url stringlengths 55 59 | text stringlengths 0 616k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/5284101/ | OPINION OF THE COURT BY
CHIEF JUSTICE MINTON
Police took Samuel Terrell into custody to question him while investigating his mother’s murder, but a circuit court order halted the questioning until Terrell was allowed access to a public defender. Terrell’s father procured this order from the circuit judge, ex parte, purportedly under the authority of Kentucky Rule of Criminal Procedure (RCr) 2.14(2). The Commonwealth appealed the order; and the Court of Appeals affirmed the circuit court’s issuance of the order based on our interpretation of RCr. 2.14(2) in West v. Commonwealth,1 which held that courts had the authority to interrupt police interrogations and to mandate the accused’s access to an attorney at the request of a benevolent third party. We granted the Commonwealth’s motion for discretionary review.
Reversing1 the opinion of the Court of Appeals, we retreat from the broad holding in West by rejecting the notion that RCr 2.14(2) somehow allows a trial courts to exercise its constitutional authority to intervene pre-prosecution to enjoin police from questioning a suspect. Instead, we hold that except for constitutionally mandated authority to issue search warrants, courts are not vested with general jurisdiction over a criminal matter until the criminal matter becomes a criminal case upon commencement of prosecution. We agree with- West in the general sense that an accused has a right to an attorney during an interrogation and RCr 2.14(2) guarantees attorneys be given access to their clients in custody, but we do not read RCr 2.14(2) as a vehicle for the appointment of an attorney or interference by the judicial branch in pre-prosecution criminal investigations. Finally, we hold that a motion to suppress is the appropriate weapon to attack an allegedly improper interrogation resulting from the denial of access to counsel. Accordingly, we reverse the opinion of the Court of Appeals and vacate the circuit court’s order.
I. FACTUAL AND PROCEDURAL BACKGROUND.
The record on appeal is sparse. There is a great deal we do not know from the *498record about- Terrell’s arrest, his subsequent interrogation, and the trial court’s order stopping the interrogation. But what1 we do know is that Terrell’s mother’s dead body was found in a pool of blood in the early morning hours of May 13, 2011, on the floor of her apartment, the apparent victim of a shooting.- When first-responders arrived 'at the apartment; Terrell and his brother were there.'
Three witnesses, including Terrell’s brother and sister and an acquaintance, informed police that Terrell had been at the apartment late on the evening of May 12. Terrell’s brother further informed police that at approximately 2:30 a.m., Terrell arrived at his apartment and informed him “someone” had hurt their mother. The acquaintance told police that she, along with others, dropped Terrell off at his mother’s apartment — where he also resided — around 1:45 a.m. Terrell’s sister described a contentious relationship between Terrell and his mother.
The exact time is unknown, but at some point on the morning of M,ay 13, police arrested Terrell as.a suspect. Based.on the information mentioned above, at 6:13 a.m., police obtained a search warrant for Terrell’s person and his apartment. The search warrant included authorization to search “[a]ll clothing worn by Samuel Jay Terrell at the time he was taken into custody.” Because of this skeletal information in the record; we are forced to assume Terrell was taken into custody sometime between 2:30 a.m. and 6:13 a.m. The record is silent from the issuance of the search warrant until . 12:35 p.m., the time we assume the circuit judge wrote as he signed the order that was entered by the circuit clerk directing that “officers shall cease all questioiiing of Samuel Terrell[] until he is allowed access to an-attorney from the Public Defenders [sic] Office.” By the terms of the order and -the recitation of facts by both parties, Terrell’s father approached the circuit judge, ex parte, and obtained the order.
The record does not disclose whether interrogation had begun at the time of the order; what Terrell said to police, if anything; whether he was Mirandized; or whether he waived his right to counsel. In its statement of the case, the Commonwealth states that'Terrell “did not request counsel” and “[a]t the time of the Order, Terrell had not requested an attorney[.]” But these assertions, while perhaps' accurate, are not supported anywhere in the record.
- Curiously, we are presented with no evidence that Terrell ‘was ever actually represented by the public defender as the order directs. At his arraignment on May 18, the record shows Terrell represented by private counsel. Perhaps even more curiously, the notice of appeal lists both the private attorney and the Office of Public Advocacy, for purposes of Certification of Service.
II. ANALYSIS.
A. The Commonwealth’s Appeal is Moot; but the Issue Presented is Capable of Repetition, yet Evading Review, so our Review is Appropriate.
Before' considering the merits of this case, we must first determine whether this case is moot. A case becomes moot as a result of a change in circumstances “which vitiates the underlying vitality of the action.”2- In such an action, a judgment “when rendered, for any reason, cannot have any practical legal effect upon a *499then existing controversy.”3 This Court, of course, does not have authority to settle “arguments or differences of opinion[.]”4 As we often say, we do not render purely advisory opinions.
Indisputably, this case is moot. The parties agree that it is. Granting the relief sought by the Commonwealth will have no practical effect on Terrell’s prosecution. In fact, the Commonwealth is required by statute to continue with its prosecution when appealing a trial court’s interlocutory order.5 And the Commonwealth alleges no injury from the cessation of Terrell’s interrogation aside from the simple erroneous nature of the trial court’s order.
Although dismissal of the appeal is the traditional approach when faced with a moot case, this rule, like most'rules, has exceptions. The various exceptions to the mootness doctrine énable this Court, despite the absence of an actual' case or controversy, to review the merits of the action.6 Particularly relevant' here is the recognized exception for “cases which, although moot, concern alleged injuries or violations which.are ‘capable of repetition, yet evading review.’ ”7. This exception involves two elements: “(1) the challenged action is too short in duration to be fully litigated prior to its cessation .or expiration,- and (2) there is a reasonable expectation that the same complaining party would be subject to the same action again.”8
This case satisfies the exception and is appropriate for our review. As mentioned previously, the Commonwealth is statutorily required to continue with its prosecution when it decides to appeal an interlocutory order. This effectively guarantees that the Commonwealth’s claim will always be moot before reaching this Court. Furthermore, given the Commonwealth’s sole authority to prosecute criminal cases, it is beyond dispute that a reasonable expectation exists that the Commonwealth— the complaining party — may be subject to this same action again. Despite its mootness, this case plainly falls within the capable-of-repetition-yet-evading-review exception. Accordingly, we reach the merits of the Commonwealth’s appeal.
B. RCr 2.14(2) Only Provides a Right for Counsel to Visit. The Trial Court is Without Authority to Appoint Counsel and Stop Interrogation.
The text of RCr 2.14(2) reads as follows: “Any attorney at law entitled to practice in the courts of this Commonwealth shall be permitted, at the request of the person in custody or of [someone] acting in that person’s behalf, to visit the person in custody.” • The rule, based on Section 37-from the American Law Institute’s now-defunct Model Rules of Criminal Procedure, went *500into, effect in 1963. Over the course of its existence, despite two amendments, the rule has changed little, with the only notable changes being: (i) “arrested” to “in custody”; and (2) “be permitted” shifting locations. The Commentary .associated with its adoption described the rule as current practice but “sometimes disregarded.”
Any discussion of case law interpreting RCr" 2.14(2) begins and ends with West p. Commonwealth. Rendered twenty years ago, West — despite ■ its sweeping proclamation — has generated neither great discussion nor citation. West’s facts are virtually indistinguishable from those of the instant case.
West was “picked up by the police for questioning in the course of a murder investigation” and “advised of his constitutional ' rights pursuant to Miranda []”9 West chose to waive his right to counsel and continue talking to police. A short time after West was taken into custody, “a family member contacted the office of the Jefferson District Public Defender”10 and requested representation for West in the ongoing murder investigation. But the-police refused access to West’s public defender. So the attorney who had attempted to visit West “prepared - an order and approached a circuit judge as he was standing at the escalator on the' third floor of the. [Jefferson County] Hall of Justice.”11 An ex parte discussion ensued,.and the judge then signed the order. The order read:
The Court, being sufficiently advised, and having found that family members acting on behalf of Mr. Keith West have requested on his behalf that Mr. West be provided an attorney before any further questioning by Louisville Police Department regarding allegations of his being involved in a homicide(s),
IT IS HEREBY ORDERED, pursuant to RCr 2.14(2), that officers of the Louisville Police Department shall cease questioning Mr. West until he is allowed access to an attorney from the Office of the Jefferson District Public Defender. Police officers shall allow Mr. West immediate, ’ private access to an attorney forthwith. This order shall be effective upon signature.12
Upon receipt of the order, the police stopped interrogating West and allowed West access to counsel. After conferring with counsel, West decided to stop talking with police. At this point, the facts in West diverge slightly from the instant facts but not in a material way. The Commonwealth, in West, .immediately filed a motion with the circuit court to have its order ceasing interrogation vacated. The circuit court denied the Commonwealth’s motion, and the issue was appealed to the Court of Appeals and finally to this Court.
' Initially, the West Court had to resolve whether the circuit court even had jurisdiction to issue the order in the first place. The Court rejected the argument that the circuit court only acquired jurisdiction on the issuance of an indictment. Rather, the Court relied on the general jurisdiction conferred on circuit courts through Section 112(5) of the Kentucky Constitution, which reads: “The circuit courts of this Commonwealth shall have original jurisdiction of all justiciable causes not vested in some other court.” Liberally applying the legal definition of justiciable cause — controversy in which a present and fixed claim of right is asserted against one *501who has an interest in contesting it — the West Court found RCr 2.14(2) created a right “which inure[d] to the benefit of a person in custody under certain conditions ... against law enforcement agents who, no doubt, had an interest in contesting it.”13 Accordingly, the- West Court- concluded “there existed a justiciable cause sufficient to invoke the jurisdiction of the Jefferson Circuit Court under Section 112(5) of the Kentucky Constitution!;,] as well as KRS 22A.010(1).”14 We cannot agree with the conclusion reached by the West Court. The more sound approach, in our opinion, despite its rejection by the West Court, is that jurisdiction to deal with the matters covered by RCr 2.14(2) does not vest in any court until, prosecution of the accused begins in the court system. Prosecution of the accused begins in the court system with the issuance of criminal process in the form of a criminal citation,15 arrest warrant,16 criminal summons,17 or by the return of an indictment by a grand jury or by criminal information. The investigation of crimes is a function' of the executive branch; and before prosecution of the accused reaches the courts, courts lack general jurisdiction to intercede via RCr 2.14(2) in the investigation of the accused.18 We can appreciate the West Court’s attempt to give weight to “justicia-ble cause”; but today’s approach is more consistent with this Commonwealth’s historical understanding of criminal jurisdiction, and it is more practical.
The precedential value of West is not lost on this Court, but “we are “not assigned the duty of maintaining the watch as the law ossifies.”19 'At time's, through proper analysis, sound1 jurisprudence''mandates we refuse to “unquestioningly follow prior decisions.”20 To the extent West stands for the proposition that courts have the authority to intervene pre-prosecution in police interrogations Of suspe'cts via RCr 2.14(2), it is overruled.
The question now remains how RCr 2.14(2) operates stripped of the authority given to courts by West. The answer, when reviewing the actual text of the rule, is quite simple. RCr 2.14(2) provides an individual with access to an attorney-nothing more, nothing less. It could be accurately described as a visitation rule that prevents an attorney from being barred from meeting with the attorney’s client. The rule does not, as the Commonwealth would have us believe, foist counsel on the individual in custody.. Instead, the rule proclaims the end of the era where, in the famous words of the Illinois Supreme Court, “attorneys must shout legal advice to their clients, held in custody, through the jailhouse door,”21 In. or.der to comply with RCr 2.14(2), when an attorney arrives at the place where the individual is detained, the officers must allow-the attorney *502to visit privately with the individual.22
The appointment of counsel for the individual in custody is not a role for the court until prosecution commences. Rut if the individual in custody, wishes to have counsel during custodial interrogation, he may either request an attorney or, under RCr 2.14(1), contact an attorney. Illustrated by both the instant case and West, the individual’s family also may contact an attorney and request representation on behalf of the individual in custody. But the constitutional right to counsel is a personal right. So the individual in custody retains control and may wish to refuse the attorney and continue talking with police.23 This interpretation respects the “lifeblood of the law”24 — the individual— and avoids the ever-maligned situation where an individual is imprisoned in his privileges.25 Perhaps because of RCr 2.14(2), it will be more likely that an individual will exercise his right to counsel since, after all, “[t]o pass up an abstract offer to call some unknown" lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run.”26 But that is the individual’s prerogative.
Our decision today should not be. construed to conflate RCr 2.14(2) and an individual’s . constitutional right. to counsel.27 RCr 2.14(2) differs in key ways from the constitutional right to counsel. It is important to remember what, an individual is entitled to when he exercises his right to counsel. Of course, interrogation must cease; but, more importantly, if the defendant cannot afford an attorney, one will be provided. Here, however, the trial court was wholly without the authority to appoint counsel for Terrell. RCr 2.14(2) provides no mechanism for appointing counsel.
Additionally, an individual’s constitutional right to counsel does not encompass his knowing that his attorney is attempting to reach him or even that his family has retained an attorney for him. RCr 2.14(2) operates in response to this by providing some relief in circumstances such as those at issue in Moran v. Burbine.*50328 In Moran, an accused’s attorney telephoned the police station and was purposely misled about the status of the accused’s interrogation. Moran challenged this conduct on the grounds that it violated his Fifth Amendment right of freedom from compulsory self-incrimination — more accurately, his access to counsel to protect that right as explained in Miranda v. Arizona.29 Notably, the Court held the conduct of the police did not violate Moran’s constitutional rights, specifically pointing out that “[ejvents occurring outside of the presence of the suspect and entirely unknown to him surely can have- no -bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”30
In the end, we feel it important to highlight that our approach today is not novel when compared to the jurisprudence of our sister jurisdictions31 and to their rules of criminal procedure!32' Finally, we need not reach the Commonwealth’s argument that a trial court is unable to appoint an attorney from the public advocate’s office without first finding the defendant indigent because we find the trial court does not have the authority to appoint counsel and cease interrogation at all.
Having found that RCr 2.14(2) does not somehow provide the trial court with authority to appoint counsel and intercede in the interrogation of an individual in custody before commencement of prosecution, we believe it appropriate to provide guid-anee as how properly to remedy a violation of the rule. Of course, with little exception, a violation of a rule of criminal procedure would normally be dealt with through our harmless error analysis.33 But we recognized recently that the exclusionary rule may be appropriate in certain circumstances for violations of our criminal procedure rules.34 Depending on the circumstances, then, any information gained from the point an attorney is denied access to an individual in custody in violation of RCr 2.14(2) is perhaps excludable from trial.35 We believe this may be the most appropriate way to monitor the rights of the individual as granted by RCr 2.14(2) while honoring the respective parameters of judicial and executive authority.
III. CONCLUSION.
RCr 2.14(2) acts as a barrier to police preventing an attorney from accessing his client. It does not, however, operate as a method for a trial court to both end interrogation and appoint counsel for an individual. The purpose of RCr 2.14(2), instead, is simply to prevent police from interrogating an individual while his attorney attempts to reach him and potentially advise him. We reiterate that the rule is not a statutory right to counsel, analogous to an individual’s constitutional right to counsel. The rule only provides access to counsel but does not require that the , individual accept counsel. The individual is in *504full control óf his right to counsel by either exercising his right by accepting the counsel’s representation or denying the aid of counsel and thereby waiving his right. Accordingly, the opinion of the Court of Appeals is' reversed; and the order of the circuit court is vacated.
All sitting. Abramson, Barber, Cunningham, Noble, and Venters, JJ., concur. Keller, J., dissents by separate opinion.
. 887 S.W.2d 338 (Ky. 1994).
. Commonwealth v. Hughes, 873 S.W.2d 828, 830 (Ky. 1994).
. Benton v. Clay, 192 Ky. 497, 233 S.W. 1041, 1042 (1921) (quotation marks omitted).
. Veith v. City of Louisville, 355 S,W.2d 295, 298 (Ky. 1962).
., See Kentucky Revised Statutes (KRS) 22A.020(4) ("An appeal may be taken to the Court of Appeals by the state in criminal cases from an adverse decision or ruling of the Circuit Court, but only under the following conditions: (a) Such appeal shall not suspend the proceedings in the case.”).
. For an in-depth discussion of these exceptions, see Morgan v. Getter, 441 S.W.3d 94, 98-103 (Ky. 2014).
. Morgan, 441 S.W.3d at 100 (quoting Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658 (Ky. 1983)).
. Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992) (quoting In re Commerce Oil Co., 847 F.2d 291, 293 (6th Cir. 1988)).
. West, 887 S.W.2d at 339.
. Id.
. Id.
. Id.
. Id. at 341 (internal quotations omitted).
. Id. ■
. KRS 431.015(1).
. RCr 2.04(1).
. KRS 431.410; RCr 2.04(1).
. In the issuance of search warrants, courts have constitutionally mandated jurisdiction before prosecution commences. Likewise, our Opinion today in no way limits the judiciary’s writ authority flowing from the Kentucky Constitution. See Ky. Const. '§§ 110(2), 111(2).
. Osborne v. Keeney, 399 S.W.3d 1, 17 (Ky. 2012).
. Chestnut v. Commonwealth, 250 S.W.3d 288, 295 (Ky. 2008).
. People v. McCauley, 163 Ill.2d 414, 206 Ill.Dec. 671, 645 N.E.2d 923, 929 (1994).
. Simply máking a telephone call to the police .station is not enough to effectuate RCr 2.14(2). The attorney must be denied access to the defendant for RCr 2,14(2) to be violated. Consistent with this Court's interpretive methodologies, this applies the common usage of "visit” found in RCr 2.14(2).
. As would be the case with an individual’s purported Miranda waiver, the Common- • wealth bears the burden of proving the individual voluntarily declined legal representation and continued the interrogation. And we should emphasize today’s holding does not— perhaps more accurately, cannot — alter the requirement that an individual be informed of Miranda rights upon being taken into custody. Police may begin interrogating the individual if he agrees to speak. RCr 2.14(2) springs into action when an attorney arrives.
. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
. See Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 87 L.Ed. 268 (1942).
. State v. Haynes, 288 Or. 59, 602 P.2d 272, 278 (1979).
. In using "constitutional” here, we refer to both the United States Constitution and Kentucky Constitution. Our case law is clear that our Fifth Amendment analog — Section 11— has been interpreted congruently. See Commonwealth v. Cooper, 899 S.W,2d 75, 77-78 (Ky. 1995). Additionally, given our instant focus on interrogation and the pre-indictment context, "right to counsel” refers to the right to have counsel present during questioning as protection of the Fifth Amendment right to silence, not the Sixth Amendment right to have counsel at all critical stages of a.criminal proceeding.
. ,475 U.S. 412, ,106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).
. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Moran, 475 U.S. at 422, 106 S.Ct. 1135.
. See, e.g., Commonwealth v. Mavredakis, 430 Mass. 848, 725 N.E.2d 169 (2000).
. See, e.g., Ohio R.C. § 2935.20.
. See, e.g., Brewer v. Commonwealth, 206 S.W.3d 313, 321 (Ky. 2006).
. See Copley v, Commonwealth, 361 S.W.3d 902 (Ky. 2012).
. The full panoply of remedies within a trial court’s authority is available if a violation of RCr 2.14(2) occurs following the commencement of prosecution in court. We offer no suggestion on what is appropriate because that will vary with the circumstances. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284103/ | OPINION
JONES, JUDGE:
In 2010, the Kentucky Department of Corrections (“KDOC”) terminated Garnett C. Parrish’s employment after his urine tested positive for cocaine. Parrish appealed his termination to the Kentucky Personnel Board (“Board”). The Board determined that substantial evidence supported the KDOC’s decision to terminate Parrish. Parrish appealed the Board’s decision to the Franklin Circuit Court. On appeal, Parrish maintained that: (1) the Board’s reliance on the drug test results was improper because the KDOC did not put forth evidence sufficient to prove an unbroken chain of custody with respect to Parrish’s urine sample; and (2) the KDOC failed to prove a violation of its policies because it did not offer any evidence that cocaine is a substance capable of altering the mind or body and/or .affecting the senses. After the Franklin Circuit Court rejected Parrish’s arguments, he appealed to our Court. Having reviewed the record, we AFFIRM.
I. BACKGROUND
During the-relevant time period, Parrish was employed by the KDOC as the Mechanical Maintenance Operations Supervisor for Kentucky State Reformatory (“KSR”). On July 20, 2010, while on duty at KSR, Parrish lost consciousness, fell, and hit his head. After he regained consciousness, Parrish remained at work, but continued to feel ill. At some point, he told, one of his superiors, Deputy Warden Pollack, that he believed he should leave work and go to the hospital.-' In accordance with the KDOC’s policies, Pollack requested Parrish to report to the Captain’s office to provide a urine sample for a drug test before he left the premises for medical care. Parrish complied and reported to the Captain’s office where Lt. Darin R. Wilder collected the urine sample.
Parrish’s urine sample was ultimately transported to Phamatech, Inc. laboratory, via UPS, for drug screen testing. Approximately one week later, the KDOC received the drug test results back from Phamatech. The results indicated that Parrish’s urine tested positive for benzoy-lecgonine (metabolized cocaine): Two days later, KDOC Commissioner LaDonna Thompson placed Parrish on special leave with pay-for investigative purposes; Parrish was notified that the reason for the suspension was to investigate suspicions that Parrish was under the influence of an illegal substance in the workplace.
On August 8, 2010, KSR Warden Cookie Crews notified Parrish that the KDOC intended to dismiss him from his position. Warden Crews conducted a pre-termi-nation hearing with Parrish and his attorney on August 17, 2010. On August 31, 2010, 'Warden Crews issued a letter to Parrish notifying him that his employment with the KDOC would, terminate at the close of business on September 1, 2010. *508Warden Crews provided the following reasons for Parrish’s termination:
Misconduct,' ie., on July 20, 2010, you consented to a post accident urinalysis after falling and hitting your head. The results from the drug testing company, Pharmatech [sic], Inc., were received at the Department of Corrections, Division of Personnel, on July 27, 2010, revealing a positive test .for Cocaine 100 ng/ml, with the screen.cutoff being 150 ng/ml. The results of this drug screen were reported to me in the ordinary course of business by Pharmatech [sic], Inc., pursuant to its contractual obligations, and were relied upon by me in making this decision.
Warden Crews stated that Parrish’s actions were a violation of the KDOC’s Drug Free Workplace Employee Drag Testing Policy 3.11, the KDOC Code of Ethics, CPP1 3.1, and,, constituted misconduct pursuant to 101 KAR21:345.
Parrish appealed his dismissal to the Kentucky Personnel Board. Following an evidentiary hearing, the Hearing Officer issued Findings of Fact, Conclusions of Law, and Recommended Order on March 17, 2011, in which she concluded that the KDOC’s termination of Parrish was not authorized.3 The Hearing Officer based this conclusion on her factual finding that Parrish’s urine sample was not. immediately sealed-in a vile. In so, finding, the Hearing Officer chose to believe Parrish instead of Lt. Wilder. Because the Hearing Officer did not believe that the KDOC established an unbroken chain of custody for Parrish’s urine, she chose to disregard the urine test results in considering the propriety of Parrish’s termination.4 Since the drug test results were the only evidence the KDOC produced to justify Parrish’s termination, the Hearing Officer determined that her findings mandated a decision in Parrish’s favor.
Alternatively, the Hearing Officer concluded that the KDOC failed to produce evidence that cocaine is a substance “which has, or may have, the effect of impairing the mind or body, or otherwise affect the senses, responses, motor function, or alter a person’s perception while on duty.” The Hearing Officer concluded that because the KDOC did not present some expert testimony to establish this fact, it could not prove that Parrish violated its policies.
The KDOC filed exceptions with the Board. The Board rejected a number of the Hearing Officer’s recommended findings. Specifically, the Board determined that Lt. Wilder’s testimony regarding the collection and storage of Parrish’s urine was more credible and believable than Parrish’s testimony. As a result, the Board found that the KDOC proved Parrish’s “urine sample sent to the laboratory was [Parrish’s] and has established the [KDOC’s] chain of custody.” The Board also rejected the Hearing Officer’s deter*509mination that the KDOC’s failure to put forth medical evidence regarding the system altering nature of cocaine was fatal. The Board concluded that it was not seriously in dispute that “cocaine is a drug that can be mind altering or otherwise affect the senses” and that it “is certainly aware that cocaine is an illicit substance and is contraband.” Based on its findings, the Board concluded that the KDOC’s termination of Parrish was “for just cause.”
Parrish filed a petition for judicial review in the Franklin Circuit Court. After reviewing the récord, the circuit court affirmed, holding that while “reasonable people may disagree about the underlying facts, the Board acted within its discretion in adopting findings of fact and conclusions of law that were supported by substantial evidence in the record, even though they deviated from the recommendation of the hearing officer.”
This appeal followed.
II. STANDARD OP REVIEW
Review of a state termination is a multi-tiered process, which begins outside the courts of justice at the administrative level with the Kentucky Personnel Board. See KRS5 13B.020. If the termination dispute cannot be resolved by agreement of the parties, a hearing officer is obligated to preside over an administrative hearing where the parties are permitted to introduce evidence and make appropriate arguments to support their positions. See KRS 13B.080. Generally, the hearing.officer has sixty (60),days after receiving a copy of the official record to issue “a written recommended order which shall include his findings of fact, conclusion of law, and recommended disposition of the hearing, including recommended penalties, if any.” KRS 13B.110(1). Each party then has “fifteen (15) days from the date the recommended order is mailed within which to file exceptions to the recommendations with the agency head.” KRS 13B.110(4).
The final administrative order, must be issued by the agency head, .not the hearing officer. In making, the final order, the agency head must consider the record, the hearing officer’s findings and recommendations, and any exceptions filed by the parties. KRS 13B.120. “The agency head may accept the recommended order of the hearing officer and adopt it as the agency’s final order, or it may reject or modify, in whole or in part, the recommended order, or it may remand the matter, .in whole or in part, to the hearing officer for further proceedings as appropriate.” KRS 13B.120(2). “If the final order differs from the recommended order, .it shall include separate statements of findings of fact and conclusions of law.” ICRS 13B.120(3).
After the agency head issues its final order, the parties may appeal to the courts of justice “by filing a petition-in the Circuit Court of venue ... within thirty (30) days after the final order of the agency is mailed or delivered by personal service.” KRS 13B.140(1). On appeal, the circuit court is not to substitute its own judgment as to questions of fact, but may either affirm the final order of the agency, or reverse it, in whole or in part. KRS 13B.150(2).
A party aggrieved by the circuit court’s final judgment may then appeal to the Court of Appeals. KRS 13B.160. In reviewing an agency decision, we must be ever mindful of our limited role. If the agency’s decision is supported by substantial evidence, we must uphold that decision, even if there is conflicting evidence in the record and even if we might have reached a different conclusion. 500 Associates, Inc. v. Natural Res. & Envtl. Prot. *510Cabinet, ..204 S.W.3d 121, 181 (Ky.App.2006).
Substantial evidence does not mean that the record could not support any other conclusion. “The test of sub-stantiality of evidence is whether when taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable men.” Kentucky State Racing Comm’n v. Fuller, 481 S.W.2d 298, 308 (Ky.1972). -If there is substantial evidence in. the record to support the Board’s findings, they -will 'be upheld, despite other conflicting evidence in the record. Kentucky Comm’n on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky.1981); see also KRS 13B.150(2). We may not reinterpret or reconsider the merits of the claim, nor can we substitute our judgment for that of the agency as to the weight of the evidence. Id. We further note that “[i]n its role as a finder of fact, an administrative agency is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses[.]” Aubrey v. Office of Attorney Gen., 994 S.W.2d 516, 519 (Ky.App.1998); see also McManus v. Kentucky Ret. Sys., 124 S.W.3d 454, 458 (Ky.App.2003).,
III. Analysis
A. Urine Test Results
Parrish’s first assignment of error concerns the admissibility of the urine test results. Parrish maintains that insufficient evidence existed to establish the integrity of the urine sample. Accordingly, he believes that the Board erred in relying on the sample to.conclude that the KDOC had just cause to terminate him.
“Logically, a proper foundation requires the proponent to prove that the proffered evidence was the same evidence actually involved in the event in question and that -it remains materially unchanged from the time of the event until its admission.” Thomas v. Commonwealth, 153 S.W.3d 772, 779 (Ky.2004). “[A] chain of custody is required for blood samples or other specimens taken from a human body for the purpose of analysis to show that the sample tested in the laboratory was the same sample drawn from the victim.” Mollette v. Kentucky Personnel Bd., 997 S.W.2d 492, 495 (Ky.App.1999).
Nevertheless, our appellate courts have been clear that admissibility does not require, proof of “a perfect chain of custody or to eliminate all possibility of tampering or misidentification, so long as there is persuasive evidence that the reasonable probability is that the evidence has not been altered in any material respect.” Id. (internal quotation omitted).
In Mollette, we held that a sufficient chain of custody was established for admission of the evidence where various chain of- custody documents were signed and personnel testified regarding their routine procedures for handling a specimen. Id. at 496. We were clear that the chain of custody for admissibility purposes does not need to include- eyewitness testimony recollecting every minute the specimen was handled during the testing. The fact that some personnel involved in the process cannot recall handling the specific sample at issue is not' fatal. Instead, “testimony as to routine practice sufficient to dispel any inference of substitution or change in the contents of the exhibit in question may be used to establish a chain of custody.” Id.
In this case, there was testimony that Parrish provided a urine sample to Lt. Wilder, that Lt. Wilder complied with procedures in handling the sample, that Parrish signed chain of custody documents related to the sample, that the sample was *511delivered to the laboratory intact, and that once at the laboratory, the sample was tested according the laboratory’s general testing procedures and protocols. This evidence met the admissibility standard. See Allen v. Kentucky Horse Racing Auth, 136 S.W.3d 54, 60 (Ky.App.2004).
The alleged gaps in custody Parrish points out do not render the urine test results inadmissible. Rather, they “go to the weight of the evidence rather than to its admissibility.” Mollette, 997 S.W.2d at 495. In considering what weight to place on the urine sample, the Hearing Officer concluded that Parrish’s version of the events was more credible than Lt. Wilder’s version. However, the hearing officer is not the final fact-finder in administrative proceedings. See KRS 13B.120. The Board acted well within its statutory authority when it decided to reject the Hearing Officer’s conclusions. The Board reviewed the record and determined that Lt. Wilder’s testimony was more credible than Parrish’s testimony. The Board justified its conclusion with detailed findings. Having reviewed the record, we agree with the Franklin Circuit Court that the Board’s findings in this regard are supported by substantial evidence.
B. Evidence Concerning Cocaine
Lastly, Parrish claims that there is not sufficient evidence in the record to prove that cocaine is a mind-altering drug as described in the Kentucky Correctional Policies. Accordingly, he does not believe that the KDOC proved that it had just cause to terminate him for violating its policies.
The KDOC’s policy CPP 3.11 provides that “an employee shall not ... report to work under the influence of alcohol or other substance or substances.” The policy defines being “under the influence” to include an employee whose “blood or urine has a detectable amount of alcohol or any other substance or substances.” Id. It also defines “other substance or substances” as including: “any drug, chemical or substance that has, or may have, the effect of impairing the mind or body, or otherwise affect the senses, responses, motor function, or alter a person’s perception on duty.” Id,
The Hearing Officer determined that the KDOC failed to prove by a preponderance of the evidence that Parrish violated this policy, because it did not offer evidence that cocaine is a drug that can impair the mind or the body or otherwise affect the senses. The Board rejected the Hearing Officer’s finding, stating that it was “certainly aware that cocaine is an illicit substance and is contraband by its nature.” The Board stated that, although the KDOC may not have introduced a learned treatise into evidence demonstrating that cocaine has the effects cited in CPP 3.11, it is not in dispute that cocaine is a drug that can be mind altering or otherwise affect the senses.
While the Hearing Officer was correct regarding her limited ability to take judicial notice of facts by relying on matters outside the agency’s area of expertise, we do not believe that this was a case that required her to do so. The Hearing Officer is certainly permitted to rely on and cite to state law. She needed to look no further than Kentucky’s Penal Code to find that our General Assembly has defined cocaine in such a way that it would clearly fall within the type of substances prohibited by the KDOC’s policy. In the Commonwealth, cocaine is regulated as a Schedule II Controlled Substance. See KRS 218A.070(l)(d). Schedule II controlled substances are those that have a “high potential for abuse” and the abuse of which “may lead to severe psychic or phys*512ical dependence.” KRS § 218A.060 (emphasis added). Given the manner in which our General Assembly has chosen to treat cocaine, it is beyond any reasonable dispute that cocaine is a substance which can, at the very least, affect one’s “senses, responses, [or] motor function.” Accordingly, we agree with the Board and the Franklin Circuit Court that the proof was sufficient to make a finding that Parrish violated thé 'KDOC’s policies when his urine sample collected during work hours tested positive for cocaine.
IV. Conclusion
For the reasons set forth above, we find no error. The Order of the Franklin Circuit Court is affirmed.
ALL CONCUR.
. Kentucky Corrections Policies and Procedures.
. Kentucky Administrative Regulations.
. We will discuss only the findings and conclusions relevant to deciding the instant appeal.
. The Hearing Officer concluded that because there was not a clear, unbroken chain of custody the KDOC was required to produce some evidence tending to show “it improbable that the urine sample was either exchanged with another sample or contaminated or tampered with, and to show that the actions taken to preserve the integrity of the urine sample were reasonable under the cir- . cumstances.” Ultimately, the Hearing Officer determined that the KDOC did not present any evidence capable of establishing such issues in its favor.- As such, the Hearing Officer gave "no weight to the evidence presented by the Department in connection with the urine sample provided by Parrish.”
. Kentucky Revised Statutes. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284104/ | GEORGE W. DRAPER III, JUDGE
The Office of the Public Counsel (hereinafter, “Public Counsel’,’), appeals, from an , order entered by the Missouri Public Service Commission (hereinafter, "the PSC”), granting Liberty. Energy (Midstates) Corp. d/b/a Liberty Utilities’ (hereinafter, “Liberty”)1 request for an increase to its Infrastructure System Replacement Surcharge (hereinafter, “ISRS”). Because the PSC failed to follow the plain language of its statutory mandates, its order is unlawful. This Court reverses the PSG’s order, and the case is remanded.
Background
Liberty is a natural gas provider. It is a “public utility” and a “gas corporation.” Sections 386.020(43) and 386.020(18), RSMo Supp. 2013.2 The PSC is a Missouri administrative agency charged with the regulation of all public utilities. Sections 386.040 and 386.250(1), RSMo 2000; see also State ex rel MoGas Pipeline, LLC v. Missouri Pub. Serv. Comm’n, 366 S.W.3d 493, 496 (Mo. banc 2012). Public Counsel is appointed by the director of the department of economic development and may represent the public interest in any proceeding before the PSC and in appeals from the PSC’s orders.. Sections 386,700 and 386.710, RSMo 2000; Pub. Serv. Comm’n of State v. Missouri Gas Energy, 388 S.W.3d 221, 224 (Mo.App.W.D.2012).
In 2012, the PSC authorized Liberty’s purchase of substantially all of the assets that Atmos Energy Corporation (hereinafter, “Atmos”) used to provide natural gas and transportation services in Missouri. The PSC issued new certificates of convenience and necessity to Liberty for the service areas Atmos previously served. Further, the PSC approved Liberty’s adoption of Atmos’ ISRS tariff.3
Gas corporations are permitted to recover certain infrastructure system replacement costs outside of a formal rate case though a surcharge on their customers’ bills. When a petition to modify an ISRS is filed, the PSC staff must conduct an examination of the proposed ISRS. Section 393.1015.2, RSMo Supp. 2003. The examination may scrutinize the petitioning gas corporation’s information to confirm the costs are in accordance with the ISRS code provisions and confirm the proposed charges are calculated properly. A report of the examination may be submitted to the PSC no later than sixty days after the petition was filed. Section 393.1015.2(2).
In July 2013, Liberty filed a petition with the PSC seeking an adjustment of its *523ISRS rate schedule. Liberty sought the adjustment to recover costs incurred in connection with ISRS-eligible infrastructure system replacements made from June 1, 2012, through May 31, 2013. After Liberty filed .its petition for an adjustment of its ISRS rate schedule, the PSC staff conducted an investigation.
During the examination of Liberty’s petition, the PSC staff inspected thirty-six of the two hundred seventy-five projects for which Liberty sought recovery. The projects investigated compromised approximately fifty-eight percent of the costs for which Liberty 'sought recovery.4 The PSC staff also examined Liberty’s project sub-ledger, which indicated, inter alia, whether a project was performed for the integrity of the overall system or was for growth.
The PSC staff submitted its report to the PSC on September 3, 2013. The report noted that Liberty included some growth' projects in its application, which are not eligible for recovery in an ISRS. The PSC staff removed those projects from its calculations. The PSC staff also identified other errors and omissions in Liberty’s data, including: summation errors; errors in accumulated depreciation; deferred income taxes, property taxes depreciation rates, and conversion factors; and formula errors. The report was updated on September 20, 2013, and September 26, 2013, providing amended revenue figures and customer class rates based on additional data from Liberty.
On September 9, 2013, Public Counsel filed a motion, requesting, the PSC reject Liberty’s.ISRS petition or schedule an evi-dentiary hearing. Public Counsel asserted, inter alia, Liberty was seeking to recover expenses in its ISRS application that were not authorized by section 393.1009(5). The PSC held an evidentiary hearing on September 26,2013.
At the evidentiary hearing, Liberty’s president testified that the requested ISRS rate increase included costs to cover damage to Liberty’s facilities caused by a contractor or another third party. Public Counsel argued that Liberty should not recover expenses for its infrastructure that was replaced because it was damaged accidentally or negligently- by a third party. Public Counsel maintained that Liberty’s replacement of the pipe that was damaged accidently during excavation did not satisfy the section 393.1009(5)(a) requirement that the replacement was for “existing facilities that have worn out or are in a deteriorated condition.”
The PSC approved the ISRS increase for Liberty, concluding that “damaged” infrastructure is synonymous with “deteriorated.” The' PSC found replacing the pipes that were damaged by a third party qualified as a “gas utility project” pursuant to section 393.1009(5)(a), and the projects were “extending the useful life or enhancing the integrity of the pipeline system components” pursuant to section 393.1009(5)(b). Accordingly, Liberty filed a new ISRS tariffs in compliance with the PSC’s order, and the PSC approved the tariffs.
Public Counsel filed an application for rehearing, which the PSC denied. Public Counsel appealed, and the court of appeals affirmed. This Court granted transfer pursuant to Mo. Const, art. V, sec. 10, after opinion by the court of appeals.1
Discussion
Standard of Review
“This Court reviews the decision of the PSC rather than that of the circuit *524court.” State ex rel. Praxair, Inc. v. Missouri Pub. Serv. Comm’n, 344 S.W.3d 178, 184 (Mo. banc 2011). Appellate review of a PSC order is two-pronged: first, to determine whether the PSC’s order is lawful; and second, to determine whether. the PSC’s order is reasonable. MoGas Pipeline, LLC, 366 S.W.3d at 496-96; see also section 386.510. The appellant bears the burden of proof to demonstrate that the PSC’s order is unlawful or unreasonable. State ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n of State, 120 S.W.3d 732, 734 (Mo. banc 2003); section 386.430, RSMo 2000. The lawfulness of the PSC’s order is determined “by whether statutory authority for its issuance exists, and all legal issues are reviewed 'de novo.” Office of Public Counsel v. Missouri Pub. Serv. Comm’n, 409 S.W.3d 371, 375, (Mo. banc 2013) (quoting AG Processing, Inc., 120 S.W.3d at 734). This Court need not reach the issue of the, reasonableness of the PSC’s order if it finds, the order unlawful. MoGas Pipeline, LLC, 366 S.W.3d at 496. The PSC’s order is determined to be reasonable when “the order is supported by substantial, competent evidence on the whole record; the decision is not arbitrary or capricious!;] or where the [PSC] has not abused its discretion-.”- Id. (quoting Praxair, Inc., 344 S.W.3d at 184).
Lawfulness of the PSC’s order
Public Counsel raises one point on appeal, claiming the PSC erred in approving Liberty’s ISRS surcharge because the PSC included expenses that are not authorized by statute. Public Counsel argues that Liberty’s replacement of its infrastructure that was damaged by a third party does not meet the statutory requirement of “worn out” or ih a “deteriorated condition.'” Public Counsel asserts that the PSC’s order authorizing Liberty to recover costs incurred in replacing infrastructure, regardless of whether the replacement was due to- damage caused by human conduct, is contrary to the plain language and the legislative intent of the ISRS statutes. Accordingly, Public Counsel contends, by including these costs in its ISRS application, Liberty’s request exceeded the scope of the statute.
A gas company is authorized to petition the PSC to establish or change an ISRS to “allow for the adjustment of the gas corporation’s rates and charges to provide for the recovery of costs for eligible infrastructure replacements.”, Section 393.1012.1. Eligible infrastructure replacements are defined as gas utility plant projects that “[d]o not increase revenues by directly connecting the infrastructure replacement to new customers;” “[a]re in service and used and useful;” “[w]ere not included in the gas corporation’s rate base in its most recent general rate case;” and “[r]eplace or extend the useful life of an existing infrastructure.... ” Section 393.1009(3). A “gas utility plant project” is further limited to include only “[mjains, valves, service lines, regulator stations, vaults, and other pipeline system components installed to comply with state or federal safety requirements as replacements for existing facilities that have worn out or are in deteriorated condition ...” Section 393.1009(5)(a).
At issue in this case is whether the damage replacement caused by human conduct is encompassed by the plain language of section 393.1009(5)(a). To determine whether this type of damage replacement is contrary to the plain language of the statute, this Court must engage in statutory interpretation. The primary rule of statutory interpretation is to effectuate legislative intent through reference to the plain and ordinary meaning of the statutory language. Bateman v. Rinehart, 391 S.W.3d 441, 446 (Mo. banc 2013). This *525Court must presume every word, sentence or clause in a statute has effect, and the legislature did not insert superfluous language. Wehrenberg, Inc. v. Dir. of Revenue, 352 S.W.3d 366, 367 (Mo. banc 2011). “Absent a statutory definition, words used in statutes are given their plain and ordinary meaning with help, as needed, from the dictionary.” Balloons Over the Rainbow, Inc. v. Dir. of Revenue, 427 S.W.3d 815, 825 (Mo. banc 2014) (quoting Am. Healthcare Mgmt., Inc. v. Dir. of Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999)).
To determine whether damage caused by human conduct is included in a gas utility plant project, this Court must determine if the “existing facilities” were “worn out or ... in deteriorated condition.” Section 393.1009(5)(a). “Deteriorate,” as used in section 393.1009, is not defined by statute. Accordingly, the meaning is to be defined by the plain and ordinary meaning as derived from the dictionary. See Balloons Over the Rainbow, 427 S.W.3d at 825. The definition of “deteriorate” is -“to make inferior in quality or value,” “to grow worse,” and “become impaired in quality, state, or condition.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 616 (1993).
The PSC claims that it could take an expansive view of the definition of “deteriorate” because there is more than one dictionary definition. While one definition of “deteriorate” could be construed to mean a condition that diminishes over time, PSC avers that another definition could mean the condition was made inferi- or because it was “impaired in quality, state, or value.” By only accepting a definition of “impaired in quality, state, or value,” the PSC asserts that because the pipes were damaged by a third party, they were made inferior or became impaired in quality, state, or value. Hence, the PSC concludes that it followed the plain language of the statute. .
However, the PSC’s argument selects one of the multiple definitions of “deteriorate” and expands the meaning of that definition to reach its desired conclusion. The PSC ignores the clear language provided by the dictionary. In the dictionary definition of “deteriorate” as “impaired in quality, state, or value,” the definition further clarifies its meaning by adding the synonymous cross-reference of “degenerate” and an illustration of usage that “<idle houses WEBSTER’S THIRD at 616. Clearly, this definition indicates that deterioration is a gradual process that happens over a period of time rather than an immediate event. Had the legislature intended to include the replacement of gas utility plant projects, which were damaged by a third party’s negligence, it could have inserted différent langúage into the statute to effectuate that intent.
Accordingly, the PSC’s interpretation of the statute is incorrect because it would allow any damage to be eligible for an ISRS surcharge rather, than the statutorily limited gas utility plant project as delineated by section 393.1009(5)(a)'.. The PSC’s interpretation conflicts with the clear legislative intent as demonstrated by the plain language of the statute. The PSC erred in relying upon its presumption that any change to a gas utility plant project qualifies for an ISRS surcharge. Only infrastructure which is in' a worn out' or deteriorated condition, as stated herein, is eligible for an ISRS surcharge. Hence, the PSC’s order is not lawful because it is contrary to the plain language of the statute, which limits projects that qualify for an ISRS surcharge.
Conclusion
The PSC’s reliance upon the incomplete definition of “deteriorate” resulted in an *526order that was unlawful. Accordingly, the PSC’s order is reversed, and the case is remanded....
All concur.
.In October 2013, the PSC granted Liberty's application for the name change from Liberty Energy (Midstates) Corp. d/b/a Liberty Utilities to Liberty Utilities (Midstates Natural Gas) Corp. d/b/a Liberty Utilities, effective November 1, 2013,
. All further statutory references herein are to RSMo Supp. 2013, unless' otherwise indicated,
. Like its predecessor ■ Atmos, Liberty has a specific ISRS rate for each of its three districts.
. Due to the time constraints in an ISRS request, the PSC staff only could investigate a ' limited number of projects.' ' | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5286548/ | JEFFREY W. BATES, P.J.—
OPINION AUTHOR
Following a jury trial, Aaron Berg (Berg) was civilly committed as a sexually violent predator (SVP). See § 632.480 et seq.1 Berg contends the court: (1) abused its discretion in admitting evidence of Berg’s end-of-confinement report because the report was inadmissible pursuant to § 632.483; and (2) erred by submitting the verdict-director because it required the jury to consider issues of law. Finding no merit in either contention, we affirm.
In October 2013, the attorney general filed a petition to civilly commit Berg as an SVP. The petition alleged that Berg had been convicted in 2004 of first-degree statutory sodomy pursuant to § 566.062 and was scheduled to be released from confinement in the Department of Corrections (DOC) on October 30, 2013. The State’s petition included the following attachments: (1) the written findings and conclusions of Dr. Nena Kircher (Dr. Kircher), a DOC psychologist who had conducted Berg’s end-of-confinement evaluation; (2) an assessment by a four-member multidisciplinary team (the MDT); and (3) a determination by the five-member prosecutors’ review committee (the PRC). Dr. Kircher, the MDT and the PRC each found that Berg may meet the definition of an SVP.
A jury trial was held on the State’s petition in June 2015. We need not detail the evidence at length because Berg does not challenge its sufficiency. As relevant here, the State called two psychologists as witnesses. Based upon an evaluation of Berg, each psychologist concluded that Berg met the definition of an SVP. Dr. Kircher was one of those witnesses. During her testimony, Berg’s counsel objected to the admission of Dr. Kircher’s end-of-confinement report on the ground that it was inadmissible pursuant to § 632.483.
After presentation of the evidence, the issue of whether Berg was an SVP was submitted to the jury in Instruction No. 6, the State’s verdict-directing instruction. Counsel for Berg objected to Instruction No. 6 because it required the jury to find that: (1) Berg had been convicted of first-degree statutory sodomy; and (2) this crime was a sexually violent offense. Defense counsel argued that these were not issues of fact for the jury to decide and that their inclusion in Instruction No. 6 was prejudicial. The court refused Berg’s alternative verdict-directing instruction and submitted Instruction No. 6.
The jury returned a verdict finding that Berg was an SVP. Berg filed a motion for new trial preserving the above allegations of error, which was denied. Thereafter, the trial court entered a judgment and commitment order directing that Berg be placed in the custody of the Department of Mental Health (DMH) for control, care and treatment. This appeal followed. Additional facts relevant to each of Berg’s two points of error will be included below.
Point 1
In Point 1, Berg contends the court erred in overruling his objection to evidence of Dr. Kircher’s end-of-confinement report. He claims that this evidence was inadmissible under § 632.483. We review this question of law de novo. See In *59Matter of the Care & Treatment of Murphy, 477 S.W.3d 77, 81 (Mo. App. 2015); Whitfield v. State, 250 S.W.3d 722, 723 (Mo. App. 2008).
Section 632.483 is part of the statutory-scheme to identify, commit and treat SVPs. When it appears that a person may meet the definition of an SVP, the “agency with jurisdiction” (the DOC in this case) is required to give written notice to the attorney general and the MDT. § 632.483.1. The MDT is a group consisting of no more than seven members created by the DMH and the DOC. § 632.483.4. In pertinent part, the notice shall include “[a] determination by either a psychiatrist or a psychologist” as to whether the person meets the definition of an SVP. § 632.483.2(3). The MDT then shall “assess” whether the person meets the definition of an SVP. § 632.483.4. The MDT’s “assessment” shall be made available to the attorney general and the PRC, which is composed of five members selected by the prosecutors coordinators training counsel. § 632.483.5. The PRC reviews the records of the person referred to the attorney general and then makes a “determination” of whether the person meets the definition of an SVP. § 632.483.5. Of particular relevance to Berg’s point, § 632.483.5 explicitly states that: “[t]he determination of the [PRC] or any member pursuant to this section or section 632.484 shall not be admissible evidence in any proceeding to prove whether or not the person is a [SVP].”
Berg rests his argument that § 632.483 precluded the admission of Dr. Kircher’s end-of-confinement report on two premises: (1) the report was a “determination” pursuant to § 632.483.2(3); and (2) Dr. Kircher was a “member” pursuant to § 632.483.5. Because § 632.483.5 prohibits the admission of the “determination” of the PRC or any “member” pursuant to §§ 632.483 and 632.484 in a proceeding to prove that a person is an SVP, Berg concludes (in reliance upon the above two premises) that Dr. Kircher’s end-of-confinement report was inadmissible. Berg’s point fails because his second premise is incorrect.
Berg’s argument relies upon In the Matter of the Care and Treatment of Bradley, 440 S.W.3d 546 (Mo. App. 2014). In that case, the western district of this Court examined the issue of whether the MDT’s assessment was inadmissible in an SVP proceeding because the MDT constituted a “member” pursuant to § 632.483. Id. at 557. In concluding the MDT’s assessment was admissible, the Bradley court explained:
Although section 632.483 uses the term “members” to refer to the individuals comprising both the [PRC] and the MDT, section 632.483.5 precludes the use of only “determinations.” According to section 632.483.4, the MDT does not make a determination — it makes an “assessment.” There are several individuals and entities in sections 632.483 and .484 that make “determinations” (e.g., the individual issuing the end-of-confinement report, the [PRC], the [trial court], and the [DMC]). But the MDT is not among these individuals and entities. Additionally, there is no mention whatsoever of the MDT in section 632.484; the only “members” referred to in section 632.484 are those forming the [PRC]. Thus, if we read the language, “any member pursuant to ... section 632.484,” to refer to the MDT, the statute would be nonsensical, as the MDT is not even part of section 632.484, and it does not make determinations of any kind. Consequently, section 632.483.5 does not preclude evidence regarding the MDT assessment.
Id. at 557-58 (footnote omitted).
Bradley does not support Berg’s argument. As noted above, “[t]he determina*60tion of the [PRC] or any member pursuant to this section or section 632.484 shall not be admissible evidence in any proceeding to prove whether or not the person is a [SVP].” § 632.483.5 (italics added). Bradley recognized that, although the term “members” is used to refer to the individuals comprising the MDT in § 632.483, the MDT does not make a “determination” — it makes an “assessment.” Bradley, 440 S.W.3d at 557. The instant case presents the opposite situation, but it leads to the same result. Here, Dr. Kircher, the individual issuing the end-of-confínement report, rendered a “determination.” See § 632.483.2(3) (requiring a “determination by either a psychiatrist or a psychologist”); Bradley, 440 S.W.3d at 558. However, as recognized in Bradley, the term “members” is only used in §§ 632.483 and 632.484 to refer to individuals comprising either the PRC or the MDT. Bradley, 440 S.W.3d at 557-58. In this case, Dr. Kircher was neither a member of the PRC or the MDT. Accordingly, Berg’s objection to Dr, Kircher’s end-of-confínement report based upon § 632.483.5 was properly overruled, and the admission of the report was not an abuse of discretion. Point 1 is denied.
Point 2
In Point 2, Berg challenges the trial court’s submission of Instruction No. 6 to the jury. That instruction provided as follows:
INSTRUCTION NO. 6
If you believe the evidence clearly and convincingly establishes:
First, that the respondent was found guilty of statutory sodomy first degree in the Circuit Court of St. Clair County, State of Missouri, and Second, that the offense for which the respondent was convicted was a sexually violent offense, and Third, that the respondent suffers from a mental abnormality, and Fourth, that this mental abnormality makes the respondent more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility,
then you will find that the respondent is a sexually violent predator.
However, unless you find and believe the evidence has clearly and convincingly established each and all of these propositions, you must find the respondent is not a sexually violent predator.
As used in this instruction, “sexually violent offense” includes the offense of statutory sodomy first degree.
As used in this instruction, “mental abnormality” means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior.
As used in this instruction, “predatory” means acts directed towards individuals, including family members, for the primary purpose of victimization.
Berg contends the trial court erred by giving Instruction No. 6 because the first two paragraphs of the instruction submitted questions of law, rather than issues of fact for the jury to decide. Berg argues that: (1) he did not contest that he was previously convicted of first-degree statutory sodomy in 2004; and (2) first-degree statutory sodomy is a sexually violent offense as a matter of law pursuant to § 632.480. Therefore, Berg claims the inclusion of these issues in Instruction No. 6 was “a diversion from the ultimate factual issue of the case whether [he] has a mental abnormality which makes him more likely than not to reoffend in a sexually violent *61manner[.]” We find no merit in this contention.
Whether the jury was properly instructed is a question of law which this Court reviews de novo, Morgan v. State, 272 S.W.3d 909, 911 (Mo. App. 2009); In re Ginnery, 295 S.W.3d 871, 873 (Mo. App. 2009); see also Peel v. Credit Acceptance Corp., 408 S.W.3d 191, 198 (Mo. App. 2013) (employing de novo review to determine whether a verdict-director contained all necessary elements where no applicable MAI existed for the cause of action). “Although our review is de novo, we do view the evidence in the light most favorable to the submission of the instruction and we disregard evidence and inferences to the contrary.” Bradford v. BJC Corp. Health Services, 200 S.W.3d 173, 178-79 (Mo. App. 2006). Furthermore, “we will not reverse a verdict for instruction error unless the error is prejudicial in that it materially affects the merits of the action.” St. Charles County v. Olendorff, 234 S.W.3d 492, 495 (Mo. App. 2007).
Where applicable, the use of an MAI verdict-directing instruction is mandatory. Rule 70.02(b). In SVP cases, however, there are no applicable MAI instructions. Care and Treatment of Scates v. State, 134 S.W.3d 738, 742 (Mo. App. 2004). In such circumstances, Rule 70.02(b) requires that non-MAI instructions must be “simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” Id. The trial court also must give an instruction that follows the substantive law and can be readily understood by the jurors. Morgan, 272 S.W.3d at 911.
In order for an individual to be confined as an SVP, the jury must find that the individual: “1) has a history of past sexually violent behavior; 2) a mental abnormality; and 3) the abnormality creates a danger to others if the person is not incapacitated.” Murrell v. State, 215 S.W.3d 96, 105 (Mo. banc 2007); see also § 632.480(5); § 632.495.1; In re Doyle, 428 S.W.3d 755, 762 (Mo. App. 2014); In re Jones, 420 S.W.3d 605, 609 (Mo. App. 2013); In re Morgan, 398 S.W.3d 483, 485 (Mo. App. 2013). Instruction No. 6 follows this substantive law, and Berg does not contend otherwise in this appeal. Neither does Berg argue that the instruction was inconsistent with the dictates of Rule 70.02(b). Instead, Berg relies on In re Care and Treatment of Gormon, 371 S.W.3d 100 (Mo. App. 2012), to argue that the first two paragraphs of Instruction No. 6 are not elements that should have been submitted to the jury, but questions of law for the court to decide. In Gormon, the eastern district of this Court considered whether a jury had been properly instructed in an SVP proceeding when the verdict-director required the jury to find that the offender had been found guilty of rape, but did not require the jury to determine' whether rape qualified as a sexually violent offense. Id. at 106. The Court determined that whether rape was a sexually violent offense was a question of law that the trial court, rather than the jury, could properly decide. Id. Thus, it found that the verdict-director properly instructed the jury on determining whether the appellant was an SVP. Id. For the following reasons, Gor-mon does not support Berg’s argument.
First, the analysis in Gorman is inconsistent with Murrell, which requires the jury to find that the individual has a history of past sexually violent behavior. Murrell, 215 S.W.3d at 105 (involving a verdict-directing instruction which required the jury to find, inter alia, that the respondent had pled guilty to second-degree child molestation and that said crime was a sexually violent offense); see also Lewis v. State, 152 S.W.3d 325, 328-29 *62(Mo. App. 2004) (holding that the jury was correctly instructed via a verdict-directing instruction which required the jury to find, inter alia, that the respondent had pled guilty to forcible sodomy and that said crime was a sexually violent offense). This Court is constitutionally bound to follow the most recent controlling decision from the Supreme Court of Missouri. MO. CONST. art. V, § 2; Forester v. Clarke, 334 S.W.3d 581, 583-84 (Mo. App. 2011).
Second, the verdict-director from Gor-mon required the jury to find that the appellant had been found guilty of rape, and that portion of the verdict-director was not challenged on appeal. Id. at 105-06. Consequently, Gormon did not address whether the verdict-director should have required the jury to find that the appellant had, in fact, been found guilty of rape. Id. Accordingly, Gormon does not support Berg’s assertion that the first paragraph of Instruction No. 6 (which required the jury to find that Berg had been found guilty of first-degree statutory sodomy) should have been omitted.
Third, Gormon was decided prior to State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014), and therefore does not reflect Jackson’s explanation of the jury’s role in adversarial proceedings. In a criminal case addressing the issue of when a trial court is required to instruct the jury on lesser-included offenses, Jackson held that the jury’s right to disbelieve all or part of the evidence constitutes a “basis in the evidence” under § 556.046 to acquit the defendant of a greater offense and convict him or her of a lesser-included offense (as is necessary to warrant instruction on the lesser offense). Id. at 399. This conclusion necessarily followed from the recognition that “[a]ll decisions as to what evidence the jury must believe and what inferences the jury must draw are left to the jury, not to judges deciding what reasonable jurors must and must not do.” Id. Jackson then acknowledged the straightforward corollary of this principle: “evidence never proves any element until the jury says it does.” Id. at 392. This foundational principle from Jackson has not been limited to criminal cases, and we conclude that it applies with equal force in this civil involuntary commitment action. See, e.g., Wampler v. Speake, 479 S.W.3d 771, 775 (Mo. App. 2016); Perren v. Perren, 475 S.W.3d 741, 744 (Mo. App. 2015); Black River Electric Coop. v. People’s Community State Bank, 466 S.W.3d 638, 640 (Mo. App. 2015). Consistent with the dictates of Jackson, Instruction No. 6 required the jurors, and the jurors alone, to determine whether they believed the State’s evidence with respect to each element necessary to involuntarily commit Berg to the DMH’s custody. See Jackson, 433 S.W.3d at 392.2 Berg’s assertion that the jury should not have decided whether he had been convicted of first-degree .statutory sodomy because he did not contest the issue is similarly answered by Jackson. “No matter how compelling (or even uncontested) the evidence may be on this element, it is for the jury — and only the jury — to decide whether the state” has met its burden of proving the element. Jackson, 433 S.W.3d at 400 n.11.3
*63Even if Instruction No. 6 should not have submitted the first and second paragraphs for the jury to decide, however, reversal would not be warranted in this case as we discern no prejudice to Berg. See Rule 70.02(c). The burden of proving prejudice falls on Berg. Peel, 408 S.W.3d at 201. Berg’s counsel told the jury during opening statements that Berg had pled guilty to first-degree statutory sodomy and that first-degree statutory sodomy was a sexually violent offense. Berg testified that he had been convicted of first-degree statutory sodomy, and a certified copy of his conviction for first-degree statutory sodomy was admitted into evidence. Both of the State’s witnesses also testified that Berg had been convicted of first-degree statutory sodomy and that first-degree statutory sodomy qualified as a sexually violent offense. Therefore, the topic of Berg’s conviction was already before the jury multiple times before jury instructions were given. We fail to discern how the inclusion of this same information in the first and second paragraphs of Instruction No. 6 — information that Berg does not dispute on appeal and for which no objection was lodged at trial — could have materially affected the merits of the action. Point 2 is denied.
The judgment of the trial court is affirmed.
DON E. BURRELL, J. — CONCUR
MARY W. SHEFFIELD, C.J.— CONCUR
. All statutory references are to RSMo Cum. Supp. (2013). All rule references are to Missouri Court Rules (2016).
. Though the jury was instructed here that the term "sexually violent offense” included first-degree statutory sodomy, the jury nevertheless could have determined that the State did not prove that element. This is because “[a] jury always can disbelieve all or any part of the evidence, just as it always may refuse to draw inferences from that evidence.” Jackson, 433 S.W.3d at 392 (emphasis in original).
. Jackson noted that the only step a defendant in a criminal case must take to require the State to prove every element of its case is to enter a plea of "not guilty.” Jackson, 433 S.W.3d at 406. Although this is a civil pro*63ceeding, the fact remains that Berg disputed his status as an SVP. Therefore, the State was required to prove each element of its case in order to involuntarily commit Berg to the custody of the DMH. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284107/ | ORDER
PER CURIAM
Jeffrey Smith appeals the trial court’s judgment after a jury convicted him' of first-degree robbery, armed criminal action, and felonious restraint.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served, by a written opinion. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for, this order.
The judgment of the trial court is affirmed in accordance with Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284108/ | ORDER
, PER CURIAM.
Felicia Smith appeals from the sentence and judgment entered following a bench trial convicting her of driving while revoked and driving while intoxicated. 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 jurisprudefitial 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/5284109/ | ORDER
PER CURIAM.
Eugene Carrington (“Claimant”) appeals the decision of the Labor and Industrial Relations Commission denying him uneniT ployment benefits. We find the Commission did not ‘err in denying Claimant unemployment benefits.
No jurisprudential purpose would be served by a written opinion. We have, however, provided the parties a memorandum setting forth the reasons for our deci*559sion. The decision, of the Commission is affirmed under Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284110/ | ■ORDER
PER CURIAM
Edward Jefferson appeals the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief without an evidentia-ry hearing. Jefferson argues the motion court erred in overruling his motion because his appellate counsel was ineffective by failing to raise a relevant claim on appeal.
We have reviewed the briefs of the parties and the record on appeal. We find the judgment of the motion court was based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the: facts in detail and restating principles of law would' have' nd prece-dential value. The partiés have been furnished with a memorandum for their information only, setting forth the reasons for this order.
The judgment is affirmed pursuant to Missouri Supreme Court Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284111/ | *560Order
Per Curiam:
St. Joseph Medical Center appeals the judgment of the Circuit Court of Jackson County, Missouri, dismissing, with prejudice, its petition against John R. Humphrey and Leslie Humphrey. Because a published opinion would serve no jurisprudential purpose, we have instead provided a memorandum of law to the parties explaining our ruling. We affirm the judgment. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284112/ | ORDER
PER CURIAM:
Appellant, James J. Mahone, appeals the denial of his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Mahone raises a single point on appeal arguing ineffective assistance of appellate counsel for failing to raise on direct appeal claims that the admission of testimony from Grandmother, Mother, and Le’Nae Gilmore about the victims’ statements and the admission of videotaped statements of the victims were erroneous. Mahone argues the testimony and videotaped statements were testimonial hearsay inadmissible under section 491.075; violated his rights to due process, confrontation, and a fair trial; and allowed improper bolstering of the victims’ testimony. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.
The judgment is affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2415036/ | 48 F. Supp. 2d 1088 (1999)
THOMAS & BETTS CORPORATION and Thomas & Betts Holdings, Inc., Plaintiffs,
v.
PANDUIT CORPORATION, Defendant.
No. 94 C 2656.
United States District Court, N.D. Illinois, Eastern Division.
May 18, 1999.
Marc Fogelberg, McBride, Baker & Coles, Chicago, IL, for plaintiffs.
Sidney David, Keith E. Gilman, Stephen F. Roth, Lerner, David, Littenberg, Krumholz & Mentlik, LLP, Westfield, NJ, for plaintiffs.
Roy E. Hofer, Gary M. Ropski, John T. Gabrielides, Stephanie S. Conis, Brinks Hofer Gilson & Lione, Chicago, IL, for defendant.
Mark D. Hilliard, Robert A. McCann, Panduit Corp., Tinley Park, IL, for defendant.
MEMORANDUM OPINION AND ORDER
MORTON DENLOW, United States Magistrate Judge.
The saga continues. After several trips between this Court and the Seventh Circuit Court of Appeals, the case is back. The Seventh Circuit previously reversed this Court's grant of summary judgment to Panduit on Count II and remanded for further proceedings. Panduit Corporation (hereinafter "Panduit") now brings a motion to dismiss Count II of the complaint filed by Plaintiffs Thomas & Betts Corporation and Thomas & Betts Holdings, Inc. (hereinafter collectively "T & B"). Panduit contends the Court no longer has jurisdiction over Count II. The Court disagrees. For the reasons set forth below, Panduit's motion to dismiss Count II is denied.
*1089 I. BACKGROUND FACTS
T & B and Panduit are the nation's largest suppliers of cable ties. Cable ties are nylon plastic straps used to tie together cables or wires. T & B obtained a utility patent on the two-piece cable tie in 1965, which expired in 1982. T & B also obtained a design patent on the cable tie in 1966, which expired in 1980. In late 1993, Panduit began to produce a cable tie similar to that of T & B, sold under the trademark "BARB-TY." Panduit's cable tie is substantially similar in appearance to T & B's cable tie.
T & B brought this action in five counts against Panduit. Count I alleges that Panduit's metal barb oval head shaped cable tie infringes on the trade dress of T & B's cable tie in violation of Section 43(a) of the Lanham Act. 15 U.S.C. § 1125(a). Count II alleges that Panduit's registration and use of the trademark BARB-TY constitutes unfair competition under the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), and seeks cancellation of Panduit's trademark registration of the term BARB-TY. T & B also alleged that Panduit's conduct violates the common law of unfair competition in Count III; the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2, and the Uniform Deceptive Trade Practices Act, 815 ILCS 510/1, in Count IV; and the Illinois Anti-Dilution Act, 765 ILCS 1035/15, in Count V.
T & B previously brought a motion for a preliminary injunction which was granted by the trial court in Thomas & Betts Corp. v. Panduit Corp., No. 94 C 2656, 1994 WL 714619 (N.D.Ill.Dec.19, 1994), and later reversed by the Seventh Circuit, Thomas & Betts Corp. v. Panduit Corp., 65 F.3d 654 (7th Cir.1995). The case was then transferred to this Court which granted summary judgment against T & B on Counts I, III, IV, and V. Thomas & Betts Corp. v. Panduit Corp., 935 F. Supp. 1399 (N.D.Ill. 1996) ("T & B I"). This Court subsequently granted summary judgment against T & B with regard to Count II. Thomas & Betts Corp. v. Panduit Corp., 940 F. Supp. 1337 (N.D.Ill.1996) ("T & B II"). On appeal, the Seventh Circuit reversed the grant of summary judgment on Counts I and II. Thomas & Betts Corp. v. Panduit Corp., 138 F.3d 277 (7th Cir.1998) ("T & B III"). No appeal was taken regarding Counts III through V and they are no longer part of the case.
II. ANALYSIS OF COUNT II
Panduit now brings a motion to dismiss Count II for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A review of the history of Count II is a necessary background.
A. Count II of the Complaint.
Count II is captioned "Unfair Competition Under 15 U.S.C. § 1125(a) and Withdrawal Of Application For Registration (or Cancellation of Registration Under 15 U.S.C. § 1064(3))" and consists of several components. In Count II, T & B alleges the term "barb tie" has become associated with Thomas & Betts' products, "although this term is also a generic expression for identifying two-piece self-locking cable ties having a metal locking device or a barb." (Compl. ¶ 26.) According to T & B, the term BARB-TY is virtually indistinguishable from and phonetically identical to the "barb tie" designation which is uniquely associated with Thomas & Betts' cable ties. (Compl. ¶ 27.) As a result, T & B believes Panduit is using the BARB-TY trademark to trade on T & B's reputation. (Compl. ¶ 29.) In sum, T & B asserts all of the above allegations demonstrate a violation of 15 U.S.C. § 1125(a)(1)(A) because Panduit's use of the term BARB-TY as a trademark for its cable ties constitutes a false designation of origin, "which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of Panduit with Thomas & Betts or as to the origin, sponsorship or approval of Panduit's two-piece self-locking cable ties, or the commercial goods or activities of others." (Compl. ¶ 28.)
*1090 In Count II, T & B also claims that, because of "barb tie's" association with T & B's products and generic quality, Panduit obtained its registration of the trademark BARB-TY fraudulently and did not have the right to register the mark BARB-TY. (Compl. ¶¶ 32-33.) To support this allegation, T & B reviews Panduit's application history before the U.S. Patent and Trademark Office ("PTO") for the BARB-TY mark. Panduit's Application Serial No. 74/331,294, covering the mark was allowed on July 13, 1993. (Comp. ¶ 30.) T & B asserts Panduit failed to advise the PTO of the significance of the term "barb tie" while making its application. (Comp. ¶ 31.) This is in direct contravention to 15 U.S.C. § 1064(3) according to T & B. (Comp. ¶ 33.)
T & B claims damages from the registration of the BARB-TY mark arising out of a misrepresentation as to the source of the cable tie or in connection with the way the mark is used. (Comp. ¶ 35.) In addition, as part of its prayer for relief, T & B seeks an order pursuant to 15 U.S.C. § 1119 directing the PTO Commissioner to cancel the BARB-TY registration. (Comp. ¶ B, p. 17.)
B. T & B I, 935 F. Supp. 1399 (N.D.Ill. 1996).
Although there were earlier opinions in this case, Count II was first addressed on the merits in this Court's August 15, 1996 decision in connection with Panduit's motion for summary judgment. T & B I, 935 F. Supp. 1399, 1418 (N.D.Ill.1996). The Court denied Panduit's motion for summary judgment on Count II because the record was incomplete. Id. The parties were given an opportunity to further brief and argue the issue. Id.
C. T & B II, 940 F. Supp. 1337 (N.D.III.1996).
On October 17, 1996, following additional briefing and oral argument, the Court entered its decision granting summary judgment to Panduit on Count II. T & B II, 940 F. Supp. 1337 (N.D.Ill.1996). In the decision, this Court analyzed two separate claims under Count II: 1) T & B's claim that Panduit's use of the BARB-TY trademark constitutes a misleading use and violates § 43(a)(1) of the Lanham Act, 15 U.S.C. § 1125 (the "unfair competition claim"); and 2) T & B's claim that Panduit's trademark be canceled pursuant to § 14 of the Lanham Act, 15 U.S.C. § 1064,[1] because of either the genericness of the term "barb tie" (the "genericness issue") or the fraudulent procurement of the BARB-TY mark (the "fraudulent procurement of trademark claim"). Id. at 1339.
With respect to the first issue, this Court granted summary judgment to Panduit because Panduit's use of the term BARB-TY did not violate § 43(a)(1) of the Lanham Act as a matter of law because the term "barb tie" is not generic and the BARB-TY trademark does not create confusion as to source. Id. at 1339-1343. The Court held the term barb tie was not generic and the primary designation of the product is the term cable tie. Id. at 1341. The Court next held Panduit's use of the term BARB-TY is not likely to cause confusion with T & B's TY-RAP cable ties. Id. at 1342. The Court stated "even assuming arguendo that the term `barb tie' is a generic term, Panduit's actions would not violate the Lanham Act." Id. T & B produced no evidence to show that consumers refer to its products as barb ties. Id. The *1091 Court distinguished the three cases relied upon by T & B[2] because in each of those cases, "a trademarked term became generic after prolonged use by the sole manufacturer." Id. at 1343. T & B has never had a trademark in the term "barb tie" and T & B had failed to show the public has come to know the product as a barb tie. Id. The Court made three findings with respect to the false designation of origin claim. First, T & B failed to submit sufficient evidence to show the term "barb tie" has a source indicating quality as to T & B; second, T & B failed to demonstrate the term "barb tie" is a generic or principal designation of a cable tie; and, third, the Court found the term "barb tie" and its phonetic equivalent BARB-TY, will not likely confuse the general public. Id. at 1343.
With respect to the second issue, this Court held that Panduit's BARB-TY trademark should not be canceled pursuant to § 14 of the Lanham Act, 15 U.S.C. § 1064, because the term "barb tie" is not generic and because no fraud was committed against the U.S.Patent and Trademark Office. Id. at 1343-4.
D. T & B's Appeal Brief on Count II.
T & B appealed this Court's grant of summary judgment to Panduit on Counts I and II. In its brief to the Seventh Circuit, T & B's Statement of Issues regarding Count II read as follows:
2. Did Magistrate Judge Denlow err in granting summary judgment against T & B on its claim to cancel Panduit's trademark registration by finding the term Barb-Ty to be non-generic?
(Panduit's Mem. in Resp. to T & B's Surreply in Opp'n to Panduit's Mot. to Dismiss Count II, Ex. N, T & B's Br. at 1). In its brief regarding Count II, T & B captioned its argument as follows:
F. The District Court Erred In Finding The Term Barb-Ty To Be Non-generic As A Matter of Law.
Id. at 44. T & B began its four-page argument on Count II stating: "T & B also seeks cancellation of Panduit's registration for the term Barb-Ty because of genericness and/or fraudulent procurement." Id. T & B asserted that it filed its complaint before Panduit's registration issued and therefore Panduit was not entitled to a presumption of nongenericness. Id. T & B claimed the term "barb tie" was generic for a variety of reasons and the issue of genericness raised a fact question. Id. T & B concluded its argument stating: "At the very least, the trier of fact should have the opportunity to consider the propriety of Panduit's registration in light of information which was not available to the U.S. Patent and Trademark Office." Id. at 47. In its conclusion, T & B requested "the district court's grant of summary judgment should be reversed and this case remanded with guidance for further discovery and trial by jury." Id.
Nowhere in its briefs to the Seventh Circuit does T & B specifically assert an unfair competition claim based on the alleged genericness of Panduit's BARB-TY mark. In its statement of the case, T & B briefly reviews the history of the case and states: "In T & B V and T & B VI, Judge Denlow granted the motion, finding no issue of material fact remaining on six dispositive issues in the case. T & B seeks reversal of the summary judgment on the trade dress claim under federal and state law, and on the cancellation claim." Id. at 2. A fair reading of this statement is that the trade dress claim refers to Count I and the cancellation claim refers to Count II.
E. T & B III, 138 F.3d 277 (7th Cir. 1998).
The Seventh Circuit reversed this Court's grant of summary judgment to *1092 Panduit on Count II. T & B III, 138 F.3d 277, 302 (7th Cir.1998). Early in its decision, the Seventh Circuit framed the issue under Count II: "With respect to Count II of the complaint, which sought cancellation of one of the defendant's trademarks, the plaintiffs allege that the district court erroneously found that no question of fact exists." Id. at 281. In its analysis of Count II later in its decision, the Seventh Circuit captioned the section: "III. Cancellation of Panduit's Barb-Ty Trademark." Id. at 300. The Seventh Circuit framed the issue as follows: "In its complaint, T & B also sought the cancellation of Panduit's trademark `Barb-Ty,' arguing that it was a generic term or, alternatively, that registration had been obtained fraudulently." Id. The Seventh Circuit observed that T & B had waived its fraudulent procurement of trademark claim. Id. at 300 n. 9 ("T & B does not present any argument in its brief relating to the fraudulent procurement claim, and as such we need not address it.") (citations omitted). The Seventh Circuit held Panduit was entitled to a presumption of nongenericness of its "Barb-Ty" trademark because T & B waived the argument by failing to cite any case law in support. Id. at 301. However, the presumption of genericness could be rebutted and despite the weakness of T & B's evidence, issues of material fact made summary judgment inappropriate. Id. at 301-302. Consequently, the Seventh Circuit reversed this Court's grant of summary judgment to Panduit on Count II and remanded the case for further proceedings consistent with the opinion. Id. at 301. However, the opinion did not state that the unfair competition claim on genericness was waived, nor did it specifically state that such claim still existed.
F. What Remains of Count II.
The following portions of Count II are no longer at issue. First, T & B acknowledges that it is not pursuing a declaratory judgment cause of action to cancel the BARB-TY trademark. (Tr. of Apr. 27, 1999 Oral Arg. at 5.) Second, regarding the unfair competition claim, T & B acknowledges its waiver of its claim of likelihood of confusion based on the public's association of the BARB-TY mark with T & B. (T & B's Surreply Mem. in Opp'n to Panduit's Mot. to Dismiss at 5.) This argument was fully discussed by this Court in T & B II but never argued by T & B on appeal. T & B II, 940 F. Supp. 1337, 1342-43 (N.D.Ill. 1996). This Court rejected T & B's argument that T & B's use of the trademark BARB-TY was likely to cause confusion because T & B "failed to submit sufficient evidence that the term `barb tie' has either a source indicating quality as to T & B ...". Id. at 1343. Third, T & B waived its fraudulent procurement of trademark claim. T & B III, 138 F.3d at 300 n. 9. Having waived these arguments on appeal or in oral argument before this Court, we now turn to the question of what remains of Count II.
The Seventh Circuit expressly addressed the genericness issue and held "issues of material fact remain on the topic of genericness and ... summary judgment was inappropriate here." T & B III, 138 F.3d at 301. However, the parties disagree about the impact of the surviving genericness issue on the other claims in Count II. Panduit contends the genericness claim relates only to the issue of cancellation, and this Court has no jurisdiction to cancel a trademark in the absence of an existing unfair competition claim in Count II. T & B contends the unfair competition claim based on genericness still exists, and even if it does not, this Court has jurisdiction to cancel the mark because an unfair competition claim did exist at the time of filing the lawsuit. The Court must address the issues of independent jurisdiction under 15 U.S.C. § 1119 and whether an unfair competition claim must still exist before tackling the major issue.
G. No Independent Jurisdiction Under 15 U.S.C. § 1119
For this Court to have subject matter jurisdiction to hear a case, a justiciable *1093 case must exist. Merely bringing suit for cancellation of a wrongfully registered generic term is insufficient to create a justiciable case or controversy. See Windsurfing Int'l, Inc. v. AMF, Inc., 828 F.2d 755, 758-59 (Fed.Cir.1987); Performance Industries Inc. v. Morton Intern, Inc., 22 U.S.P.Q.2d 1632, 1634, 1992 WL 50083 (E.D.Penn.1992).
