “the Contract”) with the Commonwealth, pursuant to which Kentucky Spirit provided various Medicaid-eligible services. The Commonwealth appeals the circuit court’s use of a non-deferential standard of review in addressing the decision of the Finance and Administration Cabinet’s (FAC) Secretary.
We conclude that the Contract required Kentucky Spirit to cover the contested services, though we do so for reasons other than those in the circuit court’s order. Hence, we affirm summary judgment for the Commonwealth. We further affirm the circuit court’s chosen standard of review.
Background
The underlying facts of this case are neither disputed nor complex. Beginning in November 2011, Kentucky Spirit, a Missouri-based corporation and Managed Care Organization (MCO), facilitated Kentucky’s Medicaid program pursuant to the Contract1 as well as various state and federal Medicaid statutes and regulations.2 One of the many services Kentucky Spirit was charged with providing was “preventative health services.” Prior to 2011, approved medical professionals in the 104 subject Kentucky counties performed these and other services and billed the Department of Medicaid Services (DMS) directly as part of a “fee-for-service” system. Under this system, DMS also reimbursed local health departments for eligible services performed by healthcare professionals employed with local health departments, including school-based clinics staffed by registered nurses.
Under the new “managed care” scheme adopted in 2011, Kentucky Spirit became one of three providers of Medicaid with which the Commonwealth contracted to provide services to eligible Kentuckians. For these services, and in the place of the past fee-for-service arrangement, the Commonwealth paid Kentucky Spirit a monthly fee based upon the number of enrolled members. In 2012, after reviewing claims it had received from the Commonwealth, Kentucky Spirit determined that claims for services performed by health department registered nurses and licensed practical -nurses at school clinics were “outside the scope of the Contract and therefore not eligible for payment....” Kentucky Spirit contended that the costs of these services were the responsibility of the Education Cabinet.
Pursuant to the Contract, Kentucky Spirit filed a reimbursement dispute with the Cabinet for Health and Family Services (CHFS) and later appealed to the FAC. The CHFS Secretary determined that the Contract required Kentucky Spirit to pay the disputed claims. However, she agreed with Kentucky Spirit that services provided by licensed practical nurses were not compensable under the Contract. The FAC Secretary affirmed CHFS’s decision.
*727On January 25, 2013, Kentucky Spirit filed suit in Franklin Circuit Court seeking declaratory and injunctive relief against the decision of the FAC Secretary pursuant to KRS3 45A.245. Kentucky Spirit sought and received expedited handling of its action. The circuit court held oral arguments on the merits of the case; and after both parties filed motions' for summary judgment and fully briefed the issue, the circuit court entered an Opinion and Order.
In its decision, the circuit court agreed with the Commonwealth that Kentucky Spirit was obligated under the Contract to provide the same level of coverage previously provided under the fee-for-service arrangement. The court further held that Kentucky Spirit could not disregard what the court deemed was a “longstanding interpretation of Medicaid eligibility” for school-based medical services performed by local public health departments. Employing the doctrines of contemporaneous construction and comity, as well as the legislative intent behind Kentucky’s Medicaid-related statutes, the circuit court granted the Commonwealth’s motion for summary judgment and denied Kentucky Spirit’s motion for the same. Kentucky Spirit now appeals from the circuit court’s decision; and the Commonwealth cross-appeals on the sole basis of the circuit court’s chosen standard of review.
Standard of Review
While it is rare for this Court to address and dispose of a. contested issue while merely stating the appropriate standard of review, the unique facts and arguments in this case prove it to be possible. On cross-appeal, the Commonwealth argues that the circuit court erred in failing to show appropriate deference to the FAC Secretary’s ruling. More specifically, it contends that the circuit court was required, but failed, to conduct judicial review of the decision of the FAC Secretary “under the auspices of KRS 13B.150 and the standards of common administrative law.” Furthermore, the Commonwealth urges that we must do the same. We have observed this argument, or some variation of it, in several recent cases involving the Commonwealth; and we once again disagree.
We decline to apply KRS 13B. Above all, we cite to the fact that the parties agreed in Section 40.9 of the Contact that disputes between them would be resolved pursuant to KRS 45A, not KRS 13B. The Commonwealth is bound by this provision and may not now choose another remedy.
In further support of a proposed deferential standard of review, the Commonwealth cites to KRS 45A.280, part of Kentucky’s Model Procurement Code, which states,
[t]he decision of any official, board, agent, or other person appointed by the Commonwealth concerning any controversy arising under, or in connection with, the solicitation or award of a contract, shall be entitled to a presumption of correctness and shall not be disturbed unless the decision was procured by fraud or the findings of fact by such official, board, agent or other person do not support the decision.
Kentucky Spirit’s action sought declaratory and injunctive relief concerning the terms of its contract with the Commonwealth. In effect, Kentucky Spirit sought enforcement of the Contract. Hence, we conclude that the more specific and more applicable provision of the Model Procurement Code is KRS 45A.245(1). It states, in pertinent part,
*728Any person, firm or corporation, having a lawfully authorized written contract with the Commonwealth at the time of or after June 21, 1974, may bring an action against the Commonwealth on the contract, including but not limited to actions either for breach of contracts or for enforcement of contracts or for both. Any such action shall be brought in the Franklin Circuit Court and shall be tried by the court sitting without a jury.
Applying the language of KRS 45A.245(1), Kentucky Spirit’s action in the circuit court was an original action concerning the interpretation and enforcement of the terms of a contract. Thus, the circuit court was correct to apply a de novo standard of review; and we shall do the same. See Hazard Coal Corp. v. Knight, 325 S.W.3d 290, 298 (Ky. 2010), quoting First Commonwealth Bank of Prestonburg v. West, 55 S.W.3d 829, 835 (Ky. App. 2000).
Analysis
The remaining issues in this case concern the interpretation of a contract. Thus, we must remember the well-established rule that, where a contract’s terms are plain, a court must assign them their ordinary meaning and enforce the contract as written. See Bryan v. Massey-Ferguson, Inc., 413 S.W.2d 891, 893 (Ky. 1966). If no ambiguity exists, a court may not resort to extrinsic or parol evidence concerning the parties’ intentions. Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 106 (Ky. 2003), citing Teague v. Reid, 340 S.W.2d 235 (Ky. 1960). We must first determine whether an ambiguity existed jn the Contract, as this will dictate the course of our analysis. In doing so, we ask whether the contract provisions in question were “susceptible to inconsistent interpretations.” Frear, 103 S.W.3d at 106 n. 12, citing Transport Ins. Co. v. Ford, 886 S.W.2d 901, 905 (Ky.App.1994). More specifically, we must determine if those provisions in the Contract concerning Kentucky Spirit’s alleged obligation to provide coverage for school-based health services performed by local health department registered nurses were subject to more than one reasonable interpretation. We answer that question in the negative.
In ruling for the Commonwealth, the circuit court never expressly held these provisions to be ambiguous; however, it employed several rules of contractual construction. Kentucky Spirit argues the circuit coui't was not permitted to do so because the terms of the Contract were unambiguous. Kentucky Spirit first points out that while the Contract required that it provide preventative health services “pursuant to 907 KAR[4] 1:360[,]” that regulation does not provide for ivhere these services are to be performed. We are not convinced the location of the services is relevant given other terms in the Contract and the controlling regulations; however, even following Kentucky Spirit’s guidance into other areas of Kentucky’s Medicaid-related regulations, its argument fails.
Kentucky Spirit cites 907 KAR 1:715 Section 1(30)5 as dictating where preventative health services can be performed. *729It contends that the regulation establishes that a school-based medical service is covered by Medicaid only if it is an “early and periodic screening, diagnosis, and treatment” provided under a student’s individualized education program. 907 KAR 11:034 Section 1(3). Kentucky Spirit’s reading is too restrictive.
We observe nothing in the regulations Kentucky Spirit cites, or in those to which the parties are bound under the Contract, that indicates the preventative health services in question were excluded from coverage. The Contract specifically and unambiguously states that Kentucky Spirit is required to provide services pursuant to 907 KAR 1:360, which specifically includes a “pediatric service” performed by the Department of Public Health among its “Covered Services.” 907 KAR 1:360 Section 3(6). The same regulation does not list the services in question in its “Services Limitations” provision. Furthermore, we see no inconsistency between the services to which 907 KAR 1:715 Section 1(30) and 907 KAR 11:034 refer and those at issue in this case.
Kentucky Spirit also cites to 907 KAR 17:020 Section 2(3)(e), which it quotes as saying “[a]n MCO shall not be responsible for the provision or costs of ... a school-based health service” except those early and periodic screening, diagnostic, and treatment sendees specified in a child’s individualized education program. As is often the case, the devil is in the ellipses.
Regulation 907 KAR 17:020 Section 2(3)(e) states, in its entirety, “An MCO shall not be responsible for the provision or costs of the following: ... (e) Except as established in Section 6 of this administration regulation, a school-based health service[.]” Section 6 of the same regulation states, in pertinent part, “(4) A school-based health service provided by a local health department shall be covered by an MCO.” Section 32.8 of the Contract itself, tracking very similar language to that of the regulations, states, “School-Based Services provided by public health departments are included in Contractor coverage.” This language is subject to only one reasonable interpretation.
The broader basis for the circuit court’s resort to various rules of contractual construction was that prior to 2011, local health departments performed, and were reimbursed under Medicaid for, the services Kentucky Spirit now contends it is not required to cover. This fact is important because the Contract expressly stated: “The Contractor shall cover all services for its Members at the appropriate level, in the appropriate setting and as necessary to meet Members’ needs to the extent services are currently provided.” At oral argument, Kentucky Spirit argued that the circuit court’s emphasis on what it called “prior practice” was misplaced. We disagree. The language above lies perfectly within the four corners of the Contract — Appendix I, to be exact. More importantly, this language is also subject to only one interpretation.
Based on the aforementioned provisions within the Contract, we agree with Kentucky Spirit that the document is unambiguous. The four corners of the Contract, in conjunction with l-elevant regulations, unambiguously required Kentucky Spirit to provide coverage for school-based services performed by local health departments. While our conclusion may indicate that the circuit court unnecessarily resorted to rules of contractual construction, this is of little consequence because the result is the same. “[I]t is well-settled that an appellate court may affirm a lower court for any reason supported by the record.” McCloud v. Commonwealth, 286 S.W.3d 780, 786 n. 19 (Ky. 2009), citing Kentucky Farm Bureau Mut. Ins. Co. v. Gray, 814 *730S.W.2d 928, 930 (Ky. App. 1991); see also Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky. 2009). We invoke this provision and affirm the circuit court’s order in its entirety.
Having held that the services at issue are Kentucky Spirit’s responsibility to cover, we must also resolve the question of who may perform those services. Kentucky Spirit contends that it was not obligated to cover services provided by unsupervised health department registered nurses. It cites a provision in the State Plan which states,
Nursing Services: Services must be medically necessary. The services may be provided in accordance with an Individualized Education Program or an Individual Family Service Plan. Nursing services must be those services that are in a -written plan of care based on a physician, physician assistant or nurse practitioner’s written order.
Based upon this, Kentucky Spirit argues the circuit court impermissibly expanded the scope of registered nurses’ practice under the Contract and Medicaid regulations. We disagree.
The provision in the State Plan to which Kentucky Spirit cites refers to nursing care for specialized services benefitting children with identifiable and serious health conditions. If Kentucky Spirit had quoted the full paragraph regarding “Nursing Services,” it would have continued as follows:
The plan of care must be developed by a licensed registered nurse. Services include but are not limited to: assessments including referrals based on results, bladder catheterizations, suctioning, medication administration and management including observation for adverse reactions, response or lack of response to medication, informing the student about their medications, oxygen administration via tracheostomy and ventilator care, enteral feedings, emergency interventions, individual health counseling and instructions, and other treatments ordered by the physician and outlined in the plan of care.
By contrast, this case concerns largely routine pediatric services provided by health department nurses, not the specialized services to which the above portion of the State Plan .clearly refers. Furthermore, nothing in this or any other regulation we observe states that licensed registered nurses cannot provide the services which are the subject of this case.
In sum, Kentucky Spirit reads the controlling regulations and documents in this case.as requiring a doctor’s order for every routine service provided within a school — be it an immunization or the dispensing of over-the-counter medicine. We do not read such an extreme limitation to apply to the services in question. Instead, we agree with the circuit court that Kentucky Spirit was responsible for the eligible services of local health department nurses performed in schools.
Finally, we address a more tangential argument of Kentucky Spirit’s. At oral argument and it its briefs, Kentucky Spirit voiced a concern regarding services being provided to children who are not Medicaid eligible. Kentucky Spirit seeks our reversal of the circuit court’s decision based on this concern; however, we do not agree that the Contract, or past practice, permits such violations of federal and state Medicaid guidelines.
As we have stated, the Contract expressly required services to be provided consistent with 907 KAR 1:360 Section 2(a), which expressly requires Departments of Public Health to “comply with the terms and conditions” of state and federal Medicaid statutes and regulations, including those regarding “nonduplication of payments.” 907 KAR 1:360 Section *7312(a), referencing 907 KAR 1:005. Regulation 907 KAR 11:034 Section 1(5), to which Kentucky Spirit so fervently directs us in support of its argument, defines “Recipient” as “a Medicaid eligible child....” These are but a few examples within both Kentucky’s Medicaid regulations and the Contract which act to alleviate, in this Court’s mind, any concern surrounding the “free service” issue Kentucky Spirit raises. Sufficient safeguards exist against any such violation of Medicaid guidelines. Furthermore, we strain to grasp how such a concern informs our decision on the services at issue in this case.
Conclusion
This case involves preventative health services provided to eligible children by health department medical professionals within schools. There is no basis in the Contract, State Plan, or relevant regulations for the coverage limitations, geographic or otherwise, that Kentucky Spirit has alleged in this ease. Therefore, the decision of the Franklin Circuit Court is affirmed.
ALL CONCUR.
. In 2013, Kentucky Spirit announced its intention to withdraw from its duties under the Contract. Litigation ensued, and in an unpublished opinion rendered on February 6, 2015, this Court affirmed the Franklin Circuit Court’s conclusion that this constituted breach of the Contract. See Kentucky Spirit Health Plan, Inc. v. Finance and Administration Cabinet, 2015 WL 510852 (Ky. App. 2015)(2013-CA-001050-MR and 2013-CA-001201-MR).
. One such authority is the “Kentucky State Plan Under Title XIX of the Social Security Act Medical Assistance Program” (hereinafter referred to as the “State Plan”).
. Kentucky Revised Statutes.
. Kentucky Administrative Regulations.
. This specific provision, defines a "School-based health services,” as referenced in the regulation, as
medically-necessary health services: (a) Provided for in 907 KAR 1:034 [since re-codified as 907 KAR 11:034]; and
(b) Specified in an individualized education program for a child determined to be eligible under the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. Chapter 33, and 707 KAR Chapter 1. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284020/ | Order
Per Curiam
John Gunn appeals from the judgment denying his Rule 29.15 motion, after he was convicted of second-degree burglary and first-degree robbery. Gunn contends the judge erred in not recusing himself from the post-conviction proceedings; the court erred in not disqualifying the public defender from representing him in the post-conviction proceedings; and the court, the prosecutor, and his post-conviction counsel denied him the ability to raise all of his pro se Rule 29.15 claims. For reasons explained in a Memorandum provided to the parties, we affirm the judgment denying post-conviction relief.
AFFIRMED. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284089/ | *278ORDER
PER CURIAM. .
Stephanie Brown (“Brown”) appeals from the judgment of the trial court dismissing her fourth amended petition and entering judgment oh the counterclaims of S.A. Group and U.S. Bank. Brown asserts nine points on appeal.
We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284022/ | ORDER
PER CURIAM:
Following a jury trial, Appellant Cher-valdric Williams was convicted in the Circuit Court of Platte County of one count of statutory rape in the second degree under § 566.034, RSMo, and one count of statutory sodomy in the second degree under § 566.064, RSMo. Williams was sentenced to four years in prison on each count, with the sentences ordered to run consecutive*776ly. Williams appeals. He argues that the trial court abused its discretion in excluding evidence of the victim’s sexual contact with her ex-boyfriend following her encounter with Williams. We affirm. Be-v cause 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/5284023/ | ORDER
PER CURIAM:
Robert Williams appeals from the Circuit Court of Platte County’s 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. No jurisprudential purpose would be served by a formal, published opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.
Judgment affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284024/ | Anthony Rex Gabbert, Judge
Dari and Deloris Ferguson appeal the circuit court’s judgment denying their petition for ejectment and granting fee simple title by adverse possession of 22 feet of land to Peggy Hoffman on her counterclaim for quiet title. In their sole point on appeal the Fergusons contend that the court erred in finding that Peggy Hoffman acquired the property through adverse possession because notice of the boundary dispute did not occur until 2012 with joint possession by the parties since 2007 and Peggy Hoffman failed to meet the burden of proof for hostile, actual, open and notorious and exclusive possession for the continuous relevant time period after notice of the boundary dispute. We affirm.
Factual and Procedural Background
Viewed in the light most favorable to the circuit court’s judgment, the evidence adduced at trial showed that the Fergusons own real property directly adjacent to real property owned by Peggy Hoffman. Peggy purchased her property in 1991 and resided there until 2005. Though Peggy remains the record owner of the property, Peggy’s daughter, Penny Hoffman, currently occupies the property. At dispute is a 22 foot strip of land located on the west edge of the Hoffman property and adjacent to the east edge of the Ferguson property.
From 1991 until 2005, only Peggy maintained the 22 foot strip of land at issue and she maintained it as her own. She testified that her intent in maintaining the property was to exclude others from using the property. Peggy’s activity on the land was clearly visible. She mowed the lawn or arranged for it to be mowed and maintained a garden and peony bushes on the disputed strip of property. She allowed *779her grandchildren to play on a tree swing and trampoline located on the strip. After she moved from the property, her daughter continued to maintain the disputed tract.
Kent Donelson testified at the hearing. Donelson’s father owned the Ferguson’s lot from 1963 until 1978 and continues to own a lot adjacent to the Fergusons. Do-nelson testified that when his father owned the Ferguson lot, Donelson mowed the lot for him. He testified that he never mowed the 22 foot strip of property in dispute and it was always maintained by the property owners who owned what is now the Hoffman property. He testified that since Peggy Hoffman has lived at the property she has always maintained the 22 foot strip. Donelson testified that in the 1960’s there was a fence located on the line dividing the properties, and after the fence was removed there was a stake, or a steel rod, marking that boundary from 1963 until it disappeared approximately a year prior to the hearing. He testified that the rod was approximately an inch and a half thick and stood up from the ground approximately one foot. He testified that Peggy Hoffman always maintained the property consistent with the location of that stake.
Dick Hoover also testified at the hearing. Hoover resides on property that his parents purchased in 1967 and that is located directly north of the Ferguson property. Hoover testified that he grew up on the property. When asked if he recalled a steel rod located on the southwest corner of the Hoffman lot, Hoover testified that he believed there was once a fence post there. Hoover identified a photograph that his mother took in the 1970’s that showed a fence located between what is now the Hoffman property and the Ferguson property with the disputed property being on the Hoffman side of the fence. Hoover testified that the Hoffmans and the previous owners of the Hoffman property always maintained the 22 foot disputed strip of property.
The Fergusons purchased their property in 2007. Dari Ferguson testified that he had no knowledge of how the land was used prior to 2007. He testified that prior to purchasing the property he visited the property and viewed it. When asked if he inquired of the previous owners where the property boundaries were, he testified that the previous owner “was unable to show me where the boundaries were.” After he purchased the property in 2007 and until 2012, Ferguson testified that there was no dispute concerning the property and that he maintained what he believed to be his side of the property and the Hoffmans maintained their side of the property, including the 22 foot strip. He testified that Peggy and Penny Hoffman are very protective of their property.
In 2012, the Fergusons had their property surveyed and found that their deed included the disputed strip of land. On January 8, 2013, the Fergusons filed a Petition for Ejectment and Trespass asking the court to eject the Hoffmans from the property and award the Fergusons damages. On February 7, 2013, the Hoff-mans filed an answer to the petition alleging as an affirmative defense that, pursuant to Section 516.010, RSMo 2000, Peggy Hoffman was the rightful owner of the property by way of adverse possession. Peggy Hoffman filed a Counterpetition for Quiet Title requesting, among other things, that the court enter a judgment granting her record title to the disputed tract.
A bench trial was held on March 25, 2014. On June 2, 2014, the court entered its Judgment and Order. The court found against the Fergusons on all claims and found that “Peggy Hoffman has established ownership by adverse possession of *780the disputed property. Her possession has been hostile, actual} open and notorious, exclusive and continuous for a period of time in excess of ten (10) years, since on or about April 30, 1991.” On Peggy Hoffman’s counterclaim for quiet title, the court granted her fee simple title through adverse possession of the disputed strip of property. The Fergusons appeal.
Standard of Review
Our standard of review is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Schollmeyer v. Schollmeyer, 393 S.W.3d 120, 122 (Mo.App.2013). We will affirm the circuit court’s judgment unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 122-123. We view the evidence and all reasonable inferences in the light most favorable to the court’s judgment. Id. “Adverse possession presents mixed questions of law and facts, and the principles or elements to prove such a case are viewed with the view that every property is unique.” Kitterman v. Simrall, 924 S.W.2d 872, 876 (Mo.App.1996). “Each case must be decided in light of its own unique circumstances.” Id. “We start with the presumption that the court’s judgment is correct and appellant has the burden to show otherwise.” Pike v. Williamson, 403 S.W.3d 608, 612 (Mo.App.2011) (internal citations and quotation marks omitted). We defer to the trial court’s credibility determinations, recognizing that the court is free to accept or reject all, part, or none- of the testimony presented. Watson v. Mense, 298 S.W.3d 521, 525 (Mo. banc 2009). We review questions of law de novo. March v. Midwest St. Louis, L.L.C., 417 S.W.3d 248, 256 (Mo. banc 2014).
Point on Appeal: Adverse Possession
In the Fergusons’ sole point on appeal, they contend that the court erred in finding that Peggy Hoffman acquired the 22 foot disputed strip of land through adverse possession because notice of the boundary dispute did not occur until 2012 with joint possession by the parties since 2007 and Peggy Hoffman failed to meet the burden of proof for hostile claim, actual, open and notorious, and exclusive possession for the continuous relevant time period after notice of the boundary dispute. The Fergusons argue that notice of the boundary dispute is required before the clock begins to run to establish adverse possession and that, since they received no notice until 2012 when the survey was conducted, the ten year continuous period to establish adverse pos- ' session was not met. The Fergusons further contend the parties maintained joint possession of the disputed strip after the Fergusons acquired their property in 2007 and the joint possession supports their claim that Peggy Hoffman failed to prove adverse possession. We find no error.
Adverse possession occurs when a border, even though erroneous, is observed by all parties as the boundary for the statutory period, and it becomes the true boundary. For title to be acquired by adverse possession, possession must be: (1) hostile, meaning under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the necessary period of years prior to the' commencement of action. The party claiming ownership by adverse possession has the burden of proving his claim by a preponderance of the evidence. A claimant may tack his period of adverse possession on to that of his predecessors to meet the ten-year requirement. Furthermore, the ten-year statutory period to confer -title by adverse possession need not occur immediately prior to the *781suit. The adverse possessor is vested with title and the record owner is divested once the ten-year period has run.
Nutting v. Reis, 326 S.W.3d 127, 129-30 (Mo.App.2010) (internal citations and quotation marks omitted).
The Fergusons do not contest the findings of the court with regard to its conclusion that Peggy Hoffman met the elements for establishing ownership by adverse possession of the disputed property for ten consecutive years after April 30, 1991. Instead, the Fergusons argue, in essence, that a person who has acquired title by adverse possession can be divested of that title if an owner subsequent to the individual who lost title can defeat any of the elements of adverse possession by his or her own actions. This is not the law and the Fergusons cite no law to support this proposition. The law is well settled that the record owners become divested of their property and adverse possessors become vested once all of the elements of adverse possession ai’e met for ten years. Kittemian, 924 S.W.2d at 876. After title is vested, subsequent actions by subsequent owners are irrelevant to the trial court’s analysis of whether adverse possession was previously established. Humphreys v. Wooldridge, 408 S.W.3d 261, 269-70 (Mo.App.2013).
Here, the court found that Peggy Hoffman established ownership of the disputed strip of land by adverse possession through maintaining hostile, actual, open and notorious, exclusive, and continuous possession for a period of ten years starting on April 30, 1991. We find the court’s judgment to be supported by substantial evidence.
The record reflects that Peggy Hoffman mowed the grass on the disputed tract of land from 1991 to well beyond 2001 and maintained a garden on that tract as well. There need not be a dispute between the two parties in order for the hostile element of adverse possession to be satisfied. Watson, 298 S.W.3d at 526. This element may even be met where there is a mistaken belief of ownership. Id.
“Maintenance of a disputed strip as a yard, including mowing the grass, planting trees and shrubbery, and occasionally using the area for recreational activities has been held to satisfy the requirement of actual possession.” Davis Estates, L.L.C. v. Junge, 394 S.W.3d 436, 442 (Mo.App.2013). “[I]t is not necessary that the adverse possessor enclose the disputed area in order to actually possess it, provided that he cultivates the entire tract.” Sommerlath v. Voss, 449 S.W.3d 390, 395 (Mo.App.2014).
The open and notorious element of adverse possession can be demonstrated by “proof that the claimant’s occupancy was conspicuous, widely recognized and commonly known.” Williams v. Frymire, 186 S.W.3d 912, 920 (Mo.App.2006) (internal citations and quotation marks omitted). The open and notorious element of adverse possession “is satisfied by visible acts of ownership exercised over the premises, such as maintaining and improving the property.” Id. Testimony of Peggy Hoffman’s neighbors supported a conclusion that Peggy Hoffman’s actions were open and notorious from 1991 to well beyond 2001.
In Soderholm v. Nauman we stated that, in the context of adverse possession, exclusivity means “that the claimant holds the land for himself and not for another.” 409 S.W.3d 382, 388 (Mo.App.2013) (internal citations and quotation marks omitted). “Maintenance of a residential yard such that it appears to be part of the property on which the residence is situated is evidence from which a trier of fact can infer *782that the possession of the property was exclusive.” Junge, 394 S.W.3d at 443. Here, the evidence reflects that Peggy Hoffman maintained and utilized the disputed tract of land for herself and her family. She never maintained the property for her neighbors and exclusively used and maintained the disputed strip from 1991 to well beyond 2001.
Thus, the record reflects that on or shortly after April 30, 2001, Peggy Hoffman acquired title to the disputed strip of property. After title to the property vest-, ed in Peggy Hoffman, the subsequent conduct by the Fergusons more than ten years later was irrelevant to the court’s adverse possession inquiry. Humphreys, 408 S.W.3d at 269-70.
Nevertheless, the Fergusons argue that the “relevant time period” for assessing their adverse possession claim began in 2012 after the survey was conducted and they received notice of the boundary dispute. The Fergusons cite no case law to support this position. At the time the Fergusons had their survey conducted Peggy' Hoffman had already owned the disputed 22 feet of property for approximately ten years. Thus, the 2012 survey did not serve as notice from Peggy Hoffman to the Fergusons of a boundary dispute, but notice to Peggy Hoffman from the Fergusons that they were asserting a claim to her property.
Further, while the Fergusons argue that Peggy Hoffman “did not meet the burden of proof for adverse possession because notice of the boundary line dispute was not known until 2012,” the Fergusons presented no evidence at trial to refute the Hoff-mans’ claim that the Fergusons’ predecessors in interest “recognized the crest of the hill as the property boundary.” The Fergusons argued at trial, and argue on appeal, that all evidence at trial that involved events prior to 2005 was irrelevant. They argue that Kent Donelson’s historical account of the property was irrelevant and “is only about possible mistakes in history,” because the true boundary line was not discovered until 2012. The Fergusons are mistaken. Such history was relevant for the court’s determination as to when Peggy Hoffman’s adverse possession of the property commenced.
“[A] boundary by acquiescence exists if there is an uncertain boundary and the landowners fix the boundary by an agreement that is presumed as a result of long acquiescence.” Fischer v. First American Title, 388 S.W.3d 181, 189 (Mo.App.2012) (internal citation and quotation marks omitted). “An agreement as to a boundary line may be proved by an express agreement or by acquiescence in a fence as a boundary for a period of time sufficient to evidence a mutual acceptance of the dividing line as the common boundary by the adjoining owners.” Id. The acquiescence itself does not give title but does set a boundary. Id. Once this boundary is set then adverse possession may begin to run. Id.
Kent Donelson testified that onward from 1963 when his father first acquired the Ferguson land, the recognized and accepted boundary between the Ferguson and Hoffman property was such that the 22 foot strip of disputed property was on the Hoffmans’ and the Hoffmans’ predecessors’ side of the boundary. While this extended history was not necessarily vital to the court’s ultimate conclusion regarding the adverse possession issue, this evidence was relevant at trial to establish acquiescence to a boundary line long before Peggy Hoffman purchased the property. It is relevant to our consideration of the Fergusons’ claim on appeal because it shows that the court justifiably concluded that Peggy Hoffman’s adverse possession began to run immediately when she acquired the property in 1991.
*783The Fergusons also contend that they believed that they were purchasing all of the land included in the deed description of their property when they purchased their property. This, they assert, supports that Peggy Hoffman could not have acquired adverse possession of the 22 feet of land because that 22 feet was identified in their deed when they purchased the property. While this is irrelevant because their purchase occurred after title vested with Peggy Hoffman,1 the record does not substantiate their suggestion that they believed they were purchasing the 22 foot strip of land. While the deed may have included the 22 foot disputed tract, Dari Ferguson testified that he did not know where the actual property line was when he purchased the property. He testified that the previous owner was unable to show him the property line. When asked who he thought owned the peony bushes located on the 22 foot strip of land when he purchased the property he testified, “It was unknown.” He further testified that, from the time he purchased the property in 2007 until the survey was conducted in 2012, Peggy Hoffman continued to maintain the disputed 22 foot tract of land and utilize it as she always had. There is no suggestion that Peggy Hoffman attempted to hide her use of that strip of land at the time the Fergusons purchased the adjoining property. In this case, a survey conducted prior to the purchase of the property would have put the Fergusons on notice that the deed to the property they intended to purchase was inaccurate.
Conclusion
We conclude, therefore, that the circuit court did not err in finding that Peggy Hoffman acquired the disputed 22 foot tract of land through adverse possession. We affirm the circuit court’s judgment.
. “In an adverse possession lawsuit, once adverse possession is established, the record owner — whose ownership would be shown in the public record- — is divested of ownership, and the adverse possessor — whose ownership would not be shown in the public record — is vested with ‘title’ to the land.” Fischer, 388 S.W.3d at 189. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284025/ | ORDER
PER CURIAM.
Appellant Corey Buckley (“Buckley”) appeals from the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief without an evidentia-ry hearing. On appeal, Buckley claims the motion court clearly erred in denying his motion for post-conviction relief because he was denied constitutionally effective assistance of counsel. Specifically, Buckley claims that plea counsel affirmatively misrepresented that Buckley would be eligible for parole after serving 25% of his eighteen year sentence when an actual estimate of his parole eligibility is at 35-40% of his sentence. Buckley asserts that he relied on this misinformation in entering his guilty plea, rendering his plea involuntary and unknowing.
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 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125598/ | Judgment affirmed. Opinion by
Talcott, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125599/ | Order affirmed. Opinion by
Talcott, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2434569/ | 970 N.E.2d 626 (2009)
386 Ill. App. 3d 1124
PEOPLE
v.
LaROCHE.
Nos. 2-07-0956, 2-07-0957.
Appellate Court of Illinois, Second District.
February 6, 2009.
Affirmed. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284027/ | ORDER
PER CURIAM
The petitioner, Robert Lynch, appeals the judgment of the Circuit Court of Jefferson County sustaining the administrative revocation of his driver’s license by the Director of Revenue following Lynch’s refusal to take a chemical test. Finding no error, we affirm.
*825An opinion would have no precedential value. We have provided the parties with a memorandum, for their information only, setting forth the reasons for this decision. We affirm the trial court’s judgment. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284029/ | ORDER
Per Curiam:
Mr. Gilbert E. Millette appeals the denial of his Rule 24.035 post-conviction relief motion. He claims that plea counsel was ineffective during the sentencing hearing.
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/5286392/ | OPINION
Yeary, J.,
delivered the opinion of the Court
in which Keller, P.J., and Keasler, Hervey, Richardson, Newell, Keel, and Walker, JJ. joined.
After being released from the penitentiary earlier than permitted by the statutory minimum sentence for his crime, Appellant was convicted of another crime, and his sentence was enhanced by his prior conviction. He argued on appeal that his pi’ior judgment of conviction was void because it imposed confinement for less time than the statutory minimum and that, because it was void, it should not have been used to enhance his sentence for a subsequent offense. We hold that an appellant may not reap the benefit of an illegally lenient sentence and then, once he has discharged that sentence, invoke the illegal lenity in an attempt to prohibit the use of that conviction to enhance the sentence for a subsequent offense.
*347BACKGROUND
After violating the conditions of his deferred adjudication, Appellant was adjudicated guilty of aggravated robbery, a first degree felony, Tex. Penal ■ Code § 29.03, and possession of cocaine, a third degree felony.1 Tex. Health & Safety Code § 481.115(c). Although a first degree felony carries a minimum sentence of five years,2 the adjudicating court sentenced Appellant to only four years in the penitentiary for the aggravated robbery, to be served concurrently with a four-year sentence for the cocaine possession. He was released from prison approximately nine months before the minimum sentence authorized by statute would have expired.3
Thirty days after he got out of the penitentiary for the aggravated robbery and cocaine possession offenses, Appellant was caught with cocaine again. This time, he possessed less than one gram, making the offense a mere state jail felony. Tex. Health & Safety Code § 481.115(b). However, the State pled Appellant’s prior aggravated robbery conviction in the indictment in order to enhance the punishment range to that of a third degree felony. Tex, Penal Code § 12.35(c)(2)(A); Tex. Code Crim. Proc. art. 42.12 § 3g(a)(l)(F). The jury found Appellant guilty, and he elected to have the trial court assess punishment. At sentencing, Appellant pled “true” to the enhancement alleging the prior aggravated robbery conviction, and he admitted to the aggravated robbery conviction on cross examination.4 The State introduced Appellant’s pen packet, which included the judgments from his prior aggravated-robbery and possession-of-cocaine convictions. The trial court found the aggravated robbery allegation to be true and assessed punishment at four years’ confinement in the penitentiary, which was within the two-to-ten-year range for third degree felonies. Tex. Penal Code § 12.34(a). Had the offense been punished as a state jail felony, the maximum term of confinement would have been two years. Tex, Penal Code § 12.35(a). .
On appeal, Appellant contended that because his aggravated robbery sentence was shorter than the statutory minimum, the judgment imposing it was void, and his prior conviction was therefore unavailable to enhance his sentence in this case. On this basis, the Eleventh Court of Appeals reversed the trial court’s judgment with respect to Appellant’s punishment and remanded the cause for a new punishment hearing. Deen v. State, No. 11-13-00271-*348CR, 2015 WL 6123728, at *7 (Tex. App.— Eastland Oct. 15, 2015) (mem. op., not designated for publication).
This Court granted the State’s petition for discretionary review. The State argues, as it did before the court of appeals, that Appellant should be estopped from disputing the validity of his aggravated robbery conviction. The State posits two theories of estoppel. First, the State contends that, because Appellant has already “accepted the benefit” of an illegally lenient sentence, he should not be heard to complain of its illegality now. Second, the State argues that, by pleading “true” to the enhancement paragraph, Appellant caused the State to forgo the opportunity to introduce evidence at the punishment phase to show that the illegally lenient sentence was the product of a negotiated guilty plea. If the illegally lenient sentence was in fact the product of a plea bargain, the State maintains, then Appellant should be estopped from challenging it for that reason as well.5
Appellant accepted the benefit of his illegally lenient sentence, and we hold that he is therefore estopped by the prior judgment from collaterally attacking the validity of the conviction it imposed. Because Appellant is estopped under this estoppel-by-judgment principle, we need not reach the question of whether he should also be estopped by his plea of “true” to the enhancement (or by any plea bargain for the illegally lenient sentence that the State may have been able to prove absent the Appellant’s plea of “true”—a kind of estop-pel-by-contract principle). Nor need we decide whether his prior conviction is void.
ANALYSIS
The Opinion Below
The court of appeals analogized this case to Wilson v. State, 677 S.W.2d 518 (Tex. Crim. App. 1984). Deen, 2015 WL 6123728, at *7. Like Appellant, Wilson was sentenced to four years’ incarceration for a first degree felony, which has a statutory minimum sentence of five years. 677 5.W.2d at 521. The State then used that felony conviction to enhance his punishment for a subsequent attempted burglary to life imprisonment. Id. at 520. We held that the prior conviction was void and should not have been used to enhance punishment, and we remanded for resentenc-ing. Id. at 524. But we were not called upon to address, and did not address, the issue of estoppel in Wilson. The primary question in this case is not whether an illegally lenient sentence is void, but whether Appellant is estopped from complaining of the illegal lenity of his sentence after he has already taken advantage of that lenity. In short, can estoppel by judgment bar collateral attack of an illegally lenient sentence?
Estoppel by Judgment
The argument that a conviction is void because the sentence is not authorized by the Legislature is subject to principles of estoppel.6 Estoppel is a flexible doctrine that takes many forms. Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. *349App. 2007). We explicitly described two forms of estoppel in Rhodes: Estoppel by contract and estoppel by judgment. Id. Estoppel by contract describes the situation in which “a party who accepts the benefits under a contract is estopped from questioning the contract’s existence, validity or effect.” Id.-, 31 C.J.S. Estoppel & Waiver § 164, p. 542 (2008). Estoppel by judgment is a form of estoppel whereby a person “who accepts the benefits of a judgment, decree, or judicial order is estopped from denying the validity or propriety thereof, or of any part thereof, on any grounds; nor can he or she reject its burdensome consequences.” Id.-, 31 C.J.S. Es-toppel & Waiver § 172, p. 553 (2008). To be estopped by a judgment, a person must accept the benefits of the judgment voluntarily. Gutierrez v. State, 380 S.W.3d 167, 178 (Tex. Crim. App. 2012). In Rhodes, we declared that “[t]he variant of estoppel at issue here is ‘estoppel by judgment.’ ” 240 S.W.3d at 891. We concluded that a “defendant who has enjoyed the benefits of an agreed judgment prescribing a too-lenient punishment should not be permitted to collaterally attack that judgment on a later date on the basis of the illegal leniency.” Id. at 892.
Although Rhodes addressed estoppel by judgment in the context of a hypothetical plea agreement, and therefore spoke in terms of accepting the benefits of an “agreed” judgment, we have since made it clear that the focus of estoppel by judgment is the acceptance of a benefit rather than an agreement contemporaneous with the judgment. In Murray v. State, 302 S.W.3d 874, 882 (Tex. Crim. App. 2009), we characterized Rhodes as holding that “a party who accepts the benefit of a judgment that imposes an illegally lenient sentence is estopped from challenging the judgment at a later time.”7 This is the rule that applies here.
Appellant ultimately accepted the benefit of an illegal four-year sentence *350upon conviction of a crime for which the Legislature has mandated a minimum sentence of five years. Approximately four years passed between the date the adjudicating court imposed the illegally lenient sentence and the date the trial court below imposed the enhanced sentence. During that time, Appellant never complained about the aggravated robbery sentence’s lenity. Instead, he served his illegally lenient sentence and was content to be released from prison altogether approximately nine months early. Thus, he took full advantage of the benefit of his illegally lenient sentence, and he cannot now deny its validity.
Appellant argues that he could not have voluntarily accepted the benefit' of his aggravated robbery sentence because there is no plea agreement in the record- and the sentence was “imposed” upon him by the judgment. But the question is. not whether Appellant agreed to the prior judgment or negotiated for the sentence that it imposed. Unlike an estoppel by contract, which might prevent a defendant who has plea-bargained for a particular judgment from challenging its validity, an estoppel by judgment arises not when the person voluntarily agrees to the judgment, but when the person voluntarily accepts its benefits after the judgment issues. Voluntary acceptance of the benefits of a judgment can occur without an agreement, Gf In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 741 (Tex. 2005) (holding that non-signatories of a contract containing an arbitration clause who seek a direct benefit of the contract are bound by the arbitration clause). The benefit here was Appellant’s release from prison approximately nine months earlier than the Penal Code would have otherwise permitted. Appellant did not challenge the illegal lenity of his aggravated robbery conviction until after he had accepted this benefit.
The only circumstance that we have found to constitute involuntary acceptance of a benefit occurred in Gutierrez v. State, 380 S.W.3d 167 (Tex. Crim. App. 2012). In that case, the mother of four children, two of whom had special needs relating to Down’s syndrome, plea bargained for probation so that she would be able to provide for her family. Id. at 170, 179. The trial court imposed a condition of probation requiring that she either obtain legal status within a year or leave the country—a condition that we found amounted to “banishment,” which violated both the United States Constitution and the Texas Constitution. Id. at 173-74. We held that the mother was not estopped from challenging the banishment condition for the first time on appeal of her probation revocation, because she had no realistic choice but to accept the illegal condition. Id. at 179.8
Appellant faced no such circumstance. The specific issue Appellant complains of *351on appeal is not an unconstitutional condition of his community supervision, but the very benefit he accepted—the lenity of his sentence. Nothing prevented him from bringing the statutory minimum sentence to the attention of the court at the time that he was sentenced or, indeed, at any time before he was released early. It simply would not have been in his interest to do so at that time, as it may have resulted in a sentence within the statutory punishment range. Having accepted the benefit of his illegally lenient sentence, he cannot now avoid having the judgment it imposes be used to enhance his punishment for a subsequent offense.
CONCLUSION
Estoppel by judgment turns on acceptance of benefits. Appellant here accepted the benefit of the lenity in the judgment he collaterally attacks. Estoppel by judgment bars this kind of collateral attack. Because Appellant is estopped, he is not entitled to a new punishment hearing. The portion of the court of appeals’ judgment reversing the trial court’s judgment and remanding Appellant’s cause for a new punishment hearing is reversed. The judgment of the trial court, as otherwise modified by the court of appeals, is affirmed.9
Alcala, J., filed a dissenting opinion.
. Though Appellant was adjudicated guilty of aggravated robbery and cocaine possession on the same day, he committed the offenses approximately ten months apart.
. The sentence for a first degree felony is imprisonment “for life or for any .term of not more than 99 years or less than 5 years.” Tex. Penal Code § 12.32(a).
. Based on the pre-sentence time credited in the judgment for Appellant's aggravated robbery conviction, his four-year sentence for the aggravated robbery would have expired on approximately August 18, 2010. However, Appellant remained incarcerated until November 9, 2010, possibly because he had less pre-sentence time credited toward his cocaine possession sentence. A five-year sentence for the aggravated robbery would not have expired until approximately August 18, 2011. Appellant therefore has no more time left to serve on his aggravated robbery conviction, and was released approximately nine months earlier than he would have been had the adjudicating court imposed the statutory minimum sentence. We assume that when Appellant was released, he was fully aware that he had exhausted the sentence in his aggravated robbery judgment, and that he had served less than five years in prison.
.Appellant disputed other aspects of his criminal history, including his prior conviction for the cocaine possession. However, he repeatedly confirmed that he had been previously convicted of the aggravated robbery.
. The record before us does not indicate whether the illegally lenient sentence was a product of a negotiated plea bargain. The State also argues that, even if the case must be remanded for a new punishment proceeding, the State should still be given the opportunity to prove up such a plea bargain at the new punishment hearing and obtain an enhanced sentence. Given our ultimate disposition of the case, we need not address this argument.
. For example, a plea agreement estops the parties from arguing that the agreed judgment imposes an illegally lenient sentence. Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007). Absolute statutory requirements that are not waivable or forfeitable under Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), may nevertheless be subject to estoppel. See Gutienez v. State, 380 S.W.3d 167, 177 (Tex. Crim. App. 2012) (noting “this *349Court's recognition, in Saldano v. State, [70 S.W.3d 873, 888 & n.69 (Tex. Crim. App. 2002) ], that under some circumstances, the doctrine of estoppel can trump even Marin’s category of non-forfeitable/non-waivable absolute requirements or prohibitions”); see also Prystash v. State, 3 S.W.3d 522, 530-32 (Tex. Crim. App. 1999) (observing that Marin-categorizing a claim that the death penalty was imposed contrary to statute in Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994), did not preclude the application of the invited error doctrine, a species of estoppel).
. In declining to invoke estoppel by judgment, and relying on Wilson to invalidate Appellant’s prior aggravated robbery conviction, the court of appeals made two mistakes. First, it concluded that this Court "did not rely upon estoppel grounds for its resolution in Rhodes." Deen, 2015 WL 6123728, at *6. Second, it construed Rhodes to require the existence of a plea agreement with respect to the illegally lenient sentence as a prerequisite to any application of the doctrine of estoppel by judgment. Id.- at *7.
The record in Rhodes did not reveal whether any plea bargain had taken place or, if it had, whether it had embraced an agreement with respect to the illegally lenient punishment. Our holding in Rhodes was two-fold. Both facets of our holding were equally necessary to our resolution of tire case. First, assuming that there had been no plea bargain with respect to punishment, we held that the type of punishment defect involved was not such as to render the entire conviction void, because it was subject' to being remedied "without resort to resentencing.” 240 S.W,3d at 889. Under that scenario, Rhodes could not obtain the relief he sought because the prior conviction used to enhance the punishment in his current conviction was not void after all. Id. Second, assuming that there had been a plea bargain that included the illegally lenient punishment, the prior conviction may have been void because it would not have been subject to remedy without the necessity of resentencing. Id. at 887. Under those circumstances, we held alternatively that, once Rhodes had reaped the benefits of the illegally lenient punishment, he was estopped from complaining about it later. Id. at 892. It is true that we characterized the benefits he enjoyed as having derived from an "agreed” *350judgment, id. but that was only a reflection of the particular plea agreement we hypothesized in Rhodes. We later recognized in Murray that such a plea agreement is not essential to application of estoppel by judgment. 302 S,W.3d at 882. Indeed, to hold that estoppel by judgment requires an agreement would render it merely redundant with' estoppel' by contract. The court of appeals failed to acknowledge our construction of Rhodes in Murray.
. "What is more,” we observed in Gutierrez, "a defendant ordinarily has no say in the trial court’s decision regarding the appropriate conditions of community supervision. What those conditions will be is not a product of negotiation; a defendant in [Gutierrez’s] shoes must simply take them or leave them if she wants to avoid incarceration.” 380 S.W.3d at 179. This delineation was significant because Gutierrez had negotiated for probation, and avoided incarceration as a result—a benefit of the judgment. The "public-policy considerations” that weighed against enforcing a banishment condition and Gutierrez's familial circumstances that required her to avoid in*351carceration at all costs indicated that her acceptance of the probation was involuntary. Id. at 178-79. In light of her plea bargain for probation, the fact that she did not bargain for the banishment condition was something ''more” that further supported the determination that the acceptance was involuntary. Id. at 179. Contrary to the dissenting opinion’s intimation, nothing we said in Gutierrez suggests that the absence of an agreement, in itself, renders an acceptance of a benefit involuntary.
. Although Appellant's punishment was enhanced by the prior robbery conviction to that of a third degree felony, he was nevertheless convicted of a state-jail felony. See Tex Penal Code § 12.35(c) (“An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that....”). The trial court’s judgment mistakenly recited that Appellant was actually convicted for a third degree felony offense, not a state jail felony. The court of appeals accordingly modified Appellant's judgment to reflect conviction for a state jail felony. Deen, 2015 WL 6123728, at *7. Nothing about our disposition of the State’s petition for discretionary review today affects that modification. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284031/ | ORDER
PER CURIAM:
Jamauhle Brown appeals his convictions following a jury trial for murder in the first degree, section 565.020, RSMo 2000, armed criminal action, 571.015, RSMo 2000, burglary in the first degree, section 569.160, RSMo 2000, commission of a felony in furtherance of street gang activity, section 578.425, RSMo 2000, and tampering, section 575.100, RSMo 2000. He challenges the sufficiency of the evidence to support his convictions for murder, armed criminal action, burglary, and gang activity. He also claims that the trial court abused its discretion in admitting certain testimony and in failing to declare a mistrial when a State witness pleaded the Fifth Amendment during his direct examination. Because ■ a published opinion would have no precedential value, a memorandum has been provided to the parties.
The judgment of convictions is affirmed. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284032/ | Kurt S. Odenwald, Presiding Judge
Introduction
Appellant Harold Morse (“Morse”) appeals from the judgment of the motion court denying his Rule 29.151 motion for post-conviction relief without an evidentia-ry hearing. Following a jury trial, Morse was convicted of one count of concealing a prohibited item in a correctional facility. The trial court sentenced Morse as a prior and persistent offender to thirty years’ imprisonment. Morse’s conviction and sentence were affirmed on direct appeal by this Court in State v. Morse, 418 S.W.3d 387 (Mo.App.E.D.2013). Morse subsequently filed a Rule 29.15 motion for post-conviction relief alleging ineffective assistance of appellate counsel, which the motion court denied without an evidentiary hearing. Morse now contends on appeal that the motion court clearly erred in denying his motion for post-conviction relief without an evidentiary hearing because appellate counsel rendered ineffective assistance of counsel by failing to raise, on direct appeal, a claim that the thirty-year sentence imposed by the trial court was excessive and retaliatory based on Morse’s decision to exercise his right to proceed to trial. Because appellate counsel was not ineffective for failing to raise a non-meritorious claim on direct appeal, we affirm the judgment of the motion court.
Factual and Procedural History
A jury convicted Morse of one count of concealing a prohibited item in a correctional facility in violation of Section 217.360.2 Morse was subject to sentencing by the trial court because he had been found to be a prior and persistent offender before trial.
At the sentencing hearing, the trial court noted that it had ordered and received a sentencing assessment report, and that the report’s recommendation was to deny any request for probation. Trial counsel for Morse requested that the trial court consider sentencing Morse to five years’ imprisonment to match a previous plea bargain offer of the same length. Trial counsel alternatively requested a sentence within the range recommended by the sentencing assessment report:
“Mr. Morse would ask that he not be punished for exercising his constitutional right to a jury trial. He’d ask for five years or in the alternative within the range recommended by the sentencing assessment report and sentencing advisory commission, who I believe are in a better position to compare these cases to other cases as far as proportionality and what would be appropriate in this case.”
Trial counsel noted that the sentencing assessment report recommended a nine-year mitigating sentence, an eleven-year typical sentence, and a twelve-year aggravated sentence. The State responded to trial counsel’s request by noting the seriousness of the offense, as well as Morse’s “lengthy” criminal history dating back to 1991. The State also informed the trial court that after Morse was released from jail in 2002, he was arrested just four days later for second-degree robbery and sentenced to fifteen years on that charge. The State requested a thirty-year sentence.
The trial court reminded the parties that it “has to take everything into consideration” in making a sentencing decision and that Morse’s prior and persistent offender status subjected him to an extended punishment under Sections 558,016 and *911557.036. The trial court explained that it had reviewed the sentencing assessment report and that it was concerned with Morse’s extensive and often violent criminal history, as well as the close proximity between his 2002 release from prison and subsequent arrest for robbery:
I guess of serious concern to the Court is the fact that the Defendant has, I believe one of the counts is a robbery in the first degree, and then he’s got unlawful use of a weapon, possession of cocaine. But of bigger concern is that at his last release, the State is correct, that if you look at the date, very quickly after he was released back from the Department of Corrections that he has a new felony offense for robbery in the second degree, which is a very serious offense. The criminal history in this case is extremely extensive and not just extensive, it’s a criminal history that is of a violent nature. And then while in the Department of Corrections Mr. Morse again picked up a new offense, a Class B felony.
The trial cdurt sentenced Morse to thirty years’ imprisonment. This Court affirmed Morse’s conviction and sentence on direct appeal in State v. Morse, 413 S.W.3d 387 (Mo.App.E.D.2013). Appellate counsel for Morse did not raise a claim on direct appeal that the trial court’s sentence was excessive and intended to punish Morse for exercising his right to trial.
Morse subsequently filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence pursuant to Rule 29.15. Post-conviction counsel was appointed and filed an amended motion alleging that appellate counsel was ineffective for failing to raise a claim on direct appeal that the trial court excessively sentenced Morse to thirty years in prison in retaliation for Morse exercising his right to trial. Morse’s amended motion alleged that the trial court based its sentence on Morse’s criminal history and his decision to exercise his right to trial. In support of this allegation, Morse claimed that “[i]t is clear from the record that [Morsel’s decision to exercise his right to a jury trial and refusal to admit guilt were the important factors in the trial court’s sentencing of [Morse] to thirty years.” Morse cited three facts in support of his claim; first, that the sentence imposed by the trial court was excessive compared to the State’s pre-trial recommendation of five years and the sentencing assessment’s report’s recommendation of nine to twelve years; second, that while Morse has a criminal history involving “a few violent felonies, the majority are not violent”; and third, that defendants convicted in the trial court of concealing a prohibited item in a correctional facility following a trial routinely received longer sentences than defendants convicted of similar offenses in neighboring counties. Morse maintained that if appellate counsel had raised the issue of retaliatory sentencing on direct appeal, there is a reasonable probability this Court would have remanded the case.
The motion court entered its Findings of Fact, ‘ Conclusions of Law and Judgment denying Morse’s amended motion without an evidentiary hearing. The motion court began by noting that in order to bring a successful claim of retaliatory sentencing, Morse was required to allege facts demonstrating that his exercise of his right to trial was a determinative factor in his sentencing. The motion court concluded that Morse had “utterly failed” to meet his burden because there was nothing in the record supporting his claim that the trial court sentenced him to thirty years in prison in retaliation for exercising his right to trial. The motion court reasoned that “[t]he prosecutor at sentencing did not argue to the Court that [Morse] should be *912punished for exercising his right to a jury trial. Nor did the Court mention any reliance at all on the fact of [Morsel’s insistence on a trial in deciding sentence.” As a result, the motion court concluded that “[t]here is nothing from the record from which appellate counsel could have or should have argued retaliation, based on the Court’s comments preceding sentencing. Far from being ‘obvious from the record’ this claim is not supported by the record.” Accordingly, the motion court ruled that the record conclusively showed that Morse was entitled to no relief as a matter of law and denied his amended motion without an evidentiary hearing. This appeal follows.
Point on Appeal
In his sole point on appeal, Morse contends that the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing because Morse alleged facts showing that appellate counsel rendered ineffective assistance of counsel. Specifically, Morse claims that appellate counsel was ineffective for failing to raise, on direct appeal, a claim that the 30-year sentence imposed by the trial court was an excessive retaliatory sentence designed to punish Morse for persisting in his innocence, and exercising his right to trial.
Standard of Review
Appellate review of a motion coui't’s denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15; Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). The motion court’s findings and conclusions are presumptively correct and will be overturned only when this Court, after reviewing the entire record, is left with a “definite and firm impression that a mistake has been made.” Vaca v. State, 314 S.W.3d 331, 334 (Mo. banc 2010).
To be entitled to an evidentiary hearing on a post-conviction relief claim, a movant must allege facts, not conclusions, that, if true, would warrant relief; the facts alleged must raise matters not refuted by the record and files in the case; and the matters complained of must have resulted in prejudice to the movant. Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003). An evidentiary hearing is not required if the files and records of the case conclusively show that the movant is entitled to no relief. Id.
Discussion
The standard for reviewing a claim of ineffective assistance of appellate counsel is essentially the same as that used in a claim against trial counsel. Mallett v. State, 769 S.W.2d 77, 83 (Mo. banc 1989). To satisfy the performance prong of the Strickland, test, a movant must overcome the strong presumption that appellate counsel provided adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. McCain v. State, 317 S.W.3d 657, 660 (Mo.App.S.D.2010). To overcome this presumption, a movant must show that appellate counsel “failed to assert a claim of error which would have required reversal had it' been asserted and which was so obvious from the record that a competent and effective attorney would have recognized it and asserted it.” Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994). To be entitled to relief, the movant must show that the error not raised by appellate counsel was “so substantial as to amount to a manifest injustice or a miscarriage of justice.” Storey v. State, 175 S.W.3d 116, 148 (Mo. banc 2005). To satisfy the prejudice prong, the movant must demonstrate that the claimed error was sufficiently ser*913ious that, if it had been raised, there is a reasonable probability the outcome of the appeal would have been different. Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006).
There is a strong presumption that appellate counsel’s conduct fell within the “wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Morse bears the burden of overcoming that presumption by showing that, in light of the circumstances, trial counsel’s decision not to raise the retaliatory sentence issue on appeal was not a reasonable strategic decision. Id. A decision made by counsel based on reasonable strategy is virtually unchallengeable; rarely will a strategic decision of counsel be declared so unsound as to constitute ineffective assistance of counsel. State v. Sanders, 903 S.W.2d 234, 240 (Mo.App.E.D.1995); Malady v. State, 748 S.W.2d 69, 72 (Mo.App.S.D.1988). The reasonableness of appellate counsel’s strategic decision must be viewed as of the time the decision occurred, taking into consideration the circumstances of the case. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Appellate counsel has no duty to raise every non-frivolous claim on appeal, but may use his professional judgment to focus on the most important issues. Barnes v. State, 334 S.W.3d 717, 723 (Mo.App. E.D.2011). Appellate counsel is not ineffective for failing to raise a non-meritorious claim on appeal. Glover v. State, 225 S.W.3d 425, 429 (Mo. banc 2007),
Section 557.036.1 provides that the trial court is to make its sentencing determination in view of “all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant....” Section 557.036.1. “The trial court has a duty to undertake a case by case, defendant by defendant, evaluation in determining an appropriate punishment fashioned to both the crime and the criminal.” State v. Lindsey, 996 S.W.2d 577, 579 (Mo.App. W.D.1999). The trial court, due to its experience and expertise, is presumed to consider appropriate sentencing factors and to disregard ■ improper matters. Id. As such, the trial court exercises very broad discretion in its sentencing function. Id. Despite that discretion, it is well-established that “[a] court may not use the sentencing process to punish a defendant, notwithstanding his guilt, for exercising his right to receive a full and fair trial.” State v. Vaughn, 940 S.W.2d 26, 29 (Mo.App.S.D.1997). A defendant “may not be subjected to more severe punishment simply because he exercised his right to stand trial.” Thurston v. State, 791 S.W.2d 893, 896 (Mo.App.E.D.1990).
Missouri ease law clearly delineates the facts a movant must allege in order to be entitled to relief on a claim of retaliatory sentencing. A movant must show that his exercise of a constitutional right was an actual, “determinative factor” considered by the trial court in making its sentencing decision. Greer v. State, 406 S.W.3d 100, 111 (Mo.App.E.D.2013). Taylor v. State, 392 S.W.3d 477 (Mo.App.W.D.2012), is instructive here. Taylor asserted in his postconviction relief motion that the trial court sentenced him to the harshest possible sentence because he exercised his constitutional right to challenge the conditions of his probation. The Court explained that such a conelusory claim, standing alone, was insufficient to entitle Taylor to an evidentiary hearing: “[t]his is obviously a conclusion which, standing alone, would not satisfy the obligation to allege specific facts warranting relief.” Id. at 487. Instead, the Court explained that a factual allegation must be made connecting the trial court’s conduct such as com*914ments made by the trial court at sentencing — to retaliation. Further, a movant must allege that his exercise of a constitutional right was a determinative factor in the trial court’s sentencing decision. In order to satisfy the determinative factor test, “something beyond the bare possibility that retaliation could have been a factor in sentencing must be shown.” Id. at 488.
The Court in Taylor surveyed other Missouri cases where the determinative factor test was applied, and found that the key characteristic of cases where retaliatory sentencing was found to exist was the presence of “words stated by or attributed to the trial court that directly connected the imposition of enhanced sentencing with a comment about the exercise of a constitutional right.” Id. at 490. In each of those cases, the Court explained, “there was no doubt that retaliatory intent was a ‘determinative factor,’ that is to say, an actual factor, in sentencing.” Id. at 489. Conversely, the Court found that retaliation was not found to be a determinative factor in cases where “other appropriate factors aside from the assertion of a constitutional right were considered in imposing sentence,” even in instances where the trial court additionally made a generalized comment on the assertion of a constitutional right. Id. at 491.
Applying this standard, we conclude that both Morse’s amended motion and the record are completely devoid of any facts indicating that the trial court sentenced Morse in retaliation for exercising his right to proceed to trial. Morse alleged no facts showing that retaliation was even a factor in the court’s sentencing decision, much less a determinative factor. Instead, Morse made a conclusory allegation of retaliation which inferred retaliatory intent based on the length of the sentence imposed by the trial court. Morse made no allegations about any statements made by the trial court referencing his decision to proceed to trial, or connecting his exercise of that right to the sentence imposed. In fact, while the trial court enunciated several factors that influenced its decision at the sentencing hearing, none, of these factors included Morse’s- choice to exercise his right to trial. The record reflects that the only factors considered by the trial court in sentencing Morse were appropriate factors, including his criminal history, the violent nature of several of his crimes, and his apparent failure to learn from his mistakes as evidenced by his arrest for robbery mere days after being released from prison. See Section 557.036.1 (specifying that the court should consider “the nature and circumstances of the offense and the history and character of the defendant” in making its sentencing decision); Lindsey, 996 S.W.2d 577 (holding that the trial court’s statements admonishing the defendant for failing to accept responsibility for his crime was an appropriate factor to consider in sentencing). At no point during the sentencing hearing did the trial court make any reference, directly or indirectly, to Morse’s decision to proceed to trial, nor does Morse allege that the trial court did so.
Morse bore the burden of showing that appellate counsel failed to assert a claim of error that would have required reversal had it been asserted, Reuscher, 887 S.W.2d at 591. Morse failed to meet this burden. The mere existence of a longer-than-expected sentence, without more, does not constitute a sufficient factual basis warranting relief on a claim of retaliatory sentencing.3 Instead, a movant *915must show that retaliation for exercising his right to trial was a determinative factor in the trial court’s sentencing decision. Here, there were no facts alleged, and no evidence in the record, supporting a claim of retaliatory sentencing. Any such claim on appeal therefore would have lacked merit and not required reversal had it been asserted. Accordingly, appellate counsel was not ineffective for failing to raise the retaliatory sentencing issue on direct appeal. Point denied.
Conclusion
The motion court did not clearly err in denying Morse’s amended motion without an evidentiary hearing. The judgment of the motion court is affirmed.
Robert G. Dowd, Jr., J., Concurs
Gary M. Gaertner, Jr., J., Concurs
. All Rule references are to Mo. R.Crim. P. (2013).
. All statutory references are to RSMo.2000.
. While the sentence imposed by the trial court was significantly longer than both the pre-trial plea offer and the sentencing assessment report's recommendation, the trial court *915was bound by neither in making its sentencing decision. See State v. Davis, 582 S.W.2d 342, 344 (Mo.App.E.D.1979); Spicer v. State, 300 S.W.3d 249, 250 (Mo.App.W.D.2009). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284033/ | WILLIAM W. FRANCIS, JR., C.J./P.J.
Digital Monitoring Products, Inc. (“Employer”), appeals the decision of the Labor and Industrial Relations Commission (“Commission”) finding Scott Zinevich (“Zinevich”) was not disqualified for benefits by reason of misconduct connected with work. We affirm the Commission’s decision.
Facts and Procedural History
Zinevich worked for Employer as the regional training manager/vertical training manager from October 2006 until he was terminated on January 13, 2014, for failure to follow managerial directives, including failing to attend a webinar on January 10, 2014.1 As regional training manager/vertical training manager, Zinevich traveled throughout the United States and Canada providing training to alarm companies on how to install and program Employer’s products.
Zinevich was instructed by Employer to attend a training webinar occurring on January 10, 2014, but failed to do so. Zinevich testified he did not intentionally miss the webinar, but failed to attend because he never received the login or password information.2 On the day of the meeting, Zinevich realized he had not received the email containing the required login and password for the webinar. He contacted two co-workers, the regional training manager, and the training coordinator and personal assistant to David Pee-bles (“Peebles”), Vice President of Training and Development. However, the coworkers indicated they could not give Zinevich the login information as Tim Nis-sen (“Nissen”), Director of Field Technical Training and Zinevich’s supervisor, was the only person with that information.' Zinevich did not then contact Nissen because by that time, the webinar had already begun.
At the time the webinar began, Nissen was aware that Zinevich was not logged in, was told by the regional manager that Zinevich had called him “stressed” trying to get the login information, but Nissen took no steps to get Zinevich the login information so he could participate in the *926webinar.3
On January 13, 2014, Peebles, on behalf of Employer, terminated Zinevich. As a basis for termination, Peebles cited Zine-vich’s failure to attend the webinar, and other work-related issues not relevant to this appeal.
On January 15, 2014, Zinevich filed a claim for unemployment benefits. Employer filed a formal protest stating Zine-vich’s termination was work-related misconduct arising out of Zinevich’s failure to participate in a webinar on June 10, 2014, which was “[t]he final incident” causing the discharge, after he had received numerous warnings, and knew his job was in jeopardy..
On February 4, 2014, a Deputy’s Determination found that Zinevich was discharged by the Employer for misconduct connected with work in that Zinevich failed to participate in a webinar that Zinevich had been notified was mandatory. Zine-vich appealed and a hearing was held by the Appeals Tribunal on April 15, 2014, and continued to May 27, 2014.
On June 3, 2014, the Appeals Tribunal rendered its decision finding that Zinevich was not terminated for misconduct connected with work and reversed the Deputy’s Determination. The Appeals Tribunal specifically found credible Zinevich’s testimony that he did not attend the webinar because he did not receive the password and login information required to- participate. The Appeals Tribunal concluded that while Zinevich may have shown poor judgment in contacting two fellow employees instead of a supervisor or manger to obtain the webinar password, he did not willfully violate Employer’s standards by failing to attend the webinar.
Employer appealed to the Labor and Industrial Relations Commission (“Commission”). On September 10, 2014, the Commission affirmed the decision of the Appeals Tribunal finding that the decision was fully supported by competent and substantial evidence. This appeal followed.
In its sole point relied on, Employer contends the Commission erred in adopting the Appeal Tribunal’s decision because the findings of the Appeals Tribunal show that Zinevich was terminated for misconduct connected with work in disregarding the standards of behavior that Employer had the right to expect of Zinevich by failing to comply with directives of Employer — the terminal failure being Zine-vich’s refusal to attend the webinar.
Zinevich did not file a brief.4 However, the Division filed a brief arguing the Commission’s decision should be affirmed because there was sufficient, competent and substantial evidence in the record to support the conclusion Zinevich did not commit misconduct.
The issue for our determination is whether the Commission’s findings support its conclusion that Employer did not discharge Zinevich for misconduct related to work.
Standard of Review
“Article V, section 18 of the Missouri Constitution provides for judicial review of the commission’s decisions to determine whether they are supported by competent and substantial evidence upon the whole record.” Fendler v. Hudson *927Services, 370 S.W.3d 585, 588 (Mo. banc 2012) (internal quotation and citation omitted). “The appellate court’s review of the Commission’s decision[5] in an unemployment compensation case is governed by section 288.210[.]” Harris v. Division of Employment Sea, 350 S.W.3d 35, 38 (Mo.App.W.D. 2011). Section 288.2106 provides:
The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.
§ 288.210.
We defer to the Commission on matters of witness credibility and the weight given to testimony. Fendler, 370 S.W.3d at 588. While we defer to the Commission’s findings of fact, so long as they are supported by substantial and competent evidence, we do not defer to the Commission’s conclusions of law or application of law to the facts. Frisella v. Deuster Elec., Inc., 269 S.W.3d 895, 898 (Mo.App.E.D. 2008). “If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination and it is irrelevant that there is supportive evidence for the contrary finding.” Barlynn Enterprises, Inc. v. Foell, 223 S.W.3d 168, 171 (Mo.App.S.D. 2007) (internal quotation and citation omitted).
“Whether the Commission’s findings support the conclusion that an employee was guilty of misconduct is a question of law.” Frisella, 269 S.W.3d at 898 (internal quotation and citation omitted). We review issues of law de novo. Comeaux v. Convergys Customer Mgmt. Group, Inc., 310 S.W.3d 759, 762 (Mo.App.E.D. 2010).
Analysis
Employer claims the Commission erred in adopting the decision of the Appeals Tribunal because the factual findings do not support the Commission’s conclusion that Zinevich was not discharged for misconduct connected with work.7
Pursuant to section 288.050.2, a claimant is disqualified from unemployment compensation benefits when claimant is dis*928charged for “misconduct” connected with work. Our Supreme Court in Seck v. Department of Transp., 434 S.W.3d 74 (Mo. banc 2014), has identified four distinct categories of “misconduct,” as defined in section 288.030.1(23).8
[1] an act of wanton or willful disregard of the employer’s interest,
[2] a deliberate violation of the employer’s rules,
[3] a disregard of standards of behavior which the employer has the right to expect of his or her employee, or
[4] negligence in such degree or recurrence as to [a] manifest culpability, wrongful intent or evil design, or [b] show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.
Seck, 434 S.W.3d at 82 (quoting section 288.030.1(23)) (alterations in Seek).
Our Supreme Court abrogated the traditional requirement that claimant always be shown to have acted, or failed to act, willfully to show misconduct under this statute in Fendler, 370 S.W.3d at 589-90, thereafter clarifying this holding in Seek, 434 S.W.3d at 82-84.
After Seek, the scienter required for misconduct varies for each of the four categories of misconduct the court identified in section 288.030.1(23). Category one requires a showing that conduct was “wanton or willful.” Category two requires a showing that conduct was “deliberate.” Category three requires a scienter showing of “disregard.” Category four allows that even simple negligence can be sufficient for misconduct, but only: “(a) [if] it was the employee’s motive or purpose to injure the employer’s interests, or (b) that the employee’s disregard of those interests (or of employee’s duties and obligations) was both intentional and substantial.” Seck, 434 S.W.3d at 82-83 (internal quotation and citation omitted).
In attempting to assign error to the Commission’s finding that Zinevich was not discharged due to misconduct, Employer points to alleged “uncontrovert-ed facts” in the record demonstrating that Zinevich “chose not to attend the [webi-nar] ... [and] refused to speak with his direct supervisor ... regarding his failure to attend.”9 However, Employer’s argument section does not direct this Court to the portions of the record by which these factual assertions can be verified.10 Nev*929ertheless, Employer argues that this was misconduct connected with work in that it showed a “disregard of standards of behavior which the employer has the right to expect of his or her employee” under section 288.030.2(23). In other words, Employer argues that Zinevich committed category three misconduct under Seek’s interpretation of section 288.030.1(23).
As we indicated in Tamko Bldg. Products, Inc. v. Pickard, 443 S.W.3d 68 (Mo.App.S.D. 2014), category three misconduct is restricted to the “basic standards of behavior that apply universally in the workplace and generally not included in the employer’s express rules.” Id. at 75 (quoting Seck, 434 S.W.3d at 83) (emphasis in original). In Tamko, where employer maintained that employee had “violated express ... rules and policies ... of which he had been given notice[,]” we held that the third category did not apply. Tamko, 443 S.W.3d at 75 (emphasis added).
Here, Employer’s brief indicates that attendance at the webinar was an express requirement of Employer of which Zinevich had been given notice: “[Employer] required [Zinevich] to attend a mandatory webinar meeting of all regional training managers on January 10. To this end, [Zinevich] received both an electronic invitation and calendar reminder of the required meeting.” Attendance at the webinar was an express requirement of Employer of which Zinevich had notice— likewise, under Seek and Tamko, Zine-vich’s failure to comply would not, under these facts, constitute misconduct under category three.
Furthermore, the Commission found credible Zinevich’s testimony that he did not attend the webinar because he did not receive a password, that he contacted two other employees for the password, and that he did not contact a manager because by the time the other employees told him they could not help, the webinar had already begun. The -Commission found Zinevich’s failure to attend was mere “poor judgment.” Deferring to the findings of the Commission, as we must under our standard of review, Fendler, 370 S.W.3d at 588, we cannot find that the facts in the record before us rise to the level of “disregard” required under category three of section 288.030.1(23).
Employer argues that Lightwine v. Republic R-III School Dist., 339 S.W.3d 585 (Mo.App.S.D. 2011), should prescribe the outcome here. In Lightwine, the Appeals Tribunal and Commission found that claimant was disqualified from unemployment benefits because she was discharged due to misconduct connected with work. Id. at 589. On appeal, deferring to the Commission’s determinations regarding weight of the evidence and credibility of the witnesses below, this Court found that there was substantial and competent evidence to support the Commission’s decision that there was misconduct because the record showed that “Employer discharged Claimant for willfully disregarding Employer’s reasonable directives and the standards of behavior Employer had the right to expect from Claimant....” Id. at 591.
First, Lightwine was issued before our Supreme Court explained the scienter requirement of section 288.030.1(23) in Fen-dler and Seek, rendering Lightivine of no analytical value to Employer’s argument. Second, in contrast to the procedural posture of Lightwine, our task here, deferring to the Commission’s determinations regarding weight of the evidence and credibility of witnesses in this case, is to determine whether the Commission’s finding that there was not misconduct was error because the facts found by the Commission do not support the award.
*930Employer fails to show that the facts found by the Commission do not support the award in that the findings do not'show that Zinevich was terminated due to misconduct connected with work as .a matter of law. Rather, the Commission’s findings show that Zinevich did not commit a category three violation of section 288.030.1(28) in that the findings of the Commission did not show that Zinevich was discharged due to a “disregard” of the basic standards of behavior that apply universally in the workplace. See Tamko, 443 S.W.3d at 75.
Point denied. The decision of the Commission is affirmed.
NANCY STEFFEN RAHMEYER, J.— Concurs
DON E. BURRELL, JR., J. — Concurs
. Other issues relating to Zinevich’s termination were put in evidence and discussed in the Commission's findings. However, Employer’s argument section exclusively relies on Zinevich's failure to attend the webinar and his refusal to discuss his nonattendance with his supervisor afterwards as the "misconduct” the Commission erred in failing to find. Therefore, Zinevich’s failure to attend the webinar is where our focus is concentrated.
. Employer alleges in its brief that “Zinevich admitted he chose not to attend the [webi-nar.]” (Emphasis added). However, Employer directs us to no evidence in the record in support of this allegation. We will not search the record to discover facts to substantiate an appellant's argument on appeal. See Cohen v. Cohen, 73 S.W.3d 39, 58 (Mo.App. W.D. 2002). Even if there were such uncontested evidence in the record, the findings of the Commission do not address this alleged admission by Zinevich, and Employer's section 288.210(3) challenge ("That the facts found by the commission do not support the award;”) would not be aided by such evidence.
. The login information was not found in Zinevich's company email inbox.
. While there is no penalty to Zinevich for not filing a brief, this Court is then forced to adjudicate Employer’s claims of error without the benefit of whatever arguments Zinevich might have raised. McClain v. Kelley, 247 S.W.3d 19, 23 n. 4 (Mo.App.S.D. 2008).
. When the Commission adopts the decision of the Appeals Tribunal, we consider the Appeals Tribunal's decision to be the Commission’s for purposes of our review. Ashford v. Division of Employment Sec., 355 S.W.3d 538, 541 (Mo.App.W.D. 2011).
. All references to statutes are to RSMo 2000, unless otherwise indicated.
. Employer’s point relied on appears to challenge under the statutory ground "[t]hat the facts found by the commission do not support the award[.]” § 288.210(3). However, in addition to this ground, Employer's argument also suggests the Commission "exceeded its powers,” a section 288.210(1) claim. This amounts to argument beyond Employer’s point relied on, a violation of Rule 84.04(e): We will not consider grounds for reversal that do not appear in appellant's point relied on. Conrad-Neustadter v. Neustadter, 340 S.W.3d 660, 667 (Mo.App.W.D. 2011).
All rule references are to Missouri Court Rules (2014).
. All references to section 288.030 are to RSMo Cum.Supp. (2006).
. With respect to Employer's assertion that Zinevich refused to speak with his direct supervisor, we find no citation to the record in support of this assertion anywhere in Employer's brief. This is a clear violation of Rule 84.04(c) & (e). Additionally, Employer’s point challenges under the § 288.210(3) ground "[t]hat the facts found by the commission do not support the award[.]" We discern no findings by the Commission relating to Zinevich's alleged refusal to speak with his supervisor. Likewise, this alleged fact, even if it were substantiated by Employer in compliance with Rule 84.04, would be of no analytical value in Employer's section 288.210(3) claim.
.Rule 84.04(e) provides that "[a]ll factual assertions in the argument shall have specific page references to ... the legal file[ ] [or] transcript[.]”
Compliance with the portion of the appellate briefing rule governing references to the record is mandatory and essential for the effective functioning of appellate courts, which cannot spend time searching the record to determine if factual assertions are supported by the record; reviewing authority may not become an advocate for the non-complying party on appeal.
Underwood v. High Road Industries, LLC, 369 S.W.3d 59, 67 n.4 (Mo.App.S.D. 2012) (internal quotation and citation omitted). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284034/ | ROBERT M. CLAYTON III, Judge
St. Louis County, Missouri (“the County”) appeals the trial court’s judgment awarding American Eagle Waste Industries, LLC (“American Eagle”), Meridian Waste Services, LLC (“Meridian”), and Waste Management of Missouri, Inc. (‘Waste Management”) (collectively “Haulers”) damages on their declaratory judgment claim arising out of the County’s liability for violating section 260.247 RSMo Supp.2008.1 Section 260.247 required the County to give Haulers two-year notice by certified mail before the County commenced its own trash collection services. State ex rel. American Eagle Waste Industries v. St. Louis County, 272 S.W.3d 336, 341-44 (Mo.App.E.D.2008); sections 260.247.1 and .2. In deciding a previous appeal involving the County and Haulers, the Missouri Supreme Court held that the County was liable to Haulers for violating section 260.247, set forth the standard for measuring Haulers’ damages, and remanded the cause to the trial court for both parties to engage in discovery, present evidence, and cross-examine witnesses with respect to the amount of damages Haulers were entitled. American Eagle Waste Industries, LLC v. St Louis County, 379 S.W.3d 813, 831-33 (Mo. banc 2012). Upon remand, the trial court held a bench trial and entered the judgment at issue in the instant case awarding American Eagle $593,489.00 in damages, Meridian $384,486.00 in damages, and Waste Management $4,944,790.00 in damages. The County appeals the award of damages and Haulers cross-appeal the calculation of damages. We affirm the trial court’s judgment in all respects.
I. BACKGROUND
A. The Procedural History
This case has a lengthy procedural history. Prior to December 2006, Haulers, a group of private trash and waste collectors, provided trash and waste collection (“trash collection”) services to residents of unincorporated St. Louis County. On December 12, 2006, the St. Louis County Council enacted an ordinance creating significant changes in the regulation of trash collection in unincorporated areas, enabling the County to establish trash collection districts and begin trash collection responsibilities. The County requested bids to contract with trash collection companies for each newly-established trash collection district, and each Hauler submitted at least one bid.
In June 2007, before the County had accepted any bids, the Missouri General Assembly amended section 260.247, effective January 1, 2008, to impose requirements on political subdivisions. The amendment provides, inter alia, that in the event a political subdivision commences its own trash collection services, the political subdivision must give companies currently providing trash collection services two-year notice by certified mail before the political subdivision may commence such services. Sections 260.247.1 and .2.
1. Haulers’ Declaratory Judgment Claim and American Eagle I
Following the 2007 amendment to section 260.247, the County continued with the implementation of its new trash collection program and did not award Haulers *16any of the contracts for trash collection. On May 29, 2008, Haulers filed a petition seeking a declaratory judgment that the County’s plan to contract with the trash companies submitting the winning bids violated section 260.247. The County filed a motion to dismiss Haulers’ declaratory judgment claim for failure to state a claim on which relief could be granted. The County’s motion to dismiss asserted that section 260.247 could not be constitutionally applied to the County because its status as a charter county allows it to regulate municipal functions including trash collection. The trial court granted the County’s motion to dismiss, and Haulers appealed.