Under the Lanham Act, district courts have the power to cancel registrations, but only in an "action involving a registered mark." 15 U.S.C. § 1119. "Involving" cannot mean the mere presence of a registered trademark, but must be read as involving the right to use the mark and thus the right to maintain the registration.... There must, therefore, be something beyond the mere competitor status of the parties to serve as a basis for the court's jurisdiction. Such a basis may, for example, be a suit for trademark infringement or a "case of actual controversy" referred to in the Declaratory Judgment Act.
Windsurfing Int'l, 828 F.2d at 758-59. See also Performance Industries, 22 U.S.P.Q.2d at 1634 ("[A] plaintiff with no registered mark cannot obtain jurisdiction in federal court by relying on Section 37 of the Lanham Act [15 U.S.C. § 1119] alone.... There must be some other independent ground of jurisdiction, such as a claim of infringement or a `case of actual controversy.'") (citing Windsurfing Int'l, 828 F.2d at 758-59). The Court in Windsurfing International noted that the test for determining the existence of an actual case or controversy under the Declaratory Judgment Act required the plaintiff to have a real and reasonable apprehension of litigation and to have engaged in a course of conduct which created an adversarial conflict with the defendant. 828 F.2d at 757. See also Ditri v. Coldwell Banker Residential Affiliates, 954 F.2d 869, 873 (3d. Cir.1992); Universal Sewing Mach. Co. v. Standard Sewing Equip. Corp., 185 F. Supp. 257, 259 (S.D.N.Y.1960) (stating "even if we construe that claim as one to declare defendant's federal registration invalid ... the same result would obtain because of the absence of a justiciable controversy, i.e., defendant has never threatened plaintiff, directly or indirectly, or in any manner, with litigation.").
As the above courts have noted, the Lanham Act power to cancel registrations, 15 U.S.C. § 1119, "is not an independent source of jurisdiction, however; it merely defines certain available remedies." Clamp-All Corp. v. Cast Iron Soil Pipe Institute, 3 U.S.P.Q.2d 1018, 1024 n. 12, 1987 WL 9760 (D.Mass.1987). See also Maljack Productions Inc. v. Motion Picture Ass'n of America, 22 U.S.P.Q.2d 1867, 1869, 1992 WL 78735 (D.D.C.1992) (holding that 15 U.S.C. § 1119 is not an independent source of jurisdiction and there must be some other violation of the Lanham Act providing for redress in the courts), rev'd on other grounds, 52 F.3d 373 (D.C.Cir.1995); Universal Sewing Mach. Co., 185 F.Supp. at 260 (holding that the court is without jurisdiction to hear a 15 U.S.C. § 1119 claim when there is no other justiciable controversy between the parties involving the defendant's mark and stating "[i]n our view § 37 [15 U.S.C. § 1119] assumes a properly instituted and otherwise jurisdictionally supportable action involving a registered mark. That not being the case here, we are without jurisdiction of the subject matter...."). T & B does not contend that it was under the reasonable apprehension of suit by Panduit asserting its registration against T & B and is not pursuing a declaratory judgment action. Consequently, absent an unfair competition claim in Count II, this Court does not have jurisdiction to grant T & B relief under 15 U.S.C. § 1119.
H. The Unfair Competition Claim Must Still Exist In Order For This Court To Exercise Jurisdiction.
T & B asserts the allegations contained in Count II are sufficient to present a case or controversy. First, T & B argues it *1094 need not allege impending litigation because its claim for cancellation of the registration was brought in the context of a valid trademark infringement claim. The parties agree that an unfair competition claim existed at the time the suit was filed. Panduit argues that a case or controversy, in the form of an unfair competition claim in the present case, must exist between the parties throughout the pendency of a case. T & B argues that determinations of subject matter jurisdiction and the existence of a case or controversy should be made at the complaint stage. T & B cites International Harvester Co. v. Deere & Co., 623 F.2d 1207, 1210 (7th Cir.1980), for support. The Court in International Harvester stated that "[i]n deciding whether the plaintiff has carried [the burden of supporting the jurisdictional allegations of the complaint], the court must look to the state of affairs as of the filing of the complaint; a justiciable controversy must have existed at that time." Id.
However, while International Harvester requires a justiciable controversy at the complaint stage, the Seventh Circuit's statements in International Harvester does not support the proposition for which T & B cites it, that the Court is limited to looking at only the complaint stage when making the determination of whether there is a case or controversy. To the contrary, a case or controversy must exist at the complaint stage but must also exist at every stage of the litigation. "The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Preiser v. Newkirk, 422 U.S. 395, 401, 95 S. Ct. 2330, 2334, 45 L. Ed. 2d 272 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S. Ct. 1209, 1216 n. 10, 39 L. Ed. 2d 505 (1974)). It is proper to consider post-filing events in the evaluation of continuing jurisdiction. Spectronics Corp. v. H.B. Fuller Co., 940 F.2d 631, 636 (Fed.Cir.1991). While T & B's allegations as to its Lanham Act unfair competition claim created a justiciable case or controversy at the complaint stage, the Court concludes that the unfair competition claim must continue to be viable in order for this Court to grant the relief of canceling the mark under 15 U.S.C. § 1119.
I. The Genericness Issue
The question remains as to whether Count II still raises a viable claim for unfair competition when the only remaining substantive issue is genericness and one of the remedies sought is cancellation of the BARB-TY trademark. T & B argues Count II of T & B's complaint was, and still is, a claim for unfair competition under Section 1125(a) of the Lanham Act based on Panduit's misleading use of a generic mark. This claim appears extremely weak. First, in that T & B argues that the term "barb tie" is generic, it can have no rights in that term. "Because a generic term denotes the thing itself, it cannot be appropriated by one party from the public domain...." Blinded Veterans Ass'n v. Blinded American Veterans Found., 872 F.2d 1035, 1039 (D.C.Cir. 1989). If the term was generic as T & B argued, T & B could not have acquired rights to the term nor received trademark protection for its use of the term. "[G]eneric terms receive no trademark protection." Mil-Mar Shoe Co., Inc. v. Shonac Corp., 75 F.3d 1153, 1156 (7th Cir.1996). See also Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79 (7th Cir.1977) ("A generic or common descriptive term is one which is commonly used as the name or description of a kind of goods. It cannot become a trademark under any circumstances."). Since, T & B has no rights to the term, it is difficult to comprehend what claim for unfair competition it now asserts.
However, given the Seventh Circuit's statement that summary judgment on Count II is reversed, this Court is hard-pressed to now throw T & B out of Court on Count II. The Seventh Circuit concluded that T & B did raise a genuine issue of material fact regarding the genericness issue *1095 and reversed and remanded Count II to this Court. The Seventh Circuit clearly identified certain issues waived on appeal. See T & B III, 138 F.3d 277, 283, 300 n. 9 (7th Cir.1998) (identifying the fraudulent procurement of trademark claim and Counts III-V as waived). The claim for unfair competition based on genericness was not one of them. Panduit has not provided a sufficient reason why this Court should not adhere to the Seventh Circuit's ruling reversing summary judgment on Count II and remanding it. "When matters are decided by an appellate court, its rulings, unless reversed by it or by a superior court, bind the lower court." Insurance Group Comm. v. Denver & R.G. W. R.R., 329 U.S. 607, 612, 67 S. Ct. 583, 585, 91 L. Ed. 547 (1947). "Whatever was before the court, and is disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate." Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492, 9 L. Ed. 1167 (1838). Consequently, based upon the Seventh Circuit's ruling in T & B III, this Court is bound to proceed with Count II.
The determination that Count II should be dismissed is better left to the Seventh Circuit. In the event the Seventh Circuit did not intend to preserve an unfair competition claim under Count II, the parties may later appeal this issue. In the meantime, T & B will be permitted to proceed on the theory that Panduit is unfairly competing because the term barb tie is a generic term which is likely to cause confusion as to the origin or sponsorship of Panduit's cable ties.
III. CONCLUSION
For the foregoing reasons, Panduit's motion to dismiss Count II of Plaintiff's complaint for lack of subject matter jurisdiction is hereby DENIED.
NOTES
[1] T & B argued that the trademark should be canceled pursuant to 15 U.S.C. § 1064. That section provides the grounds upon which a petition to cancel a mark may be made including genericness and fraudulent procurement. However, while 15 U.S.C. § 1064 provides those grounds, that section pertains only to petitions to the Federal Trade Commission. The Court notes, as T & B did in it prayer for relief, that it is 15 U.S.C. § 1119 which actually provides courts with the jurisdiction to cancel registered marks. However, the Court concludes that the two sections must be read together in order for a court to be informed of the conditions under which it may cancel a mark.
[2] Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 204, 16 S. Ct. 1002, 1015, 41 L. Ed. 118 (1896); Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 119, 59 S. Ct. 109, 113-14 (1938); and King-Seeley Thermos Co. v. Aladdin Industries, Inc., 321 F.2d 577, 581 (2d Cir.1963). | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2603696/ | 116 Wash. 2d 452 (1991)
805 P.2d 793
STEVEN R. WILTSE, ET AL, Respondents,
v.
ALBERTSON'S INCORPORATED, Petitioner.
No. 55727-6.
The Supreme Court of Washington, En Banc.
February 28, 1991.
MacGillivray & Jones, P.S., by Stephen C. Haskell and Steven R. Stocker, for petitioner.
*453 Lewis M. Schrawyer, Henderson & Nichols, P.S., and Robert B. Henderson, for respondents.
Timothy J. Whitters on behalf of Washington Defense Trial Lawyers, amicus curiae for petitioner.
Robert H. Whaley and Bryan P. Harnetiaux on behalf of Washington State Trial Lawyers Association, amicus curiae for respondents.
CALLOW, J.[*]
The plaintiff, Steven Wiltse, slipped and fell in water that came from a hole in the roof of the defendant, Albertson's Incorporated, self-service grocery store. At trial, the court instructed the jury that the plaintiff had the burden of proving that this condition had "existed for a sufficient length of time and under such circumstances that defendant or defendant's employees should have discovered it in the exercise of ordinary care."
The issue is whether the trial court erred in instructing the jury that the plaintiff had the burden of proving actual or constructive notice of the water existing at defendant's grocery store, based on Pimentel v. Roundup Co., 100 Wash. 2d 39, 666 P.2d 888 (1983).
[1] In Pimentel, the plaintiff was injured when a can of paint struck her foot while she was looking through a magazine rack which contained books on home improvements. Pimentel, 100 Wn.2d at 41. There, the court held that the owner's actual or constructive knowledge of the hazard was not necessary if the existence of the hazard was reasonably foreseeable. Pimentel, 100 Wn.2d at 39. The new rule adopted in Pimentel was taken from a Colorado case, Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972). The Jasko court reasoned:
The basic notice requirement springs from the thought that a dangerous condition, when it occurs, is somewhat out of the ordinary.... In such a situation the storekeeper is allowed a *454 reasonable time, under the circumstances, to discover and correct the condition, unless it is the direct result of his (or his employees') acts. However, when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. Then, actual or constructive notice of the specific condition need not be proved.
(Italics ours.) Jasko, 177 Colo. at 420-21. The court in Pimentel also stated that "the requirement of showing notice will be eliminated only if the particular self-service operation of the defendant is shown to be such that the existence of unsafe conditions is reasonably foreseeable." Pimentel, 100 Wn.2d at 50. That is not the case in the facts presented to us here.
There was no evidence that the leak in the roof was a result of Albertson's negligence nor that it came from the self-service operation of Albertson's. We will not abandon principles of negligence and make "self-service" stores liable whether they were aware or should have been aware of a dangerous condition.
Pimentel held that where the operating procedures of any store are such that unreasonably dangerous conditions are continuous or reasonably foreseeable, there is no need to prove actual notice of such conditions to establish liability for injuries caused by them. Pimentel, at 40. The Pimentel holding went on to say:
This does not change the general rule governing liability for failure to maintain premises in a reasonably safe condition: the unsafe condition must either be caused by the proprietor or his employees, or the proprietor must have actual or constructive notice of the unsafe condition.
Pimentel, at 49.
Here, none of the conditions expressed in Pimentel are present. That is, the conditions which led up to the plaintiff's accident were neither continuous, reasonably foreseeable, nor was the accident associated with the store's self-service mode of operation. The record bears this out.
First, there is no indication that the store manager or any employee was aware of the water on the floor previous to *455 Mr. Wiltse's accident. The record indicates that the accident happened shortly after 7 p.m. on November 28, 1982. The store manager testified that he had been past the location of the plaintiff's fall minutes before the accident happened and did not notice, or have any previous notice, of any foreign substance on the floor.[1] There was further testimony from an employee that she did not notice any water on the floor at the time she walked by the area to punch out.[2] Thus, the record indicates that the store manager had *456 no notice that an unsafe condition existed in the store until after the time of Mr. Wiltse's accident.
The water came to rest on the floor because of a previously unnoticed leak in the building's roof, not from the dairy case or any other means associated with the store's self-service operation. At trial, the plaintiff testified that:
Q: Now, you indicated a few moments ago that you slipped in some water but yet you didn't see the water. How is it you knew that it was water that you had slipped in?
A: Well, naturally I was laying in it. It was hitting me from a hole or the grate or whatever in the ceiling. It was hitting me in the chest. I assumed it was water. I couldn't imagine what else could be up there.
Thus, the hazard came from a leaking roof which could give way suddenly, unforeseen and without notice. This is not the same as a continuing danger resulting from the store's self-service mode of operation.
The Pimentel rule does not apply to all self-service operations, but only if the particular self-service operation of the defendant is such that it is reasonably foreseeable that unsafe conditions in the self-service area might be created. The trial judge understood the difference between the facts of the case at bar and the rule established in Pimentel when he denied the proposed Pimentel instruction of the plaintiff. He stated:
With respect to the first exception with regard to whether or not the Court should utilize the las [sic] as set forth in Pimentel simply because the defendant admittedly is a self-service grocery store, I feel the law, which in substance in Pimentel eliminates the need to show notice of a dangerous condition, should be applied to those cases in which the condition arises out of the actual operation of such a self-service enterprise, and if it does, then such an instruction is appropriate.
But here we have admittedly a condition which really doesn't result from the self-service operation as such, but something entirely different, namely, a leaky roof, and the *457 essence of the subject of liability is whether or not the defendant had notice of this condition or should have had notice, and I feel that we are therefore back to the basic law with respect to that duty as set forth in the Court's Instruction 13, based on Defendant's Proposed Instruction 19, and that it is necessary to give this in order to permit the defendant to argue its theory with respect to lack of notice.
(Italics ours.) Partial Report of Proceedings, vol. II, p. 53-54.
The common law allows a property owner to be put on notice of an unsafe condition prior to attaching liability. He must be negligent. Restatement (Second) of Torts § 343 (1965) reads as follows:
Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect against the danger.[[3]]
*458 The plaintiff in a slip and fall case has traditionally had the burden of establishing that the proprietor's negligence was a cause in fact of his or her injury by showing that the proprietor had constructive notice of the specific dangerous condition:
[W]here the negligence of a storekeeper or restaurateur is predicated upon his failure to keep his premises in a reasonably safe condition, it must be shown that the condition has either been brought to his notice or has existed for such time as would have afforded him sufficient opportunity, in the exercise of ordinary care, to have made proper inspection of the premises and to have removed the danger.
Smith v. Manning's, Inc., 13 Wash. 2d 573, 580, 126 P.2d 44 (1942), quoted in Pimentel, 100 Wn.2d at 44. See also Presnell v. Safeway Stores, Inc., 60 Wash. 2d 671, 675, 374 P.2d 939 (1962); Restatement (Second) of Torts § 343 (1965).
The constructive notice rule requires the plaintiff to establish how long the specific dangerous condition existed in order to show that the proprietor should have noticed it. Under the traditional rule, the lack of such evidence precludes recovery. Brant v. Market Basket Stores, 72 Wash. 2d 446, 451-52, 433 P.2d 863 (1967); Merrick v. Sears, Roebuck & Co., 67 Wash. 2d 426, 429, 407 P.2d 960 (1965).
In Brant, a business invitee slipped and fell in the grocery store almost immediately upon entering because of an accumulation of water on the floor from weather conditions outside. The court, in affirming the trial court's dismissal, held that:
*459 The plaintiff in this case has proven no more than that she slipped and fell on a wet floor and sustained certain injuries in consequence thereof. Our cases indicate that something more must be proved to establish that the defendant had permitted a situation dangerous to its invitees to exist.
Brant, 72 Wn.2d at 451.
The facts in Brant are more analogous to the present case than the facts in Pimentel. Like Brant, the plaintiff here was injured when he slipped and fell in the defendant's grocery store. There was no evidence of notice, constructive or actual, on the part of the defendant. Further, in Brant, as here, the plaintiff failed to prove that the defendant "permitted a situation dangerous to its invitees to exist." Brant, 72 Wn.2d at 451. The rule should implant in store owners the incentive to exercise due care.
In Kangley v. United States, 788 F.2d 533 (9th Cir.1986), the Ninth Circuit appreciated the "intolerable burden on businesses" by applying the rule in Pimentel to slip and fall type cases. Kangley, 788 F.2d at 535. As with Brant, Kangley is more analogous to the present case than Pimentel. In Kangley, the plaintiff slipped and fell at Madigan Army Hospital and was awarded damages by the District Court. In reversing, the court stated:
The general rule in Washington for injuries caused by a transitory unsafe condition on property is that the owner or occupier of a building is liable for the injuries if it or its employees caused the unsafe condition or if it has actual or constructive knowledge that an unsafe condition exists. Pimentel v. Roundup Co., 100 Wash.2d 39, 44, 666 P.2d 888, 893 (1983); Hemmen v. Clark's Restaurant, 72 Wash.2d 690, 692, 434 P.2d 729, 732 (1967). Constructive knowledge exists if the unsafe condition has been present long enough that a person exercising ordinary care would have discovered it. Pimentel 100 Wash.2d at 44, 666 P.2d at 893; Hemmen, 72 Wash.2d at 692, 434 P.2d at 732. The plaintiff has the burden of proving that the defendant had actual or constructive knowledge of the unsafe condition.
Further, Washington cases make it clear that the mere presence of water on a floor where the plaintiff slipped is not enough to prove negligence on the part of the owner or occupier of the building. See, e.g., Brant v. Market Basket Stores, 72 Wash.2d 446, 433 P.2d 863 (1967); Merrick v. Sears Roebuck & Co., 67 Wash.2d 426, 407 P.2d 960 (1965). To prove *460 negligence, the plaintiff must prove that water makes the floor dangerously slippery and that the owner knew or should have known both that water would make the floor slippery and that there was water on the floor at the time the plaintiff slipped. See Brant, 72 Wash.2d at 451-52, 433 P.2d at 866-67.
....
The court's finding on this issue raises two questions for our review: (1) Whether the government actually knew that a dangerous condition existed or (2) whether the government had constructive knowledge of the existence of a dangerous condition. We review both of these questions for clear error. The first is a question of fact. The second is a question of application of law to facts in which issues of fact predominate: did the condition exist long enough that it should have been discovered? ....
....
The existence of a rug inside a door alone is not enough to establish that an owner or occupier knows the floor might be dangerous. See Kalinowski v. YWCA, 17 Wash.2d 380, 394-95, 135 P.2d 852, 859 (1943). The same is true of the fact that it is wet outside. If we were to hold that a person who slips inside a door where a mat has been placed on a day when it is wet outside may recover for injuries sustained without showing anything more, we would place an intolerable burden on businesses in areas like Tacoma where it is often wet outside. We are convinced that this is not the law in the state of Washington.
We hold that Kangley did not sustain her burden of proving that the government knew or should have known that a dangerous condition existed at the place and time she slipped and that the district court's finding that she had sustained that burden is clearly erroneous....
(Footnote omitted.) Kangley, at 534-35.
Pimentel reaffirmed that most plaintiffs still need to show that a proprietor had actual or constructive notice of an unsafe condition. In creating an exception to this traditional rule, the court stated:
[W]here the operating procedures of any store are such that unreasonably dangerous conditions are continuous or reasonably foreseeable, there is no need to prove actual or constructive notice of such conditions in order to establish liability for injuries caused by them....
....
... This does not change the general rule governing liability for failure to maintain premises in a reasonably safe condition: the unsafe condition must either be caused by the proprietor or his employees, or the proprietor must have actual or constructive notice of the unsafe condition. Such notice need not be *461 shown, however, when the nature of the proprietor's business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable. This exception merely eliminates the need for establishing notice and does not shift the burden to the defendant to disprove negligence. The plaintiff must still prove that defendant failed to take reasonable care to prevent the injury.
Pimentel, 100 Wn.2d at 40, 49. We emphasized that this exception did not impose strict liability or even shift the burden to the defendant to disprove negligence. Rather, where the operation of a business is such that unreasonably dangerous conditions are continuous or reasonably foreseeable, it is unnecessary to prove the length of time that the dangerous condition had existed. The plaintiff can establish liability by showing that the operator of the premises had failed to conduct periodic inspections with the frequency required by the foreseeability of risk. Pimentel, 100 Wn.2d at 49.
Pimentel speaks to specific self-service operations and specific operating procedures of the store. Pimentel realized that certain departments of a store, such as the produce department, were areas where hazards were apparent and therefore the owner was placed on notice by the activity. Hence, the actual cause of the hazard is relevant in establishing whether the unreasonably dangerous condition was continuous or reasonably foreseeable because of the specific self-service operation. Because Pimentel is a limited rule for self-service operations, not a per se rule, the rule should be limited to specific unsafe conditions that are continuous or foreseeably inherent in the nature of the business or mode of operation. Risk of water dripping from a leaky roof is not inherent in a store's mode of operation.
Once discovered, the store must clean up the puddle resulting from a leaky roof as well as the puddle resulting from a leaky seltzer bottle, even though only the latter may be "inherent" to the nature and operation of its business. See King v. Seattle, 84 Wash. 2d 239, 248, 525 P.2d 228 (1974) ("[l]iability extends to foreseeable results from unforeseeable causes"). If a customer had knocked over merchandise *462 in the aisle and the next customer had immediately tripped over that merchandise, certainly the store owner should not be responsible without being placed on notice of the hazard. See also Wells v. Vancouver, 77 Wash. 2d 800, 802-03, 467 P.2d 292 (1970); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 44, at 316-17 (5th ed. 1984).
A close reading of the record reveals that the puddle was located between two aisles. The plaintiff testified that:
Q: Could you describe that accident for the ladies and gentlemen of the jury?
A: I had just I can't remember exactly what I had picked up in the aisle, but I had come around the end of the aisle and slipped in the water on the floor. It was between the two aisles as you go to the back of the store....
(Italics ours.) Report of Proceedings, vol. II, p. 13. The dairy case has no bearing on the determination of this case.
The jury instruction given by the trial court was the proper one for this set of circumstances. The jury was given the instruction from Washington Pattern Jury Instruction 120.06.02. That instruction states:
In order to support a finding of negligence, a temporary unsafe condition of the premises which was not created by defendant or defendant's employees, [and which was not caused by negligence on defendant's part,] must have either been brought to the actual attention of defendant or defendant's employees or it must have existed for a sufficient length of time and under such circumstances that defendant or defendant's employees should have discovered it in the exercise of ordinary care.
WPI 120.06.02; Clerk's Papers, at 106 (jury instructions). In the present case, the trial court gave the proper jury instruction regarding the attendant circumstances presented. Further, there was no factual basis for the court to give a Pimentel instruction.
The trial court is affirmed and the Court of Appeals is reversed.
DOLLIVER, ANDERSEN, DURHAM, and SMITH, JJ., concur.
*463 UTTER, J. (dissenting)
This case concerns the liability of a self-service grocery store for a puddle near a dairy case caused by a leak in the roof. The majority holds that not only the hazard itself, but also the specific cause must be foreseeable, and concludes the trial court did not err in instructing the jury that the plaintiff had the burden of proving actual or constructive notice of the puddle in defendant's store. Because the majority confuses the law and usurps the role of the jury, I dissent.
The unsafe condition in this case is a puddle of water on a smooth, rugless floor in defendant's self-service grocery store. The issue as to whether this puddle is an inherently foreseeable hazard within the meaning of Pimentel v. Roundup Co., 100 Wash. 2d 39, 666 P.2d 888 (1983), should be left to the jury. In Pimentel, we held that plaintiffs need not establish either actual or constructive notice of reasonably foreseeable hazards in self-service establishments. 100 Wash. 2d at 40. We explained that plaintiffs wishing to prove negligence without notice must show that the "nature of the proprietor's business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable." Pimentel, 100 Wn.2d at 49. The specific cause of the hazard is not itself determinative. It is quite conceivable that a jury could find that a puddle caused by a leaking roof and located near a dairy display case is a reasonably foreseeable hazard within the definition of Pimentel. The trial court erred in failing to provide a Pimentel instruction.
The majority states there is no evidence that the leak in the roof resulted from defendant's negligence. Majority, at 454. However, the record contains no information at all as to what caused the leak. The majority correctly states the rule in Pimentel, but states that it is not applicable to this case because "the conditions which led up to the plaintiff's accident were neither continuous, reasonably foreseeable, nor ... associated with the store's self-service mode of operation." Majority, at 454. In making such a finding, the majority unnecessarily limits the rule established in *464 Pimentel and usurps the role of the jury. Contrary to the majority's assertion, the hazard in this case can be labeled "inherent". The following facts reveal that a jury could find that the conditions which led to plaintiff's accident were associated with Albertson's self-service mode of operation.
As part of its method of operation, Albertson's creates displays that are designed to attract the customer's attention to specific sales or products. Partial Report of Proceedings, vol. II, at 48-49. The puddle was located about a foot and a half away from the corner of a display at the end of an aisle near the dairy case. Partial Report of Proceedings, vol. II, at 13-14. Plaintiff testified he thought his cart went down the produce aisle when he fell. Partial Report of Proceedings, vol. I, at 13. One of defendant's employees testified that there are times when there is some sort of water or liquid on the floor. Partial Report of Proceedings, vol. II, at 8. It is not difficult to imagine a shopper, distracted by displays, pushing a shopping cart in front of him, rounding a corner of an aisle, and slipping in unseen water. The specific cause of the puddle should not be determinative. Where the hazard is likely and the store makes every effort to direct the customer's attention away from the floor, the Pimentel exception applies.
The majority concludes that defendant had no notice of the puddle because two of its employees happened to walk by the area about 10 minutes or so before the accident, and neither one noticed any water on the floor. However, neither of these employees inspected the area, nor were they looking for any unsafe conditions. One was on her way to clock out at the end of her shift, the other was on his way to pick up some transmittals. The majority's analysis confuses the duty and causation elements. The majority states that the plaintiff traditionally has the burden to establish a proprietor's negligence as a cause in fact of an injury by showing constructive notice. Majority, at 458. Constructive notice relates to duty, not to causation: it triggers the duty to remove the hazard. See Presnell v. Safeway Stores, Inc., *465 60 Wash. 2d 671, 673, 374 P.2d 939 (1962); see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts § 60, at 417 (5th ed. 1984). Regardless of the cause, the proprietor's duty to respond to all reasonably foreseeable hazards is not eliminated. Pimentel eliminates the notice requirement in a case such as this, and allows a jury to consider the nature of the defendant's business, the methods of operation, and whether the unsafe condition is reasonably foreseeable. This exception does not shift the burden and the plaintiff must still prove that defendant failed to take reasonable care to prevent the injury. Pimentel, 100 Wn.2d at 49. As the majority properly notes, "`[l]iability extends to foreseeable results from unforeseeable causes'". Majority, at 461 (quoting King v. Seattle, 84 Wash. 2d 239, 248, 525 P.2d 228 (1974)).
The majority claims that the Ninth Circuit has recognized that application of Pimentel to slip and fall cases would place "an intolerable burden on businesses". This can only be construed as a confused argument that Pimentel should be overruled. The Ninth Circuit did not discuss the Pimentel "inherently foreseeable" exception in Kangley v. United States, 788 F.2d 533 (9th Cir.1986), the case cited by the majority in support of this proposition. Neither Kangley nor the facts of this case can be cited as authority for overruling Pimentel. The facts of the present case show that the condition which caused the plaintiff's injury could be found to be inherently foreseeable.
The Brant case cited by the majority does not preclude use of a Pimentel instruction in this case. Brant v. Market Basket Stores, 72 Wash. 2d 446, 433 P.2d 863 (1967). In Brant, there was no testimony that the water had made the floor slippery, therefore the court found the defendant had not permitted a dangerous condition to exist in the store. 72 Wash. 2d at 448, 452. The majority finds the plaintiff in the present case failed to prove that the defendant "`permitted a situation dangerous to its invitees to exist", just like the plaintiff in Brant. Majority, at 459. The majority forgets that we are not the jury in this case. The parties have asked *466 us to determine whether the trial court properly refused a jury instruction which would have allowed the plaintiff to prove his case by showing that this particular hazard was reasonably foreseeable given the nature of defendant's business and its mode of operation. Our unanimous decision in Pimentel requires such an instruction in this case.
DORE, C.J., BRACHTENBACH, J., and PEARSON, J. Pro Tem., concur with UTTER, J.
NOTES
[*] Justice Keith M. Callow was a member of the Supreme Court at the time oral argument was heard on this matter. He is now serving as a justice pro tempore of the court pursuant to Const. art. 4, § 2(a) (amend. 38).
[1] The manager testified about how he arrived at the answers which he put on the incident report.
"Q: And what's the next question?
"A: `Is it possible to determine how long the substance was on the floor?'
"Q: What did you put?
"A: I put yes.
"Q: `And if so, how long?' What was your answer?
"A: `Inspected at 7:00.'
"Q: Why did you put down that particular answer?
"A: Well, I went back personally to the invoice box, which is in the back room, which is right over here, to grab the transmittals, so I would have talked walked from here into the back room like this and grabbed my transmittals and exited out to the office.
"Q: So would you have been in the area?
"A: Twice.
"Q: When you were in that area, how close to the area where this gentleman fell would you pass?
"A: It would have to be, oh, three or four feet ...
"Q: Did you see anything on the floor as you went by that particular area?
"A: No.
"....
"Q: Okay. At any time prior to the time this man fell, were you aware, or to your knowledge, was anyone else that worked at the store aware there was a leak in the roof?
"A: Not to my knowledge, no."
Partial Report of Proceedings, vol. II, p. 19-22.
[2] The employee's testimony in reference to not noticing anything on the floor was:
"Q: And if I ask you to assume for the moment that this `X' right here was an `X' that Mr. Wiltse drew in as the area where he fell, can you tell the jury how close you would have walked to that `X' at the time that you walked to the back of the store to check out?
"A: I would have walked right by it.
"Q: And as you walked right by it, what time was this approximately?
"A: Probably a few minutes after 7:00.
"Q: Did you see anything when you walked by there?
"A: No.
"Q: Did you hear anything when you walked by there?
"A: No."
Partial Report of Proceedings, vol. II, p. 5.
[3] Comments to Restatement § 343, read in part, as follows:
"b. Distinction between duties to licensee and invitee. One who holds his land open for the reception of invitees is under a greater duty in respect to its physical condition than one who permits the visit of a mere licensee.... an invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land safe for his entry, or for his use for the purposes of the invitation. He is entitled to expect such care not only in the original construction of the premises, and any activities of the possessor or his employees which may affect their condition, but also in inspection to discover their actual condition and any latent defects, followed by such repair, safeguards, or warning as may be reasonably necessary for his protection under the circumstances.
"... To the invitee the possessor owes not only this duty, but also the additional duty to exercise reasonable affirmative care to see that the premises are safe for the reception of the visitor, or at least to ascertain the condition of the land, and to give such warning that the visitor may decide intelligently whether or not to accept the invitation, or may protect himself against the danger if he does accept it.
"....
"... An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein....
"... one entering a store, theatre, office building, or hotel, is entitled to expect that his host will make far greater preparations to secure the safety of his patrons than a householder will make for his social or even his business visitors. So too, one who goes on business to the executive offices in a factory, is entitled to expect that the possessor will exercise reasonable care to secure his visitor's safety." | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284113/ | Order
Per Curiam
Jeffery Coleman appeals from his convictions for possession of a controlled substance and possession of drug paraphernalia. He challenges the sufficiency of the evidence to support both convictions. . After a thorough review of the briefs and the record, we find no error and affirm the circuit court’s judgment. A published opinion, would serve no jurisprudential purpose; however, we have provided the parties with a Memorandum explaining the reasons for our decision..
AFFIRMED. Rule 30.25(b) | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284114/ | Order
Per Curiam:
Alphonse D. Jackson appeals the judgment of the Circuit Court'of- Jackson County, Missouri, denying, after an evi-dentiary hearing,’ his motion for post-conviction relief pursuant to Rule 29.15. On appeal, Mr. Jacksqn claims that the circuit court clearly erred in denying his motion because his trial counsel .was ineffective. Because a published opinion would have no precedential value, we have instead provided a separate memoránduifi of law to the parties explaining our ruling. The judgment is affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284115/ | ORDER
Per Curiam:
Mr. John M. Griffin appeals a sentence as a chronic offender, section 577.023, for convictions of driving while intoxicated, section 577.010, and driving while revoked, section 302.32. He also claims that impermissible hearsay was admitted at the trial.
For reasons stated in the memorandum provided to the parties, we affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5286549/ | OPINION
Colleen Dolan, Judge
Following a jury trial, Tajeaon Rucker (“Defendant”) was convicted of first-degree child molestation and third-degree assault.1 After Defendant waived jury sentencing, the trial court sentenced him to eight years in prison for child molestation and fifteen days in county jail for his third-degree assault conviction. We affirm.
I. Factual and Procedural Background
a. Convictions on Appeal
From December 31, 2013 until January 2, 2014, A.G. (“Victim”) and her sister K.G. (“Sister”) were staying at their grandmother’s house with several other family members. At that time, Victim was ten years old and Sister was seven years old. At some point during their stay, Victim and Sister were watching a movie in their grandmother’s basement, and Defendant joined them. Victim alleged Defendant forced her to kiss him on the mouth, and he also rubbed her vagina with his hand. Victim testified that she informed her sisters, mother, uncle, grandmother, police, a social worker from Cardinal Glennon Hospital, and a forensic interviewer about Defendant’s conduct. Sister was an eyewitness to the incident, and she testified that Victim’s retelling of the events was accurate.
b. Prior Sexual Contact with Victim
On a previous occasion in 2011, Defendant also allegedly engaged in sexual conduct with Victim. Sister testified that she witnessed this occurrence too. As a result of the 2011 incident, both girls went to counseling and Defendant was told not to contact Victim. During Victim’s testimony on direct, she stated that she told her mom she was uncomfortable around Defendant because of “what he did to [her]” in 2011, and she was afraid Defendant would subject her to inappropriate sexual conduct again. Victim’s mother also testified about the 2011 incident. She testified that she told Defendant she did not want him coming into contact with Victim after she found out he was “rubbing on her” and “touching her” on one occasion in 2011. Defense counsel did not object to the prosecution’s questioning of Victim, her sister, or her mother about the 2011 incident, nor did counsel object to any of their testimony.
Before the start of closing arguments, the prosecution asked the trial court if it could use evidence of the 2011 incident (1) to suggest his prior conduct made it more likely that the allegations that Defendant’s *66charges were based on actually occurred (i.e., character propensity evidence); and/or (2) to establish Defendant’s “motive” for assaulting and molesting Victim and “intent” to do so for the purpose of sexual gratification. Defense counsel objected to the prosecution’s use for any purpose at that point. However, the trial court informed the prosecution that discussing Defendant’s prior sexual contact with Victim was permissible for the purpose of establishing motive and intent, appearing to impliedly prohibit a character propensity argument.2 During closing arguments, the prosecution only referred to the 2011 incident by stating:
Let me be clear. You do get to consider the prior allegations involving [Defendant]. That gets to weigh on your verdict today, ladies and gentlemen. Yes, that goes to the elements of this case. It’s not something that you have to set aside. That is something that gets to factor in your decision in finding the defendant guilty. That is what the law says.
Based on the prosecution’s use of Defendant’s prior conduct, Defendant appeals the trial court’s judgment and asks us to reverse and remand the case for a new trial.
II. Standard of Review
Defendant concedes that his trial counsel failed to object to evidence of the alleged prior sexual offense, and his counsel only objected to the use of such evidence just before the prosecution’s closing argument. Accordingly, the defense counsel’s objection to the evidence was “untimely,” as she did not raise the objection “contemporaneously” with the evidence elicited. “A contemporaneous objection at the time of the statement [is] required in order to preserve the issue on appeal.” State v. Thompson, 401 S.W.3d 581, 590 (Mo. App. E.D. 2013). Accordingly, Defendant failed to preserve the issue on appeal, and “the question raised on appeal is whether the trial court plainly erred” and caused “a manifest injustice or miscarriage of justice.” Id.) Rule 30.20.3
We review plain error under Rule 30.20 using a two prong-standard: (1) we determine whether the trial court erred in an “evident, obvious, and clear” manner; (2) we determine if the error resulted in a manifest injustice or miscarriage of justice. State v. Ray, 407 S.W.3d 162, 170 (Mo. App. E.D. 2013). We use plain error review “sparingly” and the defendant bears the burden of satisfying the two-prong test. Id.) State v. Tokar, 918 S.W.2d 753, 769-70 (Mo. banc 1996).
III. History of Using Character Propensity Evidence for Crimes Sexual in Nature
In 1995, § 566.0254 became effective and permitted the prosecution to present “evidence that the defendant committed other charged or uncharged crimes of sexual nature involving victims under fourteen years of age... for the purpose of showing the propensity of the defendant to commit *67the crime or crimes with which he or she is being charged.” Section 566.025 was an exception to the general rule prohibiting the prosecution from using evidence of a defendant’s prior misconduct to prove he was more predisposed to commit the offense(s) charged. See State v. Peal, 393 S.W.3d 621, 627-28 (Mo. App. W.D. 2013) (citing Mo. Const. Art. I, §§ 17, 18(a) (explaining a defendant may only be tried for the offenses for which he is on trial)). However, the statute was declared unconstitutional by our Supreme Court in 2007. State v. Ellison, 239 S.W.3d 603, 607-08 (Mo. banc 2007). Our Supreme Court reasoned:
In holding [§ 566.025] unconstitutional, this Court acts consistently with a long line of cases holding that the Missouri constitution prohibits the admission of previous criminal acts as evidence of a defendant’s propensity. Evidence of pri- or uncharged misconduct is inadmissible for the sole purpose of showing the propensity of the defendant to commit such acts. Our cases likewise hold that convictions, as well as uncharged acts, are inadmissible to show propensity.
Id.
Ellison was effectively overturned on December 4, 2014, when the amendment of article I, section 18(c) to the Missouri Constitution became effective.5 The amendment states:
Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim’s testimony. or demonstrating the defendant’s propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.
Mo. Const., Art. I, § 18(c) (emphasis added).
IV. Discussion
Defendant argues his right to due process and his right to a fair trial — as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and article I, sections 10, 17, and 18(a) of the Missouri Constitution — were violated because (1) the recently enacted article I, section 18(c) of the Missouri Constitution cannot apply to this case because the crimes were allegedly committed before its effective date, and the amendment may only be applied prospectively; (2) there are no applicable case law exceptions to the prohibition of prior bad acts evidence; and (3) even if article I, section 18(c) was applicable, the trial court erred in applying it, as the prejudicial effect of the prior alleged sexual offense evidence plainly substantially outweighed the probative value of the evidence. We find all of Defendant’s arguments unavailing.
*68a. Missouri’s Constitutional Amendment in Article I, Section 18(c)
To address Defendant’s first point on appeal, we must first determine whether article I, section 18(c) may apply to crimes committed before December 4, 2014, when it became effective. The relevant timeline of the events unfolded as follows:
1. December of 2013 or January of 2014: the alleged underlying conduct for Defendant’s charges occurred;
2. December 4, 2014: article I, section 18(c) became effective; and
3. June 9-10, 2015: Defendant’s trial was held.
Constitutional amendments, just like statutory amendments, “apply only prospectively in all but the most extraordinary circumstances.” State ex rel, Tipler v. Gardner, 506 S.W.3d 922, 924 (Mo. banc 2017). Accordingly, if the amendment only applies to crimes committed after December 4, 2014, then its application would be retroactive in this case, and we will only consider the relevant precedent at the time of the alleged conduct (most notably, Ellison ). However, if the amendment applies to any trials that begin on or after December 4, 2014, then its application in this case would be prospective, and article I, section 18(c) may impact the admissibility of evidence.
Tipler, an opinion recently handed down by the Supreme Court of Missouri, is controlling on this issue: “[T]he new rule of evidence adopted in article I, section 18(c) applies to all trials occurring on or after December 4, 2014, when this new provision took effect.” Tipler, 506 S.W.3d at 924. Our Supreme Court concluded the date of the trial controls on this issue. Id. at 925 (“Accordingly, to say that article I, section 18(c) applies only prospectively is to say that it applies only to trials occurring on or after its effective date.”). The Court reasoned that article I, section 18(c) pertains to “prosecutions,” not the underlying “conduct” leading to a prosecution. Id. at 927. Accordingly, the amendment shall be prospectively applied to any “prosecutions” beginning on or after the amendment’s effective date of December 4, 2014.6 Id. Defendant’s trial began on June 9, 2015.
In light of the holding in Tipler, Defendant’s argument that applying the amendment would violate the prohibition against ex post facto laws is also unpersuasive. “It is an exercise of the power of the state to provide methods of procedure in [its] courts.” Id. at 926 (emphasis added). No vested right of a defendant is disturbed by laws affecting the methods of court procedure. Id. Accordingly, “[a]s to all trials occurring after [a procedural law’s] enactment, it [is] prospective, and not retroactive,” and “such legislation is not ex post facto.” Id.
Based on the Supreme Court of Missouri’s recent holding in Tipler, article I, section 18(c) was effective at the time of Defendant’s trial. Thus, the trial court did not plainly err by admitting evidence of Defendant’s prior bad acts for character propensity purposes.
4. Was the Evidence’s Probative Value Substantially Outweighed by the Danger of Unfair Prejudice?
Defendant also argues that even if article I, section 18(c) was in effect at the time of his trial, the trial court clearly erred by not excluding the evidence of his prior criminal acts because its prejudicial *69value substantially outweighed the evidence’s probative value. Although the amendment generally permits “relevant evidence of prior criminal acts” when a defendant is being prosecuted for a “crim[e] of a sexual nature involving a victim under eighteen years of age... The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” Mo. Const. Art I, § 18(c) (emphasis added). We review “the trial court’s interpretation of the Missouri Constitution de novo.” Gray v. Taylor, 368 S.W.3d 154, 155 (Mo. banc 2012). The General Assembly’s use of the word “may” indicates that the court has discretion to exclude such evidence in these circumstances, but it is not obligated to do so. Wolf v. Midwest Nephrology Consultants, PC., 487 S.W.3d 78, 83 (Mo. App. W.D. 2016) (“It is the general rule that in statutes the word ‘may’ is permissive only, and the word ‘shall’ is mandatory.”). Accordingly, even if the evidence’s probative value was “substantially outweighed by the danger of unfair prejudice,” the trial court was not required to exclude the evidence.
“Generally, evidence of other uncharged crimes or prior misconduct is logically relevant when it tends to establish: (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan, or (5) the identity of the person charged.” State v. Austin, 411 S.W.3d 284, 294 (Mo. App. E.D. 2013). The relevance of the evidence in question is clear in this case.
The evidence presented at Defendant’s trial involved his prior criminal sexual acts against the same child. “Prior sexual conduct by a defendant toward the victim is admissible as it tends to establish a motive, that is satisfaction of defendant’s sexual desire for the victim.” State v. Primm, 347 S.W.3d 66, 70 (Mo. banc 2011). Furthermore, the State was required to show Defendant’s “[i]ntent to cause sexual arousal or gratification” to obtain a conviction. See A.B. v. Juvenile Officer, 447 S.W.3d 799, 804 (Mo. App. W.D. 2014); see also § 566.010(3).7 Defendant was charged with first-degree child molestation under § 566.067 and third-degree assault under § 565.070. An individual commits the offense of child molestation in the first degree if (1) he or she subjects another person less than fourteen years of age to (2) sexual contact. § 566.067 At the time of the underlying criminal conduct, Victim was 10 years old. “Sexual contact” means “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” Section 566.010(3). In Defendant’s case, the evidence of his alleged prior sexual offenses involved the same victim as the charges before the trial court. The evidence is especially probative to establish Defendant was sexually attracted to Victim, which helps establish motive and intent. To whatever extent Defendant was prejudiced by the evidence of his alleged prior sexual offenses, it did not “substantially outweigh” the evidence’s probative value.
Defendant argues that the evidence cannot be used to show “motive” or “intent,” because the general exceptions to prohibiting evidence of prior bad acts are only triggered when Defendant puts these at issue, and he did not do so in this case. To support his argument, Defendant relies on State v. Howery. 427 S.W.3d 236, 252 (Mo. App. E.D. 2014). In Howery, this Court *70noted that “[i]n cases of murder or assault, prior misconduct by the defendant toward the victim is logically relevant to show motive, intent, or absence of mistake or accident,” however, these exceptions only apply when a defendant puts one of those at issue. Id. (emphasis added). The rationale behind requiring the defendant to first put motive, intent, or absence of mistake or accident at issue is “the prejudicial effect of admitting the evidence is substantial.” Id. However, as our Supreme Court has explained, “[njumerous cases in Missouri involving sexual crimes against a child have held that prior sexual conduct by a defendant toward the victim is admissible as it tends to establish a motive, that is satisfaction of defendant’s sexual desire for the victim.” Primm, 347 S.W.3d at 70. In State v. Sprofera, the Western District followed Primm in admitting evidence of prior sexual acts against a child for the purpose of establishing motive. 427 S.W.3d 828, 835 (Mo. App. W.D. 2014). Primm and Sprofera are consistent with Missouri courts’ greater willingness to allow evidence of prior sexual acts in sex crimes, especially prior sexual acts committed against children. As our Court explained State v. Loazia, “[cjurrently, the trend is toward the liberal admission of prior sex crimes under one of the stated exceptions ... [wjhere a defendant is charged with committing a sexual crime against a child, evidence of acts of sexual misconduct committed at other times by defendant against the same victim is generally admissible.” 829 S.W.2d 558, 567 (Mo. App. E.D. 1992). Our Court’s finding in Loazia is consistent with the enactment of article I, section 18(c), which explicitly limits the admissibility of prior bad acts evidence to sexual crimes committed against children. Moreover, the facts in this case are significantly more analogous to the facts in Primm and Sprofera than Howery, where neither the crime at issue nor the defendant’s prior bad acts involved sexual conduct.
Additionally, the new amendment allows legally relevant evidence of this type to be admitted “for the purpose of corroborating the victim’s testimony” and for “demonstrating the defendant’s propensity to commit the crime with which he or she is presently charged.” Mo. Const., Art, I, § 18(c). In the present case, Victim testified about the crime Defendant was being charged with, as well as his prior uncharged criminal sexual acts. The evidence of. these prior criminal acts was also relevant to corroborate Victim’s testimony that Defendant forced her to kiss him on the mouth and rubbed her vagina at some point on the weekend of December 31, 2013 through January 2,2014.
Accordingly, the considerable amount of probative value stemming from the evidence of Defendant’s prior criminal acts was not substantially outweighed by any prejudicial effect it may have had. The trial court did not plainly err in admitting evidence of Defendant’s prior sexual acts.
V. Conclusion
For the foregoing reasons, we affirm the trial court.
Sherri B. Sullivan, P.J., concurs.
Roy L. Richter, J., concurs.
. First-degree child molestation is a class B felony under § 566.067, RSMo Supp. 2006 and third-degree assault is a class C misdemeanor under § 565.070, RSMo 2000.
.The trial transcript is somewhat ambiguous. The prosecution stated, "I do want to clarify, judge, for the purposes of closing argument, under [article I, section 18(c)] it would allow me to argue propensity; that because it happened in the past, therefore its more likely that it happened now. I want to have direction from the Court whether or not I can make that argument or [for the purposes which] the case law says I can argue, such as motive, intent, and lack of accident.” The discussion on the matter ended with the trial court responding, “I think you can argue the latter.”
. Missouri Supreme Court Rule 30.20 (2015).
. § 566.025, RSMo 2000.
. In fact, the amendment has increased the admissibility of evidence in relevant cases beyond what § 566.025, RSMo 2000 had permitted: Art I, § 18(c) states the trial court "may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice,” whereas § 566.025 only permits the trial court to admit character propensity evidence if the probative value is not outweighed by the prejudicial effect. Mo. Const., Art. I, § 18(c) (emphasis added); § 566.025, RSMo 2000. Moreover, § 566.025 only allowed this kind of evidence for cases "involving a victim under fourteen years of age,” but article I, section 18(c) expands the permissible age range to "a victim under eighteen years of age.” Id.
. We note, however, the Supreme Court of Missouri did not address whether “a proper application [of article I, section 18(c)]” may nevertheless "violate[] the defendant’s substantive rights under the state or federal constitutions.” Tipler, 506 S.W.3d at 923.
. § 566.010(3), RSMo Cum. Supp. 2006. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284116/ | ORDER
Per curiam:
Keith Lancaster appeals from the trial court’s entry of judgment convicting him of driving while intoxicated as a persistent offender. Lancaster argues that the trial court erred in overruling his motion for judgment of acquittal at the close of the evidence and in imposing a judgment and sentence against him because there was insufficient evidence of a causal connection between the presence of drugs in Lancaster’s system and an impaired ability to operate a motor vehicle. We affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284118/ | ORDER
PER CURIAM
Matthew Rounds appeals the denial of his Rule 24.035 motion following his guilty plea to a charge of second degree statutory sodomy. After a thorough review of the briefs and the record, we find no error and affirm the motion court’s judgment. A formal published opinion, would serve no jurisprudential purpose; however, we have provided the parties with a Memorandum explaining the reasons for our decision.
AFFIRMED. Rule 84.16(b) | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284119/ | OPINION
FRANK G. CLEMENT, JR., J.,
delivered the opinion of the Court,
in which PATRICIA J. COTTRELL, P.J:, M.S., and ANDY D, BENNETT, J., joined. , .
This multi-faceted business dispute, which arises in principal part from the real estate collapse of 2008, involves five limited liability companies, eight individuals who are either members or officers of the respective companies, 530 acres of undeveloped real estate, and $7 million of secured notes that were personally guaranteed by six of the individuals. Over the course of two years, SunTrust Bank, the *628holder of the notes, agreed to extensions of the original maturity date; a final extension was granted until August. 7, 2008. A call for capital contributions was approved but it produced insufficient funds to pay off the debt. Thereafter, two of the individuals, one of whom was .the president of Rock Creek, and both of whom personally guaranteed a portion of the debt, formed another entity which then acquired the notes from the bank. Rock Creek Development, LLC (“Rock Creek”), which owned the real estate, then agreed to sell a substantial portion of its property to pay off the balance owing on the notes. In an attempt to stop the sale,. Rock Ivy Holding, LLC (“Rock Ivy”), one of three members of Rock Creek, filed this derivative action for itself and on behalf of Rock Creek against Rock Creek’s members: RC Properties, LLC; Linked, LLC; two officers of Rock Creek; and several'individuals who were members of the defendant companies. The complaint alleged, inter alia, various conflicts of interests by the individual defendants and various breaches of statutory and contractual duties. by members and/or officers. Pursuant to an agreed order, the sale proceeded, the net proceeds were held in the registry of the court, and the remaining claims went to trial. After eights days of a bench trial, the defendants moved to dismiss the complaint pursuant to Tenn. R. Civ. P. '41.Ó2 at the close of the plaintiffs case-in-chiéf. The trial court granted the motion and dismissed all of the plaintiffs claims. Thereafter, several defendants filed various 'motions to recover, their respective attorneys’ fees and expenses. Some of.the motions were based on- TenmCode Ann. § 48-249-804, which pertains- to-derivative actions, and others were based on indemnification provisions in Rock Creek’s Operating Agreement. The trial court granted some of the fee requests and denied others. . In this, appeal, Rock Ivy .challenges the dismissal of its claims and the assessment of attorneys’ fees. Two individual defendants appeal the denial of their claims for attorneys’ fees. The holder of the notes appeals the deniaLof its claim for “default interest” and penalties. We affirm the trial court in all respects except for the trial court denying the claim for default interest on the notes. We have concluded that the holder of the notes is entitled to recover default interest from the time the notes were declared to be in default. Accordingly, this issue is remanded for further proceedings.
The business entity at the center of this action is Rock Creek Development, LLC (“Rock Creek”). It has three members, each of which is a limited liability company: RC Properties, LLC (“RC Properties”); Rock Ivy Holding, LLC (“Rock Ivy”); and Linked, LLC (“Linked”). As stated in Rock Creek’s Operating Agreement dated May 1, 2006, RC Properties had 50% governance rights and 25% financial rights; Rock Ivy had 25% governance rights and 55% financial' rights; and Linked had 25% governance rights and 20% financial rights.
The stated purpose of forming Rock Creek was to acquire, own, and develop real property. Soon after its creation, Rock Creek acquired real estate consisting of approximately 530 acres on the east side of Interstate 65 (“East Side Tract”), and 154 acres on the west side of Interstate 65 (‘West Side Tract”) in' the counties of Maury and Williamson. Rock Creek also secured two loans from SunTrust Bank (“SunTrust”) totaling over $7 million. The first loan, in the amount of $6,864,000, was issued on September 21, 2006, for the purpose of paying-'the indebtedness incurred by members for the original real estate purchase. The second, issued on March 2, 2007, in the amount of $487,500, was for the purpose of acquiring additional proper*629ty. Both loans, which were originally scheduled to mature on September 21, 2007, were secured by a Deéd of Trust on the real estate property and were personally guaranteed by- some- individuals, specifically Scott Sohr and Preston Ingram, who were individual members of RC Properties; Jeff Ennis and Steve Church, individual members of Linked; and Vicki Gordon and Tom Parkinson, who were two of the four members of Rock Ivy.
Over the course of two years, the original maturity date passed and SunTrust agreed to several extensions of the original maturity date. SunTrust initially agreed to extend the payoff date until December 21, 2007; the date was further extended until June 21, 2008, and then a final extension was granted until August 7, 2008.
Due to the impending payoff date, as well as the onset of the national recession and the dramatic decline in the real estate market during that time, Sohr, acting in his capacity as President of Rock Creek, sent notice to RC Properties, Rock Ivy and Linked on July 25, 2008, of a capital call stating that Rock Creek required additional capital contributions in order to meet its financial obligations to SunTrust. The notice further stated that if approved, the three members would need to make capital contributions on August 5, 2008, in accordance with the percentage of their financial rights in Rock Creek. On July 29, four days after Sohr notified Rock Creek’s members of the capital call, Sun-Trust sent a letter to Rock Creek, demanding payment of its full outstanding debt by August 7,2008.
At the capital call meeting on August 5, RC Properties and Linked (which together possessed 75% of the governance rights) voted to confirm the capital call; as a consequence, the capital call passed. Accordingly, Rock Ivy was to provide its 55% financial share, which amounted to $4,035,000, RC Properties was to remit its 25% share, which amounted to $1,834,031, and Linked was to remit its 20% share, which amounted to $1,467,225. RC Properties and Linked each promptly remitted their share of the required capital call, while Rock Ivy made no contribution. The contributions by RC Properties and Linked were promptly remitted to Sun-Trust to reduce the debt on the- two notes, and, as a-result, SunTrust granted Rock Creek until October 15,- 2008, to pay the outstanding debt. Following this- payment, the balance owed on the notes was approximately $4,035,000, Rock Ivy’s share of the capital call.
Despite this extension, Rock Ivy made no capital contribution. As a result, Sohr and Ingram proposed to Rock Ivy and Linked that the members of Rock Creek collectively purchase the notes. from - Sun-Trust; both Rock Ivy and Linked declined. Thereafter, Sohr and Ingram formed another limited liability company, FUM, LLC (“FUM”), which-;then purchased the notes from SunTrust in December 2008. As a consequence, FUM succeeded to the rights of SunTrust and became the lawful holder,of the notes owed by Rock Creek.
On January 7, 2009, FUM's counsel sent Rock Creek a Notice of Assignment and Default officially informing Rock Creek and its members that FUM had purchased the notes and that if Rock Creek did not pay its obligation in full on or before January 20, 2009, it would constitute an Event of Default. The foregoing notwithstanding, no efforts were made to' satisfy the obligations owing to FUM on the notes.
In the interim, Vanguard Properties of the Carolinas, LLC ■. (“Vanguard”), expressed an interest in purchasing the East Side Tract of the Rock Creek property. Sohr, as President of Rock Creek, began negotiating the sale of the-real estate, and, these negotiations resulted in an offer of *630$11,673.63 per acre, or approximately $5,926,000, .-with .the additional requirements that Rock Creek shall reinvest over $1,000,000 in the entity formed by .Vanguard to acquire the property, and that Vanguard be able, to receive any awards given for eminent domain. The offer also provided that Vanguard could purchase the Harrison and Johnson Farm (“the Harrison .Farm”), which was adjacent to Rock Creek’s property and owned by ’another partnership of Ingram and Sohr.
As these negotiations were ongoing; the Tennessee Valley Authority (“the TVA”) made an offer to Rock Creek to purchase 20 acres of the East Side Tract for approximately $28,500 per acre, a noticeably higher amount than Vanguard’s offer.
On' May 26, 2009, when the offers from Vanguard and TVA were presented to the members of Rock Creek for a decision, RC Properties and Linked voted to approve the sale of the East Side Tract and consented to the side agreement involving the Harrison Farm, while Rock Ivy vigorously objected. Because RC Properties and Linked controlled 75% of the governance rights, Rock Creek accepted the offer from Vanguard and signed the contract of sale. Shortly thereafter, on August 28,2009, and before the closing of the transaction, Rock Ivy filed this derivative action on behalf of Rock Creek and for itself to .enjoin the sale. Seven defendants were named: Rock Creek’s other two members, RC Properties and Linked; Vanguard, the proposed purchaser of Rock Creek’s real estate; FUM, the owner of the notes; and three individuals, Sohr, Ingram, and Church.
Immediately upon learning of the filing of the action by Rock Ivy,- Vanguard retracted the reinvestment provision that would have allowed Rock Creek to invest in the purchasing entity to be created by Vanguard; it also demanded that the TVA’s offer, and any proceeds to be derived therefrom, be reserved for Vanguard. Over the next few days, all parties, even. Rock Ivy, asked the court to allow the sale to proceed provided the net proceeds were held by the court pending the resolution of' other issues. After hearing from all parties, the trial court entered an order on September. 15, 2009, that confirmed the agreement to permit the- sale of the property to proceed, to allow the closing agent to pay all closing costs, including the notes that were secured by the deed of trust, and to pay the net proceeds from the sale into court.. At closing, FUM was paid in full on the principal balances owing, along with non-default interest, while the remaining proceeds, totaling- 1.9 million dollars, were paid into the registry of the court. Additionally, Vanguard was dismissed from the suit.
Thereafter, RC Properties, Ingram, and Sohr filed an Answer and Counter-Claims by which they sought, inter alia, to recover their respective attorneys’ fees and expenses pursuant’ to TenmCode Ann. § 48-249-804 and the indemnification provision of the Operating Agreement. For its part, FUM filed an Answer and a Third-Party Complaint against Rock Creek seeking to collect all amounts owed under the promissory notes, including unpaid principal, interest, charges, fees, costs, and expenses.
After the closing occurred, Rock Ivy filed an Amended Verified Complaint asserting several claims against the various defendants, including: breach of contract, breach of-the statutory duty of loyalty, breach of the statutory duty of care, and breach of the statutory duty of good faith and fair dealing against RC Properties and Linked. Rock Ivy also asserted claims of breach of the statutory duty of care against Sohr and Church as officers of Rock Creek; violation of TenmCode Ann. § 48-249-404 against RC Properties, Sohr, *631and Ingram; civil conspiracy against Sohr, Church, Ingram, RC Properties, Linked, and FUM; and appointment of receiver and judicial dissolution of Rock Creek.
The various defendants filed their respective Answers. RC Properties, Sohr, and Ingram filed an Answer to the Amended Complaint and renewed their CounterClaim for expenses and attorneys’ fees; RC Properties renewed its previous Counter-Claim asserting claims of conversion against Rock Ivy. FUM filed its Answer, and, the following day, Linked and Church filed an Answer and Counter-Claim, requesting expenses and attorneys’ fees pursuant to the indemnification provision of the Operating Agreement as well as Tenn. Code Ann. § 48-249-804. Subsequently, RC Properties filed a Third-Party Complaint against Huntly Gordon, an individual member of Itock Ivy, asserting against him personally the same, conversion claims it had asserted in its Counter-Claim against Rock Ivy.
A bench trial was held over eight days in February and April of 2012. At the conclusion of Rock Ivy’s case-in-chief, the defendants collectively made an oral motion pursuant to Tenn. R. Civ. P. 41.02 to dismiss- all claims in the Amended Complaint. The trial court granted the motion to dismiss from the bench. Because the plaintiffs case-in-chief was tried over eight days ánd none of the defendants’ CounterClaims or Third-Party Claims had yet been presented, it was agreed that the trial would recess without prejudice regarding the conversion claims asserted by RC Properties against Rock Ivy and Huntly Gordon, as well as FUM’s Third-Party Complaint against Rock Creek to recover “default interest” and attorneys’- fees under the promissory notes.
On April 18, 2012, the trial court announced its findings of fact and conclusions of law; an Order adopting these findings was,.entered on May 8, 2012. The order dismissed all of Rock Ivy’s claims as to all defendants; additionally, the court ruled that Linked was entitled to recover from Rock Ivy its attorneys’ fees pursuant to TénmCode Ann. ’ § 48-249-804, and instructed Linked to submit a fee application. As to the other defendants, the trial court declined to award attorneys’ fees to RC Properties or any of the individuals at that time. '
As instructed, Linked filed a motion to set the amount of fees it had been awarded. In the - same -application, Church sought to recover his attorneys’ fees pursuant to Tenn.Code Ann. §- 48-249-804 or the indemnification provision of the Operating Agreement.
The other parties also filed motions relating to the issue of attorneys’ fees and the reserved claims. Sohr filed a motion to recover his attorney’s fees and expenses pursuant to both TenmCode Ann. § 48-249-8041 and-the indemnification provision in Rock Creek’s Operating Agreement. Ingram filed a motion to revise the May 8, 2012 Order, in which he sought to recover his attorneys’ fees pursuant to TenmCode Ann. § 48-249-804.-
The trial court awarded Sohr a judgment against Rock Ivy for attorney’s fees and expenses in the amount of $104,028.39 pursuant to the Operating Agreement’s indemnification provision and TenmCode Ann. § 48-249-115(e), but denied Sohr’s *632request for fees under the derivative action statute, specifically Tenn.Code Ann. § 48-249-804.^
As for Ingram, the trial court denied Ingram’s request for attorneys’ fees and expenses pursuant to the derivative action statute, TenmCode Ann. § 48-249-804.
The trial court awarded Linked a judgment against Rock Ivy pursuant to Tenn. Code Ann. , § 48-249-804 for attorneys’ fees and expenses in the amount of $193,285.69. As for Church’s claim, the trial court ruled that Church is entitled to recover from Rock Ivy his attorneys’ fees and expenses pursuant to Tenn.Code Ann. § 48-249-804.
In response to a motion to enter a “final judgment,” the trial court required the parties to file several motions and applications for fees to resolve all pending claims: one setting, the amounts sought by FUM pursuant to its Third-Party Complaint, and others by Sohr and Ingram, each of whom were seeking attorneys’ fees they claimed under the derivative statute, Tenn. Code Ann. § 48-249-804.2
. After the requested motions and applications for fees were filed and considered, the trial court made a provisional award of attorneys’ fees for Ingram and Sohr, respectively, each of which was contingent upon an appeal and the appellate court finding that Ingram and/or Sohr were entitled to recover attorneys’ fees under the statute.3 In addition, the trial court denied FUM’s motion seeking default interest still outstanding under the notes, expenses, and attorneys’ fees.
Thereafter, on October 26, 2012, RC Properties entered a notice of voluntary nonsuit, dismissing its Counter-Claim and Third-Party Claim against Rock Ivy and Huntly Gordon, respectively, without prejudice, which the trial court affirmed.
The trial court subsequently entered an order directing the funds.held in the court registry be distributed to Rock Creek upon entry of a.Final Order, subject to the attorneys’ fees and expenses awarded to Sohr and Church pursuant to the indemnification provision in the Operating Agreement.
Church then filed a motion seeking indemnification from Rock Creek for a share of the attorneys’ fees incurred by Linked; the trial court granted Church’s motion for attorneys’ fees totaling $96,642.85 as indemnity from Rock Creek, but held thát these fees are not recoverable against Rock Creek to the extent that Linked recovers the full amount of its award against Rock Ivy. The trial court designated this order as final.
Gordon filed a Post-Trial Request for Attorney’s Fees and Expenses pursuant to Tenn. Code Ann. § 48-249-804 and the indemnification provision of the Operating Agreement; the court denied the motion because Gordon did not raise a CounterClaim for attorney’s fees in his Answer at the time the Third-Party Complaint was voluntarily dismissed.
*633Analysis
Rock Ivy, Ingram, FUM, and Gordon filed timely notices of appeal. Rock Ivy raises several issues relating to the dismissal of its several claims; it also contends the court erred in holding it liable for other parties’ attorneys’ fees. Ingram raises issues relating to the denial of his claim for attorneys’ fees. FUM appeals the denial of its claim for default interest, expenses, and attorney’s fees. Gordon appeals the denial of his claim for attorney’s fees. We shall address each issue in turn.
I. Rock Ivy’s Claims
The trial court dismissed all of Rock Ivy’s claims pursuant to Tenn. R. Civ. P. 41.02, finding that Rock Ivy failed to make out a prima facie case by a preponderance of the evidence. Rock Ivy asserts this was error. Specifically, it asserts the court erred in holding that the .sale of Rock Creek’s real estate to Vanguard was “fair.” In furtherance of this argument, Rock Ivy contends the trial court incorrectly applied the “entire fairness” test which was applicable due to the conflict of interest created by Sohr and Ingram regarding the transaction. Additionally, Rock Ivy asserts the trial court erred in holding that Sohr and Church did not breach their fiduciary duties to Rock Creek and its members, and erred in declining to find that a civil conspiracy existed among RC Properties, Ingram and Sohr.4
A. INVOLUNTARY DISMISSAL — TENN. R. Civ. P. 41.02(2)'
In an action tried by the court without a jury, after the plaintiff has completed the presentation of plaintiff 's evidence, the defendant or defendants may move for dismissal “on the ground that upon the facts and the law the plaintiff has shown no right to relief.” Tenn. R. Civ. P. 41.02(2) (2010). As trier of the facts, the trial judge may determine the facts and “render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court grants the motion for involuntary dismissal, the court shall find the facts specially and shall state separately its conclusion of law and direct the entry of the appropriate judgment.” Id.
A motion for involuntary dismissal pursuant to Rule 41.02(2) challenges the sufficiency of the plaintiffs proof. Burton v. Warren Farmers Co-op., 129 S.W.3d 518, 520 (Tenn.Ct.App.2002) (citing Smith v. Inman Realty Co., 846 S.W.2d 819, 821 (Tenn.Ct.App.1992)). A claim may be dismissed pursuant to a Rule 41.02(2) motion if, based on the law and the evidence, the plaintiff has failed to demonstrate a right to the relief it is seeking. Id. (citing. City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 740 (Tenn.1977)). Motions under Rule 41.02(2) require less certainty than motions for directed verdict under Rule 50.5 Id.; Inman Realty Co., 846 *634S.W.2d at 822. Thus, a court faced with a Rule 41.02(2) motion need only impartially weigh and evaluate the plaintiffs evidence just as it wpuld after all the parties had concluded their cases and may dismiss the plaintiffs claims if the plaintiff has failed to make out a prima facie case by a preponderance of the evidence. Id. at 520-21; Thompson v. Adcox, 63 S.W.3d 783, 791 (Tenn.Ct.App.2001).
The standard by which the appellate court reviews a trial court’s grant of a Rule 41.02 involuntary dismissal is governed by Tenn. R.App. P. 13(d). Building Materials Corp. v. Britt, 211 S.W.3d 706, 711 (Tenn.2007); Burton, 129 S.W.3d at 521. This is because the trial court has used the same reasoning to dispose of the motion that it would to make a final decision at the close of all the evidence. Burton, 129 S.W.3d at 521. Thus, we review the record on appeal de novo with a presumption that the trial court’s factual findings are correct and we will affirm the trial court’s- decision unless the evidence preponderates against the trial court’s factual determinations or unless the trial court has committed an error of law affecting the outcome of the case. Id. We will also give great weight to the trial court’s assessment of the evidence because the trial court is in a much better position to evaluate the credibility of the witnesses. Id.
B. Conflict of InteRest TRansaction
Rock Ivy alleged that Sohr and Ingram violated Tenn.Code Ann. § 48-249-404 by voting, and approving the sale of the East Side Tract for a price far below its market value and by including in the transaction the sale of the Harrison Farm owned by Sohr and Ingram. Rock Ivy also asserts that Sohr, as President of Rock Creek, co-owner of the Harrison Farm and a member of FUM (the entity that owned the notes), and Ingram, as a member of FUM and co-owner of the Harrison Farm, had conflicts of interest.
The statute Rock Ivy relies upon provides in pertinent part:
(a) Definition. A conflict of • interest transaction is a transaction with the LLC in which a member, manager, director or officer, as applicable, of the LLC has a direct or indirect interest. A conflict of interest transaction is not void and is not voidable by the LLC, and does not violate the duty of loyalty in § 48 — 249—403(b)(2), solely because of the interest of a member, manager, director or officer in the transaction, if any one (1) of the following is true ... including that ... (3) the transaction was fair to the LLC[.]
Tenn.Code Ann. § 48-249-404 (2008) (emphasis added).
The trial court determined there was a conflict of interest transaction and a conflict of interest vote “in that by the time of the sale to [Vanguard], RC Properties and its members [Sohr and Ingram] had become a creditor of Rock Creek and was in [sic] adversarial position to Rock Creek.” The trial court also found that the sale of the Harrison Farm “probably created some sort of conflict of interest.” Therefore, the determinative issue was whether the transactions in which RC Properties, Sohr and Ingram had conflicts of interest were fair to Rock Creek.
As part of its legal analysis to determine the fairness of the transactions to Rock Creek, the. trial court considered the relevant law of Delaware.6 This was due *635in part to -the fact Tennessee courts have not specifically addressed- the analysis for determining whether a transaction is fair to an LLC, and the Tennessee Revised Limited Liability Company Act, which became effective January 1, 2006, made sweeping revisions to the law regarding the operations of limited liability companies. See Tenn.Code Ann. § 48-249-101 et seq. Moreover, in matters of corporate law, Tennessee courts look to Delaware law due in part because Delaware has become the most popular state in which to incorporate businesses, and, as a result, its judiciary have become specialists in the field. McCarthy ,v. Middle Tenn. Elec. Membership Corp., 466 F.3d 399, 409-10 (6th Cir.2006) (citing Bayberry Assocs. v. Jones, No. 87-261-11, 1988 WL 137181, at *5 n. 8 (Tenn.Ct.App. Nov. 9, 1988), vacated, 783 S.W.2d 563, 560 (Tenn.1990)) (The appellate court decision in Bayberry was vacated, but the Tennessee Supreme Court did not dispute the lower court’s use of Delaware law.).
In Delaware, when an officer or member of an LLC is alleged to have participated in a transaction in which he had a conflict of interest and it is alleged that the transaction was not fair to.the LLC, the court analyzed the issues based on the “entire fairness” test... When this test applies, the burden, of persuasion initially lies with the .defendant. Bomarko, Inc. v. Int’l Telecharge, Inc., 794 A.2d 1161, 1179, (Del.Ch.1999), aff'd, 766 A.2d 437 (Del.2000).
There are two components to the “entire fairness” test: fair dealing and fair price. Id. at 1179-80 (citing Weinberger v. UOP, Inc., 457 A.2d 701, 711 (Del.1983)). Fair dealing “embraces questions of when the transaction was timed, how it was initiated, structured, negotiated, disclosed to the directors, and how the approvals of the directors and the stockholders were obtained.” Id. at 1180 (quoting Weinberger, 457 A.2d at 711). Fair price “relates to the economic and financial considerations . of the proposed [transaction], including all relevant factors: assets, market value, earnings, future prospects, and any other elements that affect the intrinsic or inherent value of a company’s stock.” Id. (quoting Weinberger, 457 A.2d at 711). In making a determination as to the entire fairness of a transaction, the court does not focus on one component over the other, but examines all. aspects of the issue as a whole. Id. The “fair dealing”, element of the entire fairness analysis “also embraces the duty of candor owed by corporate fiduciaries to disclose all material information relevant to corporate decisions from which they may derive a personal benefit.” Id. (quoting Mills Acquisition Co. v. Macmillan, Inc., 559 A,2d 1261, 1280 (Del.1989)).
Applying the above principles, the trial court found that although RC Properties, Sohr, and Ingram had conflicts of interest, the transaction was fair to Rock Creek. As the court explained, “Rock Creek needed to sell either the east side or the west side [and] [t]he west side was listed with a broker but ... didn’t sell.” The court also noted that the parties agreed that the West Side Tract was more ready to develop than the East Side Tract, but the West Side Tract never sold despite being listed with a broker. Ultimately, the court determined that Rock Creek needed to pay off its debt, and the sale to Vanguard was a reasonable solution in light of the deelin-*636ing real estate market. and shortage of buyers. ■
On appeal, Rock Ivy argues that the trial court incorrectly applied the entire fairness test to the conflict of interest transaction. Specifically, it argues that the trial court failed to consider' the fair dealing' prong of the entire fairness test,' failed to shift the burden of proving entire fairness to the defendants, and failed to consider that FUM was actively seeking elevated interest and fees from Rock Creek during the entirety of the transaction. We find that the trial court did consider the fair dealing prong because the chancellor specifically set forth both aspects of the test in her ruling from the bench. Thus, we will examine each aspect of the entire fairness doctrine de novo with a presumption that the trial court’s findings of fact are correct.'
1. Fair Dealing
As stated above, fair dealing includes factors such as “when the transaction was timed, how it was initiated, structured, negotiated, disclosed to the directors, and how the approvals of. the directors and the stockholders were obtained.” Weinberger, 457 A.2d at 711, Considering these factors, for the reasons sét forth below, we find that the evidence does not preponderate against the trial 'court’s findings that the sale to Vanguard was fair under the circumstances.
(a) Initiation and Timing of the Transaction
Rock Ivy contends it is apparent that the conflict of interest transaction involved unfair dealing with Rock Creek because Sohr and Ingram, through FUM, pressured Rock Creek to complete the sale to Vanguard by placing Rock Creek in default on the notes. Rock Ivy insists this is inconsistent with inherent fairness, asserting that but for FUM placing the notes in default, Rock Creek could have held the East Side Tract and marketed the property for a longer period of time and obtained its appraisal value. Rock Ivy alleges that the primary motivating factor to force the sale was to get rid of the Harrison Farm that Sohr and Ingram jointly owned in order to further separate themselves from each’other.7 Sohr, the President of Rock Creek, allowed the sale' of the East Side Tract to be made contingent upon the sale of the Harrison Farm, which, Rock Ivy alleges, detracted from the value of Rock Creek’s property. As a consequence, Rock Ivy insists the trial court should have shifted the burden to FUM, Sohr, and Ingram to prove the need to sell.
Prior to FUM acquiring the notes, Sun-Trust had demanded full payment on the outstanding debt, the real estate market was in decline, and there were no offers to purchase either tract of land." Further, Rock Ivy never remitted its share of the capital call, while Rock Creek had as little as $2,000 in its bank account. Facing either foreclosure and/or suits on the personal guarantees, FUM purchased the notes from SunTrust and held them in abeyance for eight months by not-filing suit on the personal guarantees or foreclosing on Rock Creek’s property. During this period, Vanguard agreed to pay over $11,000 an acre for a portion of Rock Creek’s property, and the .ensuing sale produced sufficient • cash to pay' off the notes, satisfy all guarantees, and produce a cash surplus of 1.9 million dollars.
*637The foregoing notwithstanding, Rock Ivy contends there were several alternatives to selling the land to Vanguard: accept either of Rock Ivy’s offers to purchase a portion of the East Side Tract, hold an auction, have the other members contribute Rock Ivy’s share of the capital call, obtain financing through another bank, or hold the property (assuming FUM would agree to defér payment even longer). However, none of these options would produce as positive a result as the sale to Vanguard.
On May 20, 2009, Rock Ivy offered to purchase approximately 200.93 acres of the East Side Tract for $2.05 million, of which the purchase price would be paid with a $750,000 cash payment by Rock Ivy to Rock Creek as well as a credit of $1.8 million in exchange for Rock Ivy’s membership interest in the LLC. Then, on May 22, 2009, Rock Ivy offered to purchase the same property for $2.2 million, of which $900,000 in cash would be paid as part of the purchase price as well as a credit, for $1.3 million in exchange for Rock Ivy’s membership interest. However, each: of these offers were at a price less than $11,000 per acre, and the cash proceeds would not have been sufficient to satisfy Rock Creek’s obligations on the notes. Furthermore, neither RC Properties nor Linked were willing to accept Rock Ivy’s credit or accept Rock Ivy as debtor.
Rock Ivy.also asserts there was an option to auction the property; however, there were no assurances the price per acre would be better than offered by Vanguard, and an auction involved uncertainties and delays.
Also, Rock Ivy argues that RC Properties or Linked should have contributed to Rock Ivy’s portion of the capital call; however, they had no obligation under, the Operating Agreement to make additional contributions or to finance another member’s obligations.
Furthermore, other financial lenders were' not willing to take over the loan unless individual members signed additional personal guarantees. The individual members of RC Properties, Linked, as well’as Rock Ivy, were unwilling to sign personal guarantees to obtain financing through another lender. Intact, only two members of Rock Ivy had signed personal guarantees of the SunTrust notes, while all individual members of Linked and RC Properties were personally liable.
Finally, holding the property may have created an even more unfortunate result' since there were no other offers to purchase the land, the real estate market was in serious decline and. the value of the property may have declined with the market. .In light of these factors, RC Properties and Linked made the decision to sell the property to Vanguard.