On appeal, this Court reversed the dis-' missal .of Haulers’ declaratory judgment claim and remanded the cause to the trial court for further proceedings. State ex rel. American Eagle Waste Industries v. St. Louis County, 272 S.W.3d 336, 339-44 (Mo.App.E.D.2008) (“American Eagle I”). To give guidance to the trial court on remand, our Court addressed the merits of Haulers’ declaratory judgment claim. Id. at 341-44. We held that section 260.247 applied to the County, despite its charter status, because it involves the state-wide public policy to “provide an entity engaged in [trash] collecting with sufficient notice to make necessary business adjustments prior to having its services terminated in a given area.” Id. at 341-42 (quotations omitted). Accordingly, we also held the County must comply with the two-year notice provision set forth in section 260.247 if the County chose to enter the business of trash collection and take-it out of the hands of existing private collectors. Id. at 343.
2. The First Trial and American Eagle II
On remand, Haulers filed an amended petition and added a claim for breach of implied contract, seeking monetary damages for the County’s failure to comply with section 260.247. In September 2010, the trial court entered summary judgment in Haulers’ favor on the issue of liability.
On May 31, 2011, the trial court held a bench trial and heard evidence of Haulers’ damages (“the first trial”). Haulers presented testimony from expert witness C. Eric Ficken, who was a certified public accountant, a certified valuation analyst, and certified in financial forensics. Ficken’s opinion as to Haulers’ damages was based on unaudited records provided to him by Haulers, and the County objected to Ficken’s testimony on the grounds that it lacked foundation and constituted inadmissible hearsay. The trial court overruled the County’s objections. After the conclusion of the first trial, the trial court entered a judgment collectively awarding Haulers $1.2 million in damages, finding that the correct measure of damages was the amount of net profit Haulers would have realized during the relevant two-year waiting period.
The County appealed the trial court’s judgment to the Missouri Supreme Court,2 and Haulers cross-appealed. American Eagle Waste Industries, LLC v. St. Louis County, 379 S.W.3d 813, 823 (Mo. banc 2012) (“American Eagle II ”). Each party raised two arguments which are relevant to this appeal. As the County previously asserted in its motion to dismiss Haulers’ declaratory judgment claim, the County argued to the Missouri Supreme Court that section 260.247 does not apply to the County because its status as a charter county allows it to regulate municipal func*17tions including trash collection. Id at 823, 824. The County also argued to the Missouri Supreme Court that the trial court erred in finding the County liable to Haulers on the theory of breach of implied contract. Id at 824. Finally, Haulers argued to the Supreme Court that the trial court erred in its measurement and calculation of damages. Id
a.The Applicability of Section 260.247
The Missouri Supreme Court declined to consider the merits of the County’s claim that section 260.247 does not apply to the County. Id at 824-25. Instead, the Supreme Court quoted this Court’s decision in American Eagle I, found that the “[t]he court of appeals previously considered th[e] argument on the merits and discussed the proper interpretation of section 260.247 at length before rejecting [the] County’s position,” and found there was “no demonstrable error in the first appellate decision.” Id Accordingly, the Supreme Court held that “it is the law of the case that [the] County was required to adhere to section 260.247’s requirements” and “[the] County cannot have multiple bites at the apple in attempting to determine this issue favorably.” Id at 825.
b.The County’s Liability
With respect to the County’s other argument, the Missouri Supreme Court agreed with the County that the trial court erred in finding the County liable to the Haulers on the theory of breach of implied contract. Id at 829, 831. Nevertheless, the Supreme Court found that the trial court “still reached the correct result in finding [the] County liable” and affirmed the trial court’s judgment as to liability. Id at 831. The Court reasoned that, (1) the facts of Haulers’ amended petition adequately alleged a claim for an implied private right of action for violating a statute, section 260.247; (2) a private right of action is created in favor of Haulers under section 260.247; (3) “[t]he legislature intended for Haulers to provide service and receive their contract price for two-years following notice [from the County]”; and (4) “the legislature intended a right to damages in this situation.” Id at 829-831-.
c.The Measurement and Calculation of Damages
In addressing Haulers’ arguments on cross-appeal that the trial court erred in its measurement of damages and its calculation of damages, the Supreme Court first determined Haulers’ rights and obligations under section 260.247. Id at 824, 831-32. The Court found that pursuant to the language in subsections 1, 2, and 3 to section 260.247, “Haulers were entitled to continue providing [trash] collection services for two years” and “Haulers have the right to seek damages from [the] County for the violation of section 260.247.” Id. at 832 (emphasis in original).
In determining the appropriate measure of damages, the Supreme Court held that “[the] County must pay Haulers that to which they were entitled: the amount they ‘would have received’ under their contract during the two-year3 waiting period.” Id (quoting section 260.247.3). The Supreme Court specifically found Haulers were entitled to “their projected receipts from their contract price [for their services], minus any business and operational costs Haulers *18would have incurred while providing [trash] collection services, considering all the circumstances.” Id. at 833. In other words, Haulers were entitled to the net profit they would have received during the two-year waiting period, i.e., the “expected revenue, set off by expenses, costs, and other circumstances.” Id. at 833, 834. Stated yet another way, Haulers were entitled to damages for lost business profits. See id. at 833 (citing Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 55 (Mo. banc 2005)).
The Supreme Court also held that while the trial court correctly concluded that the' measure of Haulers’ damages was the amount of net profit Haulers would have realized during the two-year waiting period, the trial court erred excluding discovery or evidence of Haulers’ expenses or net profit. American Eagle II, 379 S.W.3d at 833. Therefore, the Supreme Court reversed the trial court’s calculation of damages and remanded the cause to the trial court for both parties to engage in discovery, present further evidence, and cross-examine witnesses with respect to the correct amount of damages Haulers were entitled, which brings us to the instant case. Id. at 833, 835.
B. The Instant Case
Upon remand from the Missouri Supreme Court, the trial court held a second bench trial on damages which took place on August 12, 2013. The County did not present any witnesses or other evidence. However, as in the first trial, Haulers presented the expert testimony of C. Eric Ficken. Ficken testified as his opinion of Haulers’ damages for lost profits, and the trial court allowed Haulers to incorporate Ficken’s testimony in the first trial as evidence in the second trial. Ficken’s opinion as to each Hauler’s lost profits for’ the two-year waiting period was based on information provided to him by Haulers, specifically Haulers’ databases of customers and Haulers’ unaudited profit and loss statements from 2006 through 2010. Once again, the County objected to Ficken’s testimony on the grounds that it lacked foundation and constituted inadmissible hearsay, and the trial court overruled the County’s objections.
Ficken testified that, due to the County’s failure to comply with the two-year waiting period set forth in. section 260.247, American Eagle suffered lost profits in the amount of approximately $1.49 million, Meridian suffered lost profits in the amount of approximately $771,200.00, and Waste Management suffered lost profits in the amount of'approximately $7.87 million. Ficken’s assessment of lost profits included damages for growth, rate increases, disposal fees, uncollectible accounts receivable, and layoff costs.
Subsequently, the trial court entered a judgment in favor of Haulers. The trial court found that Ficken was qualified as an expert witness to testify as to Haulers’ damages on the basis of his knowledge, experience, and education. The trial court rejected the portion of Ficken’s opinion which included damages for growth, rate increases, disposal fees, uncollectible accounts receivable, and layoff costs in his assessment of lost profits, finding that those categories of damages were too speculative or were otherwise inappropriate for the calculation of damages. However, the trial court found that Ficken otherwise appropriately calculated the lost profits of each Hauler by calculating lost revenue based upon the number of customers each Hauler lost in the two-year waiting period and then deducting the overhead expenses tied to the production of that revenue. The trial court also found that the facts and data relied on by Ficken were of a type reasonably relied upon by experts in *19the field and that the facts and data were otherwise reasonably reliable.
The trial court’s judgment awarded American Eagle $593,489.00 in damages, Meridian $384,486.00 in damages, and Waste Management $4,944,790.00 in damages. After the trial court entered its judgment, Haulers filed a motion to amend the judgment, which the trial court denied. The County appeals, and Haulers cross-appeal.
II. DISCUSSION
The County raises three points on appeal, claiming the trial court erred in awarding Haulers damages. Haulers present one point on cross-appeal, arguing the trial court’s calculation of damages was erroneous.
A. General Standard of Review
In reviewing a court-tried case, our Court will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Scheck Indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 717 (Mo.App. E.D.2014). We view the evidence and all reasonable inferences therefrom in the light most favorable to the judgment, and we disregard all contrary evidence and inferences. Id.
An appellate court presumes the trial court’s judgment is valid, and the burden is on the complaining party to demonstrate it is incorrect. Id. “The trial court’s findings as to damages are entitled great weight and this Court will not disturb these findings unless the damages awarded are clearly wrong, could not have been reasonably determined, or were excessive.” Id. at 731 (quotations omitted). Moreover, we defer to the trial court’s decision even if the evidence could support a different conclusion. King v. Bullard, 257 S.W.3d 175, 182 (Mo.App.E.D.2008). We also defer to the trial court’s credibility detenni-nations and factual findings. Scheck, 435 S.W.3d at 717; Federal Nat. Mortg. Ass’n. v. Wilson, 409 S.W.3d 490, 494 (Mo.App. E.D.2013). However, the trial court’s conclusions of law are reviewed de novo. Federal Nat. Mortg. Ass’n., 409 S.W.3d at 494.
B. The County’s Appeal
The County raises three points on appeal. In its first point, the County argues the trial court’s award of damages is not supported by substantial evidence. In its second point, the County argues that the trial court’s award of damages is against the weight of the evidence. Finally, in its third point, the County argues that the trial court erred in awarding Haulers damages because Haulers failed to state a claim for which relief could be granted.
1. The Trial Court’s Award of Damages is Supported by Substantial Evidence
In the County’s first point on appeal, it asserts the trial court’s award of damages for lost profits is not supported by substantial evidence. We disagree.
“In evaluating the sufficiency of evidence to sustain awards of damages for loss of business profits the appellate courts of this state have made stringent requirements, refusing to permit speculation as to probable or expected profits, and requiring a substantial basis for such awards.” Ameristar, 155 S.W.3d at 54 (quotations omitted). In order to receive an award of damages for lost profits, a plaintiff must set forth evidence which provides an adequate basis for estimating the lost profits with reasonable certainty. Id.
However, lost profits determinations do not operate as an exact science. *20Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 186 (Mo. banc 2009). Accordingly, although an estimate of prospective or anticipated net profits must be based upon more than mere speculation, uncertainty as to the amount of profits that would have been made by the plaintiff does not prevent a recovery. Ameristar, 155 S.W.3d at 54-55. While a plaintiff must prove the existence of damages within reasonable certainty, it is not always possible to establish the amount of damages within the same degree of certainty. Id. at 55. If the evidence in a case involving lost profits demonstrates that a party had a substantial pecuniary loss, but it is apparent that the loss is of a character which defies exact proof, a lesser degree of certainty as to the amount of the loss is required, leaving a greater degree of discretion to the finder of fact as to the amount of damages to be awarded. Id.
In this case, the trial court’s award of damages for lost profits was based on Ficken’s expert testimony. The County advances four main arguments as to why the trial court’s award of damages for lost profits is not supported by substantial evidence: (1) Haulers presented no proof of their past profits and expenses; (2) Haulers presented no proof that they had contracts with the customers they lost as a result of the County’s violation of section 260.247; (3) Ficken’s opinion as to Haulers’ damages for lost profits was based on facts and data he received from Haulers and of which he had no first-hand knowledge; and (4) Ficken’s methodology in calculating the County’s lost profits was flawed.
a. Whether Haulers Were Required to Prove Past Profits and Expenses
The County first argues that the trial court’s award of damages for lost profits is not supported by substantial evidence because Haulers presented no proof of their past profits and expenses. This argument is premised upon the County’s proposition that Haulers were required to show proof of past profits and expenses in order to recover damages for lost profits. As explained below, whether a plaintiff-business must prove past profits and expenses in order to recover damages for lost profits depends on the exact nature of the underlying cause of action. See BMK Corp. v. Clayton Corp., 226 S.W.3d 179, 195-96 (Mo.App.E.D.2007) (finding that proof of past profits and expenses is required in some cases but not in others).
Missouri Courts have held that proof of past profits and expenses is necessary to recover damages for lost profits where lost profits are being sought from the interruption of an established business and the underlying cause of action is based upon a tort or tortious interference claim. See, e.g., Coonis v. Rogers, 429 S.W.2d 709, 712-14 (Mo.1968) (interruption of established business and tort claim for interference with a contractual relationship); Midwest Coal, LLC ex rel. Stanton v. Cabanas, 378 S.W.3d 367, 368-73 (Mo.App.E.D.2012) (interruption of established business and tort claim for fraudulent misrepresentation); Gesellschaft Fur Geratebau v. GFG America Gas Detection, Ltd., 967 S.W.2d 144, 146-47 (Mo.App.E.D.1998) (interruption of established business and claim for tortious interference with business contracts and relationships). Appellate courts of this state have also held that proof of past profits and expenses is necessary to recover damages for lost profits in breach of contract actions where profits are not readily calculable and the plaintiff is not seeking lost profits on the contract itself. EnerJex Resources, Inc. v. Haughey, 453 S.W.3d 830, 836(Mo.App.W.D.2014); see also Orchard Container Corp. v. Orchard, 601 S.W.2d 299, 301, 302, 305-06 (Mo.App. *21E.D.1980) (proof of past profits and expenses necessary to recover lost profits where plaintiff-business sued a former officer for breach of a non-compete agreement and plaintiff sought profits lost as a result of the former officer working for a competing business).
In contrast, Missouri Courts have held it is not necessary for a plaintiff-business to prove past profits and expenses where the plaintiff seeks to recover damages for lost profits flowing directly from a breach of or interference with a specific contract or transaction. Midwest Coal, 378 S.W.3d at 371 (citing BMK Corp., 226 S.W.3d 179, Harvey v. Timber Resources, Inc., 37 S.W.3d 814 (Mo.App.E.D.2001), and Hanes v. Twin Gable Farm, Inc., 714 S.W.2d 667 (Mo.App.W.D.1986)). The specific contract at issue in BMK provided defendant would sell foam products to plaintiff, and defendant breached that contract by terminating it and selling its products directly to plaintiffs customers. 226 S.W.3d at 184-87. In Harvey, the specific contract at issue involved plaintiffs purchase and removal of defendant’s timber, and defendant breached the contract by telling plaintiff he could not finish removing the timber. 37 S.W.3d at 816, 817. And the specific transaction at issue in Hanes involved defendant’s sale of a bull to plaintiff, and defendant interfered with the transaction by fraudulently misrepresenting to plaintiff that the bull was capable of breeding when in fact he was sterile. 714 S.W.2d at 668. In those three cases, “[the] claims for lost profits involved known commodities with demonstrable market prices,” and proof of past profits and expenses was not required because plaintiffs clearly established the fact of damages and plaintiffs could estimate the amount of damages with reasonable certainty. Midivest Coal, 378 S.W.3d at 371, 372 (describing the holdings in BMK, 226 S.W.3d at 195-96, Harvey, 37 S.W.3d at 818, and Hanes, 714 S.W.2d at 669-70).
In this case, we consider an issue of first impression: whether proof of past profits and expenses is required where, as here, the underlying cause of action seeks damages for lost profits from a defendant based upon an implied right of action for violating a statute. Based on the absence of such a requirement in American Eagle II, as well as the similarities between Haulers and the plaintiffs in BMK, Harvey, and Hanes, we hold that it was not necessary for Haulers to prove its past profits and expenses in order to recover damages for lost profits from the County based upon an implied right of action for the County’s violation of section 260.247.
In American Eagle II, the Supreme Court gave specific directions to the trial court in calculating the appropriate measure of damages for Haulers’ lost profits upon remand. 379 S.W.3d at 831-34. The Supreme Court found that “[the] County must pay Haulers that to which they were entitled: the amount they ‘would have received’ under their contract during the two-year waiting period.” Id. at 832 (quoting section 260.247.3). The Court also found Haulers were specifically entitled to “their projected receipts from their contract price [for their services], minus any business and operational costs Haulers would have incurred while providing [trash] collection services, considering all the circumstances.” Id. at 833. In other words, the Supreme Court provided that Haulers were entitled to the net profit they would have received during the two-year waiting period, i.e., the “expected revenue, set off by expenses, costs, and other circumstances.” Id. at 833, 834. Noticeably absent from the Supreme Court’s decision in American Eagle II is any requirement that Haulers prove its past profits *22and expenses in order to recover damages for lost profits.
In addition, although Haulers’ claim of damages for lost profits arguably arises out of the interruption of established businesses, it does not does not arise out of a tort claim, a tortious interference claim, or a breach of contract claim. Instead, Haulers’ claim for lost profits arises directly out of the County’s failure to comply with the two-year waiting period set forth in section 260.247. Like the plaintiffs in BMK, Harvey, and Hanés, who sought to recover damages for lost profits flowing directly from a breach of or interference with a specific contract or transaction, Haulers seek to recover damages for lost profits flowing directly from the County’s violation of a specific statute, section 260.247. Additionally, like the plaintiffs in BMK, Haney, and Hanes, whose claims for lost profits involved known commodities with demonstrable market prices, Haulers’ claim involves a known service (trash collection) with a demonstrable market price (Ficken testified that his calculation of lost profits was based upon, inter alia, the monthly rate paid by each of Haulers’ lost customers). Moreover, as discussed below in Section II.B.l.e., like the plaintiffs in BMK, Haney, and Hanes, Haulers established the fact of damages and an estimate of the amount of damages with reasonable certainty.
Based on the foregoing, Haulers were not required to prove past profits and expenses.
b. Whether Haulers Were Required to Prove They had Contracts with Their Lost Customers
Next, the County argues that the trial court’s award of damages for lost profits is not supported by substantial evidence because Haulers presented no proof that they had contracts with the customers they lost as a result of the County’s violation of section 260.247, in that there were no contracts introduced into evidence and Ficken testified that Haulers’ customers did not have contracts for trash collection services but simply prepaid for services on a quarterly basis. Ficken’s calculation of lost profits was based on, inter alia, the number of customers lost to each Hauler as a result of the County’s trash program and each lost customer’s monthly rate.
The County asserts that Haulers were required to prove they had contracts with the customers they lost order to recover damages pursuant to language set forth in American Eagle II, where the Supreme Court stated that Haulers were entitled to damages based upon Haulers’ “contract” and “contract price.” See id. at 832, 833. The County interprets the terms “contract” and “contract price” as requiring Haulers to have had two-year, long-term contracts with their customers in order to recover damages. We disagree.
It is important to examine the context of the Missouri Supreme Court’s language and use of the terms “contract” and “contract price” in its determination of the appropriate measurement of Haulers’ damages. In its analysis, the Supreme Court first examined Haulers’ rights and obligations under section 260.247. Id. at 831-33. In interpreting section 260.247, the Court found that Haulers were entitled to notice by certified mail of the County’s intent to provide trash collection services and the County was prohibited from commencing trash collection for two years, unless it hired Haulers. Id. at 832. The Court also found that, “if [the] County chose to contract with Haulers during the two-year waiting period, [the] County cannot contract with Haulers for a lower price than they otherwise would have received in that two-year time frame.” Id. (emphasis added). The Supreme Court concluded *23that subsections 1, 2, and 3 of section 260.247, when read together, entitled Haulers to continue providing trash collection services for two years. Id. The Court further provided that “[the] County either could have allowed Haulers to provide services directly to clients for that [two-year] period or could have contracted with Haulers to provide the same services through the County for that period — but only if [the] County’s contract with Haulers was for the same amount.” Id. (emphasis added) (emphasis omitted).
Only after providing that interpretation of section 260.247 did the Supreme Court set forth the language relied on by the County, specifically that (1) “[the] County must pay Haulers that to which they were entitled: the amount they would have received under their contract during the two-year waiting period”; and (2) Haulers are entitled to “their projected receipts from their contract price [for their services], minus any business and operational costs Haulers would have incurred while providing [trash] collection services, considering all the circumstances.” Id. at 832, 833 (quotations omitted) (emphasis added). In light of the context of this language which is set out above, we find that the Supreme Court’s use of the terms “contract” and “contract price” refer to the amount Haulers would have received from a contract with the County during the two-year waiting period. See id. at 832. Such a contract would had to have been “for the same amount” that Haulers would have charged to “provide services directly to clients for that period.” Id. (emphasis omitted). At no point does the Missouri Supreme Court set forth an expectation or requirement that Haulers must have had long-term contracts, or any other contracts, with their customers in order to receive the protection of section 260.247. Accordingly, we hold that' Haulers were entitled to damages for lost profits in the amount they would have charged to provide trash collection services directly to customers during the two-year waiting period, and Haulers did not have to prove that they had contracts with the customers they lost as a result of the County’s violation of section 260.247 in order to recover damages. Therefore, it was sufficient for Ficken’s calculation of Haulers’ lost profits to be based upon, inter alia, the number of customers lost to each Hauler as a result of the County’s trash program and each lost customer’s monthly rate.
c. Challenges to Ficken’s Expert Testimony
We now turn to the County’s argument that the trial court’s award of damages for lost profits is not supported by substantial evidence because Ficken’s opinion as to Haulers’ damages for lost profits was based on facts and data he received from Haulers and of which he had no first-hand knowledge.
“[The] admission of expert evidence requires the trial court to apply the same standards for relevance and admissibility that apply to other types of evidence. The trial court’s navigation of such waters is entitled to substantial deference regardless of the type of evidence being offered.” Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 n.2 (Mo. banc 2014). A trial court has considerable discretion in the admission of evidence, and its decision will not be reversed unless there is a clear abuse of discretion. Id. at 451. An abuse of discretion occurs when the trial court’s decision “is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” Id. (quotations omitted). No abuse of discretion occurs if reasonable persons could *24differ as to the propriety of the trial court’s decision. Id.
In this case, Ficken formulated an opinion as to each Hauler’s lost profits for the two-year waiting period by relying on information provided to him by Haulers, specifically Haulers’ databases of customers and Haulers’ unaudited profit and loss statements from 2006 through 2010. In order to determine lost revenue, Ficken used raw data from each Hauler’s database of customers that were lost as a result of the County’s trash program. This data allowed Ficken to see each customer’s name, address, the type of services provided by Haulers, his or her monthly rate, and the start and end dates of service. This information was provided to Ficken by Haulers via a “data dump”:
Counsel: So is your understanding then that the information you have, the data you collected is reflective of the actual databases used by the haulers?
Ficken: Oh, that’s correct. It’s a live system. We took a mirror image of the database of those customers which reflect the most current information from them. So that is the source document we relied on. It’s the actual live data.
Ficken verified the information provided by Haulers by comparing the customers’ addresses to a mapping program to confirm that the addresses were actually located within the identified districts subject to the County’s trash program. Once the lost customers’ properties had been confirmed, Ficken was able to identify the revenue associated with the lost services for each property based upon each lost customer’s monthly rate, and he multiplied that amount by twenty-four months to account for the two-year waiting period.
Ficken then determined Haulers’ expenses associated with the generation of lost revenue, what he referred to as “variable costs,”4 by reviewing Haulers’ unaudited profit and loss statements from 2006 through 2010. Ficken explained that “[determining variable costs is a matter of obtaining profit and loss statements and reviewing the individual line item expenses to understand the nature of the expense, how it’s affected by daily operations, its ties to revenue, and just overall professional judgment and experience.” After Ficken calculated each Hauler’s variable costs, he deducted those expenses from the lost revenue, and arrived at his calculation for lost business profits for each Hauler. Ficken testified that reducing revenue by variable costs was a methodology that “experts in [his] field would normally use to calculate lost business profits.”
Haulers did not present any contrary evidence or witnesses or another expert’s opinion as to how lost profits should be calculated. Ficken testified that he had “[no] reason to doubt the accuracy of the information” he was given by Haulers and that he did not “find any reason in [his] opinion, that the information provided to [him] was unreliable.” There was no evidence or expert testimony offered by Haulers to controvert this portion of Ficken’s testimony. Additionally, Ficken testified on numerous occasions that in forming his opinion as to the amount of Haulers’ *25lost profits, he used information reasonably relied on by experts in his field. Again, there was no evidence or expert testimony offered by Haulers to controvert this portion of Ficken’s testimony.
Section 490.065 RSMo 20005 governs the admission of expert testimony. Doe v. McFarlane, 207 S.W.3d 52, 62 (Mo.App.E.D.2006). The statute provides in relevant part:
1. In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expei’t by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
2. Testimony by such an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
Section 490.065.
In this case, the County contends that Ficken’s opinion is not reasonably reliable under section 490.065.3. The County asserts that Ficken’s opinion as to Haulers’ damages for lost profits is not reasonably reliable because it was based on facts and data he received from Haulers (Haulers’ databases of customers and Haulers’ unaudited profit and loss statements) which constituted hearsay and of which Ficken had no first-hand knowledge.
Section 490.065.3 expressly provides that “[t]he facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him ... before the hearing.” (emphasis added). Consequently, “[mjerely because an expert relied on information and the opinions of others does not automatically disqualify his testimony,” and “[a]n expert may base his opinions on facts and data derived from sources outside of court and other than by his own perceptions.” Freight House Lofts Condo Ass’n. v. VSI Meter Services, Inc., 402 S.W.3d 586, 596 (Mo.App.W.D.2013) (quotations omitted). In fact, in most cases, expert witness opinion testimony is based on facts on which the expert did not personally observe and of which the expert did not have any personal knowledge. CADCO, Inc. v. Fleetwood Enterprises, Inc., 220 S.W.3d 426, 434 (Mo.App.E.D.2007).
The County argues that because Ficken’s opinion was based on facts and data he received from Haulers and of which he had no first-hand knowledge, the County was unable to challenge the veracity and credibility of the sources and bases of Ficken’s opinion, and therefore, his opinion lacked foundation and was inadmissible. A similar argument was rejected in Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133, 151-52 (Mo.App.W.D.1992) (overruled on other grounds).
In Wulfmg, the appellant argued that the expert’s opinion lacked foundation and was inadmissible because the facts and data underlying his opinion included information supplied by sources not available for cross-examination and for whose relia*26bility the expert was “unable to vouch.” Id. at 144, 151. The Western District disagreed, holding that since the enactment of section 490.065.3,
where expert opinion rests in part on factual information not in evidence, the standard objection such as that there is no opportunity to test the credibility of its sources at the trial or to cross-examine the witness as to the extrajudicial facts no longer avails, either as to the reasonableness of the foundation for the opinion or to the opinion itself.
Id. at 151-52. Instead, the relevant issues to be decided under section 490.065.3 are “whether the hearsay as tested by professional acceptance standards in the field is reasonably reliable, and whether it is otherwise reasonably reliable as a matter of general evidentiary principle.” Id. at 152.
We find that the Western District’s analysis in Wulfing is instructive, especially in light of our Court’s holding in CADCO that the facts and data on which an expert relies in forming his opinion need not be independently admissible if, pursuant to the requirements of section 490.065.3, (1) the facts and data are reasonably relied upon by experts in the field; and (2) the facts and data are otherwise reasonably reliable. CADCO, 220 S.W.3d at 434; section 490.065.3. “[I]n determining whether the facts and data are reasonably relied upon by experts in the field, the trial court is generally expected to defer to the expert’s assessment of which data is reasonably reliable.” CADCO, 220 S.W.3d at 434. In ascertaining whether the facts and data are otherwise reasonably reliable, the trial court must look beyond the expert’s testimony and ensure that the sources relied upon by the expert in forming his opinion are not so slight as to be fundamentally unsupported. Id.; see Doe, 207 S.W.3d at 62 (“[o]nly in cases where the sources relied on by the expert are so slight as to be fundamentally unsupported, should the opinion be excluded because testimony with that little weight would not assist the [finder of fact]”) (quotations omitted).
In this case, Ficken repeatedly testified that in forming his opinion as to Haulers’ lost profits, he used a methodology and information which was reasonably relied on by experts in his field. The County put on no evidence to contradict Ficken’s assertions. The trial court deferred to Ficken’s testimony and found the facts and data upon which he relied were of a type reasonably relied upon by experts in the field, which the court was expected and entitled to do. CADCO, 220 S.W.3d at 434; see Doe, 207 S.W.3d at 63 (finding that an expert’s assessment as to reliability is entitled to deference in the situation where the defendant puts on no contradictory evidence). Therefore, the trial court did not err in finding that the facts and data relied upon by Ficken were reasonably relied upon by experts in his field.
The trial court also found that the facts and data upon which Ficken relied (Haulers’ databases of customers and Haulers’ unaudited profit and loss statements) were otherwise reasonably reliable, i.e., that the sources relied upon by Ficken in forming his opinion were not so slight as to be fundamentally unsupported. We cannot hold the trial court erred in making this finding for two reasons. First, the County did not present any evidence or expert testimony which could have challenged the reliability of the sources of Ficken’s opinion. The County had the opportunity to introduce evidence or expert testimony which might have convinced the trial court that Ficken’s opinion was wrong or based upon unreliable information, but the County failed to do so. See Massachusetts General Life Ins. Co. v. Sellers, 835 S.W.2d 475, 477, 479-80 (Mo.App.S.D.1992) *27(finding expert could rely on out-of-court records in formulating his opinion where defendant did not introduce other records or evidence which might have convinced the trial court that the expert’s opinion waswrong).
Second, any weakness in the factual underpinnings of Ficken’s testimony and any question as to the sources and basis of his opinion did not affect the admissibility of Fieken’s testimony but went to his credibility and the weight to be given to his testimony. Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226, 246 (Mo. banc 2001) (abrogated on other grounds); Freight House, 402 S.W.3d at 596; Doe, 207 S.W.3d at 62. The County could have engaged in discovery, obtained the facts and data upon which Ficken relied in forming his opinion, and then subjected Ficken’s opinion relating to those facts and data to cross-examination and impeachment. However, the County failed to do so. In this case, the trial court relied on Fieken’s testimony in calculating Haulers’ damages for lost profits, implicitly finding that Ficken was credible and that his opinion was entitled to great weight. See In re Marriage of Mapes, 848 S.W.2d 634, 638 (Mo.App.S.D.1993) (the trial court’s judgment can reveal the court’s implicit credibility determinations). Our Court defers to those findings. See Exchange Bank of Missouri v. Gerlt, 367 S.W.3d 132, 136 (Mo.App.W.D.2012) (finding an appellate court defers to the trial court’s credibility determinations, that the trial court is “free to believe or disbelieve all or part of the witnesses’ testimony,” and that the trial court is free to assess the weight to be given to expert testimony) (quotations omitted); Doe, 207 S.W.3d at 62 (the appropriate weight to be given to expert testimony is properly left to the finder of fact).
Therefore, it was permissible for Ficken’s opinion as to Haulers’ damages for lost profits to be based on Haulers’ databases of customers and Haulers’ profit and loss statements, i.e., facts and data he received from Haulers and of which he had no first-hand knowledge. See Freight House, 402 S.W.3d at 596-97 (finding the trial court did not err in admitting expert opinion testimony which was not based upon his first-hand knowledge); CADCO, 220 S.W.3d at 431, 433-35 (under plain error review, finding expert testimony about plaintiff-company’s lost profits had a sufficiently reliable evidentiary foundation where expert based his opinion on, inter alia, data collected from interviews with the company president and the company’s financial statements). The trial court did not abuse its discretion in admitting Ficken’s expert testimony.
d. Alleged Flaws in Ficken’s Methodology
Finally, we address the County’s argument that the trial court’s award of damages for lost profits is not supported by substantial evidence because Ficken’s methodology in calculating Haulers’ damages for lost profits was flawed.
The County asserts that Ficken’s calculation of Haulers’ damages for lost profits is flawed because, (1) he included revenues Haulers would have received from customers who elected to halt trash collection services before the County’s program was put into place; and (2) he reviewed Haulers’ unaudited profit and loss statements instead of Haulers’ income tax returns. The County contested those two portions of Ficken’s methodology relating to factual issues through cross-examination. See Pearson v. Roster, 367 S.W.3d 36, 44 (Mo. banc 2012) (a party may contest a factual issue by, inter alia, cross-examining a witness). Once those issues were contested, *28the trial court was free to believe or disbelieve any, all, or none of Ficken’s testimony, and “the appellate court’s role is not to re-evaluate [the] testimony through its own perspective.” Id. (quotations omitted).
As previously indicated in Section II. B.l.c, Ficken explained his methodology and the rationale for which it was based, and the trial court accepted his methodology,6 which it was free to do. See Green v. Beagle-Chilcutt Painting Co., Inc., 726 5.W.2d 344, 354-55 (Mo.App.W.D.1987) (rejecting challenge to expert’s methodology for calculating lost profits where expert explained his methodology and the rationale upon which it was based, finding that methodology was not inadmissible, but rather, was for the finder of fact to accept or reject). We defer to the trial court on factual issues because it is in the superior position to judge the credibility, sincerity, and character of the witnesses, as well as other trial intangibles which may not be completely revealed by the record on appeal. Pearson, 367 S.W.3d at 44. Additionally, the County had the opportunity to introduce evidence or expert. testimony which might have convinced the trial court that Ficken’s opinion was wrong, but the County failed to do so. See Massachusetts General, 835 S.W.2d at 479-80 (finding trial court did not err in admitting expert opinion where defendants did not introduce other records or evidence which might have convinced the trial court that expert’s opinion was wrong). Therefore, the County’s argument, that the trial court’s award of damages for lost profits is not supported by substantial evidence because Ficken’s methodology in calculating the County’s damages for lost profits was flawed, has no merit.
e. Conclusion as to the County’s First Point on Appeal
Based on the foregoing, the County’s arguments as to why the trial court’s award of damages for lost profits is not supported by substantial evidence lack merit. Furthermore, we hold that the trial court’s judgment awarding Haulers damages is supported by substantial evidence because Haulers established the fact of damages and the amount of damages with reasonable certainty. See Ameristar, 155 S.W.3d at 54 (in order to receive an award of damages for lost profits, a plaintiff must set forth evidence which provides an adequate basis for estimating the lost profits with reasonable certainty).
We find that Haulers established the fact of damages within reasonable certainty because, (1) in American Eagle II, 379 S.W.3d at 831, the Supreme Court held the County was liable to Haulers for violating section 260.247; (2) it is undisputed that Haulers lost customers as a result of the County’s implementation of its trash program; and (3) as we held in Section II. B.l.b, Haulers were entitled to damages for lost profits in the amount they would have charged to provide trash collection services directly to customers during the two-year waiting period.
In order to assess whether Haulers established the amount of damages within reasonable certainty, we must turn to Ficken’s testimony, noting that it is not *29fatal to Haulers’ damages claim if their loss defies exact proof. See Ameristar, 155 S.W.3d at 55 (stating that if the evidence in a case involving lost profits demonstrates that a party had a substantial pecuniary loss, but it is apparent that the loss is of a character which defies exact proof, a lesser degree of certainty as to the amount of the loss is required, leaving a greater degree of discretion to the finder of fact as to the amount of damages to be awarded). As we previously indicated, Ficken calculated Haulers lost profits by calculating lost revenue based upon the number of customers each Hauler lost in the two-year waiting period and then deducting the overhead expenses tied to the production of that revenue. In making that calculation, Ficken used raw data from each Hauler’s database of customers that were lost as a result of the County’s trash program, which he was permitted to do. This raw data allowed Ficken to see each customer’s name, address, the type of services provided by Haulers, his or her monthly rate, and the start and end dates of service. Ficken verified the information provided by Haulers by comparing the customers’ addresses to a mapping program to confirm that the addresses were actually located within the identified districts subject to the County’s trash program. Once the lost customers’ properties had been confirmed, Ficken was able to identify the revenue associated with the lost services for each property based upon the each lost customer’s monthly rate, and he multiplied that amount by twenty-four months to account for the two-year waiting period.
Ficken then determined Haulers’ expenses associated with the generation of lost revenue, what he referred to as “variable costs,”7 by reviewing Haulers’ unaudited profit and loss statements from 2006 through 2010, which he was permitted to do. Ficken explained that “[djetermining variable costs is a matter of obtaining profit and loss statements and reviewing the individual line item expenses to understand the nature of the expense, how it’s affected by daily operations, its ties to revenue, and just overall professional judgment and experience.” After Ficken calculated each Hauler’s variable costs, he deducted those expenses from the lost revenue, and arrived at his calculation for lost business profits for each Hauler. Ficken testified that reducing revenue by variable costs was a methodology that “experts in [his] field would normally use to calculate lost business profits.” Ficken’s assessment of lost profits also included damages for growth, rate increases, disposal fees, uncollectible accounts receivable, and layoff costs.
The trial court did not accept Ficken’s entire opinion as to damages, in that, as discussed below in Section II.C, the court rejected the portion of Ficken’s opinion which included damages for growth, rate increases, disposal fees, uncollectible accounts receivable, and layoff costs in his assessment of lost profits. However, the trial court otherwise accepted Ficken’s opinion,'which it was entitled to do, finding *30that Ficken appropriately calculated the lost profits of each Hauler by calculating lost revenue based upon the number of customers each Hauler lost in the two-year waiting period and then deducting the overhead expenses tied to the production of that revenue. We find that Haulers, through Ficken’s testimony, established their amount of damages for lost profits with reasonable certainty.
Because Haulers established the fact of damages and the amount of damages with reasonable certainty, the trial court’s judgment awarding Haulers damages is supported by substantial evidence. See id. at 54. The County’s first point on appeal is-denied.
2. The Trial Court’s Award of Damages is Not Against the Weight of the Evidence
In the County’s second point on appeal, it asserts the trial court’s award of damages is against the weight of the evidence. Our Court will only set aside a judgment as “against the weight of the evidence” if we have a firm belief that the judgment is wrong. Scheck, 435 S.W.3d at 717 (quotations omitted).
The argument portion of the County’s second point on appeal, which is less than two pages long, merely incorporates the County’s arguments set forth in their first point on appeal — whether Haulers were required to prove past profits and expenses, whether Haulers were required to prove they had contracts with their lost customers, challenges to Ficken’s expert testimony, and alleged flaws in Ficken’s methodology. In Section II.B.l., we found those arguments have no merit. Therefore, we do not have a firm belief that the trial court’s judgment is wrong, and the trial court’s award of damages is not against the weight of the evidence. The County’s second point on appeal is denied.
3. The County’s Argument that Haulers Failed to State a Claim for Which Relief Could be Granted is Barred by The Law of the Case
In the County’s third and final point on appeal, it asserts the trial court erred in awarding Haulers damages because Haulers failed to state a claim for which relief could be granted “in that section 260.247 ... is inapplicable to [the] County due to [the] County’s superior constitutional grant of legislative power with respect to the municipal function of [trash] collection.”
The County previously raised this argument in its motion to dismiss Haulers’ declaratory judgment claim, and the argument was addressed and rejected by our Court in American Eagle I. 272 S.W.3d at 341-44. We held that section 260.247 applied to the County, despite its charter status, because it involves the state-wide public policy to “provide an entity engaged in [trash] collecting with sufficient notice to make necessary business adjustments prior to having its services terminated in a given area.” Id. at 341—42 (quotations omitted). Accordingly, we also held the County must comply with the two-year notice provision set forth in section 260.247 if the County chose to enter the business of trash collection and take it out of the hands of existing private collectors. Id. at 343.
Subsequent to the decision in American Eagle I, the County again argued that section 260.247 does not apply to the County because its status as a charter county allows it to regulate municipal functions including trash collection, this time to the Missouri Supreme Court in American Eagle II. 379 S.W.3d at 823, 824. The Missouri Supreme Court declined to consider the merits of the County’s argument and instead found that it was barred by the “law of the case.” Id. at 824-25.
*31As explained by the Supreme Court, a previous holding by an appellate court on an issue constitutes the law of the case, precluding re-litigation of the issue in a subsequent appeal. Id. at 825. “The doctrine of law of the case is necessary to ensure uniformity of decisions, protect the parties’ expectations, and promote judicial economy.” Id. In addition, when there is no demonstrable error in an appellate court’s decision, the law of the case is particularly appropriate. Id.
In determining that the County’s claim was barred by the law of the case, the Supreme Court quoted this Court’s decision in American Eagle I, found that the “[t]he court of appeals previously considered th[e] argument on the merits and discussed the proper interpretation of section 260.247 at length before rejecting [the] County’s position,” and found there was “no demonstrable error in the first appellate decision.” Id. at 824-25. Accordingly, the Supreme Court held that “it is the law of the case that [the] County was required to adhere to section 260.247’s requirements” and “[the] County cannot have multiple bites at the apple in attempting to determine this issue favorably.” Id. at 825.
Following the decision of the Supreme Court in American Eagle II, we decline to consider the merits of the County’s claim that section 260.247 does not apply to the County and find that it is the law of the case that the County is required to adhere to the requirements of section 260.247. See Gneshaber v. Fitch, 409 S.W.3d 435, 443 (Mo.App.E.D.2013) (finding “we are bound by the Missouri Supreme Court’s decisions”). The County’s third point on appeal is denied.
C. Haulers’ Cross-Appeal
Haulers present one point on cross-appeal, asserting the trial court’s calculation of damages was erroneous. Haulers argue that the trial court erred in rejecting the portion of Ficken’s opinion which included damages for growth, rate increases, disposal fees, uncollectible accounts receivable, and layoff costs in his assessment of Haulers’ lost profits. As an alternative argument, Haulers contend that that assuming the trial court correctly excluded growth and rate increases in its calculation of damages, the trial court erred in deducting Haulers’ saved expenses in those categories.
Determinations of witness credibility and the weight to be given to expert testimony are properly left to the finder of fact, and our Court defers to the trial court’s determinations regarding those issues in a court-tried case. See Exchange Bank, 367 S.W.3d at 136 (finding an appellate court defers to the trial court’s credibility determinations, that the trial court is “free to believe or disbelieve all or part of the witnesses’ testimony,” and that the trial court is free to assess the weight to be given to expert testimony) (quotations omitted); Doe, 207 S.W.3d at 62 (the appropriate weight to be given to expert testimony is properly left to the finder of fact).
1. The Trial Court Did Not Err in Finding Haulers’ Recovery Should Not Include Damages for Growth, Rate Increases, Disposal Fees, Uncollectible Accounts Receivable, and Layoff Costs
We first turn to the Haulers’ argument that the trial court erred in rejecting the portion of Ficken’s opinion which included damages for growth, rate increases, disposal fees, uncollectible accounts receivable, and layoff costs in his assessment of Haulers’ lost profits. The trial court excluded those categories of damages on the grounds they were too *32speculative or were otherwise inappropriate for the calculation of damages.
When factual issues are contested, a trial court is free to believe or disbelieve any, all, or none of the testimony presented, and “the appellate court’s role is not to reevaluate [the] testimony through its own perspective.” Pearson, 367 S.W.3d at 44 (quotations omitted). We defer to the trial court on factual issues because it is in the superior position to judge the credibility, sincerity, and character of the witnesses, as well as other trial intangibles which may not be completely revealed by the record on appeal. Id.
In this case, Ficken included growth in his calculation of each Hauler’s damages and rate increases in his calculation of damages for Meridian and Waste Management. Ficken also included disposal fees, uncollectible accounts receivable, and layoff costs in his calculation of Waste Management’s damages.
During cross-examination of Ficken, the County contested the inclusion of growth, rate increases, disposal fees, uncollectible accounts receivable, and layoff costs in his calculation of Haulers’ damages. See id. (a party may contest a factual issue by, inter alia, cross-examining a witness). Ficken admitted on cross-examination that his inclusion of damages for growth “represents revenue that ... [Haulers] lost from customers they never had.... ” Ficken also stated on cross-examination that he used rate increases in his calculation of Meridian’s damages even though the company president refused to provide Ficken with the backup information he requested. Additionally, Ficken testified that the inclusion of disposal fees in his calculation of Waste Management’s damages was for fees American Eagle was no longer paying to dump trash at Waste Management’s landfill. Ficken admitted on cross-examination that this “element of damages is caused by a loss of business from American Eagle” and “[i]t does not come from losing customers of Waste Management.” Regarding the inclusion of damages for uncollectible accounts receivable, Ficken admitted on cross-examination that nothing prevented Waste Management from filing suit or taking other action to recover amounts for accounts receivable which were uncollectible from customers. Finally, Ficken testified during cross-examination that although he included layoff costs in his calculation of Waste Management’s damages, he was not aware of any contractual requirements providing Waste Management had to pay severance payments to its laid off employees.
Once those portions of Ficken’s methodology relating to factual issues were contested, the trial court was free to find that Ficken’s testimony regarding damages for growth, rate increases, disposal fees, un-collectible accounts receivable, and layoff costs lacked credibility and was, instead, speculative and deserving of little or no weight on the topic of Haulers’ damages for lost profits. Id.; See Exchange Bank, 367 S.W.3d at 135-36 (finding that “the trial court was free to find that [expert] testimony lacked credibility and was, instead, speculative and deserving of little or no weight on [a] topic”). Because we defer to the trial court’s findings as to credibility and weight, and because the trial court’s calculation of damages was within the range of the evidence presented, we find the trial court did not err in finding Haulers’ recovery for lost profit damages should not include damages for growth, rate increases, disposal fees, uncollectible accounts receivable, and layoff costs. See Brittany Sobery Family Ltd. Partnership v. Coinmach Corp., 392 S.W.3d 46, 52 (Mo.App.E.D.2013) (stating that “[w]hen the trial court calculates an amount that is within the range of evidence, an appellate *33court generally will decline to find the determination erroneous or to weigh the evidence”) (quotations omitted); Exchange Bank, 367 S.W.3d at 136 (finding trial court did not err in limiting plaintiffs recovery where trial court found expert’s testimony was speculative and deserving of little or no weight).
2. The Trial Court Did Not Err in Deducting Haulers’ Saved Expenses in the Categories of Growth and Rate Increases
Haulers also argue that assuming the trial court was correct in excluding growth and rate increases in its calculation of damages, the trial court erred in “de-duet[ing] Haulers’ saved expenses in those categories, and thereby shorted Haulers’ damages award in the amount of $2,239,-672[.00].” In support of this argument, Haulers only cite to an affidavit prepared by Ficken after the trial court entered its judgment in the instant case. Ficken’s affidavit was submitted to the trial court along with Haulers’ motion to amend the trial court’s judgment, which the trial court denied.
.Rule 78.05 8 authorizes affidavits to be submitted in connection with after-trial motions where the issue raised in the after-trial motion requires resolution of factual matters not based on facts in the record. Rule 78.05; Powell v. State Farm Mut. Auto. Ins. Co., 173 S.W.3d 685, 689 (Mo.App.W.D.2005). A trial court has the discretion to disbelieve an affidavit submitted pursuant to Rule 78.05 even when it is unchallenged, and we defer to the trial court’s credibility findings. Manning v. Manning, 292 S.W.3d 459, 466-67 (Mo.App.E.D.2009).
In this case, the trial court denied Haulers’ motion to amend the judgment, implicitly finding that it did not believe Ficken’s affidavit and that his opinion set. forth in the affidavit was entitled to no weight. See In re Marriage of Mopes, 848 S.W.2d at 638 (the trial court’s decision can reveal the court’s implicit credibility determinations). It was within the trial court’s discretion to disbelieve Ficken’s affidavit even though it was unchallenged, and we defer to the trial court’s credibility findings in this regard. Manning, 292 S.W.3d at 466-67. Accordingly, the trial court did not err in deducting Haulers’ saved expenses in the categories of growth and rate increases.
3. Conclusion as to Haulers’ Cross-Appeal
Haulers have not demonstrated that the damages awarded are clearly wrong, could not have been reasonably determined, and of course Haulers have not argued that the damages were excessive. Therefore, we find that the trial court did not err in its calculation of Haulers’ damages. Scheck, 435 S.W.3d at 731 (“[t]he trial court’s findings as to damages are entitled great weight and this Court will not disturb these findings unless the damages awarded are clearly wrong, could not have been reasonably determined, or were excessive”) (quotations omitted). Haulers’ sole point on cross-appeal is denied.
III. CONCLUSION
The judgment awarding American Eagle $593,489.00 in damages, awarding Meridian $384,486.00 in, damages, and awarding Waste Management $4,944,790.00 in damages is affirmed.
Patricia L. Cohen, P.J., and Roy L. Richter, J., concur.
. All further statutory references to section 260.247 are to RSMo Supp.2008, which incorporates legislative amendments through 2007.
. The County directly appealed the trial court's judgment to the Missouri Supreme Court, by filing a notice of appeal alleging the case involved the validity of a statute or a provision of the Missouri Constitution.
. The Supreme Court held the two-year waiting period began April 8, 2008 for trash collection district three and on June 10 and 17, 2008 for the other trash collection districts, and the period ended two years after those respective dates. American Eagle II, 379 S.W.3d at 834. All further references to the "two-year waiting period” will refer to this time frame.
. Ficken explained that "variable costs” is another term for "overhead expenses tied to the production of revenue,” which was the term used by the Supreme Court in American Eagle II. See American Eagle II, 379 S.W.3d at 833 ("[i]n general, in calculating lost profits damages, lost revenue is estimated, and overhead expenses tied to the production of that income are deducted from the estimated lost revenue”) (quoting Ameristar, 155 S.W.3d at 55) (emphasis added).
. All further references to section 490.065 are to RSMo 2000.
. The trial court found that Ficken appropriately calculated the lost profits of each Hauler by calculating lost revenue based upon the number of customers each Hauler lost in the two-year waiting period and then deducting the overhead expenses tied to the production of that revenue. However, as discussed below in Section II.C., the trial court rejected the portion of Ficken's opinion which included damages for growth, rate increases, disposal fees, uncollectible accounts receivable, and layoff costs in his assessment of Haulers' lost profits.
. As previously stated in footnote 4 of this opinion, Ficken explained that "variable costs” is another term for "overhead expenses tied to the production of revenue,” which was the term used by the Supreme Court in American Eagle II. See American Eagle II, 379 S.W.3d at 833 ("[i]n general, in calculating lost profits damages, lost revenue is estimated, and overhead expenses tied to the production of that income are deducted from the estimated lost revenue”) (quoting Ameristar, 155 S.W.3d at 55) (emphasis added). In addition, Ficken testified that his determination of "variable costs” included Haulers' expenses for payroll taxes, fuel expenses, uniforms, postage, office supplies, and other related expenses identified in Schedule C of Haulers’ Exhibit No. 7.
. All references to Rules are to Missouri Supreme Court Rules (2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284035/ | JUSTICE GREEN
delivered the opinion of the Court.
In this ease of first impression, we must interpret Chapter 95 of the Texas Civil Practice and Remedies Code, which relates to limitations on a property owner’s liability for injury, death, or property damage to an independent contractor. See Tex. Civ. Prac. & Rem. Code ch. 95. The underlying legal dispute began when a pipeline insulation worker contracted mesothelioma and sued a chemical company alleging that he was exposed to asbestos-containing products while working as an independent contractor at the chemical company’s facility. The sole issue in this appeal is whether Chapter 95 applies to an independent contractor’s negligence claims against a property owner when the claims are based on injuries arising out of the property owner’s negligent activities and not the independent contractor’s own work. The court of appeals held that “[t]he plain meaning of the text of Chapter 95 does not preclude its applicability where a claim is based upon negligent actions of the premises owner.” 395 S.W.3d 335, 347 (Tex.App.-Dallas 2013). Applying the plain meaning of the statute, we hold that Chapter 95 applies to all independent contractor claims for damages caused by a property owner’s negligence when the requirements *44of section 95.002(2) are satisfied. We affirm the court of appeals’ judgment.
I. Factual and Procedural Background
The Dow Chemical Company contracted with Win-Way Industries to install insulation on a system of pipelines at Dow’s facility in Freeport, Texas. Robert Henderson was a Win-Way employee, and he assisted with the insulation work at Dow’s Freeport facility from 1967 to 1968. Dow’s Freeport facility contained thousands of pipes in a pipeline system that ran throughout the facility. The pipes, which Robert Henderson helped insulate with a material containing asbestos, transported steam and various types of acid. While working for Win-Way on the asbestos-insulated pipeline system at Dow’s Freeport facility, Robert Henderson was allegedly exposed to asbestos dust by Dow employees who were installing, sawing, and removing asbestos insulation nearby. He was also allegedly exposed to asbestos dust as a result of his own direct contact with the insulation products. At trial, a Dow employee who worked on the same asbestos-insulated pipeline system as Robert Henderson testified, “[y]ou name it, we sawed it,” and also testified that individuals within twenty yards of him were “in the [asbestos] dust area.” In a pre-trial deposition, Robert Henderson testified that he was doing the same kind of work as Dow employees on the asbestos-insulated pipeline system, and he testified about the frequency, regularity, and proximity of the exposure he received as a bystander to Dow employees performing similar insulation work nearby. Robert Henderson testified that, while at Dow’s Freeport facility, he worked on the pipeline system two to three days per week for four to five hours per day, usually working within five to ten feet of Dow employees who were working with asbestos-based insulation. Eventually, Robert Henderson was diagnosed with mesothelioma, and he and his wife, Tanya, sued Dow and over a dozen other defendants, alleging under various negligence and product liability theories that the defendants were responsible for Robert Henderson’s injuries due to asbestos exposure. Upon Robert Henderson’s death, the petition was amended to allow his adult daughter, Magdalena Adrienna Abutahoun, and his minor daughter, through Tanya Henderson as next friend, to join the lawsuit as wrongful death heirs (collectively, the Hendersons). The lawsuit was originally filed in the 160th District Court in Dallas County but was transferred to the asbestos multi-district litigation (MDL) pretrial court in Harris County for pretrial proceedings. See Tex. Gov’t Code § 74.162.
Dow moved for summary judgment in the MDL pretrial court, arguing that Chapter 95 of the Texas Civil Practice and Remedies Code applied to the Hendersons’ negligence claims against Dow and precluded any recovery. The MDL pretrial court granted Dow summary judgment in part and dismissed “all claims against [Dow] in which Plaintiffs allege that Decedent Robert Wayne Henderson ... was injured by exposure to respirable asbestos as the result of the activities of Decedent and/or the activities of other employees of Decedent’s employer on any premises of [Dow].” The MDL pretrial court denied Dow’s motion for summary judgment “as to all of Plaintiffs’ other claims against [Dow], including Plaintiffs’ claims that Decedent was injured by virtue of the activities of Dow Employees.” Accordingly, although Robert Henderson was allegedly exposed to asbestos both directly from his own insulation work and as a bystander to the insulation work of Dow employees, only the Hendersons’ claims predicated on *45the negligence of Dow’s employees were allowed to proceed before the jury.
The MDL pretrial court remanded the case to the original trial court, and the Hendersons’ remaining claims based on Dow’s employees’ contemporaneously negligent activities were tried to a jury. The Hendersons’ claims against all other defendants were resolved before the case was submitted to the jury. At the conclusion of trial, a general negligence question was submitted that instructed the jury to consider, with respect to Dow, “only the activities of [Dow] employees at Dow ... facilities.” 1 The jury returned a verdict in which it found that Dow’s negligence proximately caused Robert Henderson’s injuries, and that Dow was 30% responsible for causing Robert Henderson’s injuries. Based on the jury verdict and several adjustments, the trial court rendered judgment against Dow for $2.64 million plus interest and court costs.
Dow appealed the verdict and argued that Chapter 95 does not distinguish between a property owner’s liability for exposure caused by the activities of contractors and their employees and exposure that the property owner’s own employees’ activities caused. 395 S.W.3d at 338-39. Further, Dow argued that Chapter 95 applied to bar all of the Hendersons’ negligence claims because the Hendersons did not establish that Dow had both control over Robert Henderson’s work and actual knowledge of the dangers of asbestos exposure as Chapter 95 requires. See id. at 339; see also Tex. Civ. Prac. & Rem. Code § 95.003. The Hendersons argued that Dow could not “avail itself of the heightened protections afforded by Chapter 95” because their claims against Dow were “based solely upon the negligent activities of Dow employees, and not from injury arising from the condition or use of an improvement of real property by [Robert] Henderson.” 395 S.W.3d at 342.
The court of appeals agreed with Dow’s interpretation of the statute. See id. at 347. The court of appeals reversed the trial court’s judgment and rendered a take-nothing judgment in favor of Dow, holding that Chapter 95 applied to the Hendersons’ claims against Dow because “[t]he plain meaning of the text of [section 95.002(2) ] does not preclude [Chapter 95’s] applicability where a claim is based upon the negligent actions of the premises owner.” Id. The court of appeals reasoned that the claim arose from the condition or use of an improvement (the asbestos-insulated pipeline system) where Robert Henderson, as a contractor, constructed, repaired, renovated, or modified the improvement. See id. at 348. Thus, Chapter 95 applied to the Hendersons’ claims against Dow, and the Hendersons had to establish Dow’s liability under the standards set forth in Chapter 95, which they failed to do. Id. The Hendersons filed a petition for review in this Court, which we initially denied. After considering the Hendersons’ motion for rehearing, which cited several recent courts of appeals’ decisions that conflicted with the court of appeals’ decision in this case, we granted the Hendersons’ petition. See 58 Tex. Sup. Ct. J. 85 (Nov. 24, 2014).
II. Discussion
As always, “[w]hen construing a statute, we begin with its language.” State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Chapter 95 of the Texas Civil *46Practice and Remedies Code is titled “Property Owner’s Liability for Acts of Independent Contractors and Amount of Recovery.” Tex. Civ. Prac. & Rem. Code ch. 95. The heart of the chapter, sections 95.002 and .003, establishes Chapter 95’s applicability and limitations on a property owner’s liability for personal injury, death, or property damage to independent contractors, respectively.2 Id. §§ 95.002- 003. Regarding applicability, section 95.002 states that Chapter 95 “applies only to a claim.” Id. § 95.002. A “claim” is specifically defined as “a claim for damages caused by negligence.” Id. § 95.001(1). Section 95.002 then explains that Chapter 95 applies only to a claim for damages caused by negligence:
(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and
(2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.
Id. § 95.002. Section 95.003 establishes the limitations on a property owner’s liability for a claim to which Chapter 95 applies:
A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor -or subcontractor who constructs,- repairs, renovates, or modifies an improvement to real property, including personal injury, de'ath, or property damage arising from the failure to provide a safe workplace unless:
(1) the property owner exercises dr retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.
Id. § 95.003.
“We review statutory construction de novo.” Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389 (Tex.2014) (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008)). We look to the plain meaning of the words in a statute as an expression of legislative intent. Id. “If the statute is clear and unambiguous, we must read the language according to its common meaning ‘without resort to rules of construction or extrinsic aids.’ ” Id. (quoting Shumake, 199 S.W.3d at 284). Thus, we initially limit our statutory review to the plain meaning of the text as the sole expression of legislative intent, see State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002), unless the Legislature has supplied a different meaning by definition, a different meaning is apparent from the context, or applying the plain meaning would lead to absurd results, see Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010).
The Hendersons argue that the court of appeals erred by holding that Chapter 95 *47applies to a claim predicated on a property owner’s “contemporaneous negligent acts” and not, according to section 95.002(2), only to a claim that arises when an independent contractor constructs, repairs, renovates, or modifies an improvement to real property. In other words, according to the Hendersons, any claim that falls within the scope of section 95.002 must arise out of the independent contractor’s work. They argue that the omission of a “property owner” from section 95.002(2), especially when it is included in section 95.002(l)’s list of possible defendants against whom a claim falling within Chapter 95 might be asserted, establishes that Chapter 95 applies only to claims against property owners arising “out of the contractor’s work, and does not apply to a contractor who is a passive victim of the contemporaneous negligent activities of the premises owner.”
Dow argues that the court of appeals correctly held that “[t]he plain meaning of the text of [section 95.002(2)] does not preclude [Chapter 95’s] applicability where a claim is based upon the negligent actions of the premises owner.”3 395 S.W.3d at 347. Under Dow’s interpretation of the statute, Chapter 95 “applies ... to a claim ... against a property owner ... for damages caused by negligence ... that arises from the condition or use of an improvement to real property.” According to Dow, the only condition on Chapter 95’s applicability — that the claim arise from the condition or use of an improvement to real property that the contractor “constructs, repairs, renovates, or modifies” — was satisfied because Robert Henderson’s asbestos exposure resulted from Dow’s employees doing the same work he did on the same asbestos-insulated pipe system. Dow contends that Chapter 95' applies when a negligence claim arises from the “condition or use” of the improvement on which an independent contractor is working, and the claim need not be predicated on a contractor’s negligence.
Neither party seriously contends that Chapter 95 is ambiguous, although the Hendersons argue that the Court should employ several statutory construction aids that are typically reserved for interpreting ambiguous statutes.4 We read Chapter 95 to be unambiguous, and therefore we apply its plain meaning as the statute is written. See City of Hous. v. Jackson, 192 S.W.3d 764, 770 (Tex.2006).
*48The core of Chapter 95’s applicability is that it “applies only to a claim,” Tex. Civ. Prao. & Rem. Code § 95.002, and the Legislature specifically defined a “claim” to mean “a claim for damages caused by negligence,” id. § 95.001(1). Section 95.002(1) identifies whom a claim for damages caused by negligence subject to Chapter 95 may be brought against: “a property owner, contractor, or subcontractor.” Id. § 95.002(1). Despite identifying three potential defendants in the applicability provision of section 95.002, the Legislature limited only a property owner’s liability in section 95.003. See id. § 95.003. Furthermore, although the statute lists whom a claim governed by Chapter 95 can be asserted against, section 95.002 says nothing about the actor who causes the negligence claim to arise and makes no distinction between harm caused by a contractor’s actions and harm caused by another’s actions. See id. § 95.002. Section 95.002(1) simply provides that a claim for damages caused by negligence may be brought for “personal injury, death, or property damage.” Id. § 95.002(1). That section also identifies the persons who may be damaged as “an owner, a contractor, or a subcontractor or an employee of a contractor or a subcontractor.”5 Id. Reading these provisions together, Chapter 95 applies to a claim against a property owner for an independent contractor’s personal injury, death, or property damage caused by negligence. The Legislature did not distinguish between negligence claims based on contemporaneous activity or otherwise, and neither shall we. Cf. Shumake, 199 S.W.3d at 287 (“Because it is not defined otherwise, we conclude that the Legislature must have intended for gross negligence to have its commonly-accepted legal meaning.”).
The second part of the applicability provision, section 95.002(2), includes several undefined statutory words and phrases that have amassed commonly-accepted legal meanings in this Court’s jurisprudence interpreting other tort-related statutes. Section 95.002(2), the most disputed provision in this case, limits Chapter 95’s applicability “only to a claim ... that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.” Tex. Civ. Prag & Rem. Code § 95.002(2). This Court has analyzed tort-related statutes that include the undefined phrase “arises from” consistently as being intended, at minimum, to capture causation. See, e.g., Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 928-29 (Tex.2015) (per curiam) (construing how “arising from” was used in another tort-related statute, discussing prior cases that explained the phrase, and concluding that “a plaintiff can satisfy the ‘arising from’ standard by demonstrating proximate cause”); see also Tex. Gov’t Code § 311.023(4) (permitting courts to consider laws on similar subjects when construing statutes). Thus, section 95.002(2) provides that Chapter 95 applies to a negligence claim that “arises from,” or is caused by, “the condition or use of an improvement to real property where the contractor or subcontractor ... modifies the improvement.”6 Tex. Civ. Prag & Rem. Code § 95.002(2).
*49We next consider the meaning of the undefined phrase “condition or use of an improvement to real property.” See id. For four decades, Texas jurists have repeatedly expressed concerns about the difficulty of discerning the Legislature’s intended meaning behind the words “condition or use” as they appear in the Texas Tort Claims Act, another tort-related statute.7 See, e.g., Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 590 (Tex.2001) (Hecht, J., concurring) (detailing multiple instances when members of this Court “have repeatedly beseeched the Legislature for guidance” on how to interpret the “use-of-property standard” in the Texas Tort Claims Act to no avail); Tex. State Technical Coll. v. Beavers, 218 S.W.3d 258, 261 (Tex.App.-Texarkana 2007, no pet.) (“The courts of Texas have struggled to define the limits of ‘use’ and ‘condition’ ... under the Texas Tort Claims Act.”). But despite numerous intermediate appellate court decisions interpreting the phrase “condition or use” every way imaginable, we have never held that the phrase rendered the Texas Tort Claims Act ambiguous or inoperable. This Court has agreed, for purposes of the Texas Tort Claims Act, that the “condition or use” provision is' “difficult to understand and difficult to apply,” but we have never used that characterization “as an excuse to shirk our duty to interpret and apply the statute.” Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex.1989). Accordingly, although we review the “condition or use” language in Chapter 95 as a matter of first impression, we draw upon this Court’s interpretation of the similar phrase in the Texas Tort Claims Act for guidance. See Tex. Gov’t Code § 311.023(4).
This Court has defined a “condition” as “either an intentional or an inadvertent state of being.” Sparkman v. Maxwell, 519 S.W.2d 852, 858 (Tex.1975). We have defined “use” as meaning “to put or bring into action or service; to employ for or apply to a given purpose.” Miller, 51 S.W.3d at 588. We have broadly defined an “improvement” to include “all additions to the freehold except for trade fixtures [that] can be removed without injury to the property.” Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475, 479 (Tex.1995) (examining the statute of repose in section 16.009 of the Texas Civil Practice and Remedies Code, which contains the identical phrase “improvement to real property”).
Given these definitions, a condition of an improvement to real property represents a different concept than a use of an improvement to real property. Indeed, we have treated a condition or a use as comprising separate prongs of the Texas Tort Claims Act. See Dall. Metrocare Servs. v. Juarez, 420 S.W.3d 39, 42 (Tex.2013) (per curiam). This distinction between these two concepts is supported “by use of the disjunctive conjunction ‘or’ between the two [words], which signifies a separation between two distinct ideas.” Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex.2000). The Legislature’s enunciation of the two concepts of “condition or use” is consistent with this Court’s com*50mon law jurisprudence, also reflected. in Chapter 95, surrounding a controlling contractor or property owner’s liability for injuries to independent contractors.8 In the seminal case of Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985), the Court explained that a property owner’s “duty to keep the premises in a safe condition may subject the [property owner] to direct liability for negligence in two situations: (1) those arising from a premises defect, (2) those arising from an activity or instrumentality.”9 Id. at 417; see also Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (citing Redinger, 689 S.W.2d 415) (“Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.”).
These two categories of negligence existed in this Court’s jurisprudence prior to the enactment of Chapter 95, and “we presume the Legislature enacts a statute with knowledge of existing law.” Dugger v. Arredondo, 408 S.W.3d 825, 835 (Tex.2013). More specifically, in a Texas Tort Claims Act case we decided the year before the Legislature enacted Chapter 95, we interpreted the identical phrase “condition or use” to “encompass[ ] disparate bases for liability, one of which is not dependant [sic] upon the actions of any employee.” DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex.1995). We explained that the “use” language “encompasses ... liability based on respondeat superior.” Id. We added that the inclusion of “liability for a condition of real property” existed “in addition to liability based on principles of respondeat superior,” and therefore liability for a condition imposed liability for premises defects. Id. (emphasis omitted). Quite plainly, in DeWitt we held that the inclusion of the “use” language was meant to impose liability for the negligent actions of an employee based on principles of re-spondeat superior. Id. One year after we attached this particular meaning to the phrase “condition or use,” the Legislature included the same undefined phrase in Chapter 95. We can only conclude that the Legislature intended for Chapter 95 to apply to all negligence claims that arise from either a premises defect or the negligent activity of a property owner or its employees by virtue of the “condition or use” language in section 95.002(2). See Tex.Civ. PRAC. & Rem. Code § 95.002(2); Dugger, 408 S.W.3d at 835.
For the sake of thoroughness, we note that section 95.002(2)’s inclusion of “condition or use” preserves the notion that claims based on a premises defect are distinct from claims based on negligent activities. As we have explained, “negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex.2010) (citations omitted). Despite their differences, both claims are a species of negligence. See, e.g., W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005) (recognizing that “[p]remises liability is a special form of negligence” and that “[n]egligenee and premises liability ... in*51volve closely related but distinct duty anal-yses”). While it is true that “[w]e have rejected attempts to blur the distinction between these two claims,” Shumake, 199 S.W.3d at 284, it is nonetheless an accurate statement that both types of claims fall within the common meaning of the term “negligence” that appears, undefined, in section 95.001(1), see Urena, 162 S.W.3d at 550.
Next, we address the Hendersons’ contention that the court of appeals’ opinion “obviates more than a century of Texas common law that holds that a property owner is liable in negligence for its own contemporaneous negligent activity.” According to the Hendersons, Chapter 95 did not abrogate common law negligence claims against property owners for their contemporaneous negligent activities. More specifically, the Hendersons argue that “there is no ‘clear repugnance’ between (i) Chapter 95 claims ‘where the contractor or subcontractor constructs, repairs, ' renovates, or modifies the improvement’ ... versus (ii) common law claims based on the contemporaneous negligent acts of property owners.” Dow cites several cases recognizing that, because of Chapter 95, an independent contractor no longer has a common law negligence claim against a property owner. See, e.g., Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 88 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (“We agree ... that chapter 95 controls this case, is [the independent con-tractorj’s exclusive remedy against [the property owner], and precludes common-law negligence liability in [the property owner].”).
We have explained that statutes can modify or abrogate common law rules, but only when that was what the Legisla1 ture clearly intended. Energy Serv. Co. of Bowie v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex.2007). Because abrogation is disfavored, we examine the statute’s plain language for the Legislature’s clear intention to replace a common law remedy with a statutory remedy, and we “decline[] to construe statutes to deprive citizens of common-law rights unless the Legislature clearly expressed that intent.” Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969); see also Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex.2000). The Hendersons are correct that a clear repugnance between the common law and a statutory cause of action is required for courts to find that the Legislature abrogated a common law right. See Cash Am. Int’l Inc., 35 S.W.3d at 16.
Here, we do not find the sort of “clear repugnance” that would justify a conclusion that the Legislature intended to abrogate an independent contractor’s common law right to recover damages based upon the negligence of property owners. But see, e.g., Waffle House, Inc., 313 S.W.3d at 807 (finding abrogation of common law negligence causes of action where a statutory scheme involved a unique set of standards and procedures and the plaintiff sought to use the common law to circumvent the “panoply of special rules” in the statute). Chapter 95 does not deprive an independent contractor of the right to recover damages from a negligent property owner. In fact, section 95.003 allows for such a recovery as long as the evidentiary burdens of the statute are satisfied. See Tex. Civ. Prac. & Rem. Code § 95.003 (“A property owner is not liable for personal injury, death, or property damage to a contractor ... unless.... ”). To be sure, when section 95.002 makes Chapter 95 applicable to an independent contractor’s negligence claim against a property owner that arises from the condition or use of an improvement to real property, the independent contractor’s sole means of recovery is by satisfying section 95.003. This is *52consistent with the court of appeals’ holding that when Chapter 95 applies to an independent contractor’s claims, the independent contractor has “the burden to show that both conditions of section 95.003 [have] been met before liability could be imposed upon” the property owner. 395 S.W.3d at 348.
Moreover, by its own terms, Chapter 95’s limitation on liability does not apply to all negligence claims an injured independent contractor may assert. See Tex. Civ. Prac. & Rem. Code § 95.002(2). When a claim does not “arise from a condition or use of an improvement to real property where the contractor or subcontractor ... modifies the improvement,” Chapter 95 does not apply and an independent contractor can recover for common law negligence. See Felton v. Lovett, 388 S.W.3d 656, 660 & n.10 (Tex.2012) (declining to recognize abrogation of the common law because the statute did “not purport to affect the common law in cases other than those the statute covers”). This Court has developed a comprehensive body of law on property owner liability for injuries suffered by independent contractors that will continue to apply to cases when the applicability provision of section 95.002 cannot be met. See generally Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214-15 (Tex.2008) (explaining the duties owed to independent contractors under negligent activity and premises defect theories). Similarly, when a claim is brought against a contractor or a subcontractor, section 95.003’s limitation on liability does not apply and an independent contractor can recover for common law negligence. See Tex. Civ. Prac. & Rem. Code § 95.003 (limiting only a property owner’s liability). We conclude that Chapter 95 did not abrogate an independent contractor’s right to recover for common law negligence in all instances. If anything, Chapter 95 is in derogation of the common law, and Texas courts do not strictly construe such statutes. See Tex. Gov’t Code § 312.006(b).
Having concluded that Chapter 95 applies to an independent contractor’s claims for damages caused by the contemporaneous negligent acts of a property owner, Dow could be subject to liability only if the Hendersons satisfied the evidentiary burdens in both prongs of section 95.003. See Tex. Civ. Prac. & Rem. Code § 95.003. At trial and at the court of appeals, the Hendersons sought to establish that negligence claims based on a property owner’s or its employees’ contemporaneous negligent activities did not fall within Chapter 95, but the Hendersons never sought to establish Dow’s liability in the event that Chapter 95 did, in fact, apply to their claims. See 395 S.W.3d at 348. In this appeal, the Hendersons do not challenge the court of appeals’ conclusion that “[o]n this record, ... Chapter 95 is applicable to all of [the Hendersons’] claims against Dow.” See id. In fact, the Hendersons urge us not to address Chapter 95’s applicability to their specific claims in this case: “But this debate — is the improvement the entire pipe system at Dow or the specific pipes [Robert] Henderson was working on-need not be reached in this case.... ” Most importantly, the Hendersons háve not challenged the court of appeals’ conclusion that “the record does not support a finding of liability as to Dow pursuant to the requirements of Chapter 95.” Id. Issues not raised on appeal to this Court are waived. Guitar Holding Co., L.P. v. Hudspeth Cnty. Underground Water Conservation Dist. No. 1., 263 S.W.3d 910, 918 (Tex.2008) (citing Tex. R. App. P. 53.2(f)); see also Del Lago Partners, Inc., 307 S.W.3d at 776 (“[W]e should not stretch for a reason to reverse that was not raised.”).
In sum, the Hendersons failed to challenge the court of appeals’ conclusions *53that: (1) their specific claims against Dow, as pleaded and applied, fell within Chapter 95, and (2) their claims were barred by Chapter 95 because the Hendersons did not establish Dow’s liability under section 95.003. Because these conclusions were not challenged, they are not properly before the Court and we do not decide whether the court of appeals correctly applied Chapter 95 to the facts of this case. See Guitar Holding Co., L.P., 263 S.W.3d at 918. Accordingly, because we agree with the court of appeals’ construction of Chapter 95, we affirm its judgment reversing the trial court’s judgment and rendering a take-nothing judgment in Dow’s favor. This obviates the need to address the remaining issues Dow raises in this appeal.
III. Conclusion
The court of appeals correctly held that Chapter 95 applies to independent contractors’ claims against property owners for damages caused by negligence when those claims arise from the condition or use of an improvement to real property where the independent contractor constructs, repairs, renovates, or modifies the improvement. Chapter 95 limits property owner liability on claims for personal injury, death, or property damage caused by negligence, including claims concerning a property owner’s own contemporaneous negligent activity. The Hendersons have not challenged the court of appeals’ conclusion that Chapter 95 applied to their specific claims as pleaded, nor have they challenged the court of appeals’ conclusion that they failed to establish Dow’s liability under section 95.003. We therefore affirm the court of appeals’ judgment that reversed the trial court’s judgment and rendered a take-nothing judgment in Dow’s favor.
. The trial court overruled Dow's objection that Chapter 95 precluded the submission of a general negligence question. The trial court also denied Dow’s requested jury instructions and questions that would have required the Hendersons to establish Dow's liability based upon Chapter 95’s requirements.
. For ease of reference, this opinion uses the phrase "independent contractor” as a shorthand substitute for the lengthier statutory phrase of "a contractor, subcontractor, or an employee of a contractor or subcontractor” that appears in Chapter 95. See Tex. Civ. Prac. & Rem. Code ’§§ 95.002-.004. Although the phrase "independent contractor” does not appear in the text of Chapter 95, it appears in Chapter 95’s title and section 95.003’s heading, "Liability for Acts of Independent Contractors.” See id. § 95.003.
. Both parties and the court of appeals used the phrase “premises owner” when referring to Chapter 95 and its contents. The word "premises” does not appear in Chapter 95. Instead, the chapter uses the phrase "property owner,” which section 95.001(3) defines to mean "a person or entity that owns real property primarily used for commercial or business purposes.” Tex. Civ. Prac. & Rem. Code § 95.001(3). We use the phrase "property owner” to remain consistent with the statutory text.
. For instance, the Hendersons urge the Court to consider several titles in Chapter 95, legislative statements of the bill’s sponsors, and a canon of construction called the doctrine of the last antecedent as indications of legislative intent. When the plain meaning of a statute controls, however, "the title of the section carries no weight, as a heading ‘does not limit or expand the meaning of a statute.’” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 809 (Tex.2010) (quotingTEX. Gov’t Code § 311.024). Moreover, "[w]hen a statute’s language is clear and unambiguous, it is inappropriate to resort to rules of construction or extrinsic aids to construe the language.” City of Rockwall, 246 S.W.3d at 626; see also Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 185 (Tex.2012) (recognizing that the doctrine of the last antecedent applies to ambiguous statutes); Stracener v. United Servs. Auto. Ass'n, 777 S.W.2d 378, 383 (Tex.-1989) (recognizing that the doctrine of the last antecedent is merely an aid used to determine the meaning and intent of communications, and it is not applicable in every case).
. Although section 95.002(1) specifies who may be damaged for purposes of Chapter 95, section 95.001(2) defines a “claimant” more broadly to mean "a party making a claim subject to this chapter.” Tex. Civ. Prac. & Rem. Code § 95.001(2). The word “claimant” appears only in the special legislative definitions and nowhere else in Chapter 95. See id.
. Once again, only for ease of reference-and not to indicate a lack of significance for the words omitted — we have shortened section *4995.002(2)’s phrase "constructs, repairs, renovates, or modifies the improvement” simply to "... modifies the improvement.”
. The Texas Tort Claims Act uses the phrase "condition or use of tangible personal or real property.” Tex Civ. Prac. & Rem. Code § 101.021. The Texas Tort Claims Act is distinguishable, however, because there is a separate section that applies specifically to claims for premises or special defects. Id. § 101.022. In contrast, Chapter 95's plain language does not require courts to classify certain negligence claims for different treatment.
. Below, we address the Hendersons’ contention that Chapter 95 did not abrogate common law negligence claims against property owners, or that any such finding of abrogation was impermissible. See infra p. 51.
. Thereafter, the Court adopted the Restatement (Second) of Torts § 414 (1977) approach for imposing liability on a property owner or general contractor that controls the work of an independent contractor who is negligently injured. See Redinger, 689 S.W.2d at 418. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284036/ | OPINION
Martha Hill Jamison, Justice
The parties to this appeal dispute the meaning of a contractual indemnity provision. The trial judge granted summary judgment agreeing with appellees’ interpretation. We agree with appellants’ interpretation and, therefore, reverse. Concluding, however, that appellants have not established as a matter of law that they are entitled to indemnification, we remand for further proceedings consistent with this opinion.
Background
Empeiria Conner L.L.C., Empeiria Conner II L.L.C., Aubrey Conner, Legg Mason SBIC Mezzanine Fund, L.P., AEA Mezzanine Fund, L.P., AEA Mezzanine (Unleveraged) Fund, L.P., Paul Frontier Holdings, L.P., Joe Fiamingo, Wes Deha-ven, Alex Suarez, and Empeiria Conner L.L.C., in its capacity as the seller representative (collectively, “Empeiria”) and others entered into a Stock Purchase Agreement with Grant Prideco, Inc.1 Under the Stock Purchase Agreement, Grant Prideco purchased all of the outstanding capital stock, warrants, and options of Conner Steel Products Holdings, Co., a company that owned all of the issued and outstanding capital stock of Conner Steel Products, Inc. The latter company owned all of the issued and outstanding capital stock of appellant Aggregate Plant Products Company (APPCO).
*159APPCO manufactures heavy equipment, including multi-sanders used in oil and gas operations. The Stock Purchase Agreement contains various indemnity provisions, including an agreement by Empeiria to indemnify Grant Prideco and others as to losses based upon, arising out of, or relating to certain products liability claims.2 In March 2012, Jose Lara filed suit against APPCO and others in Winkler County, Texas, asserting various products liability claims allegedly arising out of severe injuries Lara suffered while working with a multi-sander allegedly manufactured, designed, marketed, and distributed by APPCO and others.
Grant Prideco and APPCO (collectively, “Grant Prideco”) sent a timely demand letter to Empeiria seeking indemnity from the claims, demands, and fees and costs of defense or settlement “arising out of or related to Mr. Lara’s lawsuit.”3 Empeiria denied Grant Prideco’s demand for indemnity, asserting that Lara’s claims do not fall within the scope of any indemnity provision in the Stock Purchase Agreement. Grant Prideco filed suit against Empeiria, alleging that it breached its indemnity obligations under the Stock Purchase Agreement, and seeking “a declaration that [Grant Prideco is] entitled to recover all money held in escrow,” contract damages, and attorney’s fees.4 Empeiria filed counterclaims seeking declaratory relief and attorney’s fees.
Empeiria filed a traditional summary-judgment motion on the bases that “the underlying cause of action for negligence accrued after the sale of [APPCO] ” and “[Empeiria is] not liable to indemnify [Grant Prideco] for claims arising after the sale.”5 Grant Prideco filed a motion for partial summary judgment, seeking a declaratory judgment that it is entitled to indemnity from Empeiria as to Lara’s claims and for attorney’s fees. The trial court granted in part and denied in part Empeiria’s summary-judgment motion and denied Grant Prideco’s motion for partial summary judgment. In its summary-judgment order, the trial court declared that “the facts, events, and circumstances with respect to [Lara’s claims] did not arise prior to the Closing Date” and thus Em-peiria is not required to indemnify Grant Prideco under the Stock Purchase Agreement. The trial court denied Empeiria’s request for attorney’s fees.
Discussion
In a single issue, Grant Prideco asserts that the trial court erred in granting Em-peiria’s summary-judgment motion and in denying its motion for partial summary judgment. Grant Prideco did not seek a final judgment. However, because Grant Prideco and Empeiria moved for summary judgment on the same issue (both seeking a declaration regarding whether Empeiria was required to indemnify Grant Prideco), we may review the trial court’s denial of Grant Prideco’s summary-judgment mo*160tion. See FDIC v. Lenk, 361 S.W.3d 602, 611-12 (Tex.2012); Frontier Logistics, L.P. v. Nat’l Prop. Holdings, L.P., 417 S.W.3d 656, 659, 664 (Tex.App.—Houston [14th Dist.] 2013, pet. denied).
In a traditional motion for summary-judgment, if the movant’s motion and summary-judgment evidence facially establish the movant’s right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). In our de novo review of a trial court’s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007).
When, as in this case, the parties file competing motions for summary judgment, and the trial court grants one motion and denies the other, we may consider the propriety of the denial as well as the grant. See Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 729 (Tex.App.—Houston [14th Dist.] 2003, no pet.). If the issue raised is based on undisputed and unambiguous facts, we may determine the question presented as a matter of law. See id. We may then either affirm the judgment or reverse and render the judgment the trial court should have rendered. See id. If, however, resolution of the issues rests on disputed facts, summary judgment is inappropriate, and we should reverse and remand for further proceedings. See id. at 729-30.
Grant Prideco argues that Lara’s claims fall within the scope of the indemnity provision so that, as a matter of law, Empeiria must indemnify Grant Prideco as to these claims. Conversely, Empeiria argues that Lara’s claims do not fall within the scope of that provision so that, as a matter of law, Empeiria has no obligation to indemnify Grant Prideco as to these claims. We construe indemnity agreements strictly under the usual principles of. contract interpretation to give effect to the parties’ intent as expressed in the agreement. See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex.2000); E.I. Du Pont De Nemours & Co. v. Shell Oil Co., 259 S.W.3d 800, 805 (Tex.App.—Houston [1st Dist.] 2007, pet. denied). We must give terms in an indemnity agreement their plain, ordinary, and generally accepted meaning unless the agreement indicates otherwise. Lehmann v. Har-Con Corp., 76 S.W.3d 555, 562 (Tex.App.—Houston [14th Dist.] 2002, no pet.). An indemnity agreement is unambiguous if it can be given a definite or certain legal meaning, and we will construe an unambiguous indemnity agreement as a matter of law. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003); E.I. Du Pont De Nemours & Co., 259 S.W.3d at 805.
The provision in question is section 10.2 of the Stock Purchase Agreement, which provides in pertinent part as follows:
Section 10.2 Indemnification by the Sellers. Subject to the limitations set forth in this Article X, including without limitation Section 10.7, each Seller hereby (on a joint and several basis with the other Sellers except as set forth below) agrees to and shall defend, indemnify and hold harmless the Buyer and each of the Buyer’s subsidiaries, Affiliates and parents, successors and permitted *161assigns, and each of their respective partners, officers, directors, employees and their respective heirs and legal and personal representatives (collectively, the “Buyer’s Indemnified Persons ”) from and against, and shall reimburse the Buyer’s Indemnified Persons for, any and all Losses to the extent such Losses are based upon, arise out of, or are related to: ...
(c) any Claims of Product Liability for which the facts, events and circumstances with respect to such Products Liability Claim first arose prior to the Closing Date (“Product Liability Claim”)[.]
The closing date for the Stock Purchase Agreement was May 25, 2011, and Lara alleges that he sustained his injuries on or about September 1, 2011. The parties do not dispute that at least some of Lara’s claims are “Claims of Product Liability.”6
The main issue is whether Lara’s claims are claims “for which the facts, events and circumstances with respect to such [claim] first arose prior to the Closing Date.” Grant Prideco contends that this indemnity applies to “any Claims of Product Liability” in which the allegedly actionable conduct occurred before the Closing Date. Empeiria contends that this indemnity applies to “any Claims of Product Liability” that accrued before the Closing Date.
The everyday words “facts,” “events,” “circumstances” and “arose” are not defined in the Stock Purchase Agreement. Nothing in the Stock Purchase Agreement suggests that these ordinary words are used in a technical sense or in any way other than to convey their ordinary and generally accepted meaning, so we give these words that meaning. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.2005). The phrase “the facts, events and circumstances with respect to such ... Claim” has a broad scope that would encompass the allegedly actionable conduct that is the basis of Lara’s claims, the harm or injury allegedly sustained as a result of that conduct, and other facts, events, and circumstances with respect to such a claim.
We do not agree with the interpretation of the contract put forward by Empeiria and apparently found by the trial judge: that the disputed paragraph applies only to claims that “accrued” before the closing date. If the parties had intended to permit indemnification only for legal causes of action that had “accrued” prior to the closing date, they easily could have used that term, which has a specific legal meaning, in the Stock Purchase Agreement. Appel-lees argue that one of the synonyms for “accrue” is “arise” which is the present tense of “arose.” We find this argument unpersuasive.7
The words “arising out of’ have been interpreted by courts as “broad, general, *162and comprehensive terms effecting broad coverage” in that the words are “understood to mean originating from, having its origin in, growing out of, or flowing from.”8 Am. States Ins. Co. v. Bailey, 133 F.3d 363, 370 (5th Cir.1998); see also Lancer Ins. Co. v. Garcia Holiday Tours, 345 S.W.3d 50, 54 (Tex.2011); Acceptance Ins. Co. v. Lifecare Corp., 89 S.W.3d 773, 779 (Tex.App.—Corpus Christi 2002, no pet.). Black’s Law Dictionary similarly defines “arise,” in relevant part, as “[t]o originate!,] to stem (from)[,]” and “[t]o result (from).” Black’s Law Dictionary 129 (10th ed.2014). “Accrue,” although a related term, is more narrow. In Texas jurisprudence, “accrue” means that “facts have come into existence that authorize a claimant to seek a judicial remedy.” Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex.2001). A judicial remedy is not available until facts, events, and circumstances result in a cognizable injury. See Rice v. Louis A. Williams & Assocs., Inc., 86 S.W.3d 329, 337 (Tex.App.—Texarkana 2002, pet. denied) (discussing “legal injury rule” and noting that causes of action generally accrue when plaintiff is injured); see also Reese v. Parker, 742 S.W.2d 793, 797 (Tex.App.—Houston [14th Dist.] 1987, no writ) (“A cause of action will then accrue only when the plaintiffs legally protected interest has been invaded.”). Thus, when “facts, events and circumstances arise” is a broader concept than when a claim accrues.
We conclude that Empeiria did not establish as a matter of law that the phrase “first arose” in the indemnity clause means “accrued.” Empeiria did not present conclusive evidence of when the facts, events, and circumstances with respect to Lara’s claims first arose.9 Accordingly, the trial court erred in finding as a matter of law that the facts, events, and circumstances made the basis of Lara’s claims did not arise prior to the closing date, and Empeiria is not required to indemnify Grant Prideco. Thus, the trial court erred in granting Empeiria’s summary-judgment motion on those bases.
Similarly, although Grant Prideco established as a matter of law that the language “first arose” in the indemnity clause is broader than “accrued,” Grant Prideco did not present conclusive evidence of when the facts, events, and circumstances with respect to Lara’s claims first arose and accordingly did not establish as a matter of law that it was entitled to indemnification from Empeiria.10 Thus, the trial court did *163not err in denying Grant Prideco’s summary-judgment motion.
Conclusion
We conclude the trial court erred in granting Empeiria’s summary-judgment motion, but did not err in denying Grant Prideco’s summary-judgment motion. Because resolution of the issues rests on disputed facts, we reverse the trial court’s judgment and remand this case to the trial court for proceedings consistent with this opinion. See Lidawi, 112 S.W.3d at 729-30.
(Frost, C.J., dissenting)
. For ease of reference, we refer to appellees in the singular.
. The indemnity provision at issue is .section 10.2(c).' See infra pp. 160-61.
. As with appellees, we refer to appellants in the singular.
. In conjunction with the stock purchase, the parties entered into an Escrow Agreement. Pursuant to section 4 of the Escrow Agreement, an Escrow Fund of $9.5 million was established for the purpose of paying claims for indemnification. Empeiria claimed Grant Prideco breached the Escrow Agreement by failing to release funds.
.Grant Prideco brought only a breach of contract claim, but in its prayer sought the above-referenced declaration in addition to monetary damages. Empeiria moved for summary judgment as to Grant Prideco’s breach claim but did not otherwise object to Grant Prideco’s request for declaratory relief.
. The term “Product Liability” is defined in section 4.27(b) of the Stock Purchase Agreement, and the term "Claims” is defined in section 1.1 of the Stock Purchase Agreement.
. Empeiria also argues that no manufacturing company could ever be sold if Grant Prideco's interpretation of the indemnity language is upheld, citing NuStar Energy L.P. v. Diamond Offshore Co., 402 S.W.3d 461, 466 (Tex.App.—Houston [14th Dist.] 2013, no writ). That case, however, simply states that, in interpreting a contract, we bear in mind the particular business activity to be served, and when possible and proper to do so, we avoid a construction that is unreasonable, inequitable, and oppressive. Id. at 466. We do not interpret NuStar to endorse setting aside well-established principles of contract interpretation. Contract interpretation principles limit our analysis to the intent of the parties as expressed in the agreement. See E.I. Du Pont De Nemours & Co., 259 S.W.3d at 805.
. A claimant must commence a products liability action against a manufacturer or seller of certain manufacturing equipment before the end of 15 years after the date of sale of the equipment by the defendant. Tex. Civ. Prac. & Rem. Code § 16.012(b). Thus, a manufacturer may be held responsible for long-ago activities.
. Lara alleges, among other things, that he was injured when he was working with a multi-sander manufactured, designed, marketed, and distributed by APPCO and others. Empeiria presented no evidence of when the multi-sander was “manufactured, designed, marketed, and distributed” or its condition at that time.
.It is undisputed that the Lara lawsuit was filed after the closing date. The record does not reveal whether the alleged "facts, events and circumstances” "first arose” prior to the closing date, if Grant Prideco sustained a loss under the Stock Purchase Agreement, or if so, the amount of the loss. Grant Prideco's brief states, without record cite, that the equipment that allegedly injured Lara was designed and manufactured prior to 2001. Grant Prideco’s summary judgment motion cited Empeiria’s motion to support this argument. Empeiria’s motion cited Lara’s petition, but no evidence was presented on this issue. Unsupported argument is not evidence. Green v. Brantley, 11 S.W.3d 259, 264 (Tex.App.—Fort Worth 1999, pet. denied). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284037/ | Kem Thompson Frost, Chief Justice,
dissenting.
The main issue in this appeal is whether the language of a contractual indemnity provision is ambiguous. Both sides say its meaning is clear, yet they say it means different things. The trial court concluded that the defendants’ interpretation is the unambiguous meaning of the provision. Today, the majority concludes that the plaintiffs’ interpretation is the unambiguous meaning. None is correct. The provision’s meaning is ambiguous.
Ambiguity forecloses summary judgment.
When the meaning of a contractual provision is ambiguous, summary judgment is improper. Thus, the court should reverse the trial court’s summary judgment and remand the case to the trial court so that the trier of fact may determine the true intent of the parties as to the scope of the indemnity provision. Only when a written instrument is worded so that it can be given a certain or definite legal meaning or interpretation, may the court properly construe it as a matter of law. Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996); Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 611 (Tex.App.—Houston [14th Dist.] 2006, pet. denied). If the meaning of a disputed provision is uncertain and doubtful or if the provision is reasonably susceptible to more than one meaning, taking into consideration the circumstances present at the time of signing, then the provision is ambiguous and its meaning must be resolved by a finder of fact.1 See Lenape Res. Corp., 925 S.W.2d at 574.
In construing a written contract, our primary concern is to ascertain the true intentions of the parties as expressed in the written instrument. See id. We need not strain to embrace rules of construction that would avoid ambiguity at all costs. See id. If section 10.2(c) of the Stock Purchase Agreement (“Agreement”) is ambiguous, then the trial court erred in granting summary judgment because the interpretation of an ambiguous contract is a question for the finder of fact. See Coker v. Coker, 650 S.W.2d 391, 394-95 (Tex.1983). Although all parties argue that the relevant language is unambiguous, that does not prevent this court from concluding that the language is ambiguous. See Watkins v. Krist Law Firm, P.C., No. 14-02-00291-CV, 2003 WL 21786173, at *3 (Tex.App.—Houston [14th Dist.] Aug. 5, 2003, pet. dism’d) (mem.op.). Therefore, the threshold inquiry is whether the following language in section 10.2(c) of the Agreement is ambiguous: “any Claims of Product Liability for which the facts, events and circumstances with respect to *164such Products Liability Claim first arose prior to the Closing Date.”
Appellants/plaintiffs Grant Prideco, Inc. and Aggregate Plant Products Co. (hereinafter collectively the “Grant Prideco Parties”) assert that the words “facts, events, and circumstances” have a broad meaning. The Grant Prideco Parties say that “fact” means “an actual occurrence,” that an “event” is “something that happens,” and that'a “circumstances” is “a condition, fact, or event accompanying, conditioning, or determining another: an essential or inevitable concomitant.” The Grant Prideco Parties argue that the indemnity provision requires the Empeiria Parties2 to indemnify them because, “[biased on the plain meaning of these words, facts, events, and circumstances that relate to Mr. Lara’s product liability claim arose before the Closing Date.” By agreeing with the Grant Prideco Parties’ interpretation of the provision, the majority concludes that this interpretation is certain and is the only reasonable interpretation of the indemnity language. See Lenape Res. Corp., 925 S.W.2d at 574. It is not.
Unpacking the contractual language leaves the meaning unclear.
The everyday words “facts,” “events,” and “circumstances” are not defined in the Agreement. Nothing in the Agreement suggests that these ordinary words are used in a technical sense or in any way other than to convey their ordinary and generally accepted meaning, so we must give these words that meaning. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.2005). The phrase “the facts, events and circumstances with respect to such Products Liability Claim” (hereinafter “Facts Phrase”) has a broad scope that would encompass the allegedly actionable conduct that is the basis of the Products Liability Claim, the harm or injury allegedly sustained as a result of that conduct, and other facts, events, and circumstances with respect to such a claim. But, the use of the words “the” and “and” in the Facts Phrase suggests that it may mean “all of the facts, events and circumstances with respect to such Products Liability Claim” rather than simply any of the facts, events, or circumstances relating to a claim.
Construing the scope of this indemnity is made tough by the parties’ use of the phrase “first arose.”3 In the context of this indemnity provision, the plain, ordinary, and generally accepted meaning of “first arose” is “first came into being.”4 See Merriam Webster’s Collegiate Dictionary 66 (11th ed.2004) (defining in perti*165nent part “arise” to mean “to come into being or to attention”); id. 68 (stating that “arose” is the past tense “arise”). Whatever its scope, the Facts Phrase contains elements that happen at different points in time. Therefore, the meaning of “the facts, events and circumstances ... first arose” is uncertain. The use of the phrase “first arose” indicates a look into the past to determine when the subject came into being. But, if the subject is a set of facts, events, and circumstances that came into being over a span of time, it is unclear how one can determine when that subject came into being. The parties may have intended to refer to the point in time in which the first fact, event, or circumstance with respect to the claim came into being. If so, that raises the issue of the scope of the Facts Phrase. If an inventor first gets the idea for a product, it may be decades before the first product is ever sold, and even longer before the use of that product ever causes a harm or injury that may be the basis of a product-liability claim. If an APPCO employee had an idea for a product in April 2011, and if one of those products were sold in 2026, and an alleged defect in the product allegedly caused serious personal injury in 2036, would the idea for the product constitute a fact, event, or circumstance with respect to a produet-liability claim based on that personal injury so that the claim falls within the scope of the indemnity? 5
Even if the idea for the product is not within the scope of the Facts Phrase, it is not clear why the first instance of conduct alleged by the product-liability plaintiff to be actionable would not fall within the scope of this phrase. If it does, and if the phrase “first arose” refers to the first fact, event, or circumstance in this phrase to come into being, then at least. some of Lara’s claims would fall within the scope of the indemnity under section 10.2(c) of the Agreement.
Nonetheless, the use of “first arose,” even though the phrase does not modify “any Claims of Product Liability” still may have been intended to refer to the accrual of the “Claim of Product Liability” in question. The Empeiria Parties argue that the language of section 10.2(c) is unambiguous and covers only “claims that had arisen prior to the closing date.” Yet, the Empeiria Parties do not address what meaning, if any, should be given to the word “first.” In addition, as the Grant Prideco Parties note, the Empeiria Parties’ construction effectively gives no meaning to the words in the Facts Phrase. The parties may have intended “first arose prior to the Closing Date” to modify the Facts Phrase in a way that achieves the same scope of the indemnity that the Empeiria Parties push, but any such intent is unclear. One could, hardly say that this scope is communicated by unambiguous language in the Agreement. None of the cases the parties cite involve the unusual language the parties put in section 10.2(c), so these cases do not compel the conclu*166sion that the relevant language is unambiguous. The parties have not cited and research has not revealed any cases in which a court construes the same or similar contract language. Nor has the majority cited any such cases.
The meaning of the Agreement as to the scope of the indemnity obligation under section 10.2(c) is' uncertain and doubtful or it is reasonably susceptible to more than one meaning. See Lenape Resources Corp., 925 S.W.2d at 574 (holding contract provision to be ambiguous); Coker, 650 S.W.2d at 393-94 (holding that contract language was unclear and ambiguous); Watkins, 2003 WL 21786173, at *3 (holding that contract language was uncertain, doubtful, and ambiguous); A.W. Wright & Associates, P.C. v. Glover, Anderson, Chandler & Uzick, L.L.P., 993 S.W.2d 466, 470 (Tex.App.—Houston [14th Dist.] 1999, pet. denied) (holding that language in contracts was uncertain and doubtful and therefore ambiguous); Gibson v. Bentley, 605 S.W.2d 337, 338-39 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref'd n.r.e.) (holding that condition triggering provision was susceptible of two irreconcilable interpretations and was ambiguous). Therefore, the trial court erred in granting in part the Empeiria Parties’ summary-judgment motion, but the trial court did not err in denying the Grant Prideco Parties’ summary-judgment motion regarding indemnity liability under section 10.2(e) of the Agreement. See Coker, 650 S.W.2d at 394-95.
Because the contractual language is unclear, the fact finder should determine what it means.
The scope of the indemnity obligation under section 10.2(c) is ambiguous. Because the meaning of the provision is unclear, this court should affirm the portion of the trial court’s judgment denying the Grant Prideco Parties’ motion for partial summary judgment, reverse all parts of the trial court’s judgment in which thé trial court granted the Empeiria Parties’ summary-judgment motion, and remand the case to the trial court so that the trier of fact may determine the true intent of the parties as to the scope of the indemnity obligation under section 10.2(c) of the Agreement. Because the majority concludes that section 10.2(c) is unambiguous and that the meaning of the provision may be determined as a matter of law, I respectfully dissent.
. The record does not contain any evidence of circumstances present when the Stock Purchase Agreement was signed that would inform the inquiry as to whether the relevant language is ambiguous.
. Appellees/defendants Empeiria Conner L.L.C., Empeiria Conner II L.L.C., Aubrey Conner, Legg Mason SBIC Mezzanine Fund, L.P., AEA Mezzanine Fund, L.P., AEA Mezzanine (Unleveraged) Fund, L.P., Paul Frontier Holdings, L.P., Joe Fiamingo, Wes Dehaven, Alex Suarez, and Empeiria Conner L.L.C., in its capacity as the seller representative are referred to in this opinion collectively as the "Empeiria Parties.”
. The majority cites several cases construing the phrase "arising out of,” but the provision does not contain this phrase.
. The Empeiria Parties assert that, though the word "accrual” does not appear in the Agreement, a synonym for "accrue” is "arise," which is the present tense of "arose.” Presuming that "arise” is a synonym for "accrue," this status does not change the function of the phrase "first arose” as modifying the Facts Phrase, not the phrase "any Claims of Product Liability.” Nor does the arise-means-accrue construct mean that the parties agreed that the scope of the indemnity would be “any Claims of Product Liability for which the facts, events and circumstances with respect to such Products Liability Claim first accrued prior to the Closing Date.” In any event, this language is not any clearer than the language contained in section 10.2(c) of the Agreement.
. The Grant Prideco Parties and the Empeiria Parties both assert that, under section 10.1 of the Agreement, written notice of section 10.2(c) indemnity claims must be made within eighteen months of the Closing Date. Nonetheless, an indemnity claim under section 10.2(c) falls under the unambiguous language of section 10.1(c), and therefore, written notice of such indemnity claims may be provided at any time until the applicable statute of limitations expires. The Grant Prideco Parties provided written notice of their indemnity claims under the Agreement within eighteen months of the Closing Date and before the expiration of the applicable statute of limitations. In any event, even if written notice of section 10.2(c) indemnity claims had to be provided within eighteen months of the Closing Date, that requirement would not make the scope of the indemnity under section 10.2(c) unambiguous. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284038/ | OPINION
Scott K. Field, Justice
Paul DeNucci, a minority shareholder in a closely held corporation, eStrategy Solutions, Inc. (ESS), alleged that John Matthews, the majority shareholder, president, and treasurer of the corporation, breached his fiduciary duties and committed fraud by, among other things, funding distributions by incurring unauthorized loans and failing to pay vendors. At trial, Matthews essentially admitted to this conduct but asserted that DeNucci had impliedly ratified the distributions by retaining his portion of the distribution. The trial court dismissed DeNucci’s fraud claims on a no-evidence motion for summary judgment. The remaining derivative breach of fiduciary duty claims proceeded to trial, including claims against Matthews and counterclaims against DeNucci. The trial court rendered judgment based on a jury verdict in favor of DeNucci, finding that Matthews had breached his fiduciary duties to the corporation, and awarded damages. All parties have appealed.
We affirm the trial court’s judgment, except as to the interest charges awarded to ESS as damages for Matthews’s breach of fiduciary duty. Concluding there is some evidence of damages but insufficient evidence to support the full amount awarded, we reverse this portion of the judgment and remand for further proceedings consistent with this opinion.1
BACKGROUND
This suit arises from a dispute among the three shareholders of ESS, a closely *205held corporation that provides online training and testing for persons who need to obtain or maintain a licensure by Texas governmental entities. The three shareholders are: (1) John Matthews, 51% majority shareholder; (2) Paul DeNueci, 40% minority shareholder; and (3) Steve Matt, 9% minority shareholder. Matthews is also the president, treasurer, founder, and CEO of ESS. Matt is also an employee and on the board of directors. DeNueci is the only non-employed, non-salaried shareholder.
In 2000, Matthews founded and incorporated ESS. In 2006, DeNueci purchased his shares for $72,000 and became a member of the board of directors. In addition to purchasing stock, DeNueci loaned $179,000 to ESS. In conjunction with the stock purchase and loan agreements, the shareholders agreed that the salaries for Matt and Matthews would not increase without DeNucci’s consent. Shortly thereafter, the three shareholders began receiving distributions from ESS. DeNueci testified that he consented to the distributions based on Matthews’s representations regarding the profitability of ESS.
In April of 2007, the shareholders agreed that ESS would temporarily suspend loan payments to DeNueci in order to stockpile cash needed for business development. Matthews testified at trial that, although ESS had stopped paying back its loan to DeNueci, the corporation never used the missed loan payments to increase its cash reserves.
In February 2008, DeNueci loaned ESS an additional $20,000. Matthews testified that, as a condition of the loan, he agreed that ESS would not incur any additional debt from other lenders. In May 2008, however, Matthews increased ESS’s line of credit at Frost Bank by $20,000. In August 2008, Matthews borrowed an additional $25,000 under a factoring agreement. Matthews testified that he did not, at the time ESS entered these agreements, disclose the additional debts to the other shareholders. He further testified that he borrowed the money to fund distributions, pay current expenses, and prepare for a new client that never came to fruition. While the company was borrowing money, all three shareholders continued to receive distributions.
Matthews testified that he was the only person at ESS who made determinations regarding the amount and frequency of distributions. He further testified that— during the time ESS was making distributions — he was the treasurer of the corporation but failed to keep books or records of the company’s financial transactions. To determine whether to make a distribution, Matthews testified that he looked at the corporation’s checking account and made a “very cursory” calculation of outstanding liabilities to determine how much money was available to distribute. He admitted, however, that he did not always consider ESS’s outstanding liabilities when making distributions and made distributions knowing that ESS would be unable to pay its vendors.
After learning that ESS was not paying its vendors, Matt and DeNueci called an emergency shareholders’ meeting in October 2008 to discuss ESS’s financials. Matthews admitted at trial that ESS was insolvent by this time, which was defined as unable to pay its obligations as they became due. There are no board minutes from the meeting, and the shareholders heavily dispute what was discussed. All parties agree that the shareholders agreed to stop distributions until ESS was solvent. It is also undisputed that, during this meeting, the shareholders — including De-Nucci — agreed to salary increases for Matthews and Matt. The parties disputed at trial, however, the extent to which Mat*206thews disclosed ESS’s financial woes, including the additional debts Matthews had incurred and that the corporation had been using borrowed money to fund distributions.
After the shareholders’ meeting, ESS retained — at DeNucci’s request — an auditor to review its financial records. According to the auditor’s report, ESS’s' distributions to shareholders in 2008 exceeded its net profits. The report found that ESS’s net profits for 2008 were less than $156,000, but that the company had distributed to shareholders more than $228,000. The report further concluded that Matthews had been able to fund the distributions only by incurring loans, failing to pay vendors, and not paying payroll liabilities owed to the IRS.
After the auditor issued her report, the relationships between the parties quickly deteriorated. Matthews and Matt eventually voted DeNucci off of the board of directors and limited his access to the company’s financial records. ESS also refused to resume regular payments on De-Nucci’s loans to the corporation. DeNucci, in turn, filed suit against Matthews, Matt, and ESS (collectively appellees) seeking to enforce the promissory notes and later added- claims for minority shareholder oppression and derivative claims on behalf of ESS, including claims for fraud and breach of fiduciary duty. The appellees, in turn, filed a counterclaim against DeNucci for breach of fiduciary duty. DeNucci obtained a favorable judgment on the promissory notes, and ESS has now repaid those notes with interest.
With regard to the remaining claims, Matthews and Matt obtained a no-evidence partial summary judgment dismissing the majority of DeNucci’s claims, including his claims of fraud and shareholder oppression. DeNucci then nonsuited his remaining claims against Matt prior to trial. Thus, the only claims submitted to the jury were DeNucci’s derivative claim for breach of fiduciary duty against Matthews and the appellees’ corresponding derivative counterclaim against DeNucci for breach of fiduciary duty, as well as a claim for declaratory relief seeking construction of a buy-out provision in the parties’ stock purchase agreement. The jury found in favor of DeNucci, finding that only Matthews had breached his fiduciary duties to ESS. The jury also found in favor of DeNucci in construing the stock purchase agreement.
The jury additionally found that Matthews’s breach of fiduciary duty proximately caused ESS to incur the following damages: (1) $0 for excess salaries; (2) $37,280 in excess distributions; (3) $39,783 in interest on the factoring agreement and other interest charges; (4) $92,000 in attorney’s fees; and (5) $13,600 in excess interest on the loan from DeNucci. The trial court rendered judgment consistent with the jury’s findings, except it eliminated the $92,000 awarded to ESS against Matthews for attorney’s fees proximately caused by his breach of fiduciary duty. The evidence at trial showed that ESS had paid $92,000 in attorney’s fees incurred by Matthews and Matt in this litigation.
The trial court additionally granted equitable relief to, in part, reinstate DeNucci to the board of directors and to require ESS to retain a bookkeeper and provide DeNucci with access to financial records. The trial court also awarded DeNucci $75,000 in attorney’s fees against ESS for preparation of the case and trial, see Tex. Bus. Orgs.Code § 21.561(b)(1) (court may order corporation to pay attorney’s fees plaintiff incurred in shareholder derivative proceeding if the court finds the proceeding resulted in substantial benefit to the corporation), and $10,000 in attorney’s fees for the declaratory judgment action. See Tex. Civ. Prac. & Rem.Code § 37.009.
*207All parties have appealed. DeNucci raises two issues on appeal: (1) whether the trial court erred in dismissing his fraud claims on no-evidence summary judgment; and (2) whether the trial court erred by not awarding to ESS the $92,000 in attorney’s fees designated by the jury as damages proximately caused by Matthews’s breach of fiduciary duty. We conclude any error in the trial court’s summary judgment was rendered harmless by the jury’s findings at trial. We further conclude that DeNucci has not shown the trial court abused its discretion by disregarding the jury’s findings on attorney’s fees.
On cross-appeal, the appellees raise five issues: (1) whether the trial court abused its discretion in permitting DeNucci to introduce undisclosed damages evidence; (2) whether DeNucci’s retention of his distribution proceeds constituted ratification of the distribution as a matter of law;' (3) or alternatively, whether there was insufficient evidence to support the jury’s finding that DeNucci had not breached his fiduciary duties by retaining the distributions; (4) whether the award of damages for interest was excessive; and (5) whether the trial court erred by finding that the buyout provision of the stock purchase agreement was ambiguous. We overrule the appellees’ issues on appeal, with the exception of their challenge to the factual sufficiency of the evidence supporting the award of interest charges.
Summary Judgment on DeNucci’s Fraud Claims
In his first issue on appeal, DeNucci challenges the trial court’s partial summary judgment on his fraud claims.2 A partial summary judgment is reviewable on appeal, where as here, it has been merged into a final judgment disposing of the whole case. See Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200, 201 (1959). “[T]he propriety of granting a partial summary judgment must be determined from the posture of the pleadings and evidence at the time the court granted the motion.” State Farm Fire & Cas. Co. v. Griffin, 888 S.W.2d 150, 153 (Tex.App.-Houston [1st Dist.] 1994, no writ).
A trial court’s erroneous decision to grant summary judgment, however, can be rendered harmless by subsequent events in the trial court. See Progressive Cnty. Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 921 (Tex.2005) (holding that any error in granting partial summary judgment was rendered harmless when subsequent jury finding negated recovery on dismissed claim); see also Tex.R.App. P. 44.1(a). The harmless error rule states that before reversing a judgment because of an error of law, the reviewing court must find that the error amounted to such a denial of the appellant’s rights that the error “probably caused the rendition of an improper judgment,” or that the error “probably prevented the appellant from properly presenting the case to the court of appeals.” See Tex.R.App. P. 44.1(a); see also G & H Towing Co. v. Magee, 347 S.W.3d 293, 297-98 (Tex.2011). “The rule applies to all errors.” See G & H Towing Co., 347 S.W.3d at 297. Thus, to merit reversal, DeNucci must show that the trial court’s grant of the motion for partial summary judgment on his fraud claims was harmful. See Tex.R.App. P. 44.1(a); see also Pro*208gressive Cnty. Mut. Ins., 177 S.W.3d at 921.
On appeal, DeNucci contends that he was harmed by the trial court’s partial summary judgment of his fraud claims because he was not able to recover damages at trial related to Matthews and Matt’s salary increases. In his live pleadings at the time of summary judgment, however, DeNucci asserted the same factual basis for both his claims of fraud and breach of fiduciary duty, and the jury failed to find that the salary increases were damages proximately caused by Matthews’s conduct. DeNucci pleaded that Matthews had both breached his fiduciary duties and committed fraud by distributing non-existent profits and by misrepresenting the profitability of ESS to induce DeNucci to consent to salary increases for Matthews and Matt. DeNucci additionally sought the same damages, return of the prohibited distributions and return of the salary increases, for both claims. The trial court granted summary judgment as to the fraud claim but permitted DeNucci to proceed at trial with his breach of fiduciary duty claim.
Because the breach of fiduciary duty and fraud claims were based on the same facts and sought the same damages, the parties fully litigated at trial the distribution and salary increase issues, and the trial court admitted all evidence relevant to these claims. With regard to the distributions, DeNucci presented evidence that Matthews had made distributions by borrowing undisclosed debts and failing to pay vendors. Matthews essentially admitted to this conduct at trial, and DeNucci recovered damages for this claim.
With regard to the salary increases, however, there were many disputed fact issues at trial. DeNucci testified that Matthews had induced him to consent to the salary increases by misrepresenting the profitability of ESS and failing to disclose the additional debts Matthews had incurred. Matthews, on the other hand, testified that he had clarified many of the alleged misrepresentations prior to De-Nucci’s consent to the salary increases. The appellees additionally pleaded and presented evidence that DeNucci had ratified the salary increases after all material facts were disclosed to him. The evidence included an email from DeNucci, written after he received the auditor’s report, stating: “I do not care whether or not you have taken your raise — I ok’d it.” The jury was instructed that any breach of fiduciary duty by Matthews was excused if DeNucci ratified the conduct after all material facts were fully disclosed to him. The jury then found that the salary increases were not damages proximately caused by Matthews’s breach of fiduciary duty.
Assuming without deciding that the trial court erred by dismissing the fraud claims, we conclude any error was harmless because the issue of whether the salary increases were damages proximately caused by Matthews’s conduct was fully litigated at trial independently of the grant of the motion for partial summary judgment. See Progressive Cnty. Mut. Ins., 177 S.W.3d at 921 (error is harmless when subsequent jury finding negates an essential element of claim dismissed on summary judgment). As noted above, the jury found that the salary increases were not damages proximately caused by Matthews’s breach of fiduciary duty. This finding has not been challenged on appeal and may be considered in determining harm from the trial court’s grant of partial summary judgment. See id.
On appeal, DeNucci attempts to re-litigate this claim by characterizing it as a fraud claim. Both claims, however, were predicated on identical theories of liability, *209and an officer’s fraudulent conduct that harms the corporation is necessarily also a breach of the officer’s fiduciary duties. See Fidelity Nat’l Title Ins. Co. v. Heart of Tex. Title Co., No. 03-98-00473-CV, 2000 WL 13037, at *3 (Tex.App.-Austin Jan. 6, 2000, pet. denied) (not designated for publication) (“[A] breach of fiduciary duty that causes injury to another is always fraudulent; whether that fraud is actual or constructive is determined by the actor’s mental state or moral culpability.”); see also Smith v. Moody Gardens, Inc., 336 S.W.3d 816, 821 (Tex.App.-Houston [1st Dist.] 2011, no pet.) (where jury found on statutory claim that skater’s fall was not proximately caused by deep groove in ice, any error in trial court’s summary judgment of negligence and premises liability claims that were predicated on same facts and theory of recovery was harmless error). Accordingly, we cannot conclude that DeNucci has shown that the trial court’s partial summary judgment on his fraud claims was harmful error.
Attorney’s Fees
In his last issue on appeal, De-Nucci challenges the trial court’s refusal to award ESS attorney’s fees designated by the jury as damages proximately caused by Matthews’s breach of fiduciary duty. The trial court had asked the jury what amount of attorney’s fees, if any, were proximately caused by Matthews’s failure to comply with his fiduciary duty to ESS. The jury responded: “$92,000.00.” There was evidence at trial that this was the total amount of legal fees paid by ESS during this litigation for both Matthews and Matt’s litigation costs. The trial court initially rendered a final judgment consistent with the jury’s findings awarding ESS $92,000 in attorney’s fees for the breach of fiduciary duty claim. The appellees moved to modify the judgment, in part, on the grounds that — under the American Rule— attorney’s fees “paid to prosecute or defend a lawsuit cannot be recovered in that suit absent a statute or contract that allows for their recovery.” See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research Corp., 299 S.W.3d 106, 120 (Tex.2009). The trial court granted the motion and entered a modified judgment deleting the award. The availability of attorney’s fees is a question of law we review de novo. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94-95 (Tex.1999).
A prevailing party on a breach of fiduciary duty claim generally may not recover attorney’s fees against an adversary to the claim. See Turner v. Turner, 385 S.W.2d 230, 233 (Tex.1964) (“The general rule of law in this state is that, unless provided for by statute or by contract between the parties, attorney’s fees incurred by a party to litigation are not recoverable against his adversary ... in an action in tort.”); Potter v. GMP, L.L.C., 141 S.W.3d 698, 705 (Tex.App.-San Antonio 2004, pet. dism’d) (attorney’s fees are generally not recoverable for breach of fiduciary duty claims). Here, however, DeNucci — pursuant to a statutory provision — was able to recover from ESS the $75,000 in attorney’s fees he incurred prosecuting the breach of fiduciary duty claim derivatively on behalf of ESS. See Tex. Bus. Orgs.Code § 21.561(b)(1) (court may order corporation to pay attorney’s fees plaintiff incurred in shareholder derivative proceeding if the court finds the proceeding has resulted in substantial benefit to the corporation). These attorney’s fees have not been challenged and are not at issue in this case.
What is at issue, however, is whether ESS can recover as damages for its successful breach of fiduciary duty claim the $92,000 in attorney’s fees the corporation *210paid for Matthews arid Matt’s litigation expenses. These attorney’s fees were not incurred solely on the breach of fiduciary duty claim against Matthews and included fees related to other causes of action in the suit, including DeNucci’s nonsuited claims against Matt.
On appeal, DeNucci’s sole argument for recovering these fees is that Matthews breached his fiduciary duties to ESS by improperly authorizing the corporation to pay these expenses without following the appropriate procedures for indemnification in ESS’s bylaws, including failing to provide ESS with written affirmation of his good faith belief that he met the standard of conduct necessary for indemnification. Thus, DeNucci reasons that Matthews breached his fiduciary duties by improperly causing ESS to indemnify its officers without following the appropriate procedures for indemnification, and the damages proximately caused by that breach of fiduciary duty were the attorney’s fees paid by ESS.
DeNucci, however, failed to plead this theory of liability at trial. Rather, DeNucci’s live pleadings at trial alleged Matthews had breached his fiduciary duties by increasing officer salaries, distributing non-existent profits, and incurring unauthorized debt. The pleadings did not allege improper indemnification as a basis for his breach of fiduciary duty claim, in fact, the pleadings do not mention the bylaw provisions related to indemnification nor Matthews’s alleged improper advancement of indemnification funds. “A party may not be granted relief in the absence of pleadings to support that relief.” See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.1983). Moreover, DeNucci failed to present this theory of recovery to the trial court. Rather, De-Nucci’s arguments at trial mirrored his pleadings. During closing arguments, De-Nucci’s counsel asked the jury to award attorney’s fees on the breach of fiduciary duty claim because Matthews’s undisclosed borrowing and distribution of nonexistent profits had caused ESS to incur attorney’s fees in this litigation. Counsel did not argue that attorney’s fees should be awarded because Matthews had breached his fiduciary duties by failing to follow proper indemnification procedures. Likewise, when asked by the trial court to respond to the appellees’ motion to modify the award of attorney’s fees, DeNucci responded that the fees were recoverable because the litigation could have been avoided if Matthews had not breached his fiduciary duties by distributing non-existent profits. Again, even after a direct request from the trial court, DeNucci failed to argue that the attorney’s fees were recoverable based on improper indemnification.
We therefore cannot conclude DeNucci has shown an abuse of discretion by the trial court in refusing to award attorney’s fees based on a theory of recovery he failed to plead or otherwise present to the trial court. See In re L.M.I., 119 S.W.3d 707, 711 (Tex.2003) (to preserve issue for appellate review, party must present to trial court timely request, motion, or objection, state specific grounds therefor, and obtain ruling). Accordingly, we overrule DeNucci’s third issue on appeal and have disposed of all of DeNucci’s appellate issues.
Admission of DeNucci’s Damages Model
Moving to the issues raised on cross-appeal, the appellees first contend that the trial court abused its discretion in admitting DeNucci’s damages testimony because he failed to disclose the expert damages model on which he relied at trial. The appellees, however, failed to object to *211DeNucci’s damages testimony on this ground. Without a timely objection, the appellees have waived any error in the admission of the testimony. See Tex. R.App. P. 33.1(a)(1) (to preserve error, party must present complaint to trial court via timely objection or request and obtain a ruling). Moreover, the expert’s damages model was admitted as an exhibit at trial without objection. Schwartz v. Forest Pharms., Inc., 127 S.W.3d 118, 124 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (error in admitting evidence is cured when same evidence comes in elsewhere without objection). Accordingly, we conclude the appellees failed to preserve error for their first issue on appeal.
DeNucci’s Retention of Distributions
. At trial, there was evidence that the Board members — Matthews, Matt, and DeNucci — had assented to $73,000 in distributions that exceeded the company’s profits. There was also evidence that ESS had stopped paying its vendors to fund the distributions and did not have sufficient funds to pay its outstanding liabilities. At trial, Matthews testified that, as the president and treasurer of ESS, he was “the only person who made [the] determination about how much and when to pay distributions.” He testified further that he had represented that distributions were being made from profits, and that it was “reasonable” for the other Board members “to think that the distributions that were being made were based on the actual profit of the company.” During cross-examination, Matthews admitted that the distributions had been “inappropriate.” He further admitted that the distributions had rendered ESS insolvent, meaning unable to pay its debts as they became due. According to the auditor’s report, the total excess distributions paid to each shareholder were: (1) $37,230 to Matthews; (2) $29,000 to DeNucci; and (3) $6,570 to Matt. None of the three shareholders, however, has returned these excess distributions to ESS.
Rather, DeNucci retained his distributions but sued Matthews for breach of fiduciary duty and sought disgorgement of Matthews’s distributions as an element of damages. The appellees, in turn, counter-sued DeNucci for breach of fiduciary duty and sought disgorgement of DeNucci’s distributions as damages. Alternatively, the appellees alleged that DeNucci had ratified the distributions by failing to return his portion to ESS, and therefore, no shareholder was required to return the distributions. The jury found in favor of DeNucci, finding that he had complied with his fiduciary duties to ESS. On the other hand, the jury found that Matthews had breached his fiduciary duties and awarded against him the $37,000 he had received in excess distributions.
On appeal, the appellees contend that ESS — as a matter of law — is entitled to recover from DeNucci the distributions he received. Alternately, the appellees contend that DeNucci’s retention of the distributions constituted ratification as a matter of law, and thus, no shareholder is required to return their distributions.3 We disagree with both contentions.
*2121.DeNucci’s Liability as Director for Wrongful Distributions
We first address the appellees’ contention that ESS is entitled as a matter of law to recover the distributions it made to DeNucci. Although not raised by the parties on appeal, the Legislature has prescribed exclusive statutory remedies to redress the injury caused to a corporation when a director approves or a shareholder receives a prohibited distribution. See Tex. Bus. Orgs.Code §§ 21.316(d) (Liability of Directors for Wrongful Distributions) (“[Liability imposed under [the statute] is the only liability of a director to the corporation or its creditors for authorizing a distribution that is prohibited.... ”), 21.318 (Contribution From Certain Shareholders and Directors) (“[Liability provided by [the statute] is the only liability of a shareholder to the corporation ... for accepting or receiving a distribution by the corporation that is prohibited.... ”). Prohibited distributions are defined to include distributions that, as here, render the corporation insolvent — defined as unable to pay its debts as they become due in the usual course of business. See id. §§ 1.002(40), 21.303(b)(1).
The key for liability under the statute is not whether the director retained a prohibited distribution, but whether the director should suffer liability for authorizing the distribution. See id. § 21.316. Pursuant to the statute, a director is not liable to the corporation for a prohibited distribution if, in voting or assenting to the distribution, the director relies in good faith with ordinary care on statements prepared or presented by an officer or employee of the corporation. Id. § 21.316(c). Here, Matthews admitted at trial that — as the president and treasurer of ESS — he had made representations to DeNucci regarding the profitability of the company and that De-Nucci had relied in good faith on these representations in assenting to the distributions. Accordingly, we cannot conclude that appellees have established as a matter of law that ESS is entitled to recover against DeNucci for approving the distributions.
2. DeNucci’s Liability as Shareholder
With regard to DeNucci’s receipt of the distributions as a shareholder, the Legislature has provided that a shareholder shall be liable for a wrongful distribution only if the shareholder “accepted or received the wrongful distribution knowing that it was prohibited.” See id. § 21.318(a), (c). Upon such proof, a director who is held liable for approving a wrongful distribution is “entitled to receive contributions from shareholders who accepted or received the wrongful distribution knowing that it was prohibited.” Id. § 21.318(b). This “is the only liability of a shareholder to the corporation ... for accepting or receiving a distribution by the corporation that is prohibited.” Id. § 21.318(c).
Here, however, Matthews neither pleaded nor proved a contribution claim against DeNucci for accepting a distribution he knew was prohibited. Moreover, there was no evidence at trial that DeNucci accepted or received the distributions knowing they would render the corporation insolvent. As such, we cannot conclude the appellees have shown as a matter of law that DeNucci is liable for the distributions he received as a shareholder.
3. Ratification
In the alternative, appellees contend that DeNucci’s retention of the distributions as a shareholder constituted a ratification of the distributions as a matter of law. “It is the general rule in Texas that transactions between corporate fiduciaries and their corporation are capable of ratification by the’ shareholders.” See General Dynamics v. Torres, 915 S.W.2d *21345, 50 (Tex.App.-El Paso 1995, writ denied). Ratification, however, is only effective when the officer has fully disclosed all of the material facts of the transaction to the shareholders. Id. Here, as detailed more fully above, there was evidence at trial that DeNucci was not aware of Matthews’s conduct when he received his distributions. After he was informed that ESS had been making wrongful distributions, the evidence at trial showed that DeNucci immediately condemned Matthews’s conduct, and shortly thereafter, initiated this suit. At trial, the jury was instructed on ratification but failed to find that DeNucci had ratified Matthews’s conduct after all material facts were fully disclosed to him.
On appeal, the appellees contend De-Nucci’s retention of his distribution proceeds constituted ratification of the transaction as a matter of law and precludes Matthews’s liability as a director of ESS. The Legislature, however, in prescribing the exclusive remedies for holding a director liable for a wrongful distribution did not include ratification or retention of the distributions by a shareholder as an affirmative defense to a director’s liability. See Tex. Bus. Orgs.Code § 21.316 (providing statutory affirmative defense for director who authorizes prohibited distribution when director relies in good faith with ordinary care on certain information but not providing affirmative defense when shareholder retains wrongful distribution). Rather, the Legislature provided for disgorgement of a shareholder’s distribution only when the shareholder “accepted or received the wrongful distribution knowing that it was prohibited.” Id. § 21.318(a), (c). Accordingly, we cannot conclude that DeNucci’s retention of the distributions negated Matthews’s statutory liability.
Moreover, we note that other appellate courts have found that a director who engages in self-dealing conduct cannot assert shareholder ratification as a defense to a transaction barred by statute or public policy. See Dyer v. Shafer, Gilliland, Davis, McCollum & Ashley, Inc., 779 S.W.2d 474, 478 (Tex.App.-El Paso 1989, writ denied) (“[A]s with other acts involving interested directors, the shareholders of the corporation ordinarily can ratify the transaction; the ratification is valid unless the transaction itself violates a statute or public policy.”); Pruitt v. Westbrook, 11 S.W.2d 562, 565 (Tex.Civ.App.-Fort Worth 1928, no writ) (“[B]ody of shareholders can ratify and confirm any act, done by the directors unless the corporation is, by ... governing statute ... precluded from doing it in the first instance.”). Here, ESS was prohibited by statute from making distributions that rendered the company insolvent. See Tex. Bus. Orgs.Code § 21.303(b).
Based on the foregoing, we conclude that the appellees have failed to prove, as a matter of law, that ESS is entitled to recover its distributions to De-Nucci or that his retention of the distributions negated Matthews’s liability. We overrule the appellees’ second and third issues on cross appeal.4
*214Interest Charges Awarded as Damages
After DeNucci prevailed on his derivative breach of fiduciary duty claim against Matthews, the trial court awarded ESS— in accordance with the jury’s verdict— $39,783 in damages for interest charges accrued by ESS. In their fourth issue, appellees contend the award was excessive. We agree.
The standard of review for an excessive damages complaint is factual sufficiency of the evidence. See Rose v. Doctors Hosp., 801 S.W.2d 841, 847-48 (Tex.1990). The court of appeals should employ the same test for determining excessive damages as for any factual sufficiency question. See Pope v. Moore, 711 S.W.2d 622, 624 (Tex.1986). When considering a factual sufficiency challenge to a jury’s verdict, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). A court of appeals can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. See id. When reversing a trial court’s judgment for factual insufficiency, the court of appeals must detail all the evidence relevant to the issue and clearly state why the jury’s finding is factually insufficient or so against the great weight and preponderance of the evidence that it is manifestly unjust. See Ellis Cnty. State Bank v. Keever, 888 S.W.2d 790, 794 (Tex.1994).
Here, the jury found that Matthews’s failure to comply with his fiduciary duties had caused ESS to incur $39,783 in interest charges “on the factoring agreement and other interest charges.” At trial, De-Nucci had submitted a damages model seeking an award of $39,783 for interest charges accrued by ESS. The damages model represented that ESS had incurred these charges during the years 2007-2009 on interest charged for “the factoring agreement and other interest charges.” DeNucci .and his expert witness testified that the “other interest charges” arose from ESS’s Frost notes, credit card debt, and “other miscellaneous charges.”5
On appeal, DeNucci advances several theories of liability for recovering as damages the interest accrued by ESS on these debts. DeNucci first contends that if Matthews had not breached his fiduciary duties by incurring two new debts — the factoring agreement and the $20,000 extension on the Frost note, ESS would not have incurred interest charges on those debts. With regard to the remaining interest charges, DeNucci’s damages theory was that if Matthews had not breached his fiduciary duties by seeking and obtaining salary increases and prohibited distributions, then ESS would have had a greater cash flow and been able to retire its debt by 2008. Thus, DeNucci reasons that Matthews is liable for these interest charges because ESS — but for Matthews’s obtaining the salary increases and distributions — would have been able to pay off its debts sooner and avoid these interest charges.
On appeal, the appellees contend the award is excessive because there is factually insufficient evidence that Matthews’s breach of fiduciary duty caused ESS to incur all of these interest charges. The *215appellees concede there is a causal link between Matthews’s breach of fiduciary-duty and the interest incurred by ESS for the two new debts, the factoring agreement and the Frost extension. The appel-lees, however, contend that there is no causal link between Matthews’s breach of fiduciary duty and the interest incurred by ESS for prior debts of the company.
We agree with the appellees that the evidence is factually sufficient to support a damages award for the interest charges accrued by ESS .on the factoring agreement and Frost extension but insufficient to support the full amount of interest awarded by the jury as damages. De-Nucci’s damages theory for the remaining interest charges was premised on two theories of liability against Matthews: the salary increases and prohibited distributions. We cannot conclude, however, that either of these theories of liability establishes the necessary causal link between Matthews’s breach of fiduciary duty and the interest awarded.
First, with regard to the distributions, the Legislature has provided that a director who authorizes a prohibited distribution may be liable for the amount of the distribution. See Tex. Bus. Orgs.Code § 21.316. This, however, is “the only liability of a director to the corporation ... for authorizing a distribution that is prohibited.” Id. (emphasis added). As the Legislature has provided an exclusive remedy, Matthews’s authorization of the distributions cannot be used as a ground for awarding additional damages outside the remedies prescribed by the statute. See Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 192 (Tex.App.-Fort Worth 1995, writ denied) (“Under Texas law, in a situation where common law and a statute both provide remedies, the statutory remedy is cumulative of the common-law remedy unless the statute expressly or impliedly negates or denies the right to the common-law remedy.”).
With regard to the salary increases, the jury failed to find that Matthews’s breach of fiduciary duty proximately caused the salary increases.' Unchallenged jury findings, like findings of fact in a non-jury trial, are binding on appeal. See Wilson v. Texas Parks and Wildlife Dep’t, 853 S.W.2d 825, 832 (Tex.App.-Austin 1993), rev’d, on other grounds, 886 S.W.2d 259 (Tex.1994). As the jury found no causal link between Matthews’s alleged breach of fiduciary duty and the increased salaries, the record necessarily does not support a causal link between Matthews’s breach of fiduciary duty and interest charges caused by the increased salaries. Accordingly, we conclude there is factually insufficient evidence of causation to support the full award of interest.
When there is some evidence of damages but not enough to support the full amount awarded, we may either suggest a remittitur or remand to the trial court for a new trial. See Akin, Gump, Strauss, Hauer & Feld, 299 S.W.3d at 124. In this case, the evidence is sufficient to support an award for the interest charges incurred on the factoring agreement and Frost extension but insufficient to support the full amount awarded. We cannot, however, conclusively ascertain from the record how much of the $39,783 awarded in interest charges is solely attributable to the factoring agreement and the Frost extension. Accordingly, remittitur is not an available remedy in this case. See Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex.1996) (remittitur not available remedy when damages cannot be established as a matter of law). Therefore, we reverse the $39,783 awarded for interest charges and remand to the trial court for determination of the amount of the award *216attributable to the factoring agreement and Frost extension and for rendition of judgment accordingly. See Tex.R.App. P. 44.1(b).6
Declaratory Relief
In their last issue, the appellees challenge the trial court’s declaratory judgment construing the buy-out provision of the stock purchase agreement. In 2000, Matthews incorporated ESS and was its only shareholder. Six years later, DeNuc-ci learned of the business and sought to become a shareholder. At the time the parties entered into the agreement, the evidence at trial showed that ESS was a small, struggling corporation with no assets. To effectuate DeNucci’s purchase of forty percent of the corporation’s stock, ESS and DeNucci entered into a stock purchase agreement. Pursuant to the agreement, DeNucci agreed to pay ESS $72,000 in exchange for his 4,000 shares. The agreement additionally provided Matthews and Matt — who were the only other shareholders and also employees of ESS— the option, after two years, to purchase back 1,000 of those shares from DeNucci.
At issue is what the price should be for those 1,000 shares. The agreement provided that the cost of the shares should be calculated by:
[taking] the total revenue earned, by the Corporation during the twelve months preceding the date of the notice given to exercise the option, and this amount shall then be multiplied by 3 (three) and then multiplied again by the percentage of the total outstanding stock of the Corporation which is the subject of the option purchase.
(emphasis added). The parties dispute whether the phrase “total revenue earned,” which is not defined in the agreement, means: (1) total gross revenue, i.e, the total revenue received by ESS without deductions for expenses; or (2) total net revenue, i.e., the total revenue received by ESS minus deductions for expenses.
Finding the phrase ambiguous, the trial court submitted to the jury a question asking whether the parties had intended for the phrase to mean “total gross revenue” or “total net revenue.” After hearing testimony from all parties, the jury found that the parties had intended for the phrase to mean total gross revenue. On appeal, the appellees do not challenge the sufficiency of the evidence supporting the jury’s finding. Rather, the appellees contend that the only reasonable interpretation of the phrase “total revenue earned” is “total net revenue,” and thus, the trial *217court erred in submitting the issue to the jury because the contract is unambiguous. The appellees contend in their brief that interpreting the phrase as “total gross revenue” is unreasonable because such an interpretation “would impose an absurd valuation on DeNucei’s stock.”
Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). A contract is not ambiguous if it can be given a definite or certain meaning as a matter of law. Id. On the other hand, if the contract is subject to two or more reasonable interpretations after applying the pertinent rules of construction, the contract is ambiguous, which creates a fact issue on the parties’ intent. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). An ambiguity does not arise simply because the parties advance conflicting interpretations of the contract. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994). For an ambiguity to exist, both interpretations must be reasonable. See CBI Indus., 907 S.W.2d at 520.
When a term in a written agreement is not specifically defined, as in this agreement, the term should be given its plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used it in a technical or different sense. Heritage Res., Inc. v. Nations-Bank, 939 S.W.2d 118, 121 (Tex.1996). Applying this rule of construction, the term “revenue” is generally understood to mean “gross income or receipts.” See Black’s Law Dictionary 1433 (9th ed. 2009). Thus, we cannot conclude that it is unreasonable to interpret the phrase “total revenue earned” as meaning total gross revenue.
Moreover, while we cannot presume that a contract would impose an absurd or impossible condition on one of the parties, see Citizens Nat’l Bank v. Texas & Pac. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003, 1006 (1941), we cannot conclude that this interpretation is absurd in light of the circumstances present when the parties entered the contract. First, we note that this provision grants Matthews and Matt the right to force DeNucci to sell his stock. Moreover, DeNucci was the only non-salaried shareholder at ESS. Under the appellees’ interpretation of the contract, DeNucci’s stock would be valued based on the gross revenue of ESS minus expenses, which would include the salary expenses for Matthews and Matt. Thus, if the salaries for the other two shareholders consumed all of ESS’s revenue, DeNucci’s stock would be worthless. Under these circumstances, we cannot conclude that it was unreasonable for the parties to base the value of the stock on gross, rather than net, revenue.
The appellees contend on appeal that this result is unfair because, under this interpretation, the value of DeNucci’s stock has risen dramatically in the last six years. We, however, must look at the circumstances existing when the- parties entered into this agreement, not from hindsight. See CBI Indus., 907 S.W.2d at 520. We overrule the appellees’ fifth issue on cross-appeal.
CONCLUSION
We affirm the trial court’s judgment, except as to the $39,783 awarded to ESS for interest charges. We reverse this portion of the trial court’s judgment and remand to the trial court for further proceedings consistent with this opinion. See Tex.RApp. P. 44.1.
. On January 25, 2013, we abated this appeal upon the appellees' request because the parties had potentially reached a mediated settlement of the underlying suit in this appeal. On September 8, 2014, the parties filed a joint status report informing the Court that settlement efforts had failed and requesting the case be set for oral argument.
. On appeal, DeNucci initially also sought review of the trial court's dismissal on summary judgment of his shareholder oppression claims. In light of Ritchie v. Rupe, 443 S.W.3d 856, 877-91 (Tex.2014) (declining to recognize a common law cause of action for minority shareholder oppression in closely held corporation), DeNucci conceded this issue at oral argument and withdrew the issue from review.
. The appellees preserved error for these issues through a motion for new trial, but on appeal, they ask the Court to render judgment rather than remand for a new trial. We have held that "omission of an explicit prayer for a remand in [an] appellant’s brief does not waive his entitlement to such relief or limit our power to award it ... if we sustain any of his issues on appeal.” Majeed. v. Hussain, No. 03-08-00679-CV, 2010 WL 4137472, at *8 (Tex.App.-Austin Oct. 22, 2010, no pet.) (mem.op.).
. On appeal, the appellees filed a motion to dismiss DeNucci's derivative claims on the grounds that his retention of the distributions rendered him unable to fairly and adequately represent the interests of the corporation. See Tex. Bus. Orgs.Code § 21.552 (shareholder may not institute derivative proceeding unless the shareholder fairly and adequately represents interests of the corporation). The Legislature has enacted special rules to allow shareholders in a closely held corporation, such as ESS, to more easily bring a derivative suit on behalf of the corporation. See id. § 21.563(b); see also Ritchie v. Rupe, 443 S.W.3d 856, 880-81 (Tex.2014). Pursuant to these rules, "shareholders in a closely held corporation ... can bring a derivative action without having to prove that they fairly and *214adequately represent the interests of the corporation.” Ritchie, 443 S.W.3d at 881. We overrule the appellees' motion to dismiss.
. The trial court additionally awarded against Matthews, in accordance with the jury's ver-diet, $13,600 in interest charges accrued on ESS's loan from DeNucci as a separate category of damages. The damages for the De-Nucci loan have not been appealed and are not addressed in this opinion.
. We may not order a separate trial solely on unliquidated damages if liability is contested. See Tex.R.App. P. 44.1(b); but see Browning Oil Co. v. Luecke, 38 S.W.3d 625, 647 (Tex.App.-Austin 2000, pet. denied) (holding good cause existed to suspend application of this rule when interests of justice warranted a new trial on issue of damages alone). Here, however, Matthews concedes he is liable for the interest charges incurred on the factoring agreement and the Frost extension. Moreover, the amount of interest incurred on these loans "can be determined with exactness ... by arithmetical process." See Rycade Oil Corp. v. Lasater, 375 S.W.2d 556, 557 (Tex.Civ.App.-Austin 1964, no writ) (internal quotation marks omitted) ("Liquidated means made certain as to what and how much is due, and a liquidated claim is one which can be determined with exactness from the agreement between the parties, or by arithmetical process, or by the application of definite rules of law.”); see also Ortiz Oil Co. v. Geyer, 138 Tex. 373, 159 S.W.2d 494, 497 (1942) (concluding that demand of royalty owners could be calculated on undisputed factors, such as amount of oil produced and price of oil, and was liquidated demand). Because liability is uncontested and the amount of damages may be calculated with exactness, we remand only on the issue of damages related to the interest charges on the factoring agreement and Frost extension. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284039/ | KAREN R. BAKER, Associate Justice | ,On October 30, 1979, Appellant, Steven Wayne Bramlett, entered a negotiated plea of guilty to attempted capital murder and was sentenced to life in the Arkansas Department of Correction. The record demonstrates that Bramlett was seventeen years old when he committed this offense. On October 26, 2011, pursuant to Ark.Code Ann. § 16-111-101 (Repl.2010), Bramlett filed a pro se complaint for declaratory relief alleging that the parole-eligibility statute, codified at the time of the offense at Ark. Stat. Ann. § 43-2829 1 was unconstitutional 12as applied to Bram-lett. Relying on Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Bramlett requested the circuit court find that his life sentence for criminal attempt to commit capital murder violates the Eighth Amendment and is unconstitutional as applied to him and remand his case to the circuit court for resentenc-ing to a term of years. On December 7, 2011, Appellee, Ray Hobbs, as Director of the Arkansas Department of Correction (the State), responded with its motion to dismiss for failure to state facts for which relief can be granted, and also responded that the State was entitled to summary judgment pursuant to Ark. R. Civ. P. 56. On December 20, 2011, Bramlett responded to the State’s motion to dismiss and on January 6, 2012, the State replied. On January 17, 2012, Bramlett responded to the State’s reply and on January 20, 2012, the State filed a reply. On March 16, 2012, the circuit court denied Bramlett’s complaint for declaratory relief and granted the State’s motion for summary judgment and dismissed Bram-lett’s action. On March 26, 2012, Bramlett filed his notice of appeal. On May 16, 2012, Bramlett filed his brief, the State timely responded, and Bramlett timely replied. On January 29, 2015, we issued |3a per curiam opinion and ordered Bramlett to supplement his addendum. Bramlett v. Hobbs, 2015 Ark. 32, 2015 WL 393862 (per curiam). We were unable to reach the merits of Bramlett’s appeal because pleadings relied upon by the circuit court and the parties were omitted from Bramlett’s addendum. On February 11, 2015, Bramlett supplemented his addendum and the matter is now properly before the court. On appeal, Bramlett presents one issue: the circuit court erred by granting the State’s motion for summary judgment holding that his life sentence for attempted capital murder does not violate the Eighth Amendment to the United States Constitution and Graham does not entitle Bramlett to relief. The issue presented in this appeal stems from the circuit court’s order granting the State’s motion for summary judgment. The circuit court’s March 16, 2012 order states in pertinent part: In Graham the United States Supreme Court ruled that the Eighth Amendment to the United States Constitution prohibits a juvenile offender from being sentenced to life without a possibility of parole for a nonhomicide offenc[sie][s]e. Graham at 2017-18. Mr. Bramlett asks the Court to classify attempted capital murder as a nonho-micide offense. The parties did not cite nor has the Court found either a United States Supreme Court case or Arkansas case that has provided a list of crimes that fit into the category of a nonhomi-cide offense. A review of other States’ cases reveals division. Justice Kennedy explains that there are two types of Constitutional analyses. The first type is when a Court considers all of the circumstances of the case in determining whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime rendering it unconstitutionally excessive. The other is a categorical approach which was the one applied in the Graham case. In Graham the Court looked at a particular type of sentence (life without parole) as it applied to an entire class of offenders who had committed a range of crimes. Graham at 2022-23. ^Referencing Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3868, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); and Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1982); Justice Kennedy wrote, “The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Thus the Court has indicated, by implication, that one who kills, intends to kill or foresees that life will be taken may deserve the most serious punishment. This Court notes that in the analysis in Graham, culpability and punishment should correlate. There is a slim line of distinction between defendants who intend to kill and succeed and those who intend to kill but do not succeed. Should a person who intends to kill, acts upon that intention but is a poor shot be held less culpable than one who intends to kill, acts upon that intention but is a good shot? Although Bramlett’s victim survived, he admitted that he intended to kill her when he shot her multiple times. But for his poor aim, she would be dead. Following the reasoning in the Graham case, the crime of criminal attempt to commit capital murder falls within the category of a homicide offense, because it is an attempt to kill with one possible or probable foreseeable result the taking of a life. The motion for Summary Judgment is GRANTED and the case is DISMISSED. In Lipsey v. Giles, 2014 Ark. 309, at 5-6, 439 S.W.3d 13,17, we explained that “summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Moreover, ... even when there is no material dispute as to the facts, the court will determine whether ‘reasonable minds’ could draw ‘reasonable’ inconsistent hypotheses to render summary judgment inappropriate. In other words, when the facts are not at issue but possible inferences therefrom are, the court will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Id. If so, summary judgment is not appropriate.” Id. (internal citations omitted). Bramlett asserts that the circuit court erred, homicide under Graham does not include attempted capital murder, and he is entitled to relief launder Graham. Bramlett contends that pursuant to Ark. Code Ann. § 16-93-604, Bramlett has been denied “meaningful opportunity to obtain release mandated by the United States Supreme Court’s ruling in Graham.” Bramlett further contends that the circuit court has misapplied dicta in Graham to reach the result that attempted capital murder is a homicide offense. Finally, Bramlett asserts that a homicide, by law and definition, must include a death. The State responds that summary judgment was appropriate because there was no issue of material facts at issue and the circuit court properly granted summary judgement on the legal issue — whether attempted capital murder was a homicide offense within the meaning of Graham. The State contends that the Graham court did not hold that the Eighth Amendment prohibits the imposition of a sentence of life imprisonment without parole to a juvenile offender for the crime of attempted capital murder. Stated differently, the State contends that Graham did not hold that crimes of attempted homicide are not homicide offenses. The State urges us to affirm the circuit court and asserts that Bramlett’s interpretation of Graham would require this court to expand Graham’s holding, which this court is prohibiting from doing. Relying on the following language from the Graham opinion, the State further contends that, because the record demonstrates that Bramlett intended to kill his victim when he shot at her multiple times, his crime is “indeed a homicide under Graham The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically -less deserving of the most serious forms of punishment than are murderers. Graham, 560 U.S. at 69, 130 S.Ct. 2011 (internal citations omitted). |fiIn 2010, the Supreme Court of the United States held that the Eighth Amendment “forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender.” Graham, 560 U.S. at 75, 130 S.Ct. 2011. In Graham, the Court explained: There is a line “between homicide and other serious violent offenses against the individual.” Kennedy, 554 U.S. at [438], 128 S.Ct. at 2659-60. Serious nonhomi-cide crimes “may be devastating in their harm ... but ‘in terms of moral depravity and of the injury to the person and to the public,’ ... they cannot be compared to murder in their ‘severity and irrevo-cability.’” Id., at [438], 128 S.Ct. at 2660 (quoting Coker, 433 U.S. at 598, 97 S.Ct. 2861 (plurality opinion)). This is because “[l]ife is over for the victim of the murderer,” but for the victim of even a very serious nonhomicide crime, “life ... is not over and normally is not beyond repair.” Ibid, (plurality opinion). Although an offense like robbery or rape is “a serious crime deserving serious punishment,” Enmund, supra, at 797, 102 S.Ct. 3368, those crimes differ from homicide crimes in a moral sense. [[Image here]] In sum, penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders. This determination; the limited culpability of juvenile nonhomicide offenders; and the severity of life without parole sentences all lead to the conclusion that the sentencing practice under consideration is cruel and unusual. This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,” those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime. Roper [v. Simmons], 543 U.S. [551] at 574, 125 S.Ct. 1183 [161 L.Ed.2d 1 (2005) ]. Graham, 560 U.S. at 69, 75, 130 S.Ct. 2011. The crux of the issue in Bramlett’s appeal is whether, under Arkansas law, attempted capital murder is a homicide offense for purposes of Graham. Turning to our statutes, with regard to the term homicide, pursuant to Ark.Code Ann. § 5-10-101, codified in Title 5, Criminal Offenses; Subtitle 2, Offenses Against the Person; Chapter 10, Homicide, “Capital 17murder” provides that a person commits capital murder if under specific circumstances one “causes the death of a person.” Further, Ark.Code Ann. §§ 5-10-102 to - 105, “Murder in the first degree, Murder in the second degree, Manslaughter and Negligent Homicide,” address varying degrees of murder and each requires that the alleged offender “causes the death of another person.” Additionally, Ark.Code Ann. § 12-12-315, Notification of Certain Deaths by the State Crime Laboratory, provides that (a)(1) The county coroner, prosecuting attorney, and either the county sheriff or the chief of police of the municipality in which the death of a human being occurs shall be promptly notified by any physician, law enforcement officer, undertaker or embalmer, jailer, or coroner or by any other person present or with knowledge of the death if: (A) The death appears to be caused by violence or appears to be the result of a homicide or a suicide or to be accidental. (Emphasis added.) Finally, our case law has defined homicide as requiring death. In Edmonds v. State, 34 Ark. 720 (1879), this court clearly explained corpus delicti of a homicide: In cases of alleged homicide, the proof of a corpus delicti, involves that of the following points, or general facts: First, the fact of death, particularly as shown by the discovery of the body, or its remains; secondly, the identification of such body, or remains, as those of the person charged to have been killed; and, thirdly, the criminal agency of another, as the cause of the death. (Emphasis added.) In Ware v. State, 348 Ark. 181, 191, 75 S.W.3d 165, 171 (2002), we again discussed the corpus delicti rule in a homicide case and explained: In a murder case, this rule requires the State to prove that the deceased came to his death at the hands of another person. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 [1996], This court has recognized, however, that there is no requirement that medical testimony be provided regarding the cause of death. Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975); Glover v. State, 211 Ark. 1002, 204 S.W.2d 373 (1947). Both elements, the fact of death and the cause of death, may be shown by strong and unequivocal circumstantial evidence such as to leave no ground for reasonable doubt; thus, where there is some proof of the corpus delicti, its weight and sufficiency is properly left to the jury. Sims, 258 Ark. 940, 530 S.W.2d 182 (citing Edmonds v. State, 34 Ark. 720 (1879)). See also Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981). Furthermore, Black’s Law Dictionary defines homicide as “the killing of one person by another.” Black’s Law Dictionary, 751 (8th ed. 2004). Finally, we have reviewed other state appellate courts’ interpretations of Graham and whether an offense like the one here, attempted capital murder, qualifies as a homicide offense for purposes of Graham. The Florida District Court of Appeal has addressed the issue and held that a juvenile offender’s life sentence for attempted murder was unconstitutional under Graham. In Manuel v. State, 48 So.3d 94, 97 (Fla.Dist.Ct.App.2010), the court explained: The Florida Supreme Court has stated that under the definition of homicide, ‘[i]t is necessary for the act to result in the death of a human being. Tipton v. State, 97 So.2d 277, 281 (Fla.1957).... We do not discount the seriousness of the offenses committed by Mr. Manuel. However, his actions did not result in the death of a human being. Thus, we are compelled to conclude that Mr. Manuel’s attempted murder conviction is a ‘nonhomicide’ offense under both Tipton and Graham. Accordingly, Graham’s holding forbidding a sentence of life without parole for a juvenile nonhomi-cide offender applies to Mr. Manuel and requires us to vacate his l'ife-without-parole sentences. Id.; see also McCullum v. State, 60 So.3d 502 (Fla.Dist.Ct.App.2011) (per curiam) (holding that the appellant’s life sentence for attempted second-degree murder is unconstitutional under Graham); Lawton v. State, 109 So.3d 825, 829 (Fla.App. 3 Dist., 2013) (“We hold that the life-without-parole sentences imposed for the two counts of attempted first-degree murder in the nonhomicide case violate ... Graham and Lawton is entitled to a new sentencing | shearing on those counts.”) Relying upon the Delaware Supreme Court’s unreported opinion in Twyman v. State, 2011 WL 3078822 (Del.Supr.), the State urges us to affirm the circuit court and hold that attempted capital murder is a homicide offense for purposes of Graham. In Twy-man, the court held: First, ... under Graham, Attempted Murder in the First Degree appears to fall within the category of crimes for which a life sentence without parole may be imposed upon a juvenile. FN6. Second, in Graham, the United States Supreme Court held that the Eighth Amendment prohibits imposing a life sentence without parole on a juvenile who is sentenced “solely for a nonhomi-cide offense,” which is not the case here. FN7. In this case, Twyman was sentenced for homicide and nonhomicide offenses, namely for his convictions on Murder in the First Degree, Attempted Murder in the First Degree, Conspiracy in the First Degree, Murder in the Second Degree and firearm offenses. FN6. See Graham v. Florida, 130 S.Ct. at 2027 (recognizing that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers”) (emphasis added). FN7. In Graham, the sixteen-year-old defendant was convicted of armed burglary with assault or battery, a felony that carried a maximum penalty of life imprisonment, and attempted armed robbery. The trial court imposed the maximum sentence for both crimes. Because Florida does not have a parole system, the defendant’s life sentence was without the possibility of parole. Graham v. Florida, 130 S.Ct. at 2019-20. Id. at *1 nn. 6 & 7. However, as the Delaware Supreme Court states, Twyman was not analogous to Graham. Twyman was convicted and sentenced for both nonhomicide and homicide offenses, Graham was not. Accordingly, we are not persuaded by the reasoning in Twyman, rather we find the Florida appellate courts’ analysis on point and adopt that reasoning here. Based on our discussion above, we hold that attempted capital murder is not a 1 mhomicide offense for purposes of Graham. In sum, our own state law regarding the definition of homicide and the United States Supreme Court’s holding in Graham dictate that attempted capital murder is not a homicide offense pursuant to Graham. Therefore, we reverse and remand this matter to the circuit court for further proceedings consistent with this opinion. Reversed and remanded. . Ark. Stat. Ann. § 43-2829 is now codified at Ark.Code Ann. § 16-93-604 (Repl. 2006). ■ For felonies committed between April 1, 1977 and April 1, 1983, subsection (b)(1) provides: (b) A person who committed felonies on and after April 1, 1977 and prior to April 1, 1983, and who has been convicted and incarcerated therefor, is eligible for release on parole as follows: (1) An inmate under sentence of death or life imprisonment without parole is not eligible for release on parole but may be pardoned or have his or her sentence commuted by the Governor, as provided by law. An inmate sentenced to life imprisonment is not eligible for release on parole unless the sentence is commuted to a term of years by executive clemency. Upon commutation, the inmate is eligible for release on parole as provided in this section[.] Parole eligibility is determined by the law in effect at the time the crime is committed. Boles v. Huckabee, 340 Ark. 410, 12 S.W.3d 201 (2000). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284040/ | OPINION
J. LAMBERT, JUDGE:
Troy Hudson appeals from the Campbell Family Court’s custody and visitation order entered on July 3, 2014. After careful review, we affirm.
The parties in this action were never married, but have one child together, a son, J.C., who is now two years old. Ashley and Troy met while attending Western Michigan University in Kálamazoo, Michigan, and conceived the child shortly after Troy had graduated and while Ashley was in her last year of school. In the last month of her pregnancy, Ashley moved back to Ft. Thomas, Kentucky, to live with her parents. She gave birth to J.C. in January 2013.
Troy was involved in J.C.’s prenatal care and was present for his birth. The parties had discussed parenting the child together while living in Michigan; however the parties have never been in a romantic relationship. According to Troy, Ashley’s move to Kentucky was a surprise. Troy feels it is important that he be involved in the child’s life in a significant way.
Currently, Troy continues to reside in Michigan, while Ashley continues to live in Ft. Thomas, Kentucky. Troy has been employed with various Republican political campaigns in Michigan since graduating. In his current position he works for a Republican House of Representatives’ campaign, a position he obtained through a professional contact he made from the last campaign on which he worked. Troy testified that it would be very hard for him to find similar employment in Kentucky because he has never worked for the Republican Party here and does not have any political connections within the state. Ashley stipulated at trial that Troy would not be able to find similar work in the Northern Kentucky or Cincinnati areas.
On March 19, 2013, approximately two months after J.C. was born, Troy filed' a petition for custody in the Campbell Family Court and asked for temporary orders regarding custody and parenting time. The parties were able to agree on a temporary parenting time schedule for J.C., entered May 8, 2013, wherein Troy would travel to the Northern Kentucky area at least once a month to have parenting time with the child from Saturday to Sunday. Troy testified that he normally stayed in a hotel and that his parents and brother would sometimes travel with him. He also testified that during these short visits, Ashley would sometimes not send enough breast milk for the child and that sometimes this interrupted his parenting time with J.C.
The parties mediated the matter unsuccessfully. Ashley requested a parenting time/custody assessment. Over Troy’s objection, the family court appointed Dr. Jean Deters to conduct an assessment and issue a recommendation on parenting time for the child because the parents live approximately five hours apart. The parties began meeting with Dr. Deters for interviews, observation with the child, and testing over a period of several months. The main point of contention was that Ashley did not want the child to travel to Michigan for parenting time, and Troy wanted *349more, longer periods of parenting time with J.C. in Michigan. Both parties testified that the other party was a good and fit parent.
Troy continued to request additional parenting time with J.C. at his home in Michigan. At a hearing on December 9, 2013, the family court granted holiday parenting time to Troy at his home in Kalamazoo, Michigan, for a period of four days. Immediately after the hearing, Troy and Ashley agreed to modify the court ordered parenting time for the holiday period. Ashley was still breast feeding, and the parties agreed that Ashley would bring J.C. to Michigan so she could stay in the area while Troy had parenting time with the child. This would allow her to provide J.C. with additional breast milk. Troy’s parenting time ended early when Ashley had to return to work, and at this time Troy voluntarily agreed to shorten his parenting time in order to accommodate Ashley’s schedule and to ensure that J.C. had breast milk. Ashley testified that as of July 2014, she was no longer breast feeding J.C.