(b) The Negotiations, Structure and Disclosure to Members
All members were continually updated on matters regarding the negotiations with Vanguard as evidenced by several emails between the members. Moreover, during the negotiations, Rock Creek had legal counsel; Huntly Gordon, a- member of Rock Ivy, was an attorney engaged in real estate law; and Ed Gratz, another member of Rock Ivy, had his own legal counsel during the process. Although several members of Rock Iyy testified as to the hostility created by the negotiations and their desire for greater communication, all individual members were aware of the material facts during these negotiations.
The. proposed sale to Vanguard included the Harrison Farm that was separately owned by Ingram and Sohr, and Rock Ivy argües that the inclusion of the Harrison Farm in the sale is. evidence of inherent *638unfairness. As the trial court correctly found, the inclusion of the Harrison Farm created a conflict of interest for Ingram and Sohr; however, as they explain and Vanguard acknowledged, it was Vanguard that insisted on including .the Harrison Farm in the sale. Ingram and Sohr also insist that Rock Ivy produced only minimal evidence to suggest that including the Harrison Farm in the transaction detracted from or diminished the value Rock Creek received for the East Side Tract, relying on the unsupported opinion of Rock Ivy member Tom Parkinson, who stated: “I felt that the Harrison Farm had nothing done to it ... it detracted from the valué of our land in connection with this contract.” However, no one testified that Vanguard would have paid more for the East Side Tract had the Harrison Farm been removed from the transaction, and to the contrary, it waé Vanguard that insisted on including the' farm. '
The trial court also noted that all members of Rock Creek, and their respective individual members, were fully aware of the negotiations with Vanguard as they occurred and had the opportunity to comment, express concerns, objections and/or' approvals. Further, the court noted that when the proposed contract with Vanguard came to a vote, all members were present and participated in the vote to approve the contract with Vanguard.
Given these facts, the evidence does not preponderate against the trial court’s finding of fair dealing by Sohr, Ingram, and RC Properties.
2. Fair Price ■
The second component of the “entire fairness” test is -fair price, which “relates to the economic and financial' considerations of the proposed [transaction], including all relevant factors: assets, market value, earnings, future prospects, and any other-elements that affect the intrinsic or inherent value of a company’s stock.” Weinberger, 457 A.2d at 711. “When conducting a fair price inquiry as part of the entire fairness- standard of review, the court asks whether the transaction was one ‘that a reasonable seller, under all of the circumstances, would regard as within a, range of fair 'value; one that such a seller could reasonably accept.’ ” Reis v. Hazelett Strip-Casting Corp., 28 A.3d 442, 466 (Del.Ch.2011) (internal citations omitted). Here, we agree that the price was fair under the circumstances.
Rock Ivy contends that the final sale price was not fair in the context of FUM’s unfair- dealing, rather, than arguing straightforwardly that the price was not fair. Although Rock Ivy tries to couch its argument of unfair price as pertaining to unfair dealing, we. will examine it-under the aspect of fair price,.since that is what the doctrine requires.
Specifically, Rock Ivy argues that appraisals done before and after the salé evidence the unfairness of the transaction. In May-and October 2008, and again post-contract in July 2009, the East Side Tract was appraised at values over $20,000 per acre; however, all appraisals included a holding period of over two years in order to market the property. ' Under the contract, the land sold for $11,637.63 per acre. Despite these high appraisal values, Rock Creek did not find a buyer willing to pay these prices. In fact, even though the West Side Tract was more readily developed than the East Side Tract, the West Side Tract did not sell despite being listed with a broker in 2009. Moreover, the broker who listed the West Side Tract opined when asked-that Rock Creek should consider an offer for $10,000 per acre for the East Side Tract if such a buyer could be found.
*639Additionally, two of Rock- Ivy’s members, specifically Ed Gratz and Tom Parkinson, testified- that reasonable minds could differ as to the price offered by Vanguard, thereby satisfying the test of fair price. Reis, 28 A.3d at 466.
Finally, Rock Ivy argues that TVA’s offer to purchase a portion of the East Side Tract for approximately $28,500 per acre also indicates unfair dealing. Rock Ivy states that these proceeds should . have gone to Rock Creek; however, Vanguard insisted on receiving those proceeds and the trial court found that “any purchaser of the acreage would expect to be paid for the effect of the TVA easement on a residential development,” and we agree.
As stated above, the concept of a fair price relates to the economic and financial considerations of the transaction, including relevant factors such as assets; market value and future prospects, if any. Weinberger, 457 A.2d at 711. Having considered the relevant factors, we have concluded that the evidence in-this record does not preponderate against the trial court’s finding that a fair price was obtained; thus, we affirm this finding.
Having affirmed the trial court’s findings of fair dealing and fair price, we affirm the trial court’s conclusion that the contract of sale of the East Side Tract to Vanguard was fair to Rock Creek; thus, the transaction with Vanguard is neither void nor voidable by Rock Creek or its members.
C. Alleged BReaches op Statutoby AND CONTRACTUAL DUTIES
In its Amended Complaint, Rock Ivy asserted that Sohr and Church, as officers of Rock Creek, breached .their fiduciary duties under the terms of the Operating Agreement and Tenn.Code Ann. § 48-249-403(j), alleging, - inter alia, that Soto .breached his duties as President by forming FUM, approving the.-sate ofi.the East Side Tract for an amount below market value, and selling the Harrison Farm in conjunction with the sale, and also, alleging, inter alia, that both failed to. pursue alternative financing, failed to recover TVA condemnation, proceeds, and failed to perform due diligence in connection with the sale. Pursuant to Section .9.5 of the Operating Agreement, the standards of conduct of Rock Creek’s officers are those set forth in Tenn.Code Ann. .§ 48 — 249— 403.8 The statute detailing the standard for officers provides as. follows:
OFFICERS. An officer of an LLC shall discharge all duties as an officer: (1) in good faith; (2) with the care an ordinarily prudent .person, in a like, position would exercise under similar circumstances; and (3) in a manner the officer reasonably believes to be in the best .interest of the LLC.
Tenn.Code Ann. § - 48 — 249—403fj) (2012).
The trial court dismissed this claim as to both Sohr and Church. The court’s reasoning was that Soto and Church’s duties as officers of Rock Creek were merely “ministerial” because Rock Creek was member-managed; it also reasoned that the Operating Agreement limited the officers’ authority- to act for the entity. Specifically, the first sentence of Article VI states that,' “All powers of the company shall be exercised under the authority of, and the business and affairs' of the company shall be managed under the direction *640of, the members,” (Emphasis added). Moreover, Section 8.9 of the Operating Agreement expressly limits the authority of officers by stating that, “Nothing contained in this article shall be construed as giving the officers any authority over the managemefitof the company.”
Relying on these provisions of the Operating Agreement, the trial court found that neither Sohr nor Church violated any duty imposed by TenmCode Ann. § 48-249 — 403(j) in connection with the sale, failure to pursue financing, or FUM’s purchase of Rock Creek’s outstanding indebtedness. The trial court made its determination “[b]ecaüse Rock Creek was member-managed and because the Operating Agreement' itself states that neither the president, nor the vice president, nor the secretary, nor the treasurer are- going to be making decisions about policy or making decisions that are anything except ministerial.” The trial court further explained that although the President had more discretion in managing the business, during the meetings discussing the capital call and the sale to Vanguard, all members were present and were entitled .to vote. Sohr and Church did not make decisions on behalf of the members regarding those votes; thus, the trial court found no violation of a fiduciary duty. Moreover, the trial court found that all the members of Rock Creek were aware that FU-M .was owned by Ingram and Sohr before any action was taken in regards to acting on the loan. RC Properties and Linked decided they did not want to finance Rock Ivy’s position in Rock Creek, and none of the individual members were required to buy Rock Ivy’s interest or make Rock Ivy’s capital contribution.
Rock Ivy also asserts that the trial court failed to apply the contractual and statutory duties of loyalty and care under the Operating Agreement and TenmCode Ann. § 48-249-408. Rock Ivy also argues that the trial court erred in granting summary judgment on the reinvestment provision as it relates to the officers’ breach of fiduciary duties. We shall address Rock Ivy’s arguments in turn.
Under TenmCode Ann. § 48-249-401(a), in a member-managed LLC, each member has equal rights in the management and conduct of the LLC’s business. The only fiduciary duties a member owes to a member-managed LLC and the LLC’s other members and holders are the duty of loyalty and the duty of care. TenmCode Ann. § 48-249-403 (2012).
1. Duty of Loyalty in a Member-Managed LLC
A member’s duty of loyalty is outlined in TenmCode Ann. § 48-249-403:
(b) Duty of loyalty. A member’s duty of loyalty to a member-managed LLC and the LLC’s other members and holders of financial rights is limited to the following:
(1) To account to the LLC and to hold as trustee for it any property, profit or benefit derived by the member in the conduct or winding up of the LLC’s business, or derived from a use by the member of the LLC’s property, including the appropriation of any opportunity of the LLC;
(2) Subject to § 48-249-404, to refrain from dealing with the LLC in the conduct or winding- up of the LLC’s business as, or on behalf of, a person having an interest adverse to the LLC; and
(3) To refrain from competing with the LLC in the conduct of the LLC’s business before the termination of the LLC.
*641First, Rock Ivy contends that Sohr, as President, breached his duty of loyalty when he placed himself in a preferential position over Rock Creek by founding FUM to acquire the debt owed by Rock Creek. We^ note, however, that this fact, without more, is insufficient because Tenn. Code Ann. § 48-249-403(f) allows members of a member-managed LLC to loan money to the LLC.
(f) Dealings with LLC. A member of a member-managed LLC may lend money to and transact other business with the LLC. As to each loan or transaction, the rights and obligations of the member are the same as those of a person who is not a member, subject to other applicable law.
Tenn.Code Ann. § 48-249-403(f)(2012).
Moreover, two members of Rock Ivy testified that the purchase of FUM by Ingram and Sohr benefitted Rock Creek by giving the company more time to find a buyer.
Second, Rock Ivy asserts that Sohr also breached Ms duty of loyalty when he proposed and pursued the sale to Vanguard despite his membership in FUM and ownership in the Farm, We also find this argument unpersuasive because “[a] member of a member-managed LLC does not violate a duty or obligation under this chapter or under the LLC documents, merely because the member’s conduct also furthers the member’s own interest.” Tenn.Code Ann. § 48-249-403(e).
Neither Rock Ivy nor anyone else produced a buyer who was willing and able to buy enough of Rock Creek’s assets to pay off its debt; even the utilization of a broker was unproductive. Moreover, it was undisputed that Sohr began negotiations with Vanguard prior to the purchase of the notes, which was additionally supported by several emails offered into evidence.
As for ■ the individual claims against Church for breach of loyalty, Rock Ivy contends that Church supported the sale to Vanguard despite his knowledge of Sohr and Ingram’s conflict of interest and the gross disparity between the appraisal value and the ultimate sale price. In support of its contention, Rock Ivy produced emails between Church and Ennis, the other member of Linked, in which Ennis expressed concerns to Church about the contract. However, both members of Linked attended .the meeting in which Rock Creek voted to approve the sale, and Linked voted to approve. All members of Rock Creek were aware of the conflict of interest, and, although Church and Ennis were not enthused about the sale price, it was far superior to any alternative. Furthermore, and most importantly, Church, as a member of Linked, had no conflict of interest because he did not have an interest in either FUM or the Harrison Farm.
Based upon the above and other evidence, the trial court found that Sohr and Church did not violate the duty of loyalty. Having reviewed the record, we have concluded that the evidence does not preponderate against the trial court’s finding. Accordingly, we affirm the finding that Sohr and Church did not violate the duty of loyalty to Rock Creek.
2. Duty of Care in a Member-Managed LLC
Rock Creek’s Operating Agreement limits the duties of the officers and specifies that the authority to manage the LLC is placed directly in"the members, not the officers. Further, the Tennessee Revised Limited Liability Company Act limits the duty of care of officers in member-managed LLCs. See Tenn.Code Ann. § 48-249-403(c) (2012). “A member’s duty of care to a member-managed LLC, and the LLC’s other members and holders of fi*642nancial rights ..., is limited to refraining from engaging in grossly negligent or reckless conduct, intentional .misconduct or a knowing violation of law.” Id. (Emphasis added).
(a) Sohr’s Duty of Care as President of Rock Creek
Rock Ivy contends that Sohr violated his duty of care as president of Rock Creek by taking little action in marketing and selling its property until after FUM purchased the note, not performing due diligence or investigating alternatives to the price offered by Vanguard, and failing to recover the TVA condemnation proceeds or the reinvestment provision. These allegations, and the modicum of evidence in the record on this issue, however, fall'far from proving that Sohr engaged in any conduct that could be confused’with grossly negligent or reckless conduct, intentional misconduct or a knowing violation of law.
Sohr listed the West Side Tract with a broker and began negotiations with Vanguard before FUM purchased the notes from SunTrust. The listing produced no buyers and the downward trend of the real estate market highly impacted the ability to attract any potential buyers -other than Vanguard. Moreover, the alternatives suggested by Rock Ivy (as discussed in the above section) did not produce as favorable a result as the sale to Vanguard. No one produced a willing buyer during this time for a price above the final contract price offered by Vanguard. Further, it • was Vanguard, who was the only prospective buyer, that insisted upon receiving the TVA proceeds and it was Vanguard that unilaterally retracted the reinvestment provision when Rock Ivy filed this, action. Thus, Sohr, as president of Rock Creek, was faced with few options.
(b) Church’s Duty of Care as Secretary/Treasurer of Rock Creek '
Rock Ivy also asserts that Church, as Secretary/Treasurer, violated the duty of care by failing to secure counsel for Rock Creek during the transaction and failing to recover the TVA condemnation proceeds or enforce the reinvestment provision. We find these allegations without merit.
Church’s authority as an officer of Rock Creek was very limited, and there is no proof that he had unilateral authority to engage counsel for Rock Creek. Moreover, Rock Creek did in fact have counsel regarding the sale to Vanguard, as well as an attorney it consulted in regards to the TVA condemnation proceeds and Huntly Gordon, a member of Rock Ivy who was also a real estate attorney and who participated in the discussions. Further, it was Vanguard that insisted on the TVA proceeds, and there is no evidence that Church could have done anything to change the result.
As was the case with the claims against Sohr for breach of duty, there is no credible evidence in this record to support a ■finding that Church’s conduct constituted grossly negligent or reckless conduct, intentional misconduct or a knowing violation of law. Thus, there is no basis upon which to find that he violated' his statutory duty of care. See TenmCode Ann. § 48-249-403(c) (2012).
We, therefore, affirm the trial court’s finding that neither Sohr nor Church violated a duty of care to Rock Creek or its members.
D. Civil ConspiRacy
Rock Ivy asserted that Sohr, Church, Ingram, RC Properties, Linked, and FUM engaged in “concerted activity, each with intent and with the knowledge of the other’s intent to sell the East Side Tract and *643the unrelated [Farm] in order to pay off the FUM loans and profit themselves at the expense of Rock Ivy and Rock Creek.” The trial court dismissed this claim, finding that “it does not see a conspiracy among any of the defendants to take an illegal action or an action that was ultimately unfair and adverse to Rock Creek” in regards to the land transaction, the failure to'; obtain financing, or FUM’s purchase of Rock Creek’s outstanding indebtedness.
On appeal, Rock Ivy contends the trial court erred when it failed to hold that RC Properties, Sohr, and Ingram participated in a civil conspiracy in regards to the conflict of interest land transaction.9 Rock Ivy contends that through FUM, Sohr and Ingram pressured Rock Creek to approve a conflict of interest-transaction that created a preferential payment to Ingram and Sohr, in violation of Section 3.6(d) of the Operating Agreement, which states, “No Member shall be entitled to priority over any other Member, either with respect to a return of its capital contributions, or to allocations of taxable income, gains, losses or credits, or to distributions.’’
The elements of a cause of action for civil conspiracy are: (1) a common design between two or more persons, (2) to accomplish by concerted action an unlawful purpose, or a lawful purpose by unlawful means, (3) an overt act in furtherance of the conspiracy, and (4) resulting injury. Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 38 (Tenn.Ct.App.2006) (citing Morgan v. Brush Wellman, Inc., 165 F.Supp.2d 704, 720 (E.D.Tenn.2001)). In its brief, Rock Ivy acknowledges that “the creation of FUM itself was not unlawful.” Thus, its conspiracy claim is based on the assertion that the defendants’ accomplished a lawful purpose by unlawful means.
Specifically, Rock Ivy contends that Ingram and Sohr, through FUM, conspired to purchase the note and pressured Rock Creek to sell the East Side Tract in order to receive a preferential payment of interest and fees. This contention, however, is undermined by Tenn.Code Ann. § 48-249-403(f) which expressly permits member-loans to an LLC. Moreover, section 3.6(a) of the Operating Agreement states that “[a]ny loan by a Member to the Company shall not be considered as a capital contribution to the- Company,” suggesting that the Operating Agreement implicitly allows members to extend loans-:to the LLC.
As for the issue of the notes being “fair” to Rock Creek, it is important to recognize that all members of Rock Creek approved the fairness of the notes when Rock Creek agreed to the notes and Deed of Trust with SunTrust, which have never been modified. The only change was the identity of the holder of the notes. More importantly, Huntly Gordon, a member of Rock Ivy and its chief manager who testified at trial, acknowlédged that the terms of the SunTrust notes were fair. Further, Sohr, Ingram, and RC Properties repeatedly informed Rock Ivy and its members that the indebtedness on the notes to SunTrust needed to be satisfied, and only after their offer to purchase the note together was declined did Sohr and Ingram establish FUM and acquire' the notes from Sun-Trust.
The evidence in this record does not preponderate against the trial court’s findings that the means employed to acquire the notes from SunTrust were lawful nor does it preponderate against the finding that they did not employ unlawful means to cause the sale of the East Side Tract to Vanguard.
*644Because Rock Ivy cannot establish an essential element of a claim for conspiracy, we affirm the trial court’s dismissal of the claim of conspiracy as to all defendants.
II. ATTORNEYS’ FEES IN Derivative Actions
With the exception of Sohr’s request for indemnification, which is addressed in another section, the issues regarding attorneys’ fees are based upon TenmCode Ann. § 48-249-804, which pertains to derivative proceedings. The statute provides:
(a) DEFENDANT’S EXPENSES. On termination of the proceeding, the court may require the plaintiff to pay any defendant’s reasonable expenses, including attorneys’ fees, incurred in defending the proceeding, if it finds that the proceeding was. commenced without reasonable cause.
(b) PLAINTIFF’S EXPENSES. If.a derivative proceeding is successful in whole or in part, or if anything is received by the plaintiff as a result of a judgment, compromise or settlement of any such proceeding, the court may award the plaintiff its reasonable expenses, including reasonable attorneys’ fees. If anything is so received by the plaintiff, the court shall ■ make such award of the plaintiffs expenses payable out of those proceeds and direct the plaintiff to remit to the LLC the remainder of anything received, and if those proceeds are insufficient to reimburse the plaintiffs reasonable expenses, the court may' direct that any such award of the plaintiffs expenses, or portion of the expenses, be paid by the LLC.
TenmCode Ann. § 48-249-804 (2012).
Because the statute explicitly uses the word “may,” the trial court has the discretion whether to award attorney’s fees based upon the contingency that the court find the proceeding was commenced without reasonable cause. Compare Tenn, Code Ann. § 48-249-804, with TenmCode Ann. § 48 — 17—401(d) (In shareholders’ derivative actions, “the court may order ... [t]he plaintiff to pay any defendant’s reasonable expenses, including counsel fees, incurred in defending the proceeding, if the court finds that the proceeding was commenced' or maintained without reasonable cause — ”) (emphasis added), and Brady v. Calcote, No. M2003-01690-COA-R3-CV, 2005 WL 65535, at *6 (Tenn.Ct.App. Jan. 11, 2005) (awards of attorneys’ fees under .the derivative statutes are ma.de in the trial court’s discretion). Therefore, the abuse of discretion standard applies.
Under the abuse of discretion standard, a trial court’s ruling “will be upheld so long as reasonable .minds can disagree as to the propriety of the decision made.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001) (internal citations omitted). A trial court abuses its discretion only when it “applies an incorrect legal standard, or reaches a decision which is against logic or reasoning or that causes an injustice to the party complaining.” Id. The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court. Id. We will address each party’s issues on appeal regarding attorneys’ fees'and expenses in turn.
The trial court awarded attorneys’ fees to Linked against Rock Ivy, while also ordering Rock Creek to reimburse Church his fees and expenses to the extent that Linked could, not .recover its fees from Rock Ivy; declined to award Ingram fees pursuant to the statute; and declined to award Gordon fees and expenses pursuant to the same statute.
A. Linked’s Claim FOR AttoRneys’ Fees
After the trial court dismissed all of Rock Ivy’s derivative claims against *645Linked, the court ruled that Linked was entitled to recover its attorneys’ fees and expenses from Rock Ivy pursuant to Tenn. Code Ann. § 48-249-804(a) and awarded a judgment of $198,285.69 against Rock Ivy.
Rock Ivy alleges the trial court incorrectly applied TenmCode Ann. § 48-249-804 in awarding attorneys’ fees to Linked against Rock Ivy.10 Rock Ivy contends the trial court did not make a finding that this action was commenced without reasonable cause, as required by the statute; moreover, Rock Ivy insists it had reasonable cause to file its claims against Linked.
In the context of a derivative action, a plaintiff acts without reasonable cause “if, at the time the plaintiff brings suit: (1) plaintiffs claims in the lawsuit are not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; or (2) plaintiffs allegations in the suit are not well grounded in fact after reasonable inquiry.” Brady v. Calcote, No. M2003-01690-COA-R3CV, 2005 WL 65535, at *8 (Tenn.Ct.App. Jan. 11, 2005)11 (citing Bass v. Walker, 99 S,W.3d 877, 885 (Tex.App.2003); Model Bus. Corp. Act § 7.46(3) (1999)).
Rock Ivy’s contentions notwithstanding, we find it implicit in the trial court’s ruling that Rock Ivy’s claim against Linked was brought without reasonable cause. The trial court found that,
Linked, and Mr. Church as an officer of Linked, voted in the interest-in it’s own self-interest-[which] is reasonable and acceptable and recognized under statutes as a proper consideration and activity. And Linked voted in favor of the best interest of Rock Creek as Linked saw it, and the Court thinks Linked was reasonable in that regard.
Moreover, Linked had no interest or ownership in FUM or the Harrison Farm, and Linked had no conflicts of interest, unlike Ingram and Sohr. Thus, the trial court found that there was reasonable cause to bring claims against Ingram and Sohr because of their conflicts of interest but no conflict as it pertained to Linked.
Based upon the evidence in this record, we find no abuse of discretion in the trial court’s decision to hold Rock Ivy liable for Linked’s attorneys’ fees and expenses.
B. IngRam’s Claim for Attorneys’ Fees
The trial court denied Ingram’s request to recover $158,610.92 in attor*646neys’ fees and expenses pursuant to Tenn. Code Ann. § 48-249-804. On appeal, Ingram argues that the trial court erred in denying Ingram’s request because Rock Ivy's claim against him was meritless and without reasonable cause. • ■
Rock Ivy, individually and derivatively as Rock Creek, asserted claims against Ingram for conspiracy and breach of fiduciary duty resulting from a conflict of interest transaction. Ingram argues that he can neither be held liable under the conflict of interest statute, Tenn.Code Ann. § 48-249-404, because he was not a member, manager, director, or officer of Rock Creek; nor for civil conspiracy because he cannot be liable for the predicate tort of a conflict of interest transaction.
The trial court found that the claims against Ingram had merit because of his conflict of interest as a principal of FUM, owner of the Harrison Farm, and.as an individual member of RC Properties. We agree because Ingram’s many and varying interests place him in conflict regarding the sale of the Harrison Farm in conjunction with the East Side Tract as well as the notes, due in part to his interest in FUM, which placed himself in conflict with Rock Creek. Because of these factors, we find no abuse of discretion with the trial court’s findings that Rock Ivy had reasonable.cause to initiate these claims when they were commenced. Therefore, we affirm the denial of Ingram’s claim for attorneys’ fees and expenses pursuant to the derivative statute.12
C. ■ Huntly GORDON’S Claim FOR AttoRnéy’s Fees
RC Properties asserted a derivative Third-Party Complaint against Huntly Gordon individually, asserting that Gordon, as an officer of Rock Ivy, breached Tenn.Code Ann. ;§ 48-249-403, which sets the standards of conduct for members, managers, directors and officers of LLCs. Subsequently, all claims against Gordon were voluntarily dismissed by RC Properties. Thereafter, Gordon filed a Post-Trial Request for Attorney’s Fees and Expenses, asserting that the third-party claim was brought without reasonable cause, thus entitling him to attorney’s fees from RC Properties under the indemnification provisions of Rock Creek’s Operating Agreement as well as Tenn.Code Ann. § 48-249-804. The trial court denied this request upon the findings that there was no reference in the Third-Party Complaint to any role Gordon had in Rock Creek, and that Gordon failed to assert a CounterClaim or request for attorney’s fees in his third-party answer or any other pleadings before the claim was voluntarily dismissed.
On appeal, Gordon argues that the trial court erred in denying him attorney’s fees and expenses pursuant to Tenn.Code Ann. §' 48-249-804 because, he contends, RC Properties sued him under Tenn.Code Ann. § 48-249-403, and it knew or reasonably should have known that he, Gordon, was not a member, manager, director, or officer of Rock Creek; therefore, no reasonable cause existed to bring suit under the statute.. For its part, RC Properties contends that Gordon was sued as both an officer of Rock Ivy and as an individual, but not as an officer of Rock Creek.
The trial court agreed with RC Properties finding that Tenn.Code Ann. § 48-249-804 and the indemnification provisions in the Operating Agreement did not apply because Gordon was not sued as an officer of Rock Creek. Further, the trial court *647made no finding that the proceeding was brought without reasonable cause.
Based upon the foregoing, we find no abuse of discretion in the trial court’s decision to deny Gordon’s claim’s for 'attorney’s fees and expenses under the statute or the Operating Agreement.
D. ChuRCh’s Claims foh AttoRNeys’ Fees
The trial court awarded Church, in his capacity as officer of Rock- Creek, attorneys’ fees and expenses against Rock Creek pursuant to the Rock Creek Operating Agreement. The court also awarded Church a conditional judgment under indemnification pursuant to Tenn.Code Ann. § 48-249-115, but only to the extent that Linked was unable to recover its fees from Rock Ivy.
Ingram and FUM pontend the trial court erred in ordering Rock Creek to reimburse Church $96,285.69 in attorneys’ fees and expenses because Church admitted that he did not pay any attorneys’ fees, and he does not owe such fees and expenses.
The trial court found that all the attorneys’ fees and expenses for both Linked and Church were paid by Linked. In the order awarding Church his fees, the trial court noted that “Church is one of Linked’s two members, and Church was impacted financially, albeit indirectly, via his contributions to Linked.” The court also noted that Linked paid the fees and expenses through Church’s contributions, and thus, Church should be ■ entitled to indemnification in the event Linked is unable to recover its fees from Rock Ivy. We find no error with the court’s provisional award, and thus, we affirm the trial court’s provisional award of fees to Church.
III. Default Interest Under the Notes
As the holder of the notes owed by Rock Creek, FUM claimed it was entitled to recover “default interest” accruing after notice of default was given to Rock Creek as well as its attorneys’ fees. The trial court denied both requests on the ground that FUM “was used as an instrumentality or business conduit for RC Properties.” More specifically, the trial court relied on the fact that Sohr and Ingram were owners of both FUM and RC Properties, and concluded that FUM was used “as an instrumentality or business conduit for another corporation.” The court additionally émployed thé doctrine of piercing the corporate veil to find it inequitable for Sohr and Ingram to indirectly collect through FUM default interest and attorneys’ fees from Rock Creek.-
When applicable, factors to be considered in determining whether to disregard the corporate veil include not only whether the entity has been used to work a fraud or injustice in contravention of public policy, but also: "(1) whether there was a failure to collect paid in capital; (2) whether the corporation Was grossly un-dercapitalized; (3) the nonissuance of stock certificates; (4) the sole ownership of stock by one individual; (5) the use of the same office or business location; (6) the employment of the same‘employees or attorneys; (7) the use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) the diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors,, or the manipulation of assets and liabilities in another; (9) the use of the corporation as a subterfuge in illegal transactions; (10) the formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) the failure to maintain arms length relationships among related entities. Pamperin v. Streamline Mfg., Inc., 276 S.W.3d 428, 438 (Tenn.Ct.App.2008).
■ Pamperin, however, also stands for the principle that “[p]iercing the corpo*648rate veil is an equitable'doctrine applied in extreme circumstances to prevent the use of a corporate entity to defraud or perform illegal acts.” Id. at 487 (emphasis added).
To the contrary, the trial court stated that it “did not-find that any party was involved in fraud, lying, [or] crimes.” Nevertheless, the trial court noted that “FUM was used in a conflict of interest situation to. achieve — and the achieving of default interest here ... is an inequitable result.” We have already determined that the various provisions of .the notes, which were agreed upon by Rock Creek and its members when the funds were borrowed from SunTrust, are fair., to Rock Creek. This is because the notes were negotiated with a third-party lender in an arms-length transaction. More than two years later, FUM purchased the notes from Sun-Trust,, a transaction that benefitted Rock Creek in that Rock Creek and its members were given more time to obtain other financing or to find a buyer in lieu of foreclosure or suits on the personal guarantees. Thus, it cannot be said that Sohr and Ingram’s purchase, by means of FUM, of the notes..from SunTrust was inequitable to Rock Creek. Moreover, FUM’s acquisition of the notes from SunTrust was neither fraudulent nor an illegal act. See Pamperin, 276 S.W.3d at 437.
For the above reasons, and having examined the facts in the context of Pampe-rin and other relevant corporate principles, we are unable to conclude, as the trial court did, that Sohr and Ingram’s use of FUM to purchase the delinquent notes from SunTrust or to exercise the rights and privileges of the holder of the note justify piercing the corporate veil of FUM. However, as the trial court correctly found, the purchase of the notes by FUM created a conflict of interest for Sohr and Ingram; therefore, we must determine whether the fact that FUM was the holder of the notes and its subsequent actions were fair to Rock Creek and its members. TenmCode Ann. § 48-249-404(a)(3) (2008); see also Marciano v. Nakash, 535 A.2d 400, 404 (Del.1987) (“When directors of. a Delaware corporation are on both sides of a transaction, they are required to demonstrate their utmost good faith and the most scrupulous fairness of the bargain.”).
Rock Creek’s Operating Agreement allows its members to make loans to the company, as discussed above; thus, the fact that Sohr and Ingram, through FUM, are holders of the notes owed by Rock Creek does not violate any right owing to Rock Creek or its members. Further, if SunTrust still owned the notes, or if any third party was the holder of the notes, the holder would be authorized to impose default interest and penalties once the notes were in default. That is exactly what FUM did, and no one contends .that the notes were not in default when so declared by FUM or at anytime thereafter. Based upon these facts and the fact that Sohr and Ingram, through RC Properties, .timely contributed their proportionate share of the capital call, and thereafter repeatedly attempted to fashion alternatives to paying off the indebtedness when it was owed to SunTrust, including proposing that the members of Rock Creek jointly pay off the note, we have concluded that the actions taken by FUM after its acquisition of the notes from SunTrust have been fair to Rock Creek and its members. Because any other holder of the notes could have, and most likely would have, sought to recover default interest and penalties, we find no equitable- justification to prohibit FUM from recovering what any other holder of the notes would seek to recover.
Therefore, we respectfully reverse the trial court’s ruling as it pertains to enforcement of the notes held by FUM and hold that FUM is entitled to recover default interest as specified in the notes. *649Furthermore, FUM is entitled to recover its reasonable and necessary attorneys’ fees, those incurred in the trial court and on appeal, to the extent they pertain to the enforcement of its rights and remedies arising from Rock Creek’s default. Accordingly, we remand these issues to the trial court so that it may make the appropriate awards and enter judgment accordingly.
In Conclusion
The judgment of the trial court is affirmed in part, reversed in part, and this matter is remanded for further proceedings consistent with this opinion. Costs of appeal are assessed against the appellants Rock Ivy Holding, LLC, and Rock Creek Development, LLC.
. To avoid confusion, it is important to recognize that the trial court found that Sóhr was entitled to recover attorneys’ fees pursuant to the indemnification provision of Rock Creek’s Operating Agreement, but not under the derivative action statutory scheme.
. The trial court's provisional award of attorneys’ fees following the denial of such fees was done in the interest of judicial economy, a practice that is favored in circumstances such as this. Sohr and Ingram contend on appeal they are entitled to recover these fees; however, Rock Ivy contends they are not. We have concluded that neither Sohr nor Ingram is entitled to attorneys’ fees and expenses pursuant to Tenn.Code Ann. § 48-249-804, therefore this issue is moot.
. Rock Ivy also raises two other issues related to attorneys’ fees and expenses which we shall address in another section.
. As the trial judge correctly noted in making its ruling from the bench, a Tenn. R. Civ. P. 41.02 motion for involuntary dismissal in a bench trial is to be distinguished from a Tenn. R. Civ. P. 50 motion for directed verdict in a jury trial. See Burton, 129 S.W.3d at 520. In that case, the court explained that "motions for directed verdicts have no place in bench trials, while Tenri. R. Civ. P. 41.02(2) motions have no place in jury trials.” Id. A Rule 50 motion for directed verdict provides a vehicle for deciding questions of law. The question presented is whether the plaintiff has presented sufficient evidence to create an issue of fact for the jury to decide. Id. The courts do not weigh the evidence when they answer this question, nor do they evaluate the credibility of the witnesses. Id. Rather, they review the evidence in the light most favorable to the non-moving party, give the non-moving party *634the benefit of all reasonable inferences, and disregard all the evidence contrary to the non-moving party’s position. Id.
. The Tennessee Revised Limited Liability Company Act draws heavily from the Uniform *635Limited Liability Company Act as well as Delaware law. Eric Reagan, Tennessee's New Limited Liability Company Act: New Ways of Doing Business, 73 Tenn. L.Rev. 267, 280 (2006) (citing Limited Liability Company Act, Del.Code Ann. tit. 6, §§ 18-101 to -1109 (1999)).
. Sohr and Ingram owned several entities together, and, at the time of the sale, both individuals were in the process of dividing those entities. Thus, Rock Ivy contends that RC Properties pressured the sale of the East Side Tract in order to get rid of the Harrison Farm in furtherance of Sohr and Ingram’s separation.
. The Operating Agreement- expressly references Tenn.Code Ann. § 48-249-403(i), which details the standards for a director-managed LLC. The parties do not' dispute that Rock Creek is a member-managed LLC, and that Sohr and Church are both officers of Rock Creek.. Therefore, we shall look at the standard for officers, as provided in subsection (j).
. Rock Ivy does not appeal this claim against Linked or Church.
. Rock Ivy also contends that the trial court erred in declining to award Rock Ivy attorneys’ fees against FUM pursuant to Tenn. Code Ann. § 48-249-804(b) for successfully defending FUM’s Third-Party Complaint. This issue, however, is now moot because we find that FUM is entitled to those fees, as discussed below.
. The specific statute at issue in Brady was Tenn. Code Ann. § 48-17-401(d), which addresses proceedings in shareholder derivative actions. We find it persuasive because that statute mirrors the language of Tenn,Code Ann. § 48-249-804. Tennessee Code Annotated § 48-17-401(d), states in pertinent part:
[[Image here]]
(d) On termination of the proceeding, the court may order: (2) The plaintiff to pay any defendant’s reasonable expenses, including counsel fees, incurred in defending the proceeding, if the court finds that the proceeding was commenced or maintained without reasonable cause or for an improper pur-pdse; or
(3) A party to pay' an opposing party’s reasonable expenses, including counsel fees, incurred because of the filing of a pleading, motion or other paper, if the court finds that the pleading, motion or other paper was not well grounded in fact, after reasonable inquiry,,or warranted by existing law or a good faith argument for the extension, modification or reversal of existing law and "was interposed for an improper purpose, such as to harass or'cause unnecessary delay or needless increase in the cost of litigation[.]
. As we discussed elsewhere, the legal standards upon which a party may recover his attorney's fees under the derivative statute are vastly different from an officer’s entitlement to recover his attorney’s fees under an indemnification provision with his LLC. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284120/ | Justice Boyd
delivered the opinion of the Court.
The primary issue in these two separate cases is whether a “life settlement agreement” or “viatical settlement agreement” is , an “investment contract” and thus a “security” under the Texas Securities Act. We hold that the agreements at issue are investment contracts because they constitute transactions through which a person pays money to participate in a common enterprise with the expectation of receiving profits, under circumstances in which the failure or success of the enterprise and the person’s realization of the expected profits, is at least predominately due to the entrepreneurial or managerial efforts of others. We decline to give today’s holding only prospective application,- and we decline to consider the merits of the “relief defendants’” evidentiary arguments. In short, we affirm the courts of appeals’ judgments in both cases.
I.
Background
In Arnold v. Life Partners, Inc., Michael and Janet Arnold and others1 (collectively, the Arnolds) filed a class action lawsuit in Dallas County, seeking rescission and damages based on claims that Life Partners, Inc. and others2 (collectively, Life Partners) violated the Texas Securities Act by selling unregistered securities and materially misrepresenting to purchasers that they were not, in fact, securities. 416 *663S.W.3d 577. Meanwhile, in State v. Life Partners, Inc., the State of Texas filed a separate suit in Travis County, seeking an injunction and other relief based on allegations that Life Partners and others3 had committed fraud in connection with the sale of securities.4 459 S.W.3d 619. Before a class was certified in Arnold, both district courts entered judgments in favor of Life Partners, holding that Life Partners had not promoted or marketed any “securities” and thus could not be liable under the Texas Securities Act. The Dallas Court of Appeals reversed in. part, affirmed in part, and remanded, holding that the life settlement agreements are securities under the- Texas Securities Act. 416 S.W.3d at 592. The Austin Court of Appeals soon followed suit, “agreeing] with the conclusions reached by the Dallas Court and" fully incorporating] its analysis.” 459 S.W.3d at 621. Life Partners filed a petition for review in both cases, which we granted and consolidated for purposes of oral argument.
Since 1991, Life Partners has been engaged in the business of buying existing life insurance policies from those whose lives the policies insure, and then selling interests in those policies to others. • These types of transactions are generally referred to as “life settlements” when the insured is elderly or “viatical settlements” when the insured is terminally ill. We will refer to both' types collectively as “life settlement agreements.” According to Life Partners, many people with life insur-.anee desire to sell their, policies so that they or their family members can enjoy the .proceeds while the insured is still living. Life Partners purchases ■ the policy from the insured for a “cash settlement” that is less than the amount the policy will pay at the time of the insured’s death. To fund these purchases and its own business operations, Life Partners sells interests in the policies’ future benefits to “investors” or “purchasers.”5 The process thus involves at least two distinct business transactions, the first being Life Partners’ purchase of the policy from an insured and the second being Life Partners’ sale of interests in the- policy to its purchasers. The issue here is whether the second transaction constitutes the sale of a ’“security” under the Texas Securities Act.
Life Partners advertises life settlement agreements as a “sure” investment. Its sales pamphlet asserts: .“There’s no need to worry about which way the wind is blowing. ■ The returns on life' settlements, unlike stocks, mutual funds and 'other investments, are unaffected by market fluctuations, 'business cycles," the economy or global unrest.” Life Partners assures purchasers that, “[n]ot only are your investments' safe from these -market risks, they have the opportunity to provide exceptional return on investment.”. If investments in a life settlement are indeed “safe from these market risks,” however, they are not free from all risks. In-particular, because Life Partners calculates a policy’s value *664based on the insured’s life expectancy and must pay the policy’s premiums until the insured’s death to collect on the policy, the anticipated' returns are diminished, and sometimes lost, when the insured lives longer than Life Partners projects.
■ When selecting policies to purchase, Life ■Partners identifies insureds who are interested in selling their policies, evaluates their medical condition, predicts their life expectancy, and evaluates the policies’ terms and -conditions to ensure they are assignable. It then determines how much to pay for the policy based on the insured’s life expectancy, the amount of the benefit, and related factors. Life Partners acknowledges that those who purchase an interest in the policies “depend upon [Life Partners’] ability to predict life expectancies and set the appropriate prices.” If Life Partners accurately predicts the insured’s- life expectancy and negotiates a favorable purchase price, those who purchase an interest in the policy will receive a profit when the policy is paid. . But if Life Partners’ prediction is inaccurate or its negotiations ineffective, the purchasers can, end up having to pay more to cover premiums, than they will receive when the policy benefit is paid.
-. Life Partners uses the purchasers’ funds to (1) pay the insured for the policy, (2) create an escrow account from which to pay the policy’s future premiums as they come due, (3) pay fees to escrow agents and to any brokers who helped sell the interests to the purchasers, and (4) pay Life Partners an administration or brokerage fee. Life Partners does not disclose to the purchasers how much of their investment goes to each of these purposes, but instead gives them only a total “acquisition price.” Until the purchasers pay that price, they receive no information about the insureds or their policies. Once they have paid the acquisition price, the purchasers receive a “Confidential Case History” that contains information about the insured’s illness and life expectancy, the policy’s grade, value, and annual premium payment, and the amount Life Partners has escrowed to make those premium payments. The purchasers never learn the identities, addresses, or other personal information about the insureds.6 Life Partners may provide the purchasers with updates on an insured’s medical condition or life expectancy, but sometimes it may simply “lose contact with the insured.”
When Life Partners purchases a policy, it becomes the legal owner but appoints a trustee to serve as the beneficiary. To cover the future premiums, Life Partners places what it projects to be a sufficient amount in escrow and then pays the annual premiums from that account. If the insured survives longer than projected, however, and the escrowed amount is depleted, Life Partners will require the purchasers to provide additional funds. If the purchasers fail to provide additional funds ■to cover the premiums, the policy will be *665forfeited along with any anticipated return. Life Partners retains at least some discretion over the payments of premiums, however, and at times may itself pay premiums to prevent the forfeiture of a policy when an insured outlives a projected life expectancy. There is also some evidence in the record that, on at least one occasion, Life Partners elected to “optimize” a policy’s premiums to get “more years of premium coverage with the same amount of money” and thereby protect the purchasers’ investments. To accomplish this, Life Partners exercised discretion to prepay premiums, while leaving sufficient funds in the escrow account to maintain federal insurance coverage on the funds-in that account. As Life Partners explained the process,
because the prepayment would be in excess of the cost of insurance, the amount paid in would pay the policy to a date farther in the future than if premiums were only paid on an annual basis. Thus, the necessity of a premium call would be reduced in the event the insured outlived his or her life expectancy because of the additional amount earned by prepayment. Finally, there would remain in escrow $250,000 which would not begin to be used until the value from the prepayment had been exhausted.
This “optimization” of premiums, however, can also reduce the purchasers’ return if the insurance company refuses to refund any unused premiums.
Life Partners is responsible for monitoring the insureds. Once an insured dies, Life Partners must obtain the death certificate, submit a claim to the life insurance company, and facilitate the payment of the benefits. When the insurance company pays the benefits to the trustee whom Life Partners has designated as the beneficiary, either the trustee or Life Partners then distributes the funds to the purchasers according to their fractional interests. Life Partners acknowledges that purchasers rely on Life Partners both before and after they purchase their interests. As its form entitled “Life Settlement Risk Factors — Read Before You Invest” explains:
You will be dependent upon LPI and the Escrow Agent for premium administration, tracking, and policy benefit collection services.
LPI and the Escrow Agent will administer the premium payments on the policies purchased, and you will be dependent upon them to • ensure timely payment of these premiums. If the funds that have been set aside in escrow to pay premiums are exhausted, you will be dependent upon LPI and the Escrow Agent to notify you of the premiums due, collect the additional premium payments from you and the other investors, and to pay the premiums promptly.
Additionally, as the Escrow agent will be named as beneficiary of the policy to collect the death benefit and distribute the death benefit proceeds upon death of the insured, you will be dependent upon LPI to notify the Escrow Agent of the death of the insured and facilitate the payout of the policy, and upon the Escrow. Agent to distribute the death benefits to you and the other, investors in the policy.
As with any administrative task, there is always a risk that some aspect of this administration could go awry for currently unknown reasons. If these administrative tasks ■ are notcompleted properly, a life settlement policy could lapse and you could lose your interest in the policy.
(Emphasis added.)
To facilitate Life Partners’ efforts on the purchasers’ behalf, each purchaser must execute a Power of Attorney that appoints *666Life Partners as the purchaser’s “true and lawful agent and attorney ... for its use and benefit to”:
a. Enter into any agreements or contracts necessary for the purchase of life insurance policies ...[;]
b. Enter into all documents necessary to facilitate the purchase of the designated policy(cies) ...[;]
c. File, complete and record any document reflecting the transfer of ownership ...[;]
d. Notify the Purchaser of any amount necessary to replenish the Premium Escrow Account from which premium ■■ payments are made ...[;]
[[Image here]]
f. Obtain proof of death of the insured and instruct Escrow Agent regarding the filing of death claims and the payment of death benefits of matured policies to the Purchaser or the Purchaser’s désignee ... [; and]
g. Advance, at the discretion of Agent, any funds which may be necessary to . replenish the Premium Escrow, Ac- : count from which premium payments are made —
Because the purchasers do not have legal title to the insurance policy and there is no secondary market for their interests, they must rely on Life Partners to cobrdi-nate a sale .to another interested purchaser if they need or decide to divest.
II.
“Securities”
We must decide whether Life Partners’ life settlement agreements are “securities” under the Texas Securities Act, Tex. Rev. Civ, Stat. art. 581-1, to -43.7 The Act defines the terms “security” and “securities” broadly, to include such things as “any limited partner interest in a limited partnership, share, stock, treasury stock, ... investment contract, or any other instrument commonly known as a security, whether similar to those herein referred to or not.” Id. art. 581-4.A (emphasis added). The Arnolds and the State contend that Life Partners’ life settlement agreements are “investment contracts,” and thus “securities,” under the Act.
Because this case requires us to construe a statute, we would normally follow our well-established text-based approach to interpret the meaning of “investment contract,” This Court, however, has previously considered and addressed the meaning of the term “investment contract” as it appears in the Texas Securities Act. See Searsy v. Commercial Trading Corp., 560 S.W.2d 637, 639 (Tex.1977). Noting in Searsy that the term “appear[s] ' to have been taken from an almost identi*667cal definition of ‘security’ in the Federal Securities Act of 1933,” we looked, to federal cases and other- authorities for guidance in construing the term. Id. (citing 15 U.S.C. § 77b(l)). - As discussed below, both before and since our decision in Sear-sy,. the United States Supreme Court, numerous federal courts, and many state courts have undertaken to interpret and apply the term “investment contract” as it appears in various securities acts. American courts have thus developed a significant body of law pn the topic, and .while these courts have not always agreed,, their decisions have served as a guide to the meaning and . application, of the term “investment contract”- in the securities-law context throughout the country. In light of this distinct and developed body of judicial precedent and consistent with this Court’s prior reliance on such authorities, we will continue to seek guidance from these decisions as we construe the Texas Securities Act here.8
Based on these authorities and our own reading of the statute’s language, we conclude that three key principles must guide our construction and application of the term “investment contract.” First, we must broadly construe the term to maximize the protection the Act is intended to provide to the investing public. Second, we must focus on the economic realities of the transaction at issue. And third, if the economic realities establish that a transaction is an investment contract, we must apply the statute regardless of any labels or terminology the parties may have used. In light of these principles, we conclude that an “investment contract” for purposes of the Texas Securities Act means (1) a contract, transaction, or scheme through which a person pays money (2) to participate in a common venture or enterprise (3) with the expectation of receiving profits, (4) under circumstances in which the failure or success of the enterprise, and thus the person’s realization of the expected profits, is at least predominately due to the entrepreneurial or managerial, rather than merely ministerial or clerical, efforts of others, regardless of whether those efforts are made before or after' the transaction. Applying this definition to the undisputed material facts, we conclude that Life Partners’ life settlement agreements are “investment contracts” and thus “securities” under the Texas Securities Act.
A. Guiding Principles & the How-ey/Forman Test
The United States Supreme Court first addressed the meaning of “investment contract,” as used in the federal Securities Act of 1933, over 70 years ago. S.E.C. v. C.M. Joiner Leasing Gorp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88 (1943) (citing 15 *668U.S.C. § 77b(l)). Noting that the act included “investment contract” as just one of an-extensive list of the different 'types ■ of transactions that constitute “securitiesi” the Court remarked that “the reach of'thé [a]ct does not stop with the obvious and commonplace.” Id. at 351, 64 S.Ct. 120. Instead, “[n]ovel, uncommon, or irregular devices, whatever they appear to be, are also reached if it be proved as [a] matter of fact that they were widely offered or dealt in under terms or courses of dealing which established their character in commerce as ‘investment contracts,’ ” or as “any interest or instrument commonly known as a ‘security.’” Id. (quoting 15 U.S.C. § 77b(l)). “The test” the Court described for determining whether a transaction is an investment contract “is what. character the instrument is given in. commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect.” Id. at 352-53, 64 S.Ct. 120. Applying this test, the Court concluded that the defendants’ assignments of their rights under oil leases in exchange for a small payment coupled with the purchaser’s agreement to pay the defendants to drill a test well on the leased acreage was “a form of investment contract in which the purchaser was. paying both for a lease and for a development project.” Id. at 349, 64 S.Ct. 120.
Three years later, the Supreme Court addressed the issue again in S.E.C. v. W.J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). The defendants in Howey offered and sold portions of a large citrus grove, “coupled with a contract for cultivating,’ marketing and remitting the net proceeds to the investor.” Id. at 294, 66 S.Ct. 1100. The issue, as the Court described it, was “whether, under the circumstances, the land sales contract, the warranty deed and the service contract together constitute an ‘investment contract’ within the meaning of the federal securities act; Id. at 297, 66 S.Ct. 1100. The Court noted that, although the federal act did not define the term “investment contract,” some state’ courts had already developed a definition when construing their state securities acts even before Congress adopted the federal statute in 1933. Id. at 298, 66 S.Ct. 1100. Although the state statutes did not define the term either, the Court noted that state courts “broadly construed” the term “so as to afford the investing public a full measure of protection.” Id. The Court observed that the state’courts that addressed the issue disregarded “form” for “substance,” emphasized the “economic reality” of the transactions, and “uniformly” defined an “investment contract” as “a contract or scheme for ‘the placing of capital or laying out of money in a way intended to secure income or profit from its employment.’” Id. (quoting State v. Gopher Tire & Rubber Co., 146 Minn. 52, 177 N.W. 937, 938 (1920)).
Drawing from these state court constructions, and based on its presumption that Congress was aware of these constructions when it adopted the federal act, the Court announced the following definition: “an investment contract for purposes of the [Federal] Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.” Id. at 298-99, 66 S.Ct. 1100. The Court concluded that, the citrus orchard purchases at issue in Howey “clearly involve investment contracts as so defined,” because 'the defendants were offering not just “fee simple interests in land” or even an “orchard coupled, with management services,” but “an opportunity to contribute money and to share in the profits of a large citrus fruit enterprise managed and partly owned by [the defen*669dants].” Id. at 299, 66 S.Ct. 1100. Finding that “[t]he investors provide the capital and share in the earnings and profits!, and] the promoters manage, control and operate the enterprise,” the Court concluded that the transactions were “investment contracts” under the federal act, “regardless of the legal terminology in which such contracts [were] clothed.” Id. at 300, 66 S.Ct. 1100.
The Supreme Court has had occasions to apply and clarify the Howey test over the past 70 years. In United Housing Foundation Inc. v. Forman, for example, the Court considered.the-sales of “shares of stock” that entitled the purchasers to lease an apartment in a state subsidized and supervised nonprofit housing cooperative. 421 U.S. 837, 840, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975). As in Howey, the Court explained that Congress “sought to define the term ‘security’ in sufficiently broad and general terms so as to include within that definition the many types of instruments that in our commercial world fall within the ordinary concept of a security.” Id. at 847-48, 95 S.Ct. 2051 (quoting H.R.Rep. No. 85, 73d Cong., 1st Sess., 11 (1933)). But the Court rejected the notion that the parties’ labeling of the transaction as a sale of a “share of stock” was sufficient to make it a “securities” sale, even though the act defines “security” to, include any “share [or] stock,” because “Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not on the name appended thereto.” Id. at 849, 95 S.Ct. 2051.
Addressing whether the purchase of a “share of stock” in the co-op was an “investment contract,” the Court “examine[d] the substance — the economic realities of the transaction — rather than the names that may have been employed by the parties.” Id. at 851, 95 S.Ct. 2051. After reciting the Howey test as “the basic test for distinguishing the transaction from other commercial dealings,” the Court restated the test slightly, explaining that “[t]he touchstone is the presence of an investment in a common venture premised bn a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” Id. at 852, 95 S.Ct. 2051 (emphasis added). . Because the purchasers .in Forman “were attracted solely by the prospect of acquiring a place to live, and not by financial returns on their investments,” id. at 853, 95 S.Ct. 2051, the Court concluded that “the inducement to purchase”, the shares was “not to invest for profit,” id. at 851, 95 S.Ct. 2051, and thus “the disputed transactions are not .purchases of securities within the contemplation of the federal statutes,” id. at 847, 95 S.Ct. 2051.
The Supreme Court addressed the meaning of “investment contract?’ again in Reves v. Ernst & Young, 494 U.S. 56, 110 S.Ct. 945, 108 L.Ed.2d 47 (1990). In Reves, the Court considered whether “certain demand notes” issued by a farmers’ cooperative were “securities” under the federal securities acts. Id. at 58, 110 S.Ct. 945. Again, the Court began its analysis by noting that “Congress’ purpose in enacting the securities laws was to regulate investments, in whatever-..form .they are made .and by whatever name- they ■ are called,” and explaining that the Court was “not bound by legal formalisms, but instead [must] take' account of the economics of the transaction under , investigation.” Id. at 61, 110 S.Ct. 945. The Court explained that a note is “likely to be a ‘security’ ” if “the seller’s purpose is to- raise money for the general- use of a business enterprise or to finance substantial investments and the buyer is interested primarily in the profit the note .is expected to generate.” Id. at 66, 110 S.Ct. 945. But “[i]f the note is exchanged to facilitate the *670purchase and sale of a minor asset or consumer good, to correct for the seller’s cash-flow difficulties, or to advance some other commercial or consumer purpose, on the other hand, the note is less sensibly described as a ‘security.’ ” Id. The Court concluded that the notes at issue in Reves were securities under the federal securities act. Id.
More recently, the Court addressed whether an investinent transaction that promises a fixed rate of return, rather than a variable or uncertain rate, can be an investment contract. S.E.C. v. Edwards, 540 U.S. 389, 397, 124 S.Ct. 892, 157 L.Ed.2d 813 (2004). In Edwards, the defendants offered and sold public payphones, along with agreements to immediately lease the payphones back from the purchasers for five years, to manage and service the payphones throughout the lease term, and then to buy the payphones back for the original purchase price when the lease terminated, or sooner upon the purchaser’s request. Id. at 391, 124 S.Ct. 892. Based on the original purchase price and .the fixed monthly leaseback rate, the purchasers would receive a fixed 14% annual return on their purchase. Id. As in Forman, the Court explained that “[t]he ‘touchstone’ of an investment contract [is] ‘the presence of an investment in-a common venture premised on a reasonable expectation of profits to be derived from .the entrepreneurial or -managerial efforts of others.’ ” Id. at 395, 124 S.Ct. 892 (quoting Forman, 421 U.S. at 852, 95 S.Ct. 2051). The Court rejected the defendants’ argument that
including investment schemes promising a' fixed return among investment contracts conflicts with our precedent, [because] when we held [in Howey] that “profits” must “come solely from the efforts of others,” we were speaking of the profits that investors seek on their investment, not-- the profits of the scheme in which they invest. We used “profits” in the sense of income or return, to include, for example, dividends, other periodic payments, or the increased value of the investment.
Id. at 394-95, 124 S.Ct. 892. The Court concluded that the investment scheme was a security under the federal act. Id. at 397,124 S.Ct. 892.
■ When we addressed the meaning of “investment contract” in Searsy, we adopted the Supreme Court’s Howey test, as restated in Forman, as the basis for determining whether a transaction is an “investment contract,” and.thus.a “security,” under the Texas Securities Act. Searsy, 560 S.W.2d at 640-41. We have described the Supreme Court’s decisions in some detail here, however, because in addition to providing the relevant test, they also describe the proper approach to the term’s construction.
We derive from these cases three key principles to guide our application of the Howey/Forman test to any particular transaction. First, we must “broadly construct ]” the term’“investment contract” to maximize the protection the Act is intended to provide to the investing’ public. Howey, 328 U.S. at 298, 66 S.Ct. 1100. Second, we must focus on the “economic realities” of'the transaction to determine whether it meets the test’s requirements. Reves, 494 U.S. at 61; 110 S.Ct. 945; Forman, 421 U.S. at 849, 95 S.Ct. 2051; Howey, 328 U.S. at 298, 66 S.Ct. 1100. And third, if the “economic realties” satisfy the requirements, we must conclude that the transaction is an “investment contract” regardless of the labels or terminology the parties used to describe it. Reves, 494 U.S. at 61, 110 S.Ct. 945; Forman; 421 U.S. at 851-52, 95 S.Ct. 2051; Howey, 328 U.S. at 300, 66 S.Ct. 1100. Following the *671lead of numerous other courts,9 we accept and apply these guiding principles when using the Howey/Forman test to determine whether a transaction constitutes an “investment contract.”
B. “Profit from the Efforts of Others”
When the Supreme Court announced the Howey test, it stated that a transaction is an “investment contract” under the federal securities act only if the person investing in a common enterprise is led to expect profits “solely from the efforts of the promoter or a third party.” Howey, 328 U.S. at 298-99, 66 S.Ct. 1100. Subsequent decisions have transformed this original articulation of the test, however, particularly with regard to (1) whether the profits must come “solely” from the efforts of others, and (2) the kinds of “efforts” of promoters and others on which the purchasers must rely. As both issues are relevant to our resolution of this case, we must consider these cases as well.
1. “Solely” from the efforts of others
The federal Ninth Circuit Court of Appeals was one of the first courts to question whether the Howey test actually requires (or should actually require) that the profits the purchaser expects from the transaction come “solely” from the efforts of others. S.E.C. v. Glenn W. Turner Enters., Inc., 474 F.2d 476 (9th Cir.1973). The transactions at issue in Turner Enterprises involved the sale of opportunities to attend motivational seminars and receive self-help materials and then sell the same opportunities to.others who would do the same, in a pyramid-type scheme. Id. at 478. After quoting the “now familiar” Howey test, id. at 481, the Ninth Circuit noted that the purchasers in Turner Enterprises would only make money if they themselves “find prospects,” “persuade them to attend” meetings, and convince them to. “purchase a plan.” Id. at 482. Thus, the court acknowledged, “it can be said that the returns or profits are not coming ‘solely’ from the efforts of others.” Id.
Nevertheless, the court concluded that the transactions were investment contracts, holding that “the word ‘solely,’ ” as used in the Howey test, “should not be read as a strict or literal limitation on the definition of an investment contract, but rather must be construed realistically, so as to include within the definition those schemes which involve in substance, if not form, securities.” Id. Consistent with the three guiding principles we have identified, the court justified its modification of the Howey.test “in light of the remedial nature of the legislation, the statutory policy of affording broad protection to the public, and the Supreme Courtis admonitions that the definition of securities should be a flexible one.” Id. Otherwise, the court ■reasoned, the test, and thus the statute’s requirements, “would be easy to evade by adding a requirement that the buyer con-tributé a modicum of effort.” Id. Since that “would not serve the purpose of the *672legislation,” the court adopted a “more realistic test,” encompassing transactions that may depend in part on the investor’s “efforts,” so long as the “efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” Id.
A year later, the Fifth Circuit Court of Appeals adopted the Ninth Circuit’s modified version of the Howey test when addressing a scheme involving “a multi-level network of independent distributors, purportedly engaged in the business of selling a line of cosmetics.” S.E.C. v. Koscot Interplanetary, Inc., 497 F.2d 473, 475 (5th Cir.1974). Focusing on the “recruitment aspects of [the] enterprise,” as opposed to the marketing of cosmetics, the court quoted the Howey test, but concluded that “[a] literal application of the Howey test would frustrate the remedial purposes of the Act.” Id. at 477, 480. Because “[t]he admitted salutary purposes of the Acts can only be safeguarded by a functional approach to the Howey test,” the court held that “the proper standard in determining whether a scheme constitutes an investment contract is that explicated by the Ninth Circuit” in Turner Enterprises', that is, “whether the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” Id. at 480, 483 (quoting Turner Enters., 474 F.2d at 482).
The Fifth Circuit noted in Koscot that “a significant number of federal courts invoking the Howey test [had] either given it a broader more salutary application or endorsed such an application in principle.” Id. at 481. Other courts soon followed suit. See, e.g., McCown v. Heidler, 527 F.2d 204, 211 (10th Cir.1975) (quoting Turner Enterprises test and stating that “it has been widely held that ... reliance of the investor on the promoter need not be total”). In doing so, some found support for the modification in the fact that the Supreme Court had omitted the word “solely” when it restated the Howey test in Forman, to require “the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” 421 U.S. at 852, 95 S.Ct. 2051; see, e.g., Williamson v. Tucker, 645 F.2d 404, 418 (5th Cir.1981) (quoting Forman and noting that “the Supreme Court has altogether omitted the word ‘solely’ in its most recent formulation of the investment contract definition”). These courts thus concluded, as stated in Williamson, that, “[although the Coui’t used the word ‘solely in the Howey decision, it should not be interpreted in the most literal sense,” because “[t]he Supreme Court has repeatedly emphasized that economic reality is to govern over form and that the definitions of the various types of securities should not hinge on exact and literal tests.” 645 F.2d at 418.
We adopted the same approach in Searsy, two years after the Supreme Court decided Forman. Searsy, 560 S.W.2d at 639-41. Searsy was a class action seeking rescission and damages against two corporations that sold commodity options. Id. at 638 (explaining the defendants’ “business of selling ‘puts,’ ‘calls,’ and ‘double options’ on commodity futures contracts”). Observing that the Howey test was “widely accepted in state and federal cases,” we restated it as containing “four requirements: (1) investment of money; (2) a common enterprise; (3) expectation of profits; (4) solely from the efforts of others.” Id. at 640. We quoted the “solely’ language from Howey, but we noted that the word “solely’ suggests that “[t]he investor was required to have exerted no effort with regard to the investment.” Id. at 641. We concluded that “[t]he more *673reeent trend, ... and in our view the more reasonable approach, is to use a more realistic test which inquires whether the investor made any significant efforts.” Id. (emphasis added). Relying in part on the Ninth Circuit’s reasoning in Turner Enterprises, we reasoned that “[t]he ‘solely from the efforts of others’ requirement could be easily evaded by requiring the investor to exert some modicum of effort, such as picking one orange in the Howey citrus groves. This would be a blind and mechanical view of what constitutes an investment contract.” Id. We thus agreed that the “more realistic test” is “whether the efforts made by those other than the investor are undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” Id. (quoting Turner Enters., 474 F.2d at 482). Using this test, we held that the commodity options at issue were “investment contracts,” and thus “securities,” under the Texas Securities Act. Id. at 688.
Since our decision in Searsy, numerous other courts have also adopted this “more realistic” version of the Hmvey/Forman test. See, e.g., S.E.C. v. Int’l Loan Network, Inc., 968 F.2d 1304, 1308 (D.C.Cir.1992) (concluding Howey/Forman test met because “profits for ... investors are expected to accrue, if not solely, at least predominantly from the efforts of others”); Bailey v. J.W.K Props., Inc., 904 F.2d 918, 920 (4th Cir.1990) (“Despite the restrictive language of the third prong of the test, later courts have explained that a program requiring some effort from the investor may still constitute an ‘investment contract,’ but the most essential functions or duties must be performed by others and not the investor.”). We are not aware, in fact, of any jurisdiction that continues to require that profits result “solely” from the efforts of others. Instead, even if the purchaser’s profits depend in part on the purchaser’s own efforts, a' transaction will satisfy the “efforts” element of the How-ey/Forman test if the' efforts of others “are undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” Searsy, 560 S.W.2d at 641.
2. “Efforts” of others
The “efforts” that the Supreme Court concluded met the test in Howey included the defendant’s work to cultivate and market the citrus crops and otherwise “manage, control and operate the enterprise.” Howey, 328 U.S. at 294, 300, 66 S.Ct. 1100. After the Ninth Circuit held in Turner Enterprises that the “efforts” that count “are the undeniably significant ones, those essential ■ managerial efforts which affect the failure or success of the enterprise,” 474 F.2d at 482, the Supreme Court included similar language when it restated the test in Forman, referring to “the entrepreneurial or managerial efforts of others.” 421 U.S. at 852, 95 S.Ct. 2051. That same year, we used the Turner Enterprises language in Searsy, concluding that the kinds of efforts that are “significant” when applying the test are “essential managerial efforts.” Searsy, 560 S.W.2d at 641 (citing Turner Enters., 474 F.2d at 482). We noted in that case that the defendant’s “personnel frankly testified that customers were not supposed to understand the ... business operation,” that the defendant’s salesmen “advised the customer what to do,” and that, “[allthough the final decision was left to the customer, he rarely had any choice but to follow the advice given him.” Id. Finding that the defendant’s actions constituted “essential managerial efforts,” we concluded “that the commodity options sold ... in this case meet the requirements of an ‘investment contract,’ as set forth in the Howey test.” Id.
Several other courts have since expanded on the types of “efforts” that qualify as *674“significant” under the ■ Howey/Fomum test and those that do not. Since the purchaser need not rely “solely” on others’ efforts, the courts have considered the purchasers’ activities as well as those of the sellers. Specifically, they have looked to determine whether the purchaser enjoyed or exercised control over the asset or the operations of the enterprise, such that the purchaser would fulfill a “managerial” or “operational” role. See, e.g.', Banghart v. Hollywood Gen. P’ship, 902 F.2d 805, 807 (10th Cir.1990) (“Courts which have considered the issue have uniformly held that general partnerships are not investment contracts because the partners— the investors — are ordinarily granted significant control over the enterprise.”). As the Fifth Circuit explained:
Howey teaches that [a transaction] is a security only if the holder is relyinjg on the managerial skills of others- to generate his profit. By implication, if the holder is relying on his own entrepreneurial talents to generate his profit, his interest is not treated as a security because he does not fall within the class of persons Congress meant to protect when it included non-traditional securities'in'the coverage of the securities 'laws.
Siebel v. Scott, 725 F.2d 995, 999 (5th Cir.1984).
In some cases, the courts considered whether the purchaser retains the right to control the asset or enterprise. See, e.g., Williamson, 645 F.2d at 421 (“So long as the investor has the right to control the asset he has purchased, he is not dependent on the promoter or on .a third party for ‘those essential managerial efforts which affect the failure or success of the enterprise.’ ”). But most courts appear to have focused on whether, as an “economic reality,” the purchaser in fact- did exercise managerial or entrepreneurial control, or instead relied on others to do so. See, e.g., Siebel, 725 F.2d at 998 (“There is no evidence that any of the limited partners planned or- desired to participate in the operation of the cable television system.”). This is in essence the approach that we followed in Searsy, 560 S.W.2d at 641 (noting that, “[a]lthough the final decision was left to the customer, he rarely had any choice but to follow the advice given him”).
In light of the Supreme Court’s admonition to “broadly construe” the act in recognition of the “economic realities” of a transaction, we are not alone in this approach. For example, in Long v. Shultz Cattle Co., 881 F.2d 129 (5th Cir.1989), the Fifth Circuit acknowledged that the plaintiffs, who invested in a cattle-raising operation, “had a substantial degree of theoretical control over their investment. They could, theoretically, move their cattle to a different feedyard, decide what to feed them, provide their own veterinary care, or seek buyers on their own,” and in fact they “were required to authorize every management decision involving their cattle.” Id. at 134. But “the evidence [was] undisputed that at each juncture plaintiffs relied solely on the [seller’s] advice” and followed all of the seller’s recommendations. Id. Thus, “even if [the purchasers] technically made the key management decisions, they simply rubber-stamped [the seller’s] recommendations and relied entirely on [the seller’s] efforts and expertise to manage the underlying venture.” Id. at 136. Following the Supreme Court’s “flexible approach” to construction of the statute, the Fifth Circuit concluded that it was “impossible to conclude that the ... Howey [test] is not satisfied without ignoring entirely the economic realities of [the seller’s] program.” Id,
The cases thus indicate that, to constitute an investment contract under the “efforts” aspect of the Howey/Forman test, *675the transaction must be such that, in reality, the seller, or another party other than the purchaser, exercises the predominate managerial or entrepreneurial control on which the purchaser’s anticipation of profits is based.10 Conversely, courts have recognized that control over merely “ministerial” or “clerical” functions does not constitute the kind of “significant efforts” that satisfy the Howey/Forman test. See, e.g., Fargo Partners v. Dain Corp., 640 F.2d 912, 914-15 (8th Cir.1976) (“Where the investors’ duties were nominal and insignificant, their roles were perfunctory or ministerial, or they lacked any real control over the operation of the enterprise, the courts have found investment contracts.”); see also Martin v. T.V. Tempo, Inc., 628 F.2d 887, 890 (5th Cir.1980) (noting purchaser’s argument that transactions were investment contracts because “only simple ministerial tasks were required on the part of plaintiffs”); Koscot Interplanetary, 497 F.2d at 485 (concluding that the purchaser’s “act of consummating a sale is essentially a ministerial not managerial one”).
Because the Howey/Forman test does not strictly require that the purchaser rely “solely” on the efforts of others, courts must apply the distinction between “managerial or entrepreneurial control” and “perfunctory or ministerial duties” to the activities of both the purchasers and the sellers in any given transaction. If, for example, both parties exert “efforts” to support the enterprise but the purchaser’s efforts are “purely ministerial,” those efforts are not “significant” and the “efforts” aspect of the Howey/Forman test will typically be met. See, e.g., Mitzner v. Cardet Int’l, Inc., 358 F.Supp. 1262, 1268 (N.D.Ill. 1973) (noting that “the efforts of the franchisee-licensee in this case appear to be purely ministerial ”).11 But if the seller’s efforts are ministerial and perfunctory, rather than managerial or entrepreneurial, the purchaser cannot be said to be relying on the seller’s efforts for the anticipated profits, and the test is not met. See, e.g., McConathy v. Dal Mac Commercial Real Estate, Inc., 545 S.W.2d 871, 875 (Tex.Civ.App.-Texarkana 1976, no writ) (noting that “[t]he only management on the part of the managing venturer .., was that of insuring the property, paying the taxes and the *676like — not -for profit, but solely to protect and preserve the investment”).
C. Pre-purchase versus Post-purchase Efforts
Early cases applying the Howey/Forman test-generally focused on the efforts and'control- that the parties exercised after the transaction occurred. See, e.g., McConathy, 545 S.W.2d at 875 (noting that “no development or operations were to be undertaken with regard to the -property”) (emphasis added). In the 1990s, however, Life Partners faced the issue of whether the efforts it exerted before the transaction were relevant to the Howey/Forman analysis. S.E.C, v. Life Partners, Inc., 87 F.3d 536 (D.C.Cir.1996). The SEC argued that Life Partners’ purchasers “are essentially passive,” and rely for their anticipated profits on Life Partners’ “pre-purchase-ex-pertise in identifying existing policyholders and . post-purchase management of the investment.” Id. at 545. The D.C. Circuit rejected the SEC’s position, holding first that” all of Life Partners’ post-purchase efforts — “holding the policy, monitoring the insured’s health, paying premiums, converting a group policy into an individual policy where required, filing the death claim, collecting and distributing the death benefit (if requested), and assisting an investor who might wish to resell his interest” — were merely ministerial or clerical, rather than managerial or entrepreneurial. Id. at 545-46. These post-purchase efforts, the court found, have no “material impact upon the profits of the investors.” Id. at 546. “[Ojnce the transaction closes, the investors do not look to the efforts of others for their profits because the only variable affecting profits is the timing of the insured’s death, which is outside' of [Life Partners’] control.” Id. at 545. .
The court then addressed the SEC’s reliance on Life Partners’ pre-purchase efforts, which it described as efforts “to locate insureds and to evaluate them and their policies, as well as to negotiate an attractive purchase price.” Id. at 547. Although the court agreed that‘these efforts were “undeniably essential to the overall success of the investment,” the court expressed its “doubt that pre-purchase services should' ever count for much,” and concluded that, in this case, the “prepur-chase services cannot by themselves suffice to make the profits of an investment arise predominantly from the efforts of others.” Id. Asserting the lack of any authority finding an “investment contract” based solely on pre-purchase efforts, the court reasoned that such efforts do not justify the federal securities act’s disclosure requirements because
the value of the promoter’s efforts has already been impounded into the promoter’s fees or into the purchase price of the investment, and if neither the promoter nor anyone else is expected to make further efforts that will affect -the outcome of the investment, then the need for federal securities regulation is greatly diminished.
Id. Because “it is the length of the insured’s life that is of overwhelming importance to the value of the viatical settlements,” the court concluded, the SEC had failed to “show that the promoter’s efforts have a predominant influence upon investors’ profits.” Id. at 548.
One judge dissented from the D.C. Circuit’s decision. Id. at 549 (Wald, J., dissenting). The dissenting opinion began by describing three “background principles [that] should guide our analysis”: (1) “we should ... apply securities laws flexibly so as to achieve their remedial purposes,” (2) “the securities laws do not grant federal protection to .all investments, but only to that subcategory of investments that are securities,” and (3) the securities laws “em*677body the belief that information is the most important form of investor protection.” Id. at 549-50. Acknowledging that the anticipated profits must come “ ‘predominately,’ but not solely,” fi'om the seller’s efforts, and that the seller’s efforts “must be of a managerial or entrepreneurial character, and not merely ministerial or clerical,” the dissent concluded that the court’s “bright-line rule” rejecting the relevance of pre-purchase activities “elevates a formal element, timing; over the economic reality of the investors’ dependence on the promoter. Even more troubling, the majority’s approach undercuts the flexibility and ability ’to' adapt to ‘the countless and variable schemes’ that are the hallmarks of the Howey test.” Id. at 550-51.
The dissent vigorously disagreed with the majority’s assertion that no precedent supported her application of the Howey/Forman test, and cited to numerous eases in which lower courts had relied on the promoters’ pre-purchase activities to determine whether a transaction constituted an investment contract. Id. at 552-53. She noted, for example, that the Second Circuit had found in Glen-Arden Commodities that the “investors’ profits depended on the promoter’s expertise in selecting whiskey for [the] investors to purchase as well as on the promoter’s promise to buy back the whiskey in the future.” Id. (citing Glen-Arden Commodities, 493 F.2d at 1035). More recently, she noted, the Second Circuit had found “an investment contract where [the] promoter both promised'to maintain a secondary market for CDs — a post-purchase managerial activity — and used its market power to negotiate favorable CD rates with participating banks — a pre-purchase activity.” Id. (citing Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F'.2d 230, 240-41 (2d Cir.1985)). In addition, the dissent noted, the Eleventh Circuit had “emphasized] [the] promoter’s claimed expertise in locating bargain-priced Florida properties for [the] investor to purchase, as well as [the] promoter’s post-purchase activities,” when concluding that the promoter was not entitled to summary judgment on the “question of whether [an] investment contract existed.” Id. (citing Gordon v. Terry, 684 F.2d 736, 740 n.4, 742-43 (11th Cir.1982)). Contrary to the majority’s assertion, the dissent concluded that “courts frequently refer to pre-purchase as well as post-purchase activities of the promoter in finding Howey ⅛ third prong met.” Id. at 552-53.12
Rejecting the majority’s conclusion that pre-purchase efforts “should be categorically excluded,” the dissent asserted that “the Howey test can be met by pre-pur-chase managerial activities of a promoter when it is the success of these activities, either entirely or predominantly, that determines whether profits are eventually *678realized.” Id. at 55L13 Because the purchasers’ profits depended on whether Life Partners selected the right life insurance policies, negotiated the right price, and accurately predicted the insured’s life expectancy, the dissent would have, concluded that Life Partners’ “viatical settlements represent one of the rare instances where investor profits depend predominantly on the pre-purchase managerial activities of a promoter.” Id. at 555. Under her “approach, since the investors’ profits depend entirely on managerial activities of the promoter, the. Howey test is met and [Life Partners’] viatical settlements should be subject to the securities laws.” Id. at 556.
Following the D.C. Circuit’s Life Partners decision, courts in other jurisdictions reached different conclusions on the issue of whether life settlement agreements can be “investment contracts” based on the promoter’s pre-purchase efforts.14 During this time, the Waco Court of Appeals became the first Texas appellate court to address the issue in Griffitts v. Life Partners, Inc., No. 10-01-00271-CV, 2004 WL 1178418 (Tex.App.-Waco May 26, 2004, no pet.) (mem.op.). Like the D.C. Circuit, the Waco court concluded' that Life Partners’ life settlement agreements were not investment contracts. Id. at *2. Addressing Life Partners’ post-purchase efforts, “such as paying the policy premiums and filing evidence of death with the insurance company,” the court found that Life Partners merely “holds an investment in anticipation of appreciation qr maturity,” and performed only “ministerial functions” that “could have no effect on the profitability of the policies, which was overwhelmingly determined by how long the insured lived.” Id.
Addressing Life Partners’ pre-purchase efforts, “such as locating, researching, and evaluating the policies,” the court concluded that these actions were analogous to those of the land developer defendant that the Texarkana court had concluded did not promote “investment contracts” in McCo*679nathy, 545 S.W.2d at 873. Although the land developer had engaged in prepur-chase efforts, such as “ ‘investigating] the location, zoning and price to fair market value ratio’ of real estate before organizing and selling joint ventures in the property,” the Texarkana court held that the developer “did not undertake managerial efforts that would affect the profitability of a venture.” Griffitts, 2004 WL 1178418, at *2 (quoting McConathy, 545 S.W.2d at 873). Instead, “in such a case the enhancement in the value of the land took place by virtue of ‘its location and the normal appreciation of neighborhood land values,’ and not because of any efforts by the promoters.” Id. (quoting McConathy, 545 S.W.2d at 875). Citing the D.C. Circuit’s Life Partners decision and analogizing to the facts of McConathy, the Waco court concluded that “the profitability of Grif-fitts’s interests in life insurance policies is not determined by any managerial efforts on the part of Life Partners, but is determined by the mortality of the insureds.” Griffitts, 2004 WL 1178418, at *2 (citing Life Partners, 87 F.3d at 545-46).