Before the final hearing in this matter, the parties entered into an agreed order regarding child support and payment of uncovered medical expenses. Troy has regularly been paying $420.00 per month to Ashley for child support. The parties agreed on all other issues except parenting time.
In February 2014, Dr. Deters issued a “Parenting Time Assessment” report. Dr. Deters compiled the forty-page report after approximately two sessions with each party. Dr. Deters’ report included a suggested schedule of parenting time for the child based on Troy’s ability to travel to Kentucky one weekend per month and included different scenarios for when the child is in school, is in out-of-home daycare, or in home daycare. Currently, J.C.’s maternal grandmother is watching J.C. while Ashley works during the day.
Among other things, the assessment recommends that Troy should not have any overnight parenting time at J.C.’s current age. It also recommends no overnight parenting time until J.C. is between thirty to forty-two months old. The assessment also concludes that J.C. should not travel to Michigan with the exception of some significant life event until Troy exercises week long vacation parenting time, which is not recommended until J.C. is 5½ years old. Full weekends with Troy are not recommended until J.C. is 7½ years old. Troy argues that these recommendations are inconsistent with his fundamental right and sincere desire to pursue a personal and significant relationship with his son.
The family court held a hearing on the contested issues on May 30, 2014, and issued its order on July 3, 2014. Both parties testified and submitted proposed findings of fact and conclusions of law. Troy submitted an entire custody order as an exhibit to his proposed findings and testified as to the contents of his proposal. He requested extended time in Michigan with J.C. before he begins school and the majority of the summer with J.C. in Michigan after J.C. begins Kindergarten, with weekends and breaks in Michigan during the rest of the year. Troy testified that his work schedule could be somewhat erratic and that it is difficult for him to get to Kentucky more than one weekend a month at this time. Working for the political campaign in Michigan involves evening and weekend work at times. Troy would have more flexibility in his work schedule and a better quality of parenting time with J.C. if the child could travel to Michigan. J.C.’s paternal grandmother is able to provide free daycare for the child during the time Troy works.
*350Ashley testified at the hearing that J.C. has a very difficult time dealing with confinement in a car seat, and it is extremely hard for him to deal with anything more than a quick ride to the grocery store. Ashley described how difficult the car ride up to Michigan for Christmas was for J.C., and stated that a trip that usually takes five hours took eight because she had to stop numerous times to calm J.C. Ashley described the trip home as being even worse for J.C. and stated that she had never seen J.C. so upset. "J.C. screamed and flailed when she went to put him in the car seat and cried for almost the entire ride home. Ashley testified that the only time J.C. did not cry was for the short time he fell asleep from wearing himself out from crying. She described that after this trip to Michigan, J.C. did not talk (meaning make any baby noises) for several days afterward and that when she would put him near the car seat, he became upset.
The family court adopted Dr. Deters’ assessment in full as the order of the court regarding parenting time and found that schedule to be in J.C.’s best interest. Dr. Deters did not testify at trial, as the court had previously ordered that her report was to be considered in lieu of live testimony. Dr. Deters’ report utilized the best interest of the child standard when determining appropriate parenting time.
Troy now appeals from the family court’s July 3, 2014 order, arguing that the court used the incorrect standard when adopting the report’s “best interest” standard to determine his parenting time. Troy argues that by adopting the recommendations of Dr. Deters, the family court failed to grant the appropriate amount of parenting time to him and unreasonably restricted his parenting time schedule. Troy contends that the family court should have looked to Kentucky Revised Statutes (KRS) 403.320(1), which states that a parent should be granted “reasonable” visitation unless such visitation would “endanger seriously” the child’s physical, mental, moral, or emotional health. Troy argues that there was no evidence presented at trial that shows that reasonable parenting time would seriously endanger the child.
An appellate court will only reverse a trial court’s determinations as to visitation if they constitute a manifest abuse of discretion or were clearly erroneous in light of the facts and circumstances of the case. Drury v. Drury, 32 S.W.3d 521, 525 (Ky.App.2000). Whether the proper law was applied to the facts is reviewed de novo. Allen v. Devine, 178 S.W.3d 517, 524 (Ky.App.2005). The test is not whether we would have decided the issue differently, but whether the findings of the trial court were clearly erroneous or an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.1982). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).
On appeal, Troy argues that the family court did not grant him reasonable parenting time with J.C. under Kentucky statutory and common law. Troy also argues that the court used the wrong standard to determine his parenting time and made no findings of fact or conclusions of law that parenting time with the father would seriously endanger the child.
Troy contends that the family court should have applied the guidelines of KRS 403.320(1), which provides that
[a] parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger *351seriously the child’s physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the developmental age of the child.
Troy argues that although he was granted legal joint custody of the child, he was not the “custodial” parent because J.C. is residing primarily with Ashley, and therefore Troy contends that this statute applies when determining his parenting time.
Ashley argues that because Troy was granted joint custody, the standard applied by the trial court in evaluating J.C.’s best interest was appropriate. In support of this, Ashley argues that the portion of KRS 403.320(1) dealing with endangerment to the child only applies if a parent is denied visitation, which she argues is not the issue in the case at bar, since Troy was granted parenting time one weekend per month. Ashley argues that since Troy was not denied custody or visitation, the standard is not what would endanger the child’s physical, mental, moral or emotional health, but instead is what is in the child’s best interest.
To a certain extent, we agree with Ashley. The family court in the instant case ordered that Ashley and Troy were to have joint custody of J.C., with Ashley being the primary residential parent. A joint custody award envisions shared decision-making and extensive parental involvement in the child’s upbringing, as in general serves the child’s best interest. Squires v. Squires, 854 S.W.2d 765, 769 (Ky.1993). With joint custody, a visitation schedule should be crafted to allow both parents as much involvement in their children’s lives as is possible under the circumstances. Aton v. Aton, 911 S.W.2d 612 (Ky.App.1995).
While this Court may question a joint custody arrangement with parents living five hours apart and in different states, the fact of the matter is that neither Ashley nor Troy have raised the issue of custody, and instead the only issue before this court is the amount of parenting time granted to Troy. In Drury v. Drury, 32 S.W.3d 521, 524 (Ky.App.2000), this Court applied the reasonable visitation standard set forth in KRS 403.320(1) to evaluate timesharing orders in shared custody cases. Reasonable visitation is decided based upon the circumstances of each parent and child, with the best interests of the child in mind. Id. at 524-25. The trial court has considerable discretion in determining which living arrangements will best serve the interests of the child. Id. at 525.
In. the instant case, a review of the record indicates that the family court had evidence before it regarding the parents’ living and employment situations, as well as Dr. Deters’ evaluation and recommendations. While we certainly sympathize with Troy and the limited time he has with his son, the fact of the matter is that J.C. is two years old and simply does not understand the nature of traveling long distances to see a parent. We agree with the evaluation by Dr. Deters that significant time away from Ashley, J.C.’s primary caretaker since birth, would negatively affect him. While we certainly agree that time spent with Troy would benefit J.C., we must be cognizant that children develop attachments over time and that an attachment to the mother is also important. Certainly if Troy were able to spend more weekends in Kentucky, or even relocate here, he would most definitely be granted more time with his son, as J.C. would form an attachment to him and would be able to spend longer periods of time away from Ashley. Under these circumstances, we cannot say that the trial court did not look *352at J.C.’s best interests in crafting a visitation schedule that would allow both parents to spend as much time with J.C. as possible. Should Troy’s employment change and his schedule permit more visitation, we urge him to seek out that parenting time with J.C.
We disagree with Troy’s argument that the family court unreasonably restricted his visitation. In fact, the circumstances of the parties’ living situations are what restrict visitation in this case. KRS 403.320(3) is the only subsection of the statute that discusses restricting a parent’s visitation rights. That states, “The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health.” As Troy points out, this case can be distinguished from Kulas v. Kulas, 898 S.W.2d 529 (Ky.App.1995), because there was no modification of an existing order granting or denying visitation here.
We also agree with Ashley that the family court was not required to make findings of fact or conclusions of law that parenting time with Troy would seriously endanger J.C., because the court did not deny Troy visitation with him. Instead, the court instructed the parties to follow Dr. Deters’ recommendations unless they could mutually agree on another schedule. As there was no denial of visitation, the family court was not required to make findings of fact or conclusions of law that visitation with Troy would seriously endanger J.C.’s physical, mental, moral, or emotional health. We find the family court’s order to be in J.C.’s best interests, and therefore it is not an abuse of the discretion afforded to family courts in this context.
Accordingly, finding no error, we affirm the July 3, 2014, order of the Campbell Family Court.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284043/ | ORDER
PER CURIAM:
Eric Butkovich appeals from a summary judgment entered in the Circuit Court of Jackson County in favor of Theresa Williams, Teri Round, and the City of Lee’s Summit, Missouri in a Missouri Human Rights Act (“MHRA”) suit filed by Butkovich. After a thorough review of the record, we conclude that the trial court did not err in concluding that there was no genuine issue of material fact and that Respondents were entitled to judgment as a matter of law. No jurisprudential purpose would be served by a formal, published opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.
Judgment affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284044/ | ORDER
Per curiam:
Ray Edward Stallings, II appeals from the trial court’s judgment awarding Tif-fane Loxterman sole legal and sole physical custody of the parties’ daughter and granting Stallings supervised visitation. Stallings argues that the trial court erred in entering its judgment because the evidence presented at trial did not demonstrate a substantial change of circumstances. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284045/ | Order
Per Curiam:
Tosh A. Graff appeals from the judgment of the Circuit Court of Jackson County, Missouri, finding him guilty, following a bench trial, of driving while intox*457icated (“DWI”) as a persistent DWI offender. Because a published opinion would have no precedential value, a memorandum of law has been provided to the parties. The judgment is affirmed. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284294/ | ORDER
Per Curiam:
Elaina Fulton appeals the circuit court’s Judgment for Interest on Supersedeas Bond and Termination of Modifiable Maintenance, claiming that the circuit court erred in failing to apply the correct statutory rate of interest to the property equalization payments owed by Jeffrey Fulton in their dissolution of marriage case. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284047/ | ORDER
PER CURIAM
Calvin B. Taylor (Defendant) appeals from the judgment upon his conviction for one count of first-degree murder, in violation of Section 565.020, RSMo 2000,1 one count of armed criminal action, in violation of Section 571.015. The trial court sentenced Defendant as a prior and persistent offender to concurrent sentences of life imprisonment without parole for murder in the first degree and life imprisonment for armed criminal action. 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/5284048/ | ORDER
PER CURIAM.
Ernest Ray appeals the judgment entered upon his conviction by jury of robbery in the first degree and armed criminal action. We have reviewed the briefs of the parties and the record on appeal and conclude that no reversible error occurred. An extended opinion would have no jurisprudential purpose. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b) (2015). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284049/ | ORDER
PER CURIAM
Willie Wilson (Movant) appeals the denial of his Rule 24.035 post-conviction motion without an evidentiary hearing following his convictions for two counts of domestic assault. Movant claims the motion court clearly erred in denying his post-conviction motion because the trial court improperly subjected him to double jeopardy by amending his sentence and violated his due process rights by increasing his sentence.
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 serve no precedential *466value. 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/6125600/ | Judgment of the County Court affirmed. Opinion by
Talcott, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284050/ | ORDER
PER CURIAM.
Appellant Paul Parker (“Parker”) appeals from the judgment of the motion court denying his Rule 24.0351 motion for post-conviction relief without an evidentia-ry hearing. Parker sought to set aside his guilty plea and conviction for one count of burglary and one count of misdemeanor stealing. On appeal, Parker claims that the motion court clearly erred in denying his motion without an evidentiary hearing because he alleged facts that, if proven, would entitle him to relief. Specifically, Parker asserts that plea counsel rendered ineffective assistance of counsel by failing to ■ advise Parker that he could receive a lengthy prison sentence if he did not complete a post-plea drug court program. Parker argues that plea counsel’s failure rendered his guilty plea involuntary and unknowing.
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. Civ. P. (2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284090/ | ORDER
PER CURIAM
Eric Otis appeals the judgment of the Circuit Court of the City of St. Louis denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. We affirm the motion court’s judgment.
No error of law appears. An extended opinion wpuld 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/5286393/ | DISSENTING OPINION
Alcala, J.,
filed a dissenting opinion.
The court of appeals got this one exactly right. I would affirm its judgment reversing the sentence imposed against Phillip Devon Deen, appellant, and awarding him a new punishment hearing. I agree with the court of appeals that, under the facts of this case, the doctrine of estoppel is an improper basis for denying appellant’s complaint. The issue here is whether the doctrine of estoppel is a proper basis for rejecting appellant’s challenge to the validity of his aggravated robbery conviction that was used by the State to enhance his punishment to a higher range for his instant conviction for possession of cocaine. If the doctrine of estoppel is inapplicable to appellant’s challenge to his aggravated robbery conviction, as the court of appeals determined, then appellant’s sentence for possession of cocaine is illegal because it is outside of the punishment range for that offense. I conclude that, although it is true that the doctrine of estoppel may apply to cases in which a defendant has plea bargained for an illegally lenient sentence or in which he has knowingly and voluntarily accepted the illegally lenient sentence, those are not the circumstances here. In this case, the doctrine of estoppel is inap*352plicable because (1) appellant never bargained for or agreed to the trial court’s error in the aggravated-robbery case that resulted in more favorable treatment than what was permitted under the statutory punishment scheme, (2) the record fails to establish that appellant was aware of the improper sentence so that there is no evidence that he knowingly accepted the benefits of the illegal sentence, and (3) there is no proof that appellant voluntarily accepted the more favorable treatment so that this appears to be a case in which appellant merely silently submitted to a trial court’s unilateral order. I thus agree with the court of appeals that appellant’s prior conviction is void due to his being sentenced outside the statutory range of punishment and that the prior conviction is unavailable to enhance his punishment for the instant offense. I, therefore, respectfully dissent from this Court’s judgment that reverses the court of appeals’s judgment and upholds appellant’s sentence.
I. Background
Appellant was convicted of the state-jail felony of possession of less than one gram of cocaine, which ordinarily would be punishable with a statutory two-year maximum sentence for state-jail felonies.1 In this case, however, the State alleged in the indictment that appellant had a prior conviction for aggravated robbery, which, if proven, would enhance the punishment range to that of a third-degree felony, with a minimum sentence of two years’ imprisonment and a maximum sentence of ten years’ imprisonment.2 At sentencing, after appellant pleaded true to the enhancement as alleged, the trial court found the prior conviction for aggravated robbery to be true, and it sentenced appellant to four years in prison for the cocaine case. On appeal, appellant contended that the prior conviction for aggravated robbery that had been used to enhance his punishment for the cocaine case was void because he had been sentenced below the statutory punishment range for that offense. On this basis, appellant asserted that, due to the void prior conviction for aggravated robbery, his four-year sentence for cocaine possession exceeded the statutory two-year maximum sentence for state-jail felonies and was thus illegal. The court of appeals agreed with appellant and remanded the case for a new trial on punishment. Deen v. State, No. 11-13-00271-CR, 2015 WL 6123728, at *5-7 (Tex. App.—Eastland Oct. 15, 2015) (mem. op., not designated for publication). On direct appeal, the court of appeals’s opinion rejected the State’s assertion that the doctrine of estoppel should prevent appellant from obtaining his requested relief, and the State filed this petition for discretionary review in response to that opinion.
II. Analysis
I agree with the court of appeals that it is improper to rely on the doctrine of estoppel as a basis for upholding appellant’s enhanced sentence for cocaine possession in this case. Here, appellant never bargained for or agreed to the trial court’s error in the aggravated-robbery case that resulted in more favorable treatment than what was permitted under the statutory punishment scheme, nor is there anything in the record to establish that he was aware of the improper sentence or that he voluntarily accepted the more favorable treatment. Because the basic principles for establishing a claim of estoppel are not met under these circumstances, I cannot agree with this Court’s determination that *353appellant is estopped from challenging his prior conviction on the mere basis that he benefitted from the prior judgment -without any additional proof that he was even aware of the court’s error. Below, I will explain further why I conclude that (A) general principles of estoppel by acceptance of benefits do not apply to this situation, and (B) this Court’s precedent interpreting and applying the law of estoppel in similar contexts does not compel application of that doctrine to appellant’s case.
A. General Principles of Estoppel
Because the issue before this Court hinges on the proper application of the doctrine of estoppel, I begin my analysis by reviewing the principles underlying that doctrine. As the discussion below will show, the particular type of estoppel that this Court applies to appellant’s case is one that turns on a party’s acceptance of benefits flowing from a judgment. But that type of estoppel is inapplicable when, as in the instant case, the party’s acceptance of benefits is involuntary and made without full knowledge of the relevant facts and circumstances.
Broadly speaking, estoppel is defined as:
1. A bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true.
2. A bar that prevents the relitigation of issues.
B. An affirmative defense alleging good-faith reliance on a misleading representation and an injury or detrimental change in position resulting from that reliance.
Black’s Law Dictionary 667 (10th ed. 2014). The doctrine has spawned many sub-species. Under the more specific theory of estoppel by contract, a litigant is barred from “denying a term, fact, or performance arising from a contract that the person has entered into.” Id. at 668; see also Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007) (estoppel by contract means that “a party who accepts benefits under a contract is estopped from questioning the contract’s existence, validity, or effect”). Because the parties in the instant case agree that the record is inadequate to establish that any plea bargain existed in the aggravated-robbery case, I do not dwell on the proper application of estoppel by contract here.
Of greater relevance to the instant case is the theory of estoppel which provides that a party who accepts the benefits of a judgment is estopped from later challenging the judgment by appeal. See Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002); see also Taub v. Hous. Pipeline Co., 75 S.W.3d 606, 624 (Tex. App.—Texarkana 2002) (“When the basis of the estoppel is the acceptance of benefits by the party to be estopped, the need for application of the doctrine is supported by the rule that a person who accepts and retains the benefits of a particular transaction will not thereafter be permitted to avoid its obligations or repudiate the disadvantageous position.”). Although this Court has in the past referred to this principle as estoppel by judgment, see Rhodes, 240 S.W.3d at 891, this species of estoppel is more commonly known in Texas civil law as the acceptance-of-benefits doctrine. See, e.g., Waite v. Waite, 150 S.W.3d 797, 803 (Tex. App.—Houston [14th Dist.] 2004).3 The *354Texas Supreme Court has described this doctrine as providing that a “litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom.” Amaro, 87 S.W.3d at 544 (quoting Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950)). An exception to this doctrine applies “when the acceptance of benefits is not voluntary.” See Waite, 150 S.W.3d at 803; see also Smith v. Tex. Commerce Bank, 822 S.W.2d 812, 814 (Tex. App.— Corpus Christi 1992) (if there is “no voluntary acceptance or acquiescence in the judgment,” then estoppel by acceptance of benefits does not apply); Garza v. Garza, 155 S.W.3d 471, 475 (Tex. App.—San Antonio 2004) (acceptance-of-benefits doctrine “applies only to a voluntary acceptance of benefits” and thus does not apply to a party who is “compelled to accept the benefits of a judgment”).4
Further, “[i]n order to create an estop-pel by the acceptance of benefits, [ ] it is essential that the party against whom the estoppel is claimed should have acted with knowledge of the facts and of his rights.” Turcotte v. Trevino, 499 S.W.2d 705, 712 (Tex. Civ. App.—Corpus Christi 1973). “It is, an indispensable requisite in order to assert the doctrine of estoppel that the person claimed to be estopped shall have had the full knowledge of the full facts at the time his conduct is alleged to be related thereto, in order to constitute the basis of estoppel.” Id. at 712-13. “Estoppel cannot be successfully asserted against a person who is ignorant of the facts or who acted under a mistake of facts, unless his ignorance or mistake is a result of negligence.” Id. at 713; see also Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 738 (Tex. App.—Corpus Christi 1994) (observing that, “[w]hen a person accepting benefits does not have knowledge of all material facts, ratification or estoppel cannot ensue from acceptance of the benefits”); Little v. Delta Steel, Inc., 409 S.W.3d 704, 713 (Tex. App.—Fort Worth 2013) (“We have explained that there can be no estoppel from acceptance of the benefits by a person who did not have knowledge of all material facts”) (citations and quotations omitted); Richardson v. Allstate Tex. Lloyd’s, 235 S.W.3d 863, 865 (Tex. App.— Dallas 2007) (acceptance-of-benefits doctrine applies when a party “accepts a benefit voluntarily and with knowledge of all material facts”).
The foregoing discussion makes clear that, before a court may properly apply the doctrine of estoppel by acceptance of benefits—or, as this Court has referred to it, estoppel by judgment—it must be shown that the party to be estopped accepted the benefits voluntarily and with full knowledge of all material facts. See Richardson, 235 S.W.3d at 865. Here, nothing in this record shows that appellant was aware that he was receiving any benefit at all, let alone establish that he was doing so voluntarily and with full knowl*355edge of all material facts. Rather, the existing record shows only that appellant was sentenced by the trial-court judge who, on his own judgment, assessed against appellant an illegally lenient sentence for aggravated robbery. Nothing in this record shows that appellant agreed to the illegally lenient sentence, that he voluntarily accepted it, or that he even knew that the sentence was illegal. Given that the voluntariness and knowledge requirements for applying estoppel by acceptance of benefits have not been met here, I cannot agree that it is proper to apply that doctrine under these circumstances on the mere basis that the trial judge erred in appellant’s favor based on the judge’s independent assessment of a too-lenient sentence against appellant,
B. Estoppel is Inapplicable to Appellant’s Case Under a Proper Application of this Court’s Precedent
Under a proper application of this Court’s precedent, appellant’s complaint is not subject to estoppel. As I explain in more detail below, I conclude that, by misunderstanding the law of estoppel as described in Murray v. State and Rhodes v. State, this Court’s majority opinion reaches an erroneous result in this case. See Murray v. State, 302 S.W.3d 874, 882-83 (Tex. Crim. App. 2009); Rhodes, 240 S.W.3d at 891-92.
This Court’s majority opinion determines that “the rule that applies here” is the law on estoppel by judgment as stated in Murray, but reliance on that case is misplaced. See 302 S.W.3d at 882. In Murray, the defendant had pleaded guilty to what he believed was a lesser-included misdemeanor offense of the charged felony offense, but, prior to his plea being accepted by the trial court, he moved to withdraw his plea. Id. at 876. The basis for Murray’s request to withdraw his plea was his discovery that the misdemeanor offense was not hr fact a lesser-included offense of the offense charged in the indictment. Id. The trial court rejected his request and found him guilty of the misdemeanor offense. Id. On direct appeal, the court of appeals held that Murray’s judgment of conviction was void or, alternatively, that the trial court had committed' reversible error, and it further rejected the State’s claim that Murray should be es-topped from challenging the voidness of the trial court’s judgment. Id. On discretionary review, this Court also rejected the State’s theory of estoppel. Id. at 882-83. In addressing that argument, this Court described the relevant rule of estoppel by judgment by stating, “[A] party who ‘accepts the benefits of a judgment, decree, or judicial order is estopped to deny the validity or propriety thereof, or any part thereof, on any grounds; nor can he reject its burdensome consequences.’ ” Id. (quoting Rhodes, 240 S.W.3d at 891). In support of that general proposition, this Court cited its prior opinion in Rhodes, and it further described the holding of that case as being that “a party who accepts the benefit of a judgment that imposes an illegally lenient sentence is estopped from challenging the judgment at a later time.” Id. (citing Rhodes, 240 S.W.3d at 892). This Court swiftly concluded that estoppel by judgment as described in Rhodes was inapplicable to Murray’s case because Murray had objected at trial and thus clearly did not accept the trial court’s judgment or any benefit flowing from it. Id. (concluding that, given his objection at trial, Murray “did not accept the benefits of the judgment of conviction in this case”).
Although this Court in Murray recited the general principle that estoppel may be triggered due to a party’s acceptance of benefits, including the benefit of an illegally lenient sentence, this Court did not conduct any extensive analysis of what would *356constitute acceptance of benefits in this context because, under the facts of that case that showed that Murray objected at trial, it could not reasonably be said under any construction of the rule that Murray had accepted the benefits of the judgment. Id. at 882. Because this Court swiftly rejected estoppel under the clear-cut facts, Murray did not present any detailed analysis of what would constitute an acceptance of benefits of a judgment, and thus that case provides little guidance as to whether the record in the instant case establishes that appellant voluntarily and knowingly accepted the benefits of the trial court’s judgment, which is required for application of estoppel by judgment. See Richardson, 235 S.W.3d at 865. In sum, Murray illustrated a situation that plainly did not involve an acceptance of benefits because the defendant objected to the trial court’s judgment. Importantly, that case did not hold that a defendant who passively receives an illegally lenient sentence but fails to object has voluntarily and knowingly accepted the benefit of that sentence. That was not the situation in Murray, and to the extent that the majority opinion now relies on Murray as the basis for establishing such a rule, it does so through a significant expansion of the general rule in Murray that is wholly untethered from the facts in that case.
This Court’s reliance on Rhodes, a case decided two years prior to Murray, is similarly misplaced because the discussion of estoppel in that case was premised on the hypothetical existence of a plea bargain, but, in the instant case, there is no suggestion that any plea bargain existed. See Rhodes, 240 S.W.3d at 889. In Rhodes, the defendant had been convicted of escape from prison. Id. at 884. The written judgment for Rhodes’s escape conviction failed to indicate that his ten-year sentence for that offense was to run consecutively with his prior sentences for burglary and sexual assault, as was required by statute. Id. (citing Tex. Code Crim. Proc. art. 42.08(b)). The record was silent as to whether the lack of a concurrent-sentencing order had been the product of a plea bargain. Id. Later, when Rhodes was indicted for more crimes, the State alleged the escape conviction for enhancement purposes, but Rhodes moved to quash the alleged enhancement on the basis that the judgment was void due to the lack of a proper consecutive-sentencing order. Id. The trial court rejected his request, but the court of appeals reversed. Id. at 885. On discretionary review, this Court initially observed that, although the written judgment was silent as to whether Rhodes’s sentence had been a product of a plea agreement, the Court “need not decide” whether there had been a plea agreement regarding the concurrent-sentencing issue because, with or without a plea bargain, Rhodes’s challenge to his prior conviction would fail. Id. at 887-88. The Court explained that, if there was no plea agreement on the concurrent-sentencing issue, then the judgment was not void and thus not subject to collateral attack because the judgment could be reformed on appeal to correct the error. Id. at 887, 889. On the other hand, the Court indicated that, if there was a plea agreement on the concurrent-sentencing issue, then Rhodes would be estopped from challenging the judgment on appeal. Id. at 887, 890-91. As to this matter, the Court explained that, in general, there are two varieties of estop-pel—estoppel by judgment and estoppel by contract. Id. at 891. After reviewing the general principles underlying estoppel by judgment and estoppel by contract, this Court cited precedent from “several other jurisdictions [that] have held that a defendant cannot enter a plea agreement that imposes an illegal sentence, benefit from that sentence, and then attack the judg*357ment later when it is suddenly in his interests to do so.” Id. at 891. The Court applied that principle to Rhodes’s case and held that a “defendant who has enjoyed the benefits of an agreed judgment prescribing a too-lenient punishment should not be permitted to collaterally attack that judgment on a later date on the basis of the illegal leniency.” Id. at 892. The Court further observed that, “[i]f [Rhodes] agreed to the concurrent sentencing provision, then through his own conduct he helped procure and benefit from the illegality and he should not now be allowed to complain.” Id. Rhodes, therefore, was not decided on silent submission to a unilateral order of leniency by a trial-court judge; rather, it was based on a theory of Rhodes’s plea-bargain agreement to the leniency.
The foregoing makes clear that the discussion of estoppel by judgment in Rhodes was rooted in this Court’s assumption as to the existence of a plea bargain. Importantly, Rhodes does not support the position that estoppel by judgment may be applied to a non-plea bargain case, as here. Unlike Rhodes, nothing in this record shows that appellant “agreed” to the trial court’s judgment, nor does it show that appellant, “through his own conduct[,] [ ] helped procure and benefit from the illegality.” Id. Thus, even if his silent submission resulted in his receipt of a benefit from the illegality through a shorter prison sentence than that which he otherwise would have received under the applicable law, appellant may not be denied relief under the doctrine of estoppel as described in Rhodes that would apply only to situations in which a party helped in some way to procure the benefit, either by a contract or through some affirmative action. The instant record shows nothing more than that appellant was sentenced to four years in prison for aggravated robbery pursuant to the trial court’s unilateral assessment of punishment. In sum, unlike this Court’s majority opinion, I conclude that the combined force of Rhodes and Murray does not support the determination that this appellant is estopped from his collateral attack on his prior conviction, given that the record fails to show that he had any role in procuring the illegality or that he was even aware-of the trial court’s error in sentencing him outside the statutory range of punishment, let alone that he accepted the benefit voluntarily and knowingly.
This Court’s majority opinion acknowledges that, before subjecting a defendant to estoppel under these circumstances, it must be shown that the defendant accepted the benefits of the judgment voluntarily, and it further concludes that requirement was met here. In support, it cites this Court’s opinion in Gutierrez v. State, but I conclude that case instead supports my position that appellant’s receipt of an illegally lenient punishment here was not voluntary. See 380 S.W.3d 167 (Tex. Crim. App. 2012). In Gutierrez, this Court considered whether a defendant, who was an illegal immigrant, could be subjected to a condition of community supervision that required her to leave the country within twelve months if she was unable to obtain lawful immigration status. Id. at 169. The court of appeals determined that the trial court lacked the authority to impose that condition upon Gutierrez, and it reversed the judgment revoking her community supervision. Id. at 173. On discretionary review, the State argued that Gutierrez should be estopped from complaining about the challenged condition because she had enjoyed the benefit of her contract with the trial court to place her on community supervision in exchange for her promise to abide by the prescribed conditions. Id. at 177. This Court disagreed. In declining to apply estoppel by judgment to Gutierrez’s case, this Court explained that *358“appellate courts in Texas have consistently held that, before the doctrine may apply, an appellant’s acceptance of the benefits must be voluntary.” Id. at 178. This Court went on to hold that, because Gutierrez’s “acceptance of the trial court’s ultra vires condition of community supervision was not wholly voluntary,” estoppel by judgment was inapplicable. Id. at 179. The Court reasoned that Gutierrez, who along with her husband was responsible for providing for four children, “had every incentive to accept any contingency that would rule out her having to serve penitentiary time.” Id. The Court continued,
What is more, a defendant ordinarily has no say in the trial court’s decision regarding the appropriate conditions of community supervision. What those conditions will be is not a product of negotiation; a defendant in the appellant’s shoes must simply take them or leave them if she wants to avoid incarceration. Under these circumstances, we do not think that the appellant’s acquiescence to the condition of community supervision that she leave the country constitutes an “acceptance” sufficient to trigger the doctrine of estoppel by judgment.
Id.
The same reasoning applied by this Court in Gutierrez applies to appellant’s case and suggests that his receipt of an illegally lenient sentence was not wholly voluntary so as to warrant application of estoppel by judgment. Here, like the trial court’s imposition of the unlawful condition of community supervision at issue in Gutierrez, the trial court’s imposition of its illegal sentence is the type of determination as to which a defendant generally has no say and is not the product of negotiation. Further, as explained above, the record here fails to show any indication that appellant was aware that he was receiving any benefit, let alone that he did so voluntarily. The crux of this Court’s majority opinion’s holding is that, because appellant benefitted from the trial court’s error and because he did not object at trial or at any point prior to the instant proceedings, this shows that he voluntarily accepted the benefits and now he is estopped from complaining about the prior judgment. But this approach effectively eviscerates the requirement that the receipt of a benefit be voluntary and knowing. I cannot agree that this is a proper application of estoppel by judgment when there is no indication that appellant was aware of the trial court’s error or that he voluntarily accepted the benefit flowing from that error. Here, as in Gutierrez, the record supports only the view that appellant silently submitted to a trial court’s unilateral order and, 'therefore, that appellant did not act voluntarily in receiving the illegal sentence.
This Court’s majority opinion holds that a defendant who was sentenced entirely outside of the applicable punishment range for an offense may not obtain relief from that conviction when he has benefitted from the illegal sentence, even when there is no evidence in the record to show that he agreed to the sentence or that he voluntarily and knowingly accepted the benefits of that sentence. This is a far too expansive view on the law of estoppel. The unintended consequence of this view will be to create a new preservation-of-error requirement for collateral attack that requires defendants to object to void sentences that are in their favor, even if they did not agree to the error, plea bargain for it, or know about it, because if they do not timely complain, then they will be es-topped forever from challenging it once they discover the irregularity. Consequently, this Court’s majority opinion’s holding transforms the law of estoppel into a new preservation-of-error requirement *359for complaints about void convictions with sentences that fall below the punishment range.
III. Conclusion
For all of the foregoing reasons, I conclude that the doctrine of estoppel by judgment is inapplicable here because nothing in this record shows that appellant knowingly and voluntarily accepted the benefits of a too-lenient sentence that was erroneously and independently imposed by the trial-court judge at a sentencing hearing. I strongly disagree with this Court’s expansion of the law of estoppel to disallow relief in situations in which a defendant did not either agree to the more lenient judgment through a plea bargain or acquiesce to the more lenient judgment through his knowledge of the benefit and voluntary acceptance of it. For these reasons, I would uphold the judgment of the court of appeals awarding appellant a new punishment hearing. I, therefore, respectfully dissent.
. See Tex. Health & Safety Code § 481.115(b); Tex. Penal Code § 12.35(a).
. Tex. Penal Code § 12.35(c)(2)(A).
. I note here that, in Texas civil cases, estop-pel by judgment is frequently referred to as another name for collateral estoppel, or issue preclusion. See, e.g., Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 362 (Tex. 1971) (“The rule of collateral estoppel, or as sometimes phrased, estoppel by judgment, bars relitigation in a subsequent action upon a different cause of action of fact issues actually litigated and essential to a prior judgment,”); *354Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 847 (Tex. App.—San Antonio 1997) (“Collateral estoppel, often referred to as issue preclusion and estoppel by judgment, is much more narrow than res judicata[.]”); B & L Cherry Hill Assocs., Ltd. v. Fedders Corp., 696 S.W.2d 667, 669 (Tex. App.—Dallas 1985) ("Collateral estoppel is the doctrine of estop-pel by judgment where issues have been adjudicated.”).
. In the civil context, an acceptance of benefits may be held to be “not voluntary because of financial duress or other economic circumstances.” Waite v. Waite, 150 S.W.3d 797, 803 (Tex. App.—Houston [14th Dist.] 2004). The acceptance-of-benefits doctrine “often arises in divorce cases when one spouse accepts some of the benefits of the judgment and then tries to appeal the judgment.” In re M.A.H., 365 S.W.3d 814, 818 (Tex. App—Dallas 2012). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5286394/ | OPINION
Yeary, J.,
delivered the opinion of the Coui't
in which Keller, P.J., and Keasler, Richardson, Newell, and Keel, JJ., joined.
Pleading guilty to the offense of sexual assault in 1984, Appellant was convicted and later required to register as a sex offender. Twice after that, in 2007 and then again in 2009, he was convicted of the felony offense of failing to comply with sex-offender-registration requirements. In 2013, he was once again indicted for failing to comply with sex-offender-registration requirements, a third degree felony under Article 62.102(b)(2) of the Code of Criminal Procedure. Tex. Code Crim. Proc. art. 62.102(b)(2). Moreover, the 2013 indictment alleged the two previous felony sex-offender-registration offenses in enhancement paragraphs, to bring Appellant within the ambit of Section 12.42(d) of the Penal Code and thereby raise his exposure to a term of life, or not more than 99 years or less than 25 years, in the penitentiary. Appellant objected to the application of Section 12.42(d) to enhance his punishment, but nevertheless pled true to the enhancement paragraphs. A jury found them to be true and assessed his punishment at a term of 85 years in the penitentiary.
On appeal, Appellant again challenged the legality of his enhanced sentence. He argued that the State could not use prior felony offenses for failure to comply with sex-offender-registration requirements to punish him as a habitual felony offender for a subsequent sex-offender-registration offense under Section 12.42(d) of the Penal Code.1 As he did in the trial court, he pointed out that the sex-offender-registration scheme has its own specialized provision for enhancing a sex-offender-registration offense with prior sex-offender-registration infractions. Article 62.102(c) of the Code of Criminal Procedure provides that, if it is “shown at the trial” that a sex-offender-registration offender has been previously convicted of a sex-offender-registration offense, then his punishment “is increased to the punishment for the next highest degree of felony.”2 Appellant contends that he should have been punished under this provision, which would have exposed him to the range of punishment for a second degree offender, a range of only two to twenty years. Tex Penal Code § 12.33(a). Because he received a sentence greatly in excess of that range, Appellant argued, he was harmed. In an unpublished opinion, the *361Tenth Court of Appeals rejected Appellant’s argument. Crawford v. State, No. 10-14-00127-CR, 2015 WL 5656004, at *1-3 (Tex. App.—Waco 2015) (mem. op., not designated for publication).
We granted Appellant’s petition for discretionary review in order to review Appellant’s contention that the court of appeals erred to hold that the State could invoke Section 12.42(d) to punish him as a habitual offender. Appellant argues that, at least when it comes to enhancing sex-offender-registration offenses with prior sex-offender-registration offenses, Article 62.102(c) covers the field—to the exclusion of any application of Section 12.42(d). We disagree and will affirm the judgment of the court of appeals.
It is true that we have held that, when the Legislature has enacted a more specific enhancement scheme, the more specific scheme will control over the general enhancement regime of Section 12.42. For example, in Rawlings v. State, 602 S.W.2d 268 (Tex. Grim. App. 1980), we held that a conviction for theft of property having a value of less than $200 could only be enhanced with other theft convictions under the auspices of a specific enhancement pro1 vision in the theft statute. There are two notable features of Rawlings that are relevant to the issue in the present case. First, we insisted that the existence of a specific regime for enhancing a theft conviction with another theft conviction did not mean that the general enhancement provision contained in Section 12.42 could not apply to enhance a felony theft of property less than $200 in value with some other prior felony conviction, such as murder. Id. at 269, 271. Extrapolating from the holding in Rawlings, the mere existence of Article 62.102(c) does not prohibit the enhancement of a sex-offender-registration offense with prior non-sex-offender-registration offenses, such as murder or burglary, under Section 12.42. Indeed, Appellant does not contend otherwise.
The second, and more salient, feature to note about Rawlings is that the specific enhancement provision in the theft-of-less-than-$200 statute expressly addressed how to enhance with multiple prior convictions for theft. The specific enhancement provision in the theft statute, at issue in Rawl-ings, explicitly set out how to enhance the punishment for a conviction for theft of property valued at less than $200 where “the defendant has been previously convicted two or more times of any grade of theft[.]” Id. at 270 (quoting then-Section 31.03(d) of the Penal Code). We analogized to other specific enhancement provisions that likewise addressed the enhancement of particular offenses when the defendant had previously been convicted one or more times of that same particular offense. Id. at 270-71; see Edwards v. State, 166 Tex. Crim. 301, 313 S.W.2d 618 (1958) (holding that the general enhancement provisions did not control where the D.W.I. statute provided its own enhancement scheme making “each and every subsequent such violation” a felony subject to five years’ incarceration); Heredia v. State, 468 S.W.2d 833 (Tex. Crim. App. 1971) (holding that the specific enhancement regime providing the grade of offense for violating the former Narcotic Drug Act “upon the second or any subsequent conviction therefor” controlled over the predecessor to Section 12,42’s general enhancement scheme).
By contrast, Article 62.102(c) only addresses how to enhance a subsequent sex-offender-registration offense with a single prior sex-offender-registration felony offense. It only speaks to how to enhance a sex-offender-registration offense when the offender “has previously been convicted of an offense ... under this article!)]” Tex. Code Crim. Proc. art. 62.102(c) (emphasis *362added). It does not expressly say how a sex-offender-registration defendant may be enhanced in the event that he should have incurred multiple prior sex-offender-registration offenses.
Appellant maintains that Article 62.102(c) nevertheless controls because it at least implicitly addresses the enhancement of sex-offender-registration convictions with multiple prior sex-offender-registration convictions. Appellant’s argument, as we understand it, crystalizes in one proposition: Article 62.102(c) of the Code of Criminal Procedure covers the field of prior sex-offender-registration offenses used to enhance later sex-offender-registration offenses (including when there are multiple prior sex-offender-registration offenses) because “[t]he singular includes the plural and the plural includes the singular.” See Appellant’s Reply Brief at 2-3 (citing Tex. Gov’t Code § 311.012(b)).3 Invoking this principle of code construction, Appellant argues that, when Article 62.102(c) speaks of the use of a previous sex-offender-registration “offense” to enhance a subsequent sex-offender-registration offense, it also intends to include multiple previous sex-offender-registration “offenses” in its enhancement scheme. (Never mind that it does not contemplate any greater enhancement for multiple previous sex-offender-registration convictions.) And because Article 62.102(c) thus embraces the use of multiple previous sex-offender-registration offenses to enhance a subsequent sex-offender-registration offense, Appellant seems to argue, the general enhancement provisions of Section 12.42 of the Penal Code—including the habitual-offender provision in Section 12.42(d)—simply do not apply.
But there is another code construction principle that seems to us more apt: “If a general provision conflicts with a special ... provision, the provisions shall be construed, if possible, so that effect is given to both.” Tex. Gov’t Code § 311.026(a). When two statutes are in pari materia—as Article 62.102(c) and Section 12.42 plainly are—then “[a]ny conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy.” Azeez v. State, 248 S.W.3d 182,192 (Tex. Crim. App. 2008) (quoting Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988)). Rather than to harmonize, Appellant would have us cultivate conflict.
We have never said that the very existence of Article 62.102(c) means that punishment for a sex-offender-registration offense can never be enhanced under any other provision. Indeed, we have allowed lower court opinions to stand that have held that: 1) punishment for a sex-offender-registration offense may be enhanced with prior convictions for offenses other than sex-offender-registration offenses, under the provisions of Section 12.42 of the Penal Code;4 and 2) a sex-offense-registra*363tion offender can be habitualized under Section 12.42(d), if he has two prior norir-sex-offender-registration felony convictions.5 For that matter, we cannot see why a defendant charged with, say, burglary, could not be habitualized under Section 12.42(d) of the Penal Code with two prior sex-offender-registration convictions, without causing any conflict with Article 62.102(c). Cf. Rawlings, 602 S.W.2d at 269, 271 (notwithstanding specific provisions in the theft statute regarding how to enhance a theft conviction with, a previous theft conviction, Section 12.42 of the Penal Code could still apply to enhance a theft conviction with other prior felony convictions).
But, according to Appellant, a sex-offender-registration offender categorically cannot be habitualized under Section 12.42(d) with two or more prior sex-offender-registration convictions. Why? Because Article 62.102(c) governs all enhancements of sex-offender-registration offenses using prior sex-offender-registration offenses, including enhancement with multiple prior sex-offender-registration convictions. Why? Because when Article 62.102(c) says “an offense,” this must be read to include “offenses.” Why? Because, under Section 311.012(b) of the Code Construction Act, “[t]he singular includes the plural and the plural includes the singular.”-
We are not persuaded. A simple comparison will illustrate the illogic of Appellant’s suggested construction. The Legislature used the samé structure in Article 62.102(c) that it chose to use in Sections 12.42(a), (b), and (c)(1) of the Penal Code, the general enhancement provisions applicable whenever a felony offender has one prior felony conviction. For example, Section 12.42(a) says: “[I]f it is shown on the trial of a felony of the third degree that the defendant has previously been convicted of a felony ... the defendant shall be punished for a felony of the second degree.” Tex. Penal Code § 12.42(a).6 -This language mirrors the language of Article 62.102(c), and it likewise raises the punishment level by one degree when “it is shown” that the felony offender has one prior felony conviction.7 We have never *364applied the “singular-phmal/plural-singu-lar” maxim to say that Section 12.42(a) also embraces the use of multiple prior-felony offenses to enhance the repeat offender’s punishment, but only by one degree. We have not said that the word “felony” in these provisions should be read to include “felonies.” Indeed, it would be absurd to construe Section 12.42 in this way, because it would needlessly create an irreconcilable conflict with the later habitual offender provision contained in Subsection (d) of Section 12.42, by which a multiple-prior-felony offender suffers even greater enhanced punishment than the mere repeat offender. And if we would never choose to read Section 12.42(a) in this absurd way, we should not endorse such a construction of Article 62.102(c).
It is preferable to say that Article 62.102(c) simply does not address the multiple-prior-sex-offender-registration-of-fense scenario.8 Chapter Sixty-Two of the Code of Criminal Procedure contains no provision for habitualizing a sex-offender-registration offense with multiple prior offenses—of any kind, much less prior sex-offender-registration offenses. In the absence of any such special provision in Chapter Sixty-Two, code construction principles dictate that we fall back on the general enhancement provisions in Section 12.42 of the Penal Code. Section 12.42(d) would plainly permit the State to habitualize a sex-offender-registration offense with two prior felony convictions that were not sex-offender-registration offenses. We see no reason why it should not also be read to permit the State to habitualize a sex-offender-registration offender with two prior sex-offender-registration convictions. Such a reading harmonizes Article 62.102(c) and Section 12.42 of the Penal Code, and does so in such a way as to maximize the efficacy of both.9
For these reasons, we affirm the judgment of the court of appeals.
Richardson, J., filed a concurring opinion in which Newell, J., joined. Walker, J., filed a dissenting opinion in which Hervey and Alcala, JJ., joined.
. See Tex. Penal Code § 12.42(d) ("[I]f it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted to two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.”).
. See Tex. Code Crim. Proc. art. 62.102(c) ("If it is shown at the trial of a person for an offense ... under this article that the person has previously been convicted of an offense ... under this article, the punishment for the offense ... is increased to the punishment for the next highest degree of felony.”) (emphasis added).
. Appellant’s argument seems to be that, because "an offense” should also be read to include plural "offenses,” this provision would be used to enhance a subsequent sex-offender-registration offense with more than one prior sex-offender-registration offense— even though the enhancement would be the same (increase by one grade of felony) regardless of whether the enhancement was with one prior sex-offender-registration offense or multiple prior-sex-offender-registration offenses. But then, why would the State ever put itself to the increased burden of proving more than one prior sex-offender-registration offense to enhance under this provision?
. See Barker v. State, 335 S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (nothing about Article 62.102(c) prevented the State from enhancing a sex-offend*363er-registration punishment with a prior felony conviction for a non-sex-offender-registration offense).
. See Reyes v. State, 96 S.W.3d 603, 605-06 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (nothing about Article 62.102(c) prevented the State from habitualizing a sex-offender-registration offender under Section 12.42(d)).
. Subsections (b) and (c)(1) of Section 12.42 use similar constructs to, respectively, enhance punishment for a second degree felony to a first degree felony with one prior felony conviction, and enhance a first degree felony to a punishment with a mandatory minimum of 15 years. See Tex. Penal Code § 12.42(b) ("[I]f it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony on conviction the defendant shall be punished for a felony of the first degree.”); id. § (c)(1) ("[I]f it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony .,., on conviction the defendant shall be punished by imprisonment ,,, for life, or for any term of not more than 99 years or less than 15 years,”) (emphases added).
.In Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App. 2011), we made it clear that both Article 62.102(c) and Section 12.42 operate only to increase the level of punishment, not to elevate the grade of the offense of conviction. That being the case, the dissent today is mistaken to believe that Article 62.102(c) can operate to increase the punishment by more than one "degree of felony.” Dissenting Opinion at 3-5. Because the,first enhancement does not raise the first offense itself to a higher grade of felony, every subsequent enhancement would proceed from the identical baseline, raising the punishment to exactly the same "next highest degree of felony” as the first enhancement. The dissenting view is foreclosed by Ford.
. Thus, the statutory provisions at issue here are unlike those in State v. Webb, 12 S.W.3d 808 (Tex. Crim. App. 2000), and State v. Mancuso, 919 S.W.2d 86 (Tex. Crim. App. 1996). Each of those cases involved a specific provision for enhancing the punishment of a multiple (not just a repeat) state-jail felon, which specific provision was found to control over the general habitual punishment provision governing ordinary felonies in Section 12.42(d).
. It might be argued that to read Article 62.102(c) to apply only to the enhancement of punishment for repeat sex-offender-registration offenders would render it merely redundant of other repeat offender enhancement provisions, such as Section 12.42, subsection (a), (b), or (c)(1), or Section 12.35(c). But that would be inaccurate. Article 62.102(c) permits the enhancement of a repeat sex-offender-registration state-jail felon; Section 12.42 does not speak to the enhancement of state-jail felons at all. To the extent that Section 12.35(c) permits enhancement of state-jail felon to third-degree felony punishment, it does so under different circumstances than does Article 62.102(c). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284052/ | ORDER
PER CURIAM.
Larry Cordell 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 24.035.1 We have reviewed the briefs of the parties and the record on appeal and conclude the judgment of the motion court is not clearly erroneous. Rule 24.035(k). 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 *468only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).
. Mo. R. Crim. P. 2013. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284053/ | ORDER
PER CURIAM.
K.M. (Appellant) appeals from the trial court’s Judgment Reviving Judgments entered December 19, 2014. We have reviewed Appellant’s brief1 and the record on appeal and conclude the trial court’s judgment is supported by substantial evidence and does not erroneously declare or apply the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo.banc 1976). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).
. Respondent did not file a brief. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284054/ | PER CURIAM
We face two questions regarding liability following an accident between a tandem truck1 and a car. First, we consider whether the party contracting with the truck driver’s employer can be held liable as a motor carrier under either the Federal Motor Carrier Safety Regulations (Federal Regulations) or their Texas counterparts (Texas Regulations). Second, we determine whether the evidence was legally sufficient to show that the same party retained sufficient control over the transportation in which the truck was engaged to owe the driver of the truck a common-law duty. We answer both questions in the negative.
Cuahutemoc (“Tim”) Gonzalez, the owner and sole proprietor of Gonzalez Farms, agreed to harvest Chester Farms’ silage2 and haul it to the Littlefield Feed Yard. Gonzalez contracted with several companies to transport the silage, including 3R/Garcia Trucking, owned by Robert Garcia. Gonzalez’s harvester operators loaded the trucks at the farm and signaled to the driver when the trailer was full, and the driver then delivered the load to the feed yard.
On October 5, 2009, Garcia brought to the farm several trucks he had previously used to transport the silage, along with a tandem truck and a new driver, Raymond' Ramirez. On the tandem truck’s first trip to the feed yard, a tire blew out, causing Ramirez to lose control and careen into oncoming traffic, colliding with the car in which Tammy Jackson and her fourteen-year-old daughter, Rexee Jo, were traveling. The collision tragically killed all three.
Samuel Lee Jackson — Rexee Jo’s father and Tammy’s former husband — filed suit in his individual capacity, as representative of Rexee Jo’s estate, and as next friend of his minor son against Garcia and Gonzalez. As to Gonzalez, Jackson asserted direct claims for negligent overloading and negligent hiring and also sought to hold him vicariously liable for the actions of Garcia and Ramirez based on Gonzalez’s alleged status as a motor carrier under both the Federal and Texas Regulations.3 Ramirez’s widow, Erma Gonzales Ramirez,4 and mother, Janie Crosby (collectively, the Ra-mirezes), intervened and asserted negligence claims against Gonzalez and Garcia under common-law theories of retained control over an independent contractor and joint enterprise.5
The Ramirezes later nonsuited their claims against Garcia. The trial court sev*502ered Jackson’s claims against Garcia and rendered a default judgment against him awarding Jackson over $6 million in damages. That judgment is not at issue here. Gonzalez filed traditional and no-evidence motions for summary judgment on all claims brought by both Jackson and the Ramirezes. The trial court granted both motions as to the Ramirezes’ claims and granted the no-evidence motion as to Jackson’s claims. Both Jackson and the Ra-mirezes appealed.
The court of appeals affirmed as to Jackson’s negligent overloading claim, but a divided court reversed as to the no-evidence summary judgment on Jackson’s claim under the Texas Regulations and on the Ramirezes’ negligence claims based on retained control, concluding that the plaintiffs had raised fact issues as to these claims.6 413 S.W.3d 134, 156. Gonzalez petitioned this Court for review, arguing that the court of appeals erred in holding that the evidence created a fact issue on the plaintiffs’ negligence claims based on Gonzalez’s retained control and status as a motor carrier.7 Jackson does not seek review of the portion of the court of appeals’ judgment affirming the trial court’s dismissal of his negligent-overloading claim.
We first address whether Gonzalez can be held liable as a motor carrier for Jackson’s damages. The Federal Regulations impose various duties on motor carriers who classify their drivers as independent contractors in order to avoid liability for the drivers’ negligence. Morris v. JTM Materials, Inc., 78 S.W.3d 28, 37-38 (Tex.App.-Fort Worth 2002, no pet.); see, e.g., 49 C.F.R. parts 376, 385, 387, 390, 391, 396. The Federal Regulations apply only to transportation in interstate commerce. See 49 C.F.R. §§ 387.3(a), 390.3(a). Jackson argues that, because motor vehicles are “the quintessential instrumentalities of modern interstate commerce,” United States v. Bishop, 66 F.3d 569, 588 (3d Cir.1995), federal law governs this matter. But the Federal Regulations specifically define “interstate commerce” as
trade, traffic, or transportation in the United States—
(1) Between a place in a State and a place outside of such State (including a place outside of the United States);
(2) Between two places in a State through another State or a place outside the United States; or
(3) Between two places in a State as part of trade, traffic, or transportation originating or terminating outside the State or the United States.
49 C.F.R. § 390.5.8 No evidence suggests that Gonzalez hired Garcia to transport property across state lines at any point. Therefore, the Federal Regulations do not apply. See, e.g., Samson v. Fed. Express Corp., 746 F.3d 1196, 1205-06 (11th Cir.*5032014); Cleary v. Fed. Express Corp., 813 F.Supp.2d 930, 936-39 (E.D.Wis.2004).
Jackson alternatively argues that Gonzalez is liable as a motor carrier and employer under the Texas Regulations.9 Texas has adopted many — but not all — parts of the Federal Regulations, as well as their federal interpretations. See 37 Tex. Admin. Code § 4.11(a), (b)(3).10 The Texas Regulations apply to “commercial motor vehicles” and hold “motor carriers” responsible for their “employees.” See id. § 4.11(a); 49 C.F.R. §§ 387.1, 390.3(a), 390.11, 391.1, 396.1. Texas law defines “motor carrier” in pertinent part as “an individual ... or other legal entity that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo.” Tex. Transp. Code § 643.001(6); 37 Tex-. Admin. Code § 4.11(b)(1).
The court of appeals held that fact issues exist as to Gonzalez’s status as a motor carrier and employer under the Texas Regulations, as to Garcia’s and Ramirez’s status as employees under the same, and, consequently, as to Gonzalez’s vicarious liability for Garcia’s negligence.11 413 S.W.3d at 141, 145-47. In doing so, the court relied mainly on Martinez v. Hays Construction, Inc., 355 S.W.3d 170 (Tex.App.-Houston [1st Dist.] 2011, no pet.), and Castillo v. Gulf Coast Livestock Market, L.L.C., 392 S.W.3d 299 (Tex.App.San Antonio 2012, no pet.).
As an initial matter, we note that this line of cases has inadvertently confused federal and state law. Martinez relied on Morris and Sharpless v. Sim, 209 S.W.3d 825 (Tex.App.-Dallas 2006, pet. denied), for the general proposition that “[a] motor carrier is vicariously liable for the negligence of its ‘statutory employee’ drivers.” 355 S.W.3d at 184.12 Morris addressed a situation in which a licensed motor carrier leased a tractor-trailer that was involved in an accident. 78 S.W.3d at 34-35. The court analyzed vicarious liability under Part 376 of the Federal Regulations, which governs leased and interchanged transportation equipment, and did not address possible liability under state law. Id. at 38 (citing 49 C.F.R. §§ 376.11—.12); see also 49 C.F.R: § 376.1.
Martinez cited Morris’s general ' proposition,13 recognized that Texas has adopted parts of the Federal Regulations, and purported to analyze the defendant’s liability as a motor carrier under state law. 355 S.W.3d at 183-87. But Martinez failed to recognize that the liability in Morris arose from sections 376.11 and .12 of the Federal Regulations, which Texas has not adopted. See 37 Tex. Admin. .Code § 4.11(a).14 Because we have concluded *504that the Federal Regulations do not apply here, Gonzalez cannot be held liable under Part 376. See Sharpless, 209 S.W.3d at 829-30 (noting that the liability in Moms arises from Part 376). Accordingly, we disapprove of prior Texas cases to the extent they have found motor-carrier liability under the Texas Regulations based on duties created by Part 376 of the Federal Regulations, and the court of appeals erred in finding potential liability under the same here.
However, Jackson alternatively argued in the trial court and court of appeals that Gonzalez breached duties imposed on motor carriers by parts of the Federal Regulations that, unlike Part 376, have been adopted in Texas.15 Accordingly, we will address Gonzalez’s assertion that no evidence supports his liability as a motor carrier under those provisions. Applying Texas law, the court of appeals concluded that a fact issue existed as to Gonzalez’s status as a motor carrier. 413 S.W.3d at 141-45.
We review the evidence presented by a no-evidence motion for summary judgment and response “in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006).
As discussed above, Gonzalez was a “motor carrier” under the Texas Regulations if he “controlled], operate[d], or direct[ed]” the operation of the truck. Tex. Transp. Code § 643.001(6). In analyzing whether a defendant is a motor carrier, we focus on the specific transaction at issue. See Camp v. TNT Logistics Corp., 553 F.3d 502, 507 (7th Cir.2009); Harris v. Velichkov, 860 F.Supp.2d 970, 979 (D.Neb.2012) (holding that FedEx’s authority to operate as a motor carrier was irrelevant in determining whether FedEx actually acted as a motor carrier).
In Martinez, Hays controlled the work-site and was ultimately responsible for hauling the dirt, but exercised no control over the route drivers took or which driver operated a particular truck. 355 S.W.3d at 185. However, when a driver reported to Hays, Hays checked the driver’s proof of insurance and license, provided a hauling permit to the driver, loaded the dump truck, and informed the driver of the destination; upon delivery, the driver was giv-' en a receipt that he returned to Hays, and Hays indirectly paid the driver on a per-load basis. Id. at 174, 185. The court held that there was a fact issue whether Hays controlled, operated, or directed the operation of a truck involved in an accident while hauling the dirt. Id.
In Castillo, the court reached the opposite conclusion. 392 S.W.3d at 306. As Hellen, a Gulf Coast contractor driving a truck owned by a, third party, backed the truck into Gulf Coast’s designated unloading area at a livestock auction barn, he struck and injured Castillo. Id. at 301. Gulf Coast’s website stated that hauling was available, but Gulf Coast explained that this meant only that Gulf Coast could find a truck and a driver when the cattle owner could not transport the cattle to the auction barn. Id. at 304-05. Gulf Coast did not perform the loading or direct the size of the load, direct the route to be taken by the drivers, or exercise any other control over the trucks or the drivers as they transported the livestock. Id. at 305. *505Although Gulf Coast’s employees unloaded the livestock on Gulf Coast’s premises, this was done only after the truck was parked in the unloading area. Id. at 305-06. Contrasting Martinez, the court held that Castillo presented no evidence that Gulf Coast controlled, operated, or directed the operation of the truck. Id. at 306.
Here, in holding that the evidence presented a fact issue as to Gonzalez’s motor-carrier status, the court of appeals focused on the evidence that Gonzalez told the drivers where to pick up and deliver the silage, loaded the trucks and signaled when done, had the right to refuse to load a truck, and was “ultimately responsible” for getting the silage to the feed yard under his agreement with Chester Farms. 413 S.W.3d at 144-45 (citing Martinez, 355 S.W.3d at 185). In addition, Jackson notes that Gonzalez hired and paid Garcia to haul the silage and asked him to bring a tandem truck, and that Gonzalez held a motor-carrier license at the time of the accident.
Like the defendant in Martinez, Gonzalez controlled the loading site, was ultimately responsible for the hauling as part of an underlying agreement, and loaded the trucks, but did not control what driver operated a particular truck or what route the drivers took. Unlike Martinez, however, Gonzalez had nothing to do with verifying drivers’ insurance and licenses or providing hauling permits, nor did he establish the manner or method of the drivers’ payment. Thus, the facts that directly implicated control of the actual transportation of the property in Martinez are notably absent here.16 See Yelichkov, 860 F.Supp.2d at 979 (noting that the Federal Regulations “are applicable to those who transport property, not those who send or receive it”).
Although the district court in Velichkov analyzed motor-carrier status under the Federal Regulations, we find the reasoning in that case instructive. There, FedEx contracted for transportation services with Fresh Start, which in turn hired Velichkov to drive the truck. Id. at 973.- The court held that the plaintiffs’ attempt to “ ‘bootstrap’ FedEx into ‘motor carrier’ status by stretching the regulatory language fails because the definitions of motor carrier and employer ... describe precisely the role assumed by Fresh Start in this instance as an independent contractor.” Id. at 980. Because Fresh Start assumed the pertinent motor-carrier duties, the plaintiffs were not deprived of their remedy. Id. The court declined to burden FedEx with the regulatory duties to conduct road tests and retain records for drivers with whom it had no relationship just because it had the ability to act as a motor carrier.17 Id.
Under the circumstances presented here, where Jackson has shown only that Gonzalez told Garcia where to pick up and deliver — which any hauler would need to know18 — and loaded the trucks, Gonzalez *506was acting as a shipper, not a motor carrier. See id. It therefore makes no sense to burden Gonzalez with the many duties already placed upon Garcia.19 See id. (finding that FedEx was acting as- a shipper under the circumstances). Jackson presented no evidence that Gonzalez exercised any control over the trucks or the drivers as they transported the silage to the feed yard. See Castillo, 392 S.W.3d at 305. Nor, as discussed above, did Gonzalez select the particular trucks Garcia used. Accordingly, even in the light most favorable to Jackson, no evidence shows that Gonzalez controlled, operated, or directed the operation of the trucks involved in the hauling operations at issue. See Tex. Transp. Code § 643.001(6). The trial court properly rendered summary judgment on Jackson’s claims against Gonzalez under the Texas Regulations.
We turn next to the Ramirezes’ claim that Gonzalez breached common-law duties he owed Ramirez as the employee of an independent contractor. Generally, an owner or general contractor does not owe a duty to its independent contractor’s employees to ensure that they safely perform their work. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 & n. 1 (Tex.1999) (noting that a general contractor “owes the same duty as a premises owner to an independent contractor’s employee”). But an owner or general contractor can be held vicariously liable for its independent contractor’s actions if the owner retains some control over the manner in which the contractor performs the work that causes the damage. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex.2006). In discussing retained control, we explained in Chapa:
[A] general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations ... does not mean that the [independent] contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the [independent] contractor is not entirely free to do the work in his own way.
11 S.W.3d at 155 (quoting Restatement (Second) of Torts § 414 cmt. c (1965)). In turn, an owner or general contractor “can direct when and where an independent contractor does the work and can request information and reports about the work” without assuming vicarious liability. Fifth Club, 196 S.W.3d at 792.
In limiting liability in this way, we have explained that imposing liability on owners and general contractors who stop work perceived as unsafe “would deter [them] from setting even minimal safety standards.” Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607-09 (Tex.2002) (holding that the right, to preclude work from beginning and the implementation of a safe-work permit system were insufficient to establish actual control); see also Chapa, 11 S.W.3d at 156 (holding that instructions to perform work in a safe manner and the authority to stop dangerous conduct was no evidence of actual control). We “have never concluded that a general contractor actually exercised control ... [when] there was no prior knowledge of a dangerous condition and no specific approval of any dangerous act.” Bright, 89 S.W.3d at 609. And the “possibility of control is not evidence of a ‘right to control’ actually retained or exercised.” Coastal Marine *507Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 228, 226 (Tex.1999).20
Here, the Ramirezes point to the following evidence to show Gonzalez’s control over Garcia’s work:
• Garcia’s testimony that “[Gonzalez] told me to take those particular trucks.... That particular truck, he told me.” But Garcia explained that this was “the only time that [Gonzalez] ever told me to bring the tandem trucks,” and that Gonzalez said: “ ‘If you want to bring your tandem trucks when we get started back again, if you ivant to bring your tandem trucks, bring them because ... the field that we are about to get into is really sandy and we are going to need your tandems.’ And that’s when he told me to bring them.” (Emphasis added).
• Garcia’s testimony that 3R/Gareia was obedient to Gonzalez’s suggestions, which needed to be followed: “We would just bring whatever he told us.... They are the bosses, you know, so we will do what they say.”
• Garcia’s affidavit stating that (i) he and Gonzalez have to agree about what trucks to use, (ii) they both approved the use of the tandem truck, and (iii) Gonzalez had more control over the cutting operations, while Garcia’ had more control with respect to the hauling operations.
• Gonzalez’s testimony that (i) he makes the decision whether to load a truck; (ii) the trucks looked up-to-date from a distance, and Gonzalez would not hire someone with unsafe trucks; (iii) in Gonzalez’s absence, his brother Javier takes over his responsibilities and authority; and (iv) had he seen the condition of the truck on the date of the incident, he would not have loaded the truck because he “would have recognized the condition of the tandem as being dangerous.”
• Javier’s testimony that Gonzalez approves only safe trucks.
Even with every reasonable inference in favor of the Ramirezes, al] this evidence shows is that Gonzalez could refuse to load a truck, that he knew about the tandem truck’s condition only after the accident, that Garcia exercised more control over the transportation of the silage, that Gonzalez suggested but did not require that Garcia bring tandem trucks in light of the conditions at Chester Farms,21 and that Gonzalez did not request any particular truck but rather suggested a particular type of truck based on the conditions at the loading site.22
If the fact that the general contractor is the “boss” of a subcontractor were enough to create liability, the requirement of control would be obsolete.23 Similarly, some*508one hiring a subcontractor to transport something will often need to specify what type of vehicle may be needed. It takes a logical leap to conclude that Gonzalez’s unexercised general right to refuse to load an unsafe truck and his suggestion of a particular type of truck prevented 3R/Gar-cia from performing the work in its own way. Accordingly, no evidence supports the Ramirezes’ assertion that Gonzalez owed Ramirez a common-law duty.
We hold that the court of appeals erred in partially reversing the trial court’s no-evidence summary judgment. We grant the petition for review, and, without hearing oral argument, we (1) reverse the court of appeals’ judgment in part, (2) render judgment for Gonzalez on the Ramirezes’ claims and on Jackson’s claims asserted under the Federal and Texas Regulations, and (3) remand this case to the court of appeals to consider only Jackson’s negligent-hiring claim.24 Tex. R. Ápp. P. 59.1.
. The tandem truck is described as weighing 16,400 pounds and having a twenty-two-foot bed, three axles, and ten tires.
. "Silage” is used to feed livestock and includes grass, corn, clover, and sorghum (which is the type of silage Gonzalez harvested for Chester Farms). Webster’s Third New Int'l Dictionary 2116 (2002).
. Jackson’s petition is not entirely clear as to negligent hiring. The cause of action is labeled as a common-law claim, but Jackson cites the Federal and Texas Regulations as support for the claim. We liberally construe Jackson’s petition to include a common-law negligent-hiring claim.
. Mrs. Ramirez sued individually, as representative of her husband’s estate, and as next friend of her five minor children.
. The Ramirezes later attempted to amend their petition to bring additional causes of action, including the same claims brought by Jackson under the Federal and Texas Regulations. But the court of appeals held that the amendment was untimely, and that holding has not been challenged here. 413 S.W.3d 134, 148.
. The court of appeals did not address Jackson’s negligent-hiring claim or Gonzalez’s traditional motion for summary judgment as to the Ramirezes’ claims. Id. at 154, 156.
. Gonzalez also claims that the court erred in not addressing Gonzalez’s traditional motion for summary judgment as to the Ramirezes’ claims. Because both of Gonzalez’s motions turn on the issue of retained control, and we conclude that the court of appeals erred in reversing the trial court’s grant of Gonzalez’s no-evidence motion for summary judgment, we need not address this issue. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.2013) (”[I]f the non-movant fails to produce legally sufficient evidence to meet his burden as to the no-evidence motion, there is no need to analyze whether the movant satisfied its burden under the traditional motion.").
.In addition, “intrastate commerce” is defined as "any trade, traffic, or transportation in any State which is not described in the term ‘interstate commerce.’ ” 49 C.F.R. § 390.5.
. The Texas Regulations define- "interstate commerce" to include "all movements by motor vehicle, both interstate and intrastate, over the streets and highways of this state.” ■37 Tex. Admin. Code § 4.11(b)(3).
. Accordingly, we look to federal case law for guidance. R.R. St. & Co. v. Pilgrim Enters., Inc., 166 S.W.3d 232, 241 (Tex.2005).
. In light of our holding that Gonzalez is not a "motor carrier” for purposes of these events, we need not address whether the truck at issue was a "commercial motor vehicle,” whether Gonzalez meets the statutory definition of "employer,” or whether Garcia and Ramirez qualify as "employees.”
. Castillo, in turn, relied on Martinez. 392 S.W.3d at 303.
. We express no opinion as to the holding in Morris.
. These provisions require a written lease for the use of the equipment. 49 C.F.R. § 376.11(a). Among other things, the lease must provide that the lessee motor carrier "shall have exclusive possession, control, and use of the equipment for the duration of the lease ... [and] shall assume complete responsibility for the operation of the equipment for the duration of the lease.” Id. § 376.12(c).
. 37 Tex. Admin. Code § 4.11(a) (adopting, inter alia, parts 385, 387, 390, 391, and 396 of the Federal Regulations).
. While the fact that Gonzalez's harvesters loaded the truck is relevant to Jackson’s negligent-overloading claim, that claim is no longer at issue.
. To that end, we note that Gonzalez’s possession of a motor-carrier license is irrelevant in determining whether he acted as a motor carrier with respect to this incident. See Camp, 553 F.3d at 507; Velichkov, 860 F.Supp.2d at 979.
.As the dissent in the court of appeals aptly noted, ’’[s]urely virtually every person who finds it necessary to hire a truck to haul a cargo also must tell the trucker where to get the cargo and where to haul it.” 413 S.W.3d at 157 (Campbell, J., dissenting); see also Schramm v. Foster, 341 F.Supp.2d 536, 550 (D.Md.2004) (instructing driver as to time and place of pick-up and delivery does not amount to an assumption of control or motor-carrier responsibility).
. As noted above, the trial court rendered a default judgment against Garcia for several million dollars for breaching these duties.
. See also Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 702-03 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (holding that a general contractor’s right to forbid the work from being performed in a dangerous manner, and the fact that he would have stopped the work and required protective equipment had he seen the employee of the independent contractor not using such equipment, merely showed the possibility of control, not actual control).
. Garcia testified Gonzalez told him that tandem trucks would do better than bigger trucks, which would risk getting stuck in the sandy field during the loading process.
. It is undisputed that it was the condition of the tire, not the type of truck, that caused the accident.
. The Ramirezes also rely on Gonzalez’s testimony that he had a financial interest in making sure the silage made it to the destination, that he did not tell Chester Farms that he would be hiring other drivers, and that background checks are important. This is no evidence of control. Every contractor has a *508financial interest in a subcontractor's performance, and a background check is relevant to a negligent-hiring analysis, which is not before us. See Fifth Club, 196 S.W.3d at 796 (addressing background checks in the context of a negligent-hiring claim).
. The remand encompasses only the common-law negligent-hiring claim. To the extent Jackson asserts statutory or regulatory bases for this claim under the Federal or Texas Regulations, we have already addressed those in this opinion. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284057/ | OPINION
Tracy Christopher, Justice
This is an appeal from a nonjury trial of two sets of competing breach-of-contract claims between the parties to a commercial lease and the parties to a sublease of the same property. James and Gidget Archer challenge the legal sufficiency of the evidence to support the judgment against them. Finding no error, we affirm.
I. BACKGROUND
When James Archer and his wife Diane Campbell divorced, Campbell was awarded a large commercial property. She leased the property back to James, who sublet a portion of it to Hayes Leasing Co., Inc.; thus, James is the tenant under the Master Lease, and Hayes is the subtenant under the Sublease.1 James and his then-wife Gidget sued Campbell and Campbell’s successor, primarily for claims allegedly arising from the Master Lease, and sued Hayes for claims allegedly arising from the Sublease. We discuss the two contracts sepai'ately.
A. The Master Lease
Under the terms of the Master Lease that Campbell and James executed in February 2004, James was required to pay Campbell base rent, and to pay “additional rent” equal to the ad valorem taxes on the property and its improvements. James was not required to pay this additional rent before December 31st of the tax year. The Master Lease also addressed the parties’ maintenance-and-repair obligations, and provided that if Campbell wished to transfer the property, she had to give James thirty days’ written notice so that he could make an offer to purchase it.
After providing advance notice to James, Campbell sold a large portion of the property to a third party in October 2006. Effective as of the date of the sale, James and Campbell amended the Master Lease to exclude the part of the property that had been sold. Both at the time of the sale and in 2007, Campbell demanded that James pay additional rent in the amount of the 2006 ad valorem taxes that had accrued prior to the sale, but James refused.
B. The Sublease
James subleased a portion of the property to Hayes Leasing Co., Inc. in March 2004; in the sublease, James is the sub-landlord and Hayes is the subtenant. The Sublease included James’s warranty that the premises “are in compliance with all laws, ordinances, codes, rules and regulations” covering the premises. Like the Master Lease, the Sublease addressed the contracting parties’ respective obligations to maintain and repair the property. Among other things, the Sublease provided that James was responsible for the costs of repairing latent defects and for the property’s compliance with present and future laws relating to health and safety. The Sublease further provided that a party failing to perform its nonmon-etary obligations within thirty days after *601written notice of the nonperformance would be in default. If James were in default, then Hayes could cure the default and demand reimbursement; if James failed to reimburse Hayes within ten days, then Hayes could deduct the unreimbursed expenses from the rent. The parties to the Sublease further agreed that an “Event of Default” under the Master Lease also would be an “Event of Default” under the Sublease.
In 2007, Hayes discovered that there were six or seven open building permits on the property, and that Hayes could not obtain a certificate of occupancy unless it first brought the property into compliance with city codes. Over a period of several years, Hayes spent over $18,000 to remedy these violations. James refused to reimburse Hayes for the work.
In November 2008, James notified Hayes that he had transferred the Sublease to his then-wife Gidget, but he continued to be Hayes’s primary contact for communications about the property. Like James, Gidget refused to reimburse Hayes for the costs of remedying code violations.
At around the same time that James transferred the Sublease to Gidget, a portion of the building’s roof was damaged by storm winds, and Hayes decided to replace the entire' roof. When contractors removed the existing roof, they discovered that the concrete underlay was crumbling and the metal supports had deteriorated. Because the roof repairs could not be completed until this damage was addressed, Hayes paid over $45,000 for these repairs to be performed on an emergency basis. After Hayes had emailed James at least three times and written to Gidget twice about reimbursement for the cost of repairing these items, Gidget’s attorney responded asserting that the defects were discoverable in 2004 and requesting additional support for Hayes’s conclusion that these were latent defects. Hayes then deducted the costs of repair from the rent. The parties resolved that dispute in March 2010, when Gidget signed a settlement agreement with Hayes, agreeing to share equally in the costs of these repairs. Because Hayes already had deducted the full amount of the repair costs from the rent, they agreed that Hayes would pay rent at a higher rate for sixteen months until Gidget had been repaid for her share of the repair costs.
In the meantime, additional repair issues had arisen. Less than two weeks before Gidget and Hayes settled their dispute about the roof repairs, Hayes wrote to Gidget regarding an awning that had begun slipping and holes in the parking lot. Hayes reported that one sinkhole in particular appeared to be related to an underground plumbing line. Once again, James was the one who responded, asserting that the awning “is not our expense”; he did not address the holes in the parking lot at that time. Before the end of March 2010, Hayes emailed James again, repeating earlier demands for a copy of James’s agreement with Gidget about the assignment of the Sublease and seeking copies of all correspondence to or from Campbell regarding the property. This time, however, Hayes sent a courtesy copy of the email to Campbell’s attorney, and Campbell began to demand that James maintain and repair the property in accordance with the Master Lease.
C. Campbell’s Repair Demands and Termination of the Master Lease
On March 25, 2010, Campbell wrote to James, demanding that he “commence repairs of all defects of the Premises” within fifteen days. The only defects mentioned at that time were the sinkhole and the awning. James’s attorney replied that *602Hayes was making arrangements to complete the repairs.
Campbell responded on April 20, 2010. She noted that a provision in the Master Lease required the tenant to be given thirty days’ written notice before, a failure to perform became an “Event of Default,” and' that James had been given notice on March 25, 2010 to repair the awning and the sinkhole. She stated that James had until April 26, 2010 to address those matters. Campbell also included a lengthy report by Professional Engineering Inspections, Inc. regarding other repairs and maintenance that the property required, and gave James thirty days to remedy those issues.
On April 26, 2010, James’s attorney responded, “The alleged notice is rejected. Nearly all of the material items identified ... were conditions that were in existence [when the parties executed the Master Lease] on February 25, 2004. [James] took the Premises as is and had no obligation to improve the condition.” James took the position that he was required to perform only those repairs that were necessary to the continued use of the property, and he reasoned that because Hayes was still using the property, no repairs were necessary.
That same day, Campbell formed DDK Holdings, LLC and transferred the property and the Master Lease to it. James was notified of the transfer approximately ten days later, but- he neither responded further to the repair demands nor commented on the transfer. On August 27, 2010, DDK terminated the Master Lease, citing the failure to maintain and repair the property in accordance with the Master Lease.
D. The Lawsuit
Less than a month after the Master Lease’s termination, Gidget sued Campbell and DDK, asserting that James had assigned his interest in the Master Lease to Gidget in 2008. While the suit was pending, Hayes continued to send demand letters to Gidget for reimbursement of the amounts that it had expended to address the code violations on the property. More than six months after the Master Lease was terminated, Gidget wrote to Hayes, demanding immediate payment of past-due rent. Hayes responded that rent had been timely paid through the date when the Master Lease was terminated, and pointed out that a termination of the Master Lease also constituted a termination of the Sublease. Hayes further stated that because the $18,292.23 that Hayes had paid to remedy code violations was larger than the balance that Hayes owed under the settlement agreement concerning the roof repairs, Hayes had deducted the former from the latter, and owed Gidget nothing.
At some point, James became a co-plaintiff with Gidget, and Hayes became a co-defendant with Campbell and DDK.2 Ultimately, James and Gidget asserted claims against Campbell, DDK, and Hayes for civil conspiracy, tortious interference with contract, conversion, and breach of contract. In addition, they alleged that Campbell -and DDK were alter egos of one another, and asserted claims solely against Campbell for violation of the Texas Uniform Fraudulent Transfer Act, and for declarations that both the purported transfer to DDK and the termination of the Master Lease were void. All of the defendants counterclaimed for breach of contract.
*603The case was tried without a jury, and the trial court granted directed verdicts against James and Gidget on their civil-conspiracy, tortious-interference, and conversion claims and their alter-ego allegations, and ruled against them on all of their remaining claims. Regarding the Master Lease, the trial court stated in its final judgment that (1) Campbell and DDK did not breach the Master Lease, (2) James did breach the Master Lease, and (3) the Master Lease was validly terminated. The trial court ordered James to pay Campbell $61,823.12, which was the amount that Campbell had demanded from James in 2007 for the 2006 ad valorem taxes that had accrued before a portion of the property was sold, together with 18% interest and $125,000 in attorney’s fees, as authorized in the Master Lease. Regarding the Sublease, the trial court found that James and Gidget breached the Sublease, and Hayes did not breach it. The trial court awarded Hayes no damages, but held James and Gidget jointly and severally liable for Hayes’s attorney’s fees in the amount of $120,000, as authorized by the Sublease. In accordance with James and Gidget’s request, the trial court issued findings of fact and conclusions of law, and none of the parties requested additional or amended findings. Finally, the trial court denied James and Gidget’s motion to modify, correct, or reform the judgment.
II. Issues Presented
In four issues with numerous subsections, James and Gidget challenge the trial court’s judgment or findings that (a) James breached the Master Lease; (b) Campbell did not breach the Master Lease; (c) James breached the Sublease, and Hayes did not breach it; and (d) Gidg-et is liable to Hayes for its attorney’s fees.
III. Standard of Review
Although James and Gidget frame their issues as challenges to the legal and factual sufficiency of the evidence, they do not address the evidence favorable to the defendants, arguing instead that there is “no evidence” to support the judgment or the trial court’s findings; that the evidence favoring them is undisputed; and that they are entitled to rendition of judgment as a matter of law. Because the Archers have made legal-sufficiency arguments, but have made no factual-sufficiency arguments, they have waived any challenge to the factual sufficiency of the evidence. See Tex. R. App. P. 38.1(i). We accordingly apply only the legal-sufficiency standard of review.
In an appeal from the judgment rendered after a non-jury trial, we review the trial court’s findings using the same standards of review that apply to a jury’s verdict. MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 663 n. 3 (Tex.2009) (citing Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994)). To analyze the legal sufficiency of the evidence supporting a finding, we review the record in the light most favorable to the factual findings, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Evidence is legally sufficient if it “ ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). We will conclude that the evidence is legally insufficient to support the finding only if (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a *604vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810. It is the fact-finder’s responsibility to weigh credibility and resolve conflicts in the evidence, and we will defer to those determinations so long as they are reasonable. See id. at 819-20.
IY. The Parties to Each Contract
The parties to the Master Lease are identified in that contract as the landlord and tenant, and the parties to the Sublease are identified as the “subland-lord” and the “subtenant.” There is no dispute before us about the identities of the parties at the ends of this chain: the landlord under the Master Lease was first Campbell, and then DDK; the subtenant under the Sublease was Hayes.
But one of the matters disputed at trial was the identity of the sublandlord. The trial court stated in its findings of fact that James assigned the Sublease to Gidget in November 2008, so that both James and Gidget breached the Sublease. The trial court therefore held James and Gidget jointly and severally liable for Hayes’s attorney’s fees, and James and Gidget specifically challenge that portion of the judgment. Although we normally address challenges to liability findings before addressing fee awards, the basis of their argument regarding attorney’s fees is that Gidget was not the sublandlord. They contend that Gidget could not have breached the contract because it is undisputed that she was assigned only the right to receive the Sublease’s benefits, but never assumed any of the Sublease’s obligations. Thus, before we review the correctness of the trial court’s challenged liability findings on the breach-of-contract claims, we first resolve the question about Gidget’s relationship to the Sublease, so that when we address liability, it will be clear whose liability was properly at stake.
James and Gidget assert that Gidget had no lease or other contract with Hayes; that it is undisputed that James simply assigned to Gidget the benefits of the Sublease; and that Gidget did not assume any of the Sublease’s obligations. But these assertions are contradicted by the record, the pleadings, and even the relief they seek in this appeal. There is a contract between Gidget and Hayes, and Gidget not only expressly acknowledges in that contract that she is the sublandlord, but she has asked us to render judgment in her favor against Hayes for its alleged breach.
The contract to which we refer is the settlement agreement by which Gidget and Hayes settled a dispute about the subland-lord’s responsibility for the costs of roof repairs. After Hayes expended over $45,000 to perform roof repairs that Hayes believed were the sublandlord’s responsibility, Hayes and Gidget entered into a settlement agreement in which they agreed to split the repair costs. The settlement agreement provides that it “does not modify the Sublease in any manner except as specifically stated herein.” Significantly, however, the settlement agreement does modify a key term that affects all of these provisions: the identity of the sublandlord. In the Sublease as originally executed on or about March 1, 2004, James is identified as the sublandlord. But in the settlement agreement, Hayes and Gidget agreed that Gidget “is Sublandlord to a Sublease dated March 1, 2004 wherein [Gidget] Subleased to Hayes” the property that is the subject of this suit. James and Gidget do not argue that this language of the settlement agreement is not enforceable; indeed, their brief contains no ac-knowledgement that it exists. They instead assert that it is undisputed that James assigned to Gidget only the Sub*605lease’s benefits, and that there is no evidence that Gidget accepted the Sublease’s obligations. See Jones v. Cooper Indus., Inc., 938 S.W.2d 118, 124 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (explaining that an “assignee of a contract is not bound to perform the assignor’s obligations under the contract unless they are expressly or impliedly assumed by the assignee”).
But contrary to their characterization of the record, there is evidence that James assigned the entirety of the Sublease to Gidget, and that Gidget accepted the sub-landlord’s obligations. Although James testified at trial that he assigned only the Sublease’s benefits, he also admitted that he testified in his deposition that he assigned the entirety of the Sublease to Gidget. Moreover, when James first emailed Hayes in November 2008 about Gidget’s role, he did not merely say that he had assigned the benefits of the Sublease to Gidget. He wrote that he had “transferred” the Sublease to Gidget; he thanked Hayes for its help over the years; and he wished Hayes the “best of luck in the future.” This supports an inference that James was stepping out of his role as sublandlord, and turning that role over to Gidget. Although James later interacted with Hayes regarding its repair complaints, James agreed at trial that in doing so, he was working for Gidget. In addition, the Sublease required Hayes to name the sublandlord as an additional insured, and in March 2010, James asked Hayes for a copy of their insurance policy naming Gidget as an additional insured.
For Gidget’s acceptance of the subland-lord’s obligations, we need look no further than the settlement agreement. Gidget not only refers to herself in the agreement as the sublandlord and as the person who subleased the property to Hayes, but the agreement resolves a dispute between Gidget and Hayes about the costs of repairs to the property. If Gidget had merely been assigned the right to receive the Sublease’s benefits, Gidget would have had no obligation to pay for any repairs, and the dispute about the costs of repairs would have been a matter for Hayes to resolve with James rather than with Gidg-et. Thus, from all of this evidence, the trial court reasonably could find that James assigned, and Gidget accepted, the Sublease’s obligations as well as its benefits.
James and Gidget additionally contend that Gidget cannot be held liable for Hayes’s attorney’s fees because in the divorce decree at the end of James and Gidget’s marriage, Gidget was awarded “any monies owed by” Campbell, DDK, or Hayes.3 But the attorney’s fees that the trial court in this case ordered Gidget to pay Hayes are not monies “owed by” Hayes; they are funds owed to Hayes. Thus, by its terms, the cited provision of the divorce decree does not apply.4
In sum, we conclude that there is legally sufficient evidence that James assigned to Gidget the Sublease’s obligations as well as its benefits.
V. Claims Regarding the Master Lease of the Property to James
In challenging the trial court’s findings regarding breach of the Master Lease, most of James and Gidget’s appellate arguments focus on the correct inter-*606pretation of the contracts in this case. When interpreting a contract, we focus on identifying and giving effect to the parties’ intent as expressed in the contract. In re Serv. Corp. Int’l, 355 S.W.3d 655, 661 (Tex.2011) (orig. proceeding) (per curiam). To do so, we consider the entire contract and try to harmonize and give effect to all of its provisions so that none will be rendered meaningless and no single provision will be given controlling effect. Id. If the relevant rules of contract construction give the contract1 a definite legal meaning, then we construe it as a matter of law. See Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex.2005) (per curiam). If the contract is still subject to more than one reasonable interpretation after applying the relevant rules, then the contract is ambiguous, and the parties’ intentions present a question of fact. See El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex.2012).
A. There is legally sufficient evidence that James breached the Master Lease with Campbell.
The trial court impliedly found that James breached the Master Lease in two ways: by failing to comply with his maintenance-and-repair obligations and by failing to pay additional rent in an amount equal to the property’s 2006 pre-sale ad valorem taxes. Because it found that James breached his maintenance-and-repair obligations, the trial court concluded that Campbell and DDK validly terminated the Master Lease. Because the trial court found that James breached his obligation to pay additional rent, it awarded Campbell damages. We conclude that the evidence is legally sufficient to support each of these implied findings.
1. There is legally sufficient evidence that James breached the Master Lease by failing to maintain and repair the property.
James and Gidget contend that James’s only maintenance-and-repair obligation was to perform repairs that were required for the property’s use. In making this argument, they rely on the following language from the Master Lease: “When used herein, the term ‘repair’ shall include ... any work ordinarily required as a condition to the continued use of the Premises.” They then argue that because there is no evidence that Hayes had to discontinue using the property, there is no evidence that James failed to perform the required repairs. There are at least two problems with this interpretation.
First, James and Gidget read this provision as though it said that “the term ‘repair’ shall be limited to ” the matters listed, rather than “shall include” them. This is contrary to the generally accepted meaning of the word “include.” See Republic Ins. Co. v. Silverton Elevators, Inc., 493 S.W.2d 748, 752 (Tex.1973) (“Being preceded by the words ‘shall include,’ there is no hint of limitation or restriction in the definition.”); El Paso Elec. Co. v. Safeway Stores, Inc., 257 S.W.2d 502, 506 (Tex.Civ.App.-El Paso 1953, writ ref'd n.r.e.) (“The words ‘including’ and ‘includes’ have been said in their generally accepted use to be terms of enlargement and not of limitation.”); cf. Tex. Gov’t Code Ann. § 311.005(13) (West 2013) (“‘Includes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.”). Under the plain meaning of the sentence, then, this is not an exhaustive list. “Repair” includes more than the performance of “work ordinarily required as a condition to the continued use” of the property.
*607Second, James was required to do more than “repair.” We must read the contract as a whole, and James and Gidget’s interpretation would render meaningless the remainder of the Master Lease’s language addressing the parties’ respective maintenance-and-repair obligations. The relevant provisions are as follows:
8.01 Tenant’s [James’s] Duty to Maintain. Tenant, at its sole cost, risk, expense and liability shall keep and maintain in good repair all of the Premises. When used herein, the term “repair” shall include all necessary replacements, renewals, alterations, additions, better-ments and any work ordinarily required as a condition to the continued use of the Premises.... Tenant shall permit no waste, damage or injury to the Premises; and Tenant shall initiate and carry out a program of regular maintenance and repair of the Premises. Tenant’s obligations under this Article of the Lease shall include but not be limited to repairing and maintaining: (i) items as are required by any governmental agency having jurisdiction thereof (whether the same is ordinary or extraordinary, foreseen or unforeseen); (ii) the interior and exterior of the entire building, including all utility meters, plumbing, pipes and conduits, all fixtures, heating, ventilating and air conditioning equipment, sprinkler equipment and other equipment within the Premises, all Tenant’s signs, locks, and closing devices, and all of the grounds and paving; (iii) all plate glass and other glass (any glass broken shall be promptly replaced by Tenant with glass of the same kind, size and quality).... Any warranties obtained by Landlord in connection with the construction of the building shall be assigned to Tenant so that Tenant can enforce same, and Landlord shall cooperate in the enforcement of said warranties.
8.02 No Maintenance Required of Landlord [Campbelll ]. Landlord shall have no obligations whatsoever to maintain or repair all or any portion of the Premises, including but not limited to the building and other improvements.
James and Gidget do not explain how their argument for a restricted definition of the word “repair” can be harmonized with James’s broad duty to “permit no waste, damage or injury to the Premises,” but instead to “initiate and carry out a program of regular maintenance” over “the interior and exterior of the entire building” and “all of the grounds and paving.” 5 Moreover, they do not contend that James complied with these duties; they do not even mention that the Master Lease contains any such language.. Instead, they rely on their restricted interpretation of the word “repair,” and argue simply that when determining whether James breached the Master Lease, the question of whether the property needed repair is beside the point, because so long as Hayes was able to continue using the property, •James’s “duty to effectuate repairs ... was never triggered.” This interpretation of the Master Lease, however, is contrary to unambiguous language in the contract requiring James to carry out a regular program of maintenance and repair.
The evidence is undisputed that James did not comply with these duties. Campbell produced evidence that the property’s condition deteriorated over time due to neglected maintenance, and James admit*608ted at trial that the only amounts that he or Gidget expended for the property’s maintenance and repair were those addressed in Hayes’s settlement agreement with Gidget regarding repairs to the roof.
We therefore conclude that there is legally sufficient evidence that James breached this part of the Master Lease. Having rejected James and Gidget’s position that James was obligated to perform only those repairs that were required as a condition to the property’s continued use, we do not address their additional arguments that are built on the same foundation.6
2. There is legally sufficient evidence that James breached the Master Lease by failing to pay additional rent equal to the 2006 ad valorem taxes.
The Master Lease further provided that “Tenant [James] shall pay to Landlord [Campbell], in addition to the rent above reserved and as Additional Rent, all taxes ... taxed or imposed on or to Landlord with respect to, or based solely on valuation of, the Leased Premises ... during the term of this Lease.” James admitted at trial that he was required to make payments to Campbell for the ad valorem taxes assessed on the property, and that he did not pay the amounts owed for tax year 2006. He nevertheless argues that Campbell is not entitled to recover the damages awarded because (a) she did not mention taxes in her pleading, (b) the amendment to the Master Lease when a portion of the property was sold eliminated James’s obligation to make this payment, (c) there is legally insufficient evidence of the amount of the 2006 pre-sale ad valo-rem taxes, and (d) Campbell subsequently transferred the Master Lease and the property to DDK.
(a) Campbell was not required to address taxes in her pleading.
James argues that taxes are special damages that Campbell was required to plead, and that Campbell did not include any special damages in her pleading. Whether particular damages must be specifically pleaded depends on whether they constitute general damages (also known as “direct damages”) or special damages (also known as “consequential damages”). See Tex. R. Civ. P. 56 (“When items of special damage are claimed, they shall be specifically stated.”); Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex.1997) (sub. op.) (using the terms “direct damages” and “consequential damages”); Anderson Dev. Corp. v. Coastal States Crude Gathering Co., 543 S.W.2d 402, 405 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref'd n.r.e.) (using the terms “general damages” and “special damages”). The distinction turns on whether the damages “usually” or “necessarily” flow from the wrongful act. See Arthur Andersen & Co., 945 S.W.2d at 816 (explaining that “[d]ireet damages are the necessary and usual result of the defendant’s wrongful act,” whereas consequential damages “result naturally, but not necessarily, from the defendant’s wrongful acts”); Anderson Dev. Corp., 543 S.W.2d at 405 (stating that “[g]eneral damages are those which naturally and necessarily flow from a wrongful act,” whereas “[s]pecial *609damages arise naturally but not necessarily from the wrongful act”). General damages need not be pleaded because they “are so usual an accompaniment of the kind of breach alleged that the mere allegation of the breach gives sufficient notice” that such damages were sustained. Hess Die Mold, Inc. v. Am. Plasti-Plate Corp., 653 S.W.2d 927, 929 (Tex.App.-Tyler 1983, no writ). Special damages, on the other hand, “are so unusual as to normally vary with the circumstances of each individual case, and must be shown to have been contemplated or foreseen by the parties.” Id.
In support of the assertion that Campbell was required to specially plead for the recovery of taxes, James cites Smith v. National Resort Communities, Inc., 585 S.W.2d 655 (Tex.1979). Although the taxes sought in Smith constituted special damages, the case is distinguishable. The plaintiffs in the Smith case sued to rescind a contract to purchase real property because the seller failed to disclose that the property was encumbered by a flood easement. Id. at 656. The plaintiffs sought restitution of the purchase price and the taxes paid on the property. Id. The court explained that “Rescission is an equitable remedy and, as a general rule, the measure of damage is the return of the consideration paid, together with such further special damage or expense as may have been reasonably incurred by the party wronged on account of the contract.” Id. at 660. The taxes paid by the plaintiffs in that case were the natural, but not the necessary, result of the defendant’s wrongful act.
Unlike the unpaid taxes in Smith, the damages at issue here were the necessary result of James’s breach of contract. This is so because the contract itself required James to pay “additional rent” equal to the property’s ad valorem taxes. A breach of the contractual obligation to pay a certain amount necessarily gives rise to damages in the unpaid amount.7 Because these are general damages, Campbell was not required to specifically plead for them.
(b) The amendment to the Master Lease did not eliminate James’s obligation to pay additional rent in the amount of the pre-sale ad valo-rem taxes.
James also points out that the Master Lease was amended when Campbell sold a portion of the property in 2006, and he contends that the amendment eliminated his duty to pay additional rent in the amount of the ad valorem taxes. This is not supported by the record. The amendment simply changed the definition of “premises” to exclude the part of the premises that was sold. The amendment *610did not become effective at the beginning of the tax year; by its terms, the amendment became effective when the property sale took place in October 2006. Thus, the amendment did not change James’s contractual obligation to pay Campbell additional rent in an amount equal to the ad valorem taxes assessed over the entirety of the property for the part of the tax year that preceded the sale.
(c) There is legally sufficient evidence of the amount of the 2006 ad valorem taxes.
' James states that there is less than a scintilla of evidence to support the damages awarded to Campbell. Campbell testified, however, that taxes of $61,823.12 were assessed against the property for the part of tax year 2006 that predated the property sale. She also introduced into evidence a 2007 demand letter to James from Campbell’s attorney, stating the same total and separately listing the amounts assessed by each taxing unit. This uncontroverted evidence about the amount of the taxes assessed is legally sufficient to support the trial court’s damage award in Campbell’s favor.
(d) Campbell’s transfer of the Master Lease does not bar her recovery for its pre-transfer breach.
James further asserts that because Campbell transferred the property and the Master Lease to DDK, she cannot recover for James’s breach of the obligation to pay additional rent in the amount of the unpaid 2006 ad valorem taxes. In other words, he contends that because Campbell transferred the property and the contract in 2010, she cannot recover on a breach-of-contract claim that accrued when the payment was due in 2007. He does not contend, however, that Campbell assigned her cause of action to DDK, and he cites no evidence or authority in support of his assertion. This argument therefore is waived. See Tex. R. App. P. 38.1(i).
B. James and Gidget failed to conclusively prove that Campbell’s failure to give advance notice of her intent to transfer the property was a prior material breach.
James and Gidget next contend that the trial court erred in finding that Campbell did not breach the Master Lease. Specifically, they argue that Campbell breached the following provision:
If at any time during the term of this Lease, Lessor [Campbell] desires to mortgage or transfer, convey or sell the Premises or any part thereof, then prior to Lessor’s mortgaging or placing the Premises or any part thereof on the market for sale, Lessor shall first notify Tenant [James] in writing of such intention ....
The Master Lease provided that after such notice was given, James would have thirty days in which to give Campbell written notice of his intention to buy the Premises and to negotiate the terms of the sale. If no agreement was reached by the end of that time, Campbell was “free to offer such interest for sale to third party, bona fide purchasers.” It is undisputed that Campbell gave James no advance notice before she transferred the property and the Master Lease to DDK, a limited liability company owned and managed solely by Campbell.
But the question before us is not whether Campbell failed to comply with this provision, but whether she was required to comply. This is so because when one party materially breaches a contract, the other party to the contract is discharged or excused from further performance. Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex.*6112004) (per curiam). In áccordance with this principle, James and Gidget argue that “[b]ecause Campbell’s breach was pri- or to any other alleged breach, the trial court should have ruled in favor of James and Gidget and entered judgment against Campbell.” (emphasis added). Their argument, however, is predicated on the success of their contention that James did not breach the Master Lease, so as to make Campbell’s failure to comply with this provision the first material breach. But as we previously explained, the trial court did not err in concluding that James breached the Master Lease. Thus, the determinative question before us is not whether Campbell failed to give advance notice of her intent to transfer the Master Lease and the property — unquestionably, she did not — but whether she was required to comply with the provision given James’s breach of his maintenance-and-repair obligations.8 If James had not yet breached those obligations when Campbell transferred the property and the Master Lease, then she was required to comply with that provision. If he had already materially breached those provisions of the contract, however, then Campbell was no longer required to comply with it. See Advanced Personal Care, LLC v. Churchill, 437 S.W.3d 41, 46 (Tex.App.-Houston [14th Dist.] 2014, no pet.).
We conclude that the following evidence is legally sufficient to support the implied finding that James materially breached his maintenance-and-repair obligations before Campbell transferred the Master Lease and the property to DDK:
• Campbell’s attorney wrote a letter to James’s attorney on March 25, 2010, demanding that James begin repairing “all defects of the Premises” within fifteen days. The only defects specifically mentioned were the collapsing awning and the sinkhole in the parking lot.
• James’s attorney responded on April 9, 2010 that Hayes was making arrangements to complete the repairs.
• Campbell’s attorney again wrote to James’s attorney on April 20, 2010, and pointed out that under the terms of the Master Lease, “Tenant [James] gets 30 days’ written notice before a failure to perform covenants becomes an Event of Default.” Because Campbell gave written notice on March 25, 2010 of the need to repair the sinkhole and the awning, James was given until April 26, 2010 “to take the actions required under the Lease.” Campbell’s attorney enclosed a report of the property’s inspection by Professional Engineering Inspections, Inc. and stated that James had thirty days — that is, until May 21, 2010 — to address those additional items.
• On April 26, 2010 — the deadline to address the sinkhole and the awning — James and Gidget’s .attorney responded, “The alleged notice is re- ' jected,” claiming no obligation to repair.
In sum, there is legally sufficient evidence that James breached the Master Lease on April 26, 2010 by repudiating his contractual responsibility to maintain and *612repair the property. Inasmuch as this was the date by which James was required to respond to the first of Campbell’s maintenance-and-repair demands and Campbell transferred the property to DDK the same day, the trial court was entitled to infer that Campbell did so in response to — and thus, after — James’s denial of his contractual obligations to repair and maintain the property. Upon James’s material breach of the Master Lease, Campbell was entitled to treat the contract as terminated. Because she no longer was required to comply with the contractual obligation to give James advance notice of her intent to transfer the property, her failure to do so was not a breach of the contract.9 We overrule James and Gidget’s first two issues.
VI. Claims Regarding the Sublease of the Property to Hayes
James and Gidget next challenge the judgment against them in Hayes’s favor, arguing that the trial court erred both in finding that James breached the Sublease with Hayes, and in finding that Hayes did not breach the Sublease. Although James and Gidget do not expressly challenge the trial court’s finding that Gidget breached the Sublease with Hayes, they argue that Gidget was not a party to a contract with Hayes. As previously discussed, however, we have concluded that the evidence is legally sufficient to support the trial court’s finding that Gidget became the sublandlord under the Sublease in November 2008; thus, our discussion about the parties’ claims and counterclaims for breach of the Sublease applies to Gidget as well as to James.
A. There is legally sufficient evidence that James and Gidget breached the Sublease.
James and Gidget’s arguments that they did not breach the Sublease with Hayes are predicated on the success of their' challenge to the judgment in Campbell’s favor. This is because the Sublease expressly provides that an uncured default of the Master Lease is also a default of the Sublease fyy the “sublandlord.” James and Gidget accordingly argue that the Master Lease was not breached, and thus, the Sublease was not breached. We have held, however, that there is legally sufficient evidence to support the trial court’s findings regarding breach of the Master Lease, and the same evidence is legally sufficient to support the trial court’s conclusion that James and Gidget breached the Sublease.
B. James and Gidget failed to conclusively establish that Hayes breached the Sublease.
James and Gidget also assert that the trial court’s finding that James breached the Master Lease conflicts with the finding that Hayes did not breach the Sublease. They contend that Hayes’s duties of maintenance and repair under the Sublease were broader than James’s duties under the Master Lease, because “[ujnlike the Master Lease, the Sublease did not limit the term ‘repairs,’ to repairs necessary for the continuing use of the property.” They therefore reason that if the failure to perform repairs were a breach of the Master Lease by James, then the same failure also would have been a breach of the Sublease by Hayes. We already have rejected that argument: James’s mainte*613nance-and repair obligations under the Master Lease were not limited to repairs that were necessary for Hayes’s continued use of the property.
James and Gidget additionally contend that Hayes had the same repair obligations under the Sublease that James had under the Master Lease. Specifically, they assert that section 5 of the Sublease incorporates the terms of the Master Lease and substitutes “Sublandlord” for “Landlord” and “Subtenant” for “Tenant.” According to James and Gidget, “[n]one of the [Master Lease’s] Articles concerning maintenance and repair were excepted from this clause.” But once again, their interpretation is contrary to the plain language of the contract.
First, in relying on section 5 of the Sublease, James and Gidget have failed to mention the following language:
This Sublease is subject and subordinate to the Master Lease. The terms, conditions and respective obligations of Sub-landlord and Subtenant to each other under this Sublease shall be the terms and conditions on the Master Lease except to those provisions of the Master Lease which are contradicted by this Sublease, in which event the terms of this Sublease shall control over the Master Lease. In addition, but not by 'way of limitation, the folloioing provisions of the Master Lease shall not apply to the rights and obligations of Sublandlord and Subtenant: Sections 4.05, 8.01, 8.02, 13.01, 13.02, 15.01, 20.02, 22.01(f), and 23.01-23.03.10
As previously discussed, Articles 8.01 and 8.02 of the Master Lease deal with the respective maintenance-and-repair obligations of the Master Lease’s landlord and tenant; thus, the repair-and maintenance obligations that James agreed to perform as the tenant under the Master Lease were not passed through to become subtenant Hayes’s obligations under the Sublease. Moreover, section 14 of the Sublease imposes the following additional maintenance-and-repair obligations on the sublandlord:
14. Repair and Maintenance by Sub-landlord [i.e., James and then Gidg-et].... Sublandlord shall be responsible for compliance of the Subleased Premises with all present and future laws relating to health, safety, and access for the disabled and for all latent defects in the Subleased Premises. Furthermore, if any condition of the Subleased Premises existing prior to Subtenant’s occupancy thereof is required by applicable law to be corrected and such correction is not a result of Subtenant’s particular use of the Subleased Premises ..., Sublandlord shall be responsible for correcting such condition, at its sole cost and expense, and without reimbursement by Subtenant. Sublandlord warrants that the air conditioning and heating systems, electrical system, mechanical system, and plumbing system will be in good working order on the Sublease Commencement Date.
Hayes presented evidence at trial that it discovered in 2007 (when James was the sublandlord) that there were a half-dozen open building permits on the premises, and Hayes was unable to obtain a certificate of occupancy until all of the code violations were remedied. The matters that had to be repaired included latent defects and violations of code provisions related to health and safety, the electrical system, and the plumbing system. Hayes also found more problems that needed repair when Gidget was the sublandlord. Although these were the sublandlord’s obli*614gation, neither James nor Gidget accepted responsibility, and Hayes eventually offset the cost of repairs against its rent payments, as it was entitled to do under the terms of the Sublease. We accordingly hold that the evidence is legally sufficient to support the trial court’s finding that Hayes did not breach the Sublease by failing to make repairs or by offsetting the cost of repairs against its rent payments.11 Thus, we overrule James and Gidget’s third issue.
C. There is legally sufficient evidence to support Gidget’s joint and several liability for Hayes’s attorney’s fees.
The Sublease provides that “Subland-lord [James and then Gidget] shall indemnify Subtenant [Hayes] for and hold Subtenant harmless from and against all costs, expenses (including reasonable attorneys’ fees), fines, suits, claims, demands, liabilities and actions resulting from any breach, violation or nonperformance of any covenant or condition hereof....” In accordance with this provision, the trial court held James and Gidget jointly and severally liable for Hayes’s attorney’s fees. Although Gidget challenges this portion of the judgment, she does not argue that she should be liable only for costs associated with the time that she was the Subland-lord. Instead, she repeats the legal-sufficiency arguments previously discussed. Gidget argues only that there is no legal basis for that portion of the judgment because (1) “Hayes did not have a lease or any other contract with Gidget Archer,” and (2) the evidence is undisputed that only the benefits of the Sublease were assigned to her.
We already have considered and rejected each of these arguments; thus, this issue presents nothing further for us to review. We accordingly overrule this issue.
VII. Conclusion
Having overruled each of the issues presented, we affirm the trial court’s judgment.
. Because James and Gidget have the same last name, we refer to them using their first names.
. The amended petition or petitions by which those changes first were made are not in the record.
. Emphasis added.
. James and Gidget also argue that [they] agreed that James carry the responsibility and Gidget reap the benefits.” We note that because James and Gidget were held jointly and severally liable, James’s ability to comply with any such agreement with Gidget by paying the entire amount himself is unaffected.
. See, e.g., R.C. Bowen Estate v. Cont'l Trailways, Inc., 152 Tex. 260, 263, 256 S.W.2d 71, 72 (1953) (“Waste is an injury to the rever-sionary interest in land caused by the wrongful act of a tenant or other party rightfully in possession” and "includes injury resulting from failure to exercise reasonable care in preserving the property.”).
. These include their arguments that (1) the conditions about which Campbell complained preexisted the Master Lease "and therefore could not affect the continued use of the property”; (2) the parties' agreement at the Master Lease's inception that the property was "in tenantable condition” constituted confirmation "that the condition of the property was conducive to its continued use”; and (3) because James did not breach his repair obligations, Campbell had no grounds to terminate the Master Lease, so that her attempt to do so was itself a breach of the contract.
. In a related argument, James points out that the trial court did not mention ad valo-rem taxes in its findings of fact. The trial court stated in its judgment, however, that James breached the Master Lease, and that Campbell is entitled to recover $61,823.12, an amount that is identical to the unpaid additional rent for the 2006 ad valorem taxes. Although findings of fact and conclusions of law generally are to be stated in a document separate from the judgment, see Tex. R. Civ. P. 299a, those stated in a judgment nevertheless have probative value if they do not conflict with those stated in a separate document. See Bryan Indep. Sch. Dist. v. Cune, No. 14-09-00062-CV, 2010 WL 2541841, at *3 (Tex.App.-Houston [14th Dist.] June 24, 2010, pet. denied) (mem. op.); Baltzer v. Medina, 240 S.W.3d 469, 474 (Tex.App.-Houston [14th Dist.] 2007, no pet.). The trial court did not address this claim further in its separately issued findings of fact and conclusions of law, and the parties did not request additional or amended findings. See Tex. R. Civ. P. 298. Although James implies that the trial court's findings omit an element necessary for Campbell to recover on her breach-of-contract claim, the unrequested elements are supplied by the presumption in support of the judgment. See Tex. R. Civ. P. 299.
. Although James breached the Master Lease in 2007 by failing to pay additional rent in an amount equal to the 2006 ad valorem taxes, it is undisputed that, despite the breach, Campbell continued to try to enforce James’s obligations under the contract and specifically stated that although she reserved her right to sue for damages, she was not terminating the Master Lease at that time. See Advanced Personal Care, 437 S.W.3d at 48. The Master Lease remained in effect until it was terminated in 2010 for the stated reason that James had breached his maintenance-and-repair obligations.
. James and Gidget's remaining arguments in support of this issue are predicated on the success of their contentions that James did not breach the Master Lease, so that the termination of the Master Lease was the first breach. Because we have rejected this premise, we do not address James and Gidget’s remaining arguments in support of this issue.
. Emphasis added.
. James and Gidget similarly contend that by offsetting the cost of repairing code violations against its rent, Hayes also breached its settlement agreement with Gidget. This is really a restatement of the argument that Hayes breached the Sublease, because the settlement agreement is a modification of the Sublease. Although the settlement agreement.included provisions raising Hayes’s rent so that Hayes bore half of the cost' of roof repairs, the settlement agreement did not modify the provisions in the Sublease that (a) required the sublandlord [James and then Gidget] to pay for these code-violation repairs, or (b) permitted Hayes to deduct the costs of the code-violation repairs from its rental payments. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284062/ | ORDER
PER CURIAM.
Cynthia Hermann (Appellant) appeals from the trial court’s judgment granting the Missouri State Public Defender System’s, Cathy Kelly’s, and Mary Fox’s (collectively Respondents) Motion for Directed ■Verdict on Appellant’s retaliation claim in her Petition alleging employment discrimination under the Missouri Human Rights Act. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court did not err in granting Respondents’ Motion. An extended opinion would have no precedential value. We *798have, 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/5284064/ | ORDER
PER CURIAM
Anton Fantroy appeals the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief. We affirm the motion 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/5284066/ | ORDER
PER CURIAM
City of Maryland Heights (“Appellant”) appeals from a judgment of the Missouri Labor and Industrial Relations Commission (“the Commission”) finding that William Wagner (“Respondent”) had sustained a thirty percent permanent partial disability of his low back and ten percent permanent partial disability of the body as a whole referable to psychiatric disability, and finding Appellant liable for $132,002.60 in past medical expenses. 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/5284067/ | *809
ORDER
PER CURIAM
Howard Danzig (Danzig) appeals pro se from the trial court’s judgment in favor of the Missouri Department of Labor and Industrial Relations, Division of Employment Security (Division) and against Dan-zig as to the Division’s petition to enforce administrative subpoena duces tecum and ordering Danzig to produce to the Division records required to be kept by Section 288.130, RSMo 2000.1 We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential or precedential purpose. We have, however, provided a memorandum opinion for the use of the parties setting forth the. reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).
. 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/5284068/ | ORDER
PER CURIAM
William Carson (Movant) appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Movant claims the motion court clearly erred in denying his post-conviction motion because his trial counsel was ineffective for failing to: (1) locate and call a witness at trial; and (2) limit testimony regarding his alleged prior misconduct. We affirm.
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/6125601/ | Judgment of County Court affirmed. Opinion by
Smith, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125602/ | New trial ordered, costs to abide event. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284070/ | ORDER
PER CURIAM.
Latoya Carter appeals from the motion court’s judgment denying her Rule 24.0351 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 24.035(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties, for their use only. We affirm the judgment pursuant to Mo. R. Civ. P. 84.16(b).
. All rule references aré to Mo.R. Crim.P. 2014, unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/584953/ | 966 F.2d 1453
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.John MOORE; Kathy Moore, Parents of Kevin Moore, a minor,Plaintiffs-Appellees,v.The CRESTWOOD LOCAL SCHOOL DISTRICT BOARD OF EDUCATION,Defendant-Appellant.
No. 91-4157.
United States Court of Appeals, Sixth Circuit.
May 21, 1992.
1
Before NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges, and JOINER, Senior District Judge.*
ORDER
2
The defendant appeals the district court's order determining that the defendant is liable for attorney's fees incurred by the plaintiffs in exercising their rights under the Individuals with Disabilities Education Act (IDEA). A review of the briefs which have been filed in this matter indicate that the parties were unable to agree upon the educational placement of Kevin Moore. At a due process hearing, the hearing officer resolved pending issues and directed actions to be taken with respect to Kevin's education. Thereafter, the plaintiffs filed this action in the district court seeking attorney's fees under the IDEA pursuant to 20 U.S.C. § 1415(e)(4)(B).
3
On November 4, 1991, the district court entered an order granting summary judgment to the plaintiffs. A judgment pursuant to Fed.R.Civ.P. 58 was entered the same day. However, upon closer reading of the district court's order, it is apparent that only the defendant's liability for attorney's fees was decided. The court further directed that the plaintiffs' attorney submit an itemized account of fees and costs incurred. Thus, even though the plaintiffs sought a specific sum in their complaint, the district court has yet to determine the specific amount of judgment. The defendant appealed from the district court's order.
4
This court is obligated to review its appellate jurisdiction and may do so at any time prior to the entry of a final decision. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976); Purnell v. Akron, 925 F.2d 941, 943-44 (6th Cir.1991). Generally, this court has jurisdiction only in appeals from final decisions of the district court. 28 U.S.C. § 1291. A judgment of the district court which determines liability, but not the amount of the judgment is not final for purposes of appeal. Liberty Mutual, 424 U.S. at 744. In the instant case, proceedings are pending in the district court that will determine the amount of judgment. A determination of the amount of attorney's fees is not collateral to a determination of liability for attorney's fees. See Morgan v. Union Metal Mfg., 757 F.2d 792, 795 (6th Cir.1985). The defendant may seek review of the district court's decision once final judgment in a specific amount has been entered.
5
It therefore is ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction, without prejudice to the defendant's right to perfect a timely appeal from the district court's entry of final judgment in this case.
*
The Honorable Charles W. Joiner, U.S. Senior District Judge for the Eastern District of Michigan, sitting by designation | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5284071/ | ORDER
PER CURIAM:
Following a jury trial, Ralph Willis was convicted in 2010 in the Circuit Court of Jackson County of second-degree (felony) murder, first-degree endangering the welfare of a child, and child abuse. The charges stemmed from the death of a six-month-old infant in his care. Willis filed a motion for post-conviction relief under Supreme Court Rule 29.15. The motion alleged that Willis’ trial counsel was ineffective for withdrawing a motion in limine, which had sought to exclude evidence that the deceased infant had experienced previous injuries. The circuit court denied Willis’ motion following an evidentiary hearing. 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/5284072/ | OPINION
Bob Pemberton, Justice
This is an interlocutory appeal of an order denying a plea to the jurisdiction asserted by a municipality and three official-capacity defendants.1 We will affirm the order.
The underlying dispute arises under the Civil Service Act, now codified in Chapter 143 of the Local Government Code.2 The appellants, defendants below, are the City of New Braunfels — one of the municipalities that has voted to adopt the Act — and the three members of the City’s civil service commission (Commission), each of whom was sued in his or her official capacity.3 The appellee, plaintiff below, is Joseph Tovar, who has served as an officer with the New Braunfels Police Department for more than a decade and currently holds the rank of Corporal. On May 20, 2014, appellants administered, and Tovar competed in, a written examination for purposes of creating a promotion-eligibility list for the Sergeant rank.4 None of the candidates taking the exam were credited with a passing grade of 70 or higher,5 so no list was created. Tovar was given a grade of 64. He subsequently ascertained that this grade represented only the percentage of his correct answers on the exam, without adjustment. Contending that he was entitled to additional points for seniority that would give him a passing grade (and eligibility for placement on the promotion-eligibility list as the sole candi*916date), Tovar filed an appeal with the Commission.6 He relied on section 143.033 of the Act, which in relevant part provides:
§ 143.033. Promotional Examination Grades
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(b) Each police officer is entitled to receive one point for each year of seniority as a classified police officer in that department, with a maximum of 10 points. Each fire fighter is entitled to receive one point for each year of seniority in that department, with a maximum of 10 points.
'(c) [T]he grade that must be placed on the eligibility list for each police officer or fire fighter shall be computed by adding the applicant’s points for seniority to the applicant’s grade on the written examination, but for a fire fighter applicant only if the applicant scores a passing grade on the written examination. Each applicant’s grade on the written examination is based on a maximum grade of 100 points and is determined entirely by the correctness of the applicant’s answers to the questions.... [A]ll police officer applicants who receive a grade of at least 70 points shall be determined to have passed the examination and all fire fighter applicants who receive a grade on the written examination of at least 70 points shall be determined to have passed the examination. If a tie score occurs, the commission shall determine a method to break the tie.7
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Assuming that the “seniority points” provided by subsection (b) became relevant to Tovar’s grade, there is no dispute that Tovar’s tenure with the New Braunfels Police Department would qualify him for the maximum of 1.0 additional points. In omitting such an adjustment, appellants evidently relied on a local civil-service rule that purports to construe Act section 143.033 to limit eligibility for “seniority points” solely to candidates who “receive a grade of at least 70 on the written examination” alone,8 in essence making seniority a factor only in the relative rankings of already-passing candidates and not in regard to whether an officer passes the exam at all.9 Tovar insisted that Act section 143.033 left appellants no discretion to do this, emphasizing the provision’s contrast*917ing language when addressing seniority points for fire fighters versus those for police officers.10
The Commission considered Tovar’s appeal during a meeting on July 9, 2014, and voted to deny relief. On July 18, Tovar filed his suit against appellants in the district court. In it, he principally seeks declaratory, injunctive, and mandamus relief to enforce what he views as the proper construction of Act section 143.033 and compel appellants to add the ten seniority points to which he claims entitlement, credit him with a grade of 74 on the exam, and place his name on the promotion-eligibility list. Incident to these claims, Tovar also seeks attorney’s fees and court costs.11
Both on appeal and below, appellants have challenged the district court’s subject-matter jurisdiction to adjudicate Tovar’s claims on essentially two sets of grounds.12 First, appellants urge that To-var lacks standing to prosecute his claims. They reason that even if Tovar succeeds on the merits and is named to the promotion-eligibility list, he would have no justiciable interest in a promotion unless and until a vacancy actually arises. Appellants overlook that Tovar is not suing to compel his promotion to Sergeant, but to enforce a distinct statutory right — his right to be included on the promotion-eligibility list from which the hiring authority would be required to select a candidate in the event of a vacancy.13 Tovar plainly has standing to vindicate this right.14
Appellants second line of jurisdictional attack is based on governmental immunity, which would generally bar suit against the City, its agencies or agents (including the three official-capacity defen*918dants) absent legislative waiver.15 To invoke the district court’s jurisdiction nonetheless, Tovar has relied on two alternative theories. First, Tovar has invoked section 143.015 of the Act, which authorizes a police officer who “is dissatisfied with any [civil service] commission decision” to “file a petition in district court asking that the decision be set aside.”16 Section 143.015 further authorizes the district court to provide remedies that include “the appropriate legal or equitable relief necessary to carry out the purposes of this chapter” and attorney’s fees.17 Because the relief authorized by the provision necessarily lies against governmental authorities, section 143.015, as this Court has observed, is a “limited waiver” of sovereign or governmental immunity.18
Tovar’s suit is plainly within the waiver provided by section 143.015 — its substantive thrust is that the Commission’s decision denying him the benefit of seniority points and a place on the promotion-eligibility list should be overturned.19 His claims for injunctive, mandamus, and perhaps declaratory relief would likewise fall within the “legal or equitable relief’ that the district court may deem “appropriate ... to carry out the purposes of this chapter.” 20 Tovar’s claim for attorney’s fees is also explicitly authorized under the provision.21
Appellants’ chief argument in opposition is that Tovar did not invoke section 143.015, or even assert a justiciable claim under it, because he did not specifically name the Commission, in so many words, as a defendant, but instead sued the City and the Commission’s three members in their official capacities. Leaving aside whether there is any distinction between “the City of New Braunfels” and “the City of New Braunfels’ Civil Service Commission” that would be material to jurisdiction, “[i]t is fundamental” that a suit against a government officer in his or her official capacity, such as Tovar has asserted against the Commission’s three members, “is merely ‘another way of pleading an action against the entity of which [the official] is an agent.’ ”22 And where the Legislature has waived immunity to permit suit against the governmental body, as this Court has observed, “the distinction amounts merely to two different ways to plead for the same relief against the same defendant.”23 In short, contrary to appel*919lants’ assertions, Tovar has sued the Commission in substantive legal effect by suing all of its members in their official capacities. In the very least, the district court would not have committed any harmful error in permitting Tovar’s suit to proceed.24
Tovar’s alternative theory for invoking the district court’s jurisdiction despite appellants’ governmental immunity relies on the “ultra vires exception” to such immunity, whereby a claimant can seek prospective relief to compel a governmental body to comply with its statutory authority or perform a non-diseretionary duty.25 To invoke the ultra vires exception, a claimant must sue a human agent of the relevant governmental body, in his or her official capacity,26 as Tovar has done here. The claimant must also “allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.”27 To ascertain compliance with that limitation, we “construe the provisions of the [statutes] that define the scope of the [governmental body’s] legal authority, apply them to the facts [the claimant has presented], and ascertain whether those facts constitute acts beyond [the agency’s] legal authority.” 28
Although we have sometimes declined to address the' applicability of the ultra vires exception where, as here, a valid statutory waiver of immunity has been invoked,29 we do so here in an abundance of caution given appellants’ insistence that Tovar has not sued the proper defendant under Act section 143.015 and to the extent Tovar’s claim for declaratory relief must rest upon an independent jurisdictional basis. The facts material to the ultra vires analysis are both undisputed and straightforward— Tovar was not credited with the ten seniority points that he would have been entitled to under Act section 143.033, subsection (b) — and he urges that subsection (c) left appellants no discretion but to add *920those ten points to his “raw” exam score of 64, giving him a passing grade, and accordingly place him on the promotion-eligibility list.
We agree that subsection (c) unambiguously mandates these actions on the part of the Commission (or, within the ultra-vires rubric, the Commission members in their official capacities) despite Tovar’s inability to obtain a passing grade on the written exam prior to any adjustments. This becomes apparent, as Tovar suggests, when examining subsection (c)’s contrasting treatment of seniority points for fire fighters versus police officers. Subsection (c) mandates that “the grade that must be placed on the eligibility list for each police officer or fire fighter shall be computed by adding the applicant’s points for seniority to the applicant’s grade on the written examination,” then adds “but for a fire fighter applicant only if the applicant scores a passing grade on the written examination.”30 There is no similar limitation for police officers, which implies that “the grade that must be placed on the eligibility list for each police officer” includes the total of “the applicant’s points for seniority” and “the applicant’s grade on the written examination” regardless of whether the latter was itself a passing grade. This conclusion is further supported by the contrasting language in the subsequent portions of subsection (c):
Each applicant’s grade on the written examination [i.e., that which the preceding sentence requires to be added to “the applicant’s points for seniority” to compute “the grade that must be placed on the eligibility list”], is based on a maximum grade of 100 points and is determined entirely by the correctness of the applicant’s answers to the questions .... [A]ll police officer applicants who receive a grade of at least 70 points shall be determined to have passed the examination and all fire fighter applicants who receive a grade on the written examination of at least 70 points shall be determined to have passed the examination.31
The import of these provisions and their contrasting treatment of police officers and fire fighters is that only a fire fighter’s “grade on the written examination” itself counts toward the passing grade of 70, while a police officer’s has the benefit of his or her “grade” — a term referring to the total of the • “grade on the written examination” and “points for seniority.” We must presume the Legislature tailored this contrasting language deliberately, and give effect to it.32 Upon doing so, we conclude that Tovar has invoked the district court’s jurisdiction through valid ultra vires claims.
We affirm the district court’s order denying appellants’ plea to the jurisdiction.
ORDER
PER CURIAM
Under the circumstances of this case, we order that no motions for rehearing may *921be filed.1 We further direct the Clerk of this Court to issue the mandate immediately.2
It is ordered.
. See Tex. Civ. Prac. & Rem.Code § 51.014(a)(8); Texas A & M Univ. v. Koseoglu, 233 S.W.3d 835, 845 (Tex.2007) (holding that section 51.014(a)(8) allows official-capacity defendants to bring interlocutory appeal of order denying plea to jurisdiction).
. See generally Tex. Loc. Gov’t Code §§ 143.001-.403; see also Bracey v. City of Killeen, 417 S.W.3d 94, 97 (Tex.App.-Austin 2013, no pet.) ("In municipalities that have voted to adopt it, the Civil Service Act — nowadays codified as chapter 143 of the Local Government Code — supplants at-will employment of police officers with a regime of merit-based, just-cause employment that is intended to ‘secure efficient ... police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.’ ” (quoting Tex. Loc. Gov’t Code § 143.001(a))).
. See id. § 143.006 (creation and appointment of civil service commission).
. See City of Round Rock v. Whiteaker, 241 S.W.3d 609, 617-18 (Tex.App.-Austin 2007, pet. denied) (summarizing the Act’s provisions mandating creation and use of eligibility lists in making promotions).
We take the foregoing facts, which appear to be undisputed, from Tovar's live petition and material jurisdictional evidence. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000).
. See Whiteaker, 241 S.W.3d at 617 (citing Tex. Loc. Gov’t Code § 143.033(c)).
.See Tex. Loc. Gov’t Code § 143.034(a) (permitting "dissatisfied” exam candidate to "appeal, within five business days, to the [civil service] commission for review in accordance with this chapter”). Although Tovar’s live petition refers to this filing as a "grievance” rather than an "appeal” (and appellants seem to emphasize that fact), he also indicates that his "grievance” was made "pursuant to Tex. Loc. Gov’t Code § 143.034,” the provision authorizing an "appeal” by a "dissatisfied” exam candidate. Tovar’s choice of pleading nomenclature would not alter the substantive nature of what was plainly his pursuit of the administrative "appeal” remedy provided by section 143.034(a). And to the extent there could be any doubt, we additionally observe that Tovar’s evidence includes a copy of this filing and that he styled it an "appeal.”
. Id. § 143.033(b)-(c).
. New Braunfels, Tex., Firefighters & Police-Officers Civil Service Commission Rules and Regulations § 143.033(1) (Oct. 11, 2011), available at http://www.nbtexas.org.
. See Whiteaker, 241 S.W.3d at 617 (discussing statutory- procedures for deriving promotion-eligibility lists and rankings).
. See, e.g., Talley v. City of Killeen, 418 S.W.3d 205, 207 (Tex.App.-Austin 2013, pet. denied) (explaining that local civil-service rule is unenforceable to extent it is inconsistent with Civil Service Act (citing Tex. Const. art. XI, § 5; City of Houston v. Bates, 406 S.W.3d 539, 546 (Tex.2013))).
. Tovar’s live petition also includes a prayer for "actual damages.” However, the reporter’s record from the hearing on appellants’ plea to the jurisdiction reflects that Tovar’s counsel orally non-suited any claims for such damages. See In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 324-25 (Tex.2009) (recognizing oral nonsuit as effective when made).
. Appellants have also presented several arguments that are either in the nature of pleas in bar or otherwise go to the merits of Tovar’s claims rather than the district court's jurisdiction to decide them. We do not — and cannot — address those issues at this juncture. See Bland, 34 S.W.3d at 555 (holding that courts may consider evidence that goes to merits, but only where necessary to resolve jurisdiction issue that is before the court in interlocutory appeal); see also Astoria Indus, of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 626-27 (Tex.App.-Fort Worth 2007, pet. denied) (noting that scope of jurisdiction in interlocutory appeal is generally limited to issue on which interlocutory appeal is authorized, even if order denies or grants other relief).
. See Whiteaker, 241 S.W.3d at 617-18.
. See id. at 625. Appellants also suggest that Tovar’s claims are not justiciable because it is merely speculative that any vacancies or promotions will occur before the expiration of any promotion list that would have been created based on the May 20, 2014 examination. See Tex. Loc. Gov’t Code § 143.036(h). While perhaps relevant to potential mootness in the future, see Heckman v. Williamson Cnty., 369 S.W.3d 137, 161-64 (Tex.2012) (discussing general principles of mootness); but see id. at 164 (discussing capable-of-repetition-but-evading-review concept), appellants fail to demonstrate that Tovar currently lacks a justiciable interest in his claims.
. See, e.g., City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 512-13 (Tex. App.-Austin 2014, no pet.).
. Tex. Loc. Gov’t Code § 143.015(a). Such a petition must be filed within ten days after the date of the final commission decision. See id. There is no dispute Tovar’s suit was filed within that deadline.
. Id. § 143.015(b)-(d).
. See Whiteaker, 241 S.W.3d at 630.
. See Tex. Loc. Gov’t Code § 143.015(a) (authorizing police officer “dissatisfied with any commission decision” to "file a petition in district court asking that the decision be set aside”).
. Id. § 143.015(b).
. Id. § 143.015(c).
. Koseoglu, 233 S.W.3d at 844 (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)).
. Texas Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 750 (Tex.App.-Austin 2014, pet. dism'd); accord Teladoc, Inc. v. Texas Med. Bd., 453 S.W.3d 606, 613 n. 24 (Tex.App.-Austin 2014, pet. filed) (noting that naming agency officer "amounts to a duplica-tive but harmless pleading of the same claim *919fer relief against the same defendant” (citing id.)).
. See Balquinta, 429 S.W.3d at 750; Teladoc, 453 S.W.3d at 613 n. 24.
. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.2009). Contrary to appellants' assertions during oral argument, the import of Heinrich is not tied to the existence of a contractual right.- See id. (focusing on state official’s acting without legal authority or failing to perform a purely ministerial act); see also Southwestern Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex.2015) (holding that local governmental agency’s refusal to comply with Water Code provision constituted ultra vires act).
. See Heinrich, 284 S.W.3d at 373.
. Id. at 372-73.
. Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 701-02 (Tex.App.-Austin 2011, no pet.) (citing Heinrich, 284 S.W.3d at 372-73; Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on Envtl. Quality, 307 S.W.3d 505, 516 n. 8 (Tex.App.-Austin 2010, no pet.)).
.See, e.g., Balquinta, 429 S.W.3d at 751 ("[WJhere th[e] jurisdictional analysis of an ultra-vires claim would also have the effect of deciding the merits of a claim under APA section 2001.038 that is within the trial court’s jurisdiction by virtue of that statute's waiver of immunity, a trial court does not err in deferring that overlapping determination until a later time.” (citing Sunset Transp., 357 S.W.3d at 705); Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 906 n. 7 (Tex.App.Austin 2009, no pet.)). Our concern has been that an ultra vires analysis would effectively decide the merits of claims within the statutory waiver. See id. (declining to address ultra vires jurisdiction because it would "decide disputes regarding [the state actors’] statutory authority that also underlie [plaintiffs’] section 2001.038 rule challenge and comprise the merits of that claim.”).
. Tex. Loc. Gov't Code § 143.033(c).
. Id. (emphases added).
. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011) (“When construing a statute, our primary objective is to ascertain and give effect to the Legislature's intent.... To discern that intent, we begin with the statute’s words.... We presume that the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen.”) (internal citations omitted); see also Talley, 418 S.W.3d at 207 (applying similar analysis to Civil Service Act’s 10-day deadline for appeals).
. See Tex.R.App. P. 49.4.
. Tex.R.App. P. 18.6. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284073/ | OPINION
Opinion by
Justice Schenck
Relator filed this petition for writ of mandamus requesting that the Court order the trial court to vacate its January 9, 2015 order denying relator’s plea to the jurisdiction, vacate its March 16, 2015 order granting summary judgment declaring Brar is not president of the non-profit corporation that is at the center of this dispute, dismiss the declaratory judgment portion of this action for lack of subject matter jurisdiction, and instruct the trial judge that he must continue to hear pleas to the jurisdiction. Ordinarily, to obtain mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex.2004) (orig.proceeding). We conclude the relator has failed to establish a right to relief at this time.
In accordance with the supreme court’s rejection of a “categorical approach” to the determination of when mandamus relief is appropriate, see In re McAllen Medical Center., Inc., 275 S.W.3d 458, 469 (Tex.2008) (orig.proceeding), we have previously noted that where the petition for writ of mandamus would frustrate, rather than enhance, the efficient resolution of the case as a whole, the appropriate channel for review of a trial court’s order is appeal. In re City of Dallas, 445 S.W.3d 456, 463 (Tex.App.-Dallas 2014, orig. proceeding). This case presents such a situation.
We need not delve into the precise contours of quo warranto law and the manner in which it intersects with declaratory relief to reach this conclusion. The trial court has granted summary judgment declaring Brar is not president of the nonprofit corporation without presently effecting his removal. Whether the trial court’s determination of the motion for summary judgment was correct or incorrect is a matter that may one day be presented on appeal and that overlaps significantly with the determination of the merits of the plea to the jurisdiction.
All of the traditional reasons for denying mandamus relief in cases involving incidental rulings apply with compelling force here. As the supreme court has noted, “Mandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation.” In re Prudential Ins. Co. of Am., 148 at 136,; see also In re Entergy Corp., 142 S.W.3d 316, 320 (Tex.2004) (orig. proceeding) (“The reluctance to issue extraordinary writs to correct incidental trial court rulings can be traced to a desire to prevent parties from attempting to use the writ as a substitute for an authorized appeal.”); Pope v. Fer*923guson, 445 S.W.2d 950, 954 (Tex.1969) (orig. proceeding) (“Trials must be orderly; and constant interruption of the trial process by appellate courts would destroy all semblance of orderly trial proceedings. Moreover, with this type of intervention, the fundamental concept of all American judicial systems of trial and appeal would become outmoded”).
In contrast, none of the traditional benefits of mandamus review are relevant in this case. The posture of the case as it now stands means that relator will not be required to proceed to trial on the claim he sought to dismiss via his jurisdictional plea. To the degree relator has a right, otherwise sounding in mandamus, not to be compelled to go to trial on the declaratory judgment claim, the posture of the case means he will not be required to do so. If this Court, on appeal, later determines the trial court incorrectly granted summary judgment and incorrectly denied the plea to the jurisdiction, that decision in itself will preserve the right the relator seeks to assert. For the same reason, even to the very limited extent that the added costs of going to trial might in some exceptionally burdensome situations militate towards mandamus relief, considerations of waste of public and private resources from improperly conducted proceedings are also not implicated in this case because the declaratory claim has been determined and simply awaits disposition of the remainder of the case, which was not subject to the plea to the jurisdiction.
This case is also not one that will allow the Court to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments. Unlike orders that may be reviewed effectively only if reviewed on an interlocutory basis before the order becomes effective, the issue relator asserts in this petition will survive through appeal of the remaining issues in the case. Granting the relief relator seeks would result in nothing more than the piecemeal resolution of the suit. In sum, this is not the sort of exceptional case that warrants the extraordinary remedy of mandamus review.
Finally, we need not determine at this juncture whether the trial judge should be compelled to hear further jurisdictional pleas. The mandamus record does not demonstrate that relator has filed any new jurisdictional pleas the trial court has refused to consider.
We deny the petition for writ of mandamus. See Tex.R.App. P. 52.8. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284074/ | JOSEPHINE LINKER HART, Associate Justice The appellees1 (the School Districts) in Kimbrell v. McCieskey, 2012 Ark. 443, 424 S.W.3d 844 (the first appeal), are now before this court as appellants seek-irig" to reverse an adverse order -of the circuit court following our opinion and mandate in the first appeal. On appeal, the School Districts argue: (1) the circuit court erred, on remand, in determining that it lacked subject-matter jurisdiction to entertain and grant the post-remand mandatory injunctive relief sought by the School Districts in the form of ordering the Arkansas Department of Education (ADE) to- release to the School Districts $615,439 in appropriated 98% guaranteed Uniform Rate of Tax (URT)2 adjustment funds that had been released by the ADE in all prior- school years, and which the ADE had illegally “set off’ against what the ADE computed as “excess URT funds” in the 2010-2011/2011-2012 school years; (2) the circuit court erred in its July 29, 2013 order on remand and the subsequent rehearing order that was deemed denied because it did not fulfill the letter and the spirit of the mandate and opinion of this court in the first appeal by failing to grant-the specific post-remand relief requested by the School Districts, based on what the circuit court referred to as the law of the case; (3) on April 2, 2013, the General Assembly substantially amended Arkansas Code Annotated section 6-20-2305 by passage of Act 557 of 2013, but such legislative action did not negate the legal obligation of the ADE to release the appropriated funds owed to the School Districts for the school years 2010-2011 and 2011-2012; (4) the issue of the School | ¡¡Districts’. claims for 98% guaranteed URT adjustment funds.was argued before both the circuit court and the supreme court in-the'first appeal, as shown by documentary evidence, oral testimony, and briefs filed by both parties in both courts and, accordingly, this issue was not waived by the School Districts. We affirm. A. Procedural History Prior to the First Appeal This case began when the ADE attempted to recover $1,387,367 from the Fountain Lake School District and . $824,916 from the Eureka Springs School District, believing that these sums were an overpayment of state funds.3 The ADE proceeded on the assumption that the URT levy was a state tax and that the URT levy was enacted to provide the bulk of the revenu'e for “foundation funding,” a statutorily imposed, minimum-per-student iñeome stream that was guaranteed to each school district. The ADE believed that any amount of the URT revenue collected in a school district that exceeded the foundation-funding amount could be recouped and redistributed to fund other school districts. The School Districts disagreed and filed suit against the ADE, seeking declaratory and injunctive relief. In part, their complaint asked for a mandatory injunction requiring the ADE to release all federal and state funds that they were due. The ADE responded by filing a motion to dismiss, which was denied, and the circuit court granted partial.summary judgment in favor of the School Districts. In pertinent part, the circuit court, made the following findings of fact: |⅜9. Pursuant to A.C.A. § -6-20-2305(a)(1)(A), the State provides “foundation funding aid” to the public school districts; Such section provides: For each school year, each school district shall receive state foundation funding aid computed as the difference between the foundation funding amount pursuant to subdivision (a)(2) of this section and the sum of ninety-eight percent (98%) of the uniform rate of tax multiplied by the property assessment of the school district plus the miscellaneous funds of the school district. 10. A.C.A. § 6-20-2306, enacted in 2003 states: (a) If the Department of Education determines that an overpayment has been made to a school district under any appropriation authorized by this subehap-ter, the department is authorized to: (1) Withhold the overpayment from subsequent state funding; (2) Transfer the amount withheld 'for the overpayment to the line item appropriation from which the overpayment was originally made; and (3) Request a'refund from the school district in'the amount of the overpayment. (b) The school district shall comply as directed by the department. While the circuit court found that the URT levy was a “state tax,” it nonetheless stated in -its conclusions of law that, in accordance with Arkansas Code Annotated section 26-80-101(b)(l)(A), the Treasurer was required- to, and had been, receipting and distributing all URT monies and that [t]he payment by the Treasurer of the 25-mill URT revenues in accordance with the unambiguous directives of A.C.A. § 26-80-101 is not an overpayment of “any appropriation authorized by this subchapter” within the parameters of the ADE’s authority under A.C.A. § 6-20-3606. In the circuit court’s judgment, it enjoined the ADE from seeking repayment of “any portion of the 25-mill URT tax revenues assessed and levied by Article 14, § 3(b)(1) of the Arkansas | ^Constitution.”4 Further, the circuit court enjoined the ADE from “levying, assessing, withholding, or setting off from or against any state or federal monies belonging to the plaintiff school districts for repayment of any portion of the 25-mill URT revenue required by Article 14, § 3(b)(1) of the Arkansas Constitution.” Notably, the circuit court did not find that the School Districts were entitled to the 98% guaranteed URT adjustment funds. - The .School Districts subsequently moved to have the ADE found in contempt. They asserted that the ADE had “willfully” and “blatantly” refused to comply with the circuit court’s orders because it “refused to release and immediately send to these two (2) Plaintiff school districts, after entry of the Circuit Court’s Judgment on September 20, 2011, all amounts of state and federal funds that have been ‘withheld’ or ‘setoff by these ADE Defendants.” (Emphasis in the original.) In addition to the ADE’s withholding of categorical funding to recoup overpayment of state funds, the School Districts .specifically cited the refusal by the ADE -to. release the URT adjustment funding. In response, the ADE noted that foundation funding was made up of two components: URT and Foundation Funding Aid. It stated that foundation-funding aid was paid “wholly out of state general revenue” and was intended only to assure that basic per-student foundation funding was being met. The ADE asserted that foundation-funding aid was not addressed by the circuit court’s orders. ' In its January 20, 2012 order, the circuit court declined to hold the ADE in contempt. Although the circuit court found that the ADE’s decision to withhold categorical funding | r,violated its orders, the court excused the conduct because its order lacked clarity. The circuit court also specifically ruled against the School Districts’ request for the URT adjustment funding. It stated: Plaintiffs also requested that the Court hold the ADE Defendants in Contempt for not. paying to the school districts additional general revenue under what is known as the 98% collection rate adjustment at Arkansas Code Annotated section 6-20-2305(a)(4). The Court denies this requested relief. The School Districts sought rehearing; but their motion to reconsider was denied by the circuit court. The ADE filed an amended notice of appeal on January 20, 2012, that additionally designated “the pleadings filed subsequently to the September 20, 2011 Judgment up to and through the date of the Amended Notice of Appeal.” B. The First. Appeal In the first appeal, this court addressed three arguments. Two arguments were raised by ADE on direct appeal: (1) the circuit court erred in finding that ADE was not authorized by the legislature to recoup and redistribute any URT revenues received from the School Districts that were in excess of the foundation-funding amount; and (2) the circuit court erred in finding that ADE lacked the authority to withhold monies from the School Districts where they had submitted deficient budgets that erroneously budgeted as ongoing revenue the amounts of URT revenue in excess of the foundation-funding amounts. 2012 Ark. 443, at 2-3, 424 S.W.3d 844, 846. The School Districts raised one argument on cross-appeal: the circuit court erred in finding that the revenues generated by the URT were state-tax revenues. Id. at 3, 424 S.W.3d at 846. It is important to note that, in the first appeal, this court specifically acknowledged that the ADE “further appeals from the circuit court’s order [ 7of January 20, 2012, in which the circuit court declined to hold ADE in contempt and clarified its prior judgment.” Id, at 2, 424 S.W.3d at 846. In resolving the arguments raised on appeal, this court held that the (1) the ADE lacked authority to redistribute excess URT5 revenue from one school district to another; (2) budgets set by school districts that included URT revenue in excess of the foundation funding amounts were not deficient; and (3) URT was not a state ad valorem tax. The School Districts’ entitlement to 98% guaranteed URT adjustment funding was not directly argued by either party on appeal. Indeed, the School Districts expressly stated in their cross-appeal that “the amount of locally levied, generated, and collected 26 mill URT ad valorem school property tax proceeds are sufficient to meet these constitutional and statutorily set goals [of an equal opportunity for an adequate education] ... without state assistance.” Moreover, in this court’s written opinion, we stated: For the School Districts here, however, their URT revenues generated more than the foundation-funding amount, therefore the State was not required to provide any foundation-funding aid to them. It is the URT revenues of the School Districts in excess of $6,023 that are at'issue in the instant case. 2012 Ark. 443, at 11, 424 S.W.3d 844, 850. Although the ADE did acknowledge in a footnote that this argument had been made |sto the circuit court,6 this acknowledgment Was’ made in the context of the ADE’s argument that the School Districts were not entitled to retain the amount of URT collections that exceeded the foundation-funding amount. -It is also noteworthy that, in the argument presented in their appellees’ brief, the School Districts asserted that' the circuit court “enjoined the ADE Appellants from attempting to set off amounts of categorical funds or 98% guaranteed URT monies provided for in Ark. Code Ann. § 6-20-2305(a)(4)(A), because the General Assembly had legislatively addressed this very issue in enacting A.C.A. § 26-S0-101(a), (b), and (c).” The School Districts made this assertion not as argument, but as a matter of historical fact. Even so, no circuit court order expressly ordered the ADE to disburse to the School Districts the 98% guaranteed URT adjustment funding. C. Proceedings After Remand Upon remand, the School Districts filed a motion requesting that the circuit court order the ADE to release to them the 98% guaranteed URT adjustment funds. In opposing the motion, the ADE asserted that the opinion in the first appeal did not specifically require the ADE to release any of the 98% guaranteed URT adjustment funds. At the hearing on the School Districts’ motion, although no ■witnesses were called, the circuit court clearly found a distinction between “categorical funding,” which covered .such things as school lunches, and the “98% guaranteed .URT adjustment funds.” The circuit court confirmed that all the |flcategorical funding previously withheld by the ADE had been disbursed to the School Districts. The circuit court entered an order correcting its-previous finding that the URT levy was a state tax, and described it as a “one-of-a-kind tax, a school district tax, approved by the voters of the State of Arkansas,” and denied the School Districts any further relief. The School Districts filed a motion asking the circuit court to reconsider the denial of its request to order the ADE to' disburse the 98% guaranteed URT adjustment funding. In their motion, the School Districts again asserted that the ADE had illegally set off the “98% guaranteed URT supplemental funds” for the 2010-2011 and 2011-2012 school years. They contended that a total of $391,551 was due the Fountain Lake School District and $223,888 was due the Eureka Springs School District. The ADE opposed the reconsideration motion, asserting that the School Districts were barred by the law-of-the-case doctrine from seeking the 98% guaranteed URT adjustment funds. The motion to reconsider was deemed denied. The School Districts filed this appeal. D. Standard of Review When the issue before us on appeal is .whether, on remand, the circuit court has followed our-prior decision in the case, we review the actions of the circuit court to determine whether our directions, as expressed by the opinion and mandate, have been “followed exactly and placed, into execution.” City of Dover v. Barton, 342 Ark. 521, 526, 29 S.W.3d 698, 699 (2000). The jurisdiction of the trial court is confined to the appellate court’s directions. Id. 1 rnE. Arguments on Appeal On appeal, the School Districts first argue that the circuit court erred, on remand, in determining that the circuit court lacked subject-matter jurisdiction to enter.tain and .grant the post-remand mandatory injunctive relief sought by the School Districts in the form of ordering the ADE to release to these school districts $615,439 in appropriated 98% guaranteed URT adjustment funds'that had been released by the ADE in all prior school years and which the ADE had illegally “set 'off' against what the ADE computed as “excess URT funds” for the two school years in question. They contend that the phrase in the mandate requiring the dispersal of “any and all withheld funds” necessarily included the 98% guaranteed URT adjustment funds, because it would be “illogical” to order the disbursement of one category of appropriated aid and exempt from disbursement another category Of appropriated aid, when both were authorized by Act 272 of 2007. This argument is not persuasive. In this case, under the mandate rule, the circuit court was bound by the holdings in the first appeal-.as the law of the case and lacked the authority to vary it, or judicially examine it, for any other purpose than to put it into execution. Johnson v. Bonds Fertilizer, Inc., 375 Ark. 224, 289 S.W.3d 431 (2008) (citing Wal-Mart Stores, Inc. v. Regions Bank Trust Dep’t, 356 Ark. 494, 156 S.W.3d 249 (2004)). It had no power to grant further relief as to any matter decided by this court. Id. In the first appeal, the School' Districts failed to argue to this court that the circuit court erred in its ruling with regard to the 98% guaranteed URT adjustment funds.' While the School Districts may have believed that the circuit court had already awarded them these funds, there is no such express award in any of the circuit court orders. | ^Furthermore, the circuit court’s judgment stated that, “All other causes of action and claims for relief of the plaintiffs not specifically addressed herein are' denied.” To the extent that the 98% guaranteed URT adjustment funds are mentioned at all by the circuit court in any of its orders, the award of these funds is expressly denied in the January 20, 2012 order where the circuit court declined to find the ADE in contempt. In that same order, the circuit court clarified its ruling regarding which funds it had enjoined the ADE from withholding. It stated, “The Court intended, by the language of paragraph 8 of the Judgment entered herein on September 20, 2011, that- no categorical funding amounts would be withheld by the ADE.” In the order’s next paragraph, the circuit court further clarified that it did not intend to treat categorical funding and the 98% guaranteed URT adjustment funding the same. It stated, Plaintiffs also requested that the Court hold the ADE Defendants in Contempt for not paying to the School Districts additional general revenue under what is known as the 98% collection rate adjustment at Arkansas Code Annotated section 6-20-2305(a)(4). The Court denies this requested relief. The different ways in which thé circuit court treats categorical funding and the 98% guaranteed URT adjustment funds is telling, as both sources of money were withheld by the ADE. With regard to the categorical funding, the circuit court found that the ADE .had wrongfully withheld these funds from the School Districts. It stated, however, that it declined to hold the ADE defendants in contempt because it found its September 20, 2011 judgment to be unclear. Nonetheless, the ADE was ordered to release the categorical funding. With regard to the ADE’s retention of the 98% guaranteed URT adjustment funds, which it described as “additional general revenue,” the. circuit court not only refused to hold the ADE | iain contempt, it also denied the School Districts’ request for it to order the ADE to disburse this money. The School Districts could have appealed this ruling in the contempt order, but did not. For this reason, the first appeal did not address the issue of the 98% guaranteed URT adjustment funding. This court stated that the appeal was about the School Districts’ excess URT collections, not funds taken from the State’s general revenues to bring the School Districts per-pupil revenues up to the foundation-funding amount, which this court generally referred to as “foundation funding aid.” 2012 Ark. 443, at 10, 424 S.W.3d at 850; Consequently, because neither the mandate nor the opinion in the first appeal state that- the School Districts are entitled to URT adjustment funds, the circuit court did not-err in finding that it lacked the authority to order that those funds be disbursed by the ADE. As to the School Districts’ contention that it was “illogical” to treat the appropriated funds referred to -in Act 272 of 2007 differently, we note that the eight-page Act addressed and amended virtually all of the state’s school-funding formula.., It is only logical for the judiciary to ti;eat different categories of appropriations as separate entities in a manner consistent with how they, were treated by the General Assembly. The School Districts' next- argue that the circuit court erred in-its order and “deemed denied” order on remand when, based on the law of the. case, it did not fulfill the letter and the spirit of .the mandate and opinion of this court.in the first appeal when it failed to grant the specific post-remand, relief requested by the School Districts. We disagree. The law-of-the-case doctrine prevents an issue already decided from being raised' in |isa subsequent appeal and includes issues that could have been appealed and were not. Kelly v. Kelly, 2014 Ark. 543, 453 S.W.3d 655. As previously noted, the School Districts did not appeal the circuit court’s adverse ruling regarding the 98% guaranteed URT adjustment funds. When the circuit .court was confronted with the issue- of the School Districts’ entitlement to 98% guaranteed, URT adjustment funds, there was nothing in our opinion and the mandate that affected its decision denying- these funds to the School Districts. Accordingly, the -circuit court did not err when- it found that the School Districts were-barred from raising this issue on remand.. Likewise, the School Districts are barred from raising the issue in this appeal. Id. For- their third'- ■ point on appeal, the School Districts argue that when the General Assembly substantially amended Arkansas Code Annotated section 6-20-2305 by passage of Act 557 of 2013, on April 2, 2013, that legislative action did not negate the legal obligation of the ADE to release the appropriated funds owed these two school districts for the school years 2010-2011 and 2011-2012. Act of Apr. 2, 2013, No; 557, 2013 Ark. Acts 2007. The Act added subparagraph (a)(4)(C), which states: The Department of Education shall not distribute to 'a school district the funds under subdivision (a)(4)(A)(I) of this section if, regardless of the school district’s tax collection rate, the school district’s net revenues meet or exceed the foundation funding amount set forth in § 6-20-2305(a). Ark.Code Ann. § 6-20-2305(a)(4)(C) (Repl.2013). The ADE argues that the passage of Act 557 of 2013 renders the issue moot. We decline to hold that the passage of Act 557 of 2013 renders this issue moot. However, for the School Districts to prevail on this point, we would have had to found merit in one or both of their prior two’ arguments. Because we have not, it is unnecessary for us 114to' address this argument in this' appeal. For their final point, the School Districts argue that the issue of the School Districts’ claims for “98% guaranteed URT adjustment funds” was argued before both the circuit court and this court in the first appeal, as shown by documentary evidence, oral testimony, and the briefs filed by both parties in the circuit court and in this court. They contend that the presence of the issue in these forms indicates that it was not waived by the School Districts. They point to portions of the abstract and addendum where the issue of their entitlement to the 98% guaranteed URT adjustment funds was raised to the circuit court and assert that they referenced these- instances.where it was argued to the circuit court in several places in their appellate brief. In so doing, the School Districts : argue that this - court should be satisfied that the presence of an argument in the circuit-court record and fleeting references to the 98% guaranteed URT adjustment funding constituted- an argument on appeal. The School Districts likewise also assert that presentation ■ of this issue in this way meant that it was not “waived” in the first appeal. We agree that the issue was raised to the circuit court; it decided the issue adversely to; the School Districts. The School Districts, however, did not challenge the circuit court’s ruling in the first appeal. Moreover, this court noted that the School Districts were not entitled to any additional general revenue because them URT collections exceeded the foundation-funding amount. McCleskey, 2012 Ark. 443, at 10, 424 S.W.3d 844, 850. We decline to hold that the mere presence of an issue in any form is the same as making an appellate argument. In Daniel v. Spivey, 2012 Ark. 39, 386 S.W.3d 424, this court recently 115held that even listing an issue in the heading of an appellant’s argument on appeal was insufficient for this court to consider it an appellate argument when the issue is riot further discussed in the “body” of the brief In the absence of any argument, the point is considered waived. Id.; Housing Authority of City of Texarkana v. E.W. Johnson Constr. Co., 264 Ark. 523, 573 S.W.2d 316 (1978). Affirmed. . Originally, Bob Allen McCieskey, individually and as- a representative of all similarly situated taxpayers who pay ad valorem taxes for the support of the Fountain Lake School District, Riisty Windle, individually and as a representative of all similarly situated taxpayers who pay ad valorem taxes in support of the Eureka Springs School District, as, well as the school districts themselves, (the School Districts), sued the appellees, the Commissioner of the Arkansas Department of Education, Thomas W. Kimbrell, in his official "capacity, the Arkansas Department of Education itself, then Arkansas State Treasurer Martha Shoffner in her official capacity, and others (collectively referred to hereinafter as the ADE). On the, current appeal, Becky Fur-nas has been substituted for Bob "McCieskey, and A1 Larson has been substituted for Rusty Windle. Also, Charles Robinson has been substituted for Martha'-Shoffner. . Article 14, § 3(b)(1) of the Arkansas Constitution established the URT, which is a statewide 25-mill property tax. Arkansas Code Annotated section 26-80-101 levies the 25-mill URT. Because URT revenues are the cornerstone of. school funding, the State, through the ADE, provides aid to school districts out of general revenues if URT collections plus categorical funding fails to provide the school district with the foundation funding-amount set by statute on a biannual basis. Ark. Code. Ann. § 6-20-2305. This aid is what is referred to as the 9,8% URT adjustment-rate funding. . The ADE also sought to recoup $232,279 from the Amorel School District and.$112,-284 from the Westsi'de School District, but these school districts did not participate in this lawsuit. ■ . (b)(1) There is established a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of the schools. . The URT funds collected within a school district are required to be immediately remitted to that school district.' Ark.Code Ann. § 6-20-2305, The General Assembly also created a guaranteed minimum amount of funding for each school district called “foundation funding,” which is a minimum, per-student level of funding that is set biannually. Id. . The footnote stated: “In fact, [the School Districts] went so far as to allege that the 98% actual collection adjustment (Ark. Code Ann. § 6-20-2305(a)(4)) required the State to pay .these Districts even moré revenue on top of the disparity caused by their URT revenue in excess of the Foundation Funding amount.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284075/ | OPINION OF THE COURT BY
CHIEF JUSTICE MINTON
Litigants have historically been permitted to conduct ex parte1 interviews with *143fact -witnesses. These interviews serve various purposes but are mainly directed at investigating the facts of the case and curtailing litigation costs by allowing litigants to gauge. the -usefulness of- a witness’s potential testimony by interviewing the witness before paying for a discovery deposition.
Whether this time-honored method of informal discovery extends to the plaintiffs treating physicians and what role the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) plays in regulating these interviews has been an issue across the country for some time. And the issue has come before many of Kentucky’s circuit courts and the federal courts in both the Western and Eastern Districts of Kentucky.: Today we decide conclusively whether litigants in Kentucky may, and under what conditions, engage in ex parte interviews with treating physicians.
In an original action before the Court of Appeals, Stacey Caldwell, the plaintiff in the underlying medical-malpractice action, sought a writ of prohibition preventing the trial court from enforcing its order permitting counsel for Dr. Frank Castro',2 the defendant in the underlying action, to contact Caldwell’s treating physicians ex parte. Importantly, no provision in the trial court’s order compelled any physician to hate contact with Castro’s counsel or disclose any information, nor did it authorize disclosure of protected health information; whether or not to disclose any information was left to the treating physician’s discretion. Before the.Court .of Appeals, Caldwell argued that because she was-entitled to confidentiality in her . -communications with her healthcare providers, the trial court’s order permitting ex parte contact with those providers was in error.
. The Court of Appeals declined to issue a writ because it found Caldwell did not have a right .to confidentiality in her communications with her treating physicians. As a result, the Court of Appeals concluded the tidal court’s order was not erroneous.
Based on our review of Kentucky and federal law, we conclude that no law -inhibits litigants from seeking ex parte interviews with the opposing party’s treating physicians. But the disclosure of medical information during those ex parte meetings is controlled by HIPAA., For disclosure to be permitted, the party must first obtain a court order, authorizing disclosure in -a voluntary ex parte interview- Upon review of the instant order, it is clear the trial court declined to authorize ex parte disclosure of Caldwell’s health information thus failing to satisfy HIPAA. But because the trial court is explicit in its-refusal to authorize ex parte disclosures, ,we find it unnecessary to issue an. extraordinary writ.
I. FACTUAL AND PROCEDURAL HISTORY.
The underlying litigation stems from a discectomy Castro performed on Caldwell. *144Caldwell had a long history of spinal problems predating the procedure, but she alleges the surgery was unnecessary and negligently performed. Caldwell claims she suffered painful nerve damage and restricted mobility because of this surgery.