The following year, however, the Eleventh Circuit Court of Appeals reached the opposite conclusion in S.E.C. v. Mutual Benefits Corp., 408 F.3d 737 (11th Cir.2005). Expressly “declin[ing] to adopt the test established by the [D.C: Circuit] Life Partners court,” the Eleventh Circuit rejected the notion that Howey “require[s] such a clean distinction between a promoter’s activities prior to his having use of an investor’s money and his activities thereafter.” Mutual Benefits Corp., 408 F.3d at 743. Noting that the Supreme Court’s precedent “directs us to broadly apply” the statutes “to all ‘schemes devised by those who seek the use of the money of others on the promise of profits,’ ’’ and relying in part on the D.C. Circuit’s dissenting opinion,15 the court concluded that “there is no basis for excluding pre-purchase managerial activities from the analysis.” Id. (citing Life Partners, 87 F.3d at 551 (Wald, J., dissenting)).
The Eleventh Circuit went on to conclude that, in that case, the purchasers “relied heavily” on both pre-purchase and post-purchase “efforts of the promoters in making investments in-viatical settlement contracts profitable.” Id. at 744. Regarding pre-purchase efforts, the court found that the promoters “selected the insurance policies in which the investors’ money would be placed,” “bid on policies and negotiated purchase prices with the insureds,” “determined how much money would be placed in escrow to cover payment of future premiums,” and “undertook to evaluate the life expectancy of the insureds — evaluations critical to' the success of the venture.” Id. If the promoter “underestimated the insureds’ life expectancy,” the court noted, ■ “the chances increased that the investors would realize less of a profit, or no profit, at all.” Id. And regarding the promoter’s post-purchase efforts, the court concluded that these were also “important” and “managerial,” because, “[o]ften, life-expectancy evaluations were not completed'until after closing,” and the promoter “assumed the responsibility of making premium payments” and' “collectively managed [the payments] in such a manner that investors *680were not required to pay additional premiums.” Id.
By comparison, the court explained, the purchasers performed no managerial tasks other than selecting the terms of the policies in which they invested: they “had no ability to assess the accuracy of [the promoter’s] representations .,. or the accuracy of the life-expectancy evaluations,” and “[t]hey could not, by reference to market trends, independently assess the prospective value of their investments in [the] viatical settlement contracts.” Id. Because the “investors relied on both the pre- and post-purchase management activities of [the promoter] to maximize the profit potential of investing in viatical settlement contracts,” the court concluded that the promoter “thus offered what amounts to a classic investment contract.” Id.
D. The Texas Test, Clarified and Confirmed
As we have discussed, many courts throughout the country have addressed the meaning of “investment contract,” and several have even addressed whether life settlement agreements are investment contracts. In Texas, the Texarkana court held in 1976 that the purchase of an interest in a venture to hold a tract of land “for investment and capital appreciation” was not an “investment contract” because the “evidence shows only that the parties joined together to purchase land and hold it for possible appreciation in value.” McConathy, 545 S.W.2d at 875. This Court then addressed the issue and adopted the Howey/Forman test in Searsy, in which we held that the purchase of commodity options was an investment contract even though “the final decision was left to the customer,” because in reality the customer “rarely had any choice but to follow the advice given him.” Searsy, 560 S.W.2d at 641.
After Searsy, a few Texas courts addressed the issue under facts similar to McConathy, where the purpose of the enterprise was to acquire and sell a tract of land, and those courts reached different results depending on the facts of each case.16 Twenty-seven years after Searsy, the Waco court held that Life Partners’ life settlement contracts are not investment contracts because “the profitability of [the] interests in life insurance policies is not determined by any managerial efforts on the part of Life Partners, but is determined by the mortality of the insureds.” Griffitts, 2004 WL 1178418, at *2 (citing Life Partners, 87 F.3d at 545-46). And then the Dallas and Austin courts rejected the Waco court’s approach in the *681two eases we address today. 416 S.W.3d at 592; 459 S.W.3d at 621.
Having reviewed both the statute’s language and the extensive authorities from Texas and throughout the country, we now confirm and clarify, first, that the Texas Securities Act’s definition of “securities” must be construed broadly to maximize the protection it provides to investors, while focusing on the economic realities of the transaction regardless of any labels or terminology the parties may have used. The Act itself expressly supports this approach. See Tex. Rev. Civ. Stat. art. 581-10-l.B (“This Act may be construed and implemented to effectuate its general purposes to protect investors_”); id. art. 581-10-1.A (“This Act may be construed and implemented to effectuate its general purpose to maximize coordination with federal and other states’ law and administration. ...”).
Second, in light of. these guiding principles and consistent with the uniform constructions of the precedents we have discussed, we confirm and clarify that an “investment contract” for purposes of the Texas Securities Act means a contract, transaction, or scheme through which a person pays money to participate in a common venture or enterprise with the expectation of receiving profits, under circumstances in which the failure or success of the enterprise, and thus the person’s realization of the expected profits, is at least predominately due to the entrepreneurial or managerial, rather than merely ministerial or clerical, efforts of others.
And third, we hold that the entrepreneurial or managerial efforts that are relevant to this inquiry, whether those of the purchasers or of others, include those that are made prior to the transaction as well as those that are made after. We. reach this conclusion in light of the guiding principles we have identified, because we agree that the “bright-line rule” dismissing the relevance of pre-purchase efforts “elevates a formal element, timing, over the economic reality of the investors’ dependence on the promoter [and] undercuts the flexibility and ability to adapt to ‘the countless and variable schemes’ that are the hallmarks of the Howey test.” Life Partners, 87 F.3d at 551 (Wald, J., dissenting).
In reaching this conclusion, we are not persuaded by the argument that the Act’s protections are unnecessary when the entrepreneurial or managerial efforts occur before the transaction because the value of those efforts is incorporated into the purchase price. See, e.g., id. at 545-47. The Act protects investors against a promoter’s harmful conduct before a sale of securities, as well as after. See, e.g., Tex Rev. Civ. Stat. 'art. 581-7.A (requiring permit and registration before offering to sell a security), art. 581-7.B(2)(c) (authorizing Commissioner to 'act against misleading facts “at any time, before or after registration of securities); art. 581-9 (providing protection in response to an offer to sell securities); art. 581-22 (regulating offers to sell securities); art. 581-33 (imposing liability for misleading offers to sell a security). We reject the argument that only post-purchase conduct should determine whether these pre-purchase protections apply. We agree that the Act’s disclosure requirements provide protection if the purchaser relies predominately on the entrepreneurial or managerial efforts of others to receive the anticipated profit, rather than on market forees or on the purchaser’s own efforts, even if those efforts occur before the sale. See Life Partners, 87 F.3d at 552 (Wald, J., dissenting) (citing S.E.C. v. G. Weeks Sec., Inc., 678 F.2d 649, 652 (6th Cir.1982)).
We are also not persuaded by the concern that the consideration of pre-purchase efforts will- transform every traditional *682land acquisition .or purchase for use ■ or consumption into an “investment contract,” because we believe the various aspects of ■the definition we have provided are sufficient to ensure that the transaction in question is the type of “investment contract” .the Act aims to address. The transaction must involve the payment of money, a common enterprise, the expectation of profits, and dependence predominately on the entrepreneurial or managerial efforts of others to achieve the anticipated profits, and tliis test “can be met by pre-purchase managerial activities of [others only] when it is the success of these activities, either entirely or predominantly, that determines whether profits are eventually "realized.” Id. at 551 (Wald, J., dissenting).
The State suggests that we add additional requirements to this test, allowing, for example, for the consideration of pre-purchase efforts only if the. promoter or third party also retains some continuing post-purchase obligations, such as an obligation to assist the purchaser in selling or redeeming the investment in the future. See, e.g., Glen-Arden, 493 F.2d at 1032 (noting that purchasers relied on promoters to redeem investments because there was no secondary market for interests in whiskey). We decline to do so. While reliance on such efforts may certainly be relevant to whether a transaction is an investment contract, the key question is not when the efforts of others take place, but whether they are entrepreneurial or managerial efforts that affect the failure or success of the enterprise.' The relevance to the Act’s purpose to protect investors is not the timing of the efforts but the efforts’ role in the transaction as the factor on which the investor predominately relies.
E. Life Partners’ Life Settlement Agreements
Applying this definition to Life Partners’ life settlement agreements, we conclude based on the undisputed material facts that they are investment contracts, and thus securities, under the Texas Securities Act. The parties do not dispute that the agreements are a transaction through which the purchasers pay money to participate in a common enterprise with the expectation of receiving profits. Life Partners contends, however, that the failure or success of the enterprise, and thus the purchaser’s realization of the expected profits, does not depend on the entrepreneurial or managerial efforts of Life Partners or others.
We disagree. Life Partners is the facilitator and administrator of the investments in life settlements through its Power of Attorney. It identifies the insured, negotiates the discount for the policy, evaluates the policy’s terms and conditions, and evaluates the health of the insured. It purchases the policy and finds purchasers to buy an interest in the policy until all interests are sold. These pre-purchase efforts require Life Partners to accurately evaluate the insured’s life expectancy and to set the correct purchase price (the discount) to yield a profit based on the insured’s life expectancy, future premiums, and end-value of the policy’s benefits. If Life Partners’ prediction is accurate, the purchaser will receive a profit. Life Partners acknowledges that its purchasers “depend upon [Life Partners’] ability to predict life expectancies and set the appropriate prices,” and even the D.C. Circuit’s majority agreed that Life Partners’ pre-purchase entrepreneurial efforts are “undeniably essential to the overall success of the investment.” Life Partners, 87 F.3d at 547. We agree.
Moreover, Life Partners’ significant managerial efforts do not end when the sale transaction occurs. We do not agree with Life Partners’- characterization of its *683post-purchase efforts as merely ministerial acts that serve only to preserve and protect the investment. See McConathy, 545 S.W.2d at 875 (“The only management on the part of the managing venturer ... was that of insuring the property, paying the taxes and the like — not for profit, but solely to protect and preserve the investment.”). As we and other courts have explained, “managerial” efforts, as opposed to ministerial efforts, are actions through which the person exercises oversight, discretion, and control over activities and transactions on which the anticipation of profits depends. See Searsy, 560 S.W.2d at 641; Howey, 328 U.S. at 294, 300, 66 S.Ct. 1100 (concluding the promoter “manage[d], controlled], and operate[d] the enterprise”); see also Wieboldt, 355 F.Supp. at 261 (concluding that the purchaser’s “given role was not essentially ministerial, but truly active and discretionary” and “gave him virtually unfettered control, a situation which is irreconcilable ... with Howey's definition of ¡an investment contract”); Schultz Cattle Co., 881 F.2d at 134, 136; Bailey, 904 F.2d at 923; cf. McConathy, 545 S.W.2d at 876 (establishing that investors had control over the investment). To decide whether efforts are managerial, we must look to the substance and economic realities of the transactions. Forman, 421 U.S. at 851, 95 S.Ct. 2051.
Here, after the purchase, Life Partners exercises complete control and discretion over the investment and the investment’s success. It holds legal title to the policy, monitors the insured and the policy premium payments, and collects and 'distributes the necessary funds. It uses its discretion to project the amount necessary to place in escrow to cover the premiums, and is responsible for notifying purchasers if -additional premiums are required because-an insured survives beyond Life Partners’ predicted life expectancy. In-its discretion, Life Partners advances premiums if the purchaser cannot make-the additional payments, and may optimize premiums to protect and maximize the value of the es-crowed funds. Life Partners’, failure to properly project and maintain premiums will result in forfeiture of the policy, and therefore, the investor’s profits.
In addition, Life Partners has complete control over all efforts ,to monitor the insureds and their health status, and the purchasers are unable to do so because of privacy requirements.. When the insured dies, Life Partners must obtain the death certificate, complete required insurance forms, and ensure that the purchasers receive their pro-rata share of the benefits. Life Partners (or its designated trustee) is the only party that, may cash out the policy and is responsible for timely filing the insurance forms. Additionally, Life Partners solely manages the policy payout by dividing and distributing it according to eaeh investor’s pro-rata share, using information that only Life Partners can access.
The purchasers have neither the power to complete these tasks nor the information necessary to do so, yet they can lose some or all of their anticipated profits if Life Partners fails to perform as it has agreed. Even Life Partners acknowledges that purchasers rely oh it both before and after the interest is purchased. Life Partners’ efforts are not merely ministerial efforts like paying taxes to preserve an investment, see McConathy, 545 S.W.2d at 875,- because Life Partners has complete control over the investment and uses its discretion and control to properly manage the investment and produce a profit. Without Life Partners’ managerial efforts, the investments would fail. Under these facts, we conclude that Life Partners’ post-purchase efforts are managerial, not ministerial. Life Partners manages and controls the entire enterprise, from start to *684finish, both before the transaction and after. • We conclude, therefore, on the undisputed material evidence in'this record, that Life Partners’ life settlement agreements are investment contracts, and thus securities, under the Texas Securities Act. ■
III.
“Retroactive” Application
Conditionally and alternatively, Life Partners requests that-we give our holding only prospective effect, and thus alleviate Life Partners from any liability to the Arnolds or the State in these cases based on its prior conduct. In support, Life Partners notes that the Waco court’s 2004 decision in Griffitts was the'only relevant Texas case until the Dallas Court of Appeals’ 2013 decision in Arnold, and contends it should not be' subjected to the Securities Act’s strict liability when it was reasonably relying on that decision. In addition, Life Partners suggests that a “retroactive” application of our decision would violate the Texas Constitution’s prohibition against retroactive laws and several provisions of the federal Constitution.
In support, of its request, .Life Partners relies on the Supreme Court’s decision in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), and our decision in Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District, 826 S.W.2d 489, 492, 515 (Tex.1992) (“Edgewood III”), to apply the holdings in those, cases prospectively only. In Chevron, the. Supreme Court articulated a three-part analysis for deciding whether to give a, holding only prospective relief:
-T- . First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on. ■ ‘ which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.
— Second, [the court] must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.
— Finally, [the court must] weig[h] the inequity imposed by retroactive application, for where a decision of [the court] could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship by a holding of nonre-troactivity.
404 U.S. at 106-07, 92 S.Ct. 349 (citations and quotations omitted).
We adopted the Chevron test in Edgewood III and elected to apply our decision in that case declaring the State’s public school finance system unconstitutional prospectively only. 826 S.W.2d at 521. Considering the first Chevron factor, we noted that we had decided an “issue of first impression” and that there was “a dearth of caselaw interpreting the constitutional provisions in issue,- and none of those cases involve circumstances like those presented in this case.” Id. at 520. Addressing the second factor, we-noted that the “rule in question” was “not a simple one because more than one constitutional provision [was] involved.” Id. But the effect of- our ruling was-to find provisions of recently enacted Senate Bill 351 to be unconstitutional, and- because the State’s, public school districts had already been collecting taxes as that bill authorized, we acknowledged that a retroactive application of our decision would “require a refund of those taxes, [and] the effect upon-the school system would be devastating” and “so *685damaging to the school system it could not further any purpose of the Constitution.” Id. at 520-21. Similarly, addressing the third factor, we concluded that retroactive application would cause “serious disruption in the education of Texas’ children.” Id. at 521.
Applying the Chevron factors here, we reach the opposite result. First, our decision in this case does not “establish a new principle of law” by “overruling clear past precedent on which .litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” - The Texas Securities Act has existed since 1957, and in 1977 we announced in Searsy that we must look to federal cases and other authorities, which “broadly construe” the term “investment contract.” 560 S.W.2d at 639. For -decades, as we have explained, federal courts and state courts have affirmed and followed the three guiding principles .and the definition we have described today. If any principle of law is new, it is the principle that the relevant “efforts..of others” include pre-purchase efforts, yet the Eleventh Circuit announced that holding more than ten years ago. Mutual Benefits Corp., 408 F.3d 737.
Moreover, although the Waco Court of Appeals held to the contrary the prior year, we do not agree that the Griffitts decision makes today’s decision “new.” As a rule, court decisions apply retroactively, and the Chevron test provides only an exception to that rule. See State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 719 (Tex.1996); Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex.1992); Edgewood III, 826 S.W.2d at 515; Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex.1983). If we must apply decisions only prospectively any time.we affirm a court of appeals judgment that conflicts with the previous holding of a different court of appeals, the exception would swallow the rule. And in any event, because the evidence here establishes that Life Partners’ post-purchase efforts were sufficient .to meet the Howey/Forman test, our holding on the relevance of prepurchase efforts is not “the rule in question” for purposes of the Chevron analysis.
Considering the remaining factors of the Chevron test, we believe that retroactive application of our holding furthers the operation and enforcement of the Securities Act, and in light of the decades of precedent on which we-rely,- the results impose no inequities on Life Partners; . See, e.g., Bowen v. Aetna Cas. & Sur. Co., 837 S.W.2d 99, 100 (Tex.1992) (per curiam) (holding that a prior decision should be given retroactive effect, even though it had overruled five different courts of appeals on a matter of .statutory interpretation). And finally, in response to Life Partners’ constitutional concerns, we need only note that our. decision merely interprets and applies a very old law, consistent with the manner in which other courts have interpreted and applied it for decades; it does not create a new one.17 We therefore decline to limit today’s holding to prospective application.
IV.
“Relief Defendants”
Finally, we address the arguments of Advance Trust & Life Escrow Services, L.T.A., and Purchase Escrow Services, ' LLC, two Petitioners in State v. Life Part*686ners, Inc. The State sued these Petitioners as “relief defendants,” seeking equitable relief “on the belief that they might hold property or assets belonging to Life Partners.” See S.E.C. v. George, 426 F.3d 786, 798 (6th Cir.2005) (“A relief defendant (sometimes referred to as a nominal defendant) may ‘be joined to aid the recovery of relief and ‘has no ownership 'interest in the property which is the subject of litigation.’ ”) (quoting S.E.C. v. Cherif, 933 F.2d 403, 414 (7th Cir.1991)); S.E.C. v. Colello, 139 F.3d 674, 675-77 (9th Cir.1998) (same). The- trial court entered judgment' in favor of these Petitioners as well as Life Partners, and on the State’s appeal, Petitioners requested that the court of appeals affirm as to them because there was no evidence that “either of them ‘held or retained’ any property of Life Partners.” 459 S.W.3d at 620. The appeals court concluded that “these assertions are better suited for the district court’s consideration on remand:” Id. As it is not clear from the record whether the trial court granted judgment in favor of these' Petitioners based on its evidentiary findings or on its legal conclusion that life settlement agreements are not securities, we agree with the court of appeals.
Y.
Conclusion
We hold on this record that Life Partners’ life settlement agreements are investment contracts, and thus securities, under the Texas Security Act. We decline to apply this holding prospectively only, and in light of our holding, we agree that the trial court should consider the relief defendants’ arguments on remand. We affirm the judgments of the Third and Fifth District Courts, of Appeals.
. The "others” include Steve South as Trustee and on behalf of South Living Trust, John S. Ferris, M.D., and Christine Duncan.
. The "others” include Milkie/Ferguson Investment, Inc.
. The "others” include Life Partners Holdings, Inc., Brian D. Pardo, R. Scott Peden, Advance Trust & Life Escrow Services, L.T.A., and Purchase Escrow Services, LLC.
. The State had previously sued Life Partners for violations of the Texas Deceptive Trade Practices Act in a case based on different underlying facts and presenting different legal ■ issues than those presented here. See State v. Life Partners, Inc., 243 S.W.3d 236, 244 (Tex.App.-Waco 2007, pet. denied) (reversing summary' judgment in Life Partners’ favor and remanding for further proceedings).
.Although even Life Partners- refers to those who buy. interests in its insurance policies as “investors,” we will .use the term "purchasers” to avoid .confusion, since the issue here is whether their agreement to buy the interests is an "investment contract.”
. Since 2011, the Texas Insurance Code has specifically regulated transactions between a "provider” of life settlement agreements, like Life Partners, and the insureds from whom the providers purchase the insurance policies. See Tex. Ins. Code §§ 1111A.001-.026 (the Texas Life Settlements Act). Among other requirements; this Act requires providers or ' their brokers to be licensed by the State, id. § 111 1A.003; to use forms and disclosures approved by thé State, id. § 111 1A.005; to submit annual statements to the State, id. § 1111A.006; to make certain, disclosures to the insured, id. § 1111A.007; and with limited exceptions, to avoid any disclosure of "the identity of an insured ... or the insured’s financial or medical information to any other person,” id. § 111 lA.006(d). The Life Settlements Act, however, regulates only the transaction between the insured and the provider; it does not regulate the relationships or transactions between the providers and those to whom they sell interests in the policies they purchase.
. The Texas Securities. Act prohibits selling or offering for sale "any securities ... until the issuer of such securities or a dealer registered under the provisions of this Act shall have been granted a permit by the Commissioner.” Id., art. 581-7,A(1). The Act also prohibits any person from offering or selling "a security ... by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to . make the statements made, in the light of the circumstances under which they are made, not misleading." Id. art. 581-33.A(2). Any person who offers or sells “a security" -in violation of either of these provisions "is hable to the person buying the security ,, who may sue either at law or in equity for rescission or for damages if the buyer no longer owns the security.” Id. art. 581 — 33.A(1), (2). In addition, the Act obligates the Attorney General "to take such measures and to make such investigations as will prevent or detect the violation of any provision thereof." Id. art. 581-3. The Ar-nolds and the State sued Life Partners for violating these provisions, and they concede that Life Partners has no liability under these provisions unless its life settlement agreements are “securities."
. We do not mean to suggest that we can or will ignore the statutory language at issue. When we construe and apply statutes, it is always “our goal ... 'to ascertain and give effect to the Legislature’s intent,”, which we draw "from the plain meaning of, the words chosen by the Legislature when it is possible to do so.” Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Téx,2012) (citing Entergy Gulf States, Inc: v. Summers, 282 S.W.3d 433, 437 (Tex.2009)), When the “statutory text is clear, that text is determinative .of legislative intent unless the plain meaning of the statute's words would produce an absurd result,” but- "when statutory text is susceptible of more than one reasonable interpretation it is appropriate to lo.ok beyond its language for assistance in determining legislative intent.” Id. Here, we find the term “investment contract” to be less than clear, and thus look for assistance to other courts that have as a whole construed the same language appearing in the samé statutory context. Like those courts, we find that the statute expresses a clear intent that it be construed broadly to effectuate its remedial purpose. See Tex. Rev. Civ. Stat. art. 581-4.A (defining "securities” to include "any other instrument commonly known as a security, whether similar to those . herein referred to; or not’-’).
. See, e.g., Rodriguez v. Banco Cent. Corp., 990 F.2d 7, 10 (1st Cir.1993) (observing that "the Supreme Court cases mark out a concept, not a precise definition,” and require that the term "securities” be "flexibly applied to capture new arrangements comprising the essence of securities, however they may be named") (citing Joiner Leasing, 320 U.S. at 351, 64 S.Ct. 120); McCown v. Heidler, 527 F.2d 204, 208 (10th Cir.1975) (following a "flexible approach” that depends "not upon ■the form, but upon the substance and economic reality of the transaction in question”) (citing Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621); Glen-Arden Commodities, Inc. v. Costantino, 493 F.2d 1027, 1035 (2d Cir.1974) (noting that "the federal securities laws are to be construed 'not technically and restrictively, but flexibly to effectuate (their) remedial’purposes’ ") (quoting S.E.C. v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963)).
. See also Bailey, 904 F.2d at 923 ("We agree with the district court that the plaintiffs had the authority to exercise some control over their individual investments. They could choose the embryos they wished to purchase and direct the feeding practices and marketing of their cattle or terminate the management agreement with Albemarle Farms. When viewed in light of the surrounding circumstances, however, the plaintiffs had little 'to no control over the ultimate success or failure of their investments.”).
. The distinction between “entrepreneurial or managerial” efforts and “ministerial and clerical” efforts grows out of and accommodates courts’ acceptance of the idea that the purchaser need not rely “solely” on the efforts of others. See, e.g., Slevin v. Pedersen Assocs., Inc., 540 F.Supp. 437, 440 (S.D.N.Y. 1982) (stating that whether a transaction is an investment contract "depend[s] on whether ‘solely’ is interpreted literally (i.e., did plaintiff contribute in any manner to the project) or liberally (i.e., did the plaintiff provide only ministerial, nonmanagerial help)”). If the purchaser had to rely "solely” on the efforts of others, such that any efforts by the purchaser would prevent the transaction from being an investment contract, it would not matter whether the efforts of others were managerial or merely ministerial. But since the purchaser’s own efforts to support the enterprise will not necessarily prevent the transaction from being an investment contract, the managerial-ministerial distinction is helpful to determine whether the purchaser is in fact relying on the efforts of others to obtain the anticipated profit. See, e.g., Wieboldt v. Metz, 355 F.Supp. 255, 261 (S.D.N.Y. 1973) (concluding that the purchaser’s "given role was not essentially ministerial, but truly active and discretionary” and "gave him virtually unfettered control, a situation which is irreconcilable ... with Howey's definition of an investment contract").
. The dissent cited several additional cases as support for her reliance on pre-purchase activities. Id. at 553 (citing S.E.C. v. Brigadoon Scotch Distributors,. Ltd., 388 F.Supp. 1288, 1293 (S.D.N.Y.1975) (in which, as Judge Wald explained, "the court specifically stated that the promoter’s [pre-purchase] selection activities alone were sufficient to satisfy Howey’s third prong because ‘[c]oins do not appreciate in value at the same rate and accordingly their selection is the most crucial factor in determining how much profit an investor in coins will make’ ”); Bailey, 904 F.2d at 924-25 (which, as Judge Wald explained, emphasized the value to the investment of "the promoter's prepurchase activity of selecting and crossbreeding [cattle] embryos”); and S.E.C. v. Energy Grp. of Am., Inc., 459 F.Supp. 1234, 1241 (S.D.N.Y.1978) (which, as Judge Wald explained, concluded that investment contract may be based on "purchase of property in expectation that it will appreciate due to promoter’s expertise in selecting the property”)).
. The dissent agreed that “Howey's third prong would not be satisfied whenever the promoter's managerial activities occurred pri- or to purchase and the realization of profits depended significantly on outside forces, such as a lottery.” Id. at 552.
. In Ohio, for example, a state court of appeals concluded that the viatical settlements at issue were not investment contracts because the promoter’s post-purchase efforts "cannot increase the value of the investor’s interests” and the only variable that can impact the profitability of the viatical settlements at issue is.the timing of the death of the insured. Glick v. Sokol, 149 Ohio App.3d 344, 777 N.E.2d 315, 319 (2002). The following year, however, another Ohio court of appeals concluded that the viatical settlements at issue were investment contracts, in part , because the investors "had no control over the selection of people whose policies were purchased, the prices paid for the policies, the escrow agent who would hold the funds, or any other managerial decision of the company.” Rumbaugh v. Ohio Dep’t of Commerce, 155 Ohio App.3d 288, 800 N.E.2d 780, 787 (2003). In concluding that the promoter’s pre-purchase efforts were relevant to the anal- ' ysis, the Rumbaugh court found guidance in the statute’s “broad policy to prevent fraudulent exploitation of the investing public.” Id. at 784. See also Siporin v. Carrington, 200 Ariz. 97, 23 P.3d 92, 97-99 (Ariz.Ct.App.2001) (concluding that similar* investments were "investment contracts”- because "[t]he pre-.sale activities resulted in the determination that the viatical settlements, that Carrington sold would be profitable. Indeed, no one disputes that Carrington's efforts were 'the undeniably significant ones, those essential managerial efforts which affect the fáilure or success of the enterprise.’ ”) (citing Turner Enters., 474 F.2d at 482); Michelson v. Voison, 254 Mich.Appi 691, 658 N.W.2d 188, 190 (2003) (deferring to administrative decision implementing Siporins holding in applying Michigan’s investment-contract statute); Poyserv. Flora, 780 N.E.2d 1191, 1196-97 (Ind.Ct.App.2003) (adopting rule from and quoting extensively from Siporin).
. Like the D.C. Circuit’s dissenting judge, the Eleventh Circuit disagreed that there was no precedent in which courts relied on. “the pre-purchase exercise of expertise by promoters in selecting or negotiating the price of an asset in which investors would acquire an interest.” Id. at 743-44 (citing S.E.C. v. Eurobond Exch., Ltd., 13 F.3d 1334 (9th Cir.1994) (involving interests in foreign treasury .bonds); Gary Plastic, 756,F.2d 230 (involving interests in certificate of deposit, program); Glen-Arden, 493 F.2d 1027 (involving investments in warehouse receipts for whiskey)).
. See, e.g., Cross v. DFW S. Entry P'ship, 629 S.W.2d 860, 864 (Tex.App.-Dallas 1982, no writ) (concluding no investment contract because purchaser "failed to show that any managerial or entrepreneurial services were expected of [defendant] in [purchaser’s] resale or development of the property”); Mayfield v. Troutman, 613 S.W.2d 339, 343 (Tex.Civ.App.-Tyler 1981, writ ref’d n.r.e.) (distinguishing McConathy and Wilson and holding that limited partnership interests in a partnership created to buy and sell a tract of land were "investment contracts” because the general partner “actively sought buyers for the property,” "showed it several times to many brokers and people,” and "investigated the value of surrounding property in order to determine a price for the partnership property,” and thus "did indeed act in a 'managerial’ capacity and was solely responsible for making the significant decisions affecting the success of [the partnership]”); Wilson v. Lee, 601 S.W.2d 483, 484 (Tex.Civ.App.-Dallas 1980, no writ) (adopting McConathy’s reason and holding "that a joint venture interest in raw land, purchased by investors whose sole expectations of profit or appreciation rests upon market inflation and not upon the managerial or entrepreneurial efforts of others, was not a ‘security’ under the Securities Act”).
. Life Partners cites Landgraf v. USI Film Products, 511 U.S. 244, 247-48, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) as support for its constitutional concerns, but the issue there was whether the newly passed Civil Rights Act of 1991 applied retroactively to a Title VII case then pending on appeal. Id. at 247, 114 S.Ct. 1483. Here, we ‘do not have a newly passed law but merely the interpretation of an existing law. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284121/ | OPINION
Scott K Field, Justice
Risk Management Strategies, Inc. (RMS) filed a suit for judicial review of the Texas Workforce Commission’s decision that individuals serving as caregivers for beneficiaries of RMS’s bank trust clients were employees of the individual bank trusts rather than of RMS. RMS also asserted that Commissioners Andres Alcan-tar, Ronald G. Congleton, and Hope An-drade acted in violation of the Texas Labor Code in making .that determination and sought declaratory'and injunctive relief. The Commission and the Commissioners filed a .plea to the jurisdiction asserting immunity from RMS’s claims. The trial court granted the plea to the jurisdiction and dismissed the case. We will affirm the portion of the trial court’s judgment dismissing RMS’s suit for judicial review and will reverse the portion of the judgment dismissing the claims for declaratory and. injunctive.relief to afford RMS an opportunity to amend its petition to allege an ultra vires claim against the Commissioners.
BACKGROUND
RMS’s client -base in Texas is composed of a number of financial institutions, pre*866dominantly banks, who serve as trustees of “special needs trusts” established under chapter 142 of the Texas Property Code to facilitate the support and care of certain disabled individuals. See Tex. Prop.Code §§ 142.001-009 (governing management of property recovered in suit by next friend or guardian ad litem). The trusts are typically established by court order to manage funds awarded to individuals who have suffered injuries from accidents or as a result of medical negligence. When the value of a chapter 142 trust’s principal exceeds $50,000, the court must appoint a financial institution as the trustee, unless no financial institution is willing to serve as trustee and the appointment of a person other than a financial institution is in the beneficiary’s best ' interest. Id. § 142.005(n). A court'that creates a chapter 142 trust has' continuing jurisdiction and supervisory power over the trust. ' Id. § '142.005(d).
The beneficiaries of chapter 142 special needs trusts often neéd extensive in-home care. According to RMS, the most appropriate in-home caregiver is often' a family member, who is permitted by law to receive monetary compensation from the trust for his or her time spent caring'for the trust’s beneficiary. RMS’s business model consists of entering into a “Client Services Agreement” ’with the bank serving as trustee of a chapter 142 trust. These agreements state ‘that RMS shall “provide and perform ... for and on behalf of the Trustee [] employment and related services” for the individuals engaged in caring for the trust’s beneficiary, including processing and payment of wages; collection, reporting,- and payment of payroll taxes; and payment of unemployment insurance. The agreements provide that:
The Parties understand and agree that it is their mutual intention under. the . Agreement that RMS shall do all acts necessary. to employ or contract with individuals who will be the employees or independent contractors (hereinafter collectively called “Employer” or “Employees”) of RMS and that Trustees shall not in any manner be deemed to be the employer of such persons.
As explained in an affidavit provided by Wells Fargo, one of RMS’s clients: •
As Trustee, usually in collaboration with care managers, families, RMS, and other ■ persons concerned for the beneficiary, I assist in arranging for home care services for beneficiaries of special needs trusts. These services are usually authorized under the terms of the trusts, and in some occasions, in accordance with court orders or other instructions of probate judges of the State of Texas. Often, the caregiver is a family member of the beneficiary who terminates outside employment to care for the beneficiary and is compensated from Trust assets by RMS. I routinely contract with RMS for two important reasons.
First, Wells Fargo, in its capacity as Trustee, does not have the in-house resources to hire, pay, and manage employees who care for beneficiaries. Our expertise lies in the management of the assets of the Trust. In my experience, RMS, because of their expertise in employment issues and employee risk .management, is in the best position to employ the caregivers; and
Secondly, because of our limited involvement with the caregivers, it does not make sense to style the Trust as the employer. To do so imposes potential employer liability on the Trust, something Wells Fargo desires to avoid. We defer to RMS’s expertise regarding compliance issues, especially those involving payment of overtime and fair employment practices. Moreover, if *867Wells Fargo were an employer or co-employer of a caregiver, Wells Fargo could be subject to law suits by the caregiver as with any other employer, such as wrongful termination, personal injury or other causes of action.
The bank trust clients pay RMS a sum equal to the hourly-rate wages of each caregiver performing services for the trust’s beneficiary, as well as all associated governmental taxes, insurance, and fees paid by RMS, including all federal, state, local, unemployment, social security, workers’ compensation, and general liability insurance attributable to the'' caregiver. RMS charges the trust a fee of $100 per caregiver per month.
In August 2011, the Commission sent RMS a letter stating that because it was paying unemployment taxes for the individual caregivers, who the Commission believed were employees of RMS’s bank trust clients, RMS was engaging in “pay-rolling,” an activity the Commission considered to be unauthorized under the Texas Unemployment Compensation Act. See Tex. Lab.Code. §§ 201.001-215.044 (the Act). The Commission informed RMS that, unless it was a licensed staff leasing company, each of its Texas clients must register individually‘with the Commission, report the payroll for its employees, and pay their unemployment taxes. RMS responded to the Commission by correspondence describing" its business model and asserting that it, not its bank trust clients, was the employer of the caregivers and, therefore, was the proper party to pay their unemployment taxes. RMS further explained why it did not believe it was acting as a staff leasing company and was not engaged in “payrolling.” After considering this response, the Commission provided RMS with its written “tax determination” that RMS was not the employer of the individuals performing services for RMS’s bank trust clients and that those individuals must be reported under accounts established by the Commission for each client. The Commission provided a list of factors it considered in reaching this decision, including that:
• All payroll costs and/or benefits are reimbursed by RMS’s bank trust clients or the employees.
• The individuals in most cases had previously been reported by the bank trust clients and were being transferred to RMS by the Client Services Agreements.
• The cost of vacations, holidays,. medical coverage, or any other employee benefits were borne by or paid by the bank trust clients or the individual employees.
• RMS processes and pays the wages from information transmitted by the bank trust clients or their representatives.
The Commission concluded that, “[e]ven though the Service Agreement purports to make RMS the employer of these individuals,” RMS’s clients “directly or by delegation, direct and control” them.
RMS requested a review of the Commission’s tax determination. See 40 Tex. Admin. Code § 815.113 (2015) (Tex. Workforce Comm’n, Comm’n Hearings Involving Coverage & Contributions or Reimbursements). The Commission held an informal administrative hearing in the Special Hearings Department, which was presided over by a Commission hearing officer. After the hearing, the Commission issued a' “Decision of the Commission Involving the Tax Liability” of RMS in which it concluded that “the employees involved in this case are not the employees of RMS, but rather the employees of the banks/trusts for which they provide their services.” After reviewing RMS’s motion for ■ reconsideration, the Commis*868sion concluded that its decision was correct,
RMS then filed a suit for judicial review of the Commission’s decision in Travis County district court; Thereafter, RMS amended its petition to add a request for a declaration that the individual Commissioners had misconstrued certain provisions of the Act by concluding that the bank trusts, rather than RMS, were the employers responsible for paying the unemployment taxes of the individual caregivers. The Commission and the Commissioners filed a plea to the jurisdiction asserting that sovereign immunity barred RMS’s claims. The trial court, granted the plea and dismissed the suit. RMS then perfected this appeal.
DISCUSSION
Suit for Judicial Review
In its first issue, RMS asserts that, because Texas Labor Code section 212.201 waives the Commission’s immunity, the trial court erred in granting the Commission’s jurisdictional challenge to its suit for judicial review. Absent legislative waiver, sovereign immunity deprives Texás courts of subject-matter jurisdiction over any suit against a State agency such as the Commission. See Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002). The Legislature may consent to suits against a state agency by statute or by resolution. Id. at 853-54. Whether sovereign ¡immunity has been waived implicates subject-matter jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). Whether a court has subject-matter- jurisdiction is a question of law, which we review de novo, when disputed facts relevant to the jurisdictional .inquiry are not presented. See id. (subject-matter jurisdiction is determined as matter of law on pleadings and when evidence relevant to jurisdictional inquiry is undisputed); Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d 79, 85-86 (Tex.App.—Austin 2004, pet. denied).
The jurisdictional analysis in the present case requires us to construe Labor Code section 212.201, a provision that waives the Commission’s immunity from certain suits for judicial review. We review questions of statutory construction de novo, Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex.2011), and our primary objective is to give effect to the Legislature’s intent as expressed in the language of the statute, First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex.2008). We discern legislative intent from the statute as a whole, not from isolated portions. 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex.2008). Absent an absurd result, we rely on the plain meaning of the text unless a different meaning is supplied by legislative definition or is apparent from the context. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008). In addition to these core statutory-construction principles, we are required to strictly construe statutes waiving sovereign immunity. City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex.2006). “[Sovereign] immunity remains intact unless surrendered in express and unequivocal terms by the statute’s clear and unambiguous waiver.” Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex.2012);. see Tex. Gov’t Code § 311.034.
Labor Code section 212.201 provides:
(a) A party aggrieved by a final decision of the-commission may obtain judicial review of the decision by bringing an action in a court of competent jurisdiction for review of the decision against the commission on or after the date on which the decision is *869final, and not later than the 14th day-after that date.
(b) Each other party to the proceeding before the commission must be made a defendant in an action under this subehapter.
Tex. Lab.Code § 212.201 (entitled “Commencement of Judicial Review; Defendants’'). Although the parties agree that section 212.201 is a waiver of the Commission’s immunity from suit, they disagree about its scope. RMS contends that this' provision is a broad waiver of sovereign immunity for any “decision’’ made by the Commission, including its determination in the present case that the bank trusts are the employers of the individual caregivers and therefore responsible for paying their unemployment taxes. The Commission counters that this statutory waiver of immunity is limited and pertains only to the Commission’s final decisions in disputes regarding claims for unemployment benefits under the Act. RMS’s position relies principally on its contention that the phrase “decision of the commission” is not modified by the words “in an unemployment benefits dispute” and, consequently, the plain language of the statute manifests the legislature’s intent to waive the Commission’s immunity, and thereby permit judicial review, of any final decision. Considered in the context of the entire Act, however, section 212.201 does not provide such a sweeping waiver of the Commission’s immunity. '
Section 212.201 is found in chapter 212 of the Act, which is titled “Dispute Resolution.” A review of the other sections in chapter 212 reveals that the “disputes” that are the subject of this chapter are those arising from an employee’s claim for unemployment benefits. For example, section 212.001 provides that “disputed claims” must be presented in accordance with rules adopted by the Commission for determining the “rights of parties” to disputed claims. Id. § 212.001. The term “claim” is not defined in the Act, but the term “valid claim” is, and means “a claim filed by an unemployed individual who has received the wages necessary to qualify for benefits.” Id. § 201.011(23).-
■ The other provisions within this chapter are also clearly concerned with the procedure for resolving disputes over claims for unemployment benefits. Section 212.004 provides that “benefits” shall be promptly paid in accordance with (1) a “determination or redetermination” of an- examiner, (2) a “decision” of an appeal tribunal; (3) a “decision” of the commission; or (4) a “decision” of a reviewing court. Id. § -212.004. This section also provides that “benefits” paid under a determination, redetermination, or decision continue until the determination, redetermination, or decision is modified or reversed by a subsequent re-determination or “decision.” Id. Section 212.005 prohibits any chargeback .in the event of the. reversal of a determination or decision allowing benefits. Id. § 212.005. Section 212.051 provides that if the employer provides information raising an issue affecting the claimant’s right to benefits, an examiner determines whether the claimant is entitled to benefits. Id. § 212.051. Sections '212.053’ and 212.101 provide that either the “claimant” or the claimant’s most recent employer may appeal a determination by the examiner, and that the appeal is to an appeal tribunal established by the Commission. Id. §§ 212.053; .101. Section 212.151 provides that the Commission may (1) on its own motion affirm, modify, or set aside the appeal tribunal decision, (2) direct the taking of additional evidence, or (3) permit any of the parties- to the tribunal decision to initiate a further appeal before the Commission. Id. § 212.151. Sections 212.152 and 212.153 provide that the Commission must promptly mail- a copy of /‘its *870findings and decision” to the parties, and that the “decision”, becomes final 14 days after the date the “decision” is mailed unless the Commission reopens the appeal.or a party to the appeal files a written motion for rehearing. Id. §§ 212.152, .153.
Following these sections, all of which, again, are plainly concerned with the procedure for resolving disputes over claims for unemployment benefits, is • section 212.201. This section provides that “a party aggrieved by a final decision of the commission may obtain judicial review of the decision.” Id. § 212.201. It is apparent from its- context that the “decision” referred to in this section is the Commission’s decision on a claim for unemployment benefits’ that has worked its way through the procedures- set forth in chapter 212. To the extent there remains any doubt in that regard, we have been instructed by- the supreme court to-strictly construe any purported statutory waiver of immunity in favor of retention of immunity. See, e.g., Chatha, 381 S.W.3d at 513 (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003)).
' A number of courts have previously stated that chapter 212 governs judicial review of employee-benefits claims. See Critical Health Connection, Inc. v. Texas Workforce Comm’n, 338 S.W.3d 758, 762 (Tex.App.—Austin' 2011, no pet.) (observing that Texas Labor Code chapter 212 governs review of employee-benefits claims); UL, Inc. v. Pruneda, No. 01-09-00169-CV, 2010 WL 5060638, at *9 (Tex.App.—Houston [1st Dist.] Dec. 9, 2010, no pet.) (mem. op.) (stating that Texas Labor Code sections 212.201 and 212.206 pertain to judicial review of Commission decisions regarding unemployment benefits claims, not to decisions regarding, unpaid wage claims); Morrow v. Texas Emp’t Comm’n, 497 S.W.2d 635, 637 (Tex.Civ.App.—Dallas 1973, writ dism’d) (holding that section 212.201’s predecessor statute related only to claims for unemployment benefits and did not purport to deal with disputes regarding liability for unemployment taxes)2 ; see also Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex.1998) (stating that standard of review for decisions regarding benefit payments is found in Labor Code section 212.202). Although these cases do not expressly so hold, they are consistent with and support bur construction of section 212.201 as applying only to suits for judicial review of Commission decisions regarding unemployment benefits. Moreover, RMS has cited no case, nor have we found one, in which a court has concluded that section 212.201 waives the Commission’s immunity from a suit for judicial review of a decision other than one regarding employee-benefits claims.
Finally, the Texas Labor Code contains separate provisions that waive the Commission’s immunity from suits for judicial review of unemployment-tax related disputes. See Tex. Lab.Code §§ 213.032 (waiving immunity from suit for judicial review of Commission’s assessment of unemployment taxes); .073 (waiving immunity from suit for judicial review of Commission’s denial of request for refund of unemployment taxes paid under protest). If RMS were correct that section 212.201 waives immunity for any Commission de-*871cisión, these separate provisions would be unnecessary. The Legislature’s inclusion of additional express waivers of immunity in chapter 213 indicates that the waiver in section 212.201 was not intended to grant a right to judicial review of all Commission decisions. If, as RMS maintains, section 212.201 grants a right-to judicial review of all Commission decisions, the waivers in chapter 213 would be redundant, RMS’s construction of the statute contradicts the supreme court’s directive that we give effect to all words of a statute and, if possible, not treat any statutory language as mere surplusage. See Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 401 (Tex.2000); Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999) (courts should not adopt construction that renders statutory provisions meaningless); see also Tex. Gov’t Code § 311.021 (we presume that Legislature intended entire statute to be effective).
Having considered the Act as a whole, and mindful of the requirement that we strictly construe statutes waiving sovereign immunity, we hold that the, waiver of immunity contained in Labor Code section 212.201 is limited to suits for judicial review of the Commission’s decision regarding a claim for unemployment benefits. We overrule RMS’s first appellate issue.
Ultra Vires Claim
In its second issue, RMS contends that the trial court erred by concluding it did not have jurisdiction over RMS’s claims for declaratory and injunctive relief and granting the Commission’s plea to the jurisdiction as to those claims. RMS 'contends that it has asserted statutory violations by state officials that fall within the ultra vires exception to sovereign immunity. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.2009). A cause of action to determine or- protect a private party’s rights against a state official -who has acted without legal or statutory authority is an, ultra vires claim that is. not barred .by sovereign immunity. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 404 (Tex.1997). To fall within the ultra vires exception to immunity, “a suit must not -complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without, legal authority or failed to perform a purely ministerial act.” Id. RMS alleged that the. Commissioners acted in violation of Texas Labor, Code chapter 201 by determining that the individual caregivers were employees of. ;the bank trusts and not of RMS, According to RMS, the Commissioners -had no discretion, to make this determination in the face of evidence establishing that RMS has the right to control, and actually does control, the caregivers’, performance of their services.3 RMS maintains that chapter ,201 mandates that the Commissioners apply a “control test” to determine who, employs the caregivers and that, by failing to do so, the Commissioners acted outside their legal or statutory authority. Resolution of this issue presents a question of statutory construction,, which - we review de novo. Texas Citizens for a Safe Future. & Clean Water, 336 S.W.3d at 624.
To support its contention that the Labor Code mandates that the Commissioners employ á “control test” to determine the identity of a worker’s employer, RMS relies on'the following three sections of chapter 201: ‘
• Section 201.011(11), which provides that, in the Act, the term “employing *872unit” means “a person who, after January 1, 1936, has employed an individual to perform services for the person in this state.”
• Section 201.021, which defines “employer” as “an employing unit that: (1) paid wages of $1,500 or more during a calendar quarter in the current or preceding calendar year; or (2) employed at least one individual in employment for a portion of at least one day during 20 or more different calendar weeks of the current or'preceding calendar year.”
• Section 201.041, which provides that “‘employment’ means a service, including a service in interstate commerce, ■performed by an individual for wages' or under an express or implied contract of hire, unless it is shown to the satisfaction of the commission that the individual’s performance of the service has been and will continue to be free from control or direction under the contract and in fact.”
Tex. Lab.Code §§ 201.011, .021, .041. RMS asserts, without citing authority, that these three definitions establish a statutory “control test” for discerning the identity of a particular employee’s “employer” responsible for paying that employee’s unemployment taxes. RMS reads section 201.041 to provide that the entity that controls or directs the individual’s performance of services must be that individual’s “employer.”
But section 201.041 defines “employment,” not “employer.” Pursuant to section 201.041, if the individual’s performance of services is free from control or direction, the services he provides are not deemed to be “employment” under the Act and, consequently, there is no “employer” subject to the Act’s requirement that unemployment taxes be paid for that individual. See id. § 201.021 (“employer” means an “employing unit” that “employed at least one individual in employment” for specified period of time (emphasis added)). The- individual performing those services would be an independent contractor, and the person to whom the services were provided would have no obligation to pay unemployment taxes for that individual. See Critical Health Connection, Inc., 338 S.W.3d at 761 (“Under the Act, an ‘employer’ is obligated to contribute to the unemployment compensation fund ‘on wages for employment paid,’ in accordance with rules adopted by the Commission.”).4
■ Thus, the “control test” is a tool for discerning whether the activity engaged in by an individual qualifies as “employment” under the Act or whether the individual is, instead, an independent contractor. It does not necessarily'control the decision of which entity is the “employer” of a particular individual. Although certainly a relevant factor, nothing in the statute mandates that, in every case, the entity exercising control over the services per*873formed is- the “employer” under the Act. Thus, we cannot conclude that the Commissioners acted outside their statutory authority by considering factors other than those included in the “control test” when determining who employs the individual caregivers.
In its decision, the Commission stated that both the Commission and RMS agreed that the workers in question were employees,. not independent contractors. The only question before the Commission was who employed them. The Commission concluded, in part:
[T]he banks/trustees are the entities that best meet the criteria to be the employer of the workers assigned to each entity. The services performed by the employees directly benefit the individual trusts. Each individual trust has its own separate legal status. Each acts as the employer of the workers involved. RMS is nothing more than the designate ed. agent of each individual trust. While the wages and payroll processing are done by RMS, each trust, by contract, reimburses RMS for these services. Thus, in reality, the individual trusts are paying the employees’ wages.
The Commission is authorized by statute to consider not just who had control or direction over the employees, but also who benefitted from their services and who actually paid their wages. See Tex. Lab. Code §§ 201.011(11) (“employing unit” means person who has employed mdividual to perform services “for the person ”), .021 (“employer” means employing unit that paid wages).5
The Labor Code does not require that the Commissioners use only the “control test” to determine whether RMS or the bank trusts employ the individual caregivers. No statute or regulation prohibits them from considering other factors. Therefore,' RMS has failed to allege an ultra vires claim. See Heinrich, 284 S.W.3d at 372. RMS’s pleadings thus do not affirmatively demonstrate the trial court’s jurisdiction over the claims for declaratory and injunctive relief, but they also do not affirmatively demonstrate incurable defects in jurisdiction. The issue, then, “is one of pleading sufficiency and the plaintiff [ ] should be afforded the opportunity to amend.” Miranda, 133 S.W.3d at 226-27. The trial court properly granted the Commission’s plea to the jurisdiction as to RMS’s ultra vires claims, but we reverse the judgment dismissing those claims and remand with instructions that the trial court provide RMS a reasonable opportunity to amend its pleadings. The trial court will have jurisdiction over RMS’s ultra vires claims only if RMS can identify a statute the Commissioners violated by determining that the bank trusts were the individual caregivers’ employers or that the Commissioners acted without legal authority.
*874CONCLUSION
For the reasons stated in this opinion, we affirm the trial court’s order granting the Commission’s plea to the jurisdiction as to RMS’s suit for judicial review and dismissing it. We reverse the trial court’s order granting the plea to the jurisdiction as to RMS’s ultra vires claims and dismissing its claims for declaratory and in-junctive relief, and remand the case to the trial court in order to provide RMS an opportunity to amend its pleadings.
. The statute at issue in Morrow was Texas Revised Civil Statutes article 5221b-4. This statute was repealed by the Act of May 12, 1993, 73d Leg., ch. 269, § 5, 1993 Tex. Gen. Laws 987, 1273, as part of a nonsubstantive revision of statutes relating to labor and employment. The Legislature .repealed article 522 lb-4 when it enacted the Texas Labor Code as part of the state’s statutory revision program, which contemplated "a topic-by-topic revision of the state’s general and permanent statute law without’ substantive change.” Id. § 1.001, 1993 Tex. Gen. Laws 987, 990.
. The Commission does not agree, that the facts related-to whether RMS controls or directs the individual caregivers'- performance of their services are undisputed. However, as explained below, these facts are not relevant to the-jurisdictional inquiry.
. In Critical Health Connection we noted that, "pursuant to the legislative directive in section 201.041, the Commission has developed a multi-factor ‘right-to-control’ test for determining whether an individual is in an ‘employment’ relationship or is instead an independent contractor.” Critical Health Connection, Inc. v. Texas Workforce Comm’n, 338 S.W.3d 758, 761-62 (Tex.App.—Austin 2011, no pet.) (citing 40 Tex. Admin. Code §§ 815.134 (Tex. Workforce Comm’n, Employment Status: Employee or Independent Contractor), 821.5 (Tex. Workforce Comm’n, Employment Status: Employee or Independent Contractor) (promulgating Commission's 20-factor guideline for determining employment status) (emphasis added)). The Commission's test is similar to the common-law test articulated by the Texas Supreme Court in Limestone Products Distribution, Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex.2002) ("The test to determine whether a worker is an employee rather than an independent contractor is whether the employer has the right to control the progress, details, and methods of operation of the work.”).
. We note that the Commission also notified RMS of two ways a party found by the Commission to be an "employer” could obtain judicial review of that decision. The party may pay contributions resulting from the finding that it is an "employer” and then apply for ,a refund. If the Commission denies the . refund, the party may sue the agency in a Travis County court. See Tex. Lab.Code § 213.073 (permitting suit against Commission for review of Commission’s refusal to allow adjustment or.refund of unemployment contributions). In the alternative, if the party fails to pay contributions, the Commission may make an administrative assessment to collect unpaid unemployment contributions, plus penalties. The party may then file a suit for judicial review of the assessment in Travis County district court. See id. § 213.032(c) (judicial review of administrative assessment to collect unpaid unemployment contributions). The bank trusts are not without an avenue for challenging the Commission’s decision that they, not RMS, employ the individual caregivers. ' ■ | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284124/ | OPINION
STUMBO, JUDGE:
Jeremy Gill appeals his conviction in the Butler District Court of leaving the scene of an accident. Gill was ordered to pay a $500 fine. Gill appealed his conviction to the Butler Circuit Court, which affirmed. This Court then granted discretionary review.
On June 7, 2013, Gill and his girlfriend, Ashley Kane, got into an argument at his residence. Also present was their five-year-old daughter. Gill claims that in order to diffuse the situation, he took his daughter, got in his car, and left the residence. Kane followed Gill in her own automobile. When Kane caught up with Gill, *37she intentionálly struck Gill’s automobile.1 When she struck his vehicle, he was crossing a bridge. The collision caused Gill’s vehicle to hit the wall of the bridge.
Gill did not stop his vehicle, but continued down the road and stopped at the County Corner Market. Gill stated at trial that the reason he did not immediately stop is because he felt he was in danger. Kane followed him to the market, where she began yelling at him. Gill then left the market and returned home. Evidence was conflicting at trial, but it appears that Kane may have remained at the market. She then called the police.
When Gill returned home, he heard over his police scanner that Kane had requested the police at the market. He then returned to the market. Gill was ultimately charged with leaving the scene of an accident pursuant to Kentucky Revised Statutes (KRS) 189.580(1). A trial was held on September 11, 2018. After the close of the Commonwealth’s evidence, Gill’s trial counsel moved for a directed verdict. Counsel argued that this was not an accident as contemplated by the statute, but was an intentional collision. The trial court denied the motion and the trial continued. The jury ultimately found Gill guilty of leaving the scene of an accident and fined him $500. Gill then appealed to the circuit court, which affirmed. This appeal followed.
Gill’s first argument on appeal is that the trial court erred in not granting his motion for a directed verdict. Gill claims that because this was an intentional collision, it cannot be classified as an accident; therefore, he did not leave the scene of an accident. We agree.
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to.find guilt, only then the defendant is entitled to a directed verdict of acquittal..
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).
KRS 189.580(l)(a) states in relevant part:
The operator of any vehicle, whose vehicle, vehicle load, or vehicle equipment which is involved in an accident resulting in injury to or death of any person or resulting only in damage to a vehicle or other property which is driven or attended by any person, shall immediately stop and ascertain the extent of the injury or damage and render reasonable assistance, including the carrying, or making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary, or if such carrying is requested by the injured person.
When interpreting a statute,
[t]he primary rule is to ascertain the intention from the words employed in enacting the statute and not to guess what the Legislature may have intended but did not express. Resort must be *38had first to the words, which are decisive if they are clear. The words of the statute are to be given their usual, ordinary, and everyday meaning.
Osborne v. Commonwealth, 185 S.W.3d 645, 648-49 (Ky.2006)(citing Gateway Const. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky.1962)).
In the case at hand, the term “accident” is not defined in the Kentucky Revised Statutes. Black’s Law Dictionary .defines accident as “[a]n unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated.... An unforeseen and injurious occurrence not attributable to mistake, neglect, or misconduct.” BLACK’S LAW DICTIONARY 15 (7th ed. 1999). See also Merriam-Webster’s Collegiate Dictionary p. 7 (10th ed. 2002) which has a similar definition.
Here, the facts are undisputed that Kane intentionally collided with Gill’s vehicle. This was not an accident. The Commonwealth could not prove an essential element of the crime of leaving the scene of an accident; therefore, a directed verdict should have been granted.2
Gill raises another issue on appeal, but that issue is now moot.
Based on the foregoing, we vacate Gill’s conviction.
J. LAMBERT, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY.
. Kane admitted that she intentionally struck Gill’s automobile.
. We also note that it seems unreasonable to force the drivers of Kentucky who are intentionally struck by a vehicle to stop during such an encounter and place themselves in further danger. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284125/ | OPINION
LAMBERT, J., JUDGE:
Jeffrey King appeals from a Madison Circuit Court judgment and sentence entered after a jury found him guilty of first-degree trafficking in a controlled substance, first offense. We affirm.
On June 3, 2011, King drove his Jeep to the Cottage Hearth Inn. His passenger, Sean Adams, left the Jeep and entered the Inn. After a short time, Adams came out and got back into the Jeep. King pulled away from the Inn, closely followed by a green minivan, driven by an unknown white male. King parked at his residence and entered his apartment, followed by the driver of the minivan. Adams remained in the Jeep. The driver of the minivan left the apartment a short time later, followed by King. The driver of the minivan drove away. King got into his Jeep and also drove away.
Detective Johnson had followed King from the Inn and conducted a traffic stop when he saw that King was not wearing his seat belt. He arrested King after discovering he had an outstanding warrant for failure to pay a fine. King gave consent to search the vehicle. Detective Johnson directed Adams to exit from the passenger side of the vehicle. Detective Johnson and another detective searched the vehicle and found a piece of plastic containing two 30-milligram Percocet tablets between the console and the passenger seat. The detectives also found approximately thirty-two 30-milligram Percocet tablets in a wet paper towel in the center console cup holder nearest to the passenger side of the vehicle. King and Adams were each charged with first-degree trafficking in a controlled substance, first offense. ■ They were tried together. Both were found guilty and received sentences *41of eight years. This appeal by King followed.1
King argues that he was denied the right to a unanimous verdict. When the trial court polled the jury after it returned a verdict convicting King of trafficking in the first degree, one juror replied “no” when she was asked whether the verdict of guilty was her verdict. Upon questioning by the trial court, she stated, “I wasn’t decisive. And I think that Jeffrey King was probably facilitation.” A facilitation instruction had been given to the jury.
The trial court stated that the verdict was not unanimous, and that the jury would be sent back to continue deliberations to see if the juror could be decisive one way or the other. Adams’s counsel said he had not heard the juror’s remarks. The trial court said, “She said that she wasn’t decisive. I think that is what she said. Is that what you said?” The juror replied, ‘Tes.” The trial court then verified that the juror was uncertain only as to the verdict against King, not the verdict against his co-defendant, Adams.
The trial court then sent the jury to deliberate further, after instructing them according to Kentucky Rules of Criminal Procedure (RCr) 9.57(1), which is the charge given to a jury that is unable to reach a verdict. When the jury returned a short time later, the juror had changed her vote to agree that King was guilty of first-degree trafficking.
King argues that the RCr 9.57(1) instruction was improper because the jury had not indicated that it was deadlocked or “hung.” He contends that the juror unequivocally stated that it was not her verdict, which indicated that there was not a unanimous verdict and should have led to the declaration of a mistrial. Our review of the record indicates that the juror in question stated that she was not decisive, and that “Jeffrey King was probably facilitation.” Her statement was ambiguous at best, and the trial court did not err by providing the RCr 9.57 instruction. In any event, even if she had unequivocally stated that it was not her verdict, the trial court followed the proper statutory procedure by sending the jury away for further deliberation.
Kentucky Revised Statutes (KRS) 29A.320(3) provides the following procedure for rendering the verdict:
(d) When the verdict is announced either party may require that the jury be polled, which is done by the judge asking each juror if it is his verdict.
(e) If more than the number of jurors required by KRS 29A.280, as appropriate to the type of case being tried, answers in the negative, the jury must be sent out for further deliberation.
In Hart v. Commonwealth, 768 S.W.2d 552 (Ky.App.1989), the initial polling of the jury revealed that one juror was ambiguous in her position. The trial court sent the jury to deliberate further and accepted the jury’s subsequent unanimous guilty verdict. A panel of this Court affirmed the judgment, stating as follows:
Under KRS 29A.320(3)(e), the trial court clearly was authorized to send the jury back for further deliberations after the initial jury poll revealed the fifth juror’s ambiguous opinion and the second poll of the entire jury revealed no lack of unanimity. To establish an absence of unanimity, upon being polled, a juror must connote that the verdict was given involuntarily or was forced upon him or *42against his will. Fleming v. Commonwealth, Ky., 419 S.W.2d 754 (1967). None of the jurors indicated any coercion and the trial court clearly had no duty to interrogate the fifth juror at length simply because she previously had expressed some misgivings or misunderstanding as to the initial guilty verdict.
Hart, 768 S.W.2d at 555.
There is absolutely no evidence in the record that the initial verdict in King’s case was given involuntarily or that the indecisive juror had been coerced in any way. The trial court acted in compliance with KRS 29A.320(3)(e) when it sent the jury back for further deliberations.
Next, ? King argues that the trial court erred in refusing to strike for cause a juror who was a uniformed police officer. Although King’s attorney objected to the inclusion of the uniformed officer on the jury and used one of his peremptory strikes to exclude him, he failed to preserve the issue adequately because he did not identify which juror he would have stricken with his remaining peremptory challenge if the trooper had been stricken for cause. “[I]n order to complain on appeal that he was denied a peremptory challenge by a trial judge’s erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck.” Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky.2009). King asks us to review this issue for palpable error.
In McDaniel v. Commonwealth, 415 S.W.3d 643 (Ky.2013), the appellant asked for palpable error review of the trial court’s alleged error in failing to strike three prospective jurors for cause. The appellant asserted that this error forced him to expend three peremptory strikes, thereby violating his right to be tried by a fair and impartial jury.
In addressing his argument, the Supreme Court of Kentucky emphasized that “[Wjhat a palpable error analysis ‘boils down to’ is whether the reviewing court believes there is a ‘substantial possibility1 that the result in the case would have been different without the error.” Id. at 649 (quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006) (citations omitted)). In light of this standard, the Court held that an examination of the alleged biases of the prospective jurors was unnecessary, because each juror was eventually peremptorily struck by the appellant and therefore, there was not á “‘substantial possibility’ that these particular jurors’ alleged biases affected the result in the case as is required for a finding of palpable error.” Id. (citation omitted). “If Appellant does not both exhaust his peremptory strikes and assert that he would have used one of his forfeited peremptory strikes on another prospective juror who actually sat on the jury, there can be no reversible error because the Appellant received the jury he wanted, and any error [was] effectively cured.” Id. (internal citations and quotation marks omitted.)
The same reasoning is applicable in King’s case. Because the juror to whom he objected did not sit on the jury, he presumably received the jury he wanted because he did not identify a juror against whom he would have used his forfeited peremptory strike; consequently, there is no basis for a finding of palpable error.
Next, King argues that the trial court erred in allowing the uniformed trooper to remain in the jury venire during voir dire. According to King, the Commonwealth’s attorney treated the trooper as a witness and used his relationship to the prosecutorial system to elicit biased, incomplete, and incorrect statements of the law that tainted the jury pool. Al*43though King objected to the trooper’s inclusion in the jury pool, he made no specific objection to the prosecutor’s voir dire questioning, and the issue is therefore un-preserved.
During voir dire, the following exchange took place between the Commonwealth’s attorney and the uniformed police officer:
Commonwealth’s attorney: Trooper Short, I will pick on you. Do you have an opinion on what “possession” would be? If I am holding these keys, how many of you all think I would be in possession of these keys?
All right, you are right, Kentucky law says that if you have got the keys in my physical proximity and I know what they are then I am in possession of the keys.
Now there is another facet of Kentucky law and that is what is generally referred to as “constructive possession.” And that means that you exercise “dominion and control” over something. [He then set the keys down.]
Do you think I possess those keys right now, Trooper Short?
Trooper Short: Yes, you do.
Commonwealth’s attorney: Why do you think that?
Trooper Short: Close proximity to you, I guess.
Commonwealth’s attorney: Okay, you saw me put them down, didn’t you?
Trooper Short: On or about your person.
He argues that the trooper was in effect “testifying” regarding contested issues in the case, such as thé definitions of “possession” and “constructive possession,” and that his replies to the Commonwealth’s attorney improperly bolstered the prosecution’s case.
The trial judge has broad discretion in the area of questioning on voir dire. Generally speaking, questions of jurors in criminal cases should be as varied and elaborated as the circumstances require, the purpose being to obtain a fair and impartial jury whose minds are free and clear from all interest, bias or prejudice which might prevent their finding a just and true verdict. Notwithstanding, questions are not competent when their evident purpose is to have jurors indicate in advance or commit themselves to certain ideas and views upon final submission of the case to them.
Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky.1985).
Recently, in Newcomb v. Commonwealth, 410 S.W.3d 63 (Ky.2013), the Kentucky Supreme Court analyzed two earlier cases that addressed the proper scope and character of voir dire questioning. In one case, Ward v. Commonwealth, 695 S.W.2d 404 (Ky.1985), the defendant’s attorney asked jurors to determine that the testimony of a witness for the Commonwealth was less credible because the witness made a deal with the Commonwealth in exchange for testifying. In the other case, Woodall v. Commonwealth, 63 S.W.3d 104 (Ky.2001), the defendant tried to commit jurors to either accepting or rejecting the view that his low I.Q. was a mitigating factor. The Newcomb Court explained that the questioning in these two cases was improper because it directly implicated the proof that would be put on at trial and asked the jurors to commit in advance to a view that would govern upon final submission of the case. Newcomb, 410 S.W.3d at 86-88. By contrast, the questions in this case did not ask the potential jurors to commit in advance to a particular view of the evidence to be presented; rather, the questions related to the legal definition of possession. King does not allege that the prosecutor’s questions or the trooper’s an*44swers were a misstatement of the law. Moreover, the questions did not ask the potential jurors to commit to a specific opinion regarding the evidence in the case or to apply the definitions to specific evidence in the case.
King’s reliance on Hellard v. Commonwealth, 829 S.W.2d 427 (Ky.App.1992), overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996), is similarly misplaced. A video store owner who testified that Hellard had made a forged rental agreement had been a member of the same jury pool that was presently hearing her case. As a member of the jury pool, the video store owner had numerous opportunities to meet the other members of the pool. The record showed that the owner had previously sat with at least four of the potential jurors in Hel-lard’s case and had agreed with them on a verdict in that case. “[W]hen a potential juror has a ‘close relationship’ to any of the parties, counsel, victims, or witnesses, the court should presume the likelihood of bias on the part of the prospective juror.” Hellard, 829 S.W.2d at 429. The Court concluded that “the possibility of a jury according the testimony of a witness greater weight than it otherwise would have received is just too great when the witness is a member of the same jury pool.” Id. at 431.
Although the fact that Trooper Short was in uniform may have caused his responses to carry more weight with the other members of the venire, his statements at voir dire were not testimonial, nor was he a witness in the upcoming case. Nor is there any evidence that he had a close relationship of the situational type to any members of the jury pool. Id. at 429. If any error did occur in allowing him to answer the prosecutor’s questions, it did not rise to the level of manifest injustice required for reversal under the palpable error standard. RCr 10.26.
King’s fourth and final argument concerns the closing argument made by his co-defendant’s counsel. Adams’s trial counsel stated as follows:
If Sean Adams had been making regular trips down here you would know about that, by this task force. Now, let me remind you, when they were out there at Cottage Hearth Inn, they weren’t looking for Sean Adams. They were expecting Jeff King to drive through. They knew about Jeff King.
King’s counsel objected, on the grounds that the officer had not testified to these facts, and instead had testified that the day of the arrest was the first time he had seen Jeff King.
Although Officer Parker did not know King or his vehicle before the day of the arrest, Detective Johnson testified that they had received information about King that led them to conduct the surveillance of the Cottage Hearth Inn. “A closing argument ... is not a vehicle for introducing evidence, but rather a mere summary device whereby counsel may draw reasonable inferences from the evidence and propound their explanations of the evidence and why the evidence supports their respective theories of the case.” Walker v. Commonwealth, 288 S.W.3d 729, 741 (Ky.2009) (internal quotation marks and citations omitted).
King’s co-defendant’s counsel’s remarks drew reasonable inferences from the testimony of Detective Johnson. The trial court did not abuse its discretion in overruling the objection.
■ The judgment of the Madison Circuit Court is affirmed.
ALL CONCUR.
. The same panel of this Court has also considered the appeal of Adams’s conviction in Appeal No. 2013-CA-001864-MR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284126/ | Gary M. Gaertner, Jr., Judge
Introduction
Mercy Medical Group (Mercy) appeals the summary judgment entered in favor of Dr. Lisa Armbruster (Armbruster) on her breach of contract claim. Mercy argues the trial court erred in its interpretation of the employment contract at issue. We affirm.
Background
Armbruster worked as a physician for Mercy from August 1, 2003, until she voluntarily terminated her employment effective November 30, 2010. Armbruster and Mercy entered a physician services contract (the Contract) governing her employment. Section 4.1 of the Contract governed compensation, and it provided that “[Armbruster] shall be compensated ... in consideration of providing services hereunder and for agreeing to the non-compete restrictions....” Exhibit A of the Contract described Armbruster’s compensation. It referred to Mercy’s productivity compensation model, which was the method Mercy employed for computing a physician’s compensation based on several factors. At the time Armbruster terminated her employment with Mercy, Section III of Exhibit A governed her compensation:
[Armbruster]’s compensation after the third (3rd) year of this Agreement shall be equal to [Armbruster]’s actual performance as determined by the [Mercy] productivity compensation model.
Though the productivity compensation model was not attached to the Contract, the parties agree that a document entitled “Physician Compensation Model” (PCM) contained the compensation method referred to in Exhibit A. The PCM included three components that make up a physician’s salary: base compensation, additional compensation, and incentive compensation. Only the base compensation component is relevant here. Base compensation began with “collections,” a term that is not defined in the PCM. Collections would first be reduced by three percent, and then “practice expenses” would be subtracted from that amount. The difference would be the physician’s base compensation.
*70On July 27, 2011, Armbruster filed a petition against Mercy bringing claims of breach of contract and unjust enrichment. She alleged that Mercy failed to compensate her in accordance with the PCM for revenues she generated during her employment but that Mercy collected after November 30, 2010, the last date of her employment. Essentially, she claimed she never received her portion of “collections” that came from patients she treated, but whose bills were not paid until after her last day of work.
Both parties subsequently filed motions for summary judgment. The trial court granted Armbruster’s motion for summary judgment on her breach of contract claim. The court found that the receipt of collections always trails the rendition of a physician’s services, and that the PCM did not limit the term “collections” to only those monies collected before a physician’s last day of employment. The trial court concluded the Contract unambiguously entitled Armbruster to compensation for services she rendered while employed with Mercy, but for which payment was not received until after November 30, 2010. The trial court found that Mercy owed Armbruster past-due compensation and interest in the amount of $33,995.64 on Arm-bruster’s breach of contract claim. The trial court dismissed Armbruster’s claim of unjust enrichment as moot. This appeal follows.
Standard of Review
Our review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We uphold the summary judgment if (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. We view the facts and supporting affidavits in the light most favorable to the non-movant, and we accord the non-mov-ant the benefit of all reasonable inferences from the record. Id. Contract interpretation is a question of law we review de novo. Topps v. City of Country Club Hills, 272 S.W.3d 409, 416 (Mo.App.E.D.2008).
Discussion
Mercy raises four points on appeal. Points I and II dispute the trial court’s ruling on Armbruster’s breach of contract claim, and Points III and IV discuss unjust enrichment. We address the points related to each claim in turn.
Breach of Contract
Mercy argues in its first two points that the trial court erred in determining the Contract unambiguously entitles Arm-bruster to payment for collections Mercy received after the termination of Armbrus-ter’s employment. Mercy also argues to the extent the trial court found the Contract’s language ambiguous, the court erred in construing the language against Mercy as the drafter. We disagree.
In order to succeed on her claim of breach of contract, Armbruster had to demonstrate four elements: (1) the existence and terms of an agreement; (2) that Armbruster performed pursuant to the agreement; (3) that Mercy breached the agreement; and (4) that Armbruster suffered damages as a result. See Keveney v. Mo. Military Academy, 304 S.W.3d 98, 104 (Mo. banc 2010). Mercy asserts Arm-bruster failed to establish that Mercy breached the PCM,1 because the term “col*71lections” construed with the rest of the Contract unambiguously referred only to collections received during Armbruster’s employment.
“The cardinal rule in the interpretation of a contract is to ascertain the intention of the parties and to give effect to that intention.” Burrus v. HBE Corp., 211 S.W.3d 618, 616-17 (Mo.App.E.D.2006) (quoting J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973)). In determining the intent of the parties, we read the contract as a whole and give the terms their pain, ordinary, and usual meaning. State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 859 (Mo. banc 2006). If the terms are unambiguous, then we glean the parties’ intent solely from the terms of the contract. Id. However, if the terms of the contract are ambiguous, we “may resort to extrinsic evidence to resolve [the] ambiguity.” Burrus, 211 S.W.3d at 617. An ambiguity exists not simply when the parties disagree over the contract’s interpretation, but where the contract is “reasonably susceptible to different constructions.” Id. (internal alterations omitted). “Furthermore, each term of a contract is construed to avoid rendering other terms meaningless.” Schneider, 194 S.W.3d at 860.
First, Section 4.1 of the Contract makes clear that the parties intended Mercy would compensate Armbruster “in consideration of providing services hereunder and for agreement to the non-competition restrictions in [the Contract].” While the parties dispute the meaning of the term “collections,” that term appears in the PCM, which outlines the method for computing the amount of Armbruster’s compensation. There is no dispute that the parties intended in section 4.1 that Mercy would compensate Armbruster for services she provided under the Contract. It is this provision that informs the interpretation of the parties’ agreement as it relates to compensation.
Regarding the PCM, the parties disagree about the meaning of the term “collections,” which is the starting point for Armbruster’s base salary. Armbruster argues, as the trial court found, that the term “collections” is not limited in time, and thus any collections Mercy received at any time from services Armbruster provided should be put into the PCM’s formula and the result remitted to Armbruster. In contrast, Mercy argues that in light of the whole Contract, and in absence of any express term guaranteeing Armbruster payment of any part of collections received after her termination date, it is clear that “collections” , unambiguously signifies only those collections received during the term of Armbruster’s employment.
Mercy highlights two other sections of the Contract to support its argument. First, Section 2.4 states in part, “[Mercy] shall bill for all of the services provided by [Armbruster] in the Practice under this Agreement, and [Mercy] shall retain all revenues received from such billings.” Mercy argues this means that Armbruster had no entitlement to any revenues Mercy collected after Armbruster’s employment ended. Thus, Mercy concludes that “collections” cannot include anything collected after that date.
However, nowhere does the Contract indicate that the terms “revenue” and “collections” are synonymous. Rather, section 2.4 deals with who receives revenue from patients, and the PCM deals with the amount of compensation Mercy owes Arm-*72bruster for her services. Reading them together, it is clear that Mercy in the first place has the right to receive all revenues from patients, and then Mercy is separately obligated to compensate its employees, regardless of the source of funds for that compensation. The fact that the amount of a physician’s compensation under the PCM in part reflects the amount of money collected from his or her patients does not mean Mercy may avoid its obligation to pay physicians based on section 2.4’s statement that Mercy retains all revenues.
Mercy further argues that if we read “collections” as including monies collected after a physician’s termination, section 2.4 is rendered meaningless, because such a reading creates a direct right of the physician to receive revenues. However, as stated above, the use of the term “collections” in the PCM is a way of determining the starting value for calculating the base compensation Mercy must pay to Arm-bruster, after Mercy has collected all of its revenues. Reading it as allowing Arm-bruster to be compensated consistently with the value of the collections received after her term of employment ended does not create a right on the part of Armbrus-ter to directly receive any revenues. Thus, we see nothing in Section 2.4 mandating Mercy’s reading of the term “collections.”
Next, Mercy points to section 6.8 of the Contract, entitled “Obligations Upon Termination”:
Within thirty (30) days after the termination of this Agreement ..., [Mercy] shall pay to [Armbruster] ... the compensation and benefits which are vested and would otherwise be payable to [Armbruster] in accordance with this Agreement and the [Mercy] policies up to and including the effective date of termination. Neither party shall have any further obligation ... except for (i) obligations accruing prior to the date of termination; and (ii) obligations, promises or covenants in this Agreement which are expressly intended to extend beyond the term of this Agreement....
As relevant here, this section expressly limits Mercy’s obligations to (1) payment of compensation vested up to the date of termination, and (2) any obligations accruing prior to the date of termination. Mercy argues that monies received after Arm-bruster’s employment ended fall in neither of these categories, and therefore “collections” cannot be read to create an obligation that is not in this section.
Specifically, Mercy argues that because the PCM’s base salary is grounded in “collections,” the physician’s right to compensation does not vest until payment for services is collected. While this may be a reasonable construction considering only the PCM, we must consider it in light of the Contract’s general promise regarding compensation in section 4.1, which provided that “[Armbruster] shall be compensated ... in consideration of providing services hereunder....” This indicates that once Armbruster performs under the Contract by providing services, Mercy must perform by compensating her for those services. The only reasonable construction is that her right to compensation vests when she provides services. See Brown v. Brown, 848 S.W.2d 551, 552 (Mo.App.E.D.1993) (we will reject unreasonable interpretation “in favor of a probable and reasonable construction”). Withholding payment for services Armbruster rendered, simply because patients or their respective insurance companies did not pay their bills for those services before Armbruster’s final day of work, undercuts the parties’ agreement in section 4.1.