Durihg the course of discovery and after obtaining Caldwell’s medical records, Castro moved the trial court to enter a qualified protective order permitting him to make ex parte contacts with Caldwell’s healthcare providers. Following a hearing, the trial court concluded there is no bar prohibiting Castro’s counsel from contacting ex parte Caldwell’s healthcare providers because they are ultimately fact witnesses and the information they possess is not subject to an evidentiary privilege. The trial court’s order3 limited the scope of Castro’s counsel’s permissible ex parte contacts to those physicians who treated Caldwell “for the injuries that are the subject matter of this litigation” but expressly declined to authorize disclosure of Caldwell’s health information. The court’s order also explicitly stated it was neither requiring any physician to speak with Castro nor compelling' disclosure of any information to Castro, noting the “treating physicians are free to accept or decline counsel's reqüest as they see fit.”
Caldwell filed a petition for a writ of prohibition, and a motion for intermediate relief4 with the Court of Appeals. In her petition, Caldwell argued, as she does now, she was entitled to a writ because the trial court’s order violated the physician-patient privilege, her right to confidentiality in her communications with her doctors, and the order was not authorized by federal ’law. The Court of Appeals denied her motion for intermediate relief without discussion. It also omitted analysis of the writ prerequisites and proceeded directly to the merits of her allegation of error.
Upon reaching the merits, the Court of Appeals declined to issue a writ and presented two main reasons for so holding. First, it concluded no Kentucky law prohibits the trial court from authorizing ex parte correspondence with nonexpert treating physicians-. And second, the Court of Appeals reasoned the trial court’s order did not violate any right Caldwell may have to privacy of her medical information because the order does not compel any disclosure. The court declined to address the impact of HIPAA’s privacy regulations on Castro’s ability to communicate ex parte with Caldwell’s physicians, deciding “the order of the trial court relied solely upon Kentucky authority.”
Caldwell appeals that denial to this Court as a matter of right.5
II. ANALYSIS.
The issuance of a writ is an extraordinary remedy that is disfavored by our jurisprudence.6 We are, therefore, “cautious and conservative both in enter-*145taming petitions for and in granting such relief.”7
A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of 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 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.8
Caldwell makes no proper argument that the trial court was without jurisdiction to enter the challenged discovery order.9 She seeks the second class of writ. And when seeking a writ of the second class, a petitioner must first show she has no adequate remedy by appeal or otherwise. If this requirement can be met, the petitioner must then show she will suffer great injustice or irreparable harm absent the issuance of a writ. This has consistently been defined as injury of a “ruinous nature.”10
The latter requirement is not absolute, however. In what has come to be known as the-“certain-special-'cases exception,” our precedent allows waiver of the great injustice and irreparable harm element in cases where the instant harm may not rise to the level of irreparable but a “substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration.”11
Proof of the elements described above is a condition precedent to contemplation of the merits underlying a writ petition. Strict adherence to these prerequisites “is a practical and convenient formula for, determining, prior to deciding the issue of alleged error, if, petitioner may avail himself of this remedy.”12 These strictures evince a reluctance to reach the merits of alleged errors in writ proceedings. Indeed, the test that must be satisfied before the Court may analyze, the alleged error was designed expressly to limit “the number of writ cases that, proceed to the merits of the controversy”13 because writ proceedings “necessitate, an abbreviated record which magnifies the chance of . incorrect rulings that would prematurely and improperly cut off the rights of litigants.”14 It bears repeating that the issuance of a writ is inherently discretionary. Even if the requirements are met and error found, the grant of a writ re*146mains within the sole discretion of the Court.15
Because of the discretion inherent in granting a writ, we review the decision of the Court of Appeals for an abuse of discretion. When questions of law or findings of fact made by the Court of Appeals en route to their ultimate decision are raised, however, we review de novo and for clear error, respectively. The Court of Appeals in the present case has omitted analysis of the writ prerequisites in its opinion denying Caldwell’s petition for a writ, opting instead to proceed directly to the merits.16 So wé review the availability of the writ remedy de novo.
" Caldwell’s argument in favor of her entitlement to an extraordinary writ is grounded in state-law principles. She claims' the trial court’s order permitting Castro’s counsel' to communicate ex parte with her treating physicians was error because:' communications with treating physicians are, or should be, treated as privileged; the American Medical Association’s Code of Medical Ethics carries the force of law in prohibiting noncorisented disclosure of confidential information; Kentucky case law prohibits trial courts from authorizing defendant’s counsel to communicate with a plaintiffs treating physicians ex parte; and the trial court’s order is “confusing and misleading.”
Caldwell also argues, at least'initially, that HIPAA does not create an entitlement to ex parte contacts for defendants. It is not until the last page of her reply brief that Caldwell makes a one-paragraph argument that HIPAA prohibits the ex parte meetings she seeks a writ to prevent. The amicus on her behalf, the Kentucky Justice Association, took up the HI-PAA argument and presented us with a comprehensive argument explaining why, in its view, the trial court’s order violates HIPAA. Castro, of course, refutes Caldwell’s allegations of error; and although he presents a capable argument regarding HIPAA’s impact on ex parte communications with nonparty treating physicians, Kentucky Defense Counsel, Inc., supplied an amicus brief buttressing Castro’s cause regarding HIPAA.
We have often held discovery disputes satisfy the no-adequate-remedy-by-appeal requirement. Cases so holding often focus on the inability of information disclosed under an erroneous discovery order to be recalled.17 In those' cases, “[t]he injury suffered ... will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case.”18
This case is no different. Although Caldwell’s main objection is with the form of discovery permitted by the trial court’s order, the gravamen of her complaint is that through ex parte discovery — -which, by definition, takes place' beyond the watchful eye of opposing counsel or the court — confidential or otherwise undiscov-erable information, or information pro*147tected by federal law, may be disclosed without Caldwell’s consent and to her detriment. If that were to happen — and we must -presume it will happen when assessing the availability of the writ remedy19 —Caldwell would be left without an avenue of appellate recourse, to rectify her grievance.20
We also find- this, issue to satisfy the certain-special-cases exception because its resolution is necessary to ensure the orderly administration of justice in the Commonwealth. This exception has been reserved for “first-impression questions[] bearing importantly on the public administration of the law or on a party’s fundamental rights.”21 We find this to be a Case of the former and conclude it is particularly suited to application of this exception because of the unique procedural posture in which this issue typically will arise.
This case presents our appellate courts with their first opportunity to address this issue,22 even though the bulk of HIPAA’s privacy regulatio'ns were promulgated nearly fifteen years ago.23 Our inability to address this issue before today notwithstanding, it has been percolating through state courts,24 federal district courts,25 and academic circles26 for a decade.' And the issue has arisen in the trial courts of the Commonwealth. The parties have provided citation to Kentucky courts that have struggled to address this exact issue in discovery orders.
Discovery disputes, as a general matter, come before this Court nearly always via writ petitions. The very nature of infor*148mal discovery is likely to increase this trend because restrictions on ex parte communications are even less likely .to be challenged on appeal once final judgment is reached. It, stands to reason that the only manner in which this issue may reach this Court is through a writ petition. We find it necessary, therefore, to reach the merits of this issue to ensure that the decisions of our trial courts concerning ex parte contacts with treating .physicians comport with'Kentucky and federal law;27 otherwise, those decisions may continue to evade appellate review. Caldwell’s instant petition presents a claim for which a writ is an appropriate remedy at this Court’s discretion pending an analysis of the merits.28
Turning to the merits of Caldwell’s writ petition, wé will first address HIPAA’s impact because, as we discuss below, the HIPAA analysis necessarily subsumes the state-law arguments championed by Caldwell.
A. HIPAA Does not Prohibit Ex Parte Interviews with Treating Physicians, but it Does Regulate the Protected Health information to be Disclosed in Ex Parte Interviews.
Congress enacted HIPAA with the primary purpose of making health insurance more “portable” to prevent the denial of insurance coverage for preexisting conditions- when employees change jobs and, in so doing, change health-insurance providers.29 As part of HIPAA’s expansive reform, Congress charged the Secretary of the United States Department of Health and Human Services (HHS) with promulgating regulations “with respect to the privacy' of individually identifiable health information” if Congress' had not done so three years after HIPAA’s enactment.30 When Congress failed to act, HHS adopted, after notice and public comment, privacy regulations ensuring patients’ privacy as medical records began their move to storage in a digital format.31
The cornerstone of HIPAA’s privacy rule presents a broad prohibition on the disclosure of medical information, providing that “[a] covered entity or business associate may not use or disclose protected health information, except as permitted or required by this subpart.”32 A covered entity is defined to include health plans; health care clearinghouses; and health care providers, such as physicians and hos-*149pitáis.33 Protected health information includes, with exceptions irrelevant here, “individually identifiable health information” transmitted or maintained' in whatever form or medium.34 Health information includes information “whether oral or recorded in any form or medium” that pertains to the physical health of an individual.35
HIPAA provides for mandatory disclosure of protected health information by a covered entity under only two circumstances: (1) upon a request by an individual for her own health information or (2) when requested by the Secretary of HHS to investigate HIPAA compliance.36 Permissible uses and disclosures of protected health information are more numerous and reside in C.F.R. 164.502(a)(1).37 Among the permissible' disclosures authorized by HIPAA, is the “litigation exception,” which permits disclosure of protected health information “in the course of any judicial or administrative proceeding” either “[i]n response to an order of a court of administrative tribunal” or “[i]n response to a subpoena, discovery request, or other lawful process,” so long as additional safeguards are met.38
Noticeably absent from the sea of HI-PAA privacy regulations is any mention of ex parte communications between counsel and a covered entity.39 In’ fact, the privacy rule does not purport explicitly to regulate the permissibility of ex' parte communications or interviews as an informal discovery tool.40 But the absence of express reference to ex parte interviews does not render HIPAA inapplicable to regulate such contacts. Because HIPAA, by its terms, applies to the oral disclosure of health information, it has routinely been held that the disclosure of protected health information in ex parte interviews falls within the ambit of HIPAÁ.41
The divergence of judicial opinion focuses on what impact HIPAA and its litigation exception have on the continued viability of ex parte contacts with treating physicians.42 Some courts have concluded, *150and Caldwell and her amicus have argued, that the judicial exception is wholly inapplicable to informal ex parte discovery because its covert nature renders it outside “the course of any judicial or administrative proceeding,” which is a prerequisite for disclosure under that section. The contrary analysis, promoted by Castro and his amicus, reasons that HIPAA does not prohibit ex parte interviews with treating physicians, it “merely superimposes procedural prerequisites”' to authorize disclosure of protected health information.
The leading case espousing the former position is State ex rel. Proctor v. Messina, decided by the Supreme Court of Missouri.43 In that case, the court narrowly defined the litigation exception’s leading language: “in the course of a judicial ... proceeding.”44 As a result, the court concluded that disclosure under that exception “must be under the supervisory authority of the court either through discovery or through other formal court procedures:”45 Because the Missouri Rules of Civil Procedure do not provide a mechanism for courts to oversee ex parte communications, the court held 45 C.F.R. § 164.512(e), which permits disclosures “in the course of judicial proceedings, does not apply to a meeting for ex parte communications.”46
The opposing viewpoint may be'found in the Court of Appeals of New York’s decision in Arons'v. Jutkowitz.47 The court in Arons concluded that “the Privacy Rule does not prevent this informal discovery from going forward, it merely superimposes procedural prerequisites.”48 , Those procedural prerequisites, the court explained, include satisfying one of the two prongs of the litigation exception in order to permit disclosure of protected health information by the.covered entity.49 This reasoning has been adopted by the Supreme Court of Michigan, holding that ex parte interviews,were permitted under HI-PAA and disclosure of protected health information permitted so long ag the second prong of the litigation exception was satisfied by provision of “satisfactory assurance” that, efforts have been made to obtain a qualified protective order.50
We find more persuasive the New York court’s position. We do not define “in the course of any judicial ... proceeding” as narrowly as the Messina court in light of the Secretary of HHS’s commentary in the Federal Register pertaining to 45 C.F.R. § 164.512, which explains the Privacy Rule *151was “not intended to disrupt current practice whereby an individual who is a party to a proceeding and has put his or- her medical condition, at issue will not prevail without consenting to the production of his or her protected information.”51 Viewing HIPAA’s' privacy regulations as “merely superimposing] procedural prerequisites” over- informal ex parte discovery is the most appropriate analytical approach. If a party, satisfies the superimposed procedural prerequisites by fulfilling the litigation exception’s requirement, the resulting ex parte contact has been drawn well within “the course of [the] judicial ... proceeding” as required by HIPAA.
Before moving on, it is worth taking a close look into the procedural prerequisites imposed by HIPAA. For an ex parte interview with a treating physician to comply with HIPAA, it must fall within the litigation exception. The text of this provision reads:
(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or
(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(-l)(iii) of this section, from -the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of. the protected health information that has been requested has been given notice of the. request; or
(B) The covered = entity receives satisfactory assurance,- as described in paragraph (e)(l)(iv) of this section, from the party seeking the information that reasonable efforts have been made.by such party to secure a qualified protective order that meets the requirements of paragraph (e)(l)(v) of this section.52
’ Where our analysis differs from that' of the courts cited above comes in our definition of the emphasized language “or other lawful process.” Both Arons and Holman defined this phrase broadly enough to encompass an ex parte interview and held that compliance with this second prong— providing “satisfactory assurance” that the subject of the protected health information was notified of the request or that a qualified protective order had been sought— was adequate to meet HIPAA’s superimposed procedural prerequisites. We do not define lawful process so broadly.
We typically define words according to their ordinary meanings when interpreting statutes, but that general rule yields when á word or phrase has'a technical meaning within the law.53 And the *152latter is the ease here. Black’s Law Dictionary defines process as “[t]he proceedings in 'any action or prosecution,” or a “summons or writ, esp. to appear or respond in court.”54 This entry concludes by noting the process as defined above is also termed legal process.
We find the second' definition of process to be applicable here because its definition must be informed by the items that precede it. Defining lawful'process as “a summons or writ, esp. to appear or respond in court” is. in keeping with the general tenor of that section that also includes subpoenas and discovery requests. The common-sense definition' of lawful process — any action that is not in violation of law — is too far-reaching when considering the balance of the provision. Applying this definition of lawful process, we are constrained to conclude that ex parte interviews do not fall within this strict definition of lawful process. Even though we have concluded that ex parte interviews are' conducted within the course of a judicial proceeding, they are still decidedly informal and entirely voluntary, unbe-fitting'of the designation of lawful process ascribed to formal discovery tools. Therefore, we hold that protected health information may only be disclosed under HIPAA’s litigation exception if the exception’s first prong is satisfied by order of the trial court.
This interpretation of the litigation exception is also consistent with our reliance on trial courts as gatekeepers of discovery55 — even informal discovery, when appropriate. Under our construction of the litigation exception, for the ex parte disclosure of protected health information to comport with HIPAA, a party must first seek authorization from the trial court. If we were to adopt the application of the litigation exception as contemplated in Ar-ons, disclosure of protected health information would be permitted under HIPAA, yet, still within the discretion of treating physicians upon counsel’s provision of “satisfactory assurance” that: “reasonable efforts” have been made to notify the subject of the protected health information of the request; or a qualifying protective order has been sought.56 Notice need not have been achieved nor a qualified protective order obtained to satisfy the second prong of the litigation exception as construed by Arons — “sufficient assurance” of “reasonable efforts” to provide notice or merely seeking a qualified protective order would suffice. Indeed, Castro argues he has met this low standard by obtaining the order at issue, even though by its own terms' the order withholds authorization for the disclosure of protected health information and does not meet the required protective standards outlined in 45 C.F.R. § 16B.512(e)(l)(v). To interpret the litigation exception as allowing disclosure of protected health information under the second prong in contravention of an order declining to authorize disclosure under the first prong undercuts the discretion vested in trial courts.
*153We conclude HIPAA does not prohibit ex parte interviews, but its strictures do regulate disclosure of protected health information during their course. We further hold HIPAA’s procedural prerequisites to disclosure of protected-bealth information may only be satisfied by order of a court or administrative tribunal57 because ex parte interviews do not come within the meaning of lawful process as used in 45 C.F.R. § 165.512(e)(l)(ii).
But our analysis does not end here. HIPAA’s privacy rule contains a preemption clause whereby any “contrary” provision of state law is preempted absent the application of an enumerated exception.58 State law is “contrary” to HIPAA “only if it would be impossible for a covered entity to comply with both the state requirement and the Rule, or the former is an obstacle to accomplishing the full purposes and objectives of HIPAA’s ‘administrative simplification’ provisions.”59 But if a “contrary” law requires a more stringent standard of privacy, HIPAA’s preemption provisions are inapplicable and state law controls. So we must undertake an analysis of Kentucky law to- determine what law controls the instant dispute.
B. Kentucky Law Places no Restrictions on Voluntary Ex Parte Interviews with Nonexpert Treating Physicians;
There is á dearth of Kentucky law dealing with litigants’ ability to confer ex parte with nonparty fact witnesses. And the cases that do broach this topic do so upon the allegation that an ex parte contact was rendered impermissible only by way of some express' rule.60' But what we can glean from, those cases is that their analysis begins — without fail — with the presumption that ex parte contacts with willing fact witnesses are permissible absent express limitation. Although these contacts are not mentioned in our civil rules pertaining to discovery,61 those rules are not meant to be exhaustive and do not express any intent to foreclose the “time honored”62 tool of informal.discovery that is the ex parte interview.63 Also, to disal*154low parties equal access to an effective and inexpensive method of establishing operative facts would conflict with the purpose our civil rules were meant to serve.64 So we begin our analysis of Kentucky law as it. pertains to ex parte communications with treating physicians by accepting the same premise impliedly accepted in our precedent and by the parties in the present case: voluntary ex parte contacts with fact witnesses, are a permissible form of informal discovery absent some limitation found outside our discovery rules.
Caldwell argues such a limitation prohibiting ex parte communications with treating physicians may be derived from multiple sources of Kentucky law. She first alleges the existence of a physician-patient privilege operates to limit the viability of ex parte communications with treating physicians, or, alternatively, that these situations should be treated as if a privilege does exist. Next, she claims that the American Medical Association’s Code of Medical Ethics, adopted by the Kentucky State Board of Medical Licensure under its statutory authority, carries the force of law in prohibiting nonconsented disclosure of confidential information. Lastly, she argues that Kentucky case law prohibits defendants from contacting ex parte nonparty treating physicians.
1. Kentucky Does not Recognize a Physician-Patient Privilege, and We Decline to Act as Though One Does Apply Here.
Caldwell’s first, argument — that her communications with her physician are privileged and thereby protected from ex parte disclosure under Kentucky law — is disingenuous at best. This argument runs headlong into decades of precedent and ignores the unambiguous text of our rules of evidence pertaining to privilege.65
For better or worse, our jurisprudence has been unwavering in its rejection of the patient-physician privilege.66 We see no reason to engage in a lengthy analysis of this settled issue of law. All privileges, unless otherwise created by statute,67 are explicitly stated in our kiles of evidence. The physician-patient privilege is conspicuously absent from those provisions.68 And our common law did not recognize such a privilege.69 We cannot artic*155ulate it more clearly than the late Justice Keller did in his concurrence in Stidham v. Clark, so we will not attempt to: “[N]o testimonial privilege exists in Kentucky for communications made between a patient and physician for the purpose of medical treatment.”70
Having found no privilege to exist, Caldwell argues, in the -alternative, that we should nonetheless treat her communications with her physicians as though they are privileged. We readily accept that the communications between a patient and her physician are sensitive in nature. That said, our court system has operated relatively smoothly since its inception without the privilege Caldwell seeks. We have heretofore not identified a cognizable right to a privilege in medical communications and again decline to do so today.
It is high time , litigants abandon this tired argument. Our disinclination to recognize a physician-patient privilege or to apply the faux privilege that Caldwell argues for in the alternative is well documented. Any change that will see a physician-patient privilege recognized in Kentucky will come by way of a change to our rules of evidence or through the legislature’s authority to create privileges recognized in Stidham.
2. The American Medical Association’s Code of Medical Ethics Does not Carry the Force of Law to Render Ex Parte Contacts with Physicians Impermissible.
Caldwell next argues that the confidentiality provisions contained in the American Medical Association’s Code of Medical Ethics guarantees her right to confidentiality because the Kentucky Board of Medical Licensure adopted the Code of conduct under authority granted by statute and also possesses statutory authority to levy punishment for ethical violations..
The Kentucky Board of Medical Licen-sure is granted statutory authority to “promulgate a code of conduct governing the practice of medicine and osteopathy, which shall be based upon generally recognized principles of professional conduct.”71 The Board is also statutorily afforded the concomitant authority to discipline practitioners within its purview for ethical violations.72
To satisfy its statutory grant of authority, the Board adopted the AMA Code of Medical Ethics. The provision of the Code relevant to the instant proceedings reads:
Confidentiality. The information disclosed to a physician during the course of the relationship between physician and patient is confidential to the greatest possible degree. The patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication. The physician .should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law.73
*156This provision clearly creates a professional duty that requires healthcare providers • to maintain the confidentiality of patient information. But Caldwell overstates the weight of the Code of Medical Ethics. It is true that the Code was promulgated under- statutory authority and that violations of the Code are punished by the Board under statutory authority. But that tangential statutory basis is insufficient to give the Code the force of law and create an all-encompassing right to confidentiality by patients.
Indeed, other ethical codes policing the medical community — even one adopted jointly with the Kentucky ,Bar Associar tion — have been held to lack the weight- of law.74 “The Code professes to be an ethical guide, not an authority binding the courts.”75 We are not alone in our conclusion that ethical standards levied within the medical community are not binding on courts.76 Further, counsel’s ability to seek an ex’ parte interview with a physician bound by the Code does not prevent the physician from abiding by his professional duty of confidentiality.
A physician’s ethical duty.of confidentiality, even if promulgated by a professional body under statutory authority, does not carry the weight of law to limit a litigant's ability to engage in ex parte interviews with physicians. Admittedly, the ethical duty may restrain the physician’s willingness'to agree to’such an interview; but it in no way prohibits a party to litigation from requesting-one.
3. Kentucky Case Law Does not Preclude Litigants from Interviewing Ex Parte Treating Physicians.
. For-her last argument, .Caldwell cites Geary. v. Schroering77 as the preeminent Kentucky case barring ex parte contact with treating physicians. As with her previous state-law arguments, Caldwell again overstates the scope of the law she cites.
In Geary; the trial court ordered the personal-injury plaintiff to sign a blank medical authorization allowing the “unrestricted release” of all her medical information to the defendant.78 The Court of Appeals,- in a writ proceeding, likened the blank authorization to an ex parte subpoena.79 Such ex parte subpoenas, the Court of Appeals noted, were forbidden by Mun-roe v. Kentucky Bar Association.80
The Court of Appeals went on in Geary to extol the virtues of our civil rules by explaining that the medical records sought by the defendant, may be discovered through traditional discovery methods, such as formal subpoenas and depositions.81 The court further stressed the importance of “adversarial safeguards” in *157the discovery process.82 ■
The tenor of the opinion of the Court of Appeals in Geary appears to support Caldwell’s position, but Geary’s analysis diverges from the instant issue by contemplating ex parte subpoenas. • The case at hand contains no suggestion of the use of ex parte subpoenas, nor can it rightfully be said that a litigant requesting an ex parte interview (or an order permitting the defendant to make such a request) is akin to an ex parte subpoena. By their very nature, informal ex parte interviews are voluntary and, thus, unlike the ex parte use of subpoena power.
Caldwell also takes issue with the trial court and the Court of Appeals citing Davenport v. Ephraim, McDowell Memorial Hospital, Inc.,83 as support for the contested order because its holding was premised upon an earlier version of CR 26.02. In Davenport, the trial court entered an order permitting a medical-malpractice defendant to request an ex parte meeting with the plaintiffs treating physicians, whom the plaintiff had enlisted as expert witnesses ahead of trial.84 On appeal, the Court of Appeals concluded the trial court’s order was proper, seizing on the language in the then-existing version of CR 26.02(4)(a)(ii) that permitted discovery from expert witnesses “by other means” not enumerated by the civil rules at the discretion of the trial court.85
We agree that discussion of Davenport is misplaced. The 2004 amendment to CR 26.02 removed the “by other means” language relied upon by the Court of Appeals in holding the trial court’s order valid. For this reason, Davenport’s analysis of ex parte communications with expert witnesses is outdated.
But simply because the language that authorized the court’s order in -Davenport has been removed, that does not shift Davenport into a tacit abolition of litigants’ ability to seek ex parte meetings with the opposing party’s physicians. One crucial fact renders Davenport inapplicable as an indictment against ex 'parte contacts with physicians: it concerns physicians retained as expert witnesses. Once retained as experts, CR 26.02(4) — both the version extant in Davenport and the iteration currently in force — lists exclusively the manner in which discovery may be obtained.86, So removal of the language permitting authorization of discovery “by other means” vitiates ex parte interviews with physicians retained as expert witnesses, but no such language limits discovery, from nonexpert fact witnesses to the formal methods authorized in our Civil Rules.
The case that we find most applicable to the present controversy evaded citation by both the trial court and the Court of Appeals, In Roberts v. Estep,87 — the only case touching on this issue to ,be decided by this Court — we held that no Kentucky law prohibits a defendant from contacting ex parte the plaintiffs treating physicians.88 Caldwell attempts to undercut- the strength of this holding noting Roberts was a workers’ compensation case and KRS 342.020 requires waiver of any privilege or *158confidentiality when filing claim.89 - Caldwell correctly states the law but not .its impact on the Court’s decision.
Roberts does not cite to KRS 342.020 and waiver, compulsory or otherwise.. The Court concluded that the defendant’s ex parte contact with plaintiff was not rendered impermissible by Kentucky law; it did not conclude that waiver under KRS 342.020(8) authorized the defendant’s contact. Had the Court in Roberts based its decision on KRS 342.020, we think it would have said so. We will not read, into the Court’s analysis law that is not patent in its opinion.
In support of her argument against the trial court’s order, Caldwell cites statutory and 'case law from various jurisdictions that prohibit ex parte contacts with treating physicians. While we respect the decisions of our sister-states, we nonetheless find their citation unpersuasive. Most notably this is because most of the cited decisions were based on state laws-that have no counterpart in Kentucky law— namely the physician-patient privilege and statutes explicitly prohibiting ex parte interviews with treating physicians. That other states found' it prudent to adopt a physician-patient privilege or to prohibit by statutory enactment the type of contacts Caldwell currently challenges does little to alter our analysis of Kentucky law.
Upon conclusion of our analysis of Kentucky law, and having addressed each of Caldwell’s state-law arguments, we have unearthed no law that limits a litigant’s ability to conduct informal ex parte interviews when the fact witness to be interviewed is a treating physician.90 They are like any other fact witness in the-eyes of the law, and litigants may request voluntary ex parte' interviews with nonexpert treating physicians as they please. But Kentucky law does not create an entitlement or right to conduct ex parte interviews with treating physicians.
So Kentucky law cannot be “contrary” to HIPAA as pertaining to ex parte interviews with treating physicians because our law speaks to their viability.91 We conclude, therefore, that there are no limitations on a defendant’s ability to request an ex parte interview with the plaintiffs treating physician. But the physician’s ability to disclose the plaintiffs protected health information in an ex parte correspondence is regulated by HIPAA, so disclosure may only be permitted by order of the trial court satisfying 45 C.P.R. § 164.512(e)(l)(i). Like with all other discovery matters, trial courts will remain the gatekeepers and may grant or deny á party’s request for a HIPAA-compliant order authorizing ex parte disclosure of protected health information at their discretion.92
*159C. The Challenged Order Does not Satisfy HIPAA’s Procedural Requirements for the Disclosure of Protected Health Information; but Because the Order Expressly Withholds the Necessary Authorization, a Writ Need not Issue.
Having determined the law applicable to ex parte interviews with treating physicians, we must now apply that law to the facts at hand. After little more than a cursory review of the challenged trial court order, it becomes manifest that the order does not satisfy the requirements of HI-PAA to permit disclosure of protected health information during ex parte interviews.
As addressed above, for disclosure of protected health information to comply with HIPAA, a litigant must first obtain an order authorizing disclosure under 45 C.F.R. § 164.512(e)(l)(i). The instant order does not .meet this requirement. In fact, the order acknowledged the need for authorization to permit disclosure of Caldwell’s protected health information by her physicians yet declined to authorize disclosure.
The present order has done nothing more than maintain the status quo. It has effectively, and correctly, stated the status of the law currently: defense counsel may seek an ex parte interview with Caldwell’s treating physicians, but those physicians may not disclose her protected health information without facing HIPAA sanctions. Indeed, the order states as much— “the treating physician may be unable,... to speak with counsel absent specific authorization from the [c]ourt permitting him to do so. The [c]ourt is vested with the discretion to provide such authorization. However, the [c]ourt is not inclined to do so in the instant case.... ”
We decline to exercise our discretion to issue a writ in this instance even though any ex parte disclosure of protected health information would surely violate HIPAA. This injury is too speculative to merit such an extraordinary remedy. The order leaves -the treating physicians’ participation in the ex parte interview and the disclosure of Caldwell’s medical information — if they do choose to undertake the interview — to the doctors’ discretion. The harm is not immediate enough to require an extraordinary remedy to rectify Caldwell's potential grievance.
Further, the trial court’s order does nothing to displace the duty of privacy placed on healthcare providers by HI-PAA’s privacy regulations. The order does not supplant or alter the duty placed on the physicians possessing Caldwell’s protected health information. The order’s authorization of the ex parte contacts that Castro sought was also unnecessary based on our analysis; Castro’s counsel did riot need the court’s blessing to seek ap ex parte meeting with Caldwell’s physicians. The meetings, even without the challenged order, would be, of course, at the discrer tion of the physician, just as they are under the order.
Given these circuriistances, we find the trial court’s order to be an accurate statement of the law as-it is presently situated and that any potential HIPAA violation is too speculative;to merit extraordinary relief in the form of a writ. So we affirm the decision of the Court of Appeals denying Caldwell’s petition for a writ.
III. CONCLUSION,
Based- on the foregoing, we conclude nothing in Kentucky law prohibits defendants from seeking ex parte contacts with nonexpert physicians that treated the plaintiff as if they are ordinary fact vrit-■nesses. ■ We similarly conclude .that HI-PAA does not prohibit ex parte interviews with treating physicians-as'a tool of infor*160mal discovery. That HIPAA does not operate to bar these contacts does not relieve treating physicians of the constraints of HIPAA’s- privacy regulations. HIPAA controls disclosure of protected health information. Trial courts may satisfy HI-PAA and authorize disclosure of the plaintiffs protected health information in an ex parte interview by entering an order that complies with 45 C.P.R. § 164.512(e)(l)(i).
We conclude that the order challenged in the instant proceeding did not comply with 45 C.P.R. § 164.512(e)(l)(i), and any disclosures made during ex parte interviews authorized by the order would be in violation of HIPÁA. But the order is explicit in its failure to authorize disclosure and its grant of permission allowing Castro’s counsel to seek ex parte interviews with Caldwell’s physicians was not necessary to authorize this practice. So we find the challenged order to be nothing more than an accurate recitation of the law pertaining to ex parte interviews with the opposing party’s treating physicians and does not merit an extraordinary writ of prohibition. '
All sitting. All concur. Keller, J., concurs by separate opinion in which Barber and Noble, JJ., join.
. The law often attaches a negative connotation to communicátions labeled as ex parte. See Black’s Law Dictionary 597'(7th ed.1999) ("ex parte communication: A generally prohibited communication between counsel and the court when opposing counsel is not pres*143ent.”). Our use of the phrase ex parte throughout this opinion is devoid of those implications contrived from clandestine — and impermissible — communications between an attorney and a judge or a party known to be represented by counsel. Instead, we use this phrase in a manner that is true to the basic definition of the Latin phrase, “from or on behalf of one side of the lawsuit," to refer to a meeting’between counsel and a fact witness without prior notification to opposing counsel and the court. Bryan A. Garner, Garner’s Dictionary of Modern Legal, Usage . 343 (3d ed.2011). Other jurisdictions,- as well as. the parties and amici presently before, us, have routinely referred to these interactions as ex - parte without invoking the level of impropriety ordinarily associated with ex parte commu- , nications. We do the same, , .
. Dr. Castro practices for Palo Alto Spine, '' LLC. '
. The court’s order, although entitled “Qualified Protective Order,” is nothing of the sort. The order does not mandate any disclosure and does not require any protective measures to ensure the confidentiality of information discovered pursuant to the order. Although it is a qualified protective order in name, the trial court’s order also fails to satisfy HIPAA’s requirements for qualified protective orders as outlined in 45 C.F.R. 164.512(e)(l)(v).
. See Kentucky Rules of Civil Procedure (CR) 76.36(4).
. CR 76.36(7)(a) (“An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.”); see also Ky. Const. § 115 ("In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court-”).
. Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 639 (Ky. 2013).
., Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961).
. Hoskins v. Maride, 150 S.W.3d 1, 10 (Ky.2004).
. Caldwell made a passing allegation that the trial court was acting outside its jurisdiction in entering the allegedly erroneous discovery order. This argument is presented for the first time in a footnote' in Caldwell’s reply brief. Aside from the absurdity of arguing that a trial court lacks jurisdiction, to enter a discovery order in a pending ciyil case, Kentucky courts have declined to entertain arguments so introduced. See Smith v. Commonwealth, 366 S.W.3d 399, 401 (Ky.2012) (quoting Milby v. Mears, 580 S.W.2d 724, 728 (Ky.App.1979) ("[T]he reply brief is not a device for raising new issues_”)). Because this issue is not properly before us, we make no further mention of it.
. Bender, 343 S.W.2d at 801.
. Id.
. Id.
. Cox v. Braden, 266 S.W.3d 792, 796 (Ky.2008).
. Interactive Media Entm’t & Gaming Ass'n v. Wingate, 320 S.W.3d 692, 695 (Ky.2010) (internal quotation marks omitted).
. Edwards v. Hickman, 237 S.W.3d 183, 189 (Ky.2007).
. It is worth noting that this practice has support in our writ jurisprudence. Our precedent authorizes proceeding directly to the merits of a dispute when they are uncomplicated and doing so would promote the end of "judicial economy in limiting the breadth of analysis appellate courts-undertake when con- . sidering writs." So. Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 927 n. 20 (Ky.2013). The Court of Appeals used that approach, but we choose the more traditional analytical approach.
. See, e.g„ Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004) ("[Tjhere will rarely be an adequate remedy on appeal if the alleged error is an order that allows discovery.”); Bender, 343 S.W.2d at 802.
. Bender, 343 S.W.2d at 802.
. See Commonwealth, Cabinet for Health and Family Setvs. v. Chauvin, 316 S.W,3d 279, 283 (Ky.2010) ("In applying this threshold test, the petitioner's allegations are assumed to be true.”),
. See Bender, 343 S.W.2d at 802 ("Once the information is furnished it cannot be recalled.”); Young v. Corran, 289 S,W.3d 586, 588 (Ky.App.2008) (“This court has recently held that HIPAA does not create a state-based private cause of action for violations of its provisions. We also note that federal courts have uniformly held that HIPAA does not create a private cause of action even at the federal level.”) (citations omitted).
We except from this conclusion Caldwell’s argument citing the "confusing and misleading” nature of the challenged order. Caldwell did have an adequate remedy available to rectify this issue. As the Court of Appeals recognized, "a motion for clarification in the trial court was an available and adequate remedy that precludes extraordinary relief.” We agree with the Court of Appeals and conclude that a writ is not available to Caldwell on those grounds.
. Inverultra, S.A. v. Wilson, 449 S.W.3d 339, 349 (Ky.2014).
. A similar claim was raised before, but the Court of Appeals concluded that the plaintiffs allegation ‘that [her treating physician’s] ex marte conversations with [the defendant] were violations of both HIPAA and the Kentucky Rules of Medical Ethics’ was -not timely raised. See Miller v. Jewish Hosp. Healthcare Servs., Inc., 2004-CA-001832-MR, 2005 WL 2469688 (Ky.App. Oct. 7, 2005). This Court denied discretionary review.
. See Standards for Privacy of Individually Identifiable Health Information, 65 Fed.Reg. 82,462-01“ (Dec. 28, 2000) (to be codified at 45 C.F.R,pts. 160 & 164).
. See, e.g., State ex rel. Proctor v. Messina, 320 S.W.3d 145 (Mo.2010) (en banc); Arons v. Jutkowiti, 9 N.Y.3d 393, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007).
. See, e.g., Bayne v. Provost, 359 F.Supp.2d 234 (N.D.N.Y 2005); Nat’l Abortion Fed'n v. Ashcroft, 2004 WL 292079 (N.D. Ill. Feb 6, 2004).
. See, e.g., Joseph Regalia & V. Andrew Cass, Navigating the Law of Defense Counsel Ex parte Interviews of Treating Physicians, 31 J. Contemp. Health L, & Pol’y 35 (2015); Scott Aripoli, Comment, Hungry Hungry HIPAA: Has The Regulation Bitten Off More Than it Can Chew By Prohibiting Ex parte Communication With Treating Physicians?, 75 UMKC L.Rev. 499, 500 (2006).
. To be sure, this is not to imply that writ petitions will satisfy the certain-special-cases exception simply because they concern a discovery matter. To the contrary, most discovery disputes concern the application of settled principles of law at the discretion of capable trial judges. This case is distinguished from run-of-the-mill discovery writs because if we decline to reach the merits of this issue, trial courts will be left with no precedential guidance going forward.
. See Commonwealth v. Peters, 353 S.W.3d 592, 596 (Ky.2011) (concluding the special-cases exception applied where "the issue in the present case has far-reaching implications regarding pretrial procedure in the. Commonwealth”).
. See Arons, 850 N.Y.S.2d 345, 880 N.E.2d at 839-40 ("Congress enacted HIPAA principally to increase the portability and continuity of health insurance and to simplify administrative procedures so as to reduce health care .costs.”).
. Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L. No. 104-191, § 264(c)(1), 110 Stat.1936, 2033-34.
. See 65 Fed.Reg. 82,462-01 (codified at 45 C.F.R. pts. 160 & 164).
. 45 C.F.R. § 164.502(a).
. 45 C.F.R. § 160.103.
. Id.
. Id.
. 45 C.F.R. § 164.502(a)(2).
. See 65 Fed.Reg. 82,462, 82,657 ("We note that nothing in the [privacy] rule requires covered entities to act on authorizations that they receive, even if those authorizations are valid. A .covered entity presented with an authorization is permitted to make the disclosure authorized, but is not required to do so.”).
. 45 C.F.R. § 164.512(e)(l)(i)-(ii).
. See Bayne, 359 F.Supp.2d at 240 ('Absent within the four corners of the relevant rules and regulations and the enabling statute is any mention of the ex parte interview of a health provider, such as whether to prescribe or proscribe such actions ....*).
. See Smith v. Am. Home Prods. Corp. Wyeth-Ayerst Pharm., 372 NXSuper. 105, 855 A.2d 608, 622 (Law Div.2003) ("Nowhere in . HIPAA does the issue of ex parte interviews with treating physicians, as an informal discovery device, come into'view. The court is aware of no intent by Congress to displace any specific state court rule, statute or cáse law ... on ex parte interviews.’.’); Joseph Regalia & V. Andrew Cass, Navigating the Law of Defense Counsel Ex parte Interviews of Treating Physicians, 31 J. Contemp. Health, L. 85 Pol’y at 48. ("[N]either the Act, nor its legislative history, expressly prohibits defense counsel ex parte interviews.”).
. See, e.g., Messina, 320 S.W.3d at 150 ("This federal regulation’s use of the term oral communication clearly includes ex parte 'oral' communications with a physician....”).
. Scott Aripoli, Comment, Hungry Hungry HIPAA: Has The Regulation Bitten Off More Than it Can Chew By Prohibiting Ex parte Communication With Treating Physicians?, 75 *150UMKC L.Rev. at 500 ("Whether HIPAA truly does preclude defense attorneys from conducting ex parte interviews with treating physicians Ras yet to be concretely settled in jurisdictions that have traditionally allowed ex parte communications.... Unfortunately, no two jurisdictions seem to have found a uniform line of reasoning with regard to answering this question.”).
. 320 S.W.3d 145 (Mo.2010) (en banc)'.’'
. Id. at Í56.
.. Id.
.Id. at 157.
. 9 N.Y.3d 393, 850 N.YS.2d 345, 880 N.E.2d 831 (2007).
. Id., 850 N.Y.S.2d 345, 880 N.E.2d at 842.
. Id..
. Holman v. Rasak, 486 Mich. 429, 785 N.W.2d 98, 105-08. ’(2010); 45 C.F.R. § 164.512(l)(e)(ii)(B) ("A covered entity may disclose protected health information in the course of any judicial ... proceeding: In response to a subpoenh, discovery request, or other lawful process that is not accompanied by an order of a court or administrative tribunal, if: The covered entity receives satisfactory assurance ,.. from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order_”).
. 65 Fed.Reg. 82,462, 82,530. .
. 45 C.F.R. § 164.512(e)(1)(i)-(ii) (emphasis added).
. St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 535 (Ky.2011) (quoting Baker v. White, 251 Ky. 691, 65 S.W.2d 1022, 1024 (1933) ("[I]n the interpretation and construction of statutes, words and phrases employed by the lawmaking body must be given their plain and ordinary meaning according to popular usage, unless they have acquired a technical *152sense, in which event, they will be given such accepted technical meaning.”)).
. Black’s Law Dictionary 1222 (7th ed.)
." Primmv. Isaac, 127 S.W.3d 630, 634. (Ky. 2004) ("Generally,' control of discovery is a matter of judicial discretion.”).
. 45 C.F.R. § 165.512(e)( 1 )(ii)(A)-(B); Arons, 850 N.Y.S.2d 345, 880 N.E.2d at 842 ("As a .practical matter, this means that the attorney who wishes to contact an adverse party's treating physician must’ first obtain a valid HIPAA authorization or a court of administrative order; or must issue a subpoena, discovery request or other lawful process with satisfactory assurances relating to either notification or a qualified protective order.”).
. See 45 C.F.R. § 164.512(e)(l)(i).
. 45 C.F.R. § 160.203 (pertaining to the •preemptive effect of HIPAA’s regulations).
. Arons, 850 N.Y.S.2d 345,- 880 N.E.2d at 841-42 (citing 45 C.F.R. § 160.202).
. See, e.g., Shoney's, Inc. v. Lewis, 875 S.W.2d 514 (Ky.1994) (finding ex parte contacts between plaintiffs counsel and defendant’s managerial employees to be impermissible only because of the application of Supreme Court Rule (SCR) ‘3.130-4.2 prohibiting counsel to contact a party represented by counsel unless authorized to do so); Hillard v. Commonwealth, 158 S.W.3d 758 (Ky.2005) (holding use of subpoena power to compel a witness’s appearance for an ex parte interview impermissible as on abuse of subpoena power, not because the ex parte contact itself was impermissible); see also Radford v. Lovelace, 212 S.W.3d 72, 82 (Ky.2006) overruled on other grounds by Cardine v. Commonwealth, 283 S.W.3d 641 (Ky.2009) ("It is important for us to remember that both sides have the right to interview witnesses before trial.”) (quotation marks omitted).
. See CR 26-37.05. ■
. Angela T. Burnette & D’Andrea J. Morning, HIPAA and Ex parte Interviews — The Beginning of the End?, J. Health & Life Sci. L. 73, 77 (April 2008).
. See Dtimako v. Rowe, 438 Mich. 347, 475 N.W.2d 30,-36 (1991) ("The omission of [ex parte] interviews from the court rules does not mean that they are prohibited, because the rules are not meant to be exhaustive. Their absence from the court rules does indicate that they are not mandated and that the physician cannot be forced to comply, but there is nothing in the court rules precluding an interview if the physician chooses to cooperate.”) (citation omitted).
. Naive v. Jones, 353 S.W,2d 365, 367 (Ky.1961) ("The civil rules prescribe a practical pattern for the conduct of litigation and the' effective administration of justice.") (emphasis added); Doe v. Eli Lilly & Co., Inc., 99 F.R.D. 126, 128 (D.D.C.1983) ("As a general proposition, however, no party to litigation has anything resembling a proprietary right to any witness’s evidence.”); see also Langdon v. Champion, 745 P.2d 1371, 1375 n. 8 (Alaska 1987) ("[T]o disallow a viable, efficient, cost effective method of ascertaining the truth because of the mere possibility of abuse, smacks too much of throwing out the baby with the bathwater.!’),
. KRE 501-11.
. See, e.g., Stidham v. Clark, 74 S.W.3d 719, 729 (Ky.2002) (Keller, J,, concurring); H.H. Waegner & Co. v. Moock, 303 Ky. 222, 197 S,W.2d 254, 256 (1946); Boyd v. Wynn, 286 Ky. 173, 150 S.W.2d 648, 650 (1941); Louisville & N.R. Co. v. Crockett’s Adm’x, 232 Ky. 726, 24 S.W.2d 580, 583 (Ky.1930).
. Commonwealth, Cabinet for Health and Family Servs., 316 S,W.3d at 284 ("Kentucky evidentiary rules recognize the ability of the . legislature to control their contents, presumably including privileges, limited only by section 116 of the Kentucky Constitution.”).
. See KRE 501-11.
. Boyd, 150 S.W.2d at 450 ("At common law neither the physician nor the patient could claim- the privilege of refusing to disclose confidential communications between them in the course of the physician’s attendance upon or treatment of the patient in a professional capacity.”).
. Stidham, 74 S,W.3d at 729 (Keller, J., concurring).
. Kentucky Revised Statutes (KRS) 311.565(1)(j).
. KRS 311.595(9), (16).
.American Medical Association, Council on Ethical and Judicial Affairs, Code of Medical Ethics § 5.05 (1994). Castro and Amicus Curiae Kentucky Defense Counsel, Inc., note that the quoted provision, the one relied on by Caldwell, is an outdated version of this section. This is correct; but the updated version *156is substantially the same as the one relied upon by Caldwell, and the amendment does not affect out analysis. See American Medical Association,. Council on Ethical and Judicial Affairs, Code of Medical Ethics § 5.05 (2007).
. Davenport v. Ephraim McDowell Mem. Hosp., 769 S7W.2d 56, 62 (Ky.App.1988).
. Id.
. Bryant v. Hilst, 136 F.R.D. 487, 492 (D.Kan. 1991) ("The court finds the code of ethics'inapplicable to the issues before’ the court. First, it is not binding law.”); Bryson v. Tillinghast, 749 P.2d 110, 114 (Okla.1988) (“[Ejthical standards are aspirational in nature and not enforceable by law.”).
. 979 S,W.2d 134 (Ky.App.1998).
. Id. at 135.
. Id. at 136.
. 927 S.W.2d 839 (Ky.1996).
. 979 S.W.2d at 136.
. Id.
. 769 S.W.2d 56 (Ky.App.1988).
. Id. at 62.
. Id.
. CR 26.02(4) ("Discovery of facts known and opinions held by experts ... may be obtained only as follows.... ”).
. 845 S.W.2d 544 (Ky.1993).
. Id. at 547.
. KRS 342.020(8).
. This holding, of course, does not vitiate any professional duties of confidentiality by , which physicians may be bound. That , those duties do not carry the weight of law does not render them inapplicable or .unenforceable in the proper venue. ,
. See Arons, 850 N.Y.S.2d 345, 880 N.E.2d at 842 ("[W]here there is a State provision and no comparable or analogous federal provision, or the converse is the case, there is no possibility of preemption because in the absence of anything to compare there cannot be a contrary requirement _”) (citing Standards for Privacy of Individually Identifiable Health Information, 64 Fed.Reg. 59,918, 59,-995) (Nov. 3, 1999) (quotation marks and alterations omitted).
.See Holman, 785 N.W.2d at 108-09 (“HIPAA does not require a trial court to grant a motion for a protective order. Therefore, a trial court retains its discretion ... to issue protective orders and to impose conditions on ex parte interviews."). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5286546/ | Laura Denvir Stith, Judge
Norfolk Southern Railway Company, a Virginia corporation, seeks a writ of prohibition directing the trial court to dismiss the underlying personal injury action brought against it under the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§ 51 et seq. Norfolk alleges Missouri has no personal jurisdiction over it where, as here, the injury occurred in Indiana to Russel Parker, an Indiana resident, as a result of his work for Norfolk in Indiana.
This Court agrees that Missouri does not have specific or general personal jurisdiction over Norfolk. Though Norfolk does own and operate on railroad tracks in Missouri, the personal injury action did not arise out of, and does not relate to, Norfolk’s activities in Missouri, thereby depriving Missouri of specific jurisdiction. A plaintiff may bring an action in Missouri on a cause of action unrelated to a corporation’s Missouri activities if the corporation is incorporated in Missouri, has its principal place of business in Missouri, or in the exceptional case when its contacts with Missouri are so extensive and all-encompassing that Missouri, in effect, becomes another home state. None of these requirements is met here. While Norfolk does substantial and continuous business in Missouri, it also conducts substantial and continuous business in at least 21 other states, and its Missouri business amounts to only about 2 percent of its total business. This is insufficient to establish general personal jurisdiction over Norfolk.
This Court also rejects Parker’s argument that, by complying with Missouri’s foreign corporation registration statute, Norfolk impliedly consented to general jurisdiction in Missouri, as well as the argument that FELA provides an independent basis for jurisdiction over Norfolk. Missouri’s registration statute does not require foreign corporations to consent to suit over activities unrelated to Missouri, and the cited FELA statute is a venue statute that does not provide an independent ground for jurisdiction of FELA cases in state courts that do not otherwise have personal jurisdiction over the defendant. The preliminary writ of prohibition is made permanent.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying action is a personal injury FELA lawsuit filed in St. Louis County by Russell Parker, a resident of Indiana, against Norfolk, a Virginia corporation with its principal place of business in Virginia. Parker alleges cumulative trauma *45injury sustained during his years of employment with Norfolk in Indiana.
Norfolk annually complies with Missouri’s foreign business registration statutes by registering with the state and designating an agent to receive service of process. §§ 351.574. et seq.1 Norfolk also has brought suit and been sued in Missouri courts numerous times, but only for matters arising from or related to its activities in Missouri. Parker never worked for Norfolk in Missouri. He does not allege any negligence or other conduct or omission by Norfolk in Missouri caused the injury, nor does his petition set out any basis for specific or general personal jurisdiction over Norfolk other than his statement that Norfolk conducts substantial business and owns property in Missouri. While the record shows that Norfolk’s train tracks run through Missouri, it also shows that those tracks span at least 22 states, and that the portion of Norfolk’s business conducted in Missouri is only about 2 percent of its nationwide business activity.
Norfolk moved to dismiss for lack of personal jurisdiction. After a hearing, the trial court overruled the motion without stating the grounds for its ruling. Norfolk then filed a petition for a writ of prohibition or, in the alternative, a writ of mandamus in the Missouri Court of Appeals. That petition was denied, and Norfolk sought the same relief in this Court. This Court issued a preliminary writ of prohibition.
Parker argues that Missouri has both general and specific jurisdiction over Norfolk and, alternatively, that Norfolk consented to personal jurisdiction by registering to do business in Missouri and appointing a Missouri agent for service of process, or that FELA confers specific personal jurisdiction over a railroad in any state where the railroad owns or operates tracks. For the reasons set out below, this Court rejects these arguments, which often inappropriately blur the distinct bases on which each type of jurisdiction is based. Because the Court finds that none of the bases for jurisdiction alleged is supported by the record, the preliminary writ is made permanent.
II. STANDARDS APPLICABLE TO ISSUANCE OF WRIT OF PROHIBITION
This Court has discretion to issue and determine original remedial writs. Mo. Const. art. V, § 4-1. “Prohibition is the proper remedy to prevent further action of the trial court where personal jurisdiction of the defendant is lacking.” State ex rel. William Ranni Assoc., Inc. v. Hartenbach, 742 S.W.2d 134, 137 (Mo. banc 1987) (issuing a writ for the trial court’s improper denial of a motion to dismiss for lack of personal jurisdiction). “The extraordinary remedy of a writ of prohibition is available: (1) to prevent the usurpation of judicial power when the trial court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.” State ex rel. Missouri Pub. Def. Comm’n v. Waters, 370 S.W.3d 592, 603 (Mo. banc 2012). However, prohibition is only proper “when usurpation of jurisdiction ... is clearly evident.” State ex rel. Tarrasch v. Crow, 622 S.W.2d 928, 937 (Mo. banc 1981).2
*46
III THIS COURT DOES NOT HAVE PERSONAL JURISDICTION OVER NORFOLK
A. General Principles Governing Personal Jurisdiction.
Personal jurisdiction is the authority of a court over the parties in a particular case. State ex rel. Kansas City S. Ry. Co. v. Nixon, 282 S.W.3d 363, 365 (Mo. banc 2009); Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). It is a due process requirement that limits the power of state courts over litigants. Daimler AG v. Bauman, — U.S.-, 134 S.Ct. 746, 751, 187 L.Ed.2d 624 (2014); Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231 (Mo. banc 2010). The basis of a court’s personal jurisdiction over a corporation can be general — that is, all-purpose jurisdiction — or it can be specific — that is, conduct-linked jurisdiction. Daimler, 134 S.Ct. at 751. Additionally, because personal jurisdiction is an individual right, a defendant may waive jurisdictional objections by consenting to personal jurisdiction. State ex rel. Heartland Title Servs., Inc. v. Harrell, 500 S.W.3d 239, 241 (Mo. banc 2016).
B. General Jurisdiction
“When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the State has been said to be exercising ‘general jurisdiction’ over the defendant.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n.9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). In recent years, the Supreme Court has clarified the test for when the exercise of general jurisdiction over a corporation comports with due process. Daimler, 134 S.Ct. at 754; Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). A court normally can exercise general jurisdiction over a corporation only when the corporation’s place of incorporation or its principal place of business is in the forum state. Goodyear, 564 U.S. at 919, 131 S.Ct. 2846; Daimler, 134 S.Ct. at 754.3 In “exceptional cases,” general jurisdiction may exist in an additional state if the corporation’s activities in that other state are “so substantial aqd of such a nature as to render the corporation at home in that State.” Daimler, 134 S.Ct. at 761 n.19.
Parker argues that Norfolk’s “continuous and systematic” business in Missouri supports finding that Missoui’i has general jurisdiction over it even for cases not arising from its activities in Missouri. Prior to Daimler, this would have been a valid argument. State ex rel K-Mart Corp. v. Holliger, 986 S.W.2d 165, 168-69 (Mo. banc 1999). But, it is no longer the law. In Daimler, the plaintiff similarly argued a large corporation’s subsidiary conducting substantial and continuous business in the state as the state’s largest seller of luxury cars was sufficient to establish jurisdiction. Daimler, 134 S.Ct. at 752, 758. The Supreme Court expressly rejected that argument. While Daimler did substantial and continuous business in California, it did business throughout the United States and its California business constituted only 2.4 percent of its total sales. Id. at 752. The Supreme Court held *47that the mere conduct of these systematic and continuous business activities in the state was not sufficient to subject the corporation to general jurisdiction in the state for all causes of action not related to that state. Id. at 761.
Brown v. Lockheed Martin Corp., 814 F.3d 619, 627-30 (2d Cir. 2016), applied Daimler’s, appraisal of a foreign corporation’s forum activity to Lockheed, which was sued in Connecticut for a claim not connected in any way to its Connecticut activities. Lockheed was incorporated and had its principal place of business in Maryland, but it registered to do business in Connecticut and complied with Connecticut’s registration statutes requiring designation of an in-state agent to receive service of process. Id. at 622. Over the relevant time span, it generated approximately $160 million in revenue and employed between 30 and 70 people per year in Connecticut; maintained a physical presence in the state, including lease of a 9,000-square-foot building for at least 15 years; carried worker’s compensation insurance and defended eight lawsuits in the state during the relevant time span. Id. at 622, 628 & n.9.
Though Lockheed’s Connecticut business was substantial, it composed only a small portion of its overall business: for the relevant time period, only 0.05 percent of Lockheed’s employees and no more than 0.107 percent of its total revenue came from its Connecticut activities. Id. at 629. The Second Circuit concluded, “Lockheed’s contacts with Connecticut fall far short of the relationship that Due Process requires, under Daimler and Goodyear, to permit the exercise of general jurisdiction over Lockheed by Connecticut courts.” Id. at 630.
This analysis is directly applicable here. Norfolk owns or operates some 400 miles of track, generates approximately $232 million in revenue, and employs some 590 people in Missouri. It has appointed a registered agent in Missouri. Yet this activity in Missouri represents a tiny portion of Norfolk’s entire nationwide business. Norfolk generates only about 2 percent of its total revenues from its Missouri activities. It generates greater revenue in 11 other states. It has track in 22 states; only about 2 percent of the track it owns and 2 percent of the track it operates is in Missouri. Only about 2 percent of its total employees are in Missouri as well. Norfolk has more employees in each of 13 other states than it does in Missouri. Its Missouri contacts are insufficient to establish general jurisdiction over Norfolk in Missouri under the principles set out in Daimler, 134 S.Ct. at 757.
Parker notes that Norfolk has sued and been sued in Missouri courts in the past and that this constitutes a recognition of jurisdiction in Missouri courts. Parker also reiterates that Norfolk has many miles of track in Missouri and might be sued by Missouri residents, so Missouri is not an inconvenient or unexpected place for it to be sued, and, as such, Norfolk should be considered at home in Missouri.
Parker’s arguments blur the distinction between general and specific jurisdiction as well as between jurisdiction and venue. Id. The prior suits against Norfolk that Parker cites were suits based on specific jurisdiction because they concerned injuries that occurred in Missouri or arose out of Norfolk’s activities in Missouri. Considerations of convenience may also have made venue appropriate in particular Missouri courts for those suits. Nonetheless, the minimum contacts that suffice to provide specific jurisdiction over such a particular Missouri-related lawsuit do not also confer general jurisdiction over a particular company for a non-Missouri-related lawsuit.
*48Parker notes the Supreme Court recognized in Daimler that, in exceptional cases, a state may have general jurisdiction over a corporation not incorporated there and that has not located its principle place of business in that state. But the Supreme Court has made it clear that to be such “an exceptional case,” the forum state must be a “surrogate for place of incorporation or home office” such that the corporation is “essentially at home” in that state. Daimler, 134 S.Ct. at 756 n.8, 761 n.19. To find a corporation is “essentially at home” requires comparing the corporation’s activities in the forum state with its activities in other states through “an appraisal of a corporation’s activities in their entirety, nationwide and worldwide.” Id. at 762 n.20. The Supreme Court observed that finding a corporation at home wherever it does business would destroy the distinction between general and specific jurisdiction, for “[a] corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, ‘at home’ would be synonymous with ‘doing business’ tests framed before specific jurisdiction evolved in the United States.” Id. For this reason, when “a corporation is neither incorporated nor maintains its principal place of business in a state, mere contacts, no matter how ‘systematic and continuous,’ are extraordinarily unlikely to add up to an ‘exceptional case.’” Brown, 814 F.3d at 629.4
Here, the record shows that most of the other 21 states in which Norfolk conducts business have at least as much contact with it as does Missouri, in which only 2 percent of its business and employees are located. That this is still a large dollar amount of business does not make it a basis for finding that Missouri and these other 21 states are all “home” states for Norfolk. The nature of Norfolk’s activities in Missouri are quite distinct from the “nerve-center” of activities that the Supreme Court has said might be sufficient to make a “home” state. See Hertz Corp. v. Friend, 559 U.S. 77, 92, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). Norfolk’s activities in Missouri are only a very small part of its overall activities, and not of the nature that makes Missouri its de facto principal place of business. Missouri courts may not assert general jurisdiction over Norfolk in the underlying case.
C. Specifíc Jurisdiction
Parker also argues that Missouri has specific jurisdiction over Norfolk. Specific jurisdiction requires consideration of the “relationship among the defendant, the forum, and the litigation,” Andra v. Left Gate Prop. Holding, Inc., 453 S.W.3d 216, 226 (Mo. banc 2015), quoting Walden v. Fiore, — U.S. -, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014). Daimler notes that specific jurisdiction “encompasses cases in which the suit arises out of or relates to the defendant’s contacts with the forum.” 134 S.Ct. at 748-49 (internal quotation and alterations omitted). Because Norfolk has purposefully availed itself of the opportunity to do business in Missouri, it would be subject to specific jurisdiction in Missouri. But that jurisdiction would exist only over claims that are related to those contacts. See Andra, 453 S.W.3d at 227; Bryant v. Smith Interior Design *49Grp Inc., 310 S.W.3d 227, 233-34 (Mo. banc 2010). Unrelated suits can be brought in the forum only when the forum has general jurisdiction.. Id. at 754; Andra, 453 S.W.3d at 227.5
For the reasons already discussed, Norfolk’s contacts are not sufficient to establish general jurisdiction. Only if the instant suit arises out of Norfolk’s contacts with Missouri does Missouri have specific jurisdiction. Parker pleaded no facts alleging that the injury arose from Norfolk’s Missouri activities. Therefore, the fact that he could sue in Missouri in a case in which the injury arose out of his contacts with Missouri does not support finding general personal jurisdiction here.
Parker alternatively argues that Missouri has personal jurisdiction over Norfolk because it does engage in railroad business in Missouri and the injuries arose out of railroad business conducted by Norfolk in Indiana, so the injuries in Indiana were injuries “arising from or related to” the same “type” of activities as Norfolk’s Missouri activities.
While Parker cites cases utilizing a variety of tests for determining when a specific injury “arises from or relates to” the defendant’s activity in the forum state — tests ranging from but-for causation to proximate cause — none support the proposition that, if a company is a national company that does the same “type” of business in the forum state as in the rest of the country, it can be sued anywhere. Just because a company like Ford, for example, sells cars in Iowa and in California, does not mean there is jurisdiction in California for injuries that occurred in Iowa simply because Ford engages in the same “type” of activity — selling cars — in both states. Such an argument goes even further than the pre-Daimler approach to general jurisdiction that Daimler rejected as providing no authority for general jurisdiction over a company. To say this same conduct confers specific jurisdiction over suits the facts of which have no relationship to the forum state would be to turn specific jurisdiction on its head. There would never be a need to discuss general jurisdiction, for every state would have specific jurisdiction over every national business corporation. Par*50ker does not cite a single case to support his theory, which would completely do away with the distinction between general and specific jurisdiction and would undermine Daimler1 s test for general jurisdiction.
Parker further argues that FELA itself provides specific jurisdiction any place a railroad corporation has tracks. The relied-upon provision in FELA does not even purport to confer personal jurisdiction. Venue refers to where suit may be brought and not the power of the court over defendants, and the first part of the provision has long been characterized by the United States Supreme Court as “the venue provisions of [FELA].” Pope v. Atl. Coast Line R. Co., 345 U.S. 379, 380, 383, 73 S.Ct. 749, 97 L.Ed. 1094 (1953). It provides:
Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.
45 U.S.C. § 56 (emphasis added).
The final sentence of section 56 also does not address personal jurisdiction in state court. As the United States Supreme Court has explained, that sentence addresses subject matter jurisdiction of state and federal courts over FELA suits, but it is not intended to enlarge personal jurisdiction:
[W]e deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure.
Mondou v. N.Y., New Haven & Hartford R.R., 223 U.S. 1, 56-57, 32 S.Ct. 169, 56 L.Ed. 327 (1912). In other words, “FELA provides a regime of concurrent federal and state jurisdiction, ... but this refers to subject matter jurisdiction. ... Nothing in the act addresses the matter of personal jurisdiction in the state court.” S. Pac. Transp. Co. v. Fox, 609 So.2d 357, 362-63 (Miss. 1992).
Parker’s broader reading of FELA relies largely on three cases from the 1930s, ’40s and ’50s that do not actually discuss whether FELA confers personal jurisdiction. One is Pope, which was a venue case and did not address personal jurisdiction. Pope, 345 U.S. at 382-83, 73 S.Ct. 749. Miles v. Illinois Central Railroad Company, 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129 (1942), also did not involve personal jurisdiction but rather “the burden of expense and inconvenience” and whether the railroad “must submit to inconvenience and expense, if there is jurisdiction, ‘although thereby interstate commerce is incidentally burdened.’ ” Id. at 700, 701-02, 62 S.Ct. 827 (emphasis added). It concludes “the right to sue in state courts of proper venue where their jurisdiction is adequate is of the same quality as the right to sue in federal courts.” Id. at 704, 62 S.Ct. 827 (emphasis added). Denver & Rio Grande Western Railroad Company, v. Terte, 284 U.S. 284, 52 S.Ct. 152, 76 L.Ed. 295 (1932), discusses “jurisdiction,” but its primary issue was whether allowing the suit to go forward in state court would *51put an undue burden on interstate commerce. Id. at 285, 52 S.Ct. 152.6 The cases cited by Parker do not support the exercise of specific jurisdiction here.
D. Consent by Registration
Parker argues in the alternative that Norfolk consented to personal jurisdiction over any case filed against it in Missouri by complying with Missouri’s foreign corporation registration statutes,7 obviating the need to meet the criteria for general or specific jurisdiction. In particular, he relies on section 506.150.1(3), which provides in relevant part that service shall be had “[u]pon a domestic or foreign corporation ... by delivering a copy ... to any other agent authorized by appointment or required by law to receive service of process,” in combination with section 351.594.1, which provides in relevant part that “[t]he registered agent of a foreign corporation authorized to transact business in this state is the corporation’s agent for service of process, notice, or demand required or permitted by law to be served on the foreign corporation.” Parker argues that by registering tó do business in Missouri and appointing a registered agent, Norfolk consented through the application of these statutes to jurisdiction in Missouri over any cause of action against Norfolk, regardless whether the cause is related to Missouri and whether Missouri otherwise would have jurisdiction over Norfolk in those suits. In support, Parker cites a pair of cases decided in 1917 and 1939, holding that registration constitutes consent.8
Norfolk notes, in Genuine Parts Company v. Cepec, 137 A.3d 123, 147 n.125 (Del. 2016), Delaware recently held that, as every state requires a foreign corporation doing substantial business in a state to register under the foreign corporation statutes and appoint an agent for service of process, id. at 125 n.l, a broad inference of consent based on registration would allow national corporations to be sued in every state, rendering Daimler pointless, id. at 126.9
*52Even before Daimler, in Holliger, 986 S.W.2d at 165-66, this Court noted there was a split of authority as to whether a registration statute constitutionally can require consent to general jurisdiction in order to register to do business in a state. Id. at 169 n.4. Holliger did not resolve that issue because it was not necessary to do so on the facts of that case.
Similarly, here, this Court finds there is no need to determine whether Missouri’s registration statutes constitutionally could condition doing business in Missouri on consent to general jurisdiction. The extent of any consent inferred from a registration statute “is a question of interpretation of the instrument in which the consent is expressed and of the statute, if any, in pursuance of which the consent is given.” Restatement (Second) of Conflict of Laws § Jph (1971), comment c. The plain language of Missouri’s registration statutes does not mention consent to personal jurisdiction for unrelated claims, nor does it purport to provide an independent basis for jurisdiction over foreign corporations that register in Missouri. Rather, section 351.594.1 provides the type of service an agent for service of process can receive, stating, “The registered agent of a foreign corporation authorized to transact business in this state is the corporation’s agent for service of process, notice, or demand required or permitted by law to be served on the foreign corporation. ” (Emphasis added). That begs the question as to what type of service is required or permitted by law on foreign corporations, Missouri permits service on resident defendants, and on a corporation’s agent for service of process, section 506.150.1(3), and Missouri’s long-arm statute, section 506.500, permits service on defendants for causes of action arising out of their activities in Missouri, but neither these nor other Missouri statutes provide that suit may be brought in Missouri against non-resident corporations for suits unrelated to the corporation’s activities in this state.10 As section 351.594.1 provides only that registration is consent to service of process that Missouri requires or permits to be served on foreign corporations, the registration statute does not provide an independent basis for broadening Missouri’s personal jurisdiction to include suits unrelated to the corporation’s forum activities when the usual bases for general jurisdiction are not present. To the extent the holdings or dicta in prior cases suggest otherwise, they go beyond *53the language of the relevant statutes and should no longer be followed.11
IV. CONCLUSION
For these reasons, the Court concludes the circuit court lacks personal jurisdiction over Norfolk in the underlying personal injury action. The writ is made permanent.
Breckenridge, C.J., Fischer, Draper, Wilson and Russell, JJ., concur.
. All statutory citations are to RSMo. 2000, unless otherwise indicated.
. For a discussion of the distinction — if any— between writs of prohibition and mandamus as well as their historical origins, see State ex rel. Unnerstall v. Berkemeyer, 298 S.W.3d 513, 515 nn.1, 2, 515-16 (Mo. banc 2009), and *46State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 807 (Mo. banc 2015).
. The rule stems from the framework for general jurisdiction over natural persons: states may exercise general jurisdiction over natural persons who are domiciles of the state. Daimler, 134 S.Ct. at 760, A corporation's equivalent of “domicile" includes its state of incorporation and the state where it has its principal place of business. Id.
. The only example Daimler gave, or the United States Supreme Court has since given, is Perkins v. Benguet Consol. Min. Co., 342 U.S, 437, 447, 72 S.Ct. 413, 96 L.Ed. 485 (1952), which it describes as the “textbook case of general jurisdiction” over a foreign corporation, Daimler, 134 S.Ct. at 755-56, Benguet moved its headquarters to Ohio because the United States was at war with Japan, where its principal place of business normally was located, Id, at 756. Because the headquarters were moved, there was general jurisdiction in Ohio. Id.
. The Supreme Court’s explanation of the difference between general and specific jurisdiction in Goodyear Dunlop Tires Operations, S.A. v. Brown. 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011), may be helpful:
Endeavoring to give specific content to the “fair play and substantial justice” concept, the Court in International Shoe classified cases involving out-of-state corporate defendants. First, as in International Shoe itself, jurisdiction unquestionably could be asserted where the corporation's instate activity is “continuous and systematic” and that activity gave rise to the episode-in-suit. 326 U.S. at 317, 66 S.Ct. 154. Further, the Court observed, the commission of certain "single or occasional acts” in a State may be sufficient to render a corporation answerable in that State with respect to those acts, though not with respect to matters unrelated to the forum connections. Id., at 318, 66 S.Ct. 154. The heading courts today use to encompass these two International Shoe categories is "specific jurisdiction.” ... Adjudicatory authority is "specific” when the suit “aris[es] out of or relate[s] to the defendant's contacts with the forum.” Helicópteros, 466 U.S. at 414, n. 8, 104 S.Ct. 1868.
Goodyear, 564 U.S. at 923-24, 131 S.Ct. 2846. By contrast, Goodyear said:
International Shoe distinguished from cases that fit within the "specific jurisdiction” categories, "instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities,” 326 U.S. at 318, 66 S.Ct. 154. Adjudicatory authority so grounded is today called "general jurisdiction.” Helicopteros, 466 U.S. at 414, n. 9, 104 S.Ct. 1868.
Id. at 924.
. Even if these cases were applying old concepts of "jurisdiction,” the conclusion that FELA provides general jurisdiction over railroad companies any place they have tracks appears to be inconsistent with Daimler’s rejection of doing business as a basis for jurisdiction.
. The foreign corporation registration requirements are in sections 351.574 et seq. Some of the key provisions are section 351.572 (prohibiting foreign corporations from doing business in Missouri without obtaining a certificate of authority); section 351.576 (describing the requirements for application for such a certificate); section 351.582 (stating the effects of issuing a certificate of authority: the foreign corporation may do business here, but that authority is revocable, and Missouri cannot regulate internal workings of the foreign corporation); section 351.586 (describing the agent designation requirements); section 351.594 (declaring that service "permitted by law to be served on the foreign corporation” is to be made on the registered agent).
. Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Min. & Mill. Co., 243 U.S. 93, 37 S.Ct. 344, 61 L.Ed. 610 (1917); Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 175, 60 S.Ct. 153, 84 L.Ed. 167 (1939).
. Accord, Neeley v. Wyeth LLC, No. 4:11-CV-00325-JAR, 2015 WL 1456984 (E.D. Mo. Mar. 30, 2015); Keeley v. Pfizer Inc., No. 4:15CV00583 ERW, 2015 WL 3999488 (E.D. Mo. July 1, 2015). Norfolk also argues that, in the light of today’s global economy, to say that registering to do business is conditioned on implied consent to be sued for unrelated matters likely violates "the unconstitutional conditions doctrine,” which “forbids [states from] burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.” Koontz v. St. Johns River Water Mgmt. Dist., — U.S. -, 133 S.Ct. 2586, 2595, 186 L.Ed.2d 697 (2013).
. Prior to 1990, Missouri provided that businesses that did not register to do business in Missouri would nonetheless be considered to have consented to suit in Missouri for torts arising out of their activities in Missouri. Section 351.633, RSMo 1978, stated:
If a foreign corporation commits a tort, excepting libel and slander, in whole or in part in Missouri against a resident or nonresident of Missouri, such act shall be deemed to be doing business in Missouri by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary of state of Missouri and his successors to be its agent and representative to accept service of any process in any actions or proceedings against the foreign corporation arising ■from or growing out of the tort. ...
§ 351.633, RSMo 1978 (emphasis added). Section 351.633 was repealed in 1990 when the legislature overhauled much of chapter 351. L. 1990 H.B. 1432. The 1990 changes also moved the sections requiring designation of the agent and service of process on the designated agent to their current enumerations, sections 351.586 and 351.594, respectively, and they have remained relatively unchanged. The requirement of foreign corporations to register and designate an agent to receive service of process dates back to at least 1943. From at least that point, the provision for service has been limited to that “required or permitted by law to be served on a foreign corporation.” L. 1943 p. 465 §§ 103, 105.
. See, e.g., State ex rel. Bloomquist v. Schneider, 244 S.W.3d 139 (Mo. banc 2008) quoting Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988), for the assumption that a registration statute confers general jurisdiction without examination of whether Missouri's particular language does so; Gold Issue Min. & Mill, Co. v. Pennsylvania Fire Ins. Co of Philadelphia, 267 Mo. 524, 184 S.W. 999 (1916), aff'd, 243 U.S. at 94, 37 S.Ct. 344 (1917), overruled in part, State ex rel. American Cent. Life Ins. Co. v. Landwehr, 318 Mo. 181, 300 S.W. 294 (Mo. banc 1927); McNichol v, U.S. Mercantile Reporting Agency, 74 Mo. 457 (Mo. 1881) (interpreting prior version of statute which did not contain language "required or permitted by law to be served on the foreign corporation”). Interestingly, Gold Issue is the case that held registration constitutes consent by a foreign insurer to suit even on unrelated causes of action, and it was the case on which certiorari was granted resulting in the Supreme Court’s opinion in Pennsylvania Fire, holding such a statute is not inherently unconstitutional. Pennsylvania Fire made clear it simply accepted Missouri’s interpretation of its own statute as allowing such broad jurisdiction over foreign insurers, without independently examining whether that statute actually made registration consent to general jurisdiction. Id. But Gold Issue specifically was overturned on this precise point by American Centml, which held that a foreign insurer’s registration constituted consent only to suit on related claims. While the latter case was overruled in part on a related issue by State ex rel. Phoenix Mut. Life Ins. Co. of Hartford v. Harris, 343 Mo. 252, 121 S.W.2d 141 (1928), its holding that consent was given only to suits growing out of Missouri contracts was reaffirmed. Id. at 147. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5286547/ | Anthony Rex Gabbert, Judge
John C. Sanders appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion for post-conviction relief. He asserts three points on appeal. First he contends that the motion court clearly erred in denying his motion without an evidentiary hearing because he alleged facts, not conclusions, which if true would entitle him to relief and which are not refuted by the record, in that he alleged that his plea counsel failed to met as a reasonably competent attorney by failing to investigate the State’s allegations, failing to file a motion to dismiss the case, and failing to inform Sanders that he was not required, as a matter of law, to register as a sex offender pursuant to Sections 589.400-589.425, RSMo 2000, giving him a complete defense to the crime he was charged with. Second, he contends that the motion court clearly erred in denying his motion without an evidentiary hearing because he alleged that plea counsel failed to investigate the State’s allegations and failed to inform Sanders that he had a viable defense to the crime he was charged with. Finally, he contends that the motion court clearly erred in denying his Rule 24.035 motion because the plea court lacked a factual basis to accept his guilty plea in that the record of the plea hearing demonstrates that Sanders was not required to register as a sexual offender and therefore could not be guilty of failure to register as a sexual offender pursuant to Sections 589.400-589.425. We reverse and remand.
On January 23, 2002, Sanders pleaded guilty to two counts of the class D felony *55of endangering the welfare of a child pursuant to Section 568.045, RSMo 2000. In March of 2013, the State filed an Information against Sanders that alleged, in relevant part, that on or about February 11, 2013, Sanders was a registered sex offender under Section 589.400.1(1) and knowingly failed to report to the Lafayette County Sheriffs Department within ninety days of his previous report to verify his registration information. The Information alleged that Sanders was required to report in person because he had been found guilty of or pleaded guilty to the felony of Endangering the Welfare of a Child in the First Degree in the Circuit Court of Dunk-lin County, Malden, Missouri.
On September 16, 2013, Sanders pleaded guilty to one count of failure to register as a sexual offender. Pursuant to a plea agreement, Sanders received a seven year sentence, with execution of the sentence suspended and he was placed on probation. On August 4, 2014, Sanders’ probation was revoked and the seven-year sentence was executed.
Sanders filed a timely pro se Rule 24.035 Motion to Vacate, Set Aside, or Correct the Judgment or Sentence, and appointed counsel filed an amended motion. The motion court denied the amended motion without an evidentiary hearing. Sanders appeals.
Appellate review of denial of a post-conviction motion under Rule 24.035 is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009); Rule 24.035(k). “The motion court’s findings and conclusions are clearly erroneous only if, after review of the record, the appellate court is left with the definite and firm impression that a mistake has been made.” Roberts, 276 S.W.3d at 835. The movant has the burden of proof by a preponderance of the evidence that the motion court erred in its ruling. Id.; Rule 24.035(i).
To show entitlement to an evi-dentiary hearing a movant must: (1) allege facts, not conclusions, warranting relief; (2) the facts alleged must not be refuted by the record; and (3) the allegations must have resulted in prejudice. Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002). “An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief.” Id. “In order to ensure that claims are decided accurately, the rules encourage evidentiary hearings.” Id. at 929.
We find that Sanders was entitled to an evidentiary hearing as the record does not conclusively show that Sanders’ is not entitled to relief. In determining that Sanders’ claims were refuted by the record, the motion court found that plea counsel “had ample case law to support his advice” that Sanders was required to register as a sex offender in Missouri because the interplay between the federal sex offender registration laws and Missouri’s sex offender registration statutes show that Sanders was required to register under federal law, making registration in Missouri required under Section 589.400.1(7). The State agrees and argues that, because Section 589.400.1(7) of Missouri’s mandatory registration law requires registration of anyone who has been or is required to register under federal law, and Sanders pled guilty in 2002 to two counts of endangering the welfare of a child that alleged that Sanders subjected a child to sexual contact, Sanders was required to register as a sex offender in Missouri at the time of his plea. The State contends that, although Sanders’ crime pre-dates the federal law, because the federal law has been deemed to apply retroactively to pre-act offenders *56under final rules and regulations published by the United States Attorney General, Sanders was required to register pursuant to Missouri’s Section 589.400.1(7), even though he would not have otherwise been required to register in Missouri due to Missouri’s prohibition against retrospective laws.