Such a conclusion does not mean that Armbruster’s compensation is unaffected by collections. On the contrary, under the *73PCM, the amount of compensation she receives is dependent in part on the amount of collections Mercy receives, and if Mercy is unable to collect fully, the amount of Armbruster’s compensation will decrease accordingly. However, it is unreasonable to conclude that Armbruster’s right to compensation at all does not arise until Mercy collects money from the patients Armbruster serves.
This being the case, then under section 6.8, compensation to Armbruster for services rendered but for which no payment has been collected is an obligation “accruing prior to the date of termination,” and thus extends beyond the 30-day time limit in that section. Additionally, to place a narrow timeliness limitation on the word “collections” where none exists in the Contract is unreasonable. See Dwyer v. Unit Power. Inc., 965 S.W.2d 301, 307 (Mo.App.E.D.1998). As such, reading all the foregoing sections of the Contract and the PCM together, the unambiguous language requires Mercy to pay Armbruster for services she rendered to the extent Mercy collects for those services, even if Mercy does not receive those collections until after 30 days following Armbruster’s last date of employment.
Thus, Armbruster showed that Mercy breached the terms of the Contract entitling her to compensation for services rendered in the amount determined by the PCM after collections for her services are received by Mercy. The trial court did not err in granting Armbruster’s motion for summary judgment on this claim. Points I and II denied.
Points III and TV
Mercy argues in Points III and IV that the trial court erred in denying Mercy’s motion for summary judgment on Armbruster’s claim of unjust enrichment. The denial of a motion for summary judgment is not a final, appealable order. Cook’s Fabrication & Welding, Inc. v. Mid-Continent Cas. Co., 364 S.W.3d 639, 646 (Mo.App.E.D.2012). Moreover, the trial court did not find in Armbruster’s favor on her unjust enrichment claim, but dismissed it as moot because it was an alternative claim to Arm-bruster’s breach of contract claim. The trial court did not err in doing so. See Lowe v. Hill, 430 S.W.3d 346, 349. (Mo.App.W.D.2014) (“a plaintiff cannot recover under an equitable theory when she has entered into an express contract for the very subject matter for which she seeks to recover”). Points III and IV denied.
Conclusion
The Contract provided that Mercy would compensate Armbruster for her services. Additionally, the collection of payment for a physician’s services often takes place after the physician renders those services. Given this, reading “collections” as corresponding only to the amount collected as of the last date of Armbruster’s employment is unreasonable in that it would leave Armbruster uncompensated for services she performed but for which payment was not yet collected by the last day of her employment. Thus, the trial court did not err in granting Armbruster’s motion for summary judgment on her breach of contract claim. As a result, the trial court also did not err in dismissing her claim of unjust enrichment, which was to recover damages for the same subject matter, as moot. We affirm.
Kurt S. Odenwald, P. J., concurs.
Robert G. Dowd, Jr., J., concurs.
. The parties agree that the PCM is part of the Contract by incorporation and treat it as such. See Dunn Indus. Gr., Inc. v. City of Sugar Creek, 112 S.W.3d 421, 435 n.5 (Mo. banc 2003) (matters incorporated by reference “are as much a part of the contract as if *71they had been set out in the contract in haec verba”). Thus, we also consider it part of the Contract without determining whether the specific language of the Contract was sufficient to incorporate the PCM by reference. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284127/ | ORDER
PER CURIAM
The defendant, Freddie Potts, appeals the judgment and sentence entered by the Circuit Court of the City of St. Louis following his conviction by a jury of one count of first-degree assault, in violation of section 565.050 RSMo. (2000); one count of second-degree assault of a law enforcement officer, in violation of section 565.082 RSMo. (Supp. 2014); and one count of resisting arrest, in violation of section 575.150 RSMo. (Supp. 2014). The trial court sentenced the defendant to five years of imprisonment for each of the assaults, to be served consecutively, and to four years of imprisonment for resisting arrest, to be served concurrently with the sentences for assault. 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/5284128/ | ORDER
PER CURIAM
Abdirahman Mohamed Ali (Movant) appeals the motion court’s judgment denying, without an evidentiary hearing, his motion *75for post-conviction relief pursuant to Rule 24.035.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. ,
The judgment of the trial court is affirmed in accordance with Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284131/ | ORDER
PER CURIAM
Darryl Walton (“Movant”) appeals from the denial of his Rule 29.15 post-conviction relief motion after an evidentiary hearing. After a jury trial, Movant was convicted of two counts of distribution of a controlled substance, in violation of Section 195.211, RSMo (Cum.Supp. 2011); one count of second degree drug trafficking, in violation of Section 195.223; and one count of possession of a controlled substance, in violation of Section 195.202. He was sentenced as a prior and persistent drug offender to twelve years of imprisonment on each count with all sentences to run 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 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/5285110/ | VANMETER, JUDGE,
CONCURRING:
I concur in the result reached because recent decisions of the Kentucky Supreme Court mandate that this case is inappropriate for summary judgment. See, e.g., Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 296-99 (Ky.2015). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284132/ | ORDER
PER CURIAM
Anthony O’Neal (“Movant”) appeals from the motion court’s denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. After a jury trial, Movant was convicted of one count of murder in the second degree, in violation of Section 565.021, RSMo (2000). He was sentenced to a term of life in prison. 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/5284133/ | ROBERT G. DOWD, JR., Judge
This appeal arises from a judgment in a paternity action addressing custody of and support for the minor child of V.B. (“Mother”) and C.J.W. (“Father”). We reverse and remand, in part, and affirm, in part.
Mother and Father were in a relationship for five years, but never married. They have one child, who was born in 2010 while they lived in Oklahoma. It is undisputed that Father is the child’s biological parent. The family moved to Colorado for a year and then to Missouri in February 2012 so Mother could enroll in a program at a local university. She started taking prerequisite classes at a community college, but then had to quit so that she could work. In early 2013, Mother and Father ended their relationship. Mother indicated that she wanted to move back to Colorado with the child, and Father filed this paternity suit to establish his legal rights. Father sought joint legal and physical custody. Mother sought sole physical custody, with visitation to Father only on certain holiday and school breaks. This plan would have allowed her to move back to Colorado, where her family lived and where she claimed she wanted to continue her education.
The trial court considered Mother’s wishes, but found that she had no specific plans for starting school and no job offers upon returning to Colorado other than her former hourly wage retail position. Thus, she would have to live with her parents in Colorado and, if she attended school there, would have to put the child in daycare four days of the week. The trial court noted *85that Mother has already once changed her mind regarding her education after moving across the country and that there are educational and employment opportunities in Missouri for Mother. The trial court also considered that Father did not want the child to move to Colorado because — despite his ability as an airline employee to fly himself and the child on stand-by for free — that distance would severely hamper his relationship with the child. Prior to the paternity action, Father saw the child every day and, during the proceedings, saw him twice a week. He had a stable job and was willing to make changes to his schedule to spend more time with the child. The child also saw his paternal grandparents almost every weekend. The trial court noted that Mother thought Father was addicted to computers and that the child suffered a bee sting while in Father’s care.
The trial court concluded that joint legal and physical custody was in the child’s best interest, after considering Mother’s reasons for wanting sole custody as compared to the damage that her proposed move would do to the child’s relationship with Father. The parenting plan ordered by the court gives each parent approximately equal amounts of time with the child. The trial court also designated Mother as the residential parent for mailing and education purposes provided she resides in the greater St. Louis, Missouri area. If she moves, then Father is automatically designated the resideiitial parent. The trial court found that the presumed child support amount of $372 a month was not unjust or inappropriate and ordered Father to pay that amount to Mother. It also ordered that Father could take advantage of the child income tax exemption in even-numbered years. The trial court denied Mother’s request for Father to pay her attorney fees on the grounds that she did not “make as much” as he did. This appeal follows.
In her first pioint, Mother claims that the trial court’s refusal to award her sole physical custody is not supported by the evidence, is a misapplication of the law and is an abuse of the trial court’s discretion. We disagree.
Mother construes the judgment as “forbidding” her from moving to Colorado. Although much of the trial court’s language focuses on her proposed move and its impact on the child, nothing in the judgment actually prevents Mother from moving. To be certain, any such relocation would be subject to the requirements of Section 452.377 and. would also likely necessitate a motion to modify under Section 452.410.1. The judgment also purports to automatically re-designate the residential parent if Mother moves, which we address in the next point. Thus, while Mother’s relocation has consequences, it is not forbidden. Hence, Mother’s reliance on case law — mostly from other states— for the proposition that a court may not restrict a custodial parent’s residence is misplaced on this point.
Mother does not otherwise challenge the trial court’s conclusion — or any of its findings in support thereof — that joint physical custody was in the best interests of the child. Rather, Mother’s argument primarily revolves around what she believe is in her best interest — namely, moving back to Colorado where she is from and where her family resides. This is not the proper focus of a custody analysis. Our independent review of the record reveals that the trial court’s conclusion that sole custody to Mother was not in the child’s best interest was not erroneous. The trial court properly considered Mother’s uncertain employment and educational plans • for her proposed future in Colorado as compared to the severe impact moving would have on *86the child’s relationship with Father. This is consistent with the policy of this State that both parents have “frequent, continuing and meaningful contact” with the child as long as it is in the child’s best interest. Section 452.375.4.1 Moreover, the trial court’s findings — while not enumerated as such — indicate that it also considered all the factors in Section 452.375.2(l)-(8) that were relevant here.2
The determination of joint physical custody is supported by substantial evidence, is not against the weight of the evidence and does not misstate or misapply the law. See Thorp v. Thorp, 390 S.W.3d 871, 877 (Mo.App.E.D.2013). Giving the trial court the great deference it is due, we cannot say that Mother’ has demonstrated an abuse of the court’s discretion such that we are firmly convinced that the welfare of the child requires an alternative arrangement. See id.
Point I is denied.
In her second point, Mother argues that the trial court erred when it designated Mother as the “residential parent for mailing and educational purposes,” provided that she “resides in the greater St. Louis, Missouri area.” If Mother relocates, then the judgment purports to automatically re-designate Father as the residential parent. We agree this was error.
The designation of a “residential parent” under Section 452.375.5(1)3 for the child’s educational and mailing purposes is considered a sub-issue of custody. Meissner v. Schnettgoecke, 427 S.W.3d 864, 866 (Mo.App.E.D.2014) (citing Clayton v. Sarratt, 387 S.W.3d 439, 445 (Mo.App.W.D.2013)). A change to the residential designation constitutes a change to the terms of joint physical custody, but it is not a change to the custodial arrangement itself. Meissner, 427 S.W.3d at 866.
As for all modifications of the terms relating to custodial arrangements, the standards set forth in Section 452.410 apply to a change in the “residential parent.” See id. Therefore, that designation can only be changed upon a motion to modify and a finding by the trial court that there has been a substantial change in the circumstances of the child or his custodian, which requires a modification to the terms of the judgment in order to serve the best interests of the child. See id. at 867; see *87also Section 452.410.1. Provisions of a dissolution judgment that include an automatic change to a term relating to child custody upon the happening of some event in the future have been held unenforceable because they improperly predetermine what would constitute the significant change in circumstances required for modification. See Burch v. Burch, 805 S.W.2d 841, 343 (Mo.App.E.D.1991); In re Marriage of Dusing, 654 S.W.2d 938, 943 (Mo.App.S.D.1983). The provision designating Mother as the residential parent, but then automatically changing that designation to Father if Mother relocates, improperly predetermines that a change of circumstances warranting modification has occurred.
As noted above, if Mother wants to move, she must follow Section 452.377 and there would likely be a need to request modification under Section 452.410. Those statutes adequately address the consequences of a custodial parent’s relocation. Thus, there is no need to include restrictions on relocation or automatic changes to terms upon relocation in the judgment. We are'reluctant to merely order the restriction and automatic re-designation language stricken from the judgment because we cannot be sure that the trial court would have designated Mother the residential parent without it. Thus, we reverse the portion of the judgment designation of Mother as residential parent and remand for a designation of residential parent that is consistent with this opinion.
Point II is granted.
In her third point, Mother argues that the trial court erred in awarding Father the child income tax exemption in alternating years without first finding that the presumed child support amount calculated on Form 14 was unjust or inappropriate. We agree.
When awarding child support in a paternity or a dissolution action, the trial court is required to follow a two-step procedure. Vaughn v. Bowman, 209 S.W.3d 509, 514 (Mo.App.E.D.2006) (citing Section 452.340, Rule 88.01 and Woolridge v. Wool-ridge, 915 S.W.2d 372, 379 (Mo.App.W.D. 1996)). First, the trial court determines the presumed child support amount in accordance with Form 14, either by accepting the Form 14 calculation of one of the parties or by doing its own. Id. at 514. Then, the trial court determines whether, considering all relevant factors, the presumed child support amount is unjust or inappropriate; such a finding rebuts the presumption that the amount is correct. Id. Here, the trial court found that the amount calculated on Form 14 was not unjust or inappropriate.
The amount calculated on Form 14 is based on certain assumptions, including “that the parent entitled to receive support claims the tax exemption for the children entitled to support.” Form 14, Assumption 7. Therefore, the presumed child support amount is based, in part, on the fact that that the parent receiving support for the child is also getting the benefit of the tax exemption for that child. “Consequently, if the trial court switches the presumed award of the tax exemption from the child support obligee to the obligor, it is, in effect, rebutting the PCSA.” Conrad v. Conrad, 76 S.W.3d 305, 313 (Mo.App.W.D.2002). As a result, in order to award the tax exemption to the parent paying support insteád, the trial court must first find that the presumed amount is unjust or inappropriate. Vaughn, 209 S.W.3d at 514. Here, the trial court did not make that finding, but still awarded the tax exemption to Father in alternating years.
Father relies on In re Marriage of Es-kew for the proposition that no specific finding of “unjust and inappropriate” is *88necessary for the trial court to award the tax exemption to the support-paying parent. 31 S.W.3d 543 (Mo.App.S.D.2000). Noting the complexity of Form 14 and the proliferation of guidance therein and in case law, the court in Eskew refused to “place yet another mine in this legal minefield for trial courts to dodge.” Id. at 550. Instead, it held, the award of a tax exemption should be reviewed for an abuse of discretion. Id. Although we, like the Western District, agree with the Southern District’s observations about the burdens that Form 14 and its complexity puts on trial courts, we think that our reasoning in Vaughn —grounded in the language of the applicable statute, rules and well-established precedential case law — is the sounder approach. See Vendegna v. Vendegna, 125 S.W.3d 911, 914-15 (Mo.App.W.D.2004); Dodge v. Dodge, 398 S.W.3d 49, 55 (Mo.App.W.D.2013) (both declining to follow Eskew). Moreover, concerns about legal burdens “cannot replace what is required by the law.” Jarvis v. Jarvis, 131 S.W.3d 894, 898 (Mo.App.W.D.2004) (rejecting Eskew’s reasoning). Therefore, we also decline to follow Eskew’s approach.
We conclude that the trial court erred as a matter of law in awarding the tax exemption to Father in alternating years without first rebutting the presumed child support amount as unjust and inappropriate. Therefore, the order of child support must be reversed. See Vaughn at 515. On remand, the trial court is directed to recalculate child support consistent with this opinion.
Point III is granted.
In her final point, Mother claims that because of the parties’ disparity of income — Father’s income was twice that of Mother’s — the trial court erred in failing to award her attorney fees. The court in a paternity action “may” order reasonable attorney fees “be paid by the parties in such proportion and at such times as determined by the court.” Section 210.842. The trial court is vested with broad discretion to award attorney fees, and we will not disturb that award absent an abuse of discretion. Scobee ex rel. Roberts v. Scobee, 360 S.W.3d 336, 346-47 (Mo.App.W.D.2012). Although disparity of income is one relevant factor for the trial court to consider, the court has discretion to consider other factors, including the parties’ conduct during the proceedings and the merits of the case. Id. The trial court did not abuse its discretion by failing to award Mother her attorney fees in this case simply because Father made more money than she did. Mother has failed to overcome the presumption that the trial court’s decision not to award attorney fees was correct.
Point IV is denied.
The designation of the residential parent and the child support award are reversed. The case is remanded for re-designation of the residential parent and reconsideration of child support consistent with this opinion. In all other respects, the judgment is affirmed.
Kurt S. Odenwald, P.J. and Gary M. Gaertner, Jr., J., concur.
. Section 452.375 governs custody determinations in paternity actions, and a parenting plan must be ordered under section 452.310. See Section 210.853.
. Mother admits that she did not challenge the lack of statutory findings in the trial court, and she cannot do so now. The record reveals that there was evidence of the following relevant factors supporting the trial court's custody determination: the parents’ wishes, the child’s need for a “frequent, continuing and meaningful” relationship with both parents, the willingness of the parents to perform their parental functions, the interaction of the child with the parents and others, which parent was more likely to allow "frequent, continuing and meaningful” contact with the other and the parents’ desires to relocate the child. See Section 452.375.2(l)-(4), (7). There was no evidence relating to the child's adjustment, his wishes or the physical or mental health of anyone involved. See Section 452.375.2(5)-(6), (8).
.The legislature recognized that an award of joint physical custody leaves unresolved the child’s address for purposes of education and mailing and thus requires the trial court in those awards to designate a "residential parent” for those purposes. Although courts have used the terms interchangeably, the designation of "residential parent” is not the same as a declaration of a child's “principal residence,” which is usually unnecessary in a joint custody situation because both parents are custodial and both of their homes are considered the child’s principal residence. See Gaudreau v. Barnes, 429 S.W.3d 429, 432-33 (Mo.App.E.D.2014); see also Hall v. Utley, 443 S.W.3d 696, 707-08 (Mo.App.W.D.2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284134/ | ORDER
PER Curiam
The Missouri Department of Corrections (Employer) appeals the decision of the Labor & Industrial Relations Commission awarding unemployment benefits to Louise Brewer after determining that she was not discharged for misconduct connected with work.
We have reviewed the briefs of the parties and the record on appeal and conclude that the Commission’s decision is supported by competent and substantial evidence. An extended opinion would have *95no 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 decision of the Commission pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284136/ | OPINION
J. STEVEN STAFFORD, J„
delivered the opinion of the Court,
in which FRANK G. CLEMENT, JR., P.J., M.S., and DONALD E. PARISH, SP. J., joined.
Defendant appeals the trial court’s order of voluntary dismissal of Plaintiffs’ complaint. Defendant argues that Plaintiffs were not entitled to a voluntary dismissal because a motion for summary judgment was filed prior to the entry of the order on the nonsuit. We hold that a motion for summary judgment filed after a written notice of nonsuit has been filed does not preclude the plaintiffs right to take a voluntary dismissal pursuant to Rule 41 of the Tennessee Rules of Civil Procedure. We also conclude that the Defendant is .not entitled to sanctions pursuant to Rule 11 of the Tennessee Rules of Civil Procedure. Affirmed and Remanded.
Background
Plaintiff/Appellee DeShon Ewan was involved in an automobile accident in Collier-ville, Tennessee with Jason Whitby, an employee of M & W Trees,1 owned by John Mosely and Sharon Mosely (collectively, the “original defendants”). As a result of the accident, Ms. Ewan suffered severe injuries.
On March 3, 2006, Ms. Ewan and her husband (together, “the Ewans”) filed a lawsuit in the Circuit Court of Shelby County, Tennessee (“the Circuit Court personal injury action”), t'o recover compensatory damages and punitive damages against the original defendants arising from the accident. At the time of the accident, the vehicle being driven by Jason Whitby was covered by a policy of insurance issued by Hartford Insurance Company (“Hartford Insurance”). Hartford Insurance hired Defendant/Appellant Jonathan T. Martin (“Mr.Martin”), and his firm, Defendant The Hardison Law Firm (“The Hardison Firm”), ,as counsel for the original defendants. During the pendency of the Circuit Court personal injury action, Mr. Martin allegedly made numerous written representations to the Ewans’ attorneys that there was only one applicable insurance policy, a single limit automobile policy, insuring Jason Whitby and the other original defendants in the amount of $500,000. Around June 9, 2006, the Ewans entered into a Release and Settlement agreement with the original defendants, allegedly relying upon material representations that there was no other insurance covering the original defendants except for the one $500,000 policy-
On March 20, 2008, a copy of the Business Insurance Policy (“Business Policy”), which was issued by Hartford Casualty Insurance, was first produced to the Ewans’ counsel. The Ewans contend the policy insured the original defendants’ with limits of $1,000,000.00. The Ewans filed suit in Chancery Court on March 20, 2009, against The Hardison Firm and Mr. Martin (collectively, “Defendants”), seeking a declaratory judgment and rescission of their Settlement Agreement and Release. On May 4, 2009, Defendants filed their first Motion for Sanctions pursuant to Rule 11 of the Tennessee Rules of Civil Procedure. On May 8, 2009, the Defendants also filed a Motion for Summary Judgment asserting that the they were not *128a party to either the settlement or the releases.
The Ewans filed an Amended Complaint on May 21, 2009, adding claims for compensatory and punitive damages on grounds of fraud, misrepresentation, and deceit, allegedly arising from Defendants’ failure to disclose the Business Policy prior to the settlement. Defendants filed a Motion to Dismiss, or in the Alternative, a Motion for Summary Judgment on October 30, 2009, arguing that the language of the Release and Settlement Agreements released all claims against them despite the Ewans’ claim of fraud in the inducement. On the same day, Defendants filed a memorandum in support of their earlier request for sanctions. The trial court denied Defendants’ first request for sanctions on March 1, 2011. The court ruled that the Ewans’ counsel had reasonable cause under the facts to file such pleadings to recover for damages for injuries suffered by the Ewans. The denial of the Defendants’ first request for sanctions is not at issue in this appeal.
On March 2, 2011, however, the trial court granted the Defendants’ Motion to Dismiss or in the Alternative Motion for Summary Judgment, on the basis of the Release and Settlement Agreements. The trial court ruled that the language of the releases was “strong” and that it, therefore, released any and all claims that might have been raised by the Ewans. The trial court declined to consider any evidence of extrinsic fraud. The Ewans appealed and this Court held that the trial court erred in failing to consider any evidence of extrinsic fraud. See Ewan v. Hardison Law Firm, No. W2011-00763-COA-R3-CV, 2012 WL 1269148 (Tenn.Ct.App. April 16, 2012). The cause was then remanded back to the trial court for further proceedings. Another hearing was held on the Defendants’ Summary Judgment motion on remand, in which hearing the trial court denied the motion. An order denying the Defendant’s Motion for Summary Judgment was entered on October 23, 2012. As of this date, no summary judgment motions or requests for sanctions were pending in the trial court.
In the meantime, Hartford Insurance filed a declaratory judgment action in federal court, seeking a determination of whether the Business Policy at issue provided coverage for the damages sustained in the underlying accident (“the federal declaratory judgment proceeding”). The Chancery Court action was stayed pending resolution of the federal action. On September 4, 2012, the federal district court held that the Business Policy does not provide coverage for the underlying accident, and noted that any claim of fraud based upon failure to disclose that policy would be moot. The Ewans appealed the district court’s ruling to United States Court of Appeals for the Sixth Circuit. The Sixth Circuit affirmed the judgment of the district court on August 28, 2013. See Hartford Cas. Ins. Co. v. Ewan, 536 Fed. Appx. 553 (6th Cir.2013), cert. denied — U.S. -, 134 S.Ct. 1307, 188 L.Ed.2d 303 (2014).
On September 5, 2013, the Ewans filed a written notice of voluntary nonsuit of their Chancery Court action. Before an order of nonsuit was entered, on September 12, 2013, the Defendants filed a Renewed Motion for Summary Judgment. On November 8, 2013, the Defendants filed a response opposing the nonsuit, arguing that because their motion for summary judgment was filed prior to the entry of the order on the nonsuit, the Ewans were no longer entitled to a nonsuit. In this pleading, the Defendants also requested sanctions under Rule 11. On November 14, 2013, the trial court held a hearing on the issue of whether the Ewans were entitled *129to a nonsuit. The trial court orally ruled that the Ewans were entitled to nonsuit their case. In its oral ruling, the trial court explained that, due to the nonsuit, it believed there was no need to consider the requests filed by Defendants after the notice of nonsuit was filed by the Ewans, impliedly denying the motion for summary judgment and the request for sanctions. The trial court entered a written order of voluntary dismissal without prejudice on November 14, 2013. Mr. Martin appealed.2
Issues Presented
Mr. Martin raises the following issues on appeal, which are taken from his brief:
1. Whether the trial court erred in granting an Order - of Voluntary Nonsuit and Dismissal Without Prejudice when a Motion for Summary Judgment was filed before the Order of Voluntary Nonsuit and Dismissal was entered, but after the notice of Voluntary Nonsuit and Dismissal was filed.
2. Whether the trial court erred in refusing to award sanctions to the Defendants.
In the posture of appellees, the Ewans also raise the following issue, which is taken from their brief: “Whether Mr. Martin’s appeal is frivolous and whether the Ewans should be awarded their attorney’s fees and costs.”
Analysis
The question- in this case is whether a summary judgment motion filed after a plaintiff has given notice that it will take a nonsuit, but before the entry of the order on the nonsuit, bars the plaintiffs right to voluntarily dismiss the matter without prejudice. We conclude that only a summary judgment motion filed before the plaintiff has filed a written notice of non-suit, or provided an oral notice of dismissal in open court during a trial of a cause, will deprive the plaintiff of the right to voluntarily dismiss his or her lawsuit without prejudice.
In Tennessee, the plaintiff has a right to voluntarily dismiss3 his or her lawsuit under certain circumstances, which are outlined in Rule 41.01 of the Tennessee Rules of Civil Procedure:
(1) Subject to the provisions of Rule 28.05, Rule 23.06, or Rule 66 or of any statute,4 and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause and serving a copy of the notice upon all parties, and if a party has not already been served with a summons and complaint, the plaintiff shall also serve a copy of the complaint on that party; or by an oral notice of dismissal made in open court during the trial of a cause;....
[[Image here]]
(3) A voluntary nonsuit to dismiss an action without prejudice must be followed by an order of voluntary dismissal signed by the court and entered "by the clerk. The date of entry of the *130order will govern the running of pertinent time periods.
Tenn. R. Civ. P. 41.01(1) (emphasis added). Consequently, “[a] plaintiffs right to voluntary dismissal without prejudice is subject to the exceptions expressly stated in Rule 41.01(1) as well as to an implied exception which prohibits nonsuit when it would deprive the defendant of some vested right.” Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn.2004) (footnote omitted) (citing Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn.1975)). In addition,
A plaintiff is further limited to taking no more than two nonsuits without prejudice, Tenn. R. Civ. P. 41.01(2), and non-suit cannot be taken more than one year after an initial dismissal. As long as none of these exceptions and limitations serve to restrict dismissal, Rule 41.01(1) affords a plaintiff the free and unrestricted right to voluntary dismissal without prejudice before the jury retires. Rickets v. Sexton, 538 S.W.2d 293, 294 (Tenn.1976).
Lacy, 152 S.W.3d at 484. Thus, “in most situations a voluntary non-suit may be taken as a matter of right. However, such is not the case when a motion for summary judgment is pending.” Clevenger v. Baptist Health Systems, 974 S.W.2d 699, 700 (Tenn.Ct.App.1997) (emphasis added). The Tennessee Supreme Court has also held that “under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwith-. standing the pendency of a motion for summary judgment.” Stewart v. University of Tennessee, 519 S.W.2d 591, 593 (Tenn.1974).
In this case, the Ewans undisput-edly filed a written notice of nonsuit on September 5, 2013. There is no dispute that this notice was properly filed and served pursuant to Rule 41.01(1). A week later, on September 12, 2013, the Defendants filed a Motion for Summary Judgment. The Defendants later requested sanctions. Because the trial court had not yet entered an order on the Ewans’ notice of nonsuit, the Defendants argued that the above exception applied to bar the Ewans from taking a voluntary dismissal.
In contrast, the Ewáns assert that pursuant to Rule 41.01, they are entitled to a nonsuit so long as the written notice of nonsuit is filed prior to the filing of a motion for summary judgment. To support this argument, the Ewans rely on the Tennessee Supreme Court’s 1976 decision in Rickets v. Sexton, 533 S.W.2d 293, 294 (Tenn.1976). In Rickets, the plaintiffs filed a “motion for voluntary dismissal” one day prior to the scheduled trial. The trial court “disallowed” the motion, finding that it would be prejudicial to one of the defendants. The Tennessee Supreme Court reversed, holding that the ability to take a nonsuit is a “[f]ree and unrestricted” right belonging to the plaintiff. Id. at 294. Further, the Tennessee Supreme Court clarified that the right to take a nonsuit is not dependent on any action of the trial court:
(1) The rule specifies that a plaintiff ‘shall have the right to take a voluntary nonsuit or to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause’. This portion of 'the rule is not dependent upon the determination of the trial judge. The lawyer for the plaintiff is the sole judge of the matter and the trial judge has no control over it. It is not necessary that he approve the action of plaintiffs counsel by signing any order; nor may he nullify the rules by an order ‘disallowing’ the non-suit. All that is required to dismiss prior to the trial, in the absence of the existence of any of the exceptions *131above noted, is the filing of a written notice of dismissal.
Id. (emphasis added). Thus, pursuant to Rickets, the operative act is when the plaintiff announces or files the notice of nonsuit, not when the court acts upon it. Action on the part of the trial judge is simply not required under Rickets for the plaintiff to “take” a nonsuit. See Black’s Law Dictionary 1590 (9th ed.2009) (defining “take,” as, inter alia, “[t]o claim one’s right under”).
Mr. Martin does not cite Rickets in his appellate brief. Instead, Mr. Martin points out that the rule governing the plaintiffs right to take a nonsuit was altered in 2004 to require the trial court to enter an order on the nonsuit. See Tenn. R. Civ. P. 41.01(3). Based upon this change, Mr. Martin argues that a summary judgment motion filed prior to the entry of an order on the nonsuit deprives the plaintiff of the right to take the non-suit. Inferentially, we assume that Mr. Martin argues that the holding in Rickets was altered by the 2004 amendment. Accordingly, we turn to consider that issue.
As previously discussed, Rule 41.01 currently provides that:
A voluntary nonsuit to dismiss an action without prejudice must be followed by an order of voluntary dismissal signed by the court and entered by the clerk. The date of entry of the order will govern the running of pertinent time periods.
Tenn. R. Civ. P. 41.01(3). At the time the Rickets decision was decided, the nonsuit rule contained no requirement that a written order be entered on the nonsuit. Indeed, as discussed above, the Rickets decision seemed to imply that no order was required. The question of whether an order was required, however, was not directly at issue in Rickets.
The Tennessee Supreme Court was later faced with the very question alluded to in Rickets. In Green v. Moore, 101 S.W.3d 415 (Tenn.2003), the Tennessee Supreme Court considered the question of what event in the trial court commenced the thirty-day period for filing a notice of appeal — the written notice of a nonsuit filed by the plaintiff or the order on the voluntary dismissal. In Green, the trial court granted motions for summary judgment dismissing all of the plaintiffs claims. In response, on February 5, 2002, the defendants filed a motion to voluntarily dismiss their counter-claim pursuant to Rule 41.01, the only remaining claim in the lawsuit. Id. at 417. The trial court later entered an order on March 13, 2002, “which confirmed that ‘as of February 5, 200[2], all claims of all parties in this action have been adjudicated and this action has therefore been concluded.’” Id. (quoting the trial court order). The plaintiff filed her notice of appeal within thirty days of the trial court’s March 13, 2002 order, but beyond thirty days from the filing of the notice of the voluntary dismissal.
On appeal, the defendants argued that the appellate court lacked jurisdiction because the notice of appeal was untimely, relying on the Rickets Court’s language that a trial court need not sign an order of voluntary dismissal. ■ Id. at 418 (citing Rickets, 533 S.W.2d at 294) (“It is not necessary that he approve the action of plaintiffs counsel by signing any order[.]”). In contrast, the plaintiff argued that the notice of appeal was timely where it was filed within thirty days of the entry of the order on the nonsuit, citing Evans v. Perkey, 647 S.W.2d 636 (Tenn.Ct.App.1982), which held that the Rickets decision concerned only the plaintiffs right to take a nonsuit, rather than when the thirty-day appeals period commenced. According to the Evans Court:
*132At first blush the reading of the third sentence quoted [i.e., that nothing more than written notice of dismissal is required to voluntarily end a case] above would indicate that nothing more than the written notice is necessary to finalize the case. However, this statement of the court is dicta and not necessarily pertinent to the Rickets case or to the case at bar.
Id. at 640. Regardless of the plaintiffs right to take a nonsuit, the Evans Court held that a case was not final, and appeal-able, until a written order is entered disposing of all the claims therein. Id. at 641.
The Tennessee Supreme Court in Green agreed with the Evans Court’s interpretation of Rickets and held that an order on a nonsuit was required for purposes of determining when the thirty-day appeal period commenced. The Court, however, did not overturn the decision in Rickets, instead citing with approval the following language from Evans:
In Rickets the [C]ourt was concerned with the right of a party to take a voluntary nonsuit and the lack of the power of the court to deprive him of that right. We construe the Rickets [C]ourt to be saying that the plaintiff in that case had done all that was required to be done when he gave written notice of his intention to take a nonsuit. It was not necessary for the court to grant permission or enter an order permitting it to be done.
Green, 101 S.W.3d at 419 (citing Evans, 647 S.W.2d at 640-41). As the Green Court explained:
Rickets stands for the proposition that, except in very limited circumstances, a party can take a voluntary nonsuit without permission from the trial court. If filing a notice of voluntary nonsuit was all that was required to conclude an action, the Court of Appeals could then receive the appeal without the trial court ever entering an order or assessing costs. Such a holding would be contrary to common sense and our own precedent. As the Court of Appeals correctly noted in Evans, a “[c]ourt speaks only through its written judgments, duly entered upon its minutes.” Evans, 647 S.W.2d at 641; see also Ivey v. State, 210 Tenn. 422, 360 S.W.2d 1, 2 (1962); Lewis ex rel. Lewis v. Brooks, 66 S.W.3d 883, 886 (Tenn.Ct.App.2001); City of Newport v. Masengill Auction Co., 19 S.W.3d 789, 795 (Tenn.Ct.App.1999).
Green, 101 S.W.3d at 419-20. Thus, the Tennessee Supreme Court held that a written order of dismissal was required in order to facilitate the administrative tasks of assessing costs and commencing the thirty-day appeal period.
In apparent response to the 2003 decision in Green, Rule 41.01 was amended in 2004 to expressly require a written order on the nonsuit, which order would commence the thirty day appeal period. See Tenn. R. Civ. P. 41.01(3);1 Tenn. Cir. Ct. Prac. § 23:1 (2013) (indicating that the 2004 amendment was in response to the decision in Green). The language allowing a plaintiff to “take” a nonsuit at' any time when a motion for summary judgment is not pending, or another exception was present, was not altered by the 2004 amendment.
Mr. Martin argues, however, that the addition of the order requirement in Rule 41.01(3) altered the question of when the nonsuit is “taken.” According to Mr. Martin, because the nonsuit can only become effective upon the entry of a written order, a motion for summary judgment filed prior to the entry of the order on the nonsuit forestalls the plaintiffs right to take a nonsuit. Specifically, Mr. Martin cites this Court’s Opinion in Cunningham v. Cunningham, No. W2006-02685-COA-R3-CV, *1332008 WL 2521425 (Tenn.Ct.App. June 25, 2008), which states:
A judgment must be reduced to writing in order to be valid. It is inchoate, and has no force whatever, until it has been reduced to writing and entered on the minutes of the court, and is completely within the power of the judge or Chancellor. A judge may modify, reverse, or make any other change in his judgment that he may deem proper, until it is entered on the minutes, and he may then change, modify, vacate-or amend it during that term, unless the term continues longer than thirty days after the entry of the judgment, and then until the end of the thirty days.
Id. at *5 (quoting Broadway Motor Co., Inc. v. Fire Insurance Co., 12 Tenn.App. 278, 280 (1930)). Further, Mr. Martin notes that “when a plaintiff seeks to re-file an action after nonsuiting, the date of the refil[ ]ing is determined from the date of the final order, not the date of the notice.” See, e.g., Green, 101 S.W.3d at 420.
We disagree with Mr. Martin’s interpretation of the Rule 41. 01 and conclude that the 2004 amendment did not alter the central holding in Rickets that the act of “taking” a nonsuit is not dependent on any action of the trial court. From our research, the Rickets Opinion’s holding that the right to take a nonsuit is “not dependent upon the determination of the trial judge,” has not been overruled by any Court. See Evans, 647 S.W.2d at 640-41 (agreeing with Rickets that in order to take a nonsuit, “the plaintiff ... ha[s] done all that [i]s required to be done [by giving] written notice of his intention to take a nonsuit”); see also Green, 101 S.W.3d at 419-20 (agreeing with Evans’ interpretation of Rickets). Indeed, the Tennessee Supreme Court indicated that Rule 41.01(3)’s requirement of a written order dismissing the case does not alter the holding in Rickets that “[t]he lawyer for the plaintiff is the sole judge of the matter and the trial court has no control over it.” Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn.2004) (citing Rickets, 533 S.W.2d at 294). Instead, the Tennessee Supreme Court held that the requirement of an order on the voluntary dismissal serves only “ministerial and procedural purposes.” Lacy v. Cox, 152 S.W.3d at 484. Further, the Advisory Committee comment to the 2004 amendment supports this interpretation, noting that the amendment “mandates a court order after the nonsuit.” Tenn. R. Civ. P. 41.01(3), advisory comm, cmt to the 2004 amend. Thus, the nonsuit actually occurs prior to the entry of the order.
Although not addressing this narrow issue, we also find support for our interpretation of Rule 41.01 in other Opinions by this Court. For example, in Lewis ex rel. Lewis v. Brooks, 66 S.W.3d 883 (Tenn.Ct.App.2001), this Court affirmed the trial court’s refusal to allow Plaintiff to nonsuit her case where “Defendants’ motion for summary judgment was pending when [pjlaintiff attempted to take a nonsuit.” Thus, the Lewis Court expressly indicated that the summary judgment motion must not be pending prior to the plaintiff seeking a nonsuit, rather than when the trial court enters an order on that request.
This Court’s interpretation of Rule 41.01 has not altered due to the 2004 amendment. Indeed, very recently in Davis v. Ibach, No. W2013-02514-COA-R3-CV, 2014 WL 3368847 (Tenn.Ct.App. July 9, 2014), this Court affirmed the plaintiffs free and unrestricted right to take a non-suit, without prior court permission, when none of the exceptions in Rule 41.01 are present. In Davis, the plaintiff filed a written notice of nonsuit after learning that its certificate of good faith may not have complied with the Tennessee Medical Malpractice Act (“TMMA”). Id. at * 1. *134The case was then dismissed without prejudice. On appeal, the defendants argued that the TMMA required that the case be dismissed with prejudice pursuant to the TMMA, which requires dismissal with prejudice for non-compliance with the good faith certifícate requirement. See Tenn. Code Ann. § 29-26-122(c). This Court disagreed and held that unless an exception noted in Rule 41.01 existed, Rule 41.01(1) provides for the “ ‘free and unrestricted’ right to dismiss an action without prejudice.” Davis, 2014 WL 3368847, at *4 (quoting Robles v. Vanderbilt University Medical Center, M2010-01771-COA-R3-CV, 2011 WL 1532069, at *3 (Tenn.Ct.App. Apr. 19, 2011)). To support its decision, the Court considered the distinction between the federal nonsuit rule and Rule 41.01:
Notably, the federal counterpart to Rule 41.01 — Federal Rule of Civil Procedure 41(a)(2) — states that a party who wishes to voluntarily dismiss an action against a party who has filed an answer or motion for summary judgment must seek an order of the court or a stipulation. The court may grant the request “on terms that the court considers proper.” Fed. R.Civ.P. 41(a)(2). “The decision whether to dismiss a complaint under Rule 41(a)(2) lies within the sound discretion of the court”... .This is different from Tennessee Rule 41.01, which provides that a plaintiff has “right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause,” with certain exceptions. Tenn. R. Civ. P. 41.01
Davis, 2014 WL 3368847, at *3, n. 9 (citation omitted) (quoting Duncan v. Medical Education Assistance Corp., No. 2:12-CV-182, 2013 WL 1249574, at *2 (E.D.Tenn. Mar. 27, 2013)). Thus, the Davis Court emphasized that unlike in federal court, the right to take a nonsuit pursuant to Tennessee law is not dependent on any action of the trial court, even after the 2004 amendment to Rule 41.01.
In another post-2004 case, Peters v. Lamb, No. E2008-00997-COA-R3-CV, 2009 WL 1470753 (Tenn.Ct.App. May 27, 2009), this Court considered the timing of the filing of a motion for summary judgment and the filing of a notice of nonsuit to determine whether the plaintiff was entitled to a nonsuit. In its decision, the Court focused not on the filing of any order granting a nonsuit (there was none), but instead on the timing of the filing of the notice of nonsuit. The question on appeal was whether the plaintiffs actually complied with Rule 41.01 in their attempt to give “written notice of dismissal.” Id. at *3. According to the trial court:
Plaintiffs’ attorney placed a combined Motion and Order of Voluntary Non-suit in the undersigned’s inbox/outbox in the Law Court Clerk’s office for Johnson City on either April 25 or 26, 2007. The combined Motion and Order had an undated, unsigned certificate of service to [defendants’] attorney.
Id. at *1. The plaintiffs, however, did not serve a copy of the notice on the opposing party. The defendants filed a motion for summary judgment on April 27, 2007. Id. The Court concluded that the notice of nonsuit was not properly filed on either April 26 or April 27, and therefore, the pending summary judgment motion deprived the plaintiffs of the right to take a nonsuit:
The issue presented is easily resolved. Plaintiffs, despite their apparent intention to take a voluntary nonsuit against [defendants, failed to comply with the filing and service requirements for doing so. Plaintiffs present no authority to support their position that lodging the motion and order in the manner de*135scribed was the “equivalent” of filing as required under Rule 41.01, and we find none.... This assertion is unsupported by the record. The record simply does not document precisely how the motion and order came to be in the trial judge’s inbox. The trial court acknowledged only that it was there when he returned to his office on April 27th.
In fact, not only did Plaintiffs fail to file the motion and order for nonsuit before Defendants filed their motion for summary judgment, but it appears that these documents, in fact, had not even been filed as of the date of oral argument. ...
Id. at * 3-4. If the plaintiffs right to take a nonsuit was forestalled by the filing of a summary judgment motion prior to the entry of the order on the nonsuit pursuant to Rule 41.01(3), there would have been no need to consider the timing of the filing of the notice of nonsuit; under that reading of Rule 41.01, there could have been no dispute that the summary judgment motion was pending at the time the nonsuit order was entered. However, the Court clearly focused on the date of the filing of the notice of nonsuit, rather than the entry of an order signed by the trial court, to determine whether the plaintiff was entitled to a nonsuit as of right. This is the operative date in this case as well.
Based on the foregoing, we conclude that in order to divest a plaintiff of the right to take a voluntary dismissal pursuant to Rule 41.01, a motion for summary judgment must be filed prior to the date that the plaintiff files his or her notice of voluntary dismissal. Here, the Defendants filed their motion for summary judgment after the Ewans filed their notice of nonsuit. Thus, there was no pending motion for summary judgment at the time the nonsuit was taken by the Ewans that would prevent the Ewans from exercising their right to nonsuit their case.
Notwithstanding the lack of a pending summary judgment motion, Mr. Martin argues that the Ewans’ nonsuit is improper because to allow the voluntary dismissal would result in prejudice to the Defendants. As previously discussed, in addition to the express exceptions noted in Rule 41.01, a plaintiffs right to nonsuit is also subject to an implied exception, “which prohibits nonsuit when it would deprive the defendant of some vested right.” Lacy, 152 S.W.3d at 484. Mr. Martin appears to argue that the nonsuit is improper for three reasons: (1) that the Ewans are not entitled to a nonsuit “as of right” because the case was “submitted to the trial court for determination on the merits on numerous occasions ...”; (2) that allowing a nonsuit after the multitude of proceedings on this issue (i.e., the underlying Circuit Court personal injury action, the federal declaratory judgment proceeding, and the current Chancery Court proceeding) would result in prejudice to the Defendants; and (3) that allowing the nonsuit when the Defendants can assert a valid defense to the claim would result in prejudice to the Defendants.
To support these arguments, Mr. Martin relies on the Tennessee Court of Appeals Opinion in Hamilton v. Cook, No. 02A01-9712-CV-00324, 1998 WL 704528 (Tenn.Ct.App. Oct. 12, 1998). In Hamilton, the plaintiffs filed a notice of voluntary dismissal after the trial court had orally granted a motion to dismiss the complaint. Id. at *2-3. Thereafter, the trial court refused to allow the plaintiffs to dismiss the case without prejudice and entered an order dismissing the case -with prejudice pursuant to its earlier oral ruling. Id. at *3. This Court affirmed, holding that the because the case had been submitted to the trial court on the merits prior to the *136taking of the nonsuit, the plaintiffs were not entitled to the nonsuit as a matter of right. Id. at *4. The plaintiffs argued, however, that the trial court could have exercised its discretion to allow the plaintiffs to take a nonsuit notwithstanding the oral ruling granting the motion to dismiss. The Court of Appeals concluded that the trial court did not abuse its discretion, concluding that the defendants would be prejudiced if the plaintiffs were permitted to take a nonsuit because the defendants had shown valid defenses to the plaintiffs’ claims. Id. at *5.
We begin with Mr. Martin’s assertion regarding the submission of the case to the trial court for a determination on the merits. As Mr. Martin points out, this Court has held that “in non-jury cases, the plaintiff has the right to take a voluntary dismissal ‘until the matter has been finally submitted to the trial judge for decision.’ ” Weedman v. Searcy, 781 S.W.2d 855, 857 (Tenn.1989). Once the case has been finally submitted to the trial court for a determination on the merits, however, the plaintiff can no longer take a voluntary dismissal as a matter of right. Id. The Hamilton case is easily distinguishable from the case at bar. The issue in Hamilton was whether the trial court should have allowed a nonsuit notwithstanding the fact that the case had already been submitted to the trial court on the merits. Hamilton, 1998 WL 704528, at *3-*5. While Mr. Martin argues that this case had been submitted to the trial court on the merits, his assertion is not correct. Here, the trial court had considered two summary judgment motions, one of which was granted and then overturned by this Court, see Ewan v. Hardison Law Firm, No. W2011-00768-COA-R3-CV, 2012 WL 1269148 (Tenn.Ct.App. April 16, 2012), and one of which was denied. At the time the Ewans filed their notice of voluntary dismissal, there had been no effort to submit the case to the trial court through the filing of a motion to dismiss or a motion for summary judgment, much less an oral ruling by the trial court granting dismissal. Thus, at the time the Ewans filed their notice of voluntary dismissal, the case had not been submitted to the trial court on the merits.
The procedural posture in Hamilton is also important to the determination of Mr. Martin’s remaining arguments concerning the prejudice to the Defendants. In Hamilton, because the case had been submitted to the trial court on the merits, the plaintiffs no longer had the “right” to take a nonsuit. Hamilton, 1998 WL 704528, at *4 (“Once the case finally has been submitted to the trial court for a determination on the merits, however, the plaintiff no longer can take a voluntary dismissal as a matter of right.”). Thus, the question of whether the trial court should have, nevertheless, allowed a non-suit was highly discretionary. As the Hamilton Court noted: “[Wjhere the right to take a voluntary dismissal is in the discretion of the trial court, the general rule is that the trial court should grant a voluntary dismissal, ‘absent some showing of plain legal prejudice to the defendant.’ ” Id. at *5 (emphasis added) (quoting Oliver v. Hydro-Vac Servs. Inc., 873 S.W.2d 694, 696 (Tenn.Ct.App.1993) (quoting Price v. Boyle Inv. Co., 1990 WL 60659, at *3 (Tenn.Ct.App. May 11, 1990), perm. app. denied (Tenn. June 11, 1990))). The case-at-bar is different from Hamilton and the cases it cites: here there was no pending summary judgment motion and the case had not been submitted to the trial court for a determination on the merits. See Oliver, 873 S.W.2d at 696 (involving a nonsuit taken while a summary judgment motion was pending); Price, 1990 WL 60659, at *3 (same). Accordingly, the rule in Hamilton that a nonsuit should not *137be granted if it would cause “plain legal prejudice to the defendant” is simply not applicable to the case-at-bar. Instead, the higher standard that the nonsuit must “deprive the defendant of some vested right,” is applicable in this situation. Lacy, 152 S.W.3d at 484. Nowhere in Mr. Martin’s appellate brief does he assert that the Ewans’ nonsuit deprives him of any vested right.
Further, the Court in Hamilton relies heavily on federal cases to support its decision that prejudice to the defendants may deprive the plaintiff of the ability to take a nonsuit, explaining:
In construing the federal counterpart to rule 41.01, however, one court has found sufficient prejudice to exist where the defendant successfully has demonstrated a valid defense, such as the statute of limitations, to the plaintiffs claims. See Metropolitan Fed. Bank v. W.R. Grace & Co., 999 F.2d 1257, 1262-63 (8th Cir. 1993). Another court has found sufficient prejudice to exist where the plaintiff moves for a voluntary dismissal after participating in a hearing where the trial judge expresses an adverse opinion on the merits of the plaintiffs claim. See Piedmont Interstate Fair Ass’n v. Bean, 209 F.2d 942, 947-48 (4th Cir.1954).
Hamilton, 1998 WL 704528, at *5. However, as previously discussed, the federal counterpart to Rule 41.01 injects considerably more judicial discretion into the plaintiffs ability to take a nonsuit. See Fed. R.Civ.P. 41(a)(2);5 see also Davis, 2014 WL 3368847, at *3, n. 9 (noting the distinctions between Rule 41.01 and the federal counterpart). While decisions of federal courts construing the Federal Rules of Civil Procedure may be “highly persuasive,” they can only offer real guidance when the Tennessee rule at issue is “substantially similar” to the federal counterpart Knapp v. Holiday Inns, Inc., 682 S.W.2d 936, 940 n. 4 (Tenn.Ct.App.1984). Because the Tennessee rule and the federal are not substantially similar, Rule 41 of the Federal Rules of Civil Procedure offers little guidance as to the proper interpretation of Rule 41.01 in this limited issue. Finally, the rule in Hamilton, that a valid defense may be sufficient to prevent a plaintiff from taking a nonsuit, has not been cited or relied on by any other Tennessee cases. Under these circumstances, and without any assertion by Mr. Martin that the Ewans’ nonsuit deprived him of a vested right, we decline to hold that the trial court abused its discretion in confirming the Ewans’ right to take a nonsuit in this case.
Sanctions
Mr. Martin next argues that notwithstanding the Ewans’ voluntary dismissal, the trial court abused its discretion in failing to award Defendants sanctions under. Rule 11 of the Tennessee Rules of Civil Procedure.
Sanctions are governed by two intertwined Rules of Civil Procedure, Rule. 11.02 and Rule 11.03. First, Rule 11.02 provides, in pertinent part:
By presenting to the court (whether by signing, filing, submitting, or later advo-*138eating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,-
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denial of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Tenn. R. Civ. P. 11.02. Rule 11.03 provides, in pertinent part:
If, after notice and a reasonable opportunity to respond, 'the court determines that subdivision 11.02 has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision 11.02 or are responsible for the violation.
Tenn. R. Civ. P. 11.03. Thus, the trial court is empowered to award sanctions to an injured party when the opposing party has filed papers in the court for, inter alia, an improper or frivolous purpose. If the motion is granted, the court may award the movant “the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion,” as well as appropriate sanctions. Tenn. R. Civ. P. 11.03(l)(a). Rule 11.03 outlines the appropriate measure of sanctions to be awarded to the movant:
A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (a) and (b), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.
Tenn. R. Civ. P. 11.03(2).
As this Court explained:
The courts are to apply a standard of “objective reasonableness under the circumstances” when determining whether conduct is sanctionable under Rule 11. Hooker v. Sundquist, 107 S.W.3d [532] at 536 [ (Tenn.Ct.App.2002) ] (citing Andrews, 812 S.W.2d at 288). “Sanctions are appropriate when an attorney submits a motion or other paper on grounds which he knows or should know are without merit, and a showing of subjective bad faith is not required.” Id. (quoting Boyd v. Prime Focus, Inc., 83 S.W.3d 761, 765 (Tenn.Ct.App.2001)). However, when deciding whether to impose sanctions under Rule 11, the trial court should consider all the circumstances. Id. “[T]he trial judge should consider not only the circumstances of the particular violation, but also the factors bearing on the reasonableness of the conduct, such as experience and past performance of the attorney, as well as the general standards of conduct of the bar of the court.”
*139Brown v. Shappley, 290 S.W.3d 197, 202-03 (Tenn.Ct.App.2008). We review a trial court’s decision to grant or deny sanctions pursuant to Rule 11 under the abuse of discretion standard. Brown v. Shappley, 290 S.W.3d 197, 200 (Tenn.Ct.App.2008). A trial court abuses its discretion if it (1) applies an incorrect legal standard, (2) reaches an illogical or unreasonable decision, or (3) bases its decision on a clearly erroneous evaluation of the evidence. Elliott v. Cobb, 320 S.W.3d 246, 249-50 (Tenn.2010) (citation omitted); see also Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 308 (Tenn.2008) (citation omitted). A trial court also abuses its discretion if it “strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn.2007)). We review the trial court’s legal conclusions de novo with no presumption of correctness. Id. at 525 (citations omitted). We review the trial court’s factual conclusions under the preponderance of the evidence standard. Id. (citations omitted).
As previously discussed, the first pleading filed in this case by the Defendants was a motion for sanctions on May 4, 2009. The motion asserted that there was no legal basis for the suit, and that it was merely a vehicle to harass the Defendants and cause unnecessary expense. The trial court denied this motion by order of March 1, 2011. The trial court specifically found that the Ewans had “reasonable cause under the facts and circumstances of the case to file such pleadings.” The Defendants did not again raise the issue of sanctions until their November 8, 2013 pleading entitled “Defendants’ Opposition to [Ewans’]Entry of an Order of Voluntary Dismissal[,]” which was filed over two months after the Ewans’ filed their written notice of nonsuit. In this pleading, the Defendants sought sanctions against the Ewans for allegedly “burdening] th[e] [trial] [c]ourt and the Defendants with neediest] inconvenience, expense and delay ... despite adverse rulings against them in multiple courts of law.”
From the record, it appears that the trial court declined to award sanctions on the basis that the nonsuit foreclosed the right to seek sanctions. Mr. Martin argues that this was in error, citing federal caselaw on this issue. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (allowing Rule 11 sanctions notwithstanding the plaintiffs voluntary dismissal of the action). This holding, however, has been called into question by a number of federal courts based on a 1993 amendment to Rule 11 of the Federal Rules of Civil Procedure adding a “safe harbor” requirement to the rule. See Gomes v. American Century Companies, Inc., 2010 WL 1980201 (E.D.Cal.2010) (noting that several district courts have concluded that “the 1993 amendments [to Rule 11 of the Federal Rules of Civil Procedure] supersede the Court’s holding in Cooter & Gell as it relates to voluntary dismissals.”) (citing Hockley by Hockley v. Shan Enter. Ltd. P’ship, 19 F.Supp.2d 235, 240 (N.J.1998); Photocircuits Corp. v. Marathon Agents, Inc., 162 F.R.D. 449, 452 (E.D.N.Y.1995); Morroni v. Gunderson, 169 F.R.D. 168, 171 (M.D.Fla.1996)).
Tennessee’s version of Rule 11 also contains a safe harbor requirement. Rule 11.03 provides that:
[A motion for sanctions] shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged *140paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
Tenn. R. Civ. P. 11.03(l)(a). The Rule further provides that a motion for sanctions under Rule 11.08 “shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision 11.02.” Id. This Court has held that the safe harbor provision is “clear, unambiguous and mandatory.” Shappley, 290 S.W.3d at 202. “Attorneys and litigants should be able to place their expectation and reliance upon the fact that Rule 11 means what it says, and that a party will not be sanctioned unless his or her opponent has followed the procedure for requesting sanctions as set forth in the rule.” Mitrano v. Houser, 240 S.W.3d 854, 862 (Tenn.Ct.App.2007). “An award of sanctions absent demonstrated compliance with the safe harbor provision cannot stand.” Lindsey v. Lambert, No. W2010-00213-COA-R3-CV, 2011 WL 497248, at *1 (Tenn.Ct.App. Feb. 11, 2011) (citing Shappley, 290 S.W.3d at 202).
In this case, there is no indication in the record that the Defendants complied with the safe harbor provision in Rule 11.03. Nothing in the record shows that the Defendants served the Ewans with their motion for sanctions prior to filing their request with the trial court. Indeed, the record shows that, in direct violation of Rule 11.03(l)(a), the Defendants did not file their request for sanctions “separately from other motions or requests,” but instead requested sanctions concurrent with their opposition to the Ewans’ nonsuit. As previously discussed, the failure to comply with the safe harbor provision in Rule 11 is fatal to a request for sanctions. See Lambert, 2011 WL 497248, at * 1; Shappley, 290 S.W.3d at 202; Mitrano, 240 S.W.3d at 862.
Further, because the safe harbor provision provides that a party shall be given an opportunity to withdraw their claim or paper prior to the award of sanctions, federal courts applying a similar provision have held that the rule “appear[s] to preclude bringing sanctions after the party against which sanctions are sought has voluntarily dismissed its suit.” Hockley, 19 F.Supp.2d at 240 (holding that the ruling in Cooter & Gell conflicts with the safe harbor provision); see also de la Fuente v. DCI Telecommunications, Inc., 259 F.Supp.2d 250 (S.D.N.Y.2003) (noting that “a court can no longer issue Rule 11 sanctions in a case where, as in Cooter & Gell, a complaint was voluntarily dismissed within 21 days of a request for Rule 11 sanctions.”); c.f., Ridder v. City of Springfield, 109 F.3d 288, (6th Cir.1997) (holding that a party who waits until after final disposition of the case to request sanctions “has given up the opportunity to receive an award of Rule 11 sanctions” because the delay “dé-prive[s] [the opposing party] of the ‘safe harbor’ to which the rule says he is entitled.”). Because Mr. Martin did not comply with the safe harbor provision of Rule 11.03, he is not entitled to sanctions under Rule 11.
Frivolous Appeal
Finally, the Ewans request attorney’s fees incurred in this appeal on the ground that this is a frivolous appeal. A frivolous appeal is one that is devoid of merit or has no reasonable chance of succeeding. See Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn.1978); Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn.1977); Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn.Ct.App.1999); Industrial Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn.Ct.App.1995). Determining whether to award damages based on a frivolous appeal is a discretionary decision. *141See Banks v. St. Francis Hosp., 697 S.W.2d 840, 343 (Tenn.1985).
As discussed above, Mr. Martin’s request for sanctions had no hope of succeeding due to the Defendants’ failure to comply with Rule ll’s safe harbor provision. In addition, the only applicable case cited by Mr. Martin to support sanctions, Cooler & Gell,6 was superseded over ten years ago by the addition of the safe harbor provision. Mr. Martin’s other issue on appeal was also not successful. However, the nonsuit claim was an issue of first impression with this Court and Mr. Martin’s argument, though not persuasive, was reasonable. Under these circumstances, we decline to award attorney’s fees for a frivolous appeal.
Conclusion
The judgment of the Chancery Court of Shelby County is affirmed. This cause is remanded for all further proceedings as may be necessary and are consistent with this Opinion. Costs of this appeal are assessed against Appellant Jonathan T. Martin, and his surety.
. The complaint also named as parties other various names used for John Mosely’s tree service.
. Although The Hardison Firm did not file a notice of appeal or otherwise participate in this appeal, at oral argumént, counsel for Mr. Martin indicated that The Hardison Firm agrees with the assertions made by Mr. Martin in his appellate argument.
. We will use the terms “voluntary dismissal” and "nonsuit" interchangeably,
. None of the statutory exceptions apply in ■ ⅛⅛ case,
. Rule 41 of the Federal Rules of Civil Procedure provides, in pertinent part:
By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the . plaintiff s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
Fed.R.Civ.P. 41(a)(2) (emphasis added).
. Mr. Martin does cite an additional case in his brief, which he asserts supports his request for sanctions, Parrott v. Corley, 266 Fed.Appx. 412 (E.D.Mich.2008). Parrott, however, concerns a federal statute awarding damages for the "unreasonable] and vexatious!]” conduct of an attorney, rather than Rule 11 of the Federal Rules of Civil Procedure. Id. at 413 (quoting 28 U.S.C. § 1927 (2006)). Accordingly, the Parrott decision is inapposite to the case-at-bar. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284137/ | OPINION
FRANK G. CLEMENT, JR., P.J., M.S.,
delivered the opinion of the Court,
in which ANDY D. BENNETT and RICHARD H. DINKINS, JJ., joined.
The principal issue in this appeal is whether the 2011 amendments to the Healthcare Liability Act (“HCLA”) extend *143the statute of limitations in Governmental Tort Liability Act (“GTLA”) cases. The trial court concluded that the 2011 amendments did not extend the statute of limitations for healthcare liability claims against governmental entities and dismissed all claims against the governmental entities as time-barred. Plaintiff appealed. After this appeal was filed, this court ruled in Harper v. Bradley Cnty., No. E2014-00107-COA-R9-CV, 464 S.W.3d 615, 2014 WL 5487788 (Tenn.Ct.App. Oct. 30, 2014), that the 2011 amendments to the HCLA extend the GTLA’s one-year statute of limitations by 120 days when a plaintiff has complied with the pre-suit notice requirements of the HCLA, and we concur with the ruling in Harper. Because the plaintiff in this action complied with the pre-suit notice requirements of the HCLA and commenced this action against the governmental entities within the 120-day window, we have determined this action was commenced timely. Therefore, the plaintiffs claims against the governmental entities should not have been dismissed as time-barred. Accordingly, we reverse the dismissal of these claims and remand for reinstatement of the claims and for further proceedings consistent with this opinion.
This healthcare liability action was filed by Valda Banks (“Plaintiff’), in her capacity as Administratrix Ad Litem of the Estate of her deceased brother, Thomas Bowers. The four defendants are: (1) the Bordeaux Long Term Care facility (“Bordeaux”), where Mr. Bowers resided prior to his death; (2) the Metropolitan Hospital Authority (“Hospital Authority”), which managed and operated Bordeaux; (3) the Metropolitan Government of Nashville (“Metro”), which owned Bordeaux; and (4) Donald Vollmer, M.D., who was the primary care physician for Thomas Bowers while he resided at Bordeaux.
Because the complaint was dismissed on a Tenn. R. Civ. P. 12.02 motion, we assume the facts asserted in the complaint are true. The relevant facts, as stated in the complaint, reveal that Mr. Bowers was a resident at Bordeaux under the care of his primary care physician, Dr. Donald Vollmer, at all times material to this action. Dr. Vollmer ordered routine labwork for Mr. Bowers in May 2011, which reflected an elevated glucose level consistent with diabetes mellitus; however, over the course of the next eight months, Dr. Vollmer continued to treat Mr. Bowers without monitoring his glucose level or evaluating and treating him for diabetes. The complaint also stated that Mr. Bowers died on January 11, 2012, at Baptist Hospital from diabetic ketoacidosis leading to septic shock caused by the individual, and collective, negligent acts and omissions of Dr. Vollmer and individual staff members, nurses, doctors, and other personnel responsible for the care and treatment of Mr. Bowers, acting at all times as agents and/or employees of Bordeaux. It was also alleged that the Hospital Authority had the ultimate responsibility for Mr. Bowers and was the entity assigned the day-to-day responsibility to manage and/or operate Bordeaux. The complaint further alleged that the Hospital Authority and Metro were liable under the theory of respondeat superior for the negligent acts and omissions of their agents, servants, and employees at Bordeaux.
In order to comply with the pre-suit notice requirement of the HCLA, codified at Tenn.Code Ann. § 29-26-121, Plaintiff mailed notices of intent to file a claim to Dr. Vollmer, as well as the respective governmental entities on January 11, 2013, which was prior to the commencement of this action and before the one-year statute of limitations had lapsed. Relying on the HCLA’s 120-day tolling provision, she then commenced this action by filing a *144complaint on March 21, 2013, which was after the GTLA’s statute of limitations but within the 120-day tolling provision.
Dr. Vollmer timely answered. All three governmental entities filed a motion to dismiss, contending the action was time-barred because the GTLA’s one-year statute of limitations had lapsed and that the HCLA’s tolling provision did not apply to governmental entities. Metro also contended that it was not a proper party, and, thus, it should be dismissed for that additional reason.2
Following a hearing in July 2013, the trial court ruled that the Hospital Authority was the only governmental entity that was a proper party. The court also ruled that the HCLA did not extend the GTLA’s one-year statute of limitations, and, based on this finding, the trial court concluded the action was time-barred as to the governmental entities. Upon the request of the parties, the order was designated as a final appealable order pursuant to Tenn. R. Civ. P. 54.02, from which Plaintiff appealed.3
Analysis
I.The Gtla Statute of Limitations AND THE Hola TOLLING PROVISION
The primary issue in this appeal is whether the 2011 amendments to the HCLA, which was identified as the Medical Malpractice Act at the time,4 and specifically its 120-day tolling provision, extends the statute of limitations under the GTLA for health care claims against governmental entities. This specific issue was recently decided by this court in Harper v. Bradley Cnty., No. E2014-00107-COA-R9-CV, 464 S.W.3d 615, 2014 WL 5487788 (Tenn.Ct.App. Oct. 30, 2014). In the Harper decision, we concluded that the 2011 amendments to the HCLA clearly expressed the intent of the General Assembly to allow the tolling provision under the HCLA to extend the GTLA’s one-year statute of limitations by 120 days when the plaintiff has satisfied the pre-suit notice requirements. Harper, 464 S.W.3d at 622-23, 2014 WL 5487788, at *7.
In 2011, the General Assembly amended the HCLA making the amended provisions applicable to all causes of action accruing on or after October 1, 2011. See 2011 Tenn. Pub. Acts. 510, §§ 8, 24. The cause of action in the case on appeal accrued in January 2012; therefore, the 2011 amendments to the HCLA apply.
As amended in 2011, the HCLA provides in relevant part;
(a) As used in this part, unless the context otherwise requires:
*145(1) “Health care liability action” means any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based;
(2) “Health care provider" means:
(D) The employee of a health care provider involved in the provision of health care services, including, but not limited to, physicians, nurses, licensed practical nurses, advance practice nurses, physician assistants, nursing technicians, pharmacy technicians, orderlies, certified nursing assistants, technicians and those physicians and nurses employed by a governmental health facility[.]
Tenn.Code Ann. § 29-26-101 (emphasis added).
Prior to the 2011 amendments, there was no specific reference to “governmental entities” or their employees anywhere within the act, and it was uncertain whether the 2008 and 2009 amendments, which established, among other things, that the pre-suit notice requirements and the tolling provision were applicable to actions against governmental entities. The Tennessee Supreme Court resolved this uncertainty in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn.2013) holding:
[although the 2009 amendment to the Medical Malpractice Act “applies to all medical malpractice actions,” this language does not reference the applicability of the Medical Malpractice Act to actions governed by the GTLA. The language of section 29-26-121(c) fails to evince an express legislative intent to extend the statute of limitations in GTLA cases.
Cunningham, 405 S.W.3d at 45-46 (footnote omitted).
The Supreme Court then held that “it is reasonable to conclude that by choosing not to use express language applying Tennessee Code Annotated section 29-26-121(c) to eases governed by the GTLA, the legislature did not intend to apply the 120-day extension to the GTLA statute of limitations.” Id. at 46. Although Cunningham was decided in 2013, it is important to note that the Supreme Court did not consider the effect of the 2011 amendments in that decision.5
As we determined in Harper, the 2011 amendment to the HCLA overcame the “express language” shortcoming in the 2009 version. Harper, 464 S.W.3d at 620-22, 2014 WL 5487788, at *5-6. We concluded that the 2011 amendment, “for the first time, expressly [brought] governmental entities, including ‘a political subdivision’ of the state, within the ambit of the HCLA,” and, further, expressly clarified that governmental entities fall within the definition of “health care providers,” including, but not limited to, “physicians and nurses employed by a governmental health facility.” Id. at 620-21, 2014 WL 5487788 at *5. As we further reasoned, “the language employed by the legislature [in the *1462011 amendments] clearly expresses that GTLA defendants are within the ambit of the HCLA.” Id. at 621, 2014 WL 5487788 at *6. We then specifically noted that new section 121(a)(1) requires pre-suit notice “to each health care provider that will be a defendant” and that new section 121(c) provides that “[w]hen notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider.” Id. (emphasis in original). We also found significant that the Supreme Court had recently stated in Rajvongs v. Wright, 432 S.W.3d 808, 813-14 (Tenn.2013) that the General Assembly clearly enacted the 120-day extension to offset the obligation to give pre-suit notice at least 60 days prior to filing a complaint. Id.
For the foregoing reasons, we concluded the 2011 amendment, codified at Tenn. Code Ann. § 29-26-101:
clearly expresses a legislative intent to extend the statute of limitations in GTLA cases where the plaintiff has met the procedural requirements of the HCLA. This construction comports with notions of fundamental fairness and justice, and also with the Supreme Court’s often-repeated “established view that disfavors the doctrine of sovereign immunity as applied to local governments.” Lucius, 925 S.W.2d at 526; see also Jenkins v. Loudon Cnty., 736 S.W.2d 603, 605-06 (Tenn.1987), abrogated on other grounds by Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 83 (Tenn.2001), (stating that the Court “does not regard with favor the doctrine of sovereign immunity as applied to municipal or county governments”); Johnson v. Oman Constr. Co., 519 S.W.2d 782, 786 (Tenn.1975) (“This Court does not regard with favor the doctrine of sovereign immunity as applied to municipal or county governments.”).
Harper, 464 S.W.3d at 622-23, 2014 WL 5487788, at *7.
Having concluded that Harper provides a well-reasoned construction of the effect of the 2011 amendments to the HCLA, we concur with that reasoning and the conclusion that the 120-day tolling provision of the HCLA extends the statute of limitations in GTLA cases.
Plaintiffs pre-suit notice to the governmental entities was sufficient in all respects; therefore, the GTLA statute of limitations was tolled for an additional 120 days. Plaintiff commenced this action against the governmental entities within the tolling period; therefore, Plaintiffs claims against the Hospital Authority and Metro were timely filed. Accordingly, we reverse the dismissal of all claims against the governmental entities as time-barred and remand for further proceedings consistent with this opinion.
II. Motion to Dismiss the Metropolitan Government
Defendants filed a Tenn. R. Civ. P. Rule 12.02(6) motion to dismiss Metro contending the Hospital Authority was the only proper defendant. The trial court granted the motion finding that the only proper defendant was the Hospital Authority. Plaintiff contends Metro is also a proper party.6
*147The standards by which our courts should assess a Rule 12.02(6) motion to dismiss are well-established. See Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn.2014); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn.2011). As stated by the Supreme Court in Phillips v. Montgomery Cnty.:
A motion to dismiss based upon Tennessee Rule of Civil Procedure 12.02(6) requires a court to determine if the pleadings state a claim upon which relief may be granted. Tenn. R. Civ. P. 12.02(6); Cullum v. McCool, 432 S.W.3d 829, 832 (Tenn.2013). A Rule 12.02(6) motion challenges “only the legal sufficiency of the complaint, not the strength of the plaintiffs proof or evidence.” Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn.2011). A defendant filing a motion to dismiss “admits the truth of all the relevant and material allegations contained in the complaint, but ... asserts that the allegations fail to establish a cause of action.” Id. (quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn.2010)) (alteration in original) (internal quotation marks omitted). The resolution of such a motion is determined by examining the pleadings alone. Id.
In adjudicating such motions, courts “must construe the complaint liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences.” Id. (quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn.2007)); Cullum, 432 S.W.3d at 832. A motion to dismiss should be granted only if it appears that “ ‘the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ” Webb, 346 S.W.3d at 426 (quoting Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn.2002)). Tennessee jurisprudence on this issue “reflects the principle that this stage of the proceedings is particularly ill-suited for an evaluation of the likelihood of success on the merits.... ” Cullum, 432 S.W.3d at 832 (quoting Webb, 346 S.W.3d at 437). We review a lower court’s decision on such a motion de novo without any presumption of correctness. Id.
Phillips, 442 S.W.3d at 237.
The trial court’s written order does not explain the basis for the trial court’s determination that the Hospital Authority is the only proper defendant. However, Metro presented two alternative arguments to the trial court in support of dismissal, relying on both a municipal ordinance as well as statutory authority. We will address each in turn.
Metro relied on TenmCode Ann. § 7-57-301 which enabled the creation of the Hospital Authority and defines its powers. This statute provides in pertinent part:
An authority shall constitute a public body and a body corporate and politic, exercising public powers, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this chapter, including, but not limited to, the powers to:
(9) Appoint all administrative, professional, technical and other employees; appoint legal counsel and an auditor; enter into contracts of employment with such employees and appointees and fix their compensation and terms of employment, subject to the budget controls of the creating and participating municipalities; and remove such employees or appointees;
(10) Enter into agreements with the creating municipality and participating municipalities with respect to the manner of transfer of hospital employees of such municipalities to the au*148thority and with respect to the retention by such employees of existing civil service status and accrued pension, disability, hospitalization, death, or other fringe benefits[.]
Tenn.Code Ann. § 7-57-301(9), (10).
Metro also asked the court to take judicial notice of an Intergovernmental Agreement between Metro and the Hospital Authority, approved and incorporated by the Metropolitan Council into municipal Ordinance No. 099-1577. Tenn. R. Evid. 202(b) provides that courts may also take judicial notice of other laws or ordinances upon reasonable notice to adverse parties. Plaintiff has not taken issue with the trial court’s decision to consider this ordinance. Therefore, the fact the trial court took judicial notice of the ordinance that incorporated the Intergovernmental Agreement is not at issue.
Certified copies of the ordinance and the Intergovernmental Agreement were attached to Metro’s motion for dismissal, and the Agreement spells out the relationship between the two governmental entities and the Hospital Authority’s authority to manage Bordeaux. The pertinent provisions reveal that Metro leased the Bordeaux facility to the Hospital Authority, that Metro transferred the operation and control of Bordeaux to the Hospital Authority, and that Metro transferred its employees at Bordeaux to the Hospital Authority. Although Metro transferred operation and control to the Hospital Authority, Metro retained the right to provide legal services, insurance, procurement services, payroll, benefit and civil service administration, social services indigent certification, and such other services as the parties may agree from time to time. Moreover, Metro retained control over the purse strings, because, pursuant to the agreement, the Hospital Authority is required to present an annual budget to Metro and, to the extent the budgetary request is approved, Metro then transfers to the Authority those funds appropriated by the Metropolitan Council.
Metro contends it is not a proper party to this action because the Hospital Authority controls Bordeaux and is “legally responsible” for all Bordeaux employees. Metro also asserted in its appellate brief that the complaint only asserts acts of negligence against employees of the Hospital Authority, not Metro; however, we have determined this assertion is inaccurate, for the complaint expressly states in paragraph 9, inter alia, that “Defendants,” which term includes Metro, breached the duty to follow the standard of care to Thomas Bowers, through their acts or omissions, by the:
i) Failure to provide nurses and nurse assistants sufficient in number to provide appropriate nursing care and services to each resident, including Thomas Bowers, so as to assure that Thomas Bowers received minimally adequate and necessary care;
j) Failure to adequately hire, train, supervise and retain a sufficient amount of competent and qualified registered nurses, licensed vocational nurses, nurse assistants and other personnel in said facility to assure that Thomas Bowers received the minimally necessary and appropriate care, treatment and services;
k) Failure of management and their agents to adequately hire, train, supervise and retain staff and/or personnel so as to assure that Thomas Bowers received the minimum necessary care to prevent harm in accordance with Defen-' dants’ policy and procedural manual;
[[Image here]]
The complaint goes on to allege that Metro knew of the existence of applicable *149federal and state regulations and laws governing nursing homes and knew that the lives and health of residents such as Thomas Bowers were at risk if the regulations were not followed, and that its failure to follow the federal regulations governing nursing homes is evidence of the breach of the standard of care. Thus, contrary to Metro’s assertions in its brief, the complaint does allege acts and omissions of negligence against Metro.
Although it is not alleged that Metro had direct control over the employees or services provided at Bordeaux, the complaint asserts a vast array of indirect control by Metro that could have direct consequences upon the services provided at Bordeaux. We are to construe the complaint liberally, presume all factual allegations to be true, and give Plaintiff the benefit of all reasonable inferences when considering a Rule 12.02(6) motion to dismiss. Therefore, at this stage in the proceedings we must accept as true the assertions that the failure of the Hospital Authority to provide nurses and nurse assistants sufficient in number to provide appropriate nursing care and services, the failure to adequately hire, train, supervise, and retain a sufficient amount of competent and qualified registered nurses, licensed vocational nurses, and nurse assistants, and the failure of management and their agents to adequately hire, train, supervise, and retain staff and/or personnel to assure that Thomas Bowers received the minimum necessary care to prevent harm was due, in part, to.Metro’s control over the Hospital Authority’s budget and, thus, the funds available to operate the Bordeaux facility.
As noted above, the purpose of a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss is to determine whether the pleadings state a claim upon which relief can be granted, and such a motion only challenges the legal sufficiency of the complaint; it does not challenge the strength of a plaintiffs proof. Webb, 346 S.W.3d at 426. Having considered the allegations against Metro, we are unable to conclude that Plaintiff can prove no set of facts in support of the claims asserted that would entitle Plaintiff to relief. See id,.; see also Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn.2002). Accordingly, Metro should not have been dismissed at this stage of the proceedings.7
III. The Second Appeal: ÜR. VollmeR’s Allegations of Comparative Fault
The order from which the first appeal was taken dismissed all defendants except for Dr. Vollmer; thus, Plaintiffs claims against Dr. Vollmer remained in the trial court while this appeal proceeded.8 During the pendency of this appeal, Dr. Vollmer filed a motion in the trial court to amend his answer to assert comparative fault against Bordeaux, Metro, the Hospital Authority, and a previously unnamed nurse practitioner. Dr. Vollmer’s motion was granted, and he filed an amended answer on September 24, 2013, “incorporating] by reference” Plaintiffs allegations in the complaint pertaining to the government entities. Plaintiff then amended her complaint to, once again, assert the same claims against the three governmental entities that had been dismissed previously. Thereafter, the governmental entities were granted leave to file a Tenn. R.App. P. 9 interlocutory appeal in this court, which was consolidated with this appeal. See Valda Bowers *150Banks et al. v. Bordeaux Long Term Care et al., No. M2014-00119-COA-R9-CV.
We have determined our rulings regarding the above issues, which reinstate Plaintiffs claims against the Hospital Authority and Metro, render moot all issues raised in the second appeal, No. M2014-00119-COA-R9-CV, and we find it unnecessary to address those issues further.
In Conclusion
We reverse the judgment of the trial court in which it ruled that the Hospital Authority was the only proper defendant. We also reverse the judgment of the trial court in which it ruled that Plaintiffs claims under the HCLA against the governmental defendants were time-barred. Furthermore, we remand with instructions to reinstate the complaint to the extent it asserts claims against the Hospital Authority and Metro and for further proceedings consistent with this opinion.
Costs of appeal are assessed against the Hospital Authority of the Metropolitan Government of Nashville, and the Metropolitan Government of Nashville, Davidson County, Tennessee.
. None of the defendants challenge the sufficiency of the notices, certificate of good faith, or any other filing requirements under the HCLA. See, e.g., Tenn.Code Ann. §§ 29-26-101 et. seq.
. The claims against Dr. Vollmer were not dismissed; thus, they remained in the trial court while this appeal proceeded. During the pendency of that appeal, Dr. Vollmer, who was the sole remaining defendant, moved to amend his answer to assert comparative fault for the first time against Bordeaux, Metro, the Hospital Authority, and a previously unnamed nurse practitioner. Dr. Vollmer’s motion was granted and an amended answer was filed on September 24, 2013, "incorpo-rat[ing] by reference” Plaintiff’s allegations in the complaint pertaining to the government entities. The governmental entities challenged this ruling and were granted leave to file a Tenn. R.App. P. 9 interlocutory appeal. We discuss the issues raised in the interlocutory appeal at the conclusion of this opinion.
.The HCLA was previously known as the Tennessee Medical Malpractice Act. Effective in 2012, Tennessee Code Annotated sections 29-26-115 to -122 and section -202 of the Medical Malpractice Act were amended to replace "medical malpractice” with "health care liability.” See 2012 Tenn. Pub. Acts 798, §§ 7-15.
. The Supreme Court expressly noted in Cunningham that the General Assembly amended the Medical Malpractice Act in 2011 to modify the definition of “health care liability action" to include "claims against the state or a political subdivision thereof,” and that the 2011 amendments became effective on October 1, 2011, after the complaint was filed. Cunningham, 405 S.W.3d at 45 n. 2. Moreover, after concluding the 2011 amendments did not apply retroactively, the court stated: “Because the 2011 amendment is not at issue in this case, we will await a more appropriate case in which to determine whether the language of the 2011 amendment clearly expresses a legislative intent to extend the statute of limitations in GTLA cases." Id. (emphasis added).
. The trial court ruled that the Hospital Authority was the only proper party, and the court dismissed Bordeaux as well as Metro. Plaintiff does not challenge the dismissal of her claims against Bordeaux.
Plaintiff only challenges the dismissal of Metro.
. Discretionary function immunity was not raised in this appeal; thus, it has not been addressed.
. The order dismissing all claims against all governmental entities was designated as a final appealable judgment pursuant to Tenn. R. Civ. P. 54.02. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284138/ | OPINION
FRANK G. CLEMENT, JR., P.J., M.S.,
delivered the opinion of the Court,
in which ANDY D. BENNETT and W. NEAL McBRAYER, JJ., joined.
This appeal arises from an underinsured motorist coverage claim that hinges on the validity of a choice of law provision in the insurance policy. Plaintiffs were involved in a car wreck in Tennessee while driving a vehicle they borrowed from North Carolina residents. Although the borrowed vehicle was owned by North Carolina residents, the car owners had elected an insurance policy with a Missouri choice of law provision because their daughter principally used the car in Missouri where she attended college. At issue in this appeal is whether the law of Missouri or North Carolina controls. If Missouri law controls, there is no underinsured motorist coverage; if North Carolina law controls, there is coverage. The trial court found that the Missouri choice of law provision was valid and enforceable because the choice of law provision was not contrary to a fundamental policy of North Carolina. We affirm.
On July 17, 2010, David and Summer Williams and their young child, Elle, (“Plaintiffs”), were involved in an automobile accident in Tennessee. At the time of the accident, Plaintiffs were moving from North Carolina to Missouri and were driving a borrowed vehicle owned by North *152Carolina residents, Joseph and Amy Rieg. While traveling through Putnam County, Tennessee, Plaintiffs were hit head-on by Timothy Wayne Smith (“Defendant”), who was traveling east in the westbound lanes of Interstate 40.
At the time of the accident, Defendant was insured with the minimum policy limits required under Tennessee law, which provided liability coverage of $25,000 per person and $50,000 per accident. The Riegs’ vehicle was registered in North Carolina and insured by a Missouri insurance policy through Government Employees Insurance Company (“GEICO”). Mrs. Rieg purchased the policy after seeking advice from her GEICO representative, who advised her that she needed a “Missouri Policy” so her daughter, Joanna, could use the vehicle while attending college in Missouri. The insurance policy included a Missouri choice of law provision and provided $50,000 per person, and $100,000 per accident in uninsured motorist coverage. However, the policy did not provide underinsured motorist coverage, and such coverage was not required under Missouri law.
Plaintiffs filed this action and served GEICO as an alleged uninsured/underin-sured motorist carrier.1 Plaintiffs alleged the Missouri choice of law provision was invalid and that North Carolina law controls, which mandates underinsured motorist coverage. North Carolina requires minimum automobile insurance liability limits of $30,000 per person and $60,000 per accident.2 Moreover, a driver with an automobile liability insurance policy with less than the minimum limits as required by North Carolina law is considered an “uninsured motorist.”3 Because Defendant’s liability policy provides only $25,000 per person and $50,000 per accident, Defendant would be considered an “uninsured motorist” under North Carolina law. Thus, if the choice of law provision is unenforceable, then North Carolina law controls, and GEICO is required to provide underinsured motorist coverage in excess of the coverage provided by Defendant’s policy; if the choice of law provision is enforceable, then Missouri law controls, and there is no underinsured motorist coverage.
Plaintiffs and GEICO filed competing motions for summary judgment, and the trial court heard oral arguments on September 20, 2018. The trial court granted GEICO’s motion for summary judgment and denied Plaintiffs’ motion, finding the choice of law provision in the insurance policy to be valid and enforceable. Plaintiffs appeal.
Standard of Review
This appeal arises from the grant of summary judgment, which is appropriate when a party establishes that there is no genuine issue as to any material fact and that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; Stovall v. Clarke, 118 S.W.3d 715, 721 (Tenn.2003). The material facts with respect to the issue raised on this appeal are not in dispute; accordingly, our review is de novo on the record with no presumption of correctness as to the trial court’s conclusions of law. See Tenn. R.App. P. 13(d); BellSouth Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn.2003).
*153Analysis
At issue on appeal is whether the substantive law of Missouri or North Carolina will govern the construction of the insurance policy at issue. When determining which state’s law to apply to a particular dispute, a choice of law analysis is appropriate using the rules applicable in the forum court’s state. Gov’t Emp. Ins. Co. v. Bloodworth, No. M2003-02986-COA-RIO-CV, 2007 WL 1966022, at *26 (Tenn.Ct.App. June 29, 2007).
Tennessee’s conflict of law doctrine applicable to contractual claims is as follows:
Tennessee follows the rule of lex loci contractus. This rule provides that a contract is presumed to be governed by the law of the jurisdiction in which it was executed absent a contrary intent. Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 467 (Tenn.1973). If the parties manifest an intent to instead apply the laws of another jurisdiction, then that intent will be honored provided certain requirements are met. The choice of law provision must be executed in good faith. Goodwin Bros. Leasing, Inc. v. H & B Inc., 597 S.W.2d 303, 306 (Tenn.1980). The jurisdiction whose law is chosen must bear a material connection to the transaction. Id. The basis for the choice of another jurisdiction’s law must be reasonable and not merely a sham or subterfuge. Id. Finally, the parties’ choice of another jurisdiction’s law must not be “contrary to ‘a fundamental policy’ of a state having [a] ‘materially greater interest’ and whose law would otherwise govern.” Id., n. 2 (citing Restatement (Second) of Conflict of Laws § 187(2) (1971)).
Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 474-75 (Tenn.Ct.App.2003) (quoting Vantage Tech., LLC v. Cross, 17 S.W.3d 637, 650 (Tenn.Ct.App.1999)).
The trial court held that the choice of law provision was executed in good faith, that Missouri law bears a material connection to the transaction, and that the basis for the choice of Missouri law was reasonable and not merely a sham or subterfuge. Relying on Government Employees Insurance Company v. Bloodworth, the trial court found that “the law of the state where the insured risk is located will frequently be applied as controlling (when the parties have not effectively chosen the law applicable to their contract) because that jurisdiction has an important and material connection to the transaction between the parties and the nature of the risk insured.” As this court explained in Bloodworth:
The object that is the subject of the insurance has its principal location in the state where it will be used a majority of time during the insurance period. Restatement (Second) of Conflicts § 193, (cmt.b). In the case of an automobile, the parties to the insurance contract will generally know where it will be kept and operated the majority of the time. Id. There is good reason for using the law of the principal location of the insured risk. “This location has an intimate bearing upon the risk’s nature and extent and is a factor upon which the terms and conditions of the policy will frequently depend.” Restatement (Second) of Conflicts § 193 (cmt. c). Accordingly, the location of the risk is of concern to the parties to the insurance contract. Id. See, e.g., Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d at 251 (stating that an insurance policy is governed by the law of the principal location of the insured risk during the term of the policy).
*154Bloodworth, 2007 WL 1966022, at *27. The trial court applied this reasoning to the facts of this case to determine that Missouri had a material connection to the ■transaction and that a reasonable basis existed for using Missouri law.
The trial court ultimately held that the choice of law provision was valid and enforceable because the parties’ choice of Missouri law was not contrary to a fundamental policy of North Carolina. In determining what constitutes a “fundamental public policy,” the trial court relied upon a North Carolina Supreme Court case that observed:
[T]he mere fact that the law of the forum differs from that of the other jurisdiction does not mean that the foreign statute is contrary to the public policy of the forum. Bradford Electric Light Co. v. Clapper, 286 U.S. 145, [52 S.Ct. 571, 76 L.Ed. 1026] (1932). To render foreign law unenforceable as contrary to public policy, it must violate some prevalent conception of good morals or fundamental principle of natural justice or involve injustice to the people of the forum state. Ellison v. Hunsinger, [237 N.C. 619,] 75 S.E.2d 884 ([]1953); Howard v. Howard, [200 N.C. 574,] 158 S.E. 101 ([]1931). This public policy exception has generally been applied in cases such as those involving prohibited marriages, wagers, lotteries, racing, gaming, and the sale of liquor. Howard v. Howard, [200 N.C. 574] 158 S.E. 101.
Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849, 857-58 (1988) (applying Florida’s statute of repose does not violate public policy of North Carolina); accord Mosqueda v. Mosqueda, 218 N.C.App. 142, 721 S.E.2d 755, 760 (2012) (Alabama automobile guest statute does not violate public policy of North Carolina). The trial court held that:
[t]he interest of the state of North Carolina in regulating insurance policies insuring an automobile primarily in Missouri would not appear to constitute a ‘fundamental public policy,’ as the North Carolina courts have construed that term in the context of their own conflict of laws analyses. In this case, the court cannot conclude that the choice of another state’s law (here, Missouri’s) is repugnant to the prevalent conceptions of good morals or the fundamental principles of natural justice; neither would the choice of Missouri law appear to work an injustice on the people of North Carolina, the state whose law would otherwise apply under the lex loci contrac-tus rule.
Thus, the trial court found the requirements of the Messer analysis were met, and the choice of law provision in the insurance policy was valid and enforceable.
On appeal, Plaintiffs first contend that, since the insurance policy is a contract formed in North Carolina, the policy is thus governed by North Carolina law under the rule of lex loci contractus. However, the Tennessee Supreme Court has held that “a contract is presumed to be made with reference to the law of the place where it was entered into unless it appears it was entered into in good faith with reference to the law of some other state.” Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 467 (Tenn.1973) (quoting Deaton v. Vise, 186 Tenn. 364, 210 S.W.2d 665, 668 (1948)) (emphasis added). This is the rule illustrated in Messer, which explains that if the parties express an intent to “instead apply the laws of another jurisdiction, then that intent will be honored provided certain requirements are met.” Messer, 131 S.W.3d at 475 (emphasis added). Thus, our analysis hinges upon whether the Missouri choice of law provision meets the require*155ments established in Messer because the parties expressed a contrary intent to apply the laws of Missouri.
Nevertheless, Plaintiffs contend the choice of law provision is unenforceable because the parties’ choice of Missouri law is “contrary to ⅛ fundamental policy of a state having [a] ‘materially greater interest’ and whose law would otherwise govern.” Messer, 131 S.W.3d at 475 (internal citations omitted). Specifically, Plaintiffs argue that North Carolina has a materially greater interest, and that the parties’ choice of Missouri law is contrary to North Carolina’s fundamental policy of regulating insurance.
In support of their argument, Plaintiffs rely on the comments to the Restatement (Second) of Conflict of Laws § 187, which provide in part:
To be “fundamental,” a policy must in any event be a substantial one.... [A] fundamental policy may be embodied in a statute which makes one or more kinds of contracts illegal or which is designed to protect a person against the oppressive use of superior bargaining power. Statutes involving the rights of an individual insured as against an insurance company are an example of this sort[.]
Restatement (Second) of Conflict of Laws § 187 cmt. g (1971). Plaintiffs contend North Carolina’s statutory regulations of insurance are mandatory and are of vital interest to the residents of North Carolina. Specifically, Plaintiffs point to N.C. Gen. Stat. Ann. § 58-3-1, which defines the scope and subject matter of North Carolina’s power to regulate insurance policies:
All contracts of insurance on property, lives, or interests in this State shall be deemed to be made therein,- and all contracts of insurance the applications for which are taken within the State shall be deemed to have been made within this State and are subject to the laws thereof.
And, in the specific context of automobile insurance, Plaintiffs point to N.C. Gen. Stat. Ann. § 20-279.21(b)(3), which defines North Carolina’s powers as follows:
No policy of bodily injury liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle, shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, under provisions filed with and approved by the Commissioner of Insurance[.]
Plaintiffs therefore contend that these statutes reveal North Carolina’s fundamental policy of regulating insurance which is “designed to protect a person against the oppressive use of superior bargaining power” in cases involving “the rights of an individual insured as against an insurance company.” Restatement (Second) of Conflict of Laws § 187 cmt. g (1971). Specifically, Plaintiffs rely on a North Carolina Supreme Court case that utilized N.C. Gen.Stat. Ann. § 58-3-1 in its choice of law analysis to determine that North Carolina law governed an insurance policy applied for and issued in California. The court reasoned that “[m]ost of the vehicles insured were titled in [North Carolina] and plaintiffs transportation division is located in [North Carolina].” Collins & Aikman Corp. v. Hartford Accident & Indent. Co., 335 N.C. 91, 436 S.E.2d 243, 245 (1993). Thus, because the insurance contract covered a majority of company vehicles that were titled and garaged in North Carolina, the court determined that N.C. Gen.Stat. Ann. § 58-3-1 mandates North Carolina law. Id. at 246; see also Haugh v. Nationwide Mut. Fire Ins. Co., — *156N.C.App. -, 761 S.E.2d 754 (N.C.Ct.App.2014). Plaintiffs thus contend that, by delivering a policy of insurance to North Carolina providing coverage on a vehicle registered in North Carolina, GEICO subjected itself to the laws of North Carolina.
The facts of this case, however, are distinguishable from those in Collins & Aikman Corporation. While the court noted that most of the insured vehicles were titled in North Carolina, it also focused on the fact that the transportation division was located in North Carolina and, thus, that most of the vehicles were garaged in that state. Here, although the vehicle was registered in North Carolina and owned by North Carolina residents, it was seldom used in North Carolina. To the contrary, the principal location and use of the insured vehicle was in Missouri, where the Riegs’ daughter attended college; therefore, the principal risk associated with the vehicle was in Missouri, not .North Carolina.
The foregoing notwithstanding, and as. the trial court noted, N.C. Gen.Stat. Ann. § 58-3-1 is generally used as North Carolina’s choice of law statute, which would apply if North Carolina were the forum state. St. Paul Fire and Marine Ins. Co. v. Hanover Ins. Co., 187 F.Supp.2d 584, 587 (E.D.N.C.2000) (citing N.C. Gen.Stat. Ann. § 58-3-1 as North Carolina’s choice of law statute governing insurance policies); see also Seneca Specialty Ins. Co. v. Dockside Dolls, Inc., No. 3:12CV19-REP-DJN, 2012 WL 3579879, at . *4 (E.D.Va. June 22, 2012). Thus, this statute does not affect this court’s analysis under Tennessee choice of law principles.
We also find unpersuasive Plaintiffs’ contention that the Missouri choice of law provision is contrary to a North Carolina policy concerning “the oppressive use of superior bargaining power.” Elec. & Magneto Serv. Co. v. AMBAC Int’l Corp., 941 F.2d 660, 663-64 (8th Cir.1991), abrogated by Baxter Int’l, Inc. v. Morris, 976 F.2d 1189 (8th Cir.1992) (holding that a notice provision in Missouri’s statutory scheme regulating franchise agreements was a fundamental policy because the statute was designed to protect franchisees from the oppressive use of franchisor’s superiority); Barnes Group, Inc. v. C & C Products, Inc., 716 F.2d 1023, 1037 (4th Cir. 1983) (Hall, J., concurring in part and dissenting in part) (concluding that statutes regarding covenants not to compete prevent an individual from earning his livelihood and involve a fundamental policy, which is analogous to insurance cases where the oppressive use of superior bargaining power by the insurance company against the insured may be present); Nelson v. Aetna Life Ins. Co., 359 F.Supp. 271, 294 (W.D.Mo.1973) (voiding a choice of law provision, the court noted “[i]t is quite difficult for us to conceive how one issued a certificate of insurance under a group policy negotiated by his employer with an insurance company would ever be in anything except a ‘take-it-or-leave-it’ position.”).
The facts of this case do not indicate an oppressive use of superior bargaining power. Mrs. Rieg sought advice regarding her daughter’s use of the vehicle in Missouri, and her GEICO representative recommended that a Missouri insurance policy was most appropriate. Mrs. Rieg chose to accept this advice, and obtained the Missouri policy. There is no evidence to support a finding that Mrs. Rieg was in a “take-it-or-leave-it” position. To the contrary, the Riegs were not required to purchase a Missouri policy; as the facts reveal, the Riegs had the option to acquire a Missouri policy or a North Carolina policy, *157whichever they elected.4
In addition to the above reasoning, to render foreign law unenforceable as contrary to the public policy of North Carolina, the foreign law “must violate some prevalent conception of good morals or fundamental principle of natural justice or involve injustice to the people of the forum state.” Boudreau, 368 S.E.2d at 857-58 (internal citations omitted). North Carolina’s interest in the regulation of an insurance policy concerning an automobile registered in North Carolina but primarily operated in Missouri does not constitute a fundamental policy. This case does not involve good morals or fundamental principles of natural justice, such as prohibited marriages, wagers, lotteries, racing, gaming, or the sale of liquor. Furthermore, no injustice to the people of North Carolina would occur in the application of Missouri law to the facts of this case.
We, therefore, conclude that the Missouri choice of law provision is not contrary to a fundamental policy of North Carolina. Accordingly, the choice of law provision is valid and enforceable, and un-derinsured motorist coverage is not required under Missouri law. Therefore, the judgment of the trial court is affirmed.
In Conclusion
The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal assessed against Plaintiff-Appellants.
.Plaintiffs were covered under their own automobile insurance policy with Farm Bureau Mutual Insurance Company that provided uninsured motorist coverage in the amount of $30,000 per person and $60,000 per accident.
. N.C. Gen.Stat. Ann. § 20-279.21(b)(2).
. N.C. Gen.Stat. Ann. § 20-279.21(b)(3).
. Mo. Ann. Stat. § 303.025(1). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284142/ | OPINION
PRICE, J.,
delivered the opinion of the Court
in which KELLER, P.J., and WOMACK, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.
The appellant was convicted of the offenses of (1) money laundering of funds of an aggregate value of $190,000, a first-degree felony at the time,1 and (2) conspiracy to commit money laundering of the same aggregate amount, then a felony of the second degree.2 The trial court sentenced the appellant to five years’ confinement for the object offense, although it suspended that sentence and placed the appellant on community supervision for á period of ten years. The trial court sentenced the appellant to three years’ confinement for the conspiracy offense and did not suspend that sentence. On appeal, the Austin Court of Appeals reversed both convictions and rendered a judgment of acquittal with respect to each, having determined that the evidence was legally in*235sufficient to support them.3 We granted the State’s petition for discretionary review to examine its contention that the court of appeals failed to consider all of the evidence and failed to view the evidence it did consider with the proper respect for the jury’s fact-finding function. We will affirm the court of appeals’s judgment.
To be convicted of money laundering, the accused must be shown to have “knowingly ... conducted], supervise^], or facilitated] a transaction involving the proceeds of criminal activity!,]” and the crime that generated the proceeds must generally rise to the level of a felony.4 The appellant was convicted of having facilitated and conspired to facilitate the making of campaign contributions to certain Texas candidates with funds that were tainted because they were generated under circumstances that constituted a felony-grade violation of the Texas Election Code. The appellant has steadfastly insisted, both at trial and on appeal, that the funds were not tainted, for purposes of either money laundering or conspiracy to commit the same, because, as a matter of law, the circumstances under which the funds were generated did not violate any felony provision of the Election Code.
It is axiomatic that, in gauging the legal sufficiency of the evidence to support a particular criminal conviction, reviewing courts are obliged to view all of the evidence in the light most favorable to the jury’s verdict, in deference to the jury’s institutional prerogative to resolve all contested issues of fact and credibility.5 But sometimes appellate review of legal sufficiency involves simply construing the reach of the applicable penal provision in order to decide whether the evidence, even when viewed in the light most favorable to conviction, actually establishes a violation of the law.6 The court of appeals tacitly recognized this when it repeatedly alluded to our opinion in Williams v. State, in which we observed that, “[i]f the evidence establishes precisely what the State has alleged, but the acts that the State has alleged do not constitute a criminal offense under the totality of circumstances, then that evidence, as a matter of law, cannot support a conviction.”7 We agree with the court of appeals’s ultimate conclusion that, as a matter of law, what the State has proven in this case does not constitute either of the alleged criminal offenses.
I. BACKGROUND
A. The Facts
At the time he allegedly committed these offenses, in 2002, the appellant was the Republican Majority Whip of the United States House of Representatives. In *236his capacity as Republican Majority Whip, the appellant established a congressional leadership federal political action committee called Americans for a Republican Majority (“ARMPAC”),8 with Jim Ellis as its director. In a calculated effort to gain more Republican officeholders in the Texas House of Representatives during the 2002 election cycle, with the ultimate goal of obtaining redistricting in Texas so that more Republicans might gain seats from Texas in the United States House of Representatives, the appellant set in motion events that led to the formation of Texans for a Republican Majority (“TRMPAC”), a Texas general-purpose political committee, with Ellis’s friend, John Colyandro, as its director. TRMPAC hired two fund-raisers: Susan Lilly, who specialized in raising political donations from individuals, and Warren RoBold, whose specialty was corporate fund-raising. TRMPAC generated fund-raising brochures, expressly identifying as its mission to “help Republican candidates successfully run and win campaigns in Texas” and assuring corporate donors that, “[ujnlike other organizations, your corporate contribution to TRMPAC will be put to productive use.” Indeed, “[rjather than just paying for overhead,” corporations were told, “your support will fund a series of productive and innovative activities designed to increase our level of engagement in the political arena.” Among those activities promised were “[ajctive candidate evaluation and recruitment” and “[mjonitoring of campaign progress.” One solicitation flier aimed at both individual and corporate donors specifically listed among TRMPAC’s activities that it would “[f]ind the best candidates and help them win[,]” and, more pointedly, “[djirect campaign contributions in targeted races.” Another promised that “[y]our support today will go directly to help Republican candidates in Texas successfully run and win their campaigns.” Yet another flier — this one actually returned to TRMPAC along with a $5,000 corporate donation — directly asserted that “[a]ll contributions, whether to the PAC or individuals, will be used for direct campaign expenses.” The appellant was listed as a member of TRMPAC’s advisory board on most of this fund-raising literature, although the advisory board’s function was largely ceremonial.
The record suggests that RoBold enjoyed greater success raising corporate contributions than Lilly did soliciting from individuals. By the middle of September of 2002, TRMPAC had raised more than $350,000 in corporate contributions. Those funds were deposited in TRMPAC’s so-called “soft money” account, out of which staff salaries and administrative expenses were regularly paid. TRMPAC also maintained a “hard money” account, into which it deposited contributions from individuals. In late August or early September of 2002, Ellis approached Terry Nelson, an officer with the Republican National State Election Committee (“RNSEC”), about the possibility of TRMPAC contributing soft money to RNSEC in exchange for RNSEC making contributions from its hard money account to Texas candidates. On September 13, 2002, Colyandro signed a blank check from TRMPAC’s soft money account and forwarded it to Ellis in Washington, who then completed the check in the amount of $190,000, payable to RNSEC. On receipt, RNSEC deposited the check into its own soft money account. A short time later, *237TRMPAC provided RNSEC with a list of seven Republican candidates for the Texas House of Representatives and requested RNSEC to send specific amounts totaling $190,000, and in early October, the RNSEC cut checks to the campaigns of those seven candidates from its hard money account. At trial, this process was characterized by both parties as a “money swap.” There was some testimony that, because the uses to which individual political contributions can be put are more extensive than the permissible uses of corporate soft money, hard money is typically considered more valuable than soft, and that a “one-for-one” exchange of the type that TRMPAC negotiated with RNSEC was somewhat unusual. In any event, it is undisputed that RNSEC never transferred any money from its soft money account to its hard money account to cover the contributions it made to the seven Texas candidates.
Although the appellant did not testify at trial, certain statements he had made to the media over the years between the time of the indictment in 2005 and his trial in 2010 were introduced into evidence. Through those statements the appellant denied any direct participation in the money swap between TRMPAC and RNSEC, but he acknowledged that he was informed of the swap, and expressly approved of it, shortly after the fact. Indeed, it has been the consistent position of the defense throughout these proceedings that the ■swap was a perfectly legal exchange that did not violate the Texas Election Code. And indeed, the State does not seem to take issue with the appellant’s assertions that neither TRMPAC’s contribution of its excess soft money to RNSEC nor RNSEC’s contributions to specific Texas candidates ■ from its hard money account were unlawful in themselves. It was the State’s principal theory at trial, nevertheless, that the prior agreement between TRMPAC and RNSEC to swap precisely $190,000 of corporate contributions from TRMPAC’s soft money account for that same amount of direct candidate contributions from RNSEC’s hard money account violated the Election Code, thus generating criminal proceeds for purposes of money laundering.9 Alternatively, on appeal and again in this Court, the State has argued that, even if the TRMPAC/RNSEC agreement did not render the $190,000 “proceeds of criminal activity” for purposes of money laundering, the corporations that contributed the money to TRMPAC in the first place also violated the Election Code, rendering the swap between TRMPAC and RNSEC a transaction involving tainted funds.
In support of this latter, largely appellate theory, the State points to testimony that it elicited from executives of a dozen *238corporations who described the circumstances under which they were solicited to make, and did make, the initial corporate political contributions to TRMPAC. One of those corporate executives maintained that his company had insisted in writing that their contributions be used for the administrative expenses of the general-purpose committee itself, and for no other purpose, in undoubted compliance with Texas law.10 But RoBold confirmed that he did not expressly tell any of the corporate contributors that they must expressly designate their contributions for administrative uses only. Five of the corporate executives were never asked during trial whether • they had expressly limited TRMPAC’s use of their contributions to this purpose, though it is apparent from their demonstrated ignorance of Texas law with respect to the specific limitations on corporate contributions that they did not.11 And six of the corporate executives expressly admitted on the stand that their corporate- political contributions were not expressly limited in scope to the specific purpose of defraying TRMPAC’s administrative costs.12 Most of them maintained, however, that they had trusted or assumed that their contributions would be put to a lawful purpose and/or that they had duly consulted with their corporate legal counsel, it never having been their intention to violate Texas law.13
B. The Indictment
In a re-indictment,14 the appellant was charged by separate counts with both the object offense of money laundering (Count II) and with conspiracy to commit money *239laundering (Count I). In both counts, the proceeds of criminal activity that were claimed to have been laundered derived from alleged violations of Subchapter D of Chapter 253 of the Election Code,15 which governs corporate political contributions.
In Count II, which set out the object offense of money laundering,16 the indictment alleged two things of particular note. First, it expressly alleged that the particular transaction that constituted the money laundering was the transfer of $190,000 from the RNSEC to the seven Texas candidates. Second, it expressly identified the event that rendered that $190,000 the “proceeds of criminal activity” to be “a felony violation of Section 253.003 of the Election Code,” and more specifically, “the offense of knowingly making a political contribution in violation of Subchapter D of the Texas Election Code[.]”17 Count II did not specifically allege who knowingly made the political contribution that violated Subchapter D. It also did not allege, as an alternative theory of the offense, that the $190,000 sent from RNSEC to the seven candidates also constituted the proceeds of criminal activity by virtue of the knowing acceptance (that is, by TRMPAC) of a political contribution in violation of Subchapter D.18 Thus, Count II required the State to prove the underlying Election *240Code violation by showing that someone knowingly made an unlawful political contribution under Section 253.008(a) — not that TRMPAC knowingly accepted one as proscribed by Section 253.003(b).19
Count I, which alleged conspiracy to commit money laundering,20 was somewhat less specific with respect to the object offense, as conspiracy counts are wont to be.21 Unlike Count II, Count I did not identify the particular money laundering transaction that the conspirators allegedly agreed to perpetrate. However, as with Count II, Count I also did not allege the alternative theory that the proceeds derived from criminal activity by virtue of the knowing acceptance of a political contribution in violation of Subchapter D of Chapter 253 of the Election Code. Thus, both counts required the State to prove the underlying Election Code violation by showing that someone knowingly made an unlawful political contribution under Section 253.003(a), not that TRMPAC knowingly accepted one as proscribed by Section 253.003(b).
C. The Appeal
The court of appeals panel, over the dissent of the Chief Justice, held that the evidence was insufficient to establish either count of the indictment.22 The majority opinion began with the premise that sufficient proof with respect to both counts, including the conspiracy count, depended upon evidence “that there was a felony criminal offense which generated pro*241ceeds.”23 With respect to the State’s trial theory that TRMPAC’s agreement with RNSEC to swap soft corporate money for hard money sufficed to taint the money that RNSEC sent back to the candidates, the court of appeals rejected the State’s argument that this exchange constituted a violation of the Election Code.24 Noting that it is legal for Texas corporations to make expenditures and contributions in connection with out-of-state elections, the court of appeals found nothing illegal about TRMPAC’s transfer of $190,000 of corporate donations to RNSEC.25 Nor did RNSEC violate the Election Code by sending $190,000 from its own individual donor hard money account to Texas candidates.26 Because no funds were transferred between RNSEC’s two accounts, the money TRMPAC sent to RNSEC retained its character as soft corporate money, to be used for whatever legal purposes RNSEC deemed fit, while the money RNSEC sent from its hard money account to Texas candidates retained its character as individual donor money.27 Moreover, even if the funds that TRMPAC sent to RNSEC were somehow tainted, the transaction by which RNSEC sent money to Texas candidates did not “involve” that tainted money, and therefore could not support money laundering (or even a conspiracy to commit money laundering).28
Nor did the majority believe that the State proved, for purposes of either money laundering or conspiracy to commit money laundering, that RNSEC’s transfer of funds involved criminally tainted proceeds by virtue of the initial corporate contributions made to TRMPAC. The court of appeals held that the State’s evidence failed to show that the corporations harbored the requisite intent to violate Section 253.003(a) of the Election Code, “[gjiven the testimony of the corporate representatives [of the lack of any intent to violate Texas law] and the undisputed facts that the corporations could lawfully make donations to TRMPAC and TRMPAC could lawfully transfer the corporate funds out of state[.]”29 For this reason as well, the court of appeals held the evidence to be insufficient to support a conviction for either the object offense or the conspiracy offense.
Chief Justice Jones dissented. He opined that the jury had sufficient evidence, particularly in the form of TRMPAC’s fund-raising literature, to infer that the corporate contributors were aware that TRMPAC intended to direct their contributions to candidates, in violation of Subchapter D of Chapter 253 of the Election Code.30 In a footnote, he expressed the additional view that the agreement between TRMPAC and RNSEC to swap soft money for hard money was also enough to demonstrate an Election Code violation, opining that “[s]uch conduct appears to be an attempt to circumvent, rather than comply with, Election Code restrictions on the use of corporate political contributions.”31 Particularly in view of this disagreement among the justices below,32 we granted discretionary review.
*242II. ANALYSIS
A. The Law: The Election Code and “Criminal Proceeds”
1. Definitions
A person commits money laundering if he “knowingly ... conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity!.]”33 A person commits criminal conspiracy if, with intent that a felony (here, money laundering) be committed, he agrees with one or more persons that they engage in conduct that would constitute that offense, and one of them performs an overt act in pursuit of that agreement.34 “Criminal activity” for purposes of money laundering “means any offense, including any preparatory offense, that is ... classified as a felony under the laws of this state[.]”35 “ ‘Proceeds’ means funds acquired or derived directly or indirectly from, produced through, or realized through an act.”36 The criminal activity, the proceeds of which are said to have been involved in the transaction that the appellant conducted, supervised, or facilitated, was a purported felony-level violation (or violations) of the Texas Election Code.
Specifically, the proceeds are said to have been corporate political contributions made under circumstances that constituted a third-degree felony under the Election Code. Under Chapter 253, Subchapter D, Section 253.094 of the Election Code, “[a] corporation ... may not make a political contribution ... that is not authorized by this subchapter.”37 Violation of this stricture is labeled “an offense” that is a “felony of the third degree.”38 An illegal corporate political contribution is also a third-degree felony by virtue of Sections 253.003(a) and (e) of the Election Code, which provide that “[a] person may not knowingly make a political contribution in violation of’ Chapter 253 of the Election Code,39 and that making such an illegal contribution “is a felony of the third degree if the contribution is made in violation of Subchapter D[,]” which covers Section 253.094’s limitations on corporate political contributions.40 A corporation “may make *243one or more political expenditures to finance the establishment or administration of a general-purpose committee.”41 A “political committee” is “a group of persons that has as a principal purpose accepting political contributions or making political expenditures!;,]” while a “general-purpose committee” is a political committee “that has among its principal purposes];,]” inter alia, supporting or opposing unidentified candidates for public office.42 A “political contribution” includes a “campaign contribution,” which is defined, in turn, as “a contribution to a candidate or political committee that is offered or given with the intent that it be used in connection with a campaign for elective office[.]”43 Finally, “ ‘[contribution’ means a direct or indirect transfer of money, goods, or services, or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a transfer.”44
2. The State’s Alternative Theories of “Criminal Proceeds”
In a nutshell, the Texas Election Code prohibits a corporation from making a contribution to a candidate or political committee that is offered or given with the intent that it be used in connection with a campaign. The State contends that the appellant committed money laundering, and conspired to commit money laundering, by facilitating a transaction involving funds that constituted criminal proceeds in that they were derived from felonious corporate political contributions.
The State proffers two theories for what rendered the corporate political contributions felonious. At trial, the State’s theory was that the appellant’s general-purpose political committee, TRMPAC, illegally agreed upon a scheme with RNSEC to route corporate political contributions indirectly to candidates, in violation of Sections 253.003(a), 253.094(a), and 253.100(a) of the Election Code, which together prohibit making corporate contributions to a general-purpose committee for any purpose other than the establishment and administrative expenses of that general-purpose committee.45 We shall call this the “agreement” theory of criminal proceeds.' The State’s second theory, stressed more on appeal than at trial, was that the corporate political contributions were illegal at their inception because they were made by the various corporate entities to TRMPAC, not as designated “political expenditure^] to finance the establishment or administration of [that] general purpose commit*244tee[,]” as permitted by the Election Code,46 but instead, with the specific intent that they be put to impermissible use in connection with Texas campaigns.47 We shall designate this the “corporation” theory of criminal proceeds. We shall determine whether the evidence is sufficient to support convictions under either theory.
There is an additional wrinkle to iron out before we proceed: What are the theories of the money laundering “transaction” that are available to the State for sufficiency-of-the-evidenee purposes? As we have already noted, Count I, which alleged conspiracy to commit money laundering, did not specify the particular transaction by which the State intended to prove the underlying object offense of money laundering. But Count II, which alleged the object offense, identified the transaction to be RNSEC’s hard money contributions to the seven Texas candidates. Is the State bound to this particular transaction, at least for purposes of proving the object offense of money laundering? It is arguable that sufficiency of the evidence should be measured against any non-statutory theory of “transaction” that the evidence would support, and not simply that which was alleged in the indictment.48 Rather than definitively resolve that question today, we will simply assume arguendo that the evidence may also support the appellant’s convictions based on the transaction by which TRMPAC conveyed money from its soft money account to RNSEC’s soft money account, so long as the evidence establishes that this transaction was made with funds that were by that time already tainted by either of the State’s theories of criminal proceeds — “agreement” or “corporate.” Ultimately, we agree with the court of appeals that the appellant’s convictions cannot stand because there is no possible view of the evidence that can establish that any transaction alleged to comprise money laundering involved the proceeds of a felony violation of the Texas Election Code, under either theory of criminal proceeds.
B. Transaction One: RNSEC’s Contribution to Texas Candidates
1. The “Agreement” Theory of Criminal Proceeds
Presupposing that the relevant money laundering transaction is RNSEC’s *245hard money contributions to the seven Texas candidates, the question under the State’s “agreement” theory is whether those funds constituted criminal proceeds by virtue of TRMPAC’s earlier agreement with RNSEC to “swap” TRMPAC’s soft money for RNSEC’s hard money. In the State’s view, this prior agreement itself constituted a felonious political contribution, in contemplation of Sections 253.003(a) and (e) of the Election Code, because it was an “agreement” to make an “indirect transfer of money” “with the intent that it be used in connection with a campaign for elective office,” under Sections 251.001(2), (3) and (5) of the Election Code.49 Like the court of appeals* we disagree.
The State does not contend that the transfer of corporate contributions from TRMPAC’s soft money account to RNSEC’s soft money account was, in itself, a violation of the Election Code.50 And it is uncontested that RNSEC, in turn, never transferred this corporate money from its soft money account into its individual hard money account. Nor does the *246State contend that the transfer of money from RNSEC’s hard money account to the Texas candidates violated the Election Code. Presumably the State would agree that, had these transactions occurred serendipitously, without any prior collusion or plan on the part of TRMPAC and RNSEC — that is to say, had TRMPAC simply decided to send its excess corporate contributions (beyond what it needed to cover its own administrative expenses) to RNSEC, which enjoyed greater flexibility in their uses, and had RNSEC made a wholly independent determination that some of its hard money could best be put to use in the form of contributions to support specific Republican candidates in Texas — then there would be no identifiable violation of Subchapter D o'f Chapter 253 of the Election Code. Although the evidence is clear that there was an explicit agreement to “swap” TRMPAC’s soft corporate money for RNSEC’s hard money, we fail to perceive how such a prior agreement — even an agreement entailing identical amounts (the so-called “one-for-one” swap of $190,000) and specifying particular candidates — could serve to transmute two transfers, neither of which by itself violates the Election Code, into a single transfer that does. In the absence of any transfer of corporate money from RNSEC’s soft money account into its hard money account, the character of the monies never changed; it cannot be said that the Texas candidates ever received corporate contributions, even indirectly. Therefore, we agree with the court of appeals that the agreement between TRMPAC and RNSEC did not violate Subchapter D of Chapter 253 of the. Election Code.
Moreover, even were we to disagree with the court of appeals and hold that the prior agreement could somehow operate to change the character of the $190,000 that RNSEC sent to the Texas candidates from hard money into corporate soft money, we still could not conclude that the evidence would suffice to establish money laundering. The reason is fairly simple: There is nothing in the record to show that the appellant knew that he was conducting, supervising, or facilitating a transaction that involved the proceeds of criminal activity. The State has failed to establish the requisite culpable mental state to prove the offenses of money laundering and conspiracy to commit money laundering.
A person commits money laundering if he “knowingly ... conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity[.]”51 From a grammatical standpoint, this statutory language is patently ambiguous. Is it enough that the person knowingly conducts, supervises, or facilitates a transaction? Or must he also be “aware” of the added circumstance surrounding that conduct that makes it unlawful, namely, that the transaction he is conducting, supervising, or facilitating involves the proceeds of criminal activity?52 How much of the ensuing statutory language is the adverb “knowingly” intended to modify? As in other instances of statutory construction in the face of this sort of grammatical uncertainty, the question boils down to “how far down the sentence” the Legislature intended for the mens rea requirement of knowledge “to travel.”53 We think the Legisla*247ture must surely have intended that, to commit or conspire to commit money laundering, the actor must be aware of the fact that the transaction involves the proceeds of criminal activity. Otherwise, the statute would attach a mens rea to nothing more than conduct — conducting, supervising, or facilitating a transaction — that is not intrinsically blameworthy. As in McQueen v. State, “[w]hat makes the conduct unlawful is that it is done under certain circumstances,” and, in the face of a statute that is ambiguous with respect to the extent of the mens rea requirement, we have resolved the ambiguity in favor of applying “some form of culpability ... to those ‘conduct elements’ which make the overall conduct criminal.”54 That is how the ambiguity in Section 34.02(a)(2) must be resolved.55
• There is no evidence in the record from which it may fairly be inferred that the appellant was aware that, by agreeing beforehand to send $190,000 of soft money to RNSEC in exchange for RNSEC sending $190,000 of its hard money to the Texas candidates, TRMPAC had committed a violation of the Election Code. Indeed, the evidence suggests that the appellant, to the extent that he was personally involved in the agreement at all, believed that, so long as the soft money retained its character as soft money and the contributions from RNSEC to the Texas candidates came from an account into which no corporate contributions had been deposited, the agreed-to swap would not run afoul of the Election Code. In the absence of some decisional law or other authority in Texas at that time that had construed the Elec*248tion Code so as to render such an agreed swap illegal under the Election Code, it cannot reasonably be concluded that the appellant was, or even could have been, aware that the transaction whereby RNSEC contributed hard money to the seven Texas candidates involved'the proceeds of criminal activity. That being so, he simply was not susceptible to conviction for laundering money or conspiring to launder money.56
2. The “Corporation” Theory of Criminal Proceeds
Continuing to entertain the presupposition that the relevant money laundering transaction is, as alleged in Count II of the indictment, RNSEC’s hard money contributions to the seven Texas candidates, the evidence cannot support the appellant’s convictions under the State’s “corporation” theory for the same reasons that the evidence cannot support prosecuting' the appellant under the State’s “agreement” theory. Because this transaction did not involve the corporate contributions originally made to TRMPAC (and because the appellant was not aware, in any event, that the transaction did involve corporate contributions on account of the agreement to swap TRMPAC corporate contributions for RNSEC hard money), it is inconsequential to the sufficiency analyses whether those corporate contributions were made to TRMPAC in violation of Section 253.003(a) and Subchapter D of Chapter 253 of the Election Code. The transactions from RNSEC to the seven Texas candidates did not involve those corporate contributions. Thus, the evidence fails to establish that the transaction from RNSEC to the seven Texas candidates constituted money laundering or conspiracy under either the “agreement” or “corporation” theory of criminal proceeds.
C. Transaction Two: TRMPAC’s Contribution to RNSEC
Changing our focus to TRMPAC’s transfer by check of the $190,000 from its soft money account to RNSEC’s soft money account as the relevant money laundering event, we must still conclude that the evidence was insufficient. It is true that, unlike the transfers from RNSEC’s hard money account to the seven Texas candidates, this earlier transaction did involve *249corporate political contributions that had been deposited into TRMPAC’s soft money-account. If these contributions were tainted because illegally made at the time TRMPAC forwarded them to RNSEC, then the jury may yet have had a rational basis to convict the appellant. For the reasons that follow, however, we ultimately reject the conclusion that the transfer from TRMPAC to RNSEC involved tainted proceeds.
1. The “Agreement” Theory of Criminal Proceeds
The agreement between TRMPAC and RNSEC was already in existence by the time the transaction occurred by which TRMPAC transferred $190,000 from its soft money account to RNSEC’s soft money account. But, for the reasons we have already explained at length, that agreement did not contemplate a transaction involving corporate contributions at all, much less an illegal transfer of corporate contributions, since the agreement was for RNSEC to make the contributions to the Texas candidates from its hard money account. The proceeds were not criminally tainted on account of such an agreement. Therefore, conviction cannot be sustained predicated on TRMPAC’s transfer of the money to RNSEC as the money laundering event based on the State’s agreement theory of criminal proceeds. But the proceeds may yet have been tainted by the time that transaction occurred if the corporate contributions were illegally made at their inception, and we turn finally to that question.
2. The “Corporation” Theory of Criminal Proceeds
As we have already observed, there are actually two provisions in the Election Code that serve to criminalize unauthorized corporate political contributions. On the one hand, Section 253.094(a) prohibits political contributions by corporations that are “not authorized by” Sub-chapter D of Chapter 253, with Section 253.094(c) designating such an offense a third-degree felony.57 While Section 253.094 identifies no culpable mental state, neither does it plainly dispense with one. Under Section 6.02(b) and (c) of the Texas Penal Code, applicable to offenses defined outside of the Penal Code by virtue of Section 1.03(b), “intent, knowledge, or recklessness suffices to establish criminal responsibility.”58 On the other hand, a “person,” including a corporation,59 also commits the same level of felony (third degree) if he “knowingly” makes a political contribution that violates Subchapter D of Chapter 253, under Sections 253.003(a) and (e) of the Election Code. We do not think that the legislature intended to create separately actionable offenses under Sections 253.094 and 253.003 of the Election Code. After all, it makes little sense to prohibit identical conduct in separate statutory provisions that carry an identical range of punishment, one of which fails to specify any culpable mental state at all but for which a culpable state is nevertheless re*250quired (and for which mere recklessness will suffice), while the other must' be committed at least knowingly. The provision requiring knowledge would be rendered essentially superfluous under this state of affairs, which means the Legislature would have accomplished a useless thing, contrary to our usual interpretive assumption.60 To avoid this result, we shall read the two provisions in pari materia, entertaining the “supposition that several statutes relating to one subject are governed by one spirit and policy, and are intended to be consistent and harmonious in their several parts and provisions.”61 Accordingly, we conclude that the Legislature must have intended to identify only one third-degree felony offense of making a corporate contribution in violation of Sub-chapter D of Chapter 253 of the Election Code, and that, moreover, it must have intended that such an offense be committed knowingly.
Here again, however, we are confronted with a statutory provision for which it is “not at all clear how far down the sentence the word ‘knowingly’ is intended to travel[.]”62 As with the money laundering statute, we conclude that the Legislature intended that conviction should depend upon proof of more than just the bare conduct (“make a political contribution”), which (while it may be subject to state regulation, within First Amendment boundaries) is not intrinsically condemnable. We hold that the State must also show that the actor was actually aware of the existence of the particular circumstance surrounding that conduct that renders it unlawful. Moreover, as written, Section 253.003(a) requires that the actor be aware, not just of the particular circumstances that render his otherwise-innocuous conduct unlawful, but also of the fact that undertaking the conduct under those circumstances in fact constitutes a “violation of’ the Election Code.63
We are keenly aware that the Texas Supreme Court has construed a similarly worded provision of the Election Code differently. In Osterberg v. Peca,64 our sister Court was called upon to interpret Section 253.131(a), authorizing civil damages for the making of campaign contributions and expenditures that violate Chapter 253.65 There, as here, the question was whether the word “knowingly” in the statute modified merely the making of a campaign contribution, or whether it also modified the statutory circumstance that the contribution was made “in violation of’ the Election Code.66 The majority concluded that “knowingly” should be read to modify only *251the conduct, not the attendant circumstance, pointing to language from other Election Code provisions, including Section 258.003(b),67 that are more explicit in assigning a mens rea to the circumstance surrounding conduct, as an indication of such a legislative intent.68 Here, however, we are construing a criminal provision, not a civil one. Moreover, it is a penal provision that appears outside of the Penal Code itself, and in construing penal provisions that appear outside the Penal Code, we have recognized that the rule of lenity applies,69 requiring “that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”70 And indeed, even when construing provisions within the Penal Code, we have typically resolved ambiguities with respect to the scope of the applicable mens rea in favor of making sure that mental culpability extends to the particular circumstance that renders otherwise innocuous conduct criminal.71 That the Legislature may have more explicitly assigned mental culpability to attendant circumstances in neighboring statutory provisions does not eliminate the patent ambiguity from Section 253.008(a) itself. Nor does it absolve us of the duty to ascribe a ’culpable mental state to the particular “statutory elements that criminalize otherwise innocent conduct.”72
The State is correct to contend that there is evidence in the record from which the jury could rationally have inferred that the corporations that contributed to TRMPAC were aware that TRMPAC was determined to find a way to steer those contributions to the campaign coffers of specific candidates. The fund-raising literature at the very least encouraged the corporations to assume as much, and there was some testimony suggesting that Ro-Bold, TRMPAC’s corporate fund-raiser, may have not have disabused them of this notion, notwithstanding his denials.73 But *252nothing in the record shows that anyone associated with the contributing corporations actually realized that to make a political contribution under these circumstances would in fact violate Section 258.003(a) (or any other provision) of the Texas Election Code. Only one of the testifying corporate executives evinced any such knowledge, and he represented one of the corporations, Philip Morris, that expressly designated that its contributions be put exclusively to the purpose of administering TRMPAC itself, so that its contribution was lawfully made. Every corporate executive who was specifically asked vehemently denied any intention to violate Texas law,74 and the State produced no evidence that any of them was actually cognizant of any illegality. The State argues that the jury was entitled to discredit these corporate disavowals of illegal intent. That may be the case, but there remains an utter lack of circumstantial evidence— evidence, for example, of covert dealings or the wholesale failure to vet the contributions through in-house corporate counsel — from which a jury might rationally infer corporate knowledge of actual unlawfulness. While the corporate contributors may have had enough information about TRMPAC’s apparent intentions from the fund-raising literature that they were, or ought to have been, aware of a substantial and unjustifiable risk that their corporate contributions would violate the Texas Election Code,75 neither recklessness nor negligence serves to establish an offense under Section 253.003(a). On this state of the record, we cannot conclude that, at the time that TRMPAC transferred those corporate contributions from its soft money account to RNSEC’s soft money account, the contributions were tainted because the corporations had made them with the awareness that to do so under the circumstances constituted a violation of Chapter 253.003(a) of the Election Code. Because the State has failed to prove that the corporate contributors harbored the requisite mens rea to establish an offense under the Election Code, we agree with the court of appeals that it has not established that the *253money conveyed by TRMPAC to RNSEC constituted the proceeds of criminal activity for purposes of money laundering or conspiracy to commit money laundering.
III. CONCLUSION
For these reasons, we agree with the court of appeals that, as a matter of law, the State failed to prove facts to establish that the appellant committed either the object offense of money laundering or the inchoate offense of conspiracy to commit the same. Accordingly, we affirm the judgment of the court of appeals.
JOHNSON, J., filed a concurring opinion in which COCHRAN, J., joined.
MEYERS, J., filed a dissenting opinion.
. Tex. Penal Code § 34.02(a)(2), (e). The offense is alleged to have occurred in 2002, at which time it was a first-degree felony to launder money of an aggregate value greater than $100,000. The money laundering statute has since been amended to raise the threshold value for a first-degree felony to $200,000. Acts 2005, 79th Leg., ch. 1162, § 2, p. 3803, eff. Sept. 1, 2005. All citations are to the provisions of the Texas Penal Code and Texas Election Code as they existed in 2002.
. Tex. Penal Code § 15.02(a), (d). Such an offense would have been a second-degree felony in 2002, since the object offense of money laundering was a first-degree felony at that time.
. DeLay v. State, 410 S.W.3d 902 (Tex.App.Austin 2013).
. See Tex. Penal Code § 34.02(a)(2); id. § 34.01(1)(A). "Criminal activity” may also include an offense punishable by confinement for more than one year under the laws of another state. Id. § 34.01(1)(B). That provision is not applicable in this case.
. E.g., Brooks v. State, 323 S.W.3d 893, 899 & n. 13 (Tex.Crim.App.2010).
. See, e.g., Shipp v. State, 331 S.W.3d 433 (Tex.Crim.App.2011) (plurality opinion) (holding that a retail store's printed receipt falls within the catch-all of “another commercial instrument” in contemplation of the forgery statute and that the evidence was therefore sufficient to support a conviction for passing a forged store receipt); Wright v. State, 201 S.W.3d 765 (Tex.Crim.App.2006) (construing a statutory provision to hold that unusable toxic substances may be included to obtain a sufficient aggregate weight of methamphetamine to sustain the conviction).
.DeLay, 410 S.W.3d at 907, 915, 916 (citing Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007)).
. Testimony showed that "[a] leadership PAC is a Political Action Committee that many of the members of Congress ... have” whereby "the monies that they are able to raise and put in their PACs, they can use to help other like-minded politicians across the country get elected[.]"
. In its opening remarks during the final guilt-phase summations, the State argued:
The moment, the moment that the decision was made to send the soft dollar check up to Washington, D.C. with the intent that it ultimately go to candidates for elective office is the moment that this money became proceeds of criminal activity, specifically, a third-degree felony.
[[Image here]]
This agreement, this — this agreement with the names of the candidates and the corresponding amounts is what separates this transaction from any other swap that anyone else in the [sic] history has done. It is this agreement that makes it money laundering.
In its brief on discretionary review, as in its brief on appeal, the State has consistently characterized the agreement as an "exchange” whereby TRMPAC used soft corporate contributions to “purchase” hard money from RNSEC for use by candidates. State’s Brief on the Merits at 25, 43, 45; State's Brief on Direct Appeal at 170. The State employed similar terminology during its oral argument to this Court.
. Philip Morris Companies, Inc., contributed $25,000, along with a cover letter designating that this contribution must be used by TRMPAC exclusively to help cover its administrative expenses. TRMPAC’s accountant testified that another corporate donor, Lex-mark International, Inc., also expressly designated that its $5,000 corporate contribution could only be put to the purpose of defraying TRMPAC’s administrative costs.
. El Paso Energy Services Company, Cornell Companies, Bacardi U.S.A., Inc., Cracker Barrel, and Reliant Energy made contributions of $50,000, $10,000, $20,000, $25,000, and $25,000, respectively. Both Cracker Barrel's and Reliant Energy's contributions were not deposited into TRMPAC’s soft money account until October 1, 2002, several weeks after Colyandro had forwarded the blank check from that account to Ellis to hand over to RNSEC.
. Five companies made corporate contributions without specifying a particular use for which they must be put: Questerra Corporation ($50,000), Westar Energy ($25,000), Diversified Collection Services, Inc. ($50,000), Sears Roebuck and Co. ($25,000), and The Williams Companies, Inc. ($25,000).
. During trial, the prosecutor asserted that at least two of the corporations eventually signed diversion agreements with the Travis County District Attorney in order to avoid prosecution in which, the prosecutor claimed, they did admit to some wrongdoing. The defense hotly contested these assertions. The record shows that Sears and Roebuck, Inc., as part of an agreement with the district attorney’s office whereby the indictment against it was dismissed, asserted that it had not intended to violate Texas law. According to the prosecutor, Cracker Barrel also "signed a pretrial diversion agreement accepting responsibility for having made a mistake!,] ” although Cracker Barrel's legal department had vetted TRMPAC’s solicitation and approved the contribution, having perceived no legal impediment at the time.
.The original indictment also charged the appellant with conspiracy to violate the Texas Election Code. This Court ultimately sustained the trial court's ruling "to quash the Election Code-based conspiracy charges” on the basis of our holding that Section 15.01 of the Texas Penal Code, the criminal conspiracy provision, did not apply to offenses defined in the Election Code until legislative amendment in 2003. State v. Colyandro, 233 S.W.3d 870, 885 (Tex.Crim.App.2007); Tex. Penal Code § 15.01. See note 45, post.
. Tex. Elec.Code ch. 253, subch. D.
. Count II of the indictment (money laundering) alleged that the appellant:
did knowingly conduct, supervise, and facilitate a transaction involving the proceeds of criminal activity that constituted an offense classified as a felony under the laws of this state, to wit, the offense of knowingly making a political contribution in violation of Subchapter D of Chapter 253 of the Texas Election Code, a felony violation of Section 253.003 of the Election Code; that the aforesaid transaction consisted of the transfer of funds of the aggregate value of $190,000 from the Republican National Committee and the Republican National State Election Committee, a nonfederal component and account of the Republican National Committee, to several candidates for the Texas House of Representatives that were supported by Texans for a Republican Majority PAC, namely, Todd Baxter, Dwayne Bohac, Glenda Dawson, Dan Flynn, Rick Green, Jack Stick, and Larry Taylor; that the defendants conducted, supervised, and facilitated the aforesaid transaction by:
(1)negotiating with Terry Nelson, deputy chief of staff of the Republican National Committee, for an agreement, arrangement, and understanding whereby Texans for a Republican Majority PAC would make a contribution of a certain sum of ■ money to the Republican National Committee and its nonfederal component and account, the Republican National State Elections Committee, and whereby the Republican National Committee and the Republican National State Elections Committee would make contributions to the aforesaid candidates;
(2) providing the said Terry Nelson with certain information concerning contributions to be made by the Republican National Committee and the Republican National State Elections Committee to the said candidates, to wit, the names of the said candidates and amounts that Texans for a Republican Majority PAC suggested be contributed to each of the said candidates;
(3) signing the check reproduced at the conclusion of this count; and
(4) transferring funds of the value of $190,000 from Texans for a Republican Majority PAC to the Republican National Committee and the Republican National State Elections Committee;
and that the value of the funds that constituted the aforesaid proceeds of criminal activity was $100,000 or more.
. Emphasis added. See Tex. Elec.Code § 253.003(a) ("A person may not knowingly make a political contribution in violation of this chapter."); id. § 253.003(e) (“A violation of Subsection (a) ... is a felony of the third degree if the contribution is made in violation of Subchapter D.”).
. See id. § 253.003(b) ("A person may not knowingly accept a political contribution the person knows to have been made in violation of this chapter.”); id. § 253.003(e) ("A viola*240tion of Subsection ... (b) is a felony of the .third degree if the contribution is made in violation of Subchapter D.”).
. See Curry v. State, 30 S.W.3d 394, 404-05 (Tex.Crim.App.2000) (when the indictment alleges a few, but not all, of the alternative statutory manner and means of committing the offense, the hypothetically correct jury charge against which the sufficiency of the evidence will be measured is limited to only those statutory theories alleged, and evidence of other statutory alternatives will not satisfy the State's burden of proof); Geick v. State, 349 S.W.3d 542, 547-48 (Tex.Crim.App.2011) (when pled, a statutory definition becomes an element of the offense that the State must prove).
. Count I of the indictment (conspiracy) alleged that the appellant:
with intent that a felony be committed, to wit, with intent that the offense of knowingly making a political contribution to a candidate for the Texas House of Representatives in violation of Subchapter D of Chapter 253 of the Texas Election Code, a felony of the third degree, be committed, and with intent that the offense of money laundering of funds of the value of $100,000 or more, a felony of the first degree, be committed, did agree with one or more persons, namely, John Dominick Co-lyandro, also known as "John Colyandro,” James Walter Ellis, also known as "Jim Ellis,” Thomas Dale DeLay, also known as "Tom DeLay,” Texans for a Republican Majority PAC, also known as "TRMPAC,” and the Republican National Committee, also known as "the RNC,” that they or one or more of them engage in conduct that would constitute the aforesaid offense, and the defendant, John Dominick Colyandro, the defendant, James Walter Ellis, and the Republican National Committee, did perform an overt act in pursuance of the agreement, to wit: [a lengthy list of overt acts by which TRMPAC sent the check to RNSEC in exchange for particular contributions for the seven named Texas candidates, as paraphrased by the court of appeals, see DeLay, 410 S.W.3d at 908].
. See, e.g., Farrington v. State, 489 S.W.2d 607, 609 (Tex.Crim.App.1973) ("An indictment charging a conspiracy to commit a felony need not allege the offense intended with the particularity necessary in an indictment charging the commission of the intended offense.”); Smith v. State, 781 S.W.2d 418, 420 (Tex.App.-Houston [1st Dist.] 1989, no pet.) (applying the holding of Farrington to an indictment under the current penal code).
. DeLay, 410 S.W.3d at 916.
. Id. at 909.
. Id. at 912-13
. Id. at 913.
. Id.
. Id.
. Id. at 914-15.
. Id. at 911.
. Id. at 916-19.
. Id. at 919 n. 3.
. ' Tex.R.App. P. 66.3(e).
. Tex. Penal Code § 34.02(a)(2).
. Id. § 15.02(a).
. Id. § 34.01(1)(A).
. Id. § 34.01(4).
. Tex. Elec.Code § 253.094(a).
. Id. § 253.094(c).
. The general definitions in the Texas Penal Code apply to penal provisions outside the Penal Code. Tex. Penal Code § 1.03(b). Under Section 1.07(38) of the Penal Code, "person” includes a corporation. Id. § 1.07(38). Moreover, reading the various provisions of Chapter 253 of the Election Code together makes it evident that "person” was meant to embrace corporations. See, e.g., former Tex. Elec.Code § 253.002 (repealed by Acts 2011, 82nd Leg., ch. 1009, § 6(1), p. 2557, eff. June 17, 2011)(prohibiting "a person” from knowingly making a direct campaign expenditure, but then excepting "a corporation” from this prohibition under certain circumstances). Indeed, if the Legislature did not intend for corporations to count as "persons” for purposes of Section 253.003(a), it would not have included subsection (e), making it a felony-grade offense if the "person” violates Sub-chapter D of Chapter 253, governing corporations and labor organizations. Tex. Elec.Code § 253.003(e).
. Tex. Elec.Code § 253.003(a), (e). It is also an offense for a person to "knowingly accept” an illegal campaign contribution, under Section 253.003(b) of the Election Code. See id. § 253.003(b) ("A person may not knowingly accept a political contribution the person knows to have been made in violation of this chapter.”). As we have already observed, however, this theory of how the corporate political contributions may have constituted the "proceeds of criminal activity" for purposes of money laundering and conspiracy to commit money laundering was not alleged in *243the indictment. We express no opinion regarding this theory since it is not before us.
. Id. § 253.100(a) (emphasis added). An "expenditure” is defined as "a payment of money or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a payment.” Id. § 251.001(6).
. Id. § 251.001(12), (14).
. Id. § 251.001(5), (3).
. Id. § 251.001(2).
. Id. §§ 253.003(a), 253.094(a), 253.100(a), 251.001(2), (3), (5). This Court held, in Co-lyandro, 233 S.W.3d at 885, that, at least as of 2002, Section 15.01 of the Texas Penal Code, the criminal conspiracy provision, did not apply to offenses defined in the Election Code-although the Legislature changed that by amendment to the Election Code in 2003. See Acts 2003, 78th Leg., ch. 393, § 2, p. 1633, eff. Sept. 1, 2003; see also note 14, ante. The State focuses on the definition in Section 251.001(2) of “contribution," which includes an "agreement ... to make a transfer[,]” Tex. Elec.Code § 251.001(2), to argue that the appellant violated the Election Code regardless of the applicability of Section 15.01 of the Penal Code to the Election Code.
. Tex Elec.Code § 253.100(a). See Ex parte Ellis, 309 S.W.3d 71, 88 (Tex.Crim.App.2010) (‘‘[I]t is ... clear that [Section] 253.100 contemplates expenditures made by a corporation for certain purposes. A contribution with no strings attached would not qualify as such an expenditure. * * * [T]here is no such thing as a legal undesignated corporate political contribution.”); Tex. Ethics Comm’n Op. No. 132, at 2 (1993) (“[T]he corporation may make a contribution of money to the general-purpose committee, with the restriction that it be used only for permissible purposes under section 253.100.”).
. Tex. Elec.Code §§ 251.001(3), 253.094(a), 253:003(a).
. We measure the sufficiency of the evidence by the so-called hypothetically correct jury charge, one which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). When the indictment alleges only one of alternative statutory definitions or elements for how the offense occurred, the State must prove the alternative that it has pled, and proof of some other alternative will not save the conviction. Johnson v. State, 364 S.W.3d 292, 294 n. 10 (Tex.Crim.App.2012). ”[B]ut we have said also that the hypothetically correct jury charge does not necessarily have to track exactly all of the charging instrument’s allegations.” Id. at 294.
. Tex. Elec.Code § 251.001(2),(3), (5); id, § 253.003(a), (e). Actually, it is less than clear to us that the Texas Election Code makes it a felony for TRMPAC to pass on corporate contributions to candidates. While it is certainly true that TRMPAC would commit a felony by knowingly accepting a political contribution for this purpose, under Section 253.003(b) of the Election Code, id. § 253.003(b), we find no provision in the Election Code making it an independent felony for TRMPAC, once it has illegally accepted such political contributions, to then pass those contributions on to candidates. The trial court instructed the jury in this case that such a transfer was an offense in its own right, but did so on authority of a provision in the Texas Election Code that governs political parties and their political action committees, not a non-party-affiliated general-purpose committee such as TRMPAC. In its final jury charge at the guilt stage of trial, the trial court informed the jurors:
It is a violation of Subchapter D of Chapter 253 of the Texas Election Code for a political party or a General Purpose political committee to use corporate contributions in Texas at any time for purposes other than to defray the normal overhead expenses and operating costs incurred by the party or political committee or to administer a primary election or convention held by a party-
(Emphasis added). But this language (except for the italicized portions) derives from a completely different chapter (not Chapter 253, much less Subchapter D of Chapter 253) of the Election Code, which governs only political parties, not general-purpose political committees such as TRMPAC. See Tex. Elec. Code § 257.002(a) ("A political party that accepts a contribution [from a corporation] may use the contribution only to ... defray normal overhead and administrative or operating costs incurred by the party; or ... administer a primary election or convention held by the party.”).
The closest we can find to a provision in Chapter 253 that might serve to criminalize TRMPAC’s direct transfer of received corporate contributions to a candidate, apart from Section 253.003(b)’s prohibition of the knowing acceptance of political contributions for that purpose, is to be found in Section 253.005. See id. § 253.005(a) ("A person may not knowingly make or authorize a political expenditure, wholly or partly from a political contribution the person knows to have been made in violation of this chapter.”). But a violation of this provision constitutes only a Class A misdemeanor, id. § 253.005(c), and so it cannot support a conviction for money laundering, which requires that the proceeds of criminal activity derive from a felony offense. Tex. Penal Code § 34.01(1)(A).
. See Tex. Ethics Comm’n Op. No. 277, at I (1995) ("Although the restrictions on corporate political activity do not specify that they apply only to activity in connection with Texas elections, we have stated before that the clear purpose of title 15 [of the Texas Election Code, which regulates political funds and campaigns] is to regulate Texas campaigns and Texas elections.”) (citing Tex. Ethics Comm’n Op. No. 208 (1994) (Texas Election Code does not require general-purpose committees to report political expenditures made on out-of-state campaigns and officeholders)).
. Tex. Penal Code § 34.02(a)(2) (emphasis added).
. See id. § 6.03(b) ("A person acts knowingly, or with knowledge, with respect to ... circumstances surrounding his conduct when he is aware ... that the circumstances exist.”).
. Liparota v. United States, 471 U.S. 419, 424 n. 7, 105.S.CL 2084, 85 L.Ed.2d 434 (1985) *247(quoting W. LaFave & A. Scott, Criminal Law § 27 (1972)).
. 781 S.W.2d 600, 603, 604 (Tex.Crim.App.1989). See also Liparota, 471 U.S. at 426, 105 S.Ct. 2084 ("This construction is particularly appropriate where, as here, to interpret that statute otherwise would be to criminalize a broad range of apparently innocent conduct.”); United States v. X-Citement Video, Inc., 513 U.S. 64, 69, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (in construing a federal offense containing an ambiguity with respect to how much of ensuing statutory language the word "knowingly” was meant to modify, the Supreme Court concluded that the culpable mental state must be applied broadly, noting that, "[i]f we were to conclude that 'knowingly' only modifies the relevant verbs in [the statute], we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material[,]” and that "the age of the performers is the crucial element separating legal innocence from wrongful conduct”); Celis v. State, 416 S.W.3d 419, 428 (Tex.Crim.App.2013) (plurality opinion) (“[C]ritical to the McQueen analysis was that the conduct regulated by the statute ... is an ‘otherwise lawful act' that becomes criminal only under certain circumstances[J”).
. This is not to say that, in order to be convicted, the actor must also be aware that conducting, supervising, or facilitating a transaction that he knows involves proceeds of criminal activity constitutes money laundering. Under Section 8.03(a) of the Penal Code, “[i]t is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect.” Tex. Penal Code § 8.03(a). However, as we read Section 34.02(a)(2) of the Penal Code, it is an element of the offense of money laundering that the actor was aware of the fact that the money he is purported to have laundered was the proceeds of felony criminal activity. The federal money laundering statute similarly requires knowledge that the funds constitute ill-gotten gains. See 18 U.S.C. 1956(a)(1) ("Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity...."); United States v. Morelli, 169 F.3d 798, 804 (3d Cir.1999) (one of the elements of money laundering under this provision is "knowledge that the transaction involves the proceeds of some unlawful activity”). But, in order to commit the federal offense, the actor need not know that trafficking in what he knows to be ill-gotten gains constitutes money laundering. United States v. Sokolow, 91 F.3d 396, 408 (3d Cir.1996).
. We perceive at least two other potential bases to question the legitimacy of the State’s "agreement” theory of criminal proceeds. Both questions derive from the statutory definition of "contribution” in Section 251.001(2) of the Election Code: "an agreement made ... to make a transfer.” Tex. Elec.Code § 251.001(2). First of all, in order for the agreement between TRMPAC and RNSEC to exchange soft money deriving from corporate contributions for hard money to be given directly to political candidates to constitute an illegal corporate political contribution, so as to render the later transfer of hard money from RNSEC to the seven Texas candidates a transaction involving "criminal proceeds” for money laundering purposes, must the corporations themselves be parties to that agreement? After all, unless there is a violation of Subchapter D of Chapter 253 of the Election Code, which governs corporate contributions, there is no felony offense upon which to predicate convictions for money laundering or conspiracy to commit money laundering. And there is no evidence in the record that the corporate contributors had any knowledge of, much less1 complicity in, the money swap agreement between TRMPAC and RNSEC. Secondly, does an agreement to make a transfer of money constitute a "contribution” if the recipients of the transfer — here, the seven Texas candidates — are not parties to that agreement? It is at least arguable that the “agreement" contemplated by Section 251.001(2) of the Election Code must be between the contributor and the recipient. There is likewise no evidence in the record to show that any of the candidates was aware of TRMPAC’s agreement with RNSEC. In light of our disposition, we need not resolve these questions today.
. Tex. Elec.Code § 253.094(a), (c).
. See Tex Penal Code § 1.03(b) (“The provisions of Tides 1, 2, and 3 [including Chapter 6] apply to offenses defined by other laws, unless the statute defining the offense provides otherwise[.]”); id. § 6.02(b) (“If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.”); id. § 6.02(c) (“If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.”).
.See note 39, ante.
. E.g., Garza v. State, 213 S.W.3d 338, 349 (Tex.Crim.App.2007) ("We must presume that 'in enacting a statute, the Legislature intends the entire statute to be effective[,]’ and did not intend a useless thing.”) (quoting Heckert v. State, 612 S.W.2d 549, 552 (Tex.Crim.App.1981)).
. 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)).
. Liparota, 471 U.S. at 424 n. 7, 105 S.Ct. 2084 (quoting W. LaFave & A. Scott, Criminal Law § 27 (1972)).
. Tex. Elec.Code § 253.003(a). See McQueen, 781 S.W.2d at 604 (noting the requirement of Tex. Penal Code § 1.02(4) that the Penal Code should be construed "to safeguard conduct that is without guilt from condemnation as criminaT' to hold that "some form of culpability must apply to those 'conduct elements’ which make the overall conduct criminal”).
. 12 S.W.3d 31 (Tex.2000).
. See Tex. Elec.Code § 253.131(a) ("A person who knowingly makes or accepts a campaign contribution or makes a campaign expenditure in violation of this chapter is liable for damages as provided by this section.”).
. Osterberg, 12 S.W.3d at 37-39.
. See Tex Elec.Code § 253.003(b) ("A person may not knowingly accept a political contribution the person knows to have been made in violation of this chapter.”) (emphasis added).
. Osterberg, 12 S.W.3d at 37-39. Four justices dissented, observing that "[t]he Court says ‘knowingly’ [in Section 253.131(a) ] modifies only the act of spending money. But spending money on core First Amendment speech cannot, in and of itself, be against the law — there has to be something more.” Id. at 67 (Enoch., J., dissenting). Later, the dissenters continued: "And while it may be ‘natural’ to give the statute the reading the Court does today, it is no less 'natural,' and indeed it is grammatically sound, to take the Constitution into account and construe ‘knowingly’ to modify the entire succeeding phrase, including 'in violation of [the Election Code].' " Id. at 68.
. See, e.g., State v. Johnson, 219 S.W.3d 386, 388 (Tex.Crim.App.2007) ("We are mindful of the proposition that criminal statutes outside the penal code must be construed strictly, with any doubt resolved in favor of the accused.”); State v. Rhine, 297 S.W.3d 301, 309 (Tex.Crim.App.2009) (“Although the common-law rule that a penal statute is to be strictly enforced does not apply to the Penal Code [citing Tex. Penal Code § 1.05(a)], criminal statutes outside the penal code must be construed strictly, with any doübt resolved in favor of the accused.”) (footnote and internal quotation marks omitted).
. Liparota, 471 U.S. at 427, 105 S.Ct. 2084 (internal quotation marks omitted).
. McQueen, 781 S.W.2d at 603-04.
. X-Citement Video, Inc., 513 U.S. at 72, 115 S.Ct. 464.
. RoBold testified he told the corporations only "that there is an opportunity to give corporate funds that would be utilized to help underwrite the administrative expense of TRMPAC who is also raising personal funds[,]” the personal funds, in turn, presumably for the purpose.of making direct contributions to candidates. He would "normally make [it] very clear” that corporate donations would only be used for TRMPAC’s administrative costs; to free up individual donations for candidate contributions. He acknowledged *252that the fund-raising literature emphasized TRMPAC's priority to channel contributions to candidates, but pointed out that this literature was directed at both corporate and individual contributors. He flatly denied ever having personally "hinted” to corporate donors that their contributions were "going to go to candidates." But some of the corporate executives denied that (or simply did not remember whether) RoBold expressly told them that their contributions would be limited to defraying TRMPAC's administrative costs. The corporate executive for Sears • testified that RoBold did not tell him his corporate contribution could only be put to a limited use but in fact told him instead that it would be used "[t]o elect more Republicans to Congress in Texas.” In its pretrial diversion agreement with the Travis County District Attorney, Sears claimed to have made its corporate "contribution on the basis of false and misleading information provided by the fundraiser that solicited the contribution!].]”
. For example, notwithstanding Sears's pretrial diversion agreement with the District Attorney, the Sears executive maintained:
A. I never thought I did anything illegal.
Q. Still don’t?
A. Right.
Q. And if RoBold said it was a — it was legal, you believed him and you still believe him, right?
A. Well, I — I don’t know about that. I believed it was legal at the time. I certainly did and I would never intentionally violate a campaign law at any level.
. See Tex. Penal Code § 6.03(c) ("A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct ... when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist[.]”); id. § 6.03(d) ("A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct ... when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist[.]”).
. The majority in Baird held, for the first time, that in order for evidence to be suppressed under Article 38.23 of the Texas Code of Criminal Procedure; the defendant has the burden to prove that the State committed a crime in obtaining the evidence. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284143/ | JOHNSON, J.,
filed a concurring opinion in which COCHRAN, J., joined.
As I read the indictment against appellant, he was charged in count I with conspiring with his co-defendants to “knowingly mak[e] a political contribution” in violation of the Election Code. Count II alleged that he “did knowingly conduct, supervise, and facilitate a transaction involving the proceeds of criminal activity ... to wit, ... knowingly making a political contribution” in violation of the Election Code. Thus the state had to prove for count II that the contribution made by TRMPAC to RNSEC violated the Election Code, that appellant was active in the process, and that he knew that the process violated the Election Code. If the contribution did not violate the Election Code, count II failed, as did count I because it is not a crime to conspire to do a legal act.
There is some evidence that appellant was aware of the transfer — knowledge claimed to be acquired after the fact — but none that he was directly involved. The soft money from TRMPAC went into RNSEC’s soft-money account. Because it came from TRMPAC’s soft-money account and went into RNSEC’s soft-money account, the beliefs and intents of the corporate executives became irrelevant; corporate money, regardless of the donor’s actual intent, went into the corporate-money account. The money sent by RNSEC directly to Texas candidates came, as is required by law, from its hard-money account. Like some of Goldman Sachs’s dealings with a Spanish bank, the wheeling and dealing was a tad shady, but legal. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284144/ | MEYERS, J.,
filed a dissenting opinion.
You can always tell when an opinion is written with the outcome decided before any legal analysis is done because it reads like a medical report written by a doctor who has never conducted a physical examination of the patient. This is precisely how the court of appeals’ opinion in this case comes across. The court of appeals concluded the evidence to be insufficient to sustain Appellant’s conviction but directly misapplied the sufficiency of the evidence standards. See DeLay v. State, 410 S.W.3d 902 (Tex.App.-Austin 2018, pet. granted). In his dissent, Justice Jones aptly points out all of the correct criteria for sufficiency that was completely ignored by the majority. Id. at 917-19 (Jones, J., dissenting). Due to this misdiagnosis by the court of appeals, the State had to file a petition for discretionary review in our Court.
At oral argument before our Court, the State presented an accurate and clear rendition of how the sufficiency analysis should have been conducted in this case and how it would have indicated that Appellant’s conviction was proper. Soon thereafter, however, counsel for Appellant was quick to set this court straight on what we really needed to do, stating:
*254There is a fine line between prosecution and persecution that was crossed, and has been crossed, and continues to be crossed over the past decade when a prosecutorial posse essentially does what it has to do to manufacture an illegal act out of a series of legal ones -,.. When the third court shut the State down last September, in an equally bankrupt, maneuver, concluding that the evidence was legally insufficient that Tom DeLay was guilty of money laundering and conspiracy. And when this Court does what the law requires, to affirm the ultimate decision of the third court of appeals, it will do what needs to be done. And that is to shut down, once and for all, this decade long quest of manufacturing an .illegal act out of a series of legal ones.
Based upon these marching orders, the majority has followed Appellant’s instructions and crafted an opinion which is just as deficient in its analysis as the one from the court of appeals.
The majority in this case has changed the law and ignored the facts in order to arrive at a desired outcome, as it has done before. See Baird, v. State, 398 S.W.3d 220 (Tex.Crim.App.2013)1; Wehrenberg v. State, 416 S.W.3d 458 (Tex.Crim.App.2013)2. To hold, for the first time, that Section 253.003(a) of the Election Code requires the actor to be aware that his actions constitute a violation of 'the Texas Election Code completely neuters this crime. It places a burden on the State that is impossible to overcome. How does the State gather enough evidence to prove that the corporation knew the actions violated the Election Code? What constitutes enough evidence to show knowledge? Which person in the corporation will be charged with the knowledge of the entire corporation? In addition to placing this ridiculous burden on the State, which effectively repeals the statute, this holding also allows corporations who simply cannot be bothered to look up the law to get away with making illegal contributions. When faced with a similar question in Osterberg v. Peca, 12 S.W.3d 31 (Tex.2000), the Texas Supreme Court came out on the other side, holding that “knowingly” modified only the conduct of the offense rather than the attendant circumstance, as the majority should have held here. In fact, even though the burden in its civil cases is far less than “beyond a reasonable doubt,” the Texas Supreme Court still did not believe, that knowledge of illegality was an element of the offense. Further, it should be noted that Section 253.003(b), the provision that immediately follows the one at question here, states that “A person may not knowingly accept a political contribution the person knows to have been made in violation of this chapter.” There, the Legislature specifically identifies that the actor must know of the illegality. In the provision that immediately precedes it, however, the Legislature makes no such clarification. If the Legislature intended what the majority now holds, it would have worded the provision in the same way it did Section 253.003(b): a person may not knowingly make a political contribution the person knows to be in violation of this chapter. The reality here is that the majority is eager to keep Appellant from *255going to prison, and, as a result, it has done one better than what the appellant’s attorney even asked for.
When you consider the elements of this crime as they should be, without the new addition of knowledge of illegality, the State presented sufficient evidence to support the conviction. Given that the evidence presented indicates that TRMPAC conveyed to the corporations that their donations would be used for individual campaigns, a rational juror could have concluded that the corporations made the donations with the intent that the money go to candidates. This means that the jury could rationally decide that the initial donations violated the law and were, therefore, proceeds of criminal activity.
Although the majority agrees that there was evidence that the corporations knew the donations would go to candidates, it concludes that this is not enough to affirm the conviction because the State also needed to prove the corporations actually knew their contributions would violate the Texas Election Code. This holding is incorrect, and in crafting an opinion to suit only the majority’s desired outcome for this case, it has changed the law, which leaves unfortunate and lasting effects on our jurisprudence, as is illustrated by Baird and Weh-renberg. The result of this particular case is that a corporation may now make election donations with immunity, since the State would never be able to prove it did not actually know the contribution violated the law. Because I would hold that knowledge of illegality is not an element of the crime, and that a rational jury could have found the essential elements of the crime charged beyond a reasonable doubt, as the rational jury in the case did, I respectfully dissent.
. In Wehrenberg, in an effort to support its conclusion that evidence was derived from an independent source rather than a warrantless' entry, the majority ratified, for the first time, the State’s actions in obtaining a search warrant based on the prediction of a future crime, rather than one that had already been committed. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284145/ | MAJORITY OPINION
Kem Thompson Frost, Chief Justice
This appeal arises from a lawyer-client dispute. Clients sued lawyers and the law firm at which they worked, alleging various acts of negligence in representing the clients in a lawsuit, as well as alleged breaches of fiduciary duty. The trial court granted the lawyers’ motion for a traditional summary judgment. We affirm as to the claims for breach of fiduciary duty, and we sever, reverse, and remand the negligence claims.
I. Factual and Procedural Background
Appellants/plaintiffs Jon T. Neubaum and Barbara Neubaum brought suit against three lawyers, alleging negligence in their representation of the Neubaums in a prior lawsuit in which the Buck Glove Company sued the Neubaums asserting usury claims (hereinafter the “Usury Lawsuit”). See Neubaum v. Buck Glove Co., 302 S.W.3d 912, 916 (Tex.App.-Beaumont 2009, pet. denied). According to their live pleading, the Neubaums, after being served in the Usury Lawsuit, conferred with appellee Thomas P. Stone of Stone & Associates, L.L.P., an attorney who had represented them for several years in other matters. Stone and appellee Brenton M. Stanfield undertook to represent the Neubaums in the Usury Lawsuit.
The Neubaums counterclaimed against Buck Glove Company and asserted third-party claims against E.L. “Buck” Hord and Kathie Hord. Following a jury trial, the trial court in the Usury Lawsuit rendered judgment in favor of Buck Glove Company for more than $3.9 million in actual damages, as well as attorney’s fees. The trial court in the Usury Lawsuit also rendered judgment in favor of the Neub-aums in the amount of approximately $151,000 on their counterclaim for money had and received. The Neubaums retained new lead counsel for an appeal from the judgment. The Ninth Court of Appeals concluded that the trial evidence was legally insufficient to support the jury’s finding that the Neubaums loaned money to Buck Glove Company through an agent. That appellate court reversed the trial court’s judgment as to the usury claim and rendered judgment that Buck Glove Company take nothing. See id. at 920.
The Neubaums filed suit against appel-lees/defendants Brenton M. Stanfield, Thomas P. Stone, Jimmy Van Knighton II, and Stone & Associates, L.L.P. (collectively hereinafter the “Stone Parties”) asserting various negligence claims and breach-of-fidueiary-duty claims. The Stone Parties filed a motion seeking a traditional summary judgment on the following grounds: (1) the Neubaums impermissibly fractured negligence claims into breach-of-fiduciary-duty claims and any claims the Neubaums arguably have against the Stone Parties sound only in negligence; (2) as a matter of law, the Stone Parties’ allegedly actionable conduct did not proximately cause any damage to the Neub-aums; (3) the Stone Parties cannot be held liable for an error committed by the trial court in the Usury Lawsuit; (4) as a matter of law, the Neubaums. were not damaged by the failure to obtain a judgment *269against Buck Hord because the judgment against the Buck Glove Company may be enforced against Buck Hord; (5) to the extent the Neubaums complain about prior asset-preservation work performed by Van Knighton, Van Knighton’s conduct did not cause the Neubaums any damage and any such claim is barred by the statute of limitations. The trial court granted the Stone Parties’ motion and rendered a final summary judgment as to all of the Neub-aums’ claims.1
II. Analysis
On appeal, the Neubaums assert that the trial court erred in granting summary judgment in favor of the Stone Parties. The Stone Parties filed a traditional summary-judgment motion. In a traditional motion for summary judgment, if the movant’s motion and summary-judgment evidence facially establish its 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 nonmovant 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 order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).
A. Did the Neubaums impermissibly fracture negligence claims into breach-of-fiduciary-duty claims?
In their first summary-judgment ground, the Stone Parties asserted that the Neubaums impermissibly fractured negligence claims into breach-of-fiduciary-duty claims and that any claims the Neub-aums arguably have against the Stone Parties sound only in negligence. When deciding whether an allegation against an attorney states a claim sounding in negligence or some other claim, we are not bound by the client’s characterization of the pleadings. See Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto, & Friend, 404 S.W.3d 75, 82 (Tex.App.Houston [14th Dist.] 2013, no pet.). The rule against fracturing a negligence claim prevents legal-malpractice plaintiffs from opportunistically transforming a claim that sounds only in negligence into some other claim. See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex.App.-Houston [14th Dist.] 2002, no pet.). If the gist of the client’s complaint is that the attorney did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess, then that complaint should be pursued as a negligence claim, rather than *270some 'other claim.2 See id. If, however, the client’s complaint is more appropriately classified as another claim, for example, fraud, a violation of the Texas Deceptive Trade Practices Act, breach of fiduciary duty, or breach of contract, then the client can assert a claim other than negligence. See Haase, 404 S.W.3d at 82-83; Deutsch, 97 S.W.3d at 189.
Liberally construing the Neub-aums’ live petition,3 the Neubaums alleged that the Stone Parties violated their respective fiduciary duties to the Neubaums by engaging in the following conduct: (1) failing to advise the Neubaums of the damages sought against them in the Usury Lawsuit, (2) failing to advise the Neub-aums of Stanfield’s lack of competence to handle the Usury Lawsuit, (3) failing to advise the Neubaums that Stanfield was not being supervised by more experienced counsel, and (4) failing to “pull” Stanfield from the Usury Lawsuit.4 Though an alleged failure to disclose matters regarding an alleged conflict of interest may be the basis of an independent claim for breach of fiduciary duty, the Neubaums do not allege that the Stone Parties failed to disclose a conflict of interest or matters related thereto. See McInnis v. Mallia, No. 14-08-00931-CV, 2011 WL 782229, at *7 (Tex.App.-Houston [14th Dist.] Mar. 8, 2011, pet. denied); Deutsch, 97 S.W.3d at 189. After reviewing the Neubaums’ allegations regarding the Stone Parties’ alleged breaches of fiduciary duty, we conclude that the gist of each of these allegations is that the Stone Parties did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess. See McInnis, 2011 WL 782229, at *7; Deutsch, 97 S.W.3d at 189-90. Therefore, these allegations are to be pursued only as negligence claims; the Neubaums impermissibly fractured their negligence claims by asserting these complaints as breach-of-fiduciary-duty allegations. See McInnis, 2011 WL 782229, at *7; Deutsch, 97 S.W.3d at 189-90. Accordingly, the trial court did not err in granting summary judgment as to the N eubaums’ breach-of-fiduciary-duty claims.
B. Did the trial court err in granting summary judgment as to the Neubaums’ negligence claims regarding the Buck Glove Company’s status as an assumed name of E.L. “Buck” Hord?
In their petition, the Neubaums alleged that the Stone Parties’ negligence caused them damage when they obtained a judgment on the Neubaums’ money-had- and-received claim against only the Buck Glove Company. The Neubaums allege that Buck Hord does business as the Buck Glove Company, which is only his assumed name. According to the Neub-aums, because the Stone Parties obtained a judgment against only the Buck Glove Company, the judgment is “worthless” and “uncollectible” because it was rendered against a “non-existent entity” rather than against “Buck Hord” or against “Buck Hord doing business as the Buck *271Glove Company.” In their summary-judgment motion, the Stone Parties asserted that, as a matter of law, the Neubaums were not damaged by the failure to obtain a judgment against Buck Hord because the judgment against the Buck Glove Company may be enforced against Buck Hord.
If, as the Neubaums alleged, Buck Hord does business under the assumed name of “the Buck Glove Company,” then Buck Hord and the Buck Glove Company are one and the same, and the judgment against the Buck Glove Company is a judgment against Buck Hord. See Ideal Lease Serv., Inc. v. Amoco Prod. Co., 662 S.W.2d 951, 952 (Tex.1983) (holding that a sole proprietorship is, in law and in fact, one and the same as the sole proprietor); CA Partners v. Spears, 274 S.W.3d 51, 62, n. 6, 69 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (concluding that an assumed name under which an individual does business is a sole proprietorship, and that under Texas law, the sole proprietor and the sole proprietorship are one and the same person); CU Lloyd’s of Texas v. Hatfield, 126 S.W.3d 679, 684-85 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (holding that Texas'law regards a sole proprietorship and the sole proprietor as one and the.same person); Holberg & Co. v. Citizens Nat’l Assurance Co., 856 S.W.2d 515, 517-18 (Tex.App.-Houston [1st Dist.] 1993, no writ) (stating that, when an individual is doing business under an assumed name, a judgment rendered against the unincorporated association is binding on the individual).
■ The Stone Parties cite two cases from the First Court of Appeals that contain statements to the effect that a judgment rendered against an assumed name is binding on the individual doing business under that name. See Holberg & Co., 856 S.W.2d at 517-18; Mustang Tractor & Equip. Co. v. Cornett, 747 S.W.2d 33, 35 (Tex.App.-Houston [1st Dist.] 1988, no writ). The Neubaums correctly point out that these statements are obiter dicta and that in these cases the First Court of Appeals did not hold that a judgment creditor could enforce a judgment against an individual doing business under an assumed name even though the trial court rendered judgment only against the assumed name. See Holberg & Co., 856 S.W.2d at 517-18; Mustang Tractor & Equip. Co., 747 S.W.2d at 35. The parties have not cited, and research has not revealed any cases containing a holding on this issue. Nonetheless, under the noted binding precedent, an individual who does business under an assumed name is one and the same as the assumed name. See Ideal Lease Serv., Inc., 662 S.W.2d at 952; CA Partners, 274 S.W.3d at 62, n. 6; CU Lloyd’s of Texas, 126 S.W.3d at 684-85. Based on this precedent, we conclude that, as a matter of law, the Neubaums may not recover damages under their theory that the judgment they obtained is “worthless” and “uncollectible” because it was rendered against only the Buck Glove Company. See Ideal Lease Serv., Inc., 662 S.W.2d at 952; CA. Partners, 274 S.W.3d at 62, n. 6; CU Lloyd’s of Texas, 126 S.W.3d at 684-85; Holberg & Co., 856 S.W.2d at 517-18.
C. Did the trial court err in granting summary judgment as to the Neubaums’ negligence claims?
The Neubaums assert that .the Stone Parties are all liable for Stanfield’s allegedly negligent conduct. Liberally construing the Neubaums’ live petition,5 the *272Neubaums asserted that Stanfield engaged in the following conduct alleged to be negligent:
• undertaking to represent the Neub-aums in the Usury Lawsuit even though Stanfield was incompetent to do so,
• failing to timely conduct discovery,
• failing to request a continuance of the trial setting in light of incomplete discovery,
• failing to advise the court that the Buck Glove Company was nothing other than an assumed name of E.L. “Buck” Hord,
• submitting a liability question against a non-existing entity, the Buck Glove Company6
• failing to submit the Neubaums’ usury “cure letter” into evidence,
• failing to submit an issue to the jury on the Neubaums’ usury “cure letter,”
• failing to advise the Neubaums of the damages being sought until days before trial,
• failing to object to the plaintiffs’ expert,
• failing to engage an expert for the Neubaums until after trial,
• failing to use a witness to demonstrate that the Buck Glove Company, E.L. “Buck” Hord, and Kathie Hord were engaged in a “Ponzi scheme,”
• failing to move for a directed verdict when the plaintiffs in the Usury Lawsuit rested their case-in-chief and at the close of the evidence,
• permitting the Buck Glove Company to reopen the evidence after resting to call its expert witness, and
• pursuing an adversary proceeding against a debtor in bankruptcy in the incorrect belief that this action would make it easier to win the Usury Lawsuit.
The Neubaums also asserted that Stone engaged in the following conduct alleged to constitute negligence:
• failing to properly supervise Stanfield,
• failing to timely conduct discovery,
• failing to request a continuance of the trial setting in light of incomplete discovery,
• failing to advise the court that the Buck Glove Company was nothing other than an assumed name of E.L. “Buck” Hord, and
• failing to advise the Neubaums of the damages being sought.7
The Neubaums alleged that the Stone Parties’ conduct, described above, caused the following alleged damages:
• more than $150,000 in attorney’s fees that the Neubaums paid for appellate work in the Usury Lawsuit,
• more than $16,000 in attorney’s fees that the Neubaums paid to an asset-protection lawyer, whose fees would not have been incurred but for the Stone Parties’ negligence,
*273• more than $15,000 in expert fees incurred by the Neubaums after the jury verdict in the Usury Lawsuit, and
• more than $19,000 in fees paid to a bankruptcy attorney relating to a bankruptcy proceeding.8
(hereinafter collectively the “Alleged Damages”).9
As movants for a traditional summary judgment, the Stone Parties had the burden of submitting summary-judgment evidence that conclusively proved their entitlement to judgment. See Willrich, 28 S.W.Bd at 28; Buffington v. Sharp, 440 S.W.3d 677, 683-84 (Tex.App.-Houston [14th Dist.] 2012, pet. denied). In their summary-judgment motion, the Stone Parties did not challenge the Neubaums’ allegations of the above-stated conduct or of the above-referenced damages. As grounds for a traditional summary judgment, the Stone Parties asserted that, as a matter of law, their allegedly actionable conduct did not proximately cause any damage to the Neubaums, and that the Stone Parties cannot be held liable for an error committed by the trial court in the Usury Lawsuit. In support of both of these grounds, the Stone Parties sought to negate, as a matter of law, the essential element of proximate cause. Thus, in both grounds, the Stone Parties raised the issue of whether their alleged negligence proximately caused the Neubaums’ Alleged Damages.
A litigation attorney’s negligence causes damage to a client if the result the client would have obtained with competent counsel is more favorable to the client than the result actually obtained. See Elizondo v. Krist 415 S.W.3d 259, 263 (Tex.2013). Under their second and third summary-judgment grounds respectively, the Stone Parties had the burden of proving as a matter of law that (1) if a reasonably prudent attorney had represented the Neub-aums in the Usury Lawsuit, the Neubaums would not have obtained a more favorable result than the result they actually obtained; and (2) the Alleged Damages were caused by the erroneous rulings of the trial court in the Usury Lawsuit rather than by any of the alleged negligence of the Stone Parties. See Elizondo, 415 S.W.3d at 263.
The summary-judgment evidence does not prove as a matter of law that, if a reasonably prudent attorney had represented the Neubaums in the Usury Lawsuit, the aggregate amount of the Neubaums’ appellate attorney’s fees, asset-protection attorney’s fees, expert fees, and attorney’s fees related to the bankruptcy proceeding would not have been less than the actual aggregate amount of these fees.10
The Neubaums asserted negligence based on Stanfield’s failure to offer into evidence at trial the “cure letter” that allegedly was the basis of the Neubaums’ alleged usury defense under Finance Code *274section 305.006(c). See Tex. Fin.Code Ann § 305.006(c) (West, Westlaw through 2013 3d C.S.). The trial court in the Usury Lawsuit rejected a motion for judgment notwithstanding the verdict based on this defense asserted by Stanfield on behalf of the Neubaums. This ruling was not erroneous because a motion for judgment notwithstanding the verdict must be based on the trial evidence, yet Stanfield relied on a pre-trial filing — a copy of the “cure letter” that had been filed with the court as evidence in support of a summary-judgment motion. See Ingram v. Deere, 288 S'.W.3d 886, 893 (Tex.2009) (stating that motion for judgment notwithstanding the jury’s verdict is based on the evidence presented at trial); Celadon Trucking Servs. v. Titan-Textile Co., 130 S.W.3d 301, 307 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (holding that, following trial on the merits, summary-judgment evidence not admitted into evidence at trial may not be considered as evidence in support of grounds for reversing the trial court’s final judgment, as opposed to reviewing a pretrial granting of a motion for partial summary judgment). If the “cure letter” had been admitted into evidence at trial, would the Neubaums have been entitled to a take-nothing judgment against the Buck Glove Company, notwithstanding the verdict, based on this alleged defense and letter? The summary-judgment evidence does not address this issue.
■The Neubaums assert that Stanfield was negligent in pursuing an adversary proceeding against a debtor in bankruptcy in the incorrect belief that this action would make it easier to win the Usury Lawsuit. Presuming that this action was negligent and that a reasonably prudent attorney would not have pursued the bankruptcy matter, did this negligence cause the Neubaums damages based on the more than $19,000 in bankruptcy fees that they incurred? The summary-judgment evidence does not address this issue.
The summary-judgment evidence does not conclusively prove that (1) if a reasonably prudent attorney had represented the Neubaums in the Usury Lawsuit, the Neubaums would not have obtained a more favorable result than the result they actually obtained; or (2) the Alleged Damages were caused by the erroneous rulings of the trial court in the Usury Lawsuit rather than by any of the alleged negligence of the Stone Parties. These reasons, while sufficient to defeat summary judgment on the Neubaums’ negligence claims, are not the only reasons the summary judgment on the negligence claims fail.
The Stone Parties raised the issue of whether their alleged negligence proximately caused the Neubaums’ Alleged Damages. Yet, conspicuously absent from the summary-judgment record is expert testimony essential to prove lack of causation. Though the Neubaums voice no complaint about the lack of expert testimony, their challenge to the sufficiency of the trial court’s summary judgment compels us to consider it.
In the context of adjudicating a negligence claim by a client against a litigation attorney, expert testimony is necessary as to proximate cause if it is beyond the trier of fact’s common understanding to determine this issue. See Buffington, 440 S.W.3d at 683-84; Cooper v. Harris, 329 S.W.3d 898, 902-03 (Tex.App.-Houston [14th Dist.] 2010, pet. denied). As explained below, in today’s case, determinations regarding the legal and procedural intricacies surrounding the fallout from conduct of litigation attorneys are issues for experts in the legal realm. Given the technical nature of these matters, they are outside the grasp of laymen and beyond the trier-of-fact’s common understanding. In the context of today’s case, this thresh*275old determination drives the causation analysis, even in the absence of a specific complaint about the lack of expert testimony. Because expert testimony of causation is an essential ingredient of the necessary proof of lack of causation, the Neubaums’ failure to complain about the lack of expert testimony does not change the causation analysis or eliminate this court’s obligation to assess the proof of it as part of the Stone Parties’ summary-judgment causation challenge. We could hardly assess causation without taking notice of the absence of lack-of-causation proof. So, in the unusual context of this case, the two inquiries — whether the summary-judgment evidence conclusively negates causation and whether the absence of expert testimony precludes the evidence from negating causation — puts the court to essentially the same assessment. Thus, in assessing the Stone Parties’- entitlement to summary judgment based on lack of causation, we necessarily consider whether the summary-judgment record contains the necessary proof of it.
It is beyond the trier of fact’s common understanding to determine: (1) whether, if a reasonably prudent attorney had represented the Neubaums in the Usury Lawsuit, the Neubaums would not have obtained a more favorable result than the result they actually obtained, or (2) whether the Alleged Damages were caused by the erroneous rulings of the trial court in the Usury Lawsuit rather than by any of the alleged negligence of the Stone Parties. See Alexander v. Turtur & Associates, Inc., 146 S.W.3d 113, 119-20 (Tex.2004) (holding expert testimony was necessary for causation element of negligence claim against litigation attorney); Buffing-ton, 440 S.W.3d at 683-84 (holding defendant litigation attorney failed to show entitlement to traditional summary judgment as to negligence claims against him in case in which attorney failed to submit any expert testimony on negligence or causation); Cooper, 329 S.W.3d at 902-03 (holding expert testimony was necessary for causation element of negligence claim against litigation attorney); Primis Corp. v. Milledge, No. 14-08-00753-CV, 2010 WL 2103936, at *3 (Tex.App.-Houston [14th Dist.] May 27, 2010, no pet.) (holding expert testimony was necessary for causation element of negligence claim against litigation’ attorney) (mem.op.); Arce v. Burrow, 958 S.W.2d 239, 251-52 (Tex.App.-Houston [14th Dist.] 1997) (holding expert testimony was necessary for causation issue regarding settlements of personal-injury and wrongful-death cases in negligence claims against litigation attorneys), aff’d in part, rev’d in part on other grounds, 997 S.W.2d 229 (Tex.1999); Saldana-Fountain v. Chavez Law Firm, 450 S.W.3d 913, 916-18 (Tex.App.-El Paso 2014, no pet. h.) (holding that, even if expert testimony were not required to show that litigation attorney was negligent in failing to file suit within the statute-of-limitations period, expert testimony still was necessary to prove that this alleged negligence proximately caused damage to the plaintiff). Therefore, expert testimony was necessary to prove that the Stone Parties were entitled to summary judgment based on either their second or third ground. See Alexander, 146 S.W.3d at 119-20; Buffington, 440 S.W.3d at 683-84; Cooper, 329 S.W.3d at 902-03; Primis Corp., 2010 WL 2103936, at *3; Arce, 958 S.W.2d at 251-52; Saldana-Fountain, 450 S.W.3d at 916-18.
The Stone Parties did not submit any testimony from a retained expert in support of their motion for summary judgment. The only evidence the Stone Parties submitted that arguably might be expert testimony is an affidavit from counsel for the Buck Glove Company in the Usury Lawsuit. The trial court sus*276tained objections asserted by the Neub-aums against most of the statements in this affidavit. On appeal, the Stone Parties assert that the trial court erred in sustaining these objections. We presume, without deciding, that (1) the Stone Parties may challenge these evi-dentiary rulings in this appeal; (2) the trial court erred in sustaining each of the objections to this affidavit; and (3) this attorney’s affidavit qualifies as expert testimony rather than fact-witness testimony. Even under these presumptions, the attorney’s only non-conclusory statements11 relevant to causation support the proposition that the Buck Glove Company would have appealed even if the jury had rendered its verdict in favor of the Neubaums. This testimony does not address whether, but for the alleged negligence of the Stone Parties, the Neubaums would have incurred the same attorney’s fees and expert fees. Likewise, this testimony does not address whether the Alleged Damages were caused by the erroneous rulings of the trial court in the Usury Lawsuit rather than by any of the alleged negligence of the Stone Parties. The Stone Parties did not submit expert testimony showing that they were entitled to summary judgment based on either their second or third summary-judgment ground.
Because the Stone Parties moved only for a traditional summary judgment, they had the burden of proving as a matter of law (1) that none of the Stone Parties’ allegedly negligent conduct proximately caused the Neubaums’ Alleged Damages, or (2) that the Alleged Damages were caused by the erroneous rulings of the trial court in the Usury Lawsuit rather than by any of the alleged negligence of the Stone Parties. See Willrich, 28 S.W.Sd at 23. Though expert testimony was required to prove both of these matters, the Stone Parties did not submit any expert testimony proving either one. See Buffington, 440 S.W.3d at 683-84; Cooper, 329 S.W.3d at 902-03.
The Stone Parties failed to submit evidence proving as a matter of law that they were entitled to judgment based on their second or third summary-judgment ground. Because the Stone Parties did not carry this burden as to their second and third grounds, the Neubaums were not required to respond or raise any fact issue in their response in this regard. See Will-rich, 28 S.W.3d at 23. The trial court erred in granting summary judgment as to the Neubaums’ negligence claims.12 See Willrich, 28 S.W.3d at 23; Buffington, 440 S.W.3d at 683-84; Cooper, 329 S.W.3d at 902-03.13
*277III. Conclusion
The Neubaums’ allegations regarding alleged breaches of fiduciary duty should be pursued only as negligence claims; the Neubaums impermissibly fractured their negligence claims by asserting these complaints as breach-of-fiduciary-duty allegations. Therefore, the trial court did not err in granting summary judgment as to the Neubaums’ breach-of-fiduciary-duty claims. As a matter of law, the Neubaums may not recover damages under their theory that the judgment they obtained is “worthless” and “uncollectible” because it was rendered against only the Buck Glove Company.
The Stone Parties failed to submit evidence proving as a matter of law that they were entitled to judgment based on either their second or their third summary-judgment grounds. Determining whether the Stone Parties’ allegedly negligent conduct proximately caused the Alleged Damages was beyond the trier of fact’s common understanding. Likewise, determining whether the Alleged Damages were caused by the erroneous rulings of the trial court in the Usury Lawsuit rather than by the alleged negligence of the Stone Parties was beyond the trier of fact’s common understanding. Therefore, expert testimony was necessary for the Stone Parties to prove that they were entitled to summary judgment based on their second and third ground. The trial court erred in granting summary judgment as to the Neubaums’ negligence claims.14
We affirm the trial court’s judgment as to the claims for breach of fiduciary duty. We reverse the judgment as to the Neub-aums’ negligence claims, and we sever and remand the negligence claims to the trial court for further proceedings consistent with this opinion.
(Brown, J., dissenting).
. The Supreme Court of Texas transferred today’s case from the Ninth Court of Appeals to this court. In cases transferred by the high court from one court of appeals to another, the transferee court must decide the case in accordance with the precedent of the transfer- or court under principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent with the precedent of the transferor court. Tex. R. App. P. 41.3.
. To avoid confusion, in this opinion a claim that the attorney did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess is referred to as a negligence claim rather than as a legal-malpractice claim. See Deutsch, 97 S.W.3d at 184, n. 1.
. Because the trial court sustained no special exceptions against the petition, this court must construe that pleading liberally in the Neubaums’ favor to include all claims that reasonably may be inferred from the language used in the pleading. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000).
.The Neubaums sought both damages and fee forfeiture.
. As with the prior claims, because the trial court sustained no special exceptions against the petition, we construe that pleading liberally in the Neubaums’ favor to include all *272claims that reasonably may be inferred from the language used in the pleading. See Auld, 34 S.W.3d at 897.
. In the previous section, we concluded that, as a matter of law, the Neubaums may not recover damages under their theory that the judgment they "obtained is "worthless” and "uncollectible” because it was rendered only against the Buck Glove Company. Nonetheless, the Neubaums have pleaded that all of the Stone Parties’ alleged negligence caused all of their other alleged damages, so the negligence alleged in this item and in the previous item is still at issue as to these other alleged damages.
. The Neubaums also alleged that Van Knigh-ton negligently failed to properly supervise Stanfield.
.The Neubaums also requested damages based on the allegedly worthless judgment against the Buck Glove Company. In the previous section, we concluded that, as a matter of law, the Neubaums may not recover damages under their theory that the judgment they obtained is ‘'worthless” because it cannot be collected against Buck Hord. The Neubaums also sought exemplary damages and disgorgement or fee forfeiture.
. None of the fees that are part of the Alleged Damages are fees related to work performed ' by the Stone Parties.
. Though the Neubaums seek the full amount of these fees as damages, they also argue, in the alternative, that they are entitled to recover the difference between the fees they actually incurred and fees they would have incurred if there had been no attorney negligence.
. The Neubaums did not object in the trial court that any of these statements were con-clusory.
. We need not and do not decide (1) whether the trial court erred in sustaining the Neub-aums’ objections to the affidavit of the attorney who represented the Buck Glove Company in the Usury Lawsuit, as the Stone Parties argue, or (2) whether the trial court erred in striking the affidavits of three individuals who served as jurors in the Usury Lawsuit, as the Neubaums argue.
. The Stone Parties also asserted as a summary-judgment ground that, to the extent the Neubaums complain about prior asset-preservation work performed by Van Knighton, Van Knighton’s conduct did not cause the Neub-aums any damage and any claim in this regard is barred by the statute of limitations. Even under a liberal construction of the Neubaums’ live pleading, we conclude that they are not asserting any claim based on prior asset-preservation work performed by Van Knighton. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354-55 (Tex.1995). And, the Neubaums acknowledge that they are not asserting any claims based on this work. Therefore, this summary-judgment *277ground is not a basis for affirming any part of the trial court’s summary judgment.
. We need not and do not address whether this court should adopt the per se judicial-error rule advocated by the Stone Parties. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284146/ | Marc W. Brown,
Justice, dissenting.
The majority holds that by failing to submit expert testimony on causation, the Stone Parties did not conclusively negate the causation element of the Neubaums’ legal malpractice claim. Because causation in this case is within a jury’s common understanding and the record conclusively demonstrates that judicial error, a new and independent cause, caused the Neub-aums’ alleged harm, I would affirm the summary judgment. Accordingly, I dissent.
This case presents two issues. The first is whether judicial error can operate as a new and independent cause in a legal malpractice suit. The second is whether an attorney-defendant claiming judicial error as a means to negate the causation element must present expert testimony when the judicial error is apparent on the face of the record.1
*278As grounds for its traditional summary judgment, the Stone Parties asserted that, as a matter of law, their allegedly actionable conduct did not proximately cause any damage to the Neubaums, and that the Stone Parties cannot be held liable for an error committed by the trial court in the Usury Lawsuit. Essentially, the Stone Parties contend that the trial court’s error in the Usury Lawsuit was a new and independent cause of the Neubaums’ alleged harm.
A new and independent cause is not an affirmative defense but a component of the proximate cause issue. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex.2009); see also Comm, on Pattern Jury Charges, State Bar of Tex., Tex. Pattern Jury Charges: General Negligence & Intentional Torts PJC 3.1 (2012). “A new and independent cause of an occurrence is the act or omission of a separate and independent agent, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question.” Hawley, 284 S.W.3d at 856. “A new and independent cause alters the natural sequence of events, produces results that would not otherwise have occurred, is an act or omission not brought into operation by the original wrongful act of the defendant, and operates entirely independently of the defendant’s allegedly negligent act or omission.” Id. at 857.
There is no binding Texas -precedent directly addressing the question of whether judicial error constitutes a new and independent cause in the legal malpractice context.2 Cases from other jurisdictions, however, indicate that a judicial error can be a new and independent cause as long as the attorney preserved the error by making the necessary legal arguments and the attorney’s negligence did not contribute to the judicial error such that the judicial error could have been reasonably anticipated. See Crestwood Cove Apts. Bus. Trust v. Turner, 164 P.3d 1247, 1255-56 (Utah 2007); Huang v. Brenson, 379 Ill. Dec. 891, 7 N.E.3d 729, 737 (2014); see Lombardo v. Huysentruyt, 91 Cal.App.4th 656, 110 Cal.Rptr.2d 691, 702 (2001); Simko v. Blake, 201 Mich.App. 191, 506 N.W.2d 258, 260 (1993), aff'd, 448 Mich. 648, 532 N.W.2d 842 (1995). These courts, reason that a lawyer should not be subject to liability every time a judge erroneously rules against the lawyer’s client. Turner, 164 P.3d at 1256. Otherwise, lawyers *279would become guarantors of correct judicial decision-making and would be forced to burden an already overburdened legal system with inordinate quantities of additional motions and evidence that, in most cases, will prove superfluous. Id.; Simko v. Blake, 448 Mich. 648, 532 N.W.2d 842, 847 (1995).
Here, the relevant evidence is undisputed. The Stone Parties represented the Neubaums, the defendants in the Usury Lawsuit. The Stone Parties objected to the sufficiency of the evidence regarding an issue on which the plaintiff in the Usury Lawsuit bore the burden of proof — i.e., the existence of an agency relationship between the Neubaums and Buddy March, one of the Neubaums’ business associates. The trial court overruled the objection. The Stone Parties lodged the same objection in a motion for new trial. The trial court overruled the objection again. A court of appeals reversed the trial court on the same issue raised at trial by the Stone Parties. Neubaum v. Buck Glove Co., 302 S.W.3d 912, 920 (Tex.App.-Beaumont 2009, pet. denied).
Nothing in the record indicates that the Stone Parties’ negligence contributed to the judicial error such that the error was foreseeable. The alleged acts of negligence committed by the Stone Parties were not related to and did not contribute to the trial court’s error in the Usury Lawsuit. For example, the Stone Parties’ alleged failure to submit the usury-cure letter into evidence was unrelated to the issue of whether March was the Neub-aums’ agent. The Stone Parties’ alleged failure to conduct discovery in a timely manner was also unrelated to the issue of whether March was the Neubaums’ agent. None of the negligent acts alleged to have been committed by appellees bears any relationship to the question of whether March was the Neubaums’ agent. Moreover, the plaintiffs in the Usury Lawsuit had the burden of proving the agency relationship. The Neubaums (and the Stone Parties) were not required to present any evidence negating agency at trial; they had only to challenge the sufficiency of the evidence adduced by the Usury Lawsuit plaintiffs. They did so. The facts of this case are therefore distinguishable from the facts of cases rejecting judicial-error arguments on the basis that the attorney-defendant’s negligence contributed to the judicial error. Cf. Skinner v. Stone, Raskin & Israel, 724 F.2d 264, 266 (2d Cir.1983) (acknowledging that judicial error can be a new and independent cause but holding that defendant-attorneys and the trial judge were equally at fault in overlooking notice requirements); Woods v. Hill, 248 Or.App. 514, 273 P.3d 354, 360 (2012) (rejecting judicial-error argument when defendant-attorney’s negligence created the confusion regarding the method by which plaintiff properly could seek to remedy his dissatisfaction with an arbitration award); Lombardo, 110 Cal.Rptr.2d at 702 (acknowledging that judicial error can be a new and independent cause but holding that any judicial error was attributable to the defendant-attorney’s failure to seek court approval for a trust amendment); Temple Hoyne Buell Found, v. Holland & Hart, 851 P.2d 192, 198-99 (Co.Ct.App.1992) (rejecting judicial-error argument because defendant-attorneys could have protected their clients against rule-against-perpetuities dispute by considering the rule, recognizing the potential for dispute, and writing a savings clause or excluding the disputed clause).
Under the undisputed facts of this case, I would hold as a matter of law that judicial error was a new and independent cause destroying the causal connection between the negligence allegedly committed by the Stone Parties and the harm allegedly suffered by the Neubaums. See Bell v. *280Campbell, 434 S.W.2d 117, 122 (Tex.1968) (holding as a matter of law based on undisputed evidence that plaintiffs injuries were caused by an independent and intervening agency).
Turning to the second issue, the Stone Parties did not have to present expert testimony on causation. Expert testimony is not required when causation is within the jury’s common understanding. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex.2004). Expert testimony is generally required in matters concerning the attorney’s exercise of judgment. Such matters may include which witnesses to call, what testimony to obtain, or when to cross-examine. Id. The wisdom and consequences of these tactical choices are generally beyond the ken of most jurors. Id. Additionally, expert testimony is usually required when the underlying litigation encompasses complex legal concepts or medical malpractice. See, e.g., Kelley, & Witherspoon, LLP v. Hooper, 401 S.W.3d 841, 849-50 (Tex.App.-Dallas 2013, no pet.) (expert testimony is required in legal malpractice suit when proving the underlying medical malpractice case would require expert testimony); F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex.App.-Eastland 2005, no pet.) (expert testimony is required in legal malpractice suit when the underlying case involves the effect of a bankruptcy filing on the malpractice plaintiffs claims).
Some cases, however, do not require expert testimony. For instance, expert testimony on causation is not required when the attorney allows the statute of limitations to run on a client’s claim. James V. Mazuca & Assocs. v. Schumann, 82 S.W.3d 90, 97 (Tex.App.-San Antonio 2002, pet. denied) (en banc). This is because the attorney’s error is “readily apparent from the face of the record.” E.g., Bagan v. Hays, No. 03-08-00786-CV, 2010 WL 3190525, at *4 (Tex.App.-Austin Aug. 12, 2010, no pet.) (mem.op.) (declining to extend Mazuca to determination of whether an attorney’s drafting of a provision in a divorce decree constituted negligence). Similarly, in personal-injury cases, expert testimony on causation is not required when the evidence establishes a sequence of events providing a strong, logically traceable connection between the triggering event and the plaintiffs resulting condition. Guevara v. Ferrer, 247 S.W.3d 662, 667 (Tex.2007).
This case falls into the category of cases that do not require expert testimony on causation. The record here demonstrates: (1) the Stone Parties argued at trial and in a motion for new trial that the evidence was insufficient to prove agency; (2) the trial judge rejected the Stone Parties’ arguments; and (3) the court of appeals reversed the Neubaums’ case on the ground that the evidence was insufficient to prove agency. The trial judge’s error is readily apparent from the face of the record. The facts establish a logical sequence of events connecting the trial judge’s error and the Neubaums’ resulting condition. Therefore, the Stone Parties were not required to present expert testimony to satisfy their summary-judgment burden.3
*281Judicial error was a new and independent cause absolving the Stone Parties of liability. Expert testimony on causation was not required because the judicial error was readily apparent on the face of the record. I dissent.
. Even if expert testimony were required in this case, the Neubaums waived the deficiency by failing to expressly object to the lack of expert testimony in their written answer to the Stone Parties’ motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (’’[Ijssues a non-movant contends avoid the movant's entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence.” (emphasis added)); see Tex. R. Civ. P. 166a(c). Additionally, despite the fact that neither party raised the lack-of-expert-testimony issue below or on appeal, the majority has reversed the summary judgment after determining on its own motion that expert testimony is re*278quired. However, courts of appeals cannot on their own motion raise grounds to reverse a summary judgment that were not briefed or argued in the appeal. Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex.2015) (citing San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209 (Tex.1990)). In essence, by failing to raise the issue in the trial court and on appeal, the Neubaums have conceded that expert testimony was not required. It is not this court’s duty to make the Neubaums’ arguments for them.
. The idea of a judicial-error ’’defense” is not completely foreign in Texas. In Vitale v. Keim, No. 01-95-00401-CV, 1997 WL 549186 (Tex.App-Houston [1st Dist.] Aug. 29, 1997, pet. denied) (not designated for publication), the First Court of Appeals considered the issue of whether judicial error was the sole proximate cause of a plaintiff's harm. The defendant-attorneys argued that a bankruptcy judge misapplied the Bankruptcy Code and that the bankruptcy judge's decision would have been corrected on appeal. The court first assumed that Texas courts would recognize the "sole cause defense of judicial error” in a malpractice suit. But because Fifth Circuit opinions on the issue indicated that the law was not settled, the court concluded that the bankruptcy judge’s decision would not necessarily have been reversed. Therefore, the defendant-attorneys did not conclusively prove that judicial error was the proximate cause of the plaintiff’s harm. Id. at *6-8. Here, in contrast, a court of appeals actually did reverse the trial court on the issue raised by the defendant law firm.
. As a- practical matter, it is hard to imagine who the Stone Parties could offer as an expert since it is not their burden to prove causation but rather the existence of a new and independent cause. The trial judge in the Usury Lawsuit could not testify. See Alexander, 146 S.W.3d at 119 ("[T]he decisionmaker here was the bankruptcy judge, who quite properly was not asked to, and did not, testify as to how he might have ruled if the case had been presented differently.”). Nor could a sitting judge. Joachim v. Chambers, 815 S.W.2d 234, 239-40 (Tex.1991) (malpractice case; sitting judge cannot testify regarding trial judge's error in underlying litigation). And, *281given that the trial judge’s error is obvious from the record, what would an expert say? | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284147/ | OPINION
STUMBO, JUDGE:
Kentucky Executive Branch Ethics Commission (“the Commission”) appeals from two Orders of the Franklin Circuit Court. Those Orders reversed two Final Orders of the Commission holding that several Property Valuation Administrators improperly used their official positions or offices to obtain financial gain for their family members in violation of KRS llA.020(l)(c). As a basis for the reversals, Judges Phillip J. Shepherd and Thomas D. Wingate independently determined that KRS llA.020(l)(c) does not bar Property Valuation Administrators from hiring or promoting family members. In this consolidated appeal, we conclude that KRS llA.020(l)(c) cannot reasonably be interpreted to prohibit Property Valuation Administrators from promoting and hiring family members. Accordingly, we AFFIRM the Orders on appeal.
In 2007, the Commission began investigating the hiring and promotion practices of several elected Property Valuation Administrators (“PVAs”) throughout the Commonwealth. Thereafter, the Commission charged five PVAs with violation of KRS llA.020(l)(c), to wit, that each had improperly hired or promoted family members within their respective offices. These charges were as follows: 1) Harlan County PVA Felicia Wooten was charged with improperly submitting a Request for Personnel Action (“RPA”) with the Department *455of Revenue recommending her son, Derrick Wooten, for a promotion and salary increase; 2) Leslie County PVA James D. Wooton submitted an RPA recommending that his daughter, Mara Wooton, be hired as a General Deputy Trainee; 8) Oldham County PVA Ron G. Winters recommended that his wife, Barbara Winters, be promoted from Deputy to Chief Deputy; 4) Laurel County PVA Joyce Parker recommended that her daughter, Christis Garland, for appointment to a seasonal full-time position. Garland was subsequently hired as a full-time Secretary in the Laurel County PVA Office; and 5) Taylor County PVA Julie Shields recommended that her husband, Martin Shields, be appointed as a Deputy in the Taylor County PVA Office. In 2007, he was appointed Chief Deputy.
After an investigation, each of the charged PVAs was found to have violated KRS HA.020(l)(c), which states that “No public servant, by himself or through others, shall knowingly ... [u]se his official position or office to obtain financial gain for himself or any members of the public servant’s family[.]” The Commission then imposed various penalties, ranging from an order to cease and desist further violations to a $5,000 fine.
In 2008, eleven PVAs filed a Petition in Franklin Circuit Court seeking a Declaration that the Commission’s interpretation of KRS 11A.020 was unconstitutional and not supported by statutory or regulatory authority. The Franklin Circuit Court granted Summary Judgment in favor of the PVAs upon determining that PVAs are local elected officials and not state employees who fell under the authority of KRS Chapter 11. This ruling was reversed on appeal to a panel of this Court. Thereafter, the Commission rendered Final Orders against the Petitioners for violation.of KRS llA.020(l)(c).
Appellees Wooten, Wooton and Winters independently appealed the Commission’s Final Orders to the Franklin Circuit Court, and the matters were subsequently consolidated before Judge Shepherd. Similarly, Parker and Shields each prosecuted an appeal to the Franklin Circuit Court, with those actions being consolidated before Judge Wingate. The two appeals proceeded in Franklin Circuit Court, resulting in Opinions and Orders being rendered on March 5, 2013, and August 28, 2013, respectively. In each instance, the court reversed the Commission’s Final Orders. As a basis for reversing, Judges Shepherd and Wingate each determined in relevant part that KRS HA.020(l)(c) could not be construed to bar the hiring or promotion of family members.1 Rather, the courts determined that the statute does not provide that a public servant may not “use his official position or office to obtain compensation for himself or any members of the public servant’s family,” but rather bars financial gain. In making this distinction, the courts determined that the Legislature’s usage of the term compensation denoted earned income which is not prohibited, as distinguished from gifts, gratuities, kickbacks and other forms of financial gain.
' The courts went on to note that while the Commission’s goal of eliminating nepotism was laudable, other Kentucky statutes which prohibit nepotism are crafted with language that is explicit and absolute. Conversely, they found that llA.020(l)(c) is broad and indefinite, and does not contain specific and unequivocal language as is found in every other instance in which nepotism is barred.
*456Finally, the courts recognized that following the enactment of llA.020(l)(c) in 1992, the Commission rendered an Advisory Opinion stating that “the Executive Branch Code of Ethics does not specifically prohibit the employment of relatives in PVA offices.” Exec. Branch Ethics Comm., Advisory Opinion 93-24 (June 7, 1993). Some years later, the Commission proposed an amendment to KRS Chapter 11 A, which was submitted to the 2000 General Assembly. This legislation would have amended KRS HA.020(l)(c) to expressly bar nepotism in the Executive Branch. That effort was unsuccessful, and KRS llA.020(l)(c) remained in its present form. Then in 2004, the Commission issued another Advisory Opinion which mirrored the language of the rejected, proposed legislation and stated that the hiring or promoting of a family member was a per se violation of the Ethics Code. Exec. Branch Ethics Comm., Advisory Opinion 04-34 (September 30, 2004). In addressing the 1993 Advisory Opinion, the proposed legislative amendment, and the 2004 Advisory Opinion, Judges Shepherd and Wingate determined that the Commission’s own Advisory Opinions were contradictory and that it could not circumvent the legislative process by administrative fiat.
Having closely studied the record and the law, we find no error in the circuit courts’ reasoning or disposition of the consolidated appeals. The matter before us centers on the construction of KRS llA.020(l)(c). As noted above, it provides that “No public servant, by himself or through others, shall knowingly ... [u]se his official position or office to obtain financial gain for himself or any members of the public servant’s family[.]” The dispos-itive question for our consideration is whether the phrases “to obtain” and “financial gain” — which are not defined by statute — properly encompass any earned “compensation” and “income” — terms which are defined by KRS 11A.010. We conclude that Judges Shepherd and Win-gate did not err in answering this question in the negative. Because the phrases “to obtain” and “financial gain” are not defined by statute, they are to be given their normal, ordinary, common meaning. KRS 446.080(4); Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky.2002).
It is helpful in this inquiry to recognize that in contrast to KRS llA.020(l)(c), other legislative action barring nepotism is clear and unambiguous in its repudiation of the practice.. See KRS 160.380(2)(f), which provides that one “shall not promote any relative of a school board member,” or KRS 96.172(2) stating that “[n]o person shall be appointed ... who is related within the third degree to the mayor[.]”
Additionally, it is telling that the Commission’s original interpretation of KRS 11A.020, which was promulgated in Exec. Branch Ethics Comm., Advisory Opinion 93-24 (June 7,1993), is in direct opposition to the view which it now advocates. While its decision to change its interpretation of KRS 11A.020 is by no means fatal to its argument herein, it does demonstrate that the statutory language at issue does not clearly and unambiguously bar the hiring and promotion of family members within a PVA’s office.
Ultimately, we recognize that had the Legislature sought to bar the hiring and promotion of family members within a PVA’s office, it could have employed clear language to that effect. It did not do so. Additionally, the Legislature declined to adopt the 2000 amendment tendered by the Commission, which would have expressly barred the practice.
A reviewing court may overturn an agency’s decision where the agency acted “arbitrarily or outside the scope of its au*457thority, if the agency applied an incorrect rule of law, or if the decision itself is not supported by substantial evidence in the record.” Lindall v. Kentucky Retirement Systems, 112 S.W.3d 391, 394 (Ky.App.2003). Judges Shepherd and Wingate determined that the Commission acted arbitrarily by interpreting KRS HA.020(l)(c) as barring the hiring and promotion of family members with a PVA’s office, and we find no error in that conclusion. A plain reading of the statutory language, especially in the context of the Commission’s evolving interpretation of same and the Legislature’s unwillingness to amend the statute with clear and unambiguous anti-nepotism language, leads us to conclude that the Legislature did not intend to bar the hiring and promotion of family members within a PVA’s office via KRS llA.020(l)(c). We find no error.
Finally, we hold as moot the Commission’s argument that Judges Shepherd and Wingate improperly applied the Rule of Lenity in support of their respective Opinions. This rule broadly provides that doubts in statutory construction are to be resolved in favor of lenity and against a construction that would produce extremely harsh or ineongruent results. See Woods v. Commonwealth, 793 S.W.2d 809, 814 (Ky.1990). Arguendo, even if this rule were improperly applied herein as the Commission argues, which we do not find to be the case, Judges Shepherd and Win-gate reached the correct conclusions for the reasons stated above.
For the foregoing reasons, we AFFIRM the Opinions and Orders of the Franklin Circuit Court.
ALL CONCUR.
. Judge Wingate's August 28, 2013 opinion disposing of the appeals of Parker and Shields adopted in toto the analysis of Judge Shepherd's March 5, 2013 Opinion. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284148/ | OPINION
VANMETER, JUDGE:
Rosaland Moss appeals from the Franklin Circuit Court’s order granting Kentucky State University (“University”) summary judgment on her Kentucky Whistleblower Act claim. For the following reasons, we affirm.
Moss was employed in the position of Accountant III with the University from July 2007 until January 2010. Moss performed well during her first few years at the University, but Moss’s supervisor, Katherine Napier, noticed deficiencies in Moss’s work and frequent absences' beginning in early 2009. When Moss was asked to provide a doctor’s note verifying an absence in February 2009, she filed a grievance with the University’s Human Resources Director, Gary Meiseles, and an investigator in the Human Resources Department, Melvin Nicholson, alleging unfair treatment. In this complaint, Moss also alleged that her job assignment had been changed, and she was now being asked to complete financial statements, a task with which she had.only assisted in the past. While Moss’s resume stated that she had “excellent skills in financial statement preparation,” she claims that the University knew before she was hired that she only had experiénce with private business financial statements, not the financial statements of a large educational institution.
On March 27, 2009, Moss made a formal. grievance to Alice Johnson, the University’s Vice President of Finance and again to Human Resources. She complained about Napier’s request for doctor’s excuses and her lack of training in preparing financial statements. Moss alleged that Napier was being unfair, because she assigned all of the financial statements to Moss and expected Moss to reconcile accounts receivable, a task Moss claimed was impossible as it had been unbalanced for many years. Napier responded with evidence of Moss’s excessive absences and failure to complete assigned tasks.
The University terminated Moss on January 11, 2010. Moss brought this action on March 29, 2010, alleging that her termination was improper retaliation under the Kentucky Whistleblower Act. Moss alleged waste and mismanagement, claiming that her taxpayer-funded salary was wasted when she was tasked with solving the unsolvable problem of reconciling the University’s accounts receivable. The University moved for summary judgment, claiming that Moss’s complaints were not protected *459under the Whistleblower Act, and that Moss’s termination was due to her failure to complete job assignments and frequent absences. The trial court granted summary judgment in favor of the University.This appeal follows.
On appeal, Moss argues that her report of mismanagement constitutes “whistle-blowing” for purposes of the Whistleblower Act, and therefore, summary judgment in favor of the University was improper. She further claims that a causal connection exists between her reports and her termination.
CR2 56.03 provides that summary judgment is appropriate when no genuine issue of material fact exists and the moving party is therefore entitled to judgment as a matter of law. Summary judgment may be granted when “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 488 (Ky.1991) (internal quotations omitted). Whether summary judgment is appropriate is a legal question involving no factual findings, so a trial, court’s grant of summary judgment is reviewed de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71 (Ky.2010).
First, Moss alleges that her reports of “mismanagement, waste, fraud, and abuse of authority” constitute more than just personal grievances or disagreements with supervisors, and instead amount to whist-leblowing for purposes of the Act. The Kentucky Whistleblower Act provides:
No employer shall subject to reprisal, or directly or indirectly use, or threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the Kentucky Legislative Ethics Commission, the Attorney General, the Auditor of Public Accounts, the Executive Branch Ethics Commission, the General Assembly of the Commonwealth of Kentucky or any of its members or employees, the Legislative Research Commission or any of its committees, members or employees, the judiciary or any member or employee of the judiciary, any law enforcement agency or its employees, or any other appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety. No employer shall require any em-, ployee to give notice prior to making such a report, disclosure, or divulgence.
KRS3 61.102(1) (emphasis added). Accordingly, this court has instructed:
In order to demonstrate a violation of KRS 61.102, an employee must establish the following four elements: (1) the employer is an officer of the state; (2) the employee is employed by the state; (3) the employee made or attempted to make a good faith report or disclosure of a suspected violation of state or local law to an appropriate body or authority; and (4) the employer took action or threatened to take action to discourage *460the employee from making such a disclosure or to punish the employee for making such a disclosure.
Davidson v. Commonwealth of Kentucky, Dep’t. of Military Affairs, 152 S.W.3d 247, 251 (Ky.App.2004).
Both parties agree that the University and Moss are state employer and employee, respectively. The third element required for a Whistleblower Act claim is not limited to violations of law; KRS 61.102 also includes reports of “actual or suspected mismanagement, waste, fraud, [and] abuse of authority” as protected reports. In granting summary judgment, the trial court found that Moss’s complaints were personal in nature and thus not protected reports under the Whistleblower Act. Given that finding, the trial court stated that it need not determine whether Moss was fired in retaliation for her disclosures.
Because “[t]he federal Act is similar to the Kentucky Act in almost every respect[,]” the Kentucky Supreme Court has held that federal Whistleblower Protection Act law can provide direction in Kentucky Whistleblower Act cases. Commonwealth Dep’t. of Agric. v. Vinson, 30 S.W.3d 162, 169 (Ky.2000). Federal courts have held that disagreements with supervisors over job-related activities are commonplace and do not constitute whistle-blowing. Willis v. Dep’t. of Agric., 141 F.3d 1139, 1143 (Fed.Cir.1998). We agree with the trial court that Moss’s complaints regarding unfair treatment by her boss amounted to nothing more than disagreements with a supervisor, not actionable under the Whistleblower Act.
As for Moss’s report of the “impossible” task of reconciling the University’s financial accounts, the University was already aware of the problems with reconciling their accounts receivable and financial statements when Moss reported these issues. The University was attempting to address this accounting problem, and thus Moss’s complaints were hardly an initial report. Accordingly, Moss’s complaints do not fall under the protection of the Whis-tleblower Act.
Finally, we agree with the trial court that addressing Moss’s allegations that her termination was a result of her reports is unnecessary. Even if Moss’s termination was a result of her complaints, despite the University’s evidence to the contrary, her claim still is not actionable since her reports are not protected under the Act.
For the above reasons, the order of the Franklin Circuit Court is affirmed.
ALL CONCUR.
. Kentucky Rules of Civil Procedure.
. Kentucky Revised Statutes. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284149/ | *462
OPINION
MAZE, Judge:
The Commonwealth of Kentucky, Cabinet for Health and Family Services (the Cabinet), and the Cabinet Secretary appeal from a May 30, 2012 opinion and order by the Franklin Circuit Court which granted the statutory appeal by RiverVal-ley Behavioral Health and set aside the Final Order entered by the Cabinet Secretary. The Cabinet primarily argues that the circuit court failed to give proper deference to its interpretation of the controlling statutes and regulations regarding the setting of Medicaid reimbursement rates. However, we agree with the circuit court that the Cabinet acted in excess of its statutory authority by freezing RiverVal-ley’s reimbursement rates for seven years without reference to its actual costs. We further agree with the circuit court that the Secretary’s Final Order failed to set forth sufficient findings to explain the deviation from the hearing officer’s recommended findings concerning the amount which RiverValley is owed. Consequently, the circuit court properly adopted the recommended order, and we affirm.
The circuit court set out the undisputed factual and procedural history of this case as follows:
The procedural history of this case is unconventional and protracted. River-Valley Behavioral Health (hereinafter “RiverValley”) is a not-for-profit mental health provider offering inpatient services for juveniles in and around Da-viess County, Kentucky. The Cabinet’s Department for Medicaid Services (hereinafter “DMS”) regularly reimburses mental health providers, including RiverValley, for inpatient psychiatric services for Medicaid patients. At issue in this appeal are reimbursements for the period of July 1, 2000 through October 14, 2007. Petitioner claims that the rate of reimbursement set by DMS for services provided was not reasonable or adequate, and was not related to the actual cost of providing care, as required by the applicable statute. DMS issued its final July 1, 2000 rate notice on May 13, 2004, which RiverValley then challenged. An initial review of this issue occurred at the administrative level. On July 22, 2004 a Dispute Resolution Meeting (hereinafter “DRM”) was held pursuant to 907 [Kentucky Administrative Regulations (KAR) ] 1:671, Section 8. No Dispute Resolution Decision was ever issued, as provided for in 907 KAR 1:671, Section 8(1), and no administrative hearing was ever held. On March 24 2009 DMS did give RiverVal-ley notice that the final rates for the July 1, 2001 through October 14, 2007 rate periods were all set at $374.85 per diem. RiverValley again filed a timely request on this rate in accord with the regulations. Because the Cabinet essentially refused to process its administrative appeal of this decision, RiverVal-ley sought relief by filing the present action in Franklin Circuit Court.
The Franklin Circuit Court action was filed May 13, 2009. The Court noted the Cabinet’s argument that RiverValley failed to complete administrative processes for seeking internal review of its decision, but recognized that RiverVal-ley attempted to exhaust its administrative remedies to no avail. The Court was convinced that it was in the public interest to seek resolution of Petitioner’s claims through mediation. The Court recognized that RiverValley had already waited more than five years for an administrative decision, and that no progress had been made toward resolving the dispute. It appeared from the record that the failure to resolve the dispute was largely due to the Cabinet’s *463unwillingness to process the administrative appeal, and that RiverValley was being unfairly penalized through this delay caused primarily, if not exclusively, by the Cabinet.
This Court, ■ after consultation with and agreement by the parties, referred the matter to mediation per Local Rule 14. The parties further agreed, and the Court ordered, that the mediation, if unsuccessful, would be followed by a summary administrative proceeding that would be conducted in lieu of a remand for exhaustion of administrative remedies. Both parties agreed to this procedure, and the Court appointed Hon. Roger Crittenden as mediator. The parties agreed that Judge Crittenden would also serve as hearing officer and would make a recommended order to the Cabinet Secretary in the event mediation was unsuccessful.
Mediation did prove unproductive. Judge Crittenden held a further hearing and allowed a full opportunity for both parties to present all documentary evidence, legal argument, factual presentation, and testimony. Thereafter, Judge Crittenden made a recommendation to the Cabinet Secretary in the same manner as a hearing officer’s report and recommendation per Chapter 18B. A two-day summary hearing was held in June, 2011 and both parties presented testimony. Following the hearing, Judge Crittenden issued his formal Findings of Fact, Conclusions of Law, and Recommended Decision.
The Recommended Decision thoroughly details the process by which DMS pays free-standing psychiatric hospitals such as RiverValley a per diem rate for inpatient psychiatric hospital services to Medicaid patients. These per diem rates are typically established by DMS at the beginning of the July 1 rate year, and the rates are based on the previous year’s Medicaid allowable costs, with some adjustments made for inflation. (Recommended Decision, p. 3-4). The total allowable costs are then divided by a facility’s total Medicaid days to arrive at a per diem rate. (Id) The parties agreed that RiverValley was actually paid $374.85 per diem for the July 1, 2000 rate year through October 14, 2007, as calculated by DMS. (Id at 5). The 2001 rate was established based on the lesser July 1, 2000 rate.
This July 1, 2000 rate was calculated based on RiverValley’s FYE June 30, 1999 cost report, adjusted for inflation. However[,] fixed costs were spread out over an unusually large number of patient days in that year, resulting in costs per day that when calculated were unusually low. (Id) RiverValley argues, and the uncontested record supports, that these and other changes in circumstances resulted in the inadequate per diem rate of $374.85, and that RiverVal-ley’s actual costs were in fact $456.36 per diem. (Id. at 6). Mr. Cooper, a DMS Budget Reimbursement Officer who testified at the hearing conceded in his testimony, “[RiverValley] and I probably have a different definition of adequate, but mine would be we are covering your [marginal] costs and we are covering a [proportional] amount of your fixed costs. And we were not.” (Id at 6; Cooper Tr. Vol I, pp. 111-12). Further he stated, “RiverValley, to my recollection, caught the worst in terms of a prospective rate, being that their census was high and then .it was low. And I can’t recall of another hospital being in that dilemma.” (Id at 7; Cooper Tr. At [119]).
Judge Crittenden’s Recommended Decision also details changes made to DMS regulations. Prior to June 29, 2001, any changes in the hospital’s cir*464cumstances which might cause the rate to be inadequate for one year would have been taken into consideration and the rate year adjusted accordingly. However, DMS filed an emergency regulation on June 29, 2001, which provided that psychiatric hospitals would receive either the rate established for the previous July 1, 2000 rate year, or its costs as determined by the traditional rate setting method based on a calculation of the hospital’s costs, whichever amount was less. 907 KAR 1:013E, Section 15. (Recommended Decision, Joint Ex. 8). DMS applied the per diem figure as discussed supra, as it was lower than the $491.14 per diem rate reflecting the hospital’s actual costs and changed circumstances. (Recommended Decision, p. 7-8). Judge Crittenden recognized that for every dollar expended by River-Valley in providing care to Medicaid patients, RiverValley received 76 cents in reimbursements. (Id. at 8).
The Recommended Decision also recognized that RiverValley was confronted with exactly the same scenario as was presented in Northkey Community Care v. Commonwealth of Kentucky, Cabinet for Health Svcs., Civil Action No. 03-CI-804 (Opinion and Order entered April 15, 2004). In Northkey, this Court held that the administrative regulation relied on by the Cabinet to impose a lower reimbursement rate was in conflict with the statute. DMS changed the regulation again before setting the July 1, 2002 rate, and continued to apply the $374.85 per diem rate without adjusting for inflation or recalculating at all. (Id. at 9). April 1, 2003, DMS abandoned the per diem methodology for the Diagnosis Related Group (hereinafter “DRG”) methodology, and a new regulation provided “effective April 1, 2003, an inpatient service provided to an eligible Medicaid recipient in a ... psychiatric hospital shall continue to be reimbursed at a per diem rate in effect for the rate year beginning July 1, 2002.” 907 KAR 1:013E, Section 10(1). (Recommended Decision, Joint Ex. J.). Although the regulation applicable to the July 1, 2003 rate year stated that the per diem rate shall be adjusted annually to account for inflation using the CMS Input Price Index, no such adjustments were made. (Id. at 9-10; Joint Ex. J.). The regulation also required the Department to rebase per diem rates no less frequently than every three years using the most recent audited cost reports. (Id. at Joint Ex. J). RiverValley’s rates were rebased July 1, 2000, but were not again adjusted until October 15, 2007. (Id. at 10; see also 907 KAR 1:013, Section 10(3) (Joint Ex. K) (the version of the regulation remaining in effect until October 15, 2007)). On October 15, 2007, the rate was adjusted to $580 per diem, a rate applied to all psychiatric hospitals. (Id. at 10). This increased rate covered only eighty percent of RiverValley’s actual costs.
Judge Crittenden, upon review of the relevant regulations’ trending, indexing, and rebasing provision, and the Franklin Circuit Court’s decision in Northkey, found that' the DMS rate methodology used to set the July 1, 2001 rate was in violation of KRS [Kentucky Revised Statutes] 205.560. (Id. at 12). Further, the Recommended Decision found that RiverValley should receive approximately $14 million in additional reimbursements, based on RiverValley’s calculations. (Id. at 15). Given the long periods of delay in this matter, the decision noted that there was a “substantial possibility” that RiverValley could be awarded as much as $14 million plus interest. (Id.) Judge Crittenden, however, recommended that a 20 percent *465parity factor1 be applied and that no interest be awarded, reducing his recommended amount to $9,686,000.00 (Id. at 16).
DMS filed exceptions to the Recommended Decision, to which RiverValley responded. The Secretary entered a Final Order November 23, 2011, finding that the recommendation must be “modified.” The Secretary then proceeded to enter new Findings of Fact noting .the same circumstances and realities faced by RiverValley, and the same 2000— 2007 regulatory changes. The Secretary found that, “absent RiverValley’s changed circumstances, the reimbursement rate for RiverValley was not [in-Jadequate.” (Final Order, p. 4). The Secretary determined that DMS must retroactively adjust RiverValley’s rates due to changed circumstances to a rate of $422.53 per diem for the period of July 1, 2000 through October 14, 2007, resulting in an additional reimbursement to RiverValley of $3,966,165.44. (Final Order, p. 5). In support of these figures, the Secretary cited to RiverVal-ley’s reduction of Medicaid utilization of 15.90% in SFY 2001 (4.66% in 2000 to 78.76% in 2001). The Cabinet then set the upward rate adjustment at 80% of the difference in utilization, for an increase of $47.68 per day, resulting in adjustment to $422.53 per diem. (Id.).
Following issuance of the Final Order, RiverValley filed a motion in this Court for leave to file a supplemental complaint, which the Court granted on January 3, 2012. Petitioner’s supplemental complaint asserts a [KRS 13B.140] appeal of the Secretary’s Final Order, asserting that the Final Order failed to articulate non-arbitrary findings and conclusions for what RiverValley considered to be a stark deviation from the Recommended Order. RiverValley also petitioned for a Writ of Mandamus, asserting that the new Medicaid rates and reimbursements beginning July 1, 2011 failed to timely schedule a DRM within the explicit time limitations pursuant to the regulations, and requesting that the Court direct the Cabinet to timely process the 2011 rate appeal. A second Writ of Mandamus was included in the Supplemental Complaint, ' requesting that the Court direct the Cabinet to accurately compensate RiverValley for the early and periodic screening, diagnosis, and treatment (hereinafter “EDSTP”) services it provides, as regulation 907 KAR 11:035, Section 4(1) directs. RiverValley asserts in the Complaint that the Cabinet treated EDSTP days the same as ordinary Medicaid days and has failed to rebase or reset these rates since February 1, 2009. The Court, by Order entered February 2, 2012, held Counts 2 and 3 of the Amended Complaint in abeyance pending dispute resolution at the administrative level, and the Court understand^] that these matters are still pending before the Cabinet.
On February 20, 2012, this Court entered an Order directing the Cabinet to pay RiverValley the $3,966,165.44 by March 1, 2012, but the Cabinet failed to do so, even though the Cabinet Secretary had ruled that this amount was owed to RiverValley. After RiverValley filed a motion to show cause on March 15, 2012, the Cabinet entered a special *466appearance in response, asserting that the Court lacked-jurisdiction. While the Cabinet filed an interlocutory appeal of the Court’s February 20 Order Compelling payment, the Court of Appeals dismissed this appeal by Order entered June 5, 2012.[2]
The case was submitted for final decision March 22, 2012, after the case had been fully briefed by both parties. Petitioner asserted that the hearing officer, having heard the testimony and reviewed the documentary evidence, accurately determined that RiverValley was entitled to $9,636,000.00, as recommended. The Secretary’s Final Order, Petitioners argue, should be reversed as it is not based on substantial evidence, failed to comply with KRS § 13B.120(1), and failed to consider the decision in Northkey and relevant regulations requiring rebasing and inflation adjustments. Thus Petitioner asks that the Court enter an order adopting Judge Crittenden’s recommended decision and directing the Cabinet to pay RiverValley the $9,636,000.00 in additional reimbursements, plus interest. The Cabinet asserts that the Secretary’s Final Order is consistent with the requirements of KRS Chapter 13B; that the Cabinet’s set rates are justified by and compliant with state and federal law; and that the parties reached a settlement agreement which should be honored. The Cabinet asks that the Secretary’s Final Order be affirmed and the Cabinet’s reimbursement methodology be upheld as consistent with state and federal law and regulations.
In an opinion and order entered on May 31, 2013, the circuit court reversed the Secretary’s Final Order. The court concluded that the Secretary’s Order was not supported by substantial evidence, and that the reimbursement rates set by the Secretary were arbitrary and unrelated to RiverValley’s actual costs in violation of KRS 205.560(2). The circuit court further found that Judge Crittenden’s Recommended Order was supported by substantial evidence and correctly applied the controlling law. Consequently, the circuit court adopted the Recommended Order and directed the Cabinet to pay RiverVal-ley $9,636,000 in additional reimbursements for the time period at issue, with a credit for the $3,966,165.44 already paid.
The Cabinet filed a timely motion to alter, amend or vacate this order pursuant to Kentucky Rules of Civil Procedure (CR) 59.05. On July 2, 2013, the circuit court denied the motion, concluding that the Cabinet was not entitled to relief on any of its stated grounds. This appeal followed.
As an initial matter, the Cabinet contends that DMS and RiverValley entered into an informal settlement of this dispute in 2007. The Cabinet points to a number of e-mail exchanges between RiverValley and DMS. Based upon these exchanges, the Cabinet states that it agreed to increase RiverValley’s reimbursement rates after 2007 in order to compensate it for the underpayment during the period from 2001 through 2007. The Cabinet argues that RiverValley should be held to the terms of this alleged agreement.
In his role as hearing officer, Judge Crittenden expressly rejected this argument, finding no evidence that the parties actually reached a settlement agreement.3 *467Furthermore, Judge Crittenden noted that rates set in 2007 only covered 80% of RiverValley’s costs, which would have been insufficient to compensate RiverValley for the underpayment during the previous years. While the Secretary did not expressly adopt or reject this finding, she simply stated that “I have not relied upon the understanding of DMS that there was a settlement agreement or that the 2007 going-forward rate paid RiverValley more than its actual costs.” Since neither Judge Crittenden nor the Secretary found that there was an enforceable agreement between DMS and RiverValley to settle this matter, this Court is not at liberty to make such a finding on appeal.
KRS 13B.150(2) sets out the scope of judicial review of decisions of administrative agencies, as follows:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the final order or it may reverse the final order, in whole or in part, and remand the ease for further proceedings if it finds the agency’s final order is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion;
(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or
(g) Deficient as otherwise provided by law.
“Judicial review of an administrative agency’s action is concerned with the question of arbitrariness.” Commonwealth, Transportation Cabinet, Department of Vehicle Regulation v. Cornell, 796 S.W.2d 591, 594 (Ky.App.1990), citing American Beauty Homes Corporation v. Louisville & Jefferson County Planning & Zoning Commission, 379 S.W.2d 450, 456 (Ky.1964). “On factual issues[ ], a circuit court in reviewing the agency’s decision is confined to the record of proceedings held before the administrative body and is bound by the administrative decision if it is supported by substantial evidence.” Id. at 594. In this case, however, the Secretary did not dispute the hearing officer’s factual findings.
The Cabinet primarily argues that the circuit court improperly substituted the judgment of the hearing officer’s Recommended Order for that of the Secretary. as expressed in the Final Order. We agree with the Cabinet that the Secretary was not bound by the conclusions set out in Judge Crittenden’s Recommended Order. KRS 13B.120(2) grants the Secretary broad discretion to “accept the recommended order of the hearing officer and adopt it as the agency’s final order, or ... *468[to] reject or modify, in whole or in part, the recommended order, or ... [to] remand the matter, in whole or in part, to the hearing officer for further proceedings as appropriate.” However, where the Secretary chooses to reject or modify the hearing officer’s conclusions, the final order “shall include separate statements of findings of fact and conclusions of law.” KRS 13B.120(3). Although the Secretary is not required to refute every finding of fact and conclusion of law made in the recommended order, the final order must articulate a rationale for departing from the recommendation which is sufficient to explain the reasons for the deviation and to allow meaningful appellate review. See Baker v. Commonwealth, Kentucky Retirement Systems, 2007 WL 3037718 (Ky. App.2007)(2005-CA-001588-MR) at 21-24.
The Cabinet also notes that the circuit court relied extensively on its prior ruling in the Northkey case. That opinion was not appealed beyond the circuit court level, and it is not binding on this Court. Nevertheless, the only issue concerns DMS’s adoption and application of regulations regarding the reimbursement rate for the period from 2001 through 2007. These are entirely issues of law, which we review on a de novo basis. Aubrey v. Office of Attorney General, 994 S.W.2d 516, 519 (Ky.App.1998). .This Court will give some deference to an agency interpretation of the regulations and the law underlying them that it is .charged with implementing, so long as the “agency interpretation is in the form of an adopted regulation or formal adjudication.” See Louisville/Jefferson County Metro Government v. TDC Group, LLC, 283 S.W.3d 657, 661 (Ky.2009),. quoting Board of Trustees of Judicial Form Retirement System v. Attorney General of the Commonwealth, 132 S.W.3d 770, 786-87 (Ky.2003); see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, the courts have the ultimate responsibility in matters of statutory construction and the reviewing court is not bound by an administrative body’s interpretation of a statute. Board of Educ. of Fayette County v. Hurley-Richards, 396 S.W.3d 879, 885-886 (Ky.2013), and Delta Air Lines, Inc. v. Commonwealth, Revenue Cabinet, 689 S.W.2d 14, 20 (Ky.1985).
KRS 205.560(2) specifies that “[p]ay-ments for hospital care ... shall be on bases which relate the amount of the payment to the cost of providing the services or supplies.” Likewise, the controlling federal regulations require that Medicaid payments are “reasonable and adequate to meet the costs that must be incurred by efficiently and economically operated providers to provide services in conformity with applicable State and Federal laws, regulations, and quality and safety standards.” 42 Code of Federal Regulations (C.F.R.) § 447.253(b)(1)®. The Cabinet makes no showing that the regulations at issue meet either standard.
On June 29, 2001, DMS filed an emergency regulation changing its rate-setting methodology for the July 1, 2001 rate year. The regulation provided that psychiatric hospitals would receive either the rate established for the previous July 1, 2000 rate year, or its costs as determined by the traditional rate-setting method based on a calculation of the hospital’s costs, whichever amount was less. 907 KAR 1:013E Section 15 (6/20/01). This regulation effectively froze RiverValley’s reimbursement rate at the lesser amount of $374.85 per diem which DMS carried over from the previous rate year. Subsequent changes to the regulations in 2003 froze RiverValley’s reimbursement rate at this amount until 2007.
*469The regulations adopted by DMS during the period at issue did not reasonably relate to RiverValley’s actual costs, but arbitrarily froze the reimbursement at the 2000 level. The Secretary’s Final Order does not discuss how the applicable statutes authorized DMS to promulgate this rule. The Secretary merely asserts that DMS had the legal authority to do so, and that DMS “correctly calculated and applied the reimbursement rate for RiverVal-ley in the same manner as for all other like-providers and as established by regulation and the State Plan from 2000 to 2007.” Upon reaching this conclusion, the Secretary went on to find that the reimbursement rate set for RiverValley was “not inadequate.”
We conclude that this legal determination was clearly erroneous on its face. In addition to the requirements of KRS 205.560, federal law requires that DMS must make sufficient findings to ensure that its Medicaid reimbursement rates fall “within a range of what could be considered reasonable and adequate.” Memorial Hospital, Inc. v. Childers, 896 F.Supp. 1427, 1435 (W.D.Ky.1996). Neither the Secretary nor the Cabinet made any attempt to explain how the methodology adopted by DMS complies with the express language of KRS 205.560 or the controlling federal statutes and regulations. Likewise, the Cabinet makes no attempt to show how this methodology relates to Riv-erValley’s actual and allowable provider costs.
The Cabinet also points to an unpublished opinion of this Court, Cabinet for Health & Family Services v. Regional Healthcare, Inc., 2013 WL 4508205 (Ky. App.2013)(2010-CA-001319-MR), as holding that the Cabinet has the authority to promulgate set Medicaid reimbursement rates at an amount less than the provider’s actual costs. But in that case, the.issue involved whether the Cabinet could promulgate emergency regulations which altered the provider’s reimbursement rate midway through a universal rate year. This Court held only that the Cabinet had such authority. Id. at 10-11.4 The current case, on the other hand, involves whether the regulations comply with the statutoiy mandate, and the sufficiency of the Secretary’s findings concerning the amounts owed to the provider. Given the distinct issues, the holding in Regional Healthcare is not applicable to the current case.
Furthermore, the Secretary’s Final Order is deficient in several other respects. Despite having found that RiverValley’s 2001 reimbursement rate was appropriate, the Secretary found that DMS should have adjusted that rate based upon a showing of changed circumstances. The parties agree that the 2000 reimbursement rate was set at an artificially low level due to changes in the rate-setting methodology and in River-Valley’s operations. Based upon these changes in circumstances, the Secretary then adopted a reimbursement rate of $422.53 per diem. However, Judge Crit-tenden found, and the Secretary did not dispute, that RiverValley’s actual costs from 2000 to 2004 ranged from $456.36 to $491.14 per diem. Again, the Secretary made no attempt to explain this difference or how the amount relates to RiverValley’s actual and allowable costs.