The record reflects, however, that the State did not charge Sanders under Section 589.400.1(7), the federal linking portion of the law on which the State relies and on which the motion court relied in concluding that Sanders’ plea counsel had ample case law to support counsel’s advice; Section 589.400.1(7) was also not discussed at Sanders’ plea hearing. The State charged Sanders under Section 589.400,1(1) and submitted Section 589.400.1(1) at the plea hearing as the basis for Sanders’ plea. Further, nothing within the charging document or within the plea hearing transcript indicates that Sanders’ 2002 child endangerment crime was sexual in nature. Although it appears that the motion court gleaned from records not included in the file on appeal that the underlying crime was sexual in nature, given that child endangerment alone does not require sex offender registration and child endangerment alone was the basis for the failure to register charge both in the charging document and at the plea hearing, without an evidentiary hearing it is impossible to determine Sanders’ understanding of his guilty plea. Consequently, the record before us does not conclusively refute Sanders’ claims that his plea was not knowingly, voluntarily, and intelligently made because of plea counsel’s ineffectiveness and/or because no factual basis existed for the plea. As such, Sanders was entitled to an evidentiary hearing on his claims.
The judgment affirming the denial of Sanders’ Rule 24.035 motion without an evidentiary hearing is reversed and remanded for an evidentiary hearing.
All concur. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284078/ | COMBS, JUDGE,
CONCURRING:
I write separately solely to address the nature of the prehearing statement as discussed in the majority opinion. In the cape upon which it relies, Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 197 (Ky.1994), the Supreme Court held that “failure to observe strict compliance with CR 76.03 is not jurisdictional.” However, that statement bolstering substantial compliance has been brought into question by a subsequent case, Sallee v. Sallee, 142 S.W.3d 697 (Ky.App.2004). In Sallee, this Court declined to review an issue that had not been raised either in the prehearing statement or by timely motion seeking permission to raise it late — clearly implying that the rule had jurisdictional implications.
I raise this point simply to note that Sallee essentially treated the failure to recite an issue in the prehearing statement as a jurisdictional bar to its consideration on appeal. The conflict between Capital Holding and Sallee, of course, would require deference to the Supreme Court decision in Capital Holding. However, the very existence of inconsistency as to the jurisdictional impact of CR 76.03(8) is a matter of concern for the practicing Bar to *170alert it to proceed with caution on this issue. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284080/ | Richard B. Teitelman, Judge,
dissenting.
I respectfully dissent from the principal opinion to the extent it holds that Jefferson Bank’s actions.did not violate the implied covenant of good faith and fair dealing.1 “Good faith is an ‘obligation imposed by law'to prevent opportunistic behavior, that is, the exploitation of changing economic conditions to ensure gáins in excess of those reasonably expected at the time of contracting.’ ” Frontenac Bank v. T.R. Hughes, Inc., 404 S.W.3d 272, 280 (Mo.App.2012) (quoting Schell v. LifeMark Hospitals of Missouri, Inc., 92 S.W.3d 222, 230 (Mo.App.2002)). Missouri courts have recognized that a party engages in bad faith by utilizing contract language allowing unilateral action to improperly deny the other party expected'benefits flowing *190from the contract. Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 412 (Mo.App.2000) (citing Martin v. Prier Brass Mfg. Co., 710 S.W.2d 466, 473 (Mo.App.1986) (exercising judgment “conferred by the express terms of agreement in such a manner as to evade the spirit of the transaction or so as to deny the other party the expected benefit of the contract” violates the duty of good faith)). More specifically, Missouri courts have found bad faith when a developer amends a subdivision’s declaration through a “devious attempt to circumvent” the intent reflected in that agreement. Rocky Ridge Ranch Property Owners Ass’n v. Areaco Investment Co., Inc., 993 S.W.2d 553, 556 (Mo.App.1999).
The principal'' opinion distinguishes Rocky Ridge on grounds that. Jefferson Bank’s actions in this case did not amount to a “subterfuge.” I respectfully disagree and would hold that, despite the factual distinctions, Jefferson Bank’s actions in this case are functionally equivalent to the actions in Rocky Ridge. The original Indenture provided the homeowners with the significant benefit of splf-governance of the subdivision ’ by establishing that only residents could hold office on the neighborhood association’s board of directors. The Indenture went on to note that the underlying purposes included ensuring a general plan of development for the “mutual.benefit” of all owners and the participation of “every Owner” in the governance and administration of the neighborhood. The Indenture ensured this participatory governance by specifying that the board of directors would consist entirely of residents of the subdivision. As a result, when the homeowners purchased their homes and Jefferson Bank subordinated its deeds of trust to the Indenture, all parties held a reasonable expectation that the neighborhood association would ultimately be governed by a board composed solely of subdivision residents.
Jefferson Bank’s actions in amending the Indenture amounted to using its sudden majority status to unilaterally transition from the mutually beneficial participatory governance envisioned in the original Indenture to the exercise of authority for its own benefit. The evidence supports this conclusion. For instance, at trial, Jefferson Bank’s-president testified that “our interests are different” from those of the homeowners. He further testified that Jefferson Bank’s interests were “short term.” In’ other words, “[t]he market has spoken ... the market spoke that it wanted a different kind of home [in the subdivision].” Jefferson Bank’s actions, as clarified by the president’s testimony^ leaves little doubt that Jefferson Bank leveraged the fallout of the Great Recession to circumvent the mutually beneficial purposes of the Indenture to satisfy its short-term financial interests.
• I would reverse the judgment granting declaratory relief to Jefferson Bank.
. This dissent follows the rationale of the court of appeals opinion authored by the Honorable Lisa Van Amburg. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284081/ | PER CURIAM
This case, raises the issue of whether a challenge to the sufficiency and fairness of a ballot title of a proposed measure may be *193brought after the measure was adopted by voters. This Court holds that a post-election challenge to ballot titles can be brought under chapter 115.1 As the ballot title was sufficient and fair, there was no irregularity in the August 5, 2014, election.2
I. Factual Background
Samuel Dotson and Rebecca Morgan challenge the sufficiency and fairness of the ballot title for a proposal modifying the right to bear arms in article I, section 23 of the constitution. This is the second time these parties have come before this Court. For a detailed recitation of the underlying facts, see Dotson v. Kander, 435 S.W.3d 643 (Mo. banc 2014) (Dotson 1). In Dotson I, this Court dismissed the pre-election challenge to the sufficiency and fairness of the ballot title as it was moot under section 115.125.2, RSMo Supp. 2013. Id. at 645. This statute states that “[n]o court shall have the authority to order an individual or issue be placed on the ballot less than six weeks” before an election. The six-week date- had already passed before the trial court.resolved the merits. Dotson I noted that “judicial review of a claim that a given ballot title was unfair or insufficient (when not previously litigated and finally determined) is available in the context of an election contest should the proposal be adopted.” Id. at 645.
Senate Committee Substitute for Senate Joint Resolution 36 (SJR 36) was approved by voters in the August 5, 2014, primary election. Plaintiffs have now filed an election contest in this Court to challenge the summary statement as an election irregularity pursuant to section 115.555.
II. Challenges to Ballot Titles
If the General Assembly writes the ballot title for a measure it proposes to voters, the title must be “a true and impartial statement of the purposes of the proposed measure in language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.” Section 116.155.2. The summary statement is limited to 50 words, excluding articles. Id.
Section 116.190, RSMo Supp. 2013, in relevant part, allows any citizen to challenge the official ballot title proposed by the General Assembly before ah election takes place. The challenger must “state the reason or reasons why the summary statement portion of the official ballot title is insufficient or unfair.”3 Section 116.190.3. This section is a procedural safeguard that is “designed to assure that the desirability of the proposed amendment may be best judged by the people in the voting booth.” Buchanan v. Kirkpatrick, 615 S.W.2d 6, 12 (Mo. banc 1981). Such challenges are necessary “to prevent a self-serving faction from imposing its will upon the people without their full realization of the effects.” See id. at 11-12 (discussing a challenge to the ballot title of a citizen-proposed amendment). Judicial re*194view of a ballot title is especially important in> a legislature-proposed ballot initiative. This is true because the proponent of the initiative-r-the General Assembly — writes the ballot title as well as the proposed amendment without any review of the ballot title by the executive department.4 Compare section 116.025, RSMo Supp. 2013, with section 116.155.
Pre-election review under ■ section 116.190 can be an elusive remedy, however, if there is a relatively short period of time between when the ballot title is certified and when the election is to be held because courts are ..prohibited from adding issues to ballots within, six weeks of an election. See section 115.125.2. Dotson I highlighted this problem: the Dotson I plaintiffs filed their suit on the same day the ballot title was certified, but the six-week deadline for changes prior to an election was 11 days later. See Dotson I, 435 S.W.3d at 644. Because the six-week period passed before the trial court issued a judgment, this Court determined that the case and the appeal were moot. Id. at 645. It was unlikely that both the trial court and appellate judicial review could have been completed within 11 days. See also Cole v. Carnahan, 272 S.W.3d 392, 395 (Mo. App. 2008). Because of the narrow window for judicial review, challengers, due to no delay on their part, were foreclosed from bringing their challenge. This scenario can happen when, as here, the governor places a legislative ballot proposal, that was passed during the preceding legislative session on the August primary ballot.
In contrast to a pre-election challenge under section 116.190, copter 115 allows registered voters to contest “[t]he result of any election-on any question” after an election has been held. Section 115.553.2 (emphasis added). Chapter 115 provides guidelines for posi-election challenges to election results for “irregularities” that occur during elections. See, e.g., section 115.593. This chapter endeavors to ensure that the results of each election are valid.
“Irregularity” is not defined in chapter 115, but courts have considered the violation of election statutes an irregularity that may be addressed in an election contest. Gerrard v. Bd. of Election Comm’rs, 913 S.W.2d 88, 89 (Mo. App. 1995); see Marre v. Reed, 775 S.W.2d 951 (Mo. banc 1989). Additionally, section 116.020 states, in relevant part, that “[t]he election procedures contained in chapter 115 shall apply to elections on statewide ballot measures.” As a result, under section 116.020, a challenge to the ballot title of a proposed constitutional amendment may be brought as an irregularity in a post-election action under chapter 115, so long as the issue has not been previously litigated and determined. Dotson I, 435 S.W.3d at 645.
The state posits-several reasons why the plaintiffs cannot challenge the ballot title in a chapter 115 post-election contest. It first argues that chapter 116- is the exclusive means to challenge the ballot title of a proposed constitutional amendment. Although chapter 116 provides a pre-election challenge to a ballot title, there is no statutory indication that it is the only vehicle for such a challenge. In Marre, this Court held that a candidate for office could challenge the qualifications of certain voters in a post-election contest even though there were other statutes that outlined the procedures for pre-election challenges on this issue. 775 S.W.2d at 953; see also United Gamefowl Breeders Ass’n of Mo. v. Nixon, *19519 S.W.3d 137,139 (Mo. banc 2000) (rejecting argument that pre-election review under chapter 116 is the exclusive way to challenge an initiative measure); Beatty v. Metro. St. Louis Sewer Dist., 700 S.W.2d 831, 838 (Mo. banc 1985) (“The wording of the proposition on a ballot and the propriety of the notice of election provided [in a special sewer district election] are issues cognizable only in an election contest.”).
The state also argues that the specific timeline for filing a pre-election challenge in section 116.190 should control over the general election contest provisions in chapter 115, relying on Knight v. Carnahan, 282 S.W.3d 9, 20-21 (Mo. App. 2009). Reliance on Knight is misplaced as the issue there was whether the 10-day filing deadline in section 116.190 controlled over the filing deadline in sections 116.120 and 116.200. Knight does not purport to resolve whether a plaintiff may bring a section 116.190 claim under chapter 115. In fact, it notes that this is an open question. 282 S.W.3d at 15-16 (noting that Cole, 2-72 S.W.3d 392 “left open the question of what remedies might be available post-election based on an invalid ballot summary”).
The state’s next contention is that all the “irregularities” referenced in chapter 115 refer to conduct during an election, not the substance of the election provisions themselves. See, e.g., section 115,053.3 (election deputies may “witness and report to the election authority any failure of duty, fraud or irregularity”); 115.107.2, RSMo Supp. 2013 (“Watchers are to observe the counting of the votes and present any complaint of irregularity or law violation”). In support, the state notes that chapter 115 contemplates a court taking evidence of an irregularity, as opposed to making a legal determination regarding the . sufficiency and fairness of a ballot-title. See, e.g., section 115.561 (commissioners have authority to take depositions, compel-attendance and take witness testimony, and compel discovery in election contest).
In this case, this Court appointed a commissioner to take evidence, and the parties submitted a joint stipulation of' facts. While the plaintiffs did not present evidence of particular voters who were misled by the ballot title, this is not fatal to their claim under chapter 115. Rather, the plaintiffs in a post-election ballot title challenge are free to present the evidence they feel is most persuasive, a right available to every party in every case.
In sum, pre-election review, under section 116.190 is not the exclusive vehicle to challenge the language of a'ballot title. A challenge may be brought either before an election under chapter 116 or after an election under chapter 115 if the issue has not been previously litigated and determined. See Dotson I, 435 S.W.3d at 645.
III. The Ballot Title Was Not an Irregularity
In cases in which challenges to the sufficiency of a ballot title are. brought post-election, courts must determine if the bajlot title met the requirements of chapter 116 as there can be no chapter 115 irregularity without an underlying chapter 1Í6 violation of the sufficiency and fairness standard required for ballot titles.
To be sufficient and fair, “the summary statement must be adequate and state the consequences of the initiative without bias, prejudice, deception, Or favoritism.” Brown v. Carnahan, 370 S.W.3d 637, 654 (Mo. banc 2012). The General Assembly should endeavor to promote an informed understanding of the effects of the amendment, and the summary statement should accurately reflect both the legal and probable effects of the proposed initiative. See id. The summary statement should be fair and impartial -so *196that voters will not be deceived or misled, but it is not necessary for the summary statement to set out every detail of the proposal. Id. at 654, 656.
Courts have noted that, “[i]f charged with the task of preparing the summary statement for a ballot initiative, ten different writers would produce ten. different versions.” . Asher v. Carnahan, 268 S.W.3d 427, 431 (Mo. App. 2008). As such, the test is not whether the .ballot. title, as written,, was the best language, but whether the summary statement fairly and impartially summarizes the purpose of the initiative. See id.
SJR 36 proposed the following changes to Mo. Const, art. I, sec. 23, (new language in bold italics, deleted language struck through):
That the right of every citizen to, keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify--the wearing of--concealed weapons. The rights guaranteed by this sectioii shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to. be a danger to self or others as result of a mental disorder or mental infirmity.
The summary statement of the ballot title asked voters:
Shall the Missouri Constitution be amended to include a declaration that the right to keep and bear arms is a unalienable right and that the state government is obligated to- uphold that right? .
A. Provisions Not Addressed in the Summary Statement
Plaintiffs first' argue that the summary statement was insufficient and unfair in that it omitted three key points of the amendment: (1) the application of strict scrutiny; (2) the deletion of the phrase “but this shall not justify the wearing of concealed weapons” from the provision; and (3) the addition of the protection to ammunition and accessories. Although the summary does not include every change in the proposal, these omissions do not render the ballot summary insufficient or unfair as they were not central features of the amendment. See United Gamefowl Breeders, 19 S.W.3d at 141 (the ballot summary need not set out all details of the proposal to be sufficient and fair); Brown, 370 S.W.3d at 656 (further clarifying amendment would make ballot summary more accurate but was not required).
1. Strict Scrutiny Provision
Plaintiffs argue that the summary statement was misleading for failing to disclose that the amendment would require courts to examine statutes affecting the right to bear arms under strict scrutiny. They contend that this is a “significant change” because neither the Supreme Court of the United States nor this Court has explicitly stated what level of scrutiny should apply to the right to bear arms. See District of Columbia v. Heller, 554 U.S. 570, 595, 628-29, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (declaring the right to bear arms is a fundamental right but declining to specify a particular level of scrutiny); State v. Richard, 298 S.W.3d 529, 531-33 (Mo. banc 2009) (no particular level of scrutiny identi-*197fled in analyzing a statutory prohibition against possessing a loaded firearm while intoxicated). This Court disagrees.
“Strict scrutiny” is a legal phrase of art grounded in decisions of the Supreme Court of the United States. It is used when legislation affects a fundamental right. Etling v. Westport Heating & Cooling Servs., Inc., 92 S.W.3d 771, 774 (Mo. banc 2003). Considered the “most rigorous and exacting standard of constitutional review,” strict scrutiny is generally satisfied only if the law at issue is “narrowly tailored to achieve a compelling interest.” Miller v. Johnson, 515 U.S. 900, 920, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995).
It is true that neither the Supreme Court of the United States nor this Court has delineated a level of scrutiny for the right to the bear arms. Furthermore, there is no settled analysis as to how strict scrutiny applies to laws affecting the fundamental right to bear arms, which has historically been interpreted to have accepted limitations. Heller, 554 U.S. at 626-27,128 S.Ct. 2783.
That strict scrutiny applies “says nothing about the ultimate validity of any particular law; that determination is the job of the court applying” the standard. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 230, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). The nuances of how strict scrutiny applies depending on the right involved demonstrates that SJR 36 did not change the law affecting the right to bear arms but- established a broader guideline indicating how laws affecting the right to'bear arms should be scrutinized.5
This is illustrated by other state courts that have upheld gun regulations under strict scrutiny. For example,. Louisiana amended article I, section 11 of the Louisiana Constitution in 2012:
The right' of each citizen to keep and bear arms is fundamental and shall not be abridged infringed, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed-on--the person.. Any restriction on this right shall be subject to strict scrutiny.
2012 La. Sess. Law Serv. Act 874 (S.B. 303) (West). In the wake of this amendment, the Louisiana Supreme" Court recognized that- “the right to bear arms has always been fundamental” and that the “stated intention” of the améndment was “to secure and- protect Louisiana citizens’ right to bear arms under the Louisiana Constitution from possible future judicial *198or legislative erosion.” State v, Eberhardt, 145 So.3d 377, 383 & n.3 (La. 2014).
Since the amendment was adopted, that court has applied a strict scrutiny test but upheld several laws regulating the possession of firearms, including a felon-in-possession law, a conceal-carry law, and a minor-in-possession law. Id. at 385 (applying strict scrutiny and upholding a felon-in-possession statute with a 10-year limit); In re J.M., 144 So.3d 853, 863, 866 (La. 2014) (applying strict scrutiny and upholding laws prohibiting carrying concealed weapons without a permit and prohibiting minors from possessing handguns in certain circumstances); State v. Webb, 144 So,3d 971, 979, 983 (La. 2014) (applying strict scrutiny and upholding a law banning possession of a firearm while engaged in drug use and distribution); State v. Draughter, 130 So.3d 855, 868 (La. 2013) (applying strict scrutiny and Upholding a felon-in-possession law as applied to offenders remaining under the supervision of the Louisiana department of corrections).
These cases, although not binding on this Court, demonstrate the addition of strict scrutiny to the constitution does not mean that laws regulating the right to bear arms are presumptively invalid as the dissent suggests. Sep. op. at 4. The right to bear arms “is not unlimited” and there are still “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of 'firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”6 Heller, 554 U.S. at 626-27,128 S.Ct. 2783.
2. Concealed Weapon Provision ■ ■
Plaintiffs next argue that the summary statement needed to address the deletion of the phrase “but this shall not justify the wearing of concealed weapons” from article I, section 23. It was not necessary to include this deletion in the summary statement as .the legislature continues to have the authority to regulate concealed weapons just as they did prior to the amendment. Deletion of this,language clarified that the right to wear concealed weapons is subject to the same legislative restrictions that the General Assembly may place on the right to bear arms generally, which is consistent with this Court’s previous interpretation of the deleted language:
[I]t means simply that the constitutional right does not extend to the carrying of concealed weapons. .... [not] that the General Assembly is prohibited from enacting statutes allowing or. disallowing the practice....
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... [T]he General Assembly, which has plenary power to enact legislation on any subject in the absence of a constitutional prohibition, has the final say in the use and regulation of concealed weapons.
Brooks v. State, 128 S.W.3d 844, 847 (Mo. banc 2004) (citation omitted).
The dissent asserts that there is now an “open question” about whether article I, section 23 confers a right to wear concealed weapons. Sep. op. at 218. This Court’s holding in Brooks that the legisla*199ture may regulate concealed weapons remains consistent with the text of article I, section 23. See also Heller, 554 U.S. at 626, 128 S.Ct. 2783 (noting, that, historically, the Second Amendment has not prohibited states from regulating concealed weapons). As this deletion did not change the current law regarding concealed weapon regulations, it did not need to be included in the summary statement.
3. Ammunition and Accessories Provision
Finally, the ballot title is not insufficient or unfair for failure to note the addition of language making it clear that the right established in article 1, section 23, extends not only to guns but to ammunition and accessories as well, as “arms” could include ammunition. See, e.g., Web-stee’s ThiRd New Int’l DictionaRY 118 (1993) (defining “arms” as “a means of offense or defense: WEAPON”). Whatever practical difference the addition of the phrase “ammunition or accessories” may have, it is not so material that a failure to note this addition renders the ballot title insufficient or unfair. Additionally, this provision follows from Heller, which invalidated a law that required making a handgun inoperable in the home. 554 U.S. at 635,128 S.Ct. 2783.
B. Provisions Included in the Summary Statement
Plaintiffs next argue that the ballot summary was misleading to voters by asking whether the constitution should be amended “to include a declaration that the right to keep and bear arms is a unalienable right and that the state government is obligated to uphold that right” because they contend the word “include” implies that the previous version of the constitution did not contain the right to bear arms and that the state was not previously obligated to uphold this right. They rely on Missouri Municipal League v. Carnahan, 303 S.W.3d 573, 589 (Mo. App. 2010), in which the court -of appeals found a ballot summary unfair when it asked, in relevant part, if the constitution should be restricted to require that the government pay a landowner just compensation if the government .takes the landowner’s property. The court held this language implied just compensation was a new addition to the constitution when, in fact, it had always been required. Id. at 588.
Missouri Municipal League is inappo-site to This case, however, because the ballot title in SJR- 36 does not imply that the constitution does not currently include a right to bear arms. Rather,’ it asks whether the constitution should include a “declaration” and that the declaration will have two parts: (1) that the right to keep and bear arms is unalienable;. and, (2) that the government is obligated to uphold that right. Before the amendment was adopted, there was no such declaration in the constitution. As the ballot tifie asks whether the constitution should be amended to include these declarations, this was not misleading. Additionally, it poses the question whether “the right” to keep and bear arms should be declared unalienable. By using “the” before “right,” the ballot title indicates it is amending a preexisting right.
Plaintiffs further argue that the ballot title misled 'voters by implying that the right to bear arms was not currently unalienable even though the constitution, at the time, stated the right to bear arms “shall not be questioned.” They similarly, contend the state, was ■ already obligated to uphold the right to bear arms,- so this addition was unnecessary. These arguments fail because, as explained above, the central purpose of the amendment to article I, section 23, is not to change the right *200to bear arms, but to make certain “declarations” about that right. For that reason, the fact that this right is “fundamental” from a legal perspective does not mean that it is improper for the voters to add a declaration that the right is “unalienable.” Similarly, the fact that the state always has had the obligation to uphold and protect this right together with the rest of the constitution does not mean that is improper for the voters to add a declaration that this is so. • ■'
IV. Conclusion
Because the ballot title’s description of the declarations added is sufficient and fair, plaintiffs have not shown an election irregularity under chapter 115.
Russell, C.J., Breckenridge and Wilson, JJ., concur; • • .
Fischer, J., concurs in separate opinion filed;-’
Stith, J., concurs in result in separate opinion filed;
Teitelman, J., dissents in part and concurs in part in separate opinion filed;
Draper, J., concurs in part in opinion of Stith,,J., and concurs in strict scrutiny analysis in opinion of Teitelman, J.
. All statutory references are to RSMo 2000 unless otherwise noted.
. This Court has jurisdiction to hear this case pursuant to Mo. Const, art. VII, sec. 5 and section 115.555. See Gantt v. Brown, 244 Mo. 271, 149 S.W. 644, 646 (1912).
. Under section 116,155.2, the General Assembly is required to write a “true and impartial statement of the purposes of the proposed measure." In contrast, a citizen who challenges the ballot title must state why the summary statement is "insufficient or unfair” under section 116.190, RSMo Supp. 2013. While this- Court has yet to examine in what ways these standards may differ, the challengers claim that the summary statement in SJR 36 was insufficient and unfair in that it did not meet the standards of section 116.155.
. In contrast, the'ballot summary of a citizen-proposed initiative petition is written by the secretary of state and reviewed by die attorney general. See section 116.025, RSMo Supp. 2013.
. Even though SJR 36 set out strict scrutiny as the standard, that standard would already have been applicable to cases where the legislation was challenged based on article I, section 23 of the Missouri Constitution after McDonald. v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Although the Supreme Court of the United States did not announce a level of judicial scrutiny in Heller, it held in McDonald that the right to bear arms is a fundamental right that applies to the states. 561. U.S. at 791, 130 S.Ct. 3020. Because this Court reviews laws affecting fundamental rights trader the strict scrutiny standard, Etling v. Westport Heating & Cooling Servs., Inc., 92 S.W.3d 771, 774 (Mo. banc 2003), strict scrutiny would have applied under the Missouri constitution had a challenge been made. By declaring the right to bear arms “unalienable” and imposing strict scrutiny, SJR 36 could be understood to be nothing more than a declaration of the law as it would have been declared by this Court after McDonald mandated that the -fundamental right to bear arms applied to the states. The legislator-intervenors argue in their brief that "the declaration in the ballot measure that ‘[a]ny restriction on these rights shall be subject to strict scrutiny’ was nothing more than a declaration of the law as it clearly stood in the wake of McDonald.” Br. of Intervenors Kurt Schaefer and Missourians Protecting the 2nd Amendment, at *23. ■- ■<
. The dissent argues that the addition of the phrase "[n]othiihg in this section shall bé con- ■ strued to prevent the general assembly from ' enacting general laws which limit the rights of convicted violent felons” will allow a nonviolent felon to have "the same individual state constitutional right to keep and bear arms as any other lifelong- law-abiding citizen.” Sep. op. at 219'. The fact that violent felons are named does not necessarily increase the rights of nonviolent felons, a restriction clearly noted in Heller, 554 U.S; at 626-27, 128 S.Ct. 2783. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284082/ | Zel M. Fischer, Judge,
concurring.
I concur fully in the principal opinion. I write separately to emphasize that the purpose of the constitutional amendment (Senate Committee Substitute For Senate Joint Resolution 36 (“SJR 36”)) was not to 'change the law but to make sure the Missouri Constitution is at least as protective as the Supreme Court of the United States has déclared the law of the right to bear arms is under the Second Amendment to the United States Constitution. McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010); District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The ballot summary of SJR 36 sufficiently and fairly described this purpose. See § 116.155.2, RSMo 2000 (An official summary statement for a constitutional amendment “shall be a true and impartial statement of the purposes of the proposed measure_”) (emphasis added). Statutes affecting the right to bear arms are not presumptively invalid as a result of SJR 36, as suggested by Judge Teitel-man’s dissenting opinion. Teitelman, J., dissenting op. at 216.
I. The Purpose of SJR 36 Was to Adopt Heller and McDonald, Federal Precedents that Currently Bind the States, as Missouri Law, Not to Change the Law
In 2008, the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual’s right to possess an operable handgun in the home for self-defense. See Heller, 554 U.S. at 635, 128 S.Ct. 2783. The Supreme Court of the Ünited States explained, “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family would fail constitutional muster.” Id. at 628-29, 128 S.Ct. 2783 (footnote, citations, and internal quotation marks omitted). This right “is not unlimited.” Id. at 626, 128 S.Ct. 2783. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for any purpose whatsoever.” State v. Richard, 298 S.W.3d 529, 534 (Mo. banc 2009) (Fischer, J., concurring); Heller, 554 U.S. at 626, 128 S.Ct. 2783. Heller does not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the *201carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626-27, 128 S.Ct. 2783. In 2010, the Supreme Court of the United States repeated many of these points and held that the right to bear arms recognized in Heller is a right fundamental to our scheme of ordered liberty and fully applicable to the states through the Fourteenth Amendment. McDonald, 561 U.S. at 750, 767-68, 786, 791, 130 S.Ct. 3020; id at 805-4)6,130 S.Ct. 3020 (Thomas, J., concurring in part and concurring in the judgment).
After Heller was decided but while McDonald was pending in the Supreme Court of the United States, this Court held that a statute prohibiting an intoxicated person from possessing a firearm was not facially unconstitutional or unconstitutional as applied under, article I, section 23 of the Missouri Constitution. Richard, 298 S.W.3d at 531-33. The principal opinion of this Court held that it was not required to decide whether Heller's interpretation of the Second Amendment applied to. the states because the Supreme Court of the United States had not held that the Second Amendment applied to the states. Se'e id. at 531.1
The stated purpose of SJR 36 was to make sure the Missouri protection of the right to bear arms matches the federal protection currently recognized in Heller and McDonald, should the Supreme Court of the United States later reinterpret the Second Amendment in a manner not originally intended. See McDonald, 561 U.S. at 8Ó3, 130 S.Ct. 3020 (Scalia, J., concurring) (referring to the dissent’s af-gument for a “living Constitution”). This is a legitimate concern for two reasons: (1) both Heller and McDonald were decided by a mere 5-4 majority; and (2) although Missouri constitutional- provisions could be interpreted more expansively than comparable provisions of the United States Constitution, this Court uniformly, predictably, and preferably, in my view, interprets the Missouri mirror image constitutional provisions in lockstep with the United States Constitution. See, e.g., State v. Harris, 414 S.W.3d 447, 449 (Mo. banc 2013) (ex post facto laws); Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006) (due'process, equal protection, and ex post facto laws); State v. Justus, 205 S.W.3d 872, 878 (Mo. banc 2006) (confrontation); State v. Pike, 162 S.W.3d 464, 472 (Mo. banc’2005) (unreasonable searches and seizures); State ex rel. Munn v. McKelvey, 733 S.W.2d 765, 767 (Mo. banc 1987) (privilege against self-incrimination); see also Robert F. Williams, The Law of American State Constitutions 193-232 (2009).2
*202It was with this ba.ckdrop — a slim majority supporting the holdings in Heller and McDonald and few cases from this Court interpreting article I, section 23— that proponents of- SJR 36 wanted to make sure that our state constitutional protection of the right to. bear arms remains at least as protective as Heller and McDonald. The stated .purpose of the proponents of SJR 36 was to secure the individual right ,to bear arms from possible judicial or legislative erosion. The senator who sponsored SJR 36, along with Missourians Protecting the 2nd Amendment, stated the following in their, brief to this Court:
The clear, purposes of SJR 36 are to bring the Missouri constitution in line with Heller, and. McDonald, to ensure that the Missouri right to keep and .bear arms remains coextensive with the federal right explicated in Heller and McDonald, and to provide a prophylactic against legislative or judicial action that would violate McDonald. The method by which SJR 36 accomplishes these purposes is to make a declaration concerning how the existing right to keep and bear arms is to be regarded and secured in Missouri. Because it would ,,be impossible (and fatally confusing) to concisely explain this purpose to voters .in the summary statement, the legislature prepared the following summary statement:
Shall . the Missouri ■ Constitution be amended to' include a declaration that the right to keep and bear arms is a [sic] unalienable right and that the state government is obligated to uphold that right?
Br. of Intervenors Kurt Schaefer and Missourians Protecting the 2nd Amendment, at *14 (footnote omitted).
In my view, the ballot language sufficiently and fairly summarized the purpose of incorporating into the Missouri Constitution the same protection of the right to bear arms as the Supreme Court of the United States recognized in Heller and McDonald. There is no indication that the proponents of SJR 36 intended the Missouri Constitution to be more expansive than the current declaration of the Second Amendment, nor is there any indication that it 'was intended to curtail the recognized limits on the possession of firearms by felons and the mentally ill, or on the carrying of firearms in' sensitive places such as schools and government buildings, or on commercial sales. Heller, 554 U.S. at 626-27, 128 S.Ct. 2783; Richard, 298 S.W.3d at 534 (Fischer, J., concurring).
II. SJR 36⅛ Various Declarations Align with Heller and McDonald
. SJR 36 modified the text of article I, section 23 as follows: (1) it declared defense of “family” to be within the right to keep and bear arms; (2) it declared that the right to keep and bear arms does not prevent the General Assembly from limiting the rights of convicted violent felons or those adjudicated as dangerous mentally ill persons; (3) it declared the right to keep and bear “ammunition, and accessories typical to the normal function of such arms;” (4) it removed the phrase, “but this *203shall not justify the wearing of concealed weapons;” (5) it declared the right to keep and bear arms “unalienable;” and (6) it declared restrictions subject to “strict scrutiny.” These textual changes solidified the right to keep and bear arms as recognized -in Heller and McDonald into the Missouri Constitution.
The first five modifications are clearly consistent with Heller. The addition of “family” to the list flows straight from Heller. 554 U.S. at 628-29, 128 S.Ct. 2783 (emphasizing protection of the home and family). So too does , the clarification that the General Assembly may limit rights of felons and dangerous mentally ill persons, as noted by the sponsoring senator and Missourians Protecting the 2nd Amendment in their brief to this Court. . See id. at 626-27, 128 S.Ct. 2783 (recognizing longstanding prohibitions on the possession of firearms by felons and mentally ill persons); Br. of Intervenors Kurt Schaefer and Missourians Protecting the 2nd Amendment, at *12. The fact that violent felons are named does not increase the rights of nonviolent felons; the addition of “ammunition[ ] and accessories typical to the normal function of such arms” follow from Heller because that case invalidated a law that required making a handgun inoperable in the home; deletion of the concealed weapon exception did not change the legislature’s authority to regulate concealed weapons;3 and “unalienable” is synonymous with “fundamental.”
Judge Teitelman’s dissenting opinion suggests that SJR 36’s adoption of “strict scrutiny” raises questions about certain legislative restrictions on the right to bear arms that previously would have been permissible. Teitelman, J., dissenting op. at 216-18. SJR 36 did not change the law by adopting strict scrutiny.4 As the principal *204opinion-notes-, because the right'to. bear arms has been declared a fundamental right by the Supreme Court of the United States in McDonald, this -Court would have applied strict scrutiny regardless of SJR 36.. See Op. at 197 n.5; The principal opinion is clear that this Court’s precedent supports applying strict scrutiny once McDonald declared the right to bear arms a fundamental right and applied, the Second Amendment to the states through the Fourteenth Amendment.5
Judge Teitelman's dissenting opinion also claims that legislative restrictions on the right to bear arms are now presumptively invalid as a result of the adoption of strict scrutiny. T.eitelman, J., dissenting op. at 216. This stands at odds .with the well-settled legal standard for constitutional challenges: “A statute is presumed valid and will be declared unconstitutional only if the challenger proves tjie statute ‘clearly and undoubtedly violates the constitution[]_Lewellen v. Franklin, 441 S.W.3d 136,143 (Mo. banc 2014).
Furthermore, application of the “strict scrutiny” test varies depending on the type of right involved and the particulars of the law at issue. It does not'mean the legislation at issue is deemed unconstitutional. “Courts routinely uphold laws when applying strict scrutiny, and they do so in every major area of the law....” Adam Wink-ler, Fatal in Theory and Strict , in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand.- L. Rev. 793, 795-96 (2006) (finding, in a study of all published federal court applications of strict scrutiny over a span of 13 years, that laws survived strict scrutiny 30% of the time). More importantly, “strict scrutiny” is applied differently depending on the right involved. See id. at 796-97 (finding that courts upheld laws more often in religious liberty cases than in cases involving suspect class discrimination, free speech, freedom of association, and other fundamental rights). Strict scrutiny has no settled meaning as applied to the right to bear arms, which the Supreme Court of the United States has declared a “[ jlimit-ed” fundamental right. Heller, 554 U.S. at 595, 626,128 S.Ct,2783.
The four Louisiana Supreme Court cases cited by the principal opinion make clear that a law is not presumptively invalid just because strict scrutiny applies. The People of the State of Louisiana also saw the wisdom in making sure their state constitution would be interpreted in accordance with Heller and McDonald. The ballot language for the Louisiana amendment was as follows: “Do you support an amendment to the Constitution of the State of Louisiana to provide that the right to keep and bear arms is a fundamental right and any restriction of that right requires the highest standard of review by a court? (Amends Article I, Section 11).” 2012 La. Sess. Law Serv. Act 874 (S.B. 303) (West). The text of the amendment adopted strict scrutiny, and in applying that test, the Louisiana Supreme Court has upheld several laws affecting the right to bear arms, concluding as follows:
[T]he voters’ ratification of strict scrutiny as a review standard of alleged infringements on the right to keep and bear arms was not meant to invalidate every restriction on firearms, whether in existence at the time the amendment was ratified or yet to be enacted. Rather, the strict scrutiny standard, adopted by the voters “is designed to provide a framework for carefully examining the importance and sincerity of the reasons advanced by the governmental decision-*205maker” for firearm regulation -within the context of the fundamental right to keep and bear arms. Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003)— Strict scrutiny requires a careful examination by our courts, keeping in mind that the fundamental right at issue is one where some degree of regulation is likely to be necessary to protect the public safety. Grutter, 539 U.S. at 327, 123 S.Ct. 2325 (in a strict scrutiny analysis, “context matters.”).
State in the Interest of J.M., 144 So.3d 853, 860 (La. 2014) (citations omitted).
Conclusion
The purpose of SJR 36 was simply to lock in time for purposes of the Missouri Constitution the right to bear arms as declared and set out in the Supreme Court of the United States’ decisions in Heller and McDonald. The ballot language gave the People a sufficient and fair summary when they voted to pass SJR 36. Therefore, I concur in ‘ the principal opinion.
Laura D'envir Stith, Judge, concurring in result
I respectfully disagree in part with the reasoning used by the principal opinion in analyzing whether the changes in article I, section 23 of the Missouri Constitution relating to felons in possession of firearms and strict scrutiny were required to be included' in the ballot title for that title to be fair and sufficient. Even more fundamentally, I disagree with this Court’s construction of chapter 115, RSMo, to apply to post-election challenges to the ballot title. Ballot title errors are not “irregularities” in an election as contemplated by chapter 115 and can be brought only prior to an election under chapter 116, RSMo. But I nonetheless conclude that, under law of the case principles, these petitioners should be permitted to raise the ..challenge under chapter 115. They timely brought a chapter 116 challenge; it was this Court that erred in dismissing it based on mootness in Dotson v. Kander, 435 S.W.3d 643 (Mo. banc 2014) (Dotson I). Reaching the merits, this Court should void the result of an election only if it cannot avoid doing so. Because the amendment- can be interpreted not to change the law regarding possession of arms by felons, and1 because the reference to strict scrutiny can be interpreted to be used in its lay sense rather than as a legal term of-"art, I concur in result.
I. STRICT SCRUTINY AND OTHER CHANGES TO MISSOURI’S RIGHT TO BEAR ARMS CONSTITUTIONAL PROVISION
This is a challenge to the ballot title of a measure proposing modifications to M0. Const., art.' I, sec. 23, what ⅛ popularly known as the “right to bear arms” amendment. Prior to the 'amendment to article I; section 23 adopted by the -people in August 2014, that section stated:
That the right of every citizen to' keep and bear arms in defense' of his home, person and property, or when'lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.
SJR 36 proposed an amendment to article I, section 23, which was adopted by ’the people in August 2014. As amended, article I, section 23 states (new language in bold, deleted language struck through):
That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned; — but this shall not justify the wearing-of-concealed-*206weapons. The rights guaranteed by this section shall be unalienable. Any restriction on these, rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the .rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.
The legislature prepared the ballot title for SJR 36, and that ballot title is what voters saw in the voting booth as they voted whether to adopt the proposed amendment to that section. As the principal opinion recognizes, section 116.155.21 provides that where, as, here, the legislature prepares the ballot title for a proposed constitutional amendment:
2. The official summary-statement approved by the general assembly shall, taken together with the approved fiscal note summary, be the, official ballot title and such summary statement shall contain no more than fifty words, excluding articles. The, title shall be a true and impartial statement of the purposes of the proposed measure in language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.
(Emphasis added).
The summary statement of the ballot title for SJR 36 asked voters:
Shall the ■ Missouri Constitution be amended to include a declaration that the right to keep and bear arms is a [sic] unalienable right and that the state government is obligated to uphold that right?
Section 116,190.1, RSMo Supp. 2013, provides that any citizen may challenge a ballot title if the challenger does not believe that" the ballot title sufficiently and fairly sets out the changes that would result were the constitutional amendment adopted.2 Does the ballot title provided by the legislature summarizing the changes to article I, section 23, sufficiently and fairly set out a true and impartial statement of the purposes of the proposed measure in the manner required.by section 116.155.2? The petitioners say it does not.
First, the. petitioners point to the amendment’s deletion of language in the prior version of article I, section 23, stating that the right to bear arms “shall not justify the wearing of concealed weapons.” I agree with the principal opinion that, in Brooks v. State,. 128 S.W.3d 844, 847 (Mo. banc 2004), this Court held that the clause in the former article I, section 23 addressing concealed weapons simply clarified that article I, section 23 was not intended to affect the legislature’s authority to regulate the carrying of concealed weapons. As the prior wording of article I, section 23, therefore, .neither conferred nor took away a Missourian’s right to carry concealed weapons, and as the recently *207adopted amendment likewise neither confers nor takes away such a right,- the removal of the concealed weapons clause did not affect the right of the legislature to regulate the wearing , of concealed weapons, and so its omission from the ballot title did not paake the title unfair or insufficient.
The petitioners also assert that the addition to article I, section 23 of protections of ammunition and accessories to arms is a substantial change in the law. While the purpose of adding these protections is somewhat perplexing — had any legislature been directing how gun holsters could be worn and what type of ammunition should be purchased? — that does-not mean that the addition of this language necessarily worked a substantial change in the law. Its effect depends on its interpretation. If, for instance, this language were read as guaranteeing the right to unregulated possession of any form of ammunition or accessory, however dangerous to the public or law enforcement,- then clearly it would work a substantial change in the law and the ballot title would not be fair and sufficient.3 But so long as this language is interpreted, as I would interpret it, simply to allow Missourians reasonable access to bullets and accessories, they always have had such access. So, by-finding the ballot title language fair and sufficient, the Court necessarily is holding that this language— much- like the now deleted language about concealed weapons — is to be interpreted narrowly..
For similar reasons, I would not invalidate the ballot title due to the otherwise rather inexplicable omission from' that title of language noting that the amendment adds language expressly..stating that the amendment does-not prevent the legislature from regulating the right to bear arms “of .convicted violent felons or those adjudicated by a court to-be a danger to self or -others as. a result of a mental disorder or mental infirmity.”
Intervenors Kurt Schaefer and Missourians Protecting the 2nd Amendment argued in their brief that' the legislature intended the amendment not to change the law regarding the Second Amendment but, rather, to ensure that Missouri Second Amendment law is consistent with federal Second Amendment law as set out in District of Columbia v. Heller, 554 U.S. 570, 626-27, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, Ill., 561- U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In McDonald, the United States Supreme - Court explained that- the Second Amendment’s protection of ’ the ■ fundamental right to -bear arras applies to the states. In Heller, it held that even though the Second Amendment simply states, “A well regulated Militia, being necessary to the security.of a free State, the right, of the people to keep, and bear Arms, shall not be infringed,” the states nonetheless, have, traditionally, enjoyed the right to regulate the possession of firearms in reasonable. ways, including the right of felons to possess firearms, Heller, 554 U.S. at 626, 128 S.Ct. 2783.
This reasoning applies here. ■ Judge Tei-telman is incorrect in suggesting in his dissenting- opinion that the failure of article I, section 23, as amehded, to mention *208the right to- regulate nonviolent felons means that the amendment removed from the legislature its traditional authority to regulate the -possession of weapons by all felons or those with mental conditions that make them a danger to themselves or others. -'Were he correct, then I would agree with him that this was a substantial change in the law, and that a ballot title that does not reflect that change would be unfair and insufficient.
But the amendment’s silence is just that — silence. It affirmatively bars nothing. In that sense, it is similar to the language included in the previous version of article I, section 23, stating that the amendment did not justify the carrying of concealed weapons. This Court held in Brooks that this language simply said what article I; section 23 did not do; while perhaps superfluous, it in no way limited the authority, of the legislature to regulate concealed weapons. Removing it from article I, section 23, therefore, had no effect on the legislature’s authority in this area.
Similarly, here, the express recognition in the aniendment that the legislature may regulate the possession of arms by violent felons does not affirmatively prohibit the legislature from regulating the possession of arms by other felons. While perhaps again superfluous, it makes no substantive change in the legislature’s authority, because adding a mention of one type of permissible regulation does not, thereby, make all other types of regulation impermissible. As such, the failure to include a description of this “change” as to the specific mention of the lack of a right of violent felons to bear arms in the ballot title did not render the latter unfair or insufficient.
But, for these same reasons, clarification is required regarding the principal opinion’s holding that the addition of the “strict scrutiny” clause to article I, section 23 does not work a substantial change in Missouri law governing review of the right to bear arms. Were Judge Teitelman correct that strict scrutiny has only a single, required -meaning when considering regulation of fundamental rights — that is, the law at issue must be narrowly tailored to achieve a compelling governmental interest. to survive strict scrutiny — then the amendment would work a substantial change in Missouri law and he would be correct that the summary statement is unfair and insufficient. For both Missouri and the United States Supreme Court have avoided- using or requiring other courts to use a particular type of scrutiny when examining regulation of fundamental rights, including the right to bear arms. Heller and McDonald in particular recognize the right to bear arms as fundamental yet studiously avoid stating what type of scrutiny applies, finding that such categorization was not necessary to its analysis. Heller, 554 U,S. at 628-29, 634-35, 128 S.Ct. 2783; see McDonald, 561 U.S. at 782-84, 130 S.Ct. 3020. Instead, Heller simply states: “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family, would fail constitutional muster.” 554 U.S. at 628-29, 128 S.Ct. 2783 (internal citation and quotation marks omitted).4 Similarly, as *209the concurring opinion of Judge Fischer notes, this Court to date has not expressly set out any specific standard of review. I disagree, however, with Judge Fischer’s further statement that Missouri law requires that strict scrutiny be applied once the right to bear arms is recognized as a fundamental right. To the extent that the principal opinion can be read to so hold (it is ambiguous on this point), I disagree with it also. I would instead follow the approach taken by the United States Supreme Court in Heller and McDonald.
The United States Supreme Court has taken a similar approach when analyzing the regulation of the right to marriage. In Zablocki v. Redhail, 434. U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), the Supreme Court recognized a fundamental right to marriage but did not use the label “strict scrutiny” in analyzing the law at issue. Instead, Zablocki simply stated it would apply a different analysis — the law “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” 434 U.S. at 388, 98 S.Ct. 673.
The lesson from these cases is that scrutiny of whatever type is simply a means of determining constitutional validity — the test is not an end in itself, just a means. In the context of examining fundamental rights (as opposed to in the analysis of cases involving a suspect class), use of the term “strict scrutiny” is more confusing tion helpful, so the Supreme Court is moving to avoid labels and instead simply analyze whether sufficiently important state interests justify the regulation in question.
There is no reason to interpret the term “strict scrutiny”. in the recently adopted amendment to require utilization of a technical legal standard that even the United States Supreme Court does not apply to regulation of the Second Amendment — indeed, the proponents of the amendment state that their intent was to match Missouri law to federal protections of the right to bear arms, not to go beyond federal law. Nothing in the ballot summary or the amendment itself states that the term is intended to have a strict or technical legal meaning, and certainly it never explains this meaning to the public.5
Further, to the extent that the amendment could be read to intend to impose a set definition of “strict scrutiny” that does not fit with the common law right of judges to interpret the constitution — and that is inconsistent with Heller; which specifically chose not to accept the invitation to adopt strict scrutiny6 — it would impinge on the judicial province and so raise serious separation of powers issues. Would the legislature next be able to tell the courts that they may not review legislation at all, or propose a constitutional amendment so providing? The answer clearly is no.
*210All of these concerns disappear, however, when one recognizes that those who wrote the ballot title said that it was not intended to change the current state of the law regarding the right to carry or to regulate concealed weapons but was intended. only to codify that law. This is inconsistent with interpreting the words “strict scrutiny” as being used in a particular and changing legal sense, or as requiring a particular level of scrutiny, for, as the principal opinion notes, no specific level of scrutiny has been applied to analysis of the right to bear arms, so imposition of a particular level of scrutiny would be a substantial change in the law.
In other words, were the ballot language interpreted to try to constrict how this Court applies its own common law methods of review of cases, a supremely and exclusively judicial function, and to prohibit any regulation when a less restrictive alternative might be sufficient, then the ballot title would be unfair and insufficient because, at a minimum, these words would work' a substantial change in the law, both federal and state.
In the absence of a clear statement that the word is used in its technical sense, it is appropriate to conclude, therefore, that it was intended to be used constitutionally and in its common and everyday lay sense, the sense that voters would understand the words to have when they voted for or against the amendment. See, e.g., Missouri Prosecuting Attorneys v. Barton Cnty., 311 S.W.3d 737, 741 (Mo. banc 2010) (“In determining the meaning of a constitutional provision the court must first undertake to ascribe to the words the meaning which the people understood them to have when the provision was adopted”).
Webster’s Third New International Dictionary defines “scrutiny” as “a searching study or inquiry,” and “strict” as “particularly severe in requirement.” Webster’s Third New International Dictionary of the English Language 2043, 2261 (3d ed. 1993). The words “strict scrutiny” to the lay voter, therefore, simply mean that the courts are to carefully and severely scrutinize any attempt to regulate the right to bear arms. As that-right has long been recognized by this Court as fundamental, and as this is consistent with the test applied in Heller, these words effect no change in this Court’s approach to regulation of the right to bear arms. Therefore, precisely because the words are used in their normal lay sense, this change also was not required to be included in the ballot title in order for it to be fair and sufficient. It is not clear to me whether the principal opinion’s somewhat convoluted discussion of the “strict scrutiny” issue is in agreement or disagreement with what I say here, but to the extent it is in disagreement, I dissent.
II. CHAPTER 115 DOES NOT APPLY TO BALLOT TITLE CHALLENGES
Unlike the principal opinion, I would not reach the above challenges to the ballot title by analyzing that ballot title under chapter 116 of the Missouri statutes. Chapter 115 governs challenges to election irregularities, not challenges to ballot titles. Chapter 116 is the chapter that governs challenges to ballot titles. There is no reason for this Court to create a novel second method of attacking ballot titles, as the principal opinion does here, simply because this Court erroneously dismissed the petitioner’s pre-election challenge properly brought under chapter 116.
The simpler, and more appropriate, approach is to recognize that this Court’s prior decision in Dotson I was incorrect in dismissing the pre-election challenge as moot. While, as Dotson I notes, within six weeks of an election it is too late to change a ballot title', this does not mean it is not *211too late to consider whether the ballot title language complies with chapter 116’s requirements. Indeed, this very lawsuit shows that it is not too late to do so. But why require usage of the artificial mechanism of a second suit under a different chapter, chapter 115, that this Court without citation to anything in chapter 115 or 116 themselves finds incorporates chapter 116? Why pot just proceed on the initial chapter 116 petition?
A. Chapter 116, not Chapter 115, Governs Ballot Title Challenges
Section 116.190.1 provides that any challenge to a ballot title must be brought in Cole County and must be brought within 10 days of certification of the ballot title by the Missouri secretary of state:
116.190. 1. Any citizen who wishes to challenge the official ballot title or the fiscal note prepared for a proposed con-stitutionál ’amendment submitted by the general assembly, by initiative petition, or by constitutional convention,' or for- a statutory initiative or referendum measure, may bring an action in the circuit court of Cole County. The action must be brought within ten days after the .official ballot title is certified by the secretary of state in accordance with the provisions of this chapter.
These requirements are simple, direct, and easy to comply with and understand. In fact, these very plaintiffs did just that by bringing an action under section 116.190 in Cole County within 10 days of the certification of the ballot title by the Missouri secretary of state. Dotson I, 435 S.W.3d at 643.
But section 115.125.2, RSMo Supp. 2013, provides that “[n]o court shall have the authority to order an individual or issue be placed on the ballot less than six weeks before the date of the election.” Although the petitioners filed their challenge to the ballot title on the very day it was certified, that was insufficient time for them to litigate the issue of the ballot title’s sufficiency and fairness, because the certification occurred only six weeks -and 11 days prior to the August primary ballot on which the proposition was to appear. This -11-day window had expired before the trial court even ruled on the challenge, much less before this Court could consider the matter on appeal. This Court, therefore, held that the language of section 115.125.2 “prohibit[ed]- court-ordered modifications to a ballot title within six weeks of an election.” Dotson I, 435 S.W.3d at 645. To that point, the decision was correct.
But Dotson I further held that the challenge to the ballot title, therefore, was moot because the amendment could not be removed from the ballot before the election. Nothing in chapter 116, however, says that its procedures become moot six weeks béfore an election. Knight v. Carnahan, 282 S.W.3d 9 (Mo. App. 2009), holds to the contrary.
In Knight, as here, petitioners challenged the secretary of state’s certification of a statewide ballot measure, arguing that it encompassed more than one subject and should be removed from the ballot and asking that the measure be held legally insufficient. The trial court rejected the challenge. The court of appeals was unable to hear and determine the appeal of that ruling until after the election had occurred. The court of appeals held that,because the election already had occurred, the request for an injunction was moot. Id. at 15-17; But Knight-, went on to determine the claim that the measure was invalid because it concerned more than one subject matter and rejected it on the merits under chapter 116. This then, is a challenge brought pre-election but determined post-election, under chapter 116. Id.
*212Knight remains good law. Its approach should have been applied by this Court in Dotson I, which should have held that, while the attempt to prevent a vote on SJR 36. was moot, the challenge to ■ the sufficiency of the ballot, title language was not. .:
' Because of its 'failure to recognize that the chapter 116 proceeding could continue even after it was too late to change the ballot.title language before the election, Dotson I was in a quandary because of the unfairness of precluding review of the ballot.-title despite the bringing of a timely challenge to its language. This caused this Court to soften the blow by speculating in dicta that the mooting of the chapter 116 challenge did not preclude any review of the ballot title:
' [I]n light of the fact that judicial review of a claim that a given ballot title was unfair or insufficient (when not previously litigated and finally determined) is available in the context of an election contest should the proposal be adopted. See section 115.555, RSMo 2000.
Dotson I, 435 S.W.3d at 645. No. case was cited as authority for this statement, nor was section 115.555 quoted to show what portion of that section supported that result, and with good reason. Nothing in section 115.555 or in any case interpreting or applying- it holds that ballot title sufficiency and fairness can be litigated as part of a challenge to election irregularities under section 115.555.
As just quoted, section 116.190 is quite specific: A ballot title challenge must be brought within 10 days of certification of a matter for the ballot'. The statute does not provide that, alternatively, such a- challenge may be brought after- the election under chapter' 115. Held hostage- by its previous dicta, however, the principal opinion holds that, because this Court dismissed the prior suit as moot, it would henceforth treat .ballot title insufficiencies as if they were a form of “irregularity” in the holding of an election, because suit may be brought after an election to challenge election “irregularities.” No prior case, however, states that ballot title insufficiency is an election irregularity.
This is because, as the very structure of chapter 115 demonstrates, that chapter is intended as a mechanism for voters to “contest the result of any election on any question” after an election. § 115.553.2. That is, it provides a remedy when the way the election was held was improper and allegedly affected the election result. So, for example, section 115.537 provides that, not later - than five days after the election contest petition is filed, “a preliminary hearing shall be held to determine whether there shall be a recount and not to determine what the recount would show. The court shall hear all evidence by the contestant and contestee bearing on the alleged irregularities.” Section 115.553.2 provides:
The result of any election on any question may be contested by one or more registered voters from the area in which the election was held. The petitioning voter or voters shall be considered the contestant and the officer .or election authority responsible for issuing the statement setting forth the result of the election shall be considered the contes-tee,
But, in'a ballot title case, the petitioner does not contest the result of the election, but the wording of the ballot title. Similarly, section 115.557 provides that persons who wish to contest the election:
[O]n .any question provided in section 115.555, shall file a verified petition in the office of the clerk of the supreme court. The petition shall set forth the points on -which the contestant wishes to •contest the election and the facts he will *213prove in support of such points, and shall' pray leave to produce his proof. The supreme court shall have exclusive jurisdiction over all matters relating to the contest and may issue appropriate orders to all election authorities in the area in which the contested election was •held.
None of this procedure ■ makes sense where, as here, the issue being contested is the fairness and sufficiency of a ballot title that is identical throughout the state, a matter that will be determined as a question of law, not based on facts regarding the conduct of the election in any locale. Finally, section 115.593 provides in relevant part that, “If the court or legislative body trying a contested election determines there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election, it may order a new election for the contested office or on the contested question.” Plainly, these provisions are intended to allow inquiry into the conduct of the election to determine whether there were irregularities that cast doubt on the result. This is intended to be a factual inquiry to be tried to the court or legislative body. Id. ■ A ballot title objection does not fit easily into this process, although it is exactly suited to a proceeding under chapter 116, which; as the principal opinion acknowledges, was adopted precisely to provide a method of determining ballot challenges.
For these reasons, the principal opinion misses the point in stating that a hearing was held here, thóre just was no evidence introduced, but there could have been. To the contrary, evidence as to the conduct of the election would have been irrelevant. The only question is a legal one, whether the ballot title contains a fair and sufficient summary of the proposed amendment. To say that evidence could have been.offered as to whether individual voters were misled, when the question of the sufficiency of the title under chapter 116 is a legal not a factual one so that evidence would be irrelevant, just magnifies the inappropriateness of reliance on chapter 115 when judging the sufficiency of a ballot title.
The principal opinion seeks to avoid the inapplicability of these provisions to ballot title' challenges by noting that section 116:020 provides that elections as to state ballot measures shall be held as procedurally provided in chapter 115 — except, of course, those regarding timing and location of filing of the election contest, which apparently do not apply because if they did the filing would be untimely. •
Certainly it is correct that, were there irregularities in the holding of the election on the amendment to article I, section 23, those irregularities would be tried to see if they conflicted with, the' law governing elections as set out in section 115. But, of course, nothing in section 115 addresses ballot titles, nor does chapter 115 incorporate chapter 116. Consequentially, the statement that election irregularities in the trial of ballot issues can be tried under chapter 115 begs rather than answers the question of what is an election irregularity.
The principal opinion also 'cites to the fact that Missouri courts have considered violations of election statutes as irregularities under chapter 115, citing Gerrard v. Bd. of Election Comm’rs, 913 S.W.2d 88, 89 (Mo. App 1995), and Marre v. Reed, 775 S.W.2d 951 (Mo. banc: 1989). But each of these cases involved challenges to elections because of failures to , comply with the procedures governing the holding of the election involved. Marre involved a challenge to the qualifications of voters, while Gerrard involved an alleged improper attempt to use public funds to' influence an election and an allegedly confusing organization of the ballot itself. See id. Neither was a ballot title challenge. Citation to *214these cases simply highlights the lack of authority for addressing a ballot title challenge under chapter 115. •
Finally, the principal opinion says that nothing in chapter 116 says that thevalidity of a ballot title cannot be determined under chapter 115 too, so it must be permissible. But more on point would be a reference to the long-recognized adage that, in interpreting statutes, the specific will govern over the general. Greenbriar Hills Country Club v. Dir. of Revenue, 935 S.W.2d 36, 38 (Mo. banc 1996).. Here, specific procedures for ballot challenges are set out in detail in chapter 116. There would be little point in so providing if the legislature really meant “or you can'just use any other chapter addressing elections', we are not particular.” in fact, the principal opinion recognizes that it must utilize the ■ standard set out in chapter ■' 116 in determining the election contest hére filed under chapter 115, for otherwise there would be no guide as to how to determine whether a ballot title was “irregular.” It, therefore, basically incorporates chapter 116 into chapter 115 by reference. But, if the legislature so intended, it would have so provided.
- Luckily, the legislature can itself correct the problems created by the principal opinion’s holding by.revising chapter 116 to state . explicitly that a person may not bring a challenge to ballot title language after an election under chapter 115,’and that unfairness or insufficiency of a ballot title is not an election irregularity. Were it not to so clarify the law, one can only imagine the multitude of post-election.attacks on ballot titles of amendments adopted by the people, such as that first brought post-election in Shoemyer v. Kander, 464 S.W.3d 171, 2015 WL 3978756 (Mo. banc 2015). It was entirely understandable for the petitioners in Shoemyer to bring that challenge, for this Court invited such postelection filings by its dicta in Dotson I. But this is bad public policy. It would, in future cases, encourage those who oppose an amendment, and who see insufficiencies in the ballot title, to “sandbag” the election by delaying their challenge until after the election. If the proposition loses, they will have saved their resources. If it passes, they can just bring their challenge after the election and achieve the same result. The result is that insufficiencies or unfairness in a ballot title that previously might have been identified and corrected prior to an election will go unchanged, and the people’s vote may be unnecessarily negated.
Challengers who failed to timely bring a pre-election challenge under chapter 116 and section 116.190 should not be allowed a “second bite at the apple” by bringing an after-election challenge under chapter 115.
B. Application of Law of the Case
(This does not leave persons such as petitioners without a remedy. When a citizen has timely filed a challenge to a ballot title under chapter 116, the fact that there was insufficient time to determine whether the" ballot language was fair and sufficient prior to the six week deadline for changing ballot language simply makes moot the attempt to change the ballot language prior to the election. But it does not render moot the argument that the ballot language is unfair or insufficient. In other words, it affects only the remedy. The determination of the sufficiency of the ballot title can' continue during the six week period and thereafter. If the. court determines that the language used in the ballot title was,unfair or insufficient, and the ballot proposition passes, then the election result must be invalidated.,
This is the same remedy that the principal opinion applies under chapter 115. But it does so by unnecessary broadening of the meaning of “irregularity” in chapter *215115 and then incorporating chapter 116 into chapter 115 when there is no reason or statutory authority to do so. 'The matter can simply be resolved by continuing to decide the ballot title sufficiency arid fairness issue even after 'the passage of the six-week deadline. To the extent that Dotson I dicta says' otherwise, I would disavow it.
This would not leave these petitioners without a remedy here, even though this Court already dismissed their prior action rather than simply continuing to consider its challenge to the ballot title under chapter 116. Rather, I would apply law of the case principles to state that, in reliance on this Court’s dismissal of their prior action and invitation to these petitioners to instead file an election contest, this case may be considered on its merits as if brought under chapter 116 and would reach the merits.
For the reasons stated in part I of my separate opinion, I find that the petitioners’ challenge to the ballot title is without merit because the changes that are not included in the ballot title can be narrowly interpreted so as not to change the law governing the right to bear arms. So as not to invalidate the people’s adoption of the amendment, I would so interpret the amendment.
Richard B. Teitelman, Judge, dissenting in part and concurring in part
I respectfully dissent from the principal opinion to the extent it holds that the summary statement of the ballot title fairly and sufficiently informed Missouri voters of the legal and probable effects of SJR 36. The principal opinion reaches this conclusion even though the summary omits any reference' to any of the specific, substantive changes to the state constitutional right to keep and bear arms. By omitting the substance of SJR 36, the summary amounted to little more than an electoral sleight of hand. As a matter of law, Missouri voters deserve better.
A summary statement must “state the consequences of the initiative without bias, prejudice, deception, or favoritism.” Brown v. Carnahan, 370 S.W.3d 637, 654 (Mo. banc 2012). While- the summary must accurately and fairly reflect the “legal and probable effects”- of the initiative, it need not include every detail. Id. at 654. Requiring an accurate and fair summary serves the dual purposes of (1) promoting “an informed understanding by the people of the probable effects of the proposed amendment” and (2) preventing special interests from “imposing (their] will upon the people without their full realization of the effects of the amendment.” Id. at 654, quoting Buchanan v. Kirkpatrick, 615 S.W.2d 6, 11-12 (Mo. banc 1981). If the voters are to have an “informed understanding” and the ability to cast their vote with “full realization of the effects of the amendment,” the summary must include some reference to the substantive, consequential provisions in the proposed constitutional amendment.
The surnmary in this case posed to Missouri voters the following question:-
Shall the Missouri Constitution be améhdéd to include a' declaration that the right to keep and bear arms is a [sic] unalienable right and that the state government is obligated to uphold that right?
A reasonable' voter reviewing this ballot title would conclude that a “yes” vote would amend the Missouri Constitution to include declarations that: (1), the right to keep and bear arms is unalienable, and (2) the state government is obligated to uphold that right.
What may not be immediately apparent, however, is that neither of these declara*216tions creates any practically important substantive change to the state constitutional light to keep and bear arms. The declaration that the right to bear arms is “unalienable” is repetitive of the already existing language in article I, section 23 providing that the right to keep and bear arms “shall not be questioned.” Including this declaration has no discernible legal or practical effect on the right to keep and bear arms. Further, informing voters that the proposed amendment includes a declaration that the state government is “obligated to uphold” the right to keep and bear arms as amended simply begs the question of how the right to keep arid bear arms is being amended.' The fact that this declaration is essentially content-free is further illustrated by the fact that this declaration is nothing more than an express statement of the corollary to every individual constitutional’right; that is, the government must not violate individual rights and is instituted in part as a vehicle to uphold those rights. See Mo Const., art. I, sec. 2.1
If the constitutional- changes proposed by SJR 36 were indeed as limited and inconsequential as indicated by the summary, then the summary would fairly apprise .voters of .the legal and probable consequences of their vote. The problem is that a cursory review of SJR 36, the sole purpose of which is to amend the .constitutional rights of every citizen of this State, reveals sweeping substantive changes that are as obvious as they were absent from the summary statement.
1. Strict Scrutiny
SJR 36 proposed to amend article I, section 23 by providing expressly that any restriction on the rights protected by article I, section 23 shall be subject to “strict scrutiny.” . The phrase “strict scrutiny” has a long-established, precise meaning in constitutional law. Strict scrutiny means that any governmental regulation of a fundamental right must be narrowly tailored to meet a compelling state interest. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); State v. Young, 362 S.W.3d 386, 397 (Mo. banc 2012). Here, the unmistakable plain language meaning of the term “strict scrutiny” is that, for the first time in Missouri history, any attempt to'regulate guns, ammunition or accessories is presumptively invalid and will be declared unconstitutional unless it is narrowly tailored to serve a compelling government interest. See Ocello v. Koster, 354 S.W.3d 187, 200 (Mo. banc 2011) (citing Pleasant Grove City v. Summum, 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009)) (when strict scrutiny applies, legislation is presumptively invalid). Instead of crafting pages of justifications for concluding that strict scrutiny does not mean strict scrutiny, I would simply hold fast to the basic principle that “the constitution means what it says” even if that result is inconvenient or controversial. See State ex rel. City of Ellisville v. St. Louis County Bd. of Election Com’rs 877 S.W.2d 620, 623 (Mo. banc 1994) (citing Gramex Corporation v. Von Romer, 603 S.W.2d 521, 526 (Mo, banc 1980)).
*217Despite the fact that SJR 36 proposed to amend the Missouri Constitution to include the precise and unambiguous term “strict scrutiny,” the principal opinion holds that voters did not need to be informed of this change to their constitution because the amendment did not change- Missouri law and, instead, simply updated article I, section 23 to be consistent with federal law. If the effect of SJR 36 is simply to update the Missouri Constitution to be consistent with Second Amendment,-then SJR 36 is superfluous because, as a matter of law, the state constitutional right to bear arms has to be consistent with the Second Amendment. To save SJR 36, the principal opinion reduces it to the status of a substantively meaningless, wholly unnecessary and purely symbolic editorial exercise. If SJR 36 is simply an update and, therefore, has no practical, or legal effect, then the summary statement is deficient not because it failed to apprise voters of the substance of SJR 36 but because it affirmatively misled Missouri voters into believing they were voting on a substantive constitutional amendment aimed at strengthening the state constitutional right to keep and bear arms.
The plain language of SJR 36 demonstrates that it is more than a meaningless and unnecessary update. The principal opinion first asserts that there is no settled analysis under federal law or Missouri law defining a particular level of judicial scrutiny regarding firearms regulations. That is true. As the principal opinion notes, neither District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), nor McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), defined a particular level of scrutiny and both cases reaffirmed the legislative prerogative to regulate firearms. Similarly, there is no settled analysis in Missouri regarding the applicable standard of review of firearms regulations. The plain language of, SJR 36 resolved that ■ambiguity by expressly requiring that courts are required to apply “strict scrutiny” to any regulation of the right to keep and bear arms. ■ The plain language of SJR 36 means that “historically accepted” regulatory authority cited by the principal opinion is just that — history, unless, as the principal opinion reasons, specifically amending the constitution to require strict scrutiny actually amends nothing and has no “legal or probable” effect.
The principal opinion further downplays the significance of amending the constitution to require strict scrutiny by asserting that this new provision does not change the law affecting the right to bear arms and, instead, simply established an undefined “broader guideline” for judicial review of firearms regulations. This rationale has at least two fatal flaws.
First, as established above, the term “strict scrutiny” means exactly what it says. The requirement that courts invalidate firearms regulations that are not narrowly tailored to compelling state interests directly affects the right to keep and bear arms because it is an essential component of the very definition of the scope of the 'right. From a practical standpoint, the rights enjoyed by Missouri gun owners are defined in large part by the constitutional limitations on the state’s regulatory efforts as decided by this Court pursuant to this Court’s exclusive jurisdiction to determine the validity of state statutes. 'See Mo. Const., art. V, sec. 3. There is no doubt that one of the “legal and probable effects” of the new constitutional requirement of strict scrutiny is that efforts to regulate guns, ammunition and accessories are more-likely to be.declared unconstitutional than. before. This . directly affects the right to keep and bear arms, and voters should have been informed of this change to their state constitution.
*218Second, eveñ if the principal opinion is correct'that.the term “strict scrutiny” does not mean strict scrutiny, an underlying premise of the principal opinion is the recognition that SJR 36 establishes a new and undefined “broader guideline” for judicial review of firearms regulation. By recognizing that SJR 36 establishes a new broader guideline for judicial review of firearms regulations, the principal opinion is acknowledging that SJR 36 requires that firearms regulations must be subjected to some level, of judicial scrutiny that is different from what was required, prior to the. amendment. By acknowledging a change in'the level of scrutiny, the principal opinion is, for the reasons noted above, implicitly acknowledging that the requirement of “strict scrutiny” will have a direct efféct on Missourians’ right to keep and bear arms.
2. Concealed Weapdns
Even more striking than the new requirement of strict scrutiny, SJR 36 eliminated the century-old constitutional provision stating that the right to keep and bear arms does “not justify the wearing of concealed weapons.” By deleting the only express textual limitation on the individual right to keep and bear arms, the obvious legal and probable effect of SJR 36 is that, at the very least, it is now an open question as to whether Missouri citizens have a state constitutional right to wear concealed weapons. Once again, the summary statement failed to inform voters of this change.
• The principal opinion and Judge Stith’s separate opinion attempt to avoid this conclusion by relying on Brooks v. State, 128 S.W.3d 844, 847 (Mo. banc 2004). .Both opinions assert that Brooks held that the clause in the former version of article I, section 23, providing that the right to bear arms “shall not justify the wearing of concealed weapons,” neither conferred nor removed a right to carry concealed weapons and, instead, simply clarified that article I, section 23 was not intended to affect the legislature’s authority to regulate the carrying of concealed weapons. Both opinions then reason that, because SJR 36 deleted the concealed weapons clause, the amended version of article I, section 23 likewise neither confers nor takes away any right to carry concealed weapons. Consequently} both opinions conclude that the specific deletion of the concealed weapons clause had absolutely no effect on the legislature’s power to regulate concealed weapons. :
The issue in Brooks was whether the concealed weapons statute was unconstitutional based on the now-deleted clause providing that the right to keep and bear arms “shall not justify the wearing of concealed weapons.” This Court held that the concealed weapons statute was not unconstitutional because:.
There is no constitutional prohibition against the wearing of concealed weapons; there is only a prohibition against invoking the right to keep and bear arms to justify the wearing of concealed weapons. Consequently, the General Assembly, which has plenary power to enact legislation on any subject in the absence of a constitutional prohibition, Board of Educ. of City of St. Louis v. City of St. Louis, 879 S.W.2d 530, 533 (Mo. banc 1994), has the final say in the use and regulation of concealed weapons. (Emphasis added).
Brooks, 128 S.W.3d at 847.
Brooks reasoned that the clause providing that the right to bear arms did not “justify the wearing of concealed weapons” meant “simply that the constitutional right does not extend to the carrying of concealed weapons, not that citizens are prohibited from doing so, or that the General Assembly is prohibited from enacting stat*219utes allowing or disallowing the practice.” Brooks, 128 S.W.3d at 847. The legal effect of the now-deleted concealed weapons clause amounted to a “prohibition against invoking the right to keep and bear arms to justify;, the wearing of concealed weapons.” Id. In other words, an individual could not justify wearing concealed weapons by invoking his or her right to keep and bear arms. “Consequently,” the General Assembly retained its plenary regulatory power with respect to concealed weapons. Id.
The flaw in the principal opinion’s analysis is that SJR 36 specifically deleted the clause providing “this shall not justify the wearing of concealed weapons” and, therefore, specifically deleted the only textual “prohibition against invoking the right to keep and bear arms to justify the wearing of concealed weapons.” See Brooks, 128 S.W.3d at 847. Following the rationale of Brooks demonstrates that the specific deletion of this prohibition means that article 1, section 23 no longer bars Missourians from invoking the right to keep and bear arms to justify their choice to wear concealed weapons. Put simply, Missourians can now invoke the right to keep and bear arms to justify the wearing of concealed weapons. While the exact parameters of this right remain unresolved, this expansion of individual liberty necessarily restricts the permissible range of the General Assembly’s' regulatory authority with respect to concealed weapons.
Finally, the. principal opinion attempts to avoid this conclusion by reasoning that the deletion of this 'century-old limitation on the right to keep and' bear arms has no substantive effect because the “legislature continues to have the authority to regulate concealed weapons.” The fact that the legislature continues to have the authority to regulate concealed weapons is irrelevant to the issue of whether deleting the concealed weapons limitation has constitutional significance. Every constitutional right, even the foundational and jealously protected constitutional rights to speech and assembly, religion and property, are ■ all subject to varying degrees of legislative regulation. Therefore, the fact that the legislature retains regulatory > authority over concealed weapons is simply an observation of the obvious. Equally obvious, but conveniently omitted from the summary statement, is the fact, that, by specifically deleting the concealed weapons limitation, SJR 36 substantively amended the state constitutional right to keep and bear arms by allowing Missourians to invoke their right to keep and bear arms to justify the wearing of concealed weapons.
3. Felons and Firearms
SJR 36 also expressly amended the article I, section 23 to provide that “[njothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons.... ” (Emphasis added). By expressly reaffirming regulatory authority with respect to convicted violent felons while conspicuously declining to reaffirm regulatory authority with respect to convicted nonviolent felons, the obvious implication is that, for the first time in state histoiy, -article I, section 23 places convicted nonviolent felons on the same plane as lifelong law-abiding citizens when it comes to regulating the right to keep and bear arms. The legal and probable effect of this language is that a felon who is deemed nonviolent, a drug trafficker, for instance, now has the same individual state constitutional right to keep and bear arms as any other lifelong law-abiding citizen.2 In fact, this legal and proba*220ble effect is already evident, as'there have been several recent instances in which circuit judges have dismissed a felon-in-possession-of-a-firearm charge on grounds that the statute is unconstitutional when applied to nonviolent felons. The summary statement did not in any way inform Missouri voters of this specific, substantive amendment to their state constitutional right to keep and bear arms;
4. Ammunition and Accessories
SJR 36 provided for the first time in state history that every Missouri citizen would enjoy an express state constitutional right to “ammunition and accessories typical to the normal function of such arms.... ” The principal opinion concludes that Missouri voters did not need to be informed of this change to their constitution because the dictionary definition of the word “arms” is a “means of offense or defense: WEAPON.” According to the principal opinion,. this definition of the word “arms” means that the preexisting right to bear arms “could” have already included ammunition and firearms accessories. Aside from the fact that this definition refers to a “weapon” and not to ammunition or accessories for a weapon, the fact remains that SJR 36 specifically and unequivocally provides an express constitutional'right to ammunition and firearms accessories. If the principal opinion is correct and the Missouri Constitution “could” have already included the right to ammunition and accessories, then the issue of an individual right to ammunition and accessories was previously an open question. SJR 36, however, definitively answered that question by amending the Missouri Constitution to include an express individual constitutional right to ammunition and accessories. The summary statement failed to inform voters of this substantive constitutional change in any way.
The inescapable logic of the principal opinion is that although SJR.36 purported to amend the state constitutional right to *221keep and bear arms by expressly adding new rights and specifically deleting longstanding. limitations on that right, SJR 36 is a constitutional amendment that, for all practical purposes, amended nothing. Rather than saving SJR 36 by holding that it was largely meaningless, the sim: pie and accurate resolution of this case requires only that this Court recognize that the summary statement failed to advise Missouri voters of a single one of the substantive changes proposed in the plain language of SJR 36. The total failure of the summary statement to include any discernible reference to a single one of the several substantive changes to article I, section 23 cannot be squared with the requirement that summary statements provide voters with an “informed understanding” and “full realization of the effects of the amendment.” See Brown, 370 S.W.3d at 654. I would hold that the summary statement was so deficient that it constituted an election irregularity under chaptér 115; RSMo.
. Cf. id. at 533-34 (Fischer, X, concurring) (recognizing, before McDonald was decided, that the right to bear arms was a fundamental right that applied to the states based on the incorporation doctrine).
. Not only did SJR 36 seek to protect the right to bear arms from potential erosion of the Second Amendment, it prevented Missouri courts from giving less effect to article I, section 23 than the Second Amendment. When SJR 36 was enacted, this Court had not issued an opinion declaring whether article I, section 23 of the Missouri Constitution would be interpreted in lockstep with Heller and McDonald. See Richard, 298 S.W.3d at 531-33. Although states must abide by the Supreme Court of &e United States' interpretations of federal law, see U.S. Const. Art. VI, cl. 2, Missouri courts have the final say on how the Missouri Constitution is interpreted. .
As the senator who sponsored SJR 36 and Missourians for the 2nd Amendment note in their brief to this Court (both being interve-nors in this case), “[P]rior to the'passage of the ballot meásure this Court could conceivably have held' the Missouri right to keep and bear arms to be a lesser right to the federal *202right explicated in Heller and McDonald (although it would certainly be an adventurous . and unlikely speculation to predict that result).” , Br. of Intervenors Kurt Schaefer and Missourians Protecting the 2nd Amendment, at ’"14. Although most cases would present the federal question because litigants have incentive to raise McDonald, individual rights can be waived in a particular case. See, e.g., Feldhaus v. State, 311 S.W.3d 802, 804-05 (Mo. banc 2010) (due process). An interpretation of the Missouri Constitution giving less . effect to the right to bear arms than Heller and McDonald is exactly what SJR 36 sought to prevent.
. The proponents of SJR 36 (the sponsoring senator, Missourians Protecting ■ the 2nd Amendment, and three other legislators) take the position in this Court that removing the concealed weapon exception from article I, section 23 did not affect the legislature’s authority to regulate concealed weapons.
Br. of Intervenors Kurt Schaefer and Missourians Protecting the 2nd Amendment, at *18-19: “There is no basis for this Court to hold that the authority of the legislature to regulate concealed weapons required or depended on an express enabling provision in the Missouri constitution.... There is nothing in the history of the right to keep and bear arms, the •decisions of the [Siipreme Court of the United States], or Missouri case -law that in any way suggests that the authority of the legislature to regulate concealed weapons derives from, or in any' way depends upon, any particular phrase in the state constitution. Now that the ballot measure has passed, Defendant presumes that this Court will follow every other court in the land in holding that the right to keep and bear arms does not prevent the legislature from regulating concealed weapons,”
Br. of Intervenors Tom Dempsey, Timothy Jones, and Ron Richard, at *32-33 (citations omitted): “The implication [of plaintiffs’ argument] is that the legislature has no authority to regulate concealed weapons absent an enabling phrase in the constitution. This is untrue. The right to keep and bear arms includes ‘certain well-recognized exceptions.’ ... Plaintiffs offer no support for their speculation that the legislature cannot regulate concealed weapons absent an express grant of authority in the Missouri constitution. Inter-venors presume that now that the Amendment has passed, this Court would follow every other court in holding that the right to keep and bear arms does not prevent the legislature from regulating concealed weapons. Not only is the repeal of this language a mere detail, but a probable effect of such repeal is not a change to Missouri’s conceal carry laws.”