Similarly, in his Recommended Order, Judge Crittenden pointed out that the version of 907 KAR 1:013E adopted in 2003 *470required adjustment of the per diem rates for inflation- at least every three years. RiverValley’s reimbursement rates were not adjusted at any time between 2000 and 2007. The Secretary made no attempt to address this issue in the Final Order.
As a final attempt to avoid reversal, the Cabinet insists that if RiverValley is not satisfied with its Medicaid reimbursement rate, then its only remedy is to withdraw from participating in the program. We find this position to be baffling, not least because DMS’s own regulations give providers a method of challenging reimbursement rates through the administrative process. The Cabinet simply refused to comply with these processes. When compelled to do so by the courts, the Secretary simply entered a new determination without any attempt to support it through the factual record or the controlling authority.
The Cabinet further contends that the courts have no authority to review such determinations, even though KRS 1SB.150 expressly sets out the scope of judicial review from final orders of administrative agencies. Moreover, Section 2 of the Kentucky Constitution expressly prohibits the exercise of arbitrary power by an administrative agency.
Whatever is contrary to democratic ideals, customs and maxims is arbitrary. Likewise, whatever is essentially unjust and unequal or exceeds the reasonable and legitimate interests of the people is arbitrary, [Sanitation Dist. No. 1 v. City of Louisville, 308 Ky. 368, 213 S.W.2d 995, 1000 (1948) ]. No board or officer vested with governmental authority may exercise it arbitrarily. If the action taken rests upon reasons so unsubstantial or the consequences are so unjust as to work a hardship, judicial power may be interposed to protect the rights of persons adversely affected. Wells v. Board of Education of Mercer County, Ky., 289 S.W.2d 492, 494 (1956). Our function is to decide a test of regularity and legality of a board’s action by statutory law and by the constitutional protection against the exercise of arbitrary official power. Id.
Kentucky Milk Marketing and Antimonopoly Com’n v. Kroger Co., 691 S.W.2d 893, 899 (Ky.1985).
We would be hard-pressed- to identify a clearer example of arbitrary conduct than the Cabinet’s behavior in this case.
While the Cabinet argues that this Court should give deference to its interpretation of the controlling statutes and regulations, it has failed to set out any explanation for the result which it reached in this case. Considering the undisputed factual findings, the Secretary’s clearly erroneous determinations of law, and the Cabinet’s arbitrary and capricious behavior in this case, the circuit court correctly held that the Order must be set aside. Furthermore, we agree with the circuit court that the Recommended Order should be adopted in full, as it sets out the only complete and accurate statement of the facts and the applicable law in this case.
Accordingly, the May 30, 2012 opinion and order by the Franklin Circuit Court is affirmed.
ALL CONCUR.
. It- appears that Judge Crittenden, by applying the parity factor of 20%, was attempting to create an incentive for resolution. The Recommended Decision notes that the Cabinet risked a potential judgment against it for more than $14 million dollars, and that River-Valley [szc] risked a substantially reduced judgment and inevitable delay for appeal. (Recommended Decision, p. 16). [Footnote in original].
. Cabinet for Health & Family Services v. River Valley Behavioral Health, No. 2012-CA-000412-MR. (Footnote added).
. The Cabinet presented e-mail exchanges between Mike Mountain, RiverValley's Chief Financial Officer, Paul Cooper, and then-DMS Commissioner Glenn Jennings. The e-mails were exchanged between November 21, 2006, *467and October 2, 2008, and discussed various methods of settling RiverValley’s rate dispute with DMS. However, there is no indication in these exchanges that the parties reached a meeting of minds concerning the exact terms of any settlement. Moreover, in his testimony before Judge Crittenden, Cooper admitted that he did not have authority to bind DMS to any settlement agreement at the time the emails were exchanged with RiverValley. Cooper believed that Commissioner Jennings had such settlement authority, but was unable to say so for certain. Testimony of Paul Cooper, June 21, 2011, Transcript Vol. 1, p. 121. The Cabinet does not point to any other evidence showing that any of the DMS parties to the e-mails had the authority to enter into a settlement agreement.
. The Cabinet also appealed the circuit court’s finding that the Cabinet exceeded its authority by restricting the allowable amount of depreciation for buildings and fixtures in calculating the allowable costs. However, the Cabinet withdrew its appeal on this issue, and this Court never determined whether the regulation was valid. Id. at 8-9. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284150/ | ORDER
Per Curiam:-
Joshua M. Edmond appeals the denial of his Amended Motion to Vacate, Set Aside or Correct the Judgment or Sentence. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284151/ | ORDER
PER CURIAM
Larry Young (Claimant) appeals from the final order of the Labor and Industrial Relations Commission (the Commission) affirming and adopting the decision of the Appeals Tribunal, which upheld the determination of a deputy from the Division of Employment Security disqualifying Claimant from unemployment benefits. 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. The Commission’s final order is supported by competent and substantial evidence on the whole record. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential or prece-dential 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/5284152/ | Kurt S. Odenwald, Presiding Judge
Introduction
Relator, Donald E. Isselhard, D.D.S. (Is-selhard), seeks a writ of mandamus directing Respondent, the Hon. Colleen Dolan (Respondent) to enter an order accepting the date of filing of the petition against him as January 15, 2015, as originally reflected in the electronic filing system, Is-selhard further requests that we direct Respondent to dismiss the cause of action against him with prejudice because the petition , was filed outside the statute of limitations. Because the trial court properly exercised its discretion in having the record reflect the petition was filed on January 13, 2015, we deny the petition for writ of mandamus.
Facts and Procedural History
Plaintiff Barbara J. Perry (Plaintiff) was a patient of Isselhard and allegedly was injured by his negligence. On October 29, 2013, Plaintiff filed a “Complaint for Medical Negligence” against Isselhard alleging two counts. On January 14, 20Í4, Plaintiff voluntarily dismissed her lawsuit. On January 13, 2015, Plaintiff submitted another petition against Isselhard entitled “Complaint for Medical Negligence” for filing through the electronic filing system. The electronic filing system confirmed that the document (numbered EF2855761) was submitted for filing on January 13, 2015. On January 15, 2015, the petition was returned to Plaintiff due to “Missing/Incorrect Party(ies) — All parties need to be added into the e-filing system prior to submission.” Plaintiff then resubmitted the same petition along with the requested party information on January 15, 2015. The petition on file contains an electronic filing stamp of January 15, 2015.1
*498Under the savings statute, Plaintiff was required to re-file her petition within one year of the date of the voluntary dismissal. Section 516.280, RSMo.2000. Because Plaintiff dismissed her previous petition on January 14, 2014, she was required to refile her petition by January 13, 2015. Is-selhard filed a motion to dismiss the petition alleging the petition was filed beyond the permissible time allowed. Respondent denied the motion to dismiss, concluding that the petition was deemed timely filed on January 18, 2015.
Isselhard contends that Plaintiff did not re-file her petition until January 15, 2015 when the petition was accepted by the clerk’s office. Isselhard posits that Respondent lacks authority to change the date of filing to January 13, 2015, the date the petition was first submitted, but not accepted. Therefore, Isselhard requests this Court to issue a writ of mandamus directing Respondent to enter an order reflecting the date of filing of the petition as January 15, 2015, and to dismiss Plaintiffs cause of action against him with prejudice as the petition was filed outside the statute of limitations. Although we deny Relator’s petition, we write this opinion to provide guidance upon the recurrence of this and similar issues with electronic filing.
Standard of Review
Our power to issue remedial writs, derives from Article V, Section 4.1 of the Missouri Constitution. State ex rel Dir. of Revenue v. Kinker, 209 S.W.3d 1, 2 (Mo.App.E.D.2006) (citing State ex rel. Dir. of Revenue v. Mobley, 49 S.W.3d 178, 179 (Mo. banc 2001)). A writ of mandamus may issue under very limited circumstances as it is “a hard and fast unreasoning writ, and is reserved for extraordinary emergencies.” Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980), The function of the writ of mandamus is to enforce, not to establish, a claim or right; the office of the writ is to execute, not to adjudicate. State ex rel. Kiely v. Schmidli, 583 S.W.2d 236, 237 (Mo.App.W.D.1979). To warrant control by mandamus, “there must be an existing, clear, unconditional legal right in relator, and a corresponding present, imperative, unconditional duty upon the fact of respondent, and a default by respondent therein.” Id.
Discussion
Rules 103.06(e) and (f) explain the legal framework when a document is submitted to the court through the electronic filing system. Rule 103.06(e) provides that “[a] document is submitted for filing when the electronic filing system receives the document and sends a confirmation receipt to the filer.” Rule 103.06(f) states that “[I]f the clerk accepts a document for filing, the date and time of filing entered into the case management system shall be the date and time the electronic filing system received the document.”
In State v. Ess, 453 S.W.3d 196 (Mo. banc 2015), the Supreme Court addressed the issue of the proper filing date for a paper pleading that was rejected by a circuit clerk. In that case, defense counsel had attempted to file a paper motion for new trial in the clerk’s office on the day it was due, January 9, 2014. The clerk’s office refused to accept the filing because the accompanying affidavit did not include a notary stamp. The matter was not corrected until the following day, January 10, 2014, and the clerk filed the motion on January 10, 2014, The circuit court sus*499tained the defendant’s motion to have the record reflect that his motion for new trial was timely filed on January 9, 2014. Id. at 201. The Supreme Court found the circuit court’s action was not an abuse of discretion, noting that the “circuit clerk refused [defendant’s] filing in the absence of some clear prohibition in law, court rule, or specific court order. The circuit clerk was obligated to accept the filing.” Id.; see also Yogi v. State, 437 S.W.3d 218, 225-26 (Mo. banc 2014).
Although Ess addressed the filing of a paper document, we find no reason to diverge from the legal standard espoused in Ess merely because the document at issue was presented to the court clerk by means of electronic filing. Here, the petition submitted for filing by Plaintiff was in proper form. The filing was returned by the clerk simply because Plaintiff failed to enter the name of the defendant and check his party status in a box on the electronic filing page. All of the parties were properly named on the petition. The name and address of the defendant to be served was contained within the caption and the body of the petition. . We are aware of no law, court rule, or specific court order authorizing the court clerk to reject the filing of the petition for such a minor technical deficiency. We note that Isselhard does not suggest that there is any difference between the petition submitted for filing on January 13, 2015 and the petition submitted, accepted and.filed on January 15, 2015.
Under Ess, the clerk was obligated to accept the filing. A pleading is deemed filed when it is received by the clerk of a circuit court. Yogi, 437 S.W.3d at 226. In electronic filing, the circuit clerk does not actually receive the filing in the same way it receives a paper pleading. Instead, the clerk receives an electronic document when the filing is received by the electronic filing system. Rule 103.06(e). The petition was received by the electronic filing system on January 13, 2015. The petition should have been accepted as of that date'. Had the petition been accepted as required, the electronic filing system would have created an electronic filing stamp of January 13, 2015.
One of the advantages of the electronic filing system is that it creates and maintains a clear record of the documents as they are submitted, even if not accepted. It is not questioned that the petition at issue in the lawsuit was submitted and received through the electronic filing system on January 13, 2015. Given the facts before us, we do not find that Isselhard has a clear, unconditional legal right to the action he requested of the trial court. To the contrary, the trial court properly exercised its discretion when ordering the record to reflect that Plaintiffs petition was filed on January 13, 2015. Accordingly, issuing a writ of mandamus would be improper.
The petition for a writ of mandamus is denied.
Robert G. Dowd, Jr. J., arid Lisa Van Amburg, C.J., concur.
. The electronic filing system prevents the clerk from changing the computer-generated *498file stamp and there is no mechanism for "back-dating” a file stamp in the electronic filing system. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284153/ | ORDER
PER CURIAM
Erik Ross (“Employee”) appeals from a judgment of the Missouri Labor and Industrial Relations Commission (“the Commission”) denying him unemployment benefits because he was discharged by Hilton Worldwide, Inc. (“Employer”) for misconduct. 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/5285152/ | Nancy Steffen Rahmeyer, J.
John E. Julian (“Relator”) brought a Petition for Writ of Prohibition against The Honorable Michael Hendrickson after Judge Hendrickson set a hearing for probation revocation approximately one year after his original five-year period of probation had expired. We entered a Preliminary Writ of Prohibition/Mandamus and now make the Writ permanent.
FACTS
April 10, 2009 — Relator is sentenced to seven years in Department of Corrections, Hickory Co.
—Sentence was suspended and Relator placed on probation for five years.
July 6, 2009 — Relator sentenced to serve a term on unrelated charges, St. Clair Co.
July 27, 2009 — Relator sentenced to serve a term on other unrelated charges, Henry Co.
July 30, 2009 — Trial court makes docket entry ordering Hickory Co. probation suspended.
October 10, 2014 — Court “reinstates” Relator’s probation with notation that Relator “shall not receive credit against probation time for his period of suspension between 7/30/09 and 10/10/2014.”
October 31, 2014 — Relator seeks “early release” from probation, no objection from State.
November 7, 2014 — Respondent denies the request for “early release” from probation.
April 27, 2015 — a violation report filed with court.
May 1, 2015 — Motion to Revoke probation filed, amended on May 19, 2015.
May 7, 2015 — Court issues a warrant, served on July 23, 2015, on Relator (while he was in prison),
August 3, 2015 — Relator filed a Motion to Terminate Defendant’s Probation and for Immediate Release.
August 7, 2015 — Court denies the Motion.
analysis'
Relator contends he is entitled to an order prohibiting Respondent from conducting a hearing on the pending motion to revoke his probation because his probation expired on April 10, 2014, and during that time (1) no motion to revoke his probation was filed, (2) Respondent did not manifest any intent to hold a hearing regarding Relator’s probation, and (3) Respondent made no effort to conduct a hearing on his probation. Respondent did not file a brief in response to Relator’s brief. He did file an Answer to the Petition for Writ. In the Answer, he admitted the facts listed above; however, Respondent contended that the sentencing court had the authority on July 30, 2009, to order the suspension of Relator’s probation and the subsequent reinstatement. Both parties rely upon section 559.036.1 The relevant parts of section 559.036, as set forth in 2009, were:
*3811. A term of probation commences on the day it is imposed. Multiple terms of Missouri probation, whether imposed at the same time or at different times, shall run concurrently. Terms of probation shall also run concurrently with any federal or other state jail, prison, probation or parole term for another offense to which the defendant is or becomes subject during the period, unless otherwise specified by the Missouri court.
2. The court may terminate a period of probation.... The court may extend the term of the probation, but no more than one extension of any probation may be ordered except that the court may extend the term of probation by one additional year by order of the court if the defendant admits he or she has violated the conditions of probation or is found by the court to have violated the conditions of his or her probation. Total time on any probation term, including any extension shall not exceed the maximum term established in section 559.016. Procedures for termination, discharge and extension may be established by rule of court.
[[Image here]]
4. Probation shall .not be revoked without giving the probationer notice and an opportunity to be heard — '
5. The prosecuting or circuit attorney may file a motion to revoke probation or at any time during the term of probation, the court may issue a notice to the probationer to appear to answer a charge of a violation, and the court may issue a warrant of arrest for the violation. Such notice shall be personally served upon the probationer. The warrant shall authorize the return of the probationer to the custody of the court or to any suitable detention facility designated by the court. . Upon the filing of the prosecutor or circuit attorney’s motion or on the court’s own motion, the court may immediately enter an order suspending the period of probation and may order a warrant for the defendant’s arrest. The probation shall remain suspended until the court rules on the prosecutor or circuit attorney’s motion, or until the court otherwise orders the probation reinstated.
6.The power of the court to revoke probation shall extend for the duration of the term of probation designated by the court and for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs prior to the expiration. of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period.
(Emphasis added.)
As noted above, probation commences on the date it was imposed: Section 559.036.1; State ex rel. Whittenhall v. Conklin, 294 S.W.3d 106, 109 (Mo.App.S.D.2009). Probation runs concurrently with state prison terms.- Section 559.036.1. A term of probation cannot exceed five years. Section 559.016.1(1), Any extension may not exceed the five-year maximum “plus one additional year if the defendant admits or the court finds that the defendant has violated the conditions of his or her probation.” Section 559.016.3.
Section 559.036.5 provides that the court may enter -an order suspending the period of probation and may order a warrant for the defendant’s arrest, but only when as a consequence of an alleged violation of that probation. Here, Respondent relies upon this section as authority to suspend Relator’s probation in 2009, thus, making the subsequent motion to revoke valid. Respondent, however, ignores the plain lan*382guage and context of the statute that set a violation of probation as a precondition for such a suspension.' In this case, there was no motion to revoke the Relator’s probation or any allegation that Relator had committed a violation of the terms of probation pending at the time that his probation was suspended.
As noted, section 559.016.3 states, “[t]o-tal time on any probation term, including any extension, shall not exceed the maximum term as established in subsection 1 of this section [five years] plus one additional year if the defendant admits or the court finds that the defendant has violated the conditions of his or her probation.” Section 559.016,3; State ex rel. Dotson v. Holden, 416 S.W.3d 821, 823 (Mo.App.S.D.2013). Further, section 559.036'.6 provided the only exception that allows a trial court to extend its statutory authority and revoke probation. Starry v. State, 318 S.W.3d 780, 782-83 (Mo.App.W.D.2010). Section 559.036.6 provided:
The power of the court to revoke probation shall extend for the duration of the term of probation designated by the court and for any further period which is reasonably necessary for the adjudication of matters arising before its expiration, provided that some affirmative manifestation of an intent to conduct a revocation hearing occurs prior to the expiration of the period and that every reasonable effort is made to notify the probationer and to conduct the hearing prior to the expiration of the period.
No motion to revoke probation was brought within five years after Relator’s probation had commenced. Even if we were to assume, without so finding, that the court had the authority to extend Relator’s probation without a pending motion to revoke probation for an additional year, clearly Respondent violated the clear provision of section 559.036.6 regarding the conditions which must have been met and the total time of the probation term. There was no motion to revoke probation or an allegation of a probation violation brought within six years after probation was imposed. Respondent does not contend that it “provided that some affirmative manifestation of an intent to conduct a revocation hearing” occurred prior to the expiration of the period or that any reasonable effort was made to notify Relator and conduct a hearing prior to the expiration of the extended probation term. See Stelljes v. State, 72 S.W.3d 196 (Mo.App.W.D.2002), State ex rel. Strauser v. Martinez, 416 S.W.3d 798 (Mo. banc 2014), and State ex rel. Dotson v. Holden, 416 S.W.3d 821 (Mo.App.S.D.2013), Because Respondent exceeded its statutory authority to act as intended when it revoked Relator’s probation, our preliminary writ of prohibition/mandamus is made absolute.
Gary W. Lynch, J. — Concurs
William W. Francis, Jr., J. — Concurs
. All references to statutes are to RSMo Cum. Supp. 2005, unless otherwise indicated. We note that the current version of section 559.036 has a different numbering of subsections. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125605/ | Judgment affirmed with costs. Opinion by
Smith, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125606/ | Judgment affirmed. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125607/ | Judgment reversed and new trial ordered ; costs to abide event. Opinion by
Talcott, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284155/ | ORDER
PER CURIAM
Andrew G. Thompson appeals the judgment of the Audrain County Circuit Court convicting him of statutory rape, section 566.032;1 three counts of statutory sodomy in the first degree, section 566.062; child molestation in the first degree, section 566.067; and two counts of sexual misconduct involving a child, section 566.083. Thompson argues the trial court erred by sustaining the State’s objection and excluding the testimony of Thompson’s expert witness.
We have reviewed the briefs of the parties and the record on appeal. We find the trial court did not abuse its discretion. No error of law appears. No jurisprudential purpose would be served by a written opinion. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.
The judgment is affirmed pursuant to Missouri Supreme Court Rule 30.25(b).
. All statutory references are to R.S.Mo (2000), as supplemented. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284156/ | LAWRENCE E. MOONEY, PRESIDING JUDGE
At the heart of this matter is a collective-bargaining dispute involving the St. Louis Police Métropolitan Police Department. Importantly, this dispute was pending when control of the police department transferred from the St. Louis Board of Police Commissioners to the City of St. Louis. We hold that the dispute between the parties is moot, and therefore dismiss the appeal.
Factual and Procedural Background
In 2011, the St. Louis Police Leadership Organization, a labor organization, sought recognition as the exclusive collective-bargaining representative for two separate, proposed bargaining units: one comprised of commissioned officers of the St. Louis Police Department holding the rank of Lt. Colonel, Major, Captain, and Lieutenant (the “Command Staff’ unit), and the other comprised of commissioned officers from the department holding the rank of Sergeant. At the time, control and operation of the police department rested with the St. Louis Board of Police Commissioners.
*503The Board denied both requests, one in whole, the other in part. The Board declined to recognize the proposed Command Staff bargaining unit, finding such unit inappropriate because the positions at issue involved a high degree of supervisory-authority, required confidentiality, and were integral to the decision-making process of the department.1 The Board did not outright deny the proposed Sergeants’ unit, but instead elected to exclude various Sergeant positions from the proposed unit because those positions involved high degrees of supervisory, managerial, and/or confidential work.2 The Board made its determinations pursuant to Rule 18, a rule promulgated by the Board following the Missouri Supreme Court’s decision in Independence-Nail Edue. Ass’n v, Independence Sch. Dist., 228 S.W.3d 131 (Mo. banc 2007).3 The rule set forth a written framework for the Board to engage in the collective-bargaining process with its police officers, including a framework for the establishment and recognition of appropriate bargaining units.
The labor organization initiated a declaratory-judgment action alleging that the Board’s decisions violated the Board’s obligation under Article I, Section 29 of the Missouri Constitution and the Missouri Supreme Court’s mandate in Independence, to create a reasonable framework to allow the officers to exercise their right to bargain collectively through representatives of their own choosing. In the organization’s view, the Missouri Constitution and Mis*504souri Supreme Court precedent grant all public employees — not just some — the right to collectively bargain by and through representatives of their own choosing, regardless of whether their positions require a high degree of supervisory authority, confidentiality, or are integral to the internal and external decision-making process, or the belief that their inclusion in a bargaining unit would create an irreconcilable conflict of interest with the department. The labor organization requested the circuit court conduct its own hearing to review the issues and determine the facts, including, but not limited to: (1) a sufficient showing of interest by the commissioned officers holding the rank of Lt. Colonel, Captain, and Lieutenant to appoint the St. Louis Police Leadership Organization as their exclusive bargaining representative; (2) the appropriate scope of the bargaining unit that would include Lt. Colonels, Captains, and Lieutenants; (3) the appropriate scope of the bargaining unit that would include only Sergeants; (4) whether certain Sergeants should be excluded from the bargaining unit; (5) the framework the Board must establish with respect to its recognition of an appropriate bargaining unit; and (6) any and all other issues the court deemed just and necessary under the facts and circumstances of the case.
On September 1, 2013, while the action was pending in the circuit court and the parties were still briefing their respective positions, control of the St. Louis Police Department changed from the Board to the City of St. Louis. Three months later, the circuit court heard oral arguments. During that hearing, the circuit court itself raised the issue of the change and inquired how dissolution of the Board impacted the case. Counsel for the labor organization argued that the city ordinance effecting the change spoke for itself, and that by that ordinance, the City had accepted the obligation for the consequences of the application of Rule 13.4 Counsel for the *505Board, who was in private practice and was retained by the Board to represent its interest, on the other hand, argued that the change rendered the case moot. He noted that if the court ordered the Board to act, it would be an order without a purpose or effect because the Board could not comply with the order because it no longer had power or authority to act. Counsel further emphasized that he did not have authority to speak for the City. The City never made an appearance in the case, nor was it substituted or added as a party.
The circuit court ruled against the labor organization. The court in its judgment did not mention the change in control, nor the effect of that change on the case. Rather, the court confined its discussion to the actions of the Board and the questions presented by the declaratory-judgment action about the appropriate scope of the Command Staff bargaining unit and whether certain Sergeants could be excluded from the Sergeants’ bargaining unit. The court acknowledged that a public employer has a constitutional duty to bargain collectively with public employees, but then noted that the Missouri Supreme Court, in Missouri Nat’l Educ. Assoc. v. Missouri State Bd. of Mediation, 695 S.W.2d 894, 897 (Mo. banc 1985), held that the legislature did not intend for all persons on the public payroll to be considered employees for bargaining purposes, because in the course of labor relations, someone must act on behalf of and for the interest of the public employer. Next, the court noted that it is the responsibility of the public employer — the Board here — to exclude from an otherwise appropriate bargaining unit those employees, if any, whose duties involve acting directly or indirectly in the interest of the employer in relation to other employees. And lastly, the court noted that Missouri Supreme Court precedent recognizes that managerial, supervisory, and confidential employees may be excluded from the collective-bargaining process. The circuit court ultimately concluded that the organization had not shown that the Board’s decision finding the Command Staff group an inappropriate bargaining unit, and its decision excluding certain Sergeants from the Sergeants’ bargaining unit, were not supported by competent and substantial evidence or that they were arbitrary, capricious, or unreasonable — the kind of showings that must be made to overturn the Board’s decision. Accordingly, the circuit court denied the organization’s request to appoint it as the exclusive bargaining representative of the proposed bargaining units and declined to substitute its judgment for that of the Board’s by declaring the scope of an appropriate bargaining unit. The labor organization appealed to this Court.5
*506We ordered the parties to brief and orally argue the issue of mootness. Specifically, we asked the parties to address the following issues: whether the circuit court’s judgment bound the City of St. Louis, whether the City should have been substituted for the board, and whether the appeal should be dismissed as rnoot. In those briefs, and at oral argument, the labor organization maintained that the case was not moot, and the decision binding on the City because the City had accepted responsibility, ownership, and liability as successor-in-interest for all lawful obligations of the Board by virtue of the state statute and city ordinance. In support, the organization pointed out that the City had used Rule 13 in another matter. The Board, as it did in the circuit court, argued that the case was moot because the change of control over the police department made granting effectual relief impossible. Counsel for the Board also made clear, as he did in the circuit court, that he did not represent the City. We kept the record open past oral arguments, to allow the parties additional time to file materials in support of their respective positions. Filings were made, but conspicuously absent was anything from or about the City, its position on matters, or even that it was aware of the case.
Discussion
“A threshold question in any appellate review of a controversy is the mootness of the controversy.” Kinsky v. Steiger, 109 S.W.3d 194, 195 (Mo.App.E.D. 2003) (quoting State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001)). It is well-settled that the Missouri courts do not determine moot cases. Kinsky, 109 S.W.3d at 195, “A moot case raises the issue of justiciability, and therefore courts may dismiss it sua sponte.” Id. “A question is justiciable only where the judgment will declare a fixed right and accomplish a useful purpose.” Id. (citing Local Union 1287 v. Kansas City Area Tramp. Auth., 848 S.W.2d 462, 463 (Mo. banc 1993)). “When an event occurs that makes a court’s decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed.” Kinsky, 109 S.W.3d at 195 (internal quotation omitted).
The circuit court’s inquiry into the mootness of the issue was well-placed. When the matter began, control of the police department, including collective-bargaining obligations and determining the appropriate scope of bargaining units, rested with the Board. But at the time the circuit court rendered judgment, the Board was dissolved and control over the police department rested with the City of St. Louis. Yet, the only parties before the court continued to be the labor organization and the Board. The circuit court lacked the necessary adversaries to create a justiciable controversy. If the circuit court proceeded and ultimately ordered action on the part of the Board, it could not effect compliance with its judgment because the Board no longer governed the *507police department. The circuit court could not grant effectual relief, and its judgment would accomplish no useful purpose. The dispute was moot.
The organization contends that because the City accepted responsibility for the Board’s lawful obligations, including its constitutional obligation to collectively bargain with its employees, the City thus would be obligated to carry out any court order rendered in this case. Clearly the labor organization seeks to bind the City, not the Board, to the circuit court’s judgment. It seeks to convert the circuit court’s judgment about the Board’s past actions and collective-bargaining obligations to one that binds the City, and directs the City’s conduct in the future. But the City had no voice in the circuit court’s determination. Although by statute and city ordinance, the City accepted certain responsibilities as successor-in-interest, the transfer and succession to the Board’s obligations occurred some three months prior to the circuit court’s judgment.' This litigation continued after the transfer, and it continued without any participation by the City.6 The Board had no power to represent the City. Nothing in the statute and ordinance authorizes the Board to represent the City. Counsel for the Board made it abundantly clear that he did not and does not represent the City. The City was not substituted or added as a party. We generously held the record on appeal open to allow for additional filings, but have not been provided anything even implying that the City was provided notice of this action. We may therefore presume that City received no notice. See Derrick, Inc. v. Quigless, 408 S.W.3d 323, 326 (Mo.App.E.D.2013). No reason exists why the City was not provided notice and an opportunity to defend, both here and in the circuit court. We cannot countenance litigation that seeks to bind the City when the City was provided no opportunity to advocate for its own interests. To do so would fundamentally violate the due process the City is owed. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (noting fundamental requirement of due process is opportunity to be heard).
*508For the foregoing reasons, the court cannot grant effectual relief. The dispute before us is moot, and was moot prior to the circuit court entering judgment. Although Missouri recognizes two exceptions to the mootness doctrine, neither of those exceptions applies here.7 We therefore dismiss the appeal and remand the cause to the circuit court with directions to vacate its judgment and dismiss the petition.8
CLIFFORD H. AHRENS, J., and LISA VAN AMBURG, J., concur.
. Specifically, the Board found the proposed unit inappropriate because the positions:
... involve a high degree of supervisory authority, require confidentiality and are integral to the internal and external decision-making process for the St. Louis Metropolitan Police Department. In addition, the inclusion of [those] positions in a collective bargaining unit would create an irreconcilable conflict of interest within the Department.
. The Board found that while Sergeants in general monitor, supervise, and train subordinate officers, within the rank of Sergeant, various positions and assignments involved higher degrees of supervisory, managerial and/or confidential work than others. In particular, the Board found that Sergeants assigned to certain identified positions were regularly involved with the formulation and/or implementation of the department’s policies, had a high level of supervisory authority, and regularly had access to and work with information regarding the department’s labor and personnel matters. The Board found that the Sergeants in these positions would more appropriately represent the employer in the collective bargaining process due to the supervisory, managerial and confidential nature of the positions, and thus concluded that their inclusion in the proposed bargaining unit would create a conflict of interest. The Board therefore elected to exclude the various positions from proposed bargaining unit. Specifically, as stated in its letter to the organization, the Board elected to exclude:
Sergeants assigned to Human Resources, Legal, the Police Board and those Sergeants in confidential positions (including the Chief’s Office and under the command of any Lieutenant Colonel). Therefore, Sergeants assigned to the Chief’s Office, the Board of Police Commissioners, the Human Resources Department, Internal Affairs Department, and the Legal Division are excluded from the bargaining unit. This includes Sergeants in the following assignments: Auxiliary Services, Bureau of Community Policing, Community Outreach, Criminal Investigation and Support, Human Resources, Intelligence Division, Internal Affairs, Professional Standards.
.The Missouri Supreme Court in Independence addressed the question of a public employer’s responsibility to collectively bargain with public employees, such as police officers, who are otherwise excluded by Missouri public-sector labor law. The Court held that the provision in Missouri Constitution’s bill of rights, Article I, Section 29, guaranteeing "employees” the "right to organize and to bargain collectively” applied to public employees as well as private-sector employees. Independence, 223 S.W.3d at 139.
. City of St. Louis Ordinance 694, cited by the labor organization, provides:
BE IT ORDAINED BY THE CITY OF ST. LOUIS AS FOLLOWS:
Pursuant to the term and provisions of Section 83.44.4 of the Revised Missouri Statutes, the City hereby accepts responsibility, ownership, and liability as successor-in-interest for contractual obligations, indebtedness, and other lawful obligations of the board of police commissioners of the Police Department, effective September 1, 2013 or on such later date as may be established in subsequent City legislation.
Section 84.344.4 reads:
Before a city not within a county may establish a municipal police force under this section, the city shall adopt an ordinance accepting responsibility, ownership, and liability as successor-in-interest for contractual obligations, indebtedness, and other lawful obligations of the board of police commissioners subject to the provisions of subsection 2 of section 84.345.
Executive Order No. 48, signed by the Honorable Francis G. Slay, Mayor of St. Louis, provided the September 1, 2013 change-of-control date, and read:
WHEREAS, the Missouri Revised Statutes were amended to enable any city not within a county to establish a municipal police force on or after July 1, 2013 subject to certain statutory conditions; and
WHEREAS, the City, of St. Louis, a city not within a county, has met the statutory conditions necessary to enable the establishment of a police force; and
WHEREAS, until now, law enforcement operations within the City of St. Louis were funded by the City of St. Louis but controlled and governed by a state agency; and
WHEREAS, by establishing its own municipal police force, the City of St. Louis will be able to control its own law enforcement services and related expenditures and will become responsible for its own public safety policies and administration; and
WHEREAS, there will be numerous long-term cost and operational efficiencies in having a municipal police force; and
WHEREAS, the City Charter at Article I Section 1 (21) states that the City shall have the power to provide and maintain a police *505department when permitted by law, and the City Charter at Article XIII Section 15(a) states that when the city is permitted by law to establish and maintain a police department, such department shall be a division of the department of public safety;
NOW THEREFORE I, Francis G. Slay, Mayor and Chief Executive Officer of the City of St. Louis, do make the following Executive Order:
Effective September 1, 2013, there shall be established a municipal police division within the department of public safety for the purposes of;
Preserving the public peace, welfare and order; preventing crime and arresting suspected offenders; enforcing the laws of the state and the ordinances of the city; exercising all powers available to a police force generally under applicable state law; and regulating and licensing all private watchmen, private detective, or private policemen serving or acting as such.
. On appeal, the labor organization maintained that the circuit court's rulings ran afoul of the Missouri Constitution and Missouri Supreme Court precedent, which the *506organization argued grant all public employees the right to collectively bargain by and through representatives of their choosing, regardless of whether or not they have supervisory authority. The Board, in response, argued that the case was moot, that the case was non-justiciable because the court could not grant the requested relief without violating Missouri’s separation of powers, Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of Chesterfield, 386 S.W.3d 755 (Mo. banc 2012), and that the organization’s position was without merit because the Board’s decisions were consistent with well-established Missouri Supreme Court precedent recognizing that managerial, supervisory, confidential employees may be excluded from the definition of employees for purposes of collective bargaining.
. We acknowledge that under Section 84.345.1, the Board may under certain circumstances continue to operate and litigate after the date of transfer. That section provides:
Except as required for the board of police commissioners to conclude its affairs and pursue legal claims and defenses, upon the establishment of a municipal police force, the terms of office of the commissioners of the board of police created under sections 84.020 and 84.030 shall expire, and the provisions of sections 84.010 to 84.030 shall not apply to any city not within a county or its municipal police force as of such date. The board shall continue to operate, if necessary, to wind down the board's affairs until the transfer of ownership and obligations under subsection 2 of section 84.344 has been completed....
We find that this section and authorization for continued operation is directed to and limited to the transfer and winding down of the Board’s affairs, and not the ongoing operation of the police department. We also acknowledge, but find inapplicable here, Section 84.345.2, which provides: .
For any claim, lawsuit, or other action arising out of actions occurring before [the date of transfer], the state shall continue to provide legal representation as set forth in section 105.726, and the state legal expense fund shall continue to provide reimbursement for such claims under section 105.726. This subsection applies to all claims, lawsuits, and other actions brought against any commissioner, police officer, employee, agent, representative, or any individual or entity acting or purporting to act on its or their behalf.
The state legal expense fund provides coverage for lawsuits brought against any state officer or employee for conduct arising out of and performed in connection with his or her official duties on behalf of the state. Section 105.726.
. Missouri recognizes two narrow exceptions to the mootness doctrine. First, if a case becomes moot after argument and submission, then dismissal is within the discretion of the court. The second exception — the "public interest” exception — applies if a case presents an issue that (1) is of general public interest and importance, (2) will recur, and (3) will evade appellate review in future live controversies. If the exception applies, then dismissal of the case due to mootness is discretionary. Kinsley, 109 S.W.3d at 196.
. We note that on June 2, 2015, the circuit court rendered a judgment affirming the de-certification of the labor organization as the exclusive bargaining representative of those police officers holding the rank of Sergeant (those Sergeants who were not excluded by virtue of their assignment). The St. Louis Police Leadership Organization v. City of St. Louis, Missouri, Cause No. 1522-CC00212 (Circuit Court of the City of St. Louis, June 2, 2015). The parties did not notify this panel of this judgment. Rather, we discovered this judgment because the case is now on appeal to our Court. If this Court affirms the decer-tification judgment, this might have partially affected the viability of the dispute between the parties to this appeal if the dispute were not already moot for the reasons this Court has announced. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284157/ | ORDER
PER CURIAM.
Plaintiffs Donald and Lynne Rosenfeld appeal the judgment of the Circuit Court of St. Louis County awarding defendant Deborah Boniske $68,105.94 in damages. The Rosenfelds contend that the trial court erred in: (1) finding that there was a valid contract between the parties; (2) finding the contract’s sale contingency required the Rosenfelds to exercise reasonable efforts to sell their home; (3) finding the Rosenfelds did not exercise reasonable efforts to sell their home; and (4) awarding Ms. Boniske $68,105.94 in damages.
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 *512value. 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/5284159/ | ORDER
PER CURIAM:
Appellant Ronald Brown appeals from the Circuit Court of Cole County’s denial of his Rule 24.035 motion for post-conviction relief without 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/5284160/ | ORDER
Per Curiam:
Jeffery Clinton Ford appeals the circuit court’s judgment convicting him of one count of first-degree robbery. Ford claims that the circuit court erred in its rulings as to the admission of evidence. Finding no error, we affirm the circuit court’s judgment. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284161/ | ORDER
PER CURIAM:
John Sims filed an action for replevin seeking to obtain possession of a 2010 Harley Davidson motorcycle (“motorcycle”) from Ian and Sue Joel, husband and wife. The trial court found in favor of Mr. Sims, finding he was the owner and had immediate right to possession of the motorcycle. Ms. Joel presents two points on appeal, arguing that Mr. Sims’s title was not valid and granting possession of the motorcycle to Mr. Sims would result in unjust enrichment. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.
The judgment is affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284162/ | Order
Per Curiam
Michael Holiway appeals his conviction on the charge of financial exploitation of the elderly. He contends the circuit court erred in admitting evidence of his un*543charged bad acts, because the State was improperly allowed to use the evidence to demonstrate his propensity as a thief. After a thorough review of 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/2661991/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Action No. 10-234 (RWR)
)
WINSTON MCCALLUM )
)
Defendant. )
____________________________ )
MEMORANDUM OPINION AND ORDER
Defendant Winston McCallum went to trial charged in a two-
count superseding indictment with unlawful possession with intent
to distribute 28 grams or more of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii), and unlawful
possession with intent to distribute 28 grams or more of cocaine
base within 1000 feet of a school, in violation of 21 U.S.C.
§ 860(a). McCallum successfully moved for a mistrial when he
discovered that the government failed to disclose certain
statements of government witnesses before the defense cross-
examined those witnesses. McCallum now moves to dismiss the
indictment on the ground that the Double Jeopardy Clause bars
retrial or, in the alternative, moves for reconsideration of the
pre-trial order denying his motion to suppress evidence. Because
McCallum has not established that the government’s series of
disclosure violations was intended to provoke McCallum into
seeking a mistrial, double jeopardy does not bar retrial. In
addition, the belatedly disclosed evidence does not change the
-2-
determination to deny the motion to suppress, thus McCallum’s
motion will be denied.
The government moves in limine to preclude McCallum from
introducing at retrial evidence of complaints against the police
officer witnesses and also moves in limine to preclude McCallum
from introducing opinion and reputation evidence about those
witnesses. Because the complaints lacked probative or
impeachment value, and the circumstances surrounding the
complaints do not support a reasonable belief that the
allegations in the complaints are true, McCallum will not be
permitted to elicit on cross-examination the fact that complaints
were filed or what the complaints alleged. Finally, in the
absence of a specific proffer by McCallum of a foundation for
potential character witnesses, a ruling on the admissibility of
opinion and reputation evidence will be deferred.1
BACKGROUND
On July 28, 2010, Officers Alphonso Matos and Ismael Chapa
of the Metropolitan Police Department (“MPD”) were driving in a
squad car shortly after midnight in an area known for having a
1
At a March 21, 2012 hearing on the motions mentioned above,
McCallum’s separate motion in limine for reconsideration of an
evidentiary ruling made at trial was granted in part and denied
in part. At retrial, McCallum will be permitted to cross-examine
Metropolitan Police Department Officer Alphonso Matos, in
accordance with the limitations imposed at the hearing, about
testimony Matos gave at an unrelated criminal proceeding in the
District of Columbia Superior Court.
-3-
high incidence of narcotics trafficking and intoxicated people.
According to the officers’ pre-trial testimony, which was
credited during hearings on February 11, 2011 and June 6, 2011,
the officers saw McCallum on a ledge at the front entrance of an
apartment building, and he was leaning forward, as if he were
asleep or intoxicated. The officers got out of their car to
check on McCallum, and Chapa positioned himself between McCallum
and the building, at the top of a series of steps of the landing
in front of the apartment building. McCallum became aware of the
officers’ presence, and began to run toward the door of the
building. McCallum took between one and three steps, and then
Matos called out for him to stop. Once McCallum stopped, the
officers attempted to corral him, and he began to move his arms
and shift his shoulders from one side to another. The officers
handcuffed McCallum using two sets of interlocking handcuffs.
When McCallum was secured in the handcuffs, Matos asked him if he
had anything illegal on him, and McCallum answered that he had
cocaine. Because the two interlocking sets of handcuffs
permitted McCallum some limited mobility, he was able to move his
hand to his right front pants pocket, and a zip bag containing
crack cocaine fell from his pocket. McCallum was arrested and
charged with unlawful possession with intent to distribute crack
cocaine.
-4-
McCallum moved to suppress statements and tangible evidence.
At the evidentiary hearing on the motion in February 2011, Matos
was the government’s only witness. The government failed to
provide the defense, before defense counsel’s cross-examination
of Matos, with a transcript of Matos’s previous grand jury
testimony regarding the events leading to McCallum’s arrest.2
During a recess at the hearing and while conferring with
government counsel, defense counsel noticed the transcript on
government counsel’s desk and government counsel then provided it
to the defense. Defense counsel was then permitted additional
cross-examination of Matos based on potential inconsistencies
between his testimony at the suppression hearing and his previous
testimony before the grand jury. McCallum’s motion to suppress
was granted as conceded as to evidence recovered from a search of
his apartment conducted following his arrest, but the motion to
suppress as to evidence seized from the defendant’s person and
the motion to suppress the defendant’s statements at the scene
were denied.
Thereafter, defense counsel contacted government counsel to
inquire whether the grand jury testimony of Chapa, who had not
testified at the February 2011 suppression hearing, contained
exculpatory material. Government counsel in turn disclosed to
2
Defense counsel deems this the first in a series of
disclosure violations precluding retrial.
-5-
McCallum a transcript of Chapa’s grand jury testimony. McCallum
then filed a motion to reopen the suppression hearing, arguing
that the government had violated its Brady obligations in not
disclosing Chapa’s grand jury testimony earlier and that the
testimony presented an account of defendant’s arrest that was
inconsistent with Matos’s account, undercutting the conclusion
that the officers possessed reasonable suspicion for stopping
McCallum.3 The motion to reopen the suppression hearing was
granted, and at a hearing in June 2011, McCallum’s counsel cross-
examined Officer Chapa regarding the newly disclosed information.
The court reaffirmed its denial of the motion to suppress, as to
evidence seized from defendant’s person and as to defendant’s
statements on the scene.
Before trial, McCallum subpoenaed from the Metropolitan
Police Department information regarding complaints against the
officers who had arrested him. The government moved to quash the
subpoena. At a hearing on the government’s motion, and in
response to the government’s representation that no relevant or
exculpatory information existed, the court directed the
government to inquire further with the entities that maintain
police complaints regarding the existence of potentially
responsive material. The government then disclosed certain
3
Defense counsel deems the government’s failure to provide
this transcript before the suppression hearing the second in a
series of disclosure violations precluding retrial.
-6-
information to the court for in camera review,4 including written
summaries of statements concerning McCallum’s arrest made to MPD
Internal Affairs by Chapa on August 15, 2011 and by Matos on
August 17, 2011. The court ordered the government to disclose
those summaries to the defense. The government provided them to
the defense on the morning of trial.5 Also on the morning of
trial, the government disclosed to the defense a “property book”
completed by Matos detailing the evidence recovered from the
scene of defendant’s arrest.6
Trial began in December 2011. While defense counsel cross-
examined Matos about inconsistencies between Matos’s trial
testimony and his prior statements to Internal Affairs, the
officer asserted that the written summaries inaccurately conveyed
what he had told Internal Affairs and that recordings made of the
statements would confirm his account. The government had not
disclosed to the defense the recordings of the officers’
statements to Internal Affairs nor disclosed that they existed.
4
The government’s ex parte, in camera submission has been
filed under seal.
5
Defense counsel deems the failure to disclose these
statements before the suppression hearing the third in a series
of disclosure violations precluding retrial.
6
Defense counsel deems the failure to disclose the property
book before the suppression hearing the fourth in a series of
disclosure violations precluding retrial.
-7-
Since the government had promised to provide all Jencks7 material
10 days before trial, McCallum moved to strike the testimony of
both officers or, in the alternative, for a mistrial.8 Over the
government’s opposition, the court declared a mistrial but found
that the government’s misconduct was not willful or intentional.
In February 2012, shortly before retrial was set to begin,
the government submitted to the court for in camera inspection
seventeen complaints filed with the independent9 Office of Police
Complaints (“OPC”) against Matos and Chapa.10 Seven against
Matos were in open status and the rest had been closed. The
court reviewed all of the complaints and found that fourteen
complaints bore no allegations that the officers planted
narcotics evidence, had no probative value as other act evidence
under Federal Rule of Evidence 404(b) or as to truthfulness under
Rule 608(b), and otherwise were not material to preparing the
defense, see Fed. R. Crim. P. 16(a)(1)(E)(i), or to McCallum’s
guilt. Nor were most of the open allegations, even if proven, of
7
The Jencks Act, 18 U.S.C. § 3500, requires the government
to disclose to the defense prior statements made by a testifying
government witness concerning the subject of the witness’s direct
examination.
8
Defense counsel deems this violation of Jencks the fifth in
a series of disclosure violations precluding retrial.
9
See D.C. Code §§ 5-1102, 5-1105.
10
The government’s ex parte, in camera submission has been
filed under seal.
-8-
the type that would likely risk generating a criminal prosecution
or any internal MPD discipline that could cause Matos to want to
curry favor with prosecutors. The court did order three
complaints against the officers for allegedly falsely accusing
individuals of possessing drugs disclosed to the defense.11 In
closed Complaint 10-0146, H.B. alleged that he was falsely
arrested after police, including Chapa, claimed to find in H.B.’s
car drugs that were not there. H.B. alleged that he had gotten
out of the car and was threatened by police with a citation for
leaving the windows down when he returned, that the police asked
for permission to search his car, and that they searched it
anyway when he refused. H.B. alleged that he did not have drugs
in the car. The government produced a D.C. Superior Court record
reflecting that H.B. was charged with possessing a controlled
substance based on the arrest and ultimately pled guilty to the
offense. (Govt.’s Mot. in Limine to Preclude Evidence Concerning
Police Complaints, Ex. 1.) In closed Complaint 10-0385, D.G.
alleged that he was sitting on his porch when Chapa approached
and said that D.G. fit the description of a suspect and that
Chapa then arrested him, took drugs off another person, and put
the drugs on D.G. The government produced a D.C. Superior Court
11
Defense counsel deems the government’s failure to disclose
before the suppression hearing these three complaints and the
seven open complaints to be the sixth and seventh, respectively,
in a series of disclosure violations precluding retrial.
-9-
record reflecting that D.G. was charged with possessing cocaine,
marijuana, and drug paraphernalia as a result of the arrest and
ultimately pled guilty to the offenses. (Id., Ex. 2.) In open
Complaint 12-0034, E.S. alleged that he called emergency services
when his brother tried to assault him, and that when police,
including Matos, arrived on the scene, they arrested him instead
of his brother for assault and possession of marijuana. He
asserted that he did not have marijuana on his person. The
government represented that “the case was ‘No Papered’ when
reviewed for prosecution by the screening attorney because, among
other things, the police could not determine who was the initial
aggressor and the suspect had a good defense.” (Id. at 4.)12
McCallum now moves to dismiss the indictment, arguing that a
retrial is barred by the Double Jeopardy Clause. Defendant
argues that the government has violated its obligations to timely
disclose exculpatory materials, prior witness statements and
documents. McCallum contends that the violations constitute a
pattern of intentional government misconduct and that the
misconduct has prejudiced his ability to litigate the case. In
12
McCallum does not contest the government’s representations
regarding the three complaints, but states that “[a]lthough two
of these individuals subsequently entered a guilty plea in order
to avoid a sentence of incarceration (the charges against the
third individual were not pursued by the government), each
maintains that the charges against him were false.” (Def.’s
Opp’n to Govt.’s Mot. in Limine to Preclude Evidence Concerning
Police Complaints at 2.)
-10-
the alternative, McCallum asks the court to reconsider and grant
his motion to suppress the tangible evidence taken from his
person. McCallum argues that reconsideration is warranted
because subsequently produced evidence, particularly the
recording of Matos’s statements to Internal Affairs, casts doubt
on Matos’s testimony at the February 11, 2011 suppression hearing
that McCallum reached into his pocket, despite the fact that his
hands were handcuffed behind his back, and that a ziplock of
crack cocaine fell out. McCallum also contends that additional
evidence reflecting inconsistences in Chapa’s testimony about how
the officers handcuffed McCallum casts doubt on Chapa’s testimony
at the motions hearing in June 2011. Finally, McCallum argues
that the MPD property book, disclosed to the defense after the
suppression ruling, reveals that the crack cocaine allegedly
recovered from McCallum’s person was actually recovered from
McCallum’s apartment. The government argues that it did not
intentionally provoke McCallum into seeking a mistrial and
contests the defendant’s interpretation of the subsequently
disclosed evidence, maintaining that reconsideration of the
suppression ruling is not warranted.
The government filed a motion in limine to preclude evidence
concerning complaints against Chapa and Matos. The government
argues that the information is not probative of the officers’
character for truthfulness and that use of the complaints would
-11-
be unduly prejudicial. McCallum opposes and argues that the fact
that there are several open complaints against Matos is a proper
subject of cross-examination in order to demonstrate Matos’s
motive to shape his testimony against McCallum in order to curry
favor with the government.13 Defendant further represents that
“[defense] [c]ounsel also has spoken to a fourth individual who
submits that Officer Matos arrested him and falsely accused him
of possessing drugs.” (Def.’s Opp’n to Govt.’s Mot. in Limine to
Preclude Evidence Concerning Police Complaints at 2.) Finally,
the government has filed a motion in limine to preclude opinion
and reputation evidence concerning government witnesses Matos and
Chapa.
DISCUSSION
I. DOUBLE JEOPARDY BAR TO RETRIAL AFTER MISTRIAL
When an initial trial terminates after jeopardy has attached
but before judgment, the reasons for the premature termination
determine whether retrial is barred. Retrial is generally
permitted only where the government establishes “manifest
necessity.” Arizona v. Washington, 434 U.S. 497, 505 (1978).
The manifest necessity standard, however, is not applied in
circumstances where a mistrial is declared on defendant’s own
13
McCallum concedes that he cannot seek to admit the
complaints as extrinsic evidence. (Def.’s Opp’n to Govt.’s Mot.
in Limine to Preclude Evidence Concerning Police Complaints at
2.)
-12-
motion. In the D.C. Circuit, “[t]he rule that a mistrial on
defendant’s motion generally does not bar retrial is firmly
established.” United States v. Jamison, 505 F.2d 407, 411 (D.C.
Cir. 1974). “Such a motion by the defendant is deemed to be a
deliberate election on his part to forgo his valued right to have
his guilt or innocence determined before the first trier of
fact.” United States v. Scott, 437 U.S. 82, 93 (1978); see also
Jamison, 505 F.2d at 410 (describing mistrials on defendants’
motions as “that category which has most consistently been held
not to bar further proceedings”). “[T]he policy of the Double
Jeopardy Clause, weighed as it always must be against the
interest of the state in pursuing criminal prosecutions to their
conclusions, is simply not thought to require that a defendant be
free of further prosecutions when it was he, and not the judge or
the prosecutor, who sought to have the original prosecution
discontinued.” Jamison, 505 F.2d at 412.
The rule is not categorical. The D.C. Circuit recognized
that “a judge or prosecutor should not be free to have one trial
disbanded and another convened by intentionally committing errors
so prejudicial to the defendant that he is forced to seek a
mistrial; and, indeed, the Supreme Court has made it clear that
in such a case of ‘judicial or prosecutorial overreaching,’
reprosecution might well be barred.” Id. at 411 (quoting United
States v. Jorn, 400 U.S. 470, 485 & n.12 (1971)). The Supreme
-13-
Court articulated the controlling standard governing retrial
following mistrial on defendant’s motion in Oregon v. Kennedy,
where it held that “[o]nly where the governmental conduct in
question is intended to ‘goad’ the defendant into moving for a
mistrial may a defendant raise the bar of double jeopardy to a
second trial after having succeeded in aborting the first on his
motion.” Oregon v. Kennedy, 456 U.S. 667, 676 (1982) (emphasis
added); see also United States v. Dinitz, 424 U.S. 600, 611
(1976) (“The Double Jeopardy Clause does protect a defendant
against governmental actions intended to provoke mistrial
requests and thereby to subject defendants to the substantial
burdens imposed by multiple prosecutions.”) (emphasis added).
Mere negligence on the part of the government is not enough.
See, e.g., United States v. DiSilvio, 520 F.2d 247, 250 (3rd Cir.
1975) (stating that retrial was not barred where defendant
successfully moved for mistrial because indictment was defective
due to government’s negligence). Indeed, “[p]rosecutorial
conduct that might be viewed as harassment or overreaching, even
if sufficient to justify a mistrial on defendant’s motion . . .
does not bar retrial absent intent on the part of the prosecutor
to subvert the protections afforded by the Double Jeopardy
-14-
Clause.” Oregon v. Kennedy, 456 U.S. at 675-76 (emphasis
added).14
McCallum argues that the court should use the “manifest
necessity” standard, placing the burden on the government to
justify retrial, rather than the prosecutorial intent standard.
In particular, McCallum argues that because it was the
government’s misconduct that caused the defense to request the
mistrial, this case should be viewed as one in which the mistrial
was at the government’s behest. But Oregon v. Kennedy, a case in
which the prosecutor’s misconduct did precisely that, see 456
U.S. at 669 (discussing facts of case, where prosecutor on
redirect of expert witness had described the defendant as “a
crook,” prompting defendant to successfully move for mistrial)
squarely provides the controlling precedent in such
circumstances. Defendant argues that retrial is nonetheless
barred because, having been deprived of relevant exculpatory
14
Oregon v. Kennedy was a plurality opinion, but a majority
of the justices endorsed the prosecutorial intent standard as the
most appropriate, and manageable, standard for assessing whether
a retrial is available after a mistrial is declared on
defendant’s motion. See Oregon v. Kennedy, 456 U.S. at 675
(concluding that “a standard that examines the intent of the
prosecutor, though certainly not entirely free from practical
difficulties, is a manageable standard to apply”); id. at 679
(Powell, J., concurring) (“I join the Court’s opinion holding
that the intention of a prosecutor determines whether his
conduct, viewed by the defendant and the court as justifying a
mistrial, bars a retrial of the defendant under the Double
Jeopardy Clause.”) (emphasis in original).
-15-
evidence, he did not knowingly waive his double jeopardy rights
when he moved for a mistrial.
The D.C. Circuit, however, has rejected the theory that a
defendant-initiated mistrial should be judged according the
principles of waiver. In Jamison, 505 F.2d at 413, the court
reasoned that were it to “treat mistrial motions as waivers of
double jeopardy protection . . . [d]efendant would . . . be
protected from multiple prosecutions brought about not by the
government but by the errors or misjudgments of his own
counsel[,]” and concluded that “this goes too far, and hence we
decline to decide the double jeopardy effect of mistrials by
reference to the rules of waiver.” Defense counsel’s arguments
regarding her reasons for seeking mistrial, albeit as an
alternative remedy to striking the officers’ testimony, show that
counsel was engaged in a careful weighing of the pros and cons of
the option. Counsel explained that her determination to move for
a mistrial was informed by her belief that “she had exposed every
weakness she could find in the government’s case,” and “knew that
if a retrial was held, the government would have the advantage of
knowing the defense and these weaknesses.” (Def.’s Mot. to Dis.
Indmt. at 17.) Counsel nonetheless concluded that mistrial was
the better alternative. Counsel argues that had she had the
information regarding the prior complaints against the officers,
she would have moved forward with cross-examination on the
officers’ character for truthfulness and would not have requested
-16-
a mistrial. (Id.) For reasons that are explained below,
evidence regarding the complaints will be precluded on retrial.
In any event, considerations of the type recounted regarding the
benefits of proceeding with the same jury or seeking retrial are
quintessential strategic judgments of counsel and, even where
those judgments are colored by the conduct or misconduct of
government counsel, they remain the defendant’s own
determinations absent a showing that the prosecutor intended his
conduct to provoke the determination to seek a mistrial.
Applying the Oregon v. Kennedy test then, the question is
whether the prosecutor goaded McCallum into requesting a
mistrial. In considering this inquiry, the case law that is
discussed above focuses on the prosecutor’s actions at trial,
rather than over the course of the entire litigation. In
addition, “[b]ecause ‘subjective’ intent often may be
unknowable,” reliance on “the objective facts and circumstances
of the particular case” may guide the analysis. Oregon v.
Kennedy, 456 U.S. at 679-80 (Powell, J., concurring).
Here, the first two instances of misconduct relate to Brady
violations with respect to defendant’s presentation of evidence
at the suppression hearing. The second two instances fault the
government for providing potentially exculpatory Jencks material
on the morning before trial began. It is the fifth incident --
the government’s failure to produce before trial the oral
recordings of Matos’s and Chapa’s written statements to Internal
-17-
Affairs -- that could most closely qualify as misconduct that
provoked McCallum to move for a mistrial. Upon consideration of
the parties’ representations regarding the government’s late
discovery of the recordings and prompt efforts thereafter to
produce the recordings to the defendant, however, the court did
not find that there was any intentional withholding of Jencks
material by the government, and did not find any willful conduct
on the part of the prosecutor. Rather, the court characterized
the Jencks violation as unintentional and unfortunate. The
government, moreover, expressly, and apparently genuinely,
objected to the motion for mistrial and proposed reopening cross-
examination of the officers instead. The defendant does not
explain why the prosecution would have wanted a mistrial in the
circumstances. Given McCallum’s arguments that the third,
fourth, and fifth misconduct incidents (and the post-trial sixth
and seventh incidents, as well) had prejudiced the defendant’s
ability to mount a successful defense at trial, it is entirely
unclear why the government would have wanted to terminate a trial
in which it enjoyed the presumptive advantage resulting from the
asserted cumulative prejudice to McCallum. Arguably, the four
pre-trial instances of misconduct might provide a basis for
inferring that the failure to provide the recorded statements was
intentional. But the Oregon v. Kennedy standard focuses not, or
at least not only, on whether the misconduct was intentional, but
on whether the prosecutor intended the misconduct to goad the
-18-
defendant into seeking a mistrial. Because the facts here
indicate that the prosecutor’s conduct was neither intentional
nor intended to provoke a mistrial, retrial of McCallum is
permitted.
II. RECONSIDERATION OF RULING DENYING MOTION TO SUPPRESS
Courts in this district have uniformly assumed their
authority to entertain motions for reconsideration in criminal
cases. See, e.g., United States v. Coughlin, 821 F. Supp. 2d 8,
17-18 (D.D.C. 2011) (collecting cases). One line of cases
applies the standard applicable to motions to alter or amend a
final judgment under Federal Rule of Civil Procedure 59(e), see,
e.g., United States v. Libby, 429 F. Supp. 2d 46, 46-47 (D.D.C.
2006), under which a movant may prevail by identifying an
intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice. Other cases apply the “as justice requires”
standard for reconsideration of interlocutory orders. Coughlin,
821 F. Supp. 2d at 18 (internal quotation marks omitted). That
standard asks whether reconsideration is warranted under the
totality of the circumstances, including such factors as “whether
the court has patently misunderstood a party, has made a decision
outside the adversarial issues presented to the court by the
parties, has made an error not of reasoning, but of apprehension,
or where a controlling or significant change in the law or facts
has occurred since the submission of the issue to the court.”
-19-
Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010) (internal
quotation marks and alterations omitted).
Under either standard, the availability of new evidence
bearing on the reliability of the testimony given by government
witnesses at the suppression hearing -- particularly the
officers’ statements to internal affairs -- entitles McCallum to
reconsideration of the ruling on his motion to suppress.
However, the alleged inconsistencies brought to light by the
recordings of Matos’s and Chapa’s statements (Def.’s Notice of
Filing Add’l Exs. to Def.’s Mot. to Dis. Indmt. (“Def.’s Add’l
Exs.”), Ex. C; Def.’s Reply, Ex. E) do not alter the
determination to credit the officers’ account of how they
retrieved narcotics from McCallum’s person. Defendant details
the series of allegedly inconsistent statements in his reply
brief. (Def.’s Reply to Govt.’s Resp. Mem. in Opp’n to Def.’s
Mot. to Dis. Indmt. at 13-14.) Given that the statements are
drawn from three different proceedings over a period of several
months, the statements appear to reflect differences in word
choice and emphasis rather than any obvious inconsistency. The
strongest argument for inconsistency is Matos’s recorded
statement, to MPD internal affairs, that the officers put
McCallum in two pairs of handcuffs “because he say he has
something with his hip and he couldn’t get in the car, we said,
we make you comfortable because he’s a big guy.” (Def.’s Add’l
Exs., Ex. C at 21:08.) Defendant maintains that this statement
-20-
demonstrates that “Mr. McCallum was not placed into two pairs of
handcuffs until the officers tried to put him in the police car
-- long after Mr. McCallum supposedly reached into his pocket
[and the zip locks of cocaine fell out].” (Def.’s Reply to
Govt.’s Resp. Mem. in Opp’n to Def.’s Mot. to Dis. Indmt. at 14-
15.) Although Matos’s statement might be read as defendant
suggests, it may also be read to state general reasons for why
two handcuffs were employed rather than to indicate the exact
moment in time McCallum was handcuffed in the manner described.
The internal affairs investigator asked Matos only why the
officers used two handcuffs. (Def.’s Add’l Exs., Ex. C at
21:06.) She did not ask precisely when the officers put them on.
The government also noted, and McCallum does not appear to
contest, that the officers removed and re-handcuffed McCallum at
least once to enable him to sign a consent form, indicating that
the officers’ prior statements about handcuffing McCallum may
have referred to different points in time.
Neither does the subsequently disclosed property book filled
out by Matos (Def.’s Add’l Exs., Ex. B) call into question the
determination to credit the officers’ testimony. McCallum
attaches significance to the fact that the first property book
entry, reflecting that cash was recovered from defendant’s person
as a result of the search outside the building, states the cash
was “taken from” McCallum and lists an address of “1414 Upshur
Street NW,” while the subsequent entries, reflecting recovery of
-21-
narcotics, state the narcotics were “taken from” McCallum but
list an address of “1414 Upshur Street NW 105” (emphasis added).
McCallum maintains that the inclusion of the apartment number
(105) in the latter entries indicates that the narcotics were
recovered from the apartment. (Def.’s Add’l Exs. at 1.) The
slight inconsistency in the address entries does not discredit
the testimony offered by both Matos and Chapa that narcotics were
recovered from defendant’s person when defendant was seated
outside the apartment building.15 The difference between the
entries is insufficient to outweigh the largely consistent
testimony of the two officers regarding the recovery of narcotics
from defendant’s person.16
15
The government has submitted a sworn affidavit from Matos
who asserts that “[t]he entries in the property book in no way
reflect, or are intended to reflect, the exact location where the
defendant was positioned when evidence was recovered from him,
and it does not reflect, and it was not intended to reflect, the
exaction [sic] location where any of the evidence was recovered,
at the scene on July 28, 2010.” (Govt.’s Resp. Mem. in Opp’n to
Def.’s Mot. to Dis. Indmt., Ex. 1.)
16
McCallum also argues for reconsideration of the court’s
ruling that the officers did not commit a Miranda violation when
they conducted a Terry stop of him. (Def.’s Mot. to Dis. Indmt.
at 8 n.1; Def.’s Reply to Govt.’s Resp. Mem. in Opp’n to Def.’s
Mot. to Dis. Indmt. at 15-17.) McCallum contends that the court
erred by applying a categorical rule that Terry stops do not
warrant Miranda warnings. Defendant’s request to reconsider the
Miranda ruling would affect the admission only of defendant’s
statements, not of the narcotics allegedly recovered from his
person since the “fruit of the poisonous tree” doctrine does not
apply when the fruit of a Fifth Amendment violation is tangible
evidence. United States v. Patane, 542 U.S. 630, 637, 641 (2004)
(reasoning that since Miranda warnings are prophylactic, a
failure to give them is not alone a Fifth Amendment violation,
and that potential violations of a defendant’s Fifth Amendment
-22-
III. ADMISSIBILITY OF EVIDENCE OF POLICE COMPLAINTS
The D.C. Circuit has recognized repeatedly that “bias is
always a relevant subject for cross-examination.” United States
v. Lin, 101 F.3d 760, 768 (D.C. Cir. 1996). The Circuit has
acknowledged that “defense counsel cannot have a foundation in
fact for all questions asked on cross examination and . . . a
well reasoned suspicion that a circumstance might be true is
sufficient.” United States v. Fowler, 465 F.2d 664, 666 (citing
United States v. Pugh, 436 F.2d 222, 224 (D.C. Cir. 1970)).
Cross-examining counsel, however, “must have a reasonable basis
for asking questions on cross-examination which tend to
incriminate or degrade the witness and thereby create an
unfounded bias which subsequent testimony cannot fully dispel.”
United States v. Sampol, 636 F.2d 621, 658 (D.C. Cir. 1980).
“[T]he questioner must be in possession of some facts which
support a genuine belief that the witness committed the offense
or the degrading act to which the question relates.” Fowler, 465
F.2d at 666. Counsel therefore must demonstrate that “the
proposed line of cross-examination follow[s] a lead reasonably
suggested by other facts in evidence.” Lin, 101 F.3d at 768.
rights “occur, if at all, only upon the admission of unwarned
statements into evidence at trial”). Reconsideration of the
Miranda ruling is not warranted in any event, as the ruling was
made not in reliance on a categorical rule but on the
circumstances surrounding the Terry stop of McCallum.
-23-
In United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010),
the D.C. Circuit addressed defendants’ appeal of their
convictions of various narcotics crimes on the grounds that the
government committed a Brady violation when it failed to disclose
evidence about the internal investigation, and resulting
suspension without pay, of a police officer who had been a
government witness. The court, agreeing that disclosure was
required, acknowledged that “based upon her suspension, [the
officer] could have been motivated to testify falsely against
appellants in order to curry favor with the government,” and that
this motive could be argued to the jury with regard to “the fact
that she was being investigated at all,” regardless of the
subject matter of the investigation. Id. at 1006. The court,
however, noted that a high risk of potential prejudice counseled
against cross-examination regarding the specific nature of the
investigation:
Even assuming information about the subject matter of
the investigation was probative of bias, the district
court would properly have excluded cross-examination
pursuant to Rule 403 because “its probative value [wa]s
substantially outweighed by the danger of unfair
prejudice.” Fed. R. Evid. 403. As the district court
concluded, the “prejudice to this officer given the
uncertainty of the [allegations] is quite high, the
prejudice to her career and her credibility is quite
high.” Mar. 27, 2006 Ex Parte Tr. at 10. That risk of
prejudice would have substantially outweighed the
minimal probative value of the evidence.
Id. (alterations in original). The court moreover reaffirmed
that “‘the mere filing of a complaint [against a witness] is not
-24-
probative of truthfulness or untruthfulness.’” Id. at 1005 (D.C.
Cir. 2010) (quoting United States v. Morrison, 98 F.3d 619, 628
(D.C. Cir. 1996) (emphasis in original) (finding no abuse of
discretion where trial court sustained an objection to a cross-
examination question put to a government witness asking if
someone had earlier filed a court complaint against her)). In
Wilson, the D.C. Circuit emphasized that cross-examination
“[w]ithout additional evidence of wrongdoing beyond bald
assertions” and “based on unproven allegations” is impermissible.
Wilson, 605 F.3d at 1005. Cf. United States v. Whitmore, 359
F.3d 609, 614 (D.C. Cir. 2004) (concluding that a defendant
should have been allowed to cross-examine a police officer
witness about a “D.C. Superior Court judge’s finding that [the
officer] had lied” in an unrelated criminal trial).
The Seventh and Eleventh Circuits have both considered
specifically the propriety of cross-examination regarding
complaints against police officers. See United States v. Holt,
486 F.3d 997, 1000-02 (7th Cir. 2007); United States v. Taylor,
417 F.3d 1176, 1178-81 (11th Cir. 2005). In Holt, the defendant
sought to cross-examine two police officer witnesses, one of whom
had received a suspension for conduct occurring several years
before the defendant’s arrest and both of whom “[b]ased upon an
unrelated complaint . . . were . . . reprimanded for neglect of
duty.” Holt, 486 F.3d at 1001. The Seventh Circuit affirmed the
trial court’s decision to allow the defense to ask the officer
-25-
witness who had been suspended whether “he had ever engaged in a
particular course of conduct,” id. at 1001,17 but to prohibit
asking about the discipline the officer had received, id. at
1002. With regard to the complaints, the Seventh Circuit
reasoned that the key factor determining whether cross-
examination regarding complaints was proper is its bearing on
truthfulness. The circuit court accordingly affirmed the trial
court’s decision to exclude questioning regarding the complaints
because “th[e] evidence [of police complaints] was not even
relevant . . . because it did not bear on the[] [officers’]
characters for truthfulness”). Id. In Taylor, the Eleventh
Circuit addressed a case in which the defendant wanted to cross-
examine a government witness regarding prior citizens’ complaints
against him for, among other things, allegedly planting evidence,
even though the allegation of evidence fabrication had been
determined to be unfounded by the internal affairs investigation.
A separate complaint alleging brutality indicated that the
officer was “under investigation.” The defendant argued that the
complaints were relevant to prove the officer was biased, had a
tendency for being untruthful, and thus may have planted drugs on
the defendant. Taylor, 417 F.3d at 1178-79.18 The Eleventh
17
The facts of the case do not make clear what precise
conduct led to the suspension.
18
McCallum does not accurately characterize the facts of
Taylor, contending that “[i]n Taylor, the defendant sought only
to admit or refer to the complaints, rather than cross-examine
-26-
Circuit, however, upheld the district court’s ruling to preclude
cross-examination because the complaints were unproven and there
was no evidence the officer had been disciplined for the conduct.
Further, the court noted that the defendant “failed to proffer
the testimony of any witness who might testify that [the officer]
had engaged in any of the alleged acts but instead chose to
simply refer to Internal Affairs documents to support his theory
that [the officer] had a history of planting evidence on
arrestees and had a character for untruthfulness and racial
bias.” Id. at 1180 (emphasis omitted). Both Taylor and Holt
support the proposition that cross-examination about complaints
or the conduct underlying them is improper unless there is some
basis for inferring the soundness of the allegations against the
officers (as, for example, in Holt where the alleged misconduct
had led to the officer’s suspension).
With regard to the three complaints disclosed to the
defense, the circumstances thus far do not support a reasonable
belief that the allegations in the complaints are true. Two of
the three complainants subsequently pled guilty to possessing the
substances that they had previously alleged had been planted.
regarding the substance of the complaints.” (Def.’s Opp’n to
Govt.’s Mot. in Limine to Preclude Evidence Concerning Police
Complaints at 4 n.1.) The facts are clear, however, that the
defendant “advised the district court that he intended to cross-
examine [the police officer witness] regarding prior citizens’
complaints against him.” Taylor, 417 F.3d at 1178 (emphasis
added).
-27-
Although the third complainant, who alleged that marijuana had
been planted on him, was not prosecuted, McCallum has not
proffered evidence tending to establish the truth of the
allegations made by that complainant or the others aside from the
contention that each of the complainants “maintains that the
charges against him were false.” (Def.’s Opp’n to Govt.’s Mot.
in Limine to Preclude Evidence Concerning Police Complaints at
2.) Without more, these are the type of “unproven allegations,”
Wilson, 605 F.3d at 1005, that are unsuited as evidence probative
of the character for truthfulness of the witnesses.19
With regard to the seven open complaints against Matos, as
well, the current record reflects “[no] additional evidence of
wrongdoing beyond bald assertions.” Wilson, 605 F.3d at 1005.
Unlike in Wilson, where the officer was actually under
investigation and indeed suspended for misconduct, and the
district judge was found properly to have allowed the defendant
to cross-examine the officer regarding her knowledge of the
investigation in order to demonstrate a motive to curry favor,
the current record does not reflect that Matos has been subject
19
With regard to McCallum’s representation that there is a
“fourth individual who submits that Officer Matos arrested him
and falsely accused him of possessing drugs” (Def.’s Opp’n to
Govt.’s Mot. in Limine to Preclude Evidence Concerning Police
Complaints at 2), McCallum has not proffered sufficient facts
from which to determine the propriety of conducting cross-
examination of Matos about this individual.
-28-
to disciplinary action.20 Arguably, where complaints have yet to
be found proven or not proven, their open status might be
construed as reflecting an investigation of the officer. While
the OPC investigates the circumstances of filed complaints to
determine whether they are founded, the probative value of
inquiring into Matos’s potential bias to testify favorably to the
prosecution in order to avoid discipline is slight where, as
here, the facts alleged in the open complaints do not demonstrate
any credible threat of such discipline.21 For these reasons,
McCallum may not elicit on cross-examination the fact that any of
these complaints has been filed with the OPC against Matos or
Chapa or what a complaint alleged. The government’s motions to
preclude evidence of police complaints will be granted subject to
the government’s update about the status of the seven open
complaints.
IV. ADMISSIBILITY OF OPINION AND REPUTATION EVIDENCE
In order to offer reputation evidence under Federal Rule of
Evidence 608(a), “a party must establish that the character
witness is qualified by having an ‘acquaintance with [the
witness],’ his ‘community,’ and ‘the circles in which he has
20
However, the government will be directed to update the
status of the seven open complaints.
21
Wilson suggests that there may also be some risk that such
questioning could prejudice Matos and that such prejudice could
be undue given the uncertainty of the allegations. Wilson, 605
F.3d at 1006. Given the nature of the open complaints, though,
that risk is not determinative here.
-29-
moved, as to speak with authority of the terms in which generally
[the witness] is regarded.’” Whitmore, 359 F.3d at 616 (quoting
Michelson v. United States, 335 U.S. 469, 478 (1948)).
Reputation testimony, however, need not be derived from the
witness’s residential community and a character witness need not
physically reside in that community. Id. at 617 n.3. “[T]he
foundational requirement for opinion evidence regarding a
witness’s character for truthfulness is less stringent than that
for reputation evidence.” Id. at 617 (emphasis in original). A
witness’s opinion testimony must be based on underlying facts
that demonstrate that the opinion is rationally based on the
first-hand perception of the witness and would be helpful to the
jury in evaluating the subject’s truthfulness. Id. at 618.
The government asks the court to preclude character witness
testimony unless and until McCallum proffers sufficient facts or
evidence that establish that any potential character witness has
a sufficient knowledge about an officer’s reputation in the
community for truthfulness or untruthfulness, or proffers a
sufficient basis to offer an opinion about an officer’s
reputation for truthfulness. McCallum has acknowledged his
obligation to present a foundation for such testimony. In the
absence of any specific proffer to call character witnesses,
ruling on the government’s motion will be deferred. Upon a
proffer, the relevant factors to assess will include the
-30-
proximity in time of the witness’s contact, the extent of the
witness’s contacts with the community, the extent of the
witness’s interaction with the officer whose character is being
impeached, and the factual support for the testimony offered.
Id. at 616-18.
CONCLUSION AND ORDER
Double jeopardy does not bar retrial in this case, and the
denial of McCallum’s motion to suppress is reaffirmed. Subject
to the government’s update about the status of the seven open
complaints, cross-examination eliciting the fact that OPC
complaints were filed or their contents will not be permitted at
retrial. Accordingly, it is hereby
ORDERED that the defendant’s motion [58] to dismiss the
indictment be, and hereby is, DENIED. It is further
ORDERED that the government’s motions [59, 63], insofar as
they seek to preclude cross-examination eliciting the fact that
the OPC complaints were filed or their contents, be, and hereby
are, GRANTED subject to the government’s notice updating the
status of the seven open complaints against Matos. The
government is directed to file that notice by September 4, 2012.
It is further
ORDERED that a ruling on the government’s motion [64] to
preclude opinion and reputation evidence be, and hereby is,
DEFERRED until the retrial. It is further
-31-
ORDERED that the parties appear for a scheduling conference
on September 10, 2012 at 10:15 a.m. in order to set a date for
the retrial.
SIGNED this 13th day of August, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge | 01-04-2023 | 04-03-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/5284163/ | ORDER
PER CURIAM:
Sue Joel1 appeals the trial court’s dismissal of Ian Joel’s petition for title to a 2010 Harley Davidson motorcycle. The trial court found that because it had already entered judgment in another case determining possession of the same motorcycle in another case,2 it could not consider Mr. Joel’s title claim. Ms. Joel argues that the title claim was not barred by the prior judgment because the parties were not identical or in privity and Ms. Joel did not have her day in court. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.
The judgment is affirmed. Rule 84.16(b).
. Ms. Joel, surviving spouse of Ian Joel, was substituted by this Court as the appellant following her husband’s death.
. The other case was a replevin suit brought by Mr. Sims in the Circuit Court of Jackson County, 1316-CV23876, now on appeal in this Court as Joel v. Sims, WD77414. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125608/ | Judgment affirmed. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284165/ | Order
Per Curiam:
Mr. Adam Wayne Marsh appeals from the Judgment of the Circuit Court of Nod-away County, Missouri, denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Because a published opinion would have no prece-dential value, a memorandum of law has instead been provided to the parties explaining our ruling. The judgment is affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284167/ | JUSTICE GUZMAN
delivered the opinion of the Court.
This interlocutory appeal involves a municipality’s plea to the jurisdiction in a *627premises-liability case arising from the drowning deaths of three family members at a man-made beach. The surviving spouse and mother of the decedents alleges that the drowning deaths