. While this Court' presumes constitutional language is not meaningless, Buechner v. Bond, 650 S.W.2d 611, 613 (Mo. banc 1983), a declaration of existing law is not a meaningless act. Although it is this Court’s province and duty to say what the law is, see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), the People of the State of Missouri are ultimately sovereign concerning matters of state law, see Mo. Const, art. I,.§ 1.
. "The nuances of how strict scrutiny applies depending on the right involved demonstrates that SJR 36 did not change the law affecting the right to bear arms ...” Op.’ at 197.
. All statutory references are to RSMo 2000 unless otherwise noted.
. Section 116.190.1 states:
1. Any citizen who wishes to challenge the official ballot title or the fiscal note prepared for a- proposed1 constitutional amendment submitted by the general assembly, by initiative petition, or by constitutional convention, or for a statutory initiative or referendum measure, may bring an action in the circuit court of Cole County. The action must be brought within ten days after the official ballot title is certified by the secretary of state in accordance with the provisions of this chapter.
(Emphasis added.)
. In District of Columbia v. Heller, 554 U.S. 570, 627, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the United States Supreme Court said, "We also recognize another important limita- • tion on the right to keep and carry arms. [United States v.] Miller said, as we have explained, that the sprts of weapons protected were those ‘in common use at the time.’ 30 [307] U.S. [174], 59 S.Ct. 816 [83 L.Ed. 1206 (1939) ]. We think that limitation is fairly supported by -the historical - tradition of prohibiting the carrying'of 'dangerous and unusual weapons.’ ”
: But, as the dissenting opinion of ■ Justice Breyer in Heller notes, the Heller majority "implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales — whose constitutionality under a strict scrutiny standard would be far from clear.” 554 U.S. at 688, 128 S.Ct. 2783 (Breyer, J., dissenting). In *209other words, by approving such traditional restrictions without subjecting them to an analysis under strict scrutiny, the majority implicitly rejected the application of strict scrutiny to such traditional regulations.
. Moreover, to hold otherwise would require this Court to rethink its holding that the failure to mention regulation of the possession of concealed weapons, or the possession of weapons by nonviolent felons, was not a substantial change that should have been mentioned in the ballot summary, for while there might be a compelling reason for such regulations, it is a far closer question whether there was no less-restrictive alternative. Would courts have to get into the nitty-gritty of whether it would meet any compelling, state interest in the safety of its citizens to limit civilians’ possession of nuclear or chemical weapon? But would the same apply to bazookas?
. See, e.g., Heller, 554 U.S. at 628-29, 128 S.Ct. 2783 (declining to adopt any particular level of scrutiny)'.
. Article I, section 2 provides:
That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; ,that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.
. Judge Stith’s separate opinion asserts that the foregoing rationale is incorrect in "sug*220gesting that the failure of article I, section 23, as amended, to mention the right to regulate non-violent felons means that the amendment removed from the legislature its traditional authority to regulate the possession of weapons by all felons or those with mental conditions that make them a danger to themselves or others,” First, nothing in this rationale suggests article I, section 23 imposes new limits on regulatory authority regarding the . gun rights of violent felons or dangerous, mentally ill individuals. The plain language of the amended version of article I, section 23 provides otherwise. Second, by framing the issue as "the failure of article, I section 23 ... to mention the right to regulate nonviolent felons,” the separate opinion assumes that the amended version of article I, section 23 retains the ' General Assembly's traditional regulatory authority over the possession of firearms by all felons but simply forgot to mention it. If the Missouri Constitution means what it says, then the most reasonable interpretation of the specific inclusion of new language expressly retaining plenary regulatory authority over "violent” felons only is that "nonviolent” felons are no longer subject to the same level of regulatory oversight as violent felons. Third, the fact that the United States Supreme Court has reaffirmed regulatory authority over firearms has nothing to do with the actual language in the amended version of article I, section 23 and overlooks well-established precedent holding that the Missouri Constitution can extend greater constitutional protections than those provided in the United States Constitution. If .the amendments in SJR 36 were intended to simply update the Missouri Constitution to be consistent with the United States Supreme Court's interpretation of the Second Amendment, SJR 36 could have simply provided that "article I, section 23 shall be construed in the same manner as the Second Amendment to the United States Constitution.” Instead, the plain language of SJR 36 purports to extend greater constitutional protections to Missourians than those required by the Second Amendment' by either Heller or McDonald. That is precisely what the plain language of the SJR 36 does, and that is precisely what the ballot summary failed to include. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284084/ | ORDER
PER CURIAM:
Charles Burgett appeals the judgment following a bench trial in favor of Security. Storage Properties (SSP) on his claim for conversion. He further appeals the summary judgment in favor of SSP and Kansas City Police Officer Conrad Stum-penhaus on his claims for malicious prosecution, slander and libel, assault and battery, and false imprisonment. Because a published opinion would have no prece-dential ' value, a memorandum has been provided to the partiés.
The judgment is affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284085/ | ORDER
PER CURIAM
The father, P.L.L., challenges the judgment of the Circuit Court of Madison County terminating his parental rights to the child, R.A.L., who was nine years old at the time of trial.1 We have , reviewed the parties’ briefs and the record on appeal and find no error.
An opinion would have no precedential value. We have provided the parties with a memorandum, for their information only, setting forth the reasons for this decision.
We affirm the trial court’s judgment. Rule 84.16(b)(1).
. The mother did not appear for trial. The trial court terminated her parental rights to the child, and the mother is not a party to this appeal. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284086/ | ORDER
PER CURIAM
Jason A. Parrent (Movant) appeals from the motion court’s Findings of Fact and Conclusions of Law on Movant’s Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing denying Movant’s Rule 29.15 claims for post-conviction relief. 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 appeal's. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential or precedential purpose. We have, however, provided a memorandum opinion for the use of the .parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284087/ | ORDER
PER CURIAM.'
Lawrence Madison (“Movant”) appeals from the judgment denying his Rule 29.15 motion without-an evidentiary hearing.
We have reviewed the briefs of the parties and the record on appeal- and find the motion court did not.clearly err in denying Movant’s motion for post-conviction relief. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, *271setting 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/5284088/ | ORDER
PER CURIAM.
David Lee Martin appeals the judgment entered upon a jury verdict convicting him of six counts of first-degree child molestation, two counts of victim tampering, and three counts of third-degree assault. -.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/5284091/ | ORDER
PER CURIAM.
Scott Williams, Jr. 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 conclude that the motion court’s judgment was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b) (2015). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284092/ | ORDER
PER CURIAM
Virgil Anthony Stallone (“Movant”) appeals from the motion court’s judgment, following an evidentiary hearing, denying his amended motion for post-conviction relief pursuant to Rule 29.15. Movant was found guilty, after a jury trial, of first-degree statutory sodomy, an unclassified felony in violation of Section 566.062 (RSMo.Cum.Supp.2009); first-degree child molestation, a class' B felony In violation of Section 566.067 (RSMo.Cum.Supp.2009); first-degree sexual misconduct, a class A misdemeanor' in violation of Section 566.090 (RSMo.Cum.Supp.2008); first-degree sexual misconduct, a class A misdemeanor violating Section 566.090 (RSMo. Cum.Supp.1995); and second-degree child molestation, a class A misdemeanor in violation of Section 566.068 (RSMo.2000). Movant was sentenced to concurrent terms of twenty-five years’ imprisonment in the Missouri Department of Corrections, twenty-five years’ imprisonment, fifteen years’ imprisonment, and fifteen years’ imprisonment. Additionally, the court sentenced Movant to concurrent terms of one years’ imprisonment in the St. Louis County Department of Justice Services’, custody, gave him credit for one years’ imprisonment and discharged him on Counts V, VI, and VIII. Movant’s convictions and sentences were affirmed by this Court in State v. *280Virgil A. Stallone, 376 S.W.3d 705 (Mo.App.E.D.2012). We affirm the motion court’s judgment denying Movant’s post-conviction relief.
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/6125603/ | J udgment affirmed with costs. Opinion by
Talcott, J.;
Mullin, P. J., not sitting. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2441211/ | 970 N.E.2d 133 (2008)
385 Ill. App. 3d 1141
361 Ill. Dec. 133
PEOPLE
v.
JOHNSON.
No. 2-07-1266.
Appellate Court of Illinois, Second District.
December 23, 2008.
Affirmed. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284093/ | ORDER
PER CURIAM
• Curtis Selvey appeals the judgment of the Circuit Court of St. Charles County denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We ■ affirm the motion 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/5284094/ | *281ORDER
Per Curiam:
Mr. Phillip D. Martin appeals the denial of his Rule 24.035 post-conviction relief motion. He claims' that he was forced to plead guilty to the charged offenses because defense counsel failed to prepare for trial.
For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284095/ | Order
Per Curiam:
Alicia Dailey appeals the judgment entered against her, in favor of the Fulton ' Housing Authority (FHA), on its claims for unlawful detainer and breach of contract, for which the court awarded $1,256.64 in damages. ■ Dailey argues that the court erred in “sustaining the Fulton Housing Authority’s decision to evict” her because the FHA failed to follow the proper procedures under the. lease agreement and H-1JD regulations. Because the court’s judgment was- supported by substantial evidence, was not against the weight of the evidence, and it neither misstated nor misapplied the law, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284096/ | ORDER
. Per curiam: ■
Appellant appeals from a judgment entered in the Circuit Court of Henry County granting a full order of protection *297against him. Because sufficient evidence supports the entry of the full order of protection, we affirm. A 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/5284097/ | ORDER
PER CURIAM:
Tyler Toomay appeals from the Circuit Court of Jackson County’s denial, of his Rule 24.035 motion for post-conviction relief following an evidentiary hearing., After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. No jurisprudential purpose would be served by a formal, published opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.
Judgment affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284098/ | MEMORANDUM OPINION
MELISSA GOODWIN, Justice.
These cross-appeals concern the constitutionality of cosmetology statutes and administrative rules as they apply to eyebrow threading. See Tex. Oce.Code Ann. §§ 1601.002, 1601.251, 1602.002, 1602.251, 1602.403 (West 2004 & Supp.2011); 16 Téx. Admin. Code §§ 83.1-83.120 (2011) (Tex. Dep’t of Licensing and Regulation, Cosmetologists). Appellants Ashish Patel, Anverali Satani, Nazira Momin, Tahereh Rokhti, Minaz Chamadia, and Vijay Lakshmi Yogi, who are in the business of eyebrow threading, urge that eyebrow threading regulations unreasonably interfere with their constitutional right to economic liberty under article I, section 19 of the Texas Constitution. See id.; Tex. Const, art. I, § 19,1
*372Facing competing motions for summary judgment, the district court granted summary judgment in favor- of appellees the Texas Department of Licensing and Regulation (the Department), the Department’s executive director, the Texas Commission on Licensing and Regulation (the Commission), and the Commission’s members. On appeal, appellants contend that the district court erred in its summary judgment rulings and that it abused its discretion by admitting portions of an affidavit. The state defendants cross appeal, challenging the denial of their plea to the jurisdiction and motion to strike expert testimony. For the reasons that follow, we affirm the district court’s judgment.
BACKGROUND
Eyebrow threading is a facial hair removal technique using a single strand of cotton thread.2 Appellants Patel and Sata-ni have ownership interests in eyebrow threading businesses, and the remaining appellants are individuals who are or were employed as eyebrow threaders. None of the appellants has a state cosmetology license.
The Department is the state agency charged with regulating cosmetology. Tex. Occ.Code Ann. §§ 51.051, 1602.001-.002, 1603.001-.002 (West 2004 & Supp. 2011). The Commission governs the Department and is statutorily authorized to appoint the Department’s executive director, oversee the director’s administration, formulate policy, and adopt administrative rules. Id, §§ 51.051, 51.101, 51.201, 1603.101 (West 2004 & Supp.2011). The Department’s executive director is responsible for administering the Department’s programs. Id. § 51.103(a)(2) (West 2004).
The Department initiated administrative actions against appellants Momin, Rokhti, and Yogi, seeking to impose penalties against them for practicing eyebrow threading without a license.3 See id. §§ 51.301-.302 (West 2004) (Executive Director or Commission authorized to impose administrative, penalty per alleged violation per day), § 1602.251(a) (West Supp. 2011) (“A person may not perform or attempt to perform a practice of cosmetology unless the person holds a license or certificate to perform that practice.”). The Department also investigated complaints against an eyebrow threading business owned by Satani concerning the employment of unlicensed eyebrow threaders, but no notice of alleged violation has been issued against the business.4 See id. § 1602.403 (West Supp.2011) (person holding beauty shop or speciality license may not employ unlicensed operator or specialist).
■Appellants thereafter brought this suit in December 2009, seeking declaratory and injunctive relief pursuant to the Uniform *373Declaratory Judgements Act (UDJA). See Tex. Civ. Prac. & Rem.Codé Ann. §§ 37.001-011 (West 2008). In their pleadings, appellants alleged that “[without any changes in state law or administrative rules, Defendants have abruptly taken the position that threading is the practice of- cosmetology, requiring government-issued licenses for both threading business owners and their employees.”
Appellants, however, did not seek a declaration that the practice of eyebrow threading was outside the statutory definition of cosmetology.. See Tex. Occ.Code Aim. § 1602.002 (West Supp.2011) (definition of cosmetology).5 Rather, they contended that the challenged cosmetology statutes and rules were unreasonable as applied to eyebrow threading and violated their constitutional right “to earn an honest living in the occupation of one’s choice free from unreasonable governmental interference,” that the state defendants do not have an “important, legitimate, or rational reason for applying Texas’ cosmetology laws and rules to the commercial practice of eyebrow threading,” that “[t]he state’s, police power does not extend to the regulation of harmless commercial practices such as eyebrow threading,” and. that the state defendants are “presently and unconstitutionally requiring or attempting to require Plaintiffs to obtain licenses that are not reasonably related to their chosen occupation.”
As to their pleaded claims for relief, appellants sought declaratory judgment that the state defendants “violate the privileges and immunities guarantee of the Texas Constitution by unreasonably interfering with' Plaintiffs’ right to pursue eyebrow threading” and “violate the due process guarantee of the Texas- Constitution by unreasonably interfering with Plaintiffs’ right to pursue eyebrow threading.” They also sought “a permanent injunction barring Defendants from enforcing Texas’ cosmetology laws — specifically Sections 1601.002, 1601.251, 1602.002, 1602.251, and 1602.403 of the Texas Occupations Code and Title 16, Sections ,83.1-through 83.120 of the Texas Administrative Code — -against Plaintiffs based on the commercial-practice of eyebrow threading.”6 ,
Appellants filed a motion for summary judgment in October 2010. ■ Appellants sought summary judgment on the ground that the state defendants’ -application of cosmetology laws and rules to the commercial practice of eyebrow threading was unconstitutional “because it places senseless burdens on eyebrow threaders,and threading businesses without any .actual benefit to public.health and safety.” They urged that the state defendants could not “constitutionally regulate the commercial practice of eyebrow threading.as conventional cos*374metology unless they can establish a real and substantial relationship between their regulations and the public’s health and safety” and that the state defendants could not meet this standard. Their arguments included that “state cosmetology licensing [was] not necessary for safe eyebrow threading,” that the state defendants “credentialing program [was] doing nothing to promote public health or competent threading in Texas,” and that the statutes and rules were “grossly out of proportion to any legitimate health and safety objections the government may have.”
Appellants attached evidence to support their motion, including affidavits of appellants, discovery responses by the state defendants, deposition excerpts, and an affidavit by their expert with attachments. Appellants presented evidence to support their positions that eyebrow threading is safe, that the beauty schools do not teach eyebrow - threading, and that eyebrow threading is not tested as a condition of licensure. The evidence included costs to attend a state-licensed beauty school and to take the examinations and the required number of hours of instruction and curriculum. See- . Tex. Oec.Code Ann. §§ 1602.251, .254, .257 (West Supp.2011) (license and certificate requirements 'for individuals); 16 Tex. Admin. Code §§ '83.20-.21 (individual license and examination requirements).
Around the same time, the state defendants filed a plea to the jurisdiction and motion for summary judgment,-as well as a motion to strike appellants’ expert "testimony. In their plea and motion for summary judgment, the state defendants challenged appellants’ standing and contended that appellants’ claims were barred bysover-eign immunity. As to the merits of appellants’ claims, the state defendants argued, among other grounds, that the uncontested facts showed that appellants failed as a matter of law to articulate a privileges and immunities violation different from their substantive due process claim,or to show that Texas cosmetology laws and implementing rules deprived appellants of-any substantive due process right or interest protected by article I, section 19 of the Texas Constitution. See Tex. Const, art. I, § 19. The State defendants attached evidence to support their plea and motion; including discovery responses by appellants and'affidavits and deposition excerpts with attachments.
After a hearing, the district court denied the state defendants’ plea to the jurisdiction and motion’ to strike expert testimony but granted their motion for summary judgment and denied appellants’ motion for summary judgment. The district' court thereafter signed a final judgment. These cross appeals followed.
ANALYSIS
State Defendants’ Plea to the Jurisdiction '
We begin with the threshold jurisdictional issues raised'by the state defendants on cross appeal. In their first three issues, the state defendants challenge the district court’s denial of their plea to the jurisdiction.7 They contend that appellants’ UDJA suit is barred by sovereign immunity, urging that appellants failed to allege a viable ultra vires claim against the state officials and that there is no waiver of immunity to allow such claims directly against state entities. They also raise *375standing and ripeness challenges to appellants’ claims.
A) Standard of Review
We review a plea questioning the trial court’s subject matter jurisdiction de novo. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). We focus first on the plaintiffs petition to determiiie whether the facts that were pled affirmatively demonstrate that subject matter jurisdiction exists. Id. at 226. We construe the pleadings liberally in favor of the plaintiff. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). The court’s “ultimate inquiry is whether the plaintiffs pleaded and un-ne-gated facts, taken as true and liberally construed with an eye to the pleader’s intent, would affirmatively demonstrate a claim or claims within thé trial court’s jurisdiction.” ' Brantley v. Texas Youth Comm’n, No. 03-10-00019-CV, 365 S.W.3d 89, 94 (Tex.App.-Austin 2011, no pet.) (mem. op.) (citing Miranda, 133 S.W.3d at 226; Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on Envtl. Quality, 307 S.W.3d 505, 513, 516 n. 8 (Tex.App.Austin 2010, no pet.)).
B) Sovereign Immunity
The state defendants challenge the district court’s jurisdiction to consider appellants’ UDJA claims based upon sovereign immunity. “Sovereign immunity from suit defeats a trial- court’s subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Miranda, 133 S.W.3d at 225-26 (citing Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex.1999)). To proceed in a suit against state entities and officials, a plaintiff must establish a waiver of immunity, see Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003); Jones, 8 S.W.3d. at 638, or that sovereign immunity is inapplicable. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex.2009) (sovereign immunity does not prohibit “suits to require state officials to comply with statutory or constitutional provisions”); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex.1995) (“[S]uits for equitable remedies' for violation of constitutional rights are not prohibited.”). - >.
(i) Claims against the Department and the Commission
As part-of their first issue, the state defendants urge that appellants’ claims are in substance ultra vires claims and, therefore, that there is no waiver of immunity to allow such claims directly against the Department and the Commission. See Texas Dep’t of Ins. v. Reconveyance, 306 S.W.3d 256, 258-59 (Tex.2010) (deeming allegations and requested declaration, in substance, ultra vires claims and dismissing claims against department); Heinrich, 284 S.W.3d at 372-73 (explaining that suits seeking to restrain official conduct that is ultra vires of an agency’s statutory or constitutional powers “cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity” because “ ‘acts of officials which are not lawfully authorized are not acts of the State’ ” (citation omitted)). Appellants dispute that their claims are ultra .vires claims and argue that they are properly asserted against the Department and the Commission, as well as against the Executive Director and the. Commission members.
Sovereign immunity generally does not bar suit against a governmental entity that challenges the constitutionality of a statute and seeks injunctive relief. See *376Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (holding that sovereign immunity did not bar UDJA suit against state agency that challenged statute itself and sought injunctive relief); see also Tex. Const, art. I, § 29 (“[W]e declare that everything in this ‘Bill of Rights’ is excepted out of the- general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.”); City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex.2007),(per curiam) (“ ‘Suits for injunc-tive relief may be maintained against governmental entities to remedy violations of the Texas Constitution.” (citation omitted)); City of Arlington v. Randall, 301 S.W.3d 896, 906 (Tex.App.-Fort Worth 2009, pet. denied) (“Although no implied private right' of action exists for money damages against governmental entities for violations of the Texas Constitution, a suit seeking an equitable remedy for violations of constitutional rights may be maintained against governmental entities.” (citing Bouillion, 896 S.W.2d at 147)); Texas Dep’t'of State Health Seros, v. Holmes, 294 S.W.3d '328, 336 (TexApp.-Austin 2009, pet. denied)' (“Sovereign immunity does not shield a' governmental entity from a suit for equitable relief for a violation of constitutional rights.” (citing Bouillion, 896 S.W.2d at 149)).8
Further, although the UDJA does not establish subject matter jurisdiction, see Texas Dept. of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex.2011) (stating that “the UDJA does not enlarge the trial court’s jurisdiction but is ‘merely a procedural device' for deciding cases already within a court’s jurisdiction’ ” (citation omitted)), the UDJA “expressly provides that persons may challenge ... statutes, and that governmental entities must be joined or notified.” Texas Lottery Comm’n v. First State Bank, 325 S.W.3d 628, 634 (Tex.2010) (quoting Leeper, 893 S.W.2d at 446); see also Tex. Civ. Prac. & Rem.Code Ann. §§ 37.004(a), .006.9
Among appellants’ claims in their pleadings, they challenge the constitutionality of specific cosmetology statutes themselves as applied to the practice of eyer brow threading. See Leeper, 893 S.W.2d at 446; Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 n. 16 (Tex.1995) (“as applied” challenge to statute is challenge “under which the plaintiff argues that a statute, even though generally constitutional, operates unconstitutionally as to him or her because of the plaintiffs particular circumstances”). This claim does not require an interpretation of the challenged statutes that eyebrow thread-*377mg falls outside the scope of those statutes. See Texas Dept, of Licensing and Regulation v. Roosters MGC, LLC, No. 03-09-00253-CV, 2010 Tex.App. LEXIS 4392, at *8-11, 2010 WL 2354064, at *3-4 (Tex.App.-Austin June 10, 2010, no pet.) (mem. op.) (state agency immune from claims seeking declarations regarding proper interpretation of statute and that services at issue outside scope of statute). Appellants also seek a- permanent injunction against the state defendants barring them from enforcing the challenged statutes against appellants for the commercial practice of eyebrow-,threading. Given their claim challenging specific statutes themselves and their requested injunctive relief, we conclude that the district court did not err in denying the - state defendants’ plea to the jurisdiction as to the state entities. See Texas Lottery Comm’n, 325 S.W.3d at 635; City of Elsa, 226 S,W.3d at 392.
(ii) Claims against the Executive Director and the Members of the Commission
The' state defendants also urge in their first issue that appellants failed to allege a “viable” ultra vires claim against the state officials. See Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex.2011) (citation omitted) (state actors- retain immunity from claims unless the plaintiff has “pleaded a viable claim”). The state defendants characterize the substance of appellants’ claims as ultra vires claims but-assert that appellants “failed to identify any ultra vires acts.”10 See Reconveyance, 306 S.W.3d at 258-59. Their argument focuses on the merits of appellants’ constitutional claims: whether the claims, assuming that they are ultra vires, are “viable.” See Andrade, 345 S.W.3d at 11.
Although the district court ultimately denied the state defendants’ plea to the jurisdiction, the court considered the evidence presented by both sides and determined the merits of competing motions for summary judgment at the same time it considered the state defendants’ plea. In this context, we cannot conclude that the court erred by denying the state defendants’ plea to the jurisdiction and determining the merits of appellants’ constitutional claims against the state officials by summary judgment. See Roosters MGC, LLC, 2010 Tex.App. LEXIS 4392, at *7-8, 2010 WL 2354064, at *3 (citing County of Cameron v. . Brown, 80 S.W.3d 549, 555 (Tex.2002)) (“In deciding a plea to the jurisdiction, a court may not weigh the claims’ merit beyond the extent necessary to .determine jurisdiction, but must consider only the plaintiffs’ pleadings and the evidence pertinent to the jurisdictional inquiry.”); see also Holmes, 294 S.W.3d at 335 (holding that trial court did not err in denying plea to the jurisdiction and deferring its determination of alleged constitutional violation “until the case could be more fully developed”). W¿ overrule the state defendants’ first issue on cross appeal.
C) Standing and Ripeness
In their -second and third issues, the state defendants contend that the district court erred in denying the state defendants’ plea to the jurisdiction based upon lack of standing and ripeness. See Waco Indep. Sch. Dist. v, Gibson, 22 S.W.3d 849, *378850 (Tex.2000) (standing and ripeness component parts of subject matter jurisdiction). They contend that Patel and Satani lack standing because they have no , injury traceable, to the regulation of eyebrow threading that would be redressable by a favorable ruling and that the claims of Patel, Satani, and Chamadia are not ripe. They also contend that the claims of Mo-min, Yogi, and Rokhti are subject .to the redundant remedies doctrine.
(i) Standing
“[Standing focuses on the issue of who may bring an action.” Id. at 851 (citing Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 626-27 (Tex.1996)) (emphasis in original). “The general test for standing in. Texas requires 'that there .(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.” Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993) (citation omitted). Because appellants seek only declaratory and in-junctive relief and they seek the same relief, “only one plaintiff with standing is required.” See Andrade, 345 S.W.3d at 6 (citing Barshop, 925 S.W.2d at 627).
On appeal, the state defendants do not challenge appellant Chamadia’s standing to assert appellants’ claims for injunc-tive and declaratory relief, and they did not present evidence to negate her pleaded facts supporting standing. • Further, the determination of the declarations sought here resolves appellants’ ' constitutional challenge to the regulation of eyebrow threading. See Texas' Ass’n of Bus., 852 S.W.2d at 446. Based upon the pleadings and un-negated facts taken as true, we conclude that Chamadia has established standing. Id.; see also Webb v. Voga, 316 S.W.3d 809, 812 (Tex.App.-Dallas 2010, no pet.) (“Standing is-generally a question of law determined from the pleadings.”). Because we conclude that Chamadia has standing, we need not review the standing of Patel and Satani to assert the same claims for declaratory and injunctive relief. See Andrade, 345 S.W.3d at 6.
(11) 'Ripeness
Similar to standing, ripeness “emphasizes the need for a concrete injury for a justiciable ■ claim to be presented” but it “focuses on when that action may be brought.” . Gibson, 22 S.W.3d at 851 (citation omitted) (emphasis in original). In assessing ripeness, “a court is required ‘to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’” Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex.2001) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “Hardship is shown when a statute ‘requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance.’ ” Mitz v. Texas State Bd. of Veterinary Med. Exam’rs, 278 S.W.3d 17, 26 (Tex.App.-Austin 2008, pet. dism’d) (quoting Abbott Labs., 387 U.S. at 153, 87 S.Ct.' 1507).
The state defendants contend that the claims of Patel, Satani, and Chamadia are not ripe because there have been -no enforcement actions against them and they have suffered no • injury from the challenged regulations. The pleadings and un-negated facts, however, taken as true show that Chamadia, Patel, and Satani are subject to a continuing threat of civil. and criminal liability for the practice of eyebrow threading without a license, as well as administrative penalties and sanctions. See Tex. Occ.Code Ann; §§ 51.301-302 (administrative penalty) (West 2004), 51.352-.353 (West Supp.2011) (civil penalty and administrative sanctions), 1602.554 (West 2004) (unlicensed practice of cosme*379tology criminal misdemeanor); Perry, 66 S.W.3d at 250; Mitz, 278 S.W.3d at 25-26 (holding constitutional claim ripe for review, considering “continuing threat of civil and criminal liability against the practitioners and the direct effect the Act had on their ongoing business enterprise”).
As with Chamadia’s pleadings concerning her interest in the controversy, Patel and Satani pleaded, and the un-negated facts taken as true show, that they both have interests in' eyebrow threading businesses and that the departments’ actions threaten them with “pühishing administrative fines, civil penalties, and criminal penalties.” Further, appellants challenge the constitutionality of statutes, a challenge that is “is unquestionably an issue fit for judicial review.” Mitz, 278 S.W.3d at 23 (citation omitted). Given appellants’ pleadings and the un-negated facts taken as true, Chamadia, Patel, and Satani have shown hardship without judicial consideration and that their issues- are fit for judicial review. See Perry, 66 S.W.3d at 250; Mitz, 278 S.W.3d at 26. We conclude then that their claims are ripe.
(iii) Redundant Remedies
Under the redundant remedies doctrine, when a statute provides an avenue for attacking a final agency order, a UDJA action generally will not lie to provide a redundant remedy. See Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558, 572 (Tex.App.-Austin 2003, pet. denied); Kuntz v. Khan, No. 03-10-00160-CV, 2011 Tex.App. LEXIS 446, at *11, 2011 WL 182882, at *4 (Tex.App.-Austin Jan. 21, 2011, no pet.) (mem. op.). The state defendants contend that the claims of Momin, Yogi, and Rokhti are barred by this doctrine because all of the substantive relief that appellants seek through their UDJA suit could be brought through the administrative process. See Tex. Gov’t Code Ann. § 2001.174(2)(A)-(B) (West 2008).
Although administrative actions subject to judicial .review are .pending against Mo-min, Yogi, and Rokhti, there is no administrative action pending against Chamadia, and we have concluded that she has standing to assert appellants’ claims for declaratory and injunctive relief. See Andrade, 345 S.W.3d at 6, As we concluded previously as to the standing of Patel and Sata--ni, we need not review the standing of Momin, Yogi, and Rokhti to assert the same claims asserted by Chamadia for declaratory and injunctive relief. See id. Farther, Momin, Yogi, and Rokhti remain subject to civil and criminal liability, in addition to administrative penalties and sanctions. See, e.g., Mitz, 278 S.W.3d at 26 (case ripe for judicial review although administrative proceedings pending -because “continuing threat of civil, and criminal liability” established hardship without judicial consideration); Given their continuing exposure to. civil and criminal liability and Chamadia’s standing to assert appellants’ claims, we conclude that the redundant remedies doctrine does not bar the other individual appellants’ claims. See id.
Having found standing and that the challenged claims are ripe for judicial review;, we overrule the state defendants’ second and third issues on cross appeal and turn to appellants’ issues.
Appellants’ Issues on Appeal
Appellants raise four issues challenging the district court’s summary judgment rulings. They contend in their first two issues that (i) the district'court erred because it should have applied the “real and substantial” test that governs judicial review of state economic regulations and not the federal “rational basis” test, (ii) the record does not show a substantial relationship between the , government’s eyebrow threading regulations and the public *380health and safety, and' (Iii) the regulations are unduly burdensome. Appellants contend in their third 'issue that, even if the federal “rational basis” test controls, the record does not show any rational relation^ ship between the' eyebrow-threading regulations and legitimate public safety objectives. In their final issue, they contend that the district court abused its discretion by admitting portions of an affidavit. . ,
A) Standards of Review
We review a trial court’s decision to grant or deny summary judgment de novo. Texas Mun. Power Agency v. Public Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.2007); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins: Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). To prevail on a traditional motion for summary judgment, the. movant must show that no genuine issue of material -fact exists and that the movant is entitled to judgment as -a matter of law. • Tex.R. Civ. P. 166a(c); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). We take as true all evidence favorable to the nonmov-ant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Dorsett, 164 S.W.3d at 661. When the parties file competing motions for summary judgment, and one 'is granted and one is denied, we review the record, consider all questions presented, and render the decision-, the trial court should have rendered. Id. When the trial court does not specify the grounds for its summary judgment, as is the case here, the appellate court múst affirm the summary judgment if any of the theories pré-sented to the trial court and preserved for appellate review are meritorious. Knott, 128 S.W.3d at 216.
B) Appellants’ Constitutional Challenge to Cosmetology Statutes and Rules as applied to Eyebrow Threading
In their first issue, appellants contend that the standard for reviewing their constitutional challenges brought under article I, section 19 of the Texas Constitution is the “real and substantial” test for challenges to economic regulations.11 In the context of determining whether a statute is a proper exercise of police power, this Court has stated the test as whether “the statute in question bears a real and substantial relation to the public health, safety, morals, or general welfare of the public.” Satterfield v. Crown Cork & Seal Co., 268 S.W.3d 190, 216 (Tex.App.-Austin 2008, no pet.) (emphasis in original). A statute is a proper exercise of police power if it is “appropriate and reasonably necessary to accomplish, a purpose within the scope of the police power” and it is “reasonable and not arbitrary or unjust in the manner it seeks to accomplish the goal of the statute or so unduly harsh that it is out of proportion to the end sought to be accomplished.” Id. at 215 (citation omitted).
The staté defendants counter that the proper standard is federal “rational basis” review, the standard that applies to federal due process challenges.' See Garcia, 893 S.W.2d at 525 (rational basis test discussed); see also City of San Antonio v. TPLP Office Park Prop., 218 S.W.3d 60, 65-66 (Tex.2007) (applying “rational basis” *381review to substantive due process challenge to city action and ordinance); University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995) (explaining that “due course” provision in Texas' Constitution lacks “meaningful distinction” from federal “due process”); Liberty Mut. Ins. Co. v. Texas Dep’t of Ins. 187 S.W.3d 808, 827 (Tex.App.-Austin 2006, pet. denied) (applying federal rational basis review to substantive due process challenges); Lens Express, Inc. v. Ewald, 907 S.W.2d 64, 68-69 (Tex.App.-Austin 1995, no writ) (same). “Under federal due process,' a law that does not affect fundamental rights or interests — such as the economic legislation at issue here — is valid if it merely bears a rational relationship to a legitimate state interest.” See Garcia, 893 S.W.2d at 525 (citing Williamson v. Lee Optical Co., 348 U.S. 483, 491, 75 S.Ct. 461, 99 L.Ed. 563 (1955)).12
In Garcia, the Texas Supreme Court “recognized that ‘Texas courts have not been consistent in articulating the standard of review under the due course clause.’” Id. (citation omitted). The court noted that Texas courts “have sometimes indicated that section 19 provides an identical guarantee to its federal due process counterpart” and, “[o]n other occasions, ... our Court has attempted to articulate our own independent due course standard ... which some courts have characterized as more rigorous than the federal standard,” Id.; see Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 263 & n. 5 (Tex.1994) (noting that Texas courts not consistent in articulating standard of review under due course' clause). Because appellants’ issues raise substantive due process as well as arguing that the eyebrow threading regulations are not a proper exercise of the state’s police power, we consider their arguments under both standards.
(i) Appellants’Arguments
Appellants contend that the cosmetology statutes and rules as applied to eyebrow threading do not pass the real and substantial test because they have no real or substantial connection to stated objectives such as sanitation and health and safety. They argue that the “constitutionally required real and substantial connection is lacking because the government has no evidence that eyebrow threading is dangerous and, even if it did, there is no meaningful connection between the practice of eyebrow threading and the [Department's conventional cosmetology regulations.” They also argue that the effect of the regulation is unduly .harsh in proportion to the stated objections.
■ Appellants- alternatively contend that even if the district court correctly applied the federal “rational basis” test, that it misapplied the test because “there is an irrational disconnect between 'legitimate concerns for the public’s safety and requiring eyebrow threaders to undergo several *382hundred hours of irrelevant training simply to guarantee perhaps a few dozen hours of sanitation training.” They argue that: (i) the regulations “may, in fact, undermine safety by. giving consumers a false sense of security in the ability of state-licensed cosmetologists to perform threadr ing,” and (ii) the state’s cosmetology training program has nothing to do with eyebrow threading and, therefore, that “there is no sense in requiring them to endure it.”
Appellants further argue that we must consider and weigh the evidence and that the evidence supports their position that the statutes and rules should be struck down. They point to evidence that they contend supports findings that: (i) eyebrow threading does not require conventional cosmetology training, (ii) it is “safe and requires, at most, minimal sanitation training,” (iii) Texas does not require beauty schools to teach eyebrow threading, (iv) a limited number of schools voluntarily teach threading, and (v) Texas does not test threading as a condition of licensure.13
The requirements for obtaining and then maintaining a cosmetology license include completing 1500 hours — or 750 horns for a facialist — in a licensed beauty school, passing written and- practical examinations, paying biannual fees,- and taking continuing education courses. See Tex. Occ.Code Ann. §§ 1602.254-.258 (eligibility for licenses), 1608.252-.257 (examination requirements), 1602.351 (minimum curriculum for schools), 1602.451 (West Supp. 2011) (duties of holder of beauty school license); 16 Tex. Admin. Code §§ 83.20(a) (license requirements), 83.25(e) (continuing education), 83.26(a)-(b) (renewal), 83.31(a) (term), 83.80(a)-(b) (fees), 83.120 (curriculum). ■ -
Appellants urge that the general sanitation training taught in beauty schools does not justify requiring eyebrow threaders to undergo 750 or 1500 hours of instruction and two examinations. The facial curriculum requires 40 hours out of the 750 hours required for “sanitation, safety, and first aid.” See 16 Tex. Admin. Code § 83.120. The facial curriculum additionally includes: 225 hours for' “facial treatment, cleansing, masking,- therapy,” 90 hours for “anatomy and physiology,” 75 hours for “electricity, machines, and related equipment,” 75 hours for “Makeup,” 50 hours for “orientation, rules and laws,” 50 hours for “Chemistry,” 50 hours for “care of client,” 35 hours for “management,” 25 hours for “superfluous hair removal,” 15 hours for “aroma therapy,” 10 hours for “Nutrition,” and 10 hours for “color psychology.” See id. Appellants urge that the training that the Department has imposed “comes with at least 710 hours of unnecessary instruction” and that the “threading regulations place a disproportionate burden on Appellants as compared to the public benefits (if any) of licensing eyebrow threaders as conventional cosmetologists.”
(ii) The State Defendants’ Contrary Arguments
*383On the contrary, the state defendants contend that rational basis review applies to appellants’ economic liberty .claims brought under the Texas Constitution: and' that, in any event, the challenged regulations survive under either rational basis or real and substantial review. The state defendants’ position is that the practice of eyebrow threading requires, at a minimum, a license for a facialist, and that the application of the licensing requirements for a facialist to eyebrow threading, as well as the other challenged cosmetology regulations, bears a rational relationship to the legitimate state purpose of protecting public health and safety. See Tex. Admin. Code §§ 83.10(9) (definition of facialist), 82.120(b) (facial curriculum),14 They 'also contend that there is a real and substantial connection' between the eyebrow threading regulations and the legitimate concern for public health, safety, and sanitation. They argue that Texas regulates eyebrow threading because cosmetology procedures and techniques — including eyebrow threading — performed on the public implicate the transmission of communicable diseases unless safe and sanitary practices are followed and that a primary basis for regulating cosmetology services — including eyebrow threading — is due to the risk of contamination and spread of disease inherent in providing such services to the public.
The state defendants focus on sections of the cosmetology statutes and rules that specifically address public health, safety, and sanitation concerns. See, e.g., Tex. Occ.Code Ann. §§ 1603.102 (West Supp.2011) (Commission required to “establish sanitation rules to prevent the spread of an infectious or contagious disease”), 1603.352 (West Supp.2011) (imposing sterilization requirements for certain cosmetology services), 1602.406 (West 2004) (practice of cosmetology forbidden by any licensed person who knows they are suffering ■ from infectious or contagious disease), 1603.455 (West Supp.2011) (Department authorized to issue emergency orders “to protect the public health and safety”); -see. generally 16 Tex. Admin. Code §§ 83.100-111; see , id. §§ 83.100 (health and safety definitions), 83.102 (general health and safety standards), 83.104 (health and safety standards for facial services),, 83.111 (health and safety standards related to blood and bodily fluids).
The state defendants 'also dispute appellants’ characterization of the testing and teaching of eyebrow threading by Texas beauty schools and in the textbooks. They presented conflicting evidence concerning the cost and extent that beauty schools teach and test threading and health, safety, and sanitation and the topics covered by the licensing examinations. The evidence included excerpts from textbooks, actual test questions from the licensing examinations, candidate information bulletins that advise candidates of the subjects covered on the examinations, and an affidavit by Marínela LaFleur, a program specialist in the education, and examination division from the Department. ‘ The excerpts from the .textbooks cover, among other topics, hair ■ removal including threading, disorders and diseases, sanitation, bacteria, viruses, infection control, and first aid. The subject, areas covered by the test questions and the candidate information bulletin include sanitation and safety concerns, as well as hair removal.15
*384In her affidavit, LaFleur testified concerning the facial curriculum and the topics covered on the licensing examinations in relevant part:
The facial curriculum, which requires 25 hours of instruction in superfluous hair removal, does not specify the types of hair removal that beauty schools must teach. ■ Schools may elect to teach waxing, threading or' other hair removal techniques in résponse to student demand ....
With regard to the current facialist exam in particular, 24 percent of the written exam (22 questions out of 90) directly addresses sanitation, disinfection, and safety. In addition, these matters are ’also addressed as part of the client consultation and analysis compo•nent (e.g. human physiology, anatomy, and disorders), which constitutes 12 percent (11 questions) of the exam. Hair removal, including eyebrow threading as a form of tweezing, comprises 'another 11’percent (10 questions) of the exam. A candidate’s eyebrow threading technique and hands-on compliance’with the related sanitation requirements are tested during all three phases of the practical examination — pre-service, during service, and post-service. During each of these phases, the applicant is assigned points for successfully performing eyebrow threading technique and/or adhering to all of the safety criteria that are part of each phase of a proper eyebrow tweezing.
She also listed textbooks that are currently used in beauty schools “which represent accepted Cosmetology standards.”
The state, defendants also rely upon appellants’ expert to support their position that the challenged regulations meet either test. In the report that was attached to her affidavit, appellants’ expert listed diseases that can be spread through the threading process and articles reflecting medical risks of threading and the need for sanitation to minimize the risks. She stated in part:
The sanitation risk of any form of hair removal technique, including eyebrow threading, could result in viral and superficial bacterial infections....
The complipations mentioned can occur with waxing or tweezing since the listed complications are due to the “trauma” of the procedure rather than just threading. It is the act of having the skin abraded that causes the complication of redness, swelling, itching, inflammation of the hair follicles, discoloration, and the superficial bacterial and viral infections. Thus, all forms of avulsive (pulling) like hair removal can have these complications....
Her report also listed specific forms of bacteria and viruses that are contagious and that can be spread during the threading process.
(Hi) Analysis of Appellants’ Constitutional Challenge
Because the district court granted summary judgment in favor of the state defendants, the issue on appeal is whether the state defendants established that they were entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Grant, 73 S.W.3d at 215. We, therefore, consider the evidence in the light most favorable to appellants. We also presume, however, that the challenged regulations are constitutional, and appellants, as the parties challenging the constitutionality of the regulations, bear the burden to demonstrate that the regulations fail to satisfy constitutional requirements. Satterfield, 268 S.W.3d at 201 (citing Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex.1996) and Vinson v. Burgess, 773 S.W.2d 263, 266 (Tex.1989)).
*385Appellants presented evidence that eyebrow threading is safe but whether it generally is safe is not determinative here. Appellants do not dispute that a primary purpose of the cosmetology regulations is to protect public health, safety, and sanitation. They also do not dispute that eyebrow threading is subject to regulation as a cosmetology service.16 Because the challenged regulations address an occupation and are related to public health and safety, they are squarely within the scope of the state’s police power. See Satterfield, 268 S.W.3d at 217 (regulation of occupations and professions and regulations eoncernirig public health and safety within the scope and proper exercise of police power); see also Texas State Bd. of Barber Exam’rs v. Beaumont Barber College, Inc., 454 S.W.2d 729, 731 (Tex.1970) (regulation of barber trade necessary to public health and proper exercise of police power).
The Texas Supreme Court has explained the courts’ role when reviewing statutes that are within the scope of the police power:
A large discretion is necessarily vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. If there is room for a fair difference of opinion as to the necessity and reasonableness of a legislative enactment on a subject which lies within the domain of the police power, the courts will not hold it void.
State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 602 (1957). In Richards, the supreme court found that the innocent-owner provision of a civil asset forfeiture statute as applied to the property rights of the innocent owner was within the scope of the state’s police power and upheld it against a state substantive due process challenge. See id. at 602-03; cf. Satter-field, 268 S.W.3d at 220 (holding that statute that limited asbestos-related liabilities of certain successor corporations not within police power). • - ■
Similarly, in the context of a challenge to state regulation of visual care and related licensing requirements, the United States Supreme Court found that the-challenged statutes that'subjected opticians'to the regulatory system at issue did not violate the constitution. Williamson, 348 U.S. at 491, 75 S.Ct. 461 (“We cannot say that the regulation has no rational relation to that objective [professional treatment of human eye] and therefore is beyond constitutional bounds.”). In reaching its holding, the court observed:
The. [challenged state] law may exact a needless, wasteful requirement in’ many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. ... [T]he law need not be in every respect logically consistent with its aims to be cpnstitutional. It is enough, .that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.
The day is gone when this Court uses the Due Process Clause of the Four*386teenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or. out of harmony with a particular school of thought.
Id. at 487-88 (citation omitted); see also City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (“[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.”).17
. Applying these directives for reviewing regulations that are within the scope of the police power here, we conclude that, under either the real and substantial test or rational basis review, the state defendants established that they were, ¡entitled to summary judgment as a matter of law. See Texas State Bd. of Barber Exgm’rs, 454 S.W.2d at 732 (citation omitted) (“The necessity, or reasonableness of particular regulations imposed under the police power is a matter addressed to the legislative department whose determination in the exercise of a sound discretion is conclusive upon the courts. Legislative enactments will not be held unconstitutional and invalid unless it is absolutely necessary to so hold.”). Viewing the evidénce in the light most faVorable to appellants, ’ the evidence' at most established that there is “room for a fair difference of opinion as to the necessity and reasonableness” of the challenged regulations. ' See Richards, 301 S.W.2d at 602; see also FM Prop. Operating Co. v. City of Austin, 93F.3d 167, 175 (5th Cir. 1996) (where the question of whether there is a rational relationship between policy and legitimate objective is “debatable,” no substantive due process violation).
In Garcia, the supreme court found that under “any articulation,” the statute at issue was “sufficiently rational and reasonable to meet constitutional due course requirements.” See 893 S.W.2d at 525; see also Trinity River Auth., 889 S.W.2d at 263 (noting standard of review under due course clause not consistently articulated and holding that “under any cognizable test” statute at issue “passes constitutional muster”). Similarly, on the record before us, we conclude that the challenged regulations are “sufficiently rational and reasonable to meet constitutional due course requirements.” See id.
(iv) Craigmiles and Cornwell
As part of their third issue, appellants rely on two federal court decisions to support their position that, even under the rational basis test, the regulatory licensing scheme as applied to eyebrow threading violates their substantive due process rights. See Craigmiles v. Giles, 312 F.3d 220 (6th Cir.2002); Cornwell v. Hamilton, 80 F.Supp.2d 1101 (S.D.Cal.1999). We find both cases distinguishable.
la-Craigmiles, the plaintiffs challenged an amendment to a statute that precluded the selling of caskets without a “funeral director” license from the state. 312 F.3d ■at 222. In that case, the evidence showed that licensed funeral directors sold the caskets at prices substantially over total costs. Id. at 224. Applying rational basis review, the Sixth Circuit held that the amendment violated both the due process and equal *387protection clauses of the • Fourteenth Amendment, “[fjinding no rational relationship to any of the articulated purposes of. the state” and that the amendment was “nothing more than an attempt to prevent economic competition.” Id. at 225, 228; see also U.S. Const, amend. XIV, § 1. Given the “pretextual nature of the state’s offered explanations,” the court invalidated the “naked attempt to raise a fortress protecting the- monopoly rents that funeral directors extract from consumers.” 312 F.3d at 229. Here, in contrast with the challenged amendment in Cmigmiles, there was no evidence to support a finding that the purpose of the regulation of the practices of cosmetology, including eyebrow threading, was economic protection or to prevent economic competition.
In Cornwell, the plaintiffs brought substantive due process and equal protection claims challenging California cosmetology regulations as applied to African hair braiding. 80 F.Supp.2d at. 1102-03. The plaintiffs’ equal protection claim was “grounded, on the reasoning that ‘sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.’ ” Id. (citation omitted). Plaintiffs also alleged that the “current cosmetology regulatory regime has the intent and effect of establishing and maintaining a cartel for cosmetology services in California.” Id. at 1113, 1117-18. Facing motions for summary judgment and applying rational basis review, the California district court granted summary judgment for one of the plaintiffs and denied it as to the other plaintiffs. The court concluded as to the successful plaintiff, who only “locks” hair, that “her activities were of such a distinguishable nature” that she- could not be reasonably classified as “a cosmetologist as it is defined and regulated presently” and that, even if she were defined as a cosmetologist, “the licensing- regime would be irrational as applied to her because of her limited range of activities.” Id. at 1107-OS. The court noted that the successful plaintiff’s task was limited to the “physical manipulation of hair without the use of hazardous chemicals.” Id. at 1118.
The factors considered by the court to' reach its finding that' the regulations were not rational as applied to the successful plaintiff included the mandated curriculum of 1600 hours, the exposure of hair braid-ers to hazardous chemicals that they do not use in their trade, and the lack of hair braiding teaching in the mandated curriculum. Although appellants make analogous arguments here concerning the curriculum and licensing requirements, they did not seek a declaration that eyebrow threading fell outside the definition of cosmetology, they did not bring an equal protection claim; and they did not allege monopoly or other improper reasons behind the challenged -regulations. We further cannot conclude that hair braiding and eyebrow threading fall within the same type of cosmetology services. See Tex. Oce.Code Ann. § 1602.258 (West Supp.2011) (requisites for speciality certificate eligibility determined by Department); 16- Tex. Admin. Code §§ 83.20(b) '(requirements for hair braiding speciality certificate), 83.120(b) (hair braiding curriculum different from other cosmetology services).
(v) Conclusion
Because we conclude that the state defendants established as a matter of law that the challenged cosmetology statutes and rules as applied to the practice of eyebrow threading do not violate appellants’ economic liberties under article I, section 19 of the Texas Constitution, we conclude that the district court did not err in granting summary judgment-in favor of the state defendants; We overrule appellants’ first, second, and third issues.
*388
C) Challenge to Admission of Portion of LaFleur’s Affidavit
In their final issue, appellants contend that the district court abused its discretion by admitting portions of the affidavit of Marínela LaFleur concerning the number of hours of training taught at licensed beauty schools devoted to general sanitation. See In re J.P.B., 180 S.W.3d 570, 575 (Tex.2005) (per curiam). (standard of review of a trial court’s decision to admit or exclude evidence is abuse of discretion). Appellants objected to this portion of her testimony as conclusory. See, e.g., IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 803 (Tex.2004) (conclusory statements in expert affidavit “insufficient to create a question of fact to defeat summary judgment”).
A trial court abuses its discretion if it acts arbitrarily or unreasonably or without reference to any guiding rules and principles. Bowie,.Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam) (citing Downer v. Aquamarine. Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). Additionally, to be entitled to reversal due to the erroneous admission of evidence, an appellant must show that the error proba,-bly resulted in an improper judgment. Tex.R.App. P. 44.1; State v. Central Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex.2009). In conducting a harm analysis, we review the entire record and require the complaining party’to demonstrate that the judgment turns on the particular evidence admitted. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007); In re C.R., 263 S.W.3d 368, 370 (Tex.App.-Dallas 2008, no pet.).
In-her affidavit, LaFleur testified that she was employed by the Department as. a program specialist in the. education and examination division, that she had been in that position for four years, that she was “familiar with and [had] knowledge of the curriculum for the cosmetology operator and facialist license examination and the Candidate Information Bulletins (CIBs) that TDLR publishes for the benefit of licensure candidates,” and that she was “a licensed cosmetology operator and a licensed cosmetology instructor.”
Appellants objected to.the following paragraph in LaFleur’s affidavit on the ground that it was improper conclusory testimony that 430 . hours are devoted to general sanitation training:
The curriculum required to be taught in licensed beauty schools is listed in 16 TAC § 83.120(a) (operator curriculum-1500 hours) and § 83.120(b) (facial curriculum -750 - hours). The curriculum covers extensive sanitation requirements found under the following topics and hours: facial treatment, cleansing, masking, therapy (225 hours), anatomy and physiology (90 hours), orientation, rules and law (50 hours), sanitation, safety and first aid (40■ hours), superfluous hair removal (25 hours). Sanitation in the practice , of cosmetology services is a serious public health and safety concern, and therefore it is covered as a component of teaching virtually every cosmetology technique.
Appellants point to the curriculum guidelines for the facial curriculum in the rules that set 40 hours for “sanitation, safety, and first aid,” see Tex. Admin. Code § 83.120(b), to argue that LaFleur failed to provide a “means of testing her proposition that sanitation training is sprinkled across 430 hours of the cosmetology curriculum.”
We cannot conclude that the district court abused its discretion by overruling appellants’ objection and admitting this paragraph. See Bowie Mem’l Hosp., 79 S.W.3d at 52. The topics and hours as *389attested to by LaFleur track the topics and hours set forth in the rules for the facial curriculum. Further, appellants have failed to show that the judgment turned on the admission of this paragraph. See Tex.R.App. P. 44.1; Central Expressway Sign Assocs., 302 S.W.3d at 870. The evidence was extensive concerning the curriculum covered by beauty .schools in Texas, and the record makes clear that sanitation was part of the curriculum. The actual number of hours devoted to sanitation is not controlling here. We overrule appellants’ fourth issue.
CONCLUSION
For these reasons, we affirm the district court’s judgment.
. Article I, section 19 of the Texas Constitution provides that:
*372No citizen of this State shall be deprived of life, liberty, property, privileges or immuni.ties, or in any manner disfranchised,- except by the due course of law of the land.
Tex. Const, art. I, § 19,
.See generally Kuntz v. Khan, No. 03-10-00160-CV, 2011 Tex.App. LEXIS 446, at *3, 2011 WL 182882, at *1 (Tex.App.-Austin Jan. -21, 2011, no pet.) (mem. op.)- (describing practice of eyebrow threading as. "a method of shaping eyebrows by using a piece of 100-percent cotton thread to pull individual hair follicles out of the skin’s pores”),
. The administrative actions against Momin, Rokhti, and Yogi remain pending. The Departments’s prosecution of these actions was stayed by agreement of the parties to this litigation; without prejudice to any party.
. Prosecution of the complaints against Sata-ni’s business were also stayed' by agreement of the parties to this litigation, without prejudice to any party.
. The legislature amended the definition of cosmetology after this Court's decision in Kuntz. See Act of June 17, 2011, 82d Leg., R.S., ch. 1241, §12, 2011 Tex. Gen. Laws 1241 (current version at Tex. Occ.Code Ann. § 1602.002 (West Supp.2011)); Kuntz, 2011 Tex.App. LEXIS 446, at *21-24, 2011 WL 182882, at *6-8 (discussing whether eyebrow threading falls within statutory definition of cosmetology prior to 2011 amendment).
. See Tex. Occ.Code Ann. §§• 1601.002 (West Supp.2011) ("barbering'' defined), 1601.251, (West 2004) (certificate, license or permit required to perform act of barbering); 1602.002 (West Supp.2011) (“cosmetology” defined), 1602.251 (West Supp.2011) (license or certificate requited to perform "practice of cosmetology”), 1602.403 (West Supp.2011) (employment of license or certificate, holder); 16 Tex. Admin. Code §§ 83'. 1-83.120 (2011) (Tex. Dep’t of Licensing arid Regulation, Cosmetologists). Although appellants’ pleadings include provisions addressing "barbering,” they have not made specific arguments concerning the regulation of. barbering, .focusing their challenge on cosmetology regulations. We, therefore, do the same.
. . In their fourth issue, the state defendants • challenge the district court's denial of their motion to strike expert testimony. Because we affirm the district court's summary judgment in favor of the state defendants, we need not address this issue. See Tex.R.App. P. 44.1,47,1.
. Cf. Brantley v. Texas Youth Comm’n, 365 S.W.3d 89, 105 (Tex.App.-Austin 2011, no pet.) (mem. op.) (in context of ultra vires claims, citing Heinrich to support conclusion that "any' claim for equitable relief from a ■ constitutional violation would ... be barred by sovereign immunity” to the extent asserted against state agency); Texas State Bd. of Public Accountancy v. Bass, No. 03-09-00251-CV, 2011 Tex.App. LEXIS 294, *9-10, 25-26, 2010 WL 5575921, at *3-4, 6-7 (Tex.App.Austin Jan. 14, 2011, no pet.) (mem. op.) (questioning holding in City of Elsa in light of Heinrich but recognizing that governmental entities not immune from suits challenging validity of statutes or ordinances).
. Similarly, section 2001.038 of the government code permits suits against state agencies for declaratory relief concerning the validity or applicability of their rules. See Tex. Gov’t Code Ann. § 2001.038(a), (c) (West -2008) (“The state agency must be made a party to the action.”); Friends of Canyon Lake, Inc. v. Guadalupe-Bianco River Auth., 96 S.W.3d 519, 529 (Tex.App.-Austin 2002, pet. denied) (section 2001.038 authorizes courts to determine whether “a rule, is valid and/or applicable ”) (citation omitted, emphasis in original). Appellants, however, amended their pleadings to delete section 2001.038 of the government code as a basis for the district court’s jurisdiction.
. For example, the state defendants argue in their brief:
[T]he thrust of [appellants'] suit is that the State Officials acted outside their constitutional authority by applying the cosmetolo- - gy laws to the practice of eyebrow threading. Accordingly, although [appellants] do not themselves invoke the "ultra vires” doctrine explicitly, they in fact assert a[sic] ultra vires claims falling squarely within the Supreme Court’s holdings in Heinrich and Reconveyance. (Emphasis in original.)
. Although appellants ■ pleaded separate causes of action based-upon substantive due process and the privileges and immunities clause in article I, section 19 of the Texas Constitution, appellants do not make'separate arguments in their briefing, and the substance of their claims was the- same-that the regula- ’ tions violated their right to earn an honest living in the occupation of one’s choice free from unreasonable governmental interference, We, therefore, do not address the privileges and immunities clause separately but consider it as part of their substantive due process, economic liberty challenge.
. To bring a substantive due process claim, an individual also must establish a protected interest. Liberty Mut. Ins. Co. v. Texas Dep’t of Ins., 187 S.W.3d 808, 827 (Tex.App.-Austin 2006, pet. denied). For purposes of their motion for summary judgment, the state defendants assume that, the appellants had a protected, but not fundamental, liberty interest. See Rylander v. B & A Mktg. Co., 997 S.W.2d 326, 333-34 (Tex.App.-Austin 1999, no pet.) (applying rational basis review where fundamental liberty interest not at stake); Garay v. State, 940 S.W.2d 211-, 218 (Tex.App.-Houston [1st Dist.] 1997, pet. ref’d) (applying rational basis review to substantive, due process , claim concerning right to seek and obtain employment); see also Martin v. Memorial Hosp. at Gulfport, 130 F.3d 1143, 1148-50 (5th Cir.1997) (recognizing the right-to earn living in the "common occupations of the community” as a protected, but not fundamental, liberty interest and applying rational basis review to substantive due process challenge).
. The evidence included the Department’s discovery responses in which it named schools that provided instruction on the practice of eyebrow threading. Appellants provided affidavits from individuals from some of those schools. Some of the individuals testified that their school did not teach eyebrow threading. Appellants’ evidence also included excerpts from cosmetology textbooks addressing eyebrow threading and their expert’s testimony. Appellants characterize the references in the textbooks as "cursory," and urge that their expert’s testimony shows that eyebrow threading is safe and should not require a cosmetology license. Their expert, who was a physician and operated a medical spa, testified concerning existing medical literature and data from hair removal treatments at her medical spa, including eyebrow threading, waxing, and laser hair removal. There had only been one complication from threading at her medical spa, Her opinion was that the practice of threading only required "a basic sanitation course.”
. After September 1, 2011, a license for a facialist is referred to as an esthetician spe-ciality license. See Tex. Occ.Code. Ann. § 1602.257 (West"’Supp.201i) (amendments effective Sept. 1, 2011).
. The district court admitted the test questions underseal:
. For example, appellants state in their brief: Appellant acknowledge that the government can constitutionally regulate the basic sanitation aspects of eyebrow threading, but they vigorously challenge the notion that they can do so using this regulqtory regime. They compare eyebrow threaders to hair braiders who are required to complete 35 hours of training and are eligible for a spe-ciality certificate. See Tex. Occ.Code Ann. § 1602.258 (West Supp.2011) (requisites for speciality certificate eligibility determined by Department); 16 Tex. Admin. Code §§ 83.20(b) (requirements for hair braiding speciality certificate), 83.120(b) (hair braiding curriculum).
. See Anthony B. Sanders, The "New Judicial Federalism" before its time: A Comprehensive Review of Economic Substantive Due ■ Process Under State Constitutional Law Since 1940 and-the Reasons for Its Recent Decline, 55 Am. U:L.Rev. 457, 475, 478 (2005) (noting that United States Supreme Court has not invalidated an economic regulation on economic substantive due process grounds since 1937 and that "by the 1980s only a handful of states invalidated economic regulations on substantive due process grounds, and then, only on occasion”). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284099/ | OPINION
Opinion by Justice Francis
Anthony Hill pleaded guilty to shooting a man during a robbery and was sentenced to forty-five years in prison. Months later, the complainant died, allegedly from complications of the gunshot wound he received during the aggravated robbery. Thereafter, the State indicted Hill for capital murder.
Hill filed an application for writ of habe-as corpus in which he asserted, among other things, violations of the double jeopardy protections afforded by the United States and Texas constitutions.1 Specifically, he argued his, subsequent prosecution for capital murder was barred by his previous conviction for aggravated robbery. After a hearing, the trial court agreed and barred the prosecution.
The State appealed, contending the trial court’s ruling is erroneous because Hill’s case falls under a longstanding exception to the double jeopardy bar allowing for a subsequent prosecution on a more serious charge when .additional,facts necessary to sustain that charge have mot occurred1 — in this case, the complainant’s death. For reasons set out below, we agree with the State. We reverse the trial court’s' order and remand for further proceedings consistent with this opinion.
An applicant seeking habeas corpus relief must prove his or her claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006);. Ex parte Scott, 190 S.W.3d 672, 673 (Tex.Crim.App.2006) (per curiam). In reviewing the trial court’s order granting habeas corpus relief, we view the facts in the light most favorable to the Trial court’s ruling, and'we will uphold'the trial court’s ruling absent an abuse of discretion. See Kniatt, 206 S.W.3d at 664. We afford almost total deference to the trial courts determination of the historical facts that the record supports. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App.2007). We likewise defer to the trial courts application of the law to the facts if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. See 'id. If the resolution of the ultimate question turns on an application of legal standards, we review the determination de novo. See id.
The Fifth Amendments Double Jeopardy Clause protects an accused against a second prosecution for the same *446offense after acquittal, a second prosecution for the same offense 'after conviction, and being subject to multiple punishments for the . same offense. U.S. Const, amend V; Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Littrell V. State, 271 S.W.3d 273, 275 (Tex.Crim.App.2008). The Fifth Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Texas Constitution’s prohibition against double jeopardy provides substantially identical protection to the Double Jeopardy Clause of the United States Constitution. See Tex. Const, art. I, § 14 (West 2007); Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex.Crim.App.1997).
When two offenses arise under different statutes, the two offenses are considered the same offense for purposes of applying the double jeopardy prohibition if all of the statutory elements of one offense are included within the statutory elements of the other offense. See Whalen v. United States, 445 U.S. 684, 693-94, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Blockburger v. United States, 284 U.S., 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Thus, the State may not convict a defendant for an offense when the defendant has been convicted already of ,a lesser-ineluded offense arising from the same event. Brown, 432 U.S. at 161, 97 S.Ct. 2221; Ex parte Amador, 326 S.W.3d 202, 204 (Tex.Crim.App.2010).
The indictment that formed the basis of the aggravated robbery conviction provides that Hill, while in the course of committing theft, caused serious bodily injury to the complainant by shooting him with a firearm. The indictment for capital murder alleges that while in the course of committing or attempting to commit robbery, Hill caused the death of the complainant by shooting him -with, a firearm. The. State concedes the aggravated robbery is a lesser-ineluded offense of capital murder as- alleged in this case and thus satisfies the Blockburger test. Compare Tex. Penal Code Ann. § 19.03(a)(2) (West Supp.2014), with Tex. Penal Code Ann. § 29.03 (West 2011).
Because aggravated robbery is a lesser-ineluded offpnse of capital murder, Hill contends prosecuting him for capital murder exposes him to double jeopardy because he would be both tried and punished twice. Hill cites numerous authorities supporting the general proposition that a defendant may not be convicted of both greater and lesser offenses arising from the same event. In all of Hill’s authorities, however, the greater and‘lesser offenses were completed and available as potential charges at the time of the defendant’s trial. See, e.g., Littrell, 271 S.W.3d at 274; Bigon v. State, 252 S.W.3d 360, 363 (Tex.Crim.App.2008).
The State asserts it may try Hill for capital murder because an “exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” Brown, 432 U.S. at 169 n. 7, 97 S.Ct. 2221.
The United States Supreme Court recognized this exception to the general double jeopardy rule in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). Diaz was convicted of assault and battery and fined after beating and kicking the victim. Id. at 444, 32 S.Ct. 250. After Diaz’s conviction, the victim died, and Diaz was tried and convicted of homicide. Id. The case proceeded to the United States Supreme Court to consider the application of the provision against double jeopardy contained within the Philippine Civil Gov-*447eminent Act, which governed administration of the Philippines where- the ease arose; Id. at 448, 32 S.Ct. 25.0. In holding that Diaz was not subjected to double jeopardy, the Supreme Court pronounced:
The-death of the injured person was the principal element of the-homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not' until it did ensue was the homicide committed. Then, and not before, was it possible to put the - accused in jeopardy for that offense.' '
Id. at 449, 32 S.Ct. 250. In reaching this conclusion, the Supreme Court cited an early Texas case, Johnson v. State,, 19 Tex.App. 453 (1885). Johnson explained the exception as follows:
There never can be-the crime of murder or manslaughter until the party assaulted dies; these crimes have no existence in fact or law till such death. It cannot, therefore, be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder or manslaughter after the death, of the injured party. The death of the assaulted party creates a new crime.
Johnson, 19 TexApp. at 461.
Hill questions whether Diaz remáins good law and contends it is distinguishable from his case. Hill first notes that in Diaz, the Supreme Court also found an alternative ground for concluding double jeopardy protections did not apply: Diaz was not subjected to double jeopardy because the justice of the peace court that tried him for assault and battery had no jurisdiction to try him for homicide. Diaz, 223 U.S. at 449, 32 S.Ct. 250. Hill contends that because the alternative jurisdictional double jeopardy exception in Diaz has no application to- his case, Diaz is distinguishable. ' -
■ In the ensuing century since Diaz was decided, the United States Supreme Court has abandoned the jurisdictional double jeopardy exception described .in Diaz. See Waller v. Florida, 397 U .S. 387, 394-95, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) (overturning dual sovereignty exception to double jeopardy and concluding petitioner could not be tried for same offense in both municipal court and state , court). The Supreme Court, however, has not abandoned the incomplete offense ruling of Diaz at issue in Hill’s case. See Culberson v. Wainwright, 453 F.2d 1219, 1220-21 (5th Cir.1972) (per curiam), cert. denied, 407 U.S; 913, 92 S.Ct. 2449, 32 L.Ed.2d 688 (1972) (concluding Waller had no effect on Diaz rule permitting subsequent prosecution after victim dies and upholding -mam slaughter conviction against claim of double jeopardy premised on conviction for assault obtained before victim died). As in Culberson, we see no reason not to apply Diaz and its exception to double jeopardy under the facts of Hill’s case.
Hill next contends Diaz is distinguishable because under Texas law the phrase “serious bodily injury” as used in the aggravated robbery státute encompasses -injuries that result in death. See Tex. Penal Code Ann. § 1.07(46) - (West Supp.2014) (defining “serious bodily injury” to include bodily injury that causes death). Thus, unlike Diaz, Hill contends he has already been punished for causing the complainant’s death. We disagree. - At the time of Hill’s conviction for aggravated- robbery, the complainant was still alive. We cannot agree Hill has been punished for-< committing capital murder under the circumstances, and the "punishment assessed for aggravated robbery has no relevance to the question of whether a double jeopardy exception exists in this case.
Finally, Hill questions the continued validity of Diaz in light of more recent cases. Hill points out that the cases ■
*448most cited as establishing double jeopardy jurisprudence and legal analysis, for example, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), all were decided well, after Diaz and Diaz never has been scrutinized under the tests and standards established by these cases for violations of double jeopardy.
Even while applying the Blockburger test, the Supreme Court continues to recognize the double jeopardy exception for incomplete or undetected crimes. See Illinois v. Vitale, 447 U.S. 410, 420 n. 8, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), abrogated on other grounds by United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 656 (1993); Brown, 432 U.S. at 169 n. 7, 97 S.Ct. 2221; Blackledge v. Perry, 417 U.S. 21, 29. n.7, 94 .S.Ct. 2098, 40 L.Ed.2d 628 (1974); Ashe v, Swenson, 397 U.S., 436, 453 n. 7, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring); see also Rutledge v. United States, 517 U.S. 292, 307 n. 17, 116 S.Ct, 1241, 134 L.Ed.2d 419 (1996) (declining to “explore the consequences” of its holding on successive-prosecution strand of Double Jeopardy Clause and Diaz). Hill concedes that Diaz has never been overruled but is incorrect in asserting that no Supreme Court decision has ever relied upon it in reaching-a decision. For example, the Supreme Court relied on Diaz as an alternative reason to uphold a prosecution brought against a marijuana smuggler for conducting a continuing criminal enterprise even though the smuggler had been earlier convicted for a specific instance of marijuana importation that was part of the criminal activity. See Garrett v. United States, 471 U.S. 773, 791-93, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985).
In addition to the Supreme Court’s limited pronouncements on the Diaz exception, the exception enjoys longstanding support in Texas law. See Graves v. State, 539 S.W.2d 890, 891-92 (Tex.Crim.App.1976); Hill v. State, 141 Tex.Crim. 169, 149 S.W.2d 93, 95-96 (1941); Curtis v. State, 22 Tex.App. 227, 236-37, 3 S.W. 86, 87-88 (1886); Johnson, 19 Tex.App. at 461. Likewise,. the exception appears well-established in the double jeopardy jurisprudence of the lower federal courts and the states. See, e.g,, Whittlesey v. Conroy, 301 F.3d 213, 219 (4th Cir.2002); Mitchell v. Cody, 783 F.2d 669, 671 (6th Cir.1986); Culberson, 453 F.2d at 1220-21; State v. Wilson, 85 Ariz. 213, 335 P.2d 613, 615 (1959); Lowe v. State, 240 Ga. 767, 242 S.E.2d 582, 584 (1978); People v. Harrison, 395 Ill. 463, 70 N.E.2d 596, 601 (1946); Stale v. Henry, 483 N.W.2d 2, 4 (Iowa App.1992); State v. Hutchinson, 156 N.H. 790, 942 A.2d 1289, 1292-93 (2008); Commonwealth ex rel. Papy v. Maroney, 417 Pa. 368, 207 A.2d 814, 816 (1965); Turner v. Commonwealth, 49 Va.App. 381, 641 S.E.2d 771, 774 (2007).
In this case, Hill was tried for aggravated robbery before one of the elements that comprises his capital murder offense— namely, the death of the complainant — had taken place. Because the State could not have brought the capital murder case against Hill at the time he was tried for aggravated robbery, it is not jeopardy-barred from doing so now. See Diaz, 223 U.S. at 448-49, 32 S.Ct. 250; Graves, 539 S.W.2d at 892.
Finally, Hill contends- that if the State is allowed to proceed and he is convicted, he will face multiple punishments for the same offense, a result that may not occur unless the legislature “has clearly expressed a contrary intention that the ac*449cused should be punished for both the greater and lesser-included . offenses.” Littrell, 271 S.W.3d .at 276. In the case of an individual who commits a • crime, that encompasses both aggravated robbery and murder, there is no such legislative intent. Id. at 278.
As we have already explained, under the limited and rare' circumstances of Hill’s case, the aggravated robbery and capital murder offenses Hill was charged with- are not the same offense for double-jeopardy purposes. - See Diaz, 223 U.S. at 448-49, 32 S.Ct. 250; Graves, 539 S.W.2d at 892. Moreover, even if the complainant had died immediately and Hill was charged and convicted of both offenses at the same time in violation of his double jeopardy rights, the proper resolution in such cases is to vacate the conviction and punishment for the lesser-included offense and leave intact the conviction and punishment for the greater offense. Id. at 279.
Because the trial court’s determination in this case conflicts with binding precedent from the United States Supreme Court and the Texas Court of Criminal Appeals, we .conclude the trial court abused its discretion in granting Hill relief on his application for writ of habeas corpus. See Diaz, 223 U.S. at 448-49, 32 S.Ct. 250; Kniatt, 206' S.W.3d at 664; Graves, 539 S.W.2d at 892. We -sustain the State’s issue on appeal.
We reverse the trial court’s order granting Hill’s applicátion fór writ of habeas corpus, and' we remand this case to the trial court for proceedings consistent with this opinion. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284100/ | . BART F. VIRDEN, Judge hThe Craighead County Circuit Court adjudicated appellant S.C. delinquent for filing a false report of rape.1 She was sentenced to serve ninety days in juvenile detention and ordered to perform 160 hours of public service, have no contact with the accused, and work on getting her GED. S.C. argues on appeal that the trial court erred in denying her directed-verdict motion.2 We affirm. I. Hearing Testimony Deputy Brian Womack with the Craig-head County Sheriffs Office testified that on July 22,2014, he received a report from S.C. that she had been raped. Womack testified that |2S.C. told' him that she and several friends had gone swimming that afternoon; that the accused was driving her and the others home; that he drove her to a church; that the one other person who had not yet been dropped off stepped out of the car; and that the accused got into the back -seat and “forcibly’', raped her. Investigator Ron Richardson with the Craighead County Sheriff s Office testified that he interviewed S.C., who showed him text messages on her cell phone. The following is a text-message string between her and the accused on the day after the incident: Accused: Goodmorning S.C.: Wryd S.C.: Wrud Accused: At my moms S.C.: Where does you’re mom live? Accused:,Salem S.C.: I’m mad at you. Accused: Y S.C.: Because I told you no last night: Accused: , Lol S.C.: You raped me. Accused: Nope S.C.: Then what would you call it? I said no. Accused: Then you said ok |aS.C.: No I didn’t! Accused: Yeah Hun Caz I told you if it hurt I’d stop and when I started I said do you want me to stop you said no keep going!!! S.C.: No I didn’t!!!! ■ Richardson also interviewed the accused who said that he and S.C. had consensual sex.3 The accuséd provided Richardson with text messages between him and S.C. sent on the night of the incident. When Richardson confronted S.C. with those text messages, she vehemently denied having written them and “had an outburst.” Those text messages read: Accused: Hey S.C.: Why are we just sitting here? Lol Accused: Caz I wanna I’ll take you home if you wanna go the weirdo ' Accused: Besides is crazy S.C.:. Well if you were back here I’d better lol. Accused: Lol ok I’ll come back there S.C.: Okay lol. Accused: Your having to much fun S.C.: Now I’m turned on from you biting me!!! Accused: Hehe we’ll he’s in the car S.G.: Make him get out lol. Accused: Are we could I ¿Forty-five minutes later: S.C.: Did you do anything? ? ? Accused: What you mean S.C.: Did you cum? Accused: No I didn’t want to keep u that long Richardson also interviewed the one person who had stepped out of the car, and he said that the accused and S.C.'were “making out” when he left. Richardson further testified that S.C.- later admitted that she had told the' accused “no” at first but: that she later said “ok” to sex. S.C. explained that she was a lesbian and was afraid that, if the accused had gotten her pregnant, her girlfriend would be. mad. In her testimony, S.C. confirmed the statements made to Richardson but explained further that she did not think anything would happen when she invited the accused to get into the back seat with her. S.C. testified that, although she was not interested in the accused romantically, as they used to be. best friends, she had kissed him and sent him a text message saying that she was “turned on.” S.C. claimed that she was only joking. She testified that the accused had wanted to have sex, that she had consistently told him “no,” and that he had held her down and forced himself on her. S.C. testified, “I did eventually say okay because I couldn’t do anything else.” S.C. testified that, in making the report to police, she had left out the part where she said “ok” to sex because she was afraid- that she would get in trouble. S.C. moved for a directed verdict ou the basis that she had filed the report because she truly believed that she had been raped. The trial court denied the motion. ■ |⅛11. Standard of Revieio A motion to'dismiss at a bench trial is identical to a motion for directed verdict at' a jury trial because it is a challenge to the sufficiency of the evidence. L.C. v. State, 2012 Ark. App. 666, 424 S.W.3d 887. While a delinquency adjudication is not a criminal conviction, it is based upon an allegation by the State that the juvenile' has committed a certain crime. A.D. v. State, 2015 Ark. App. 35, 453 S.W.3d 696. Our standard of review is the same as it would' be in' a criminal case; that is, whether the adjudication is supported by substantial evidence. Id. Substantial evidence is evidence, direct, or circumstantial, that is of sufficient force and character to compel a conclusion one way or the o(ther, without speculation, or conjecture. Id. In considering the evidence presented below, we will not weigh the evidence or assess the credibility of witnesses, as those are questions for the fact-finder. Id. . III. Argument S.C. argues that the only evidence the State had .against her was “a series of small discrepancies” in her .statements to police. She did- not veer from, her account that she had been raped. She explained on the stand why she had told the accused “ok” after having told him “no” and why she did not tell that to the police, S.C. argues that the inconsistencies in her statements do not negate the fact that she believed she had been raped. She argues that the trial court erred in finding her not credible. IV. Discussion A person commits the offense of filing a false report if she files a report with any law-enforcement agency of any alleged criminal wrongdoing on the part of another person |fiknowing that the report is false. Ark.Code Ann. § 5-54-122(b) (Repl. 2005). A person s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime; therefore, circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Kelley v. State, 75 Ark. App. 144, 55 S.W.3d 309 (2001). The intent to commit the offense may be inferred from the defendant’s conduct and the surrounding circumstances. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). S.C.’s argument on appeal concerns only her credibility, and this court defers to the trial court’s assessment. A.D., supra. The trial court expressly found that S.C. was not credible. The trial court could have reasonably concluded that S.C. did not provide the text messages from the night of the alleged rape because she knew that they were inconsistent with her subsequent report of rape. Also, S.C.’s conduct after being confronted with those text messages suggests that she knew her report to the police was false. Given the content of the text messages from the night of the incident and S.C.’s admission that she had agreed to have sex, we hold that there was substantial evidence to support the adjudication. Affirmed. Gladwin, C.J., and Hixson, J., agree. . In S.C. v. State, 2015 Ark. App. 118, 2015 WL 802400, this court remanded to settle and supplement the record and ordered rebriefing due to deficiencies in the appellant's abstract and addendum. . Because the case was tried to the court, S.C.’s motion for a directed verdict is treated as a motion to dismiss. See, e.g., A.D. v. State, 2015 Ark. App. 35, 453 S.W.3d 696. . 3 The record indicates that S.C. was approximately one month away from turning eighteen years old. There is no information on the age of the accused. | 01-04-2023 | 01-07-2022 |
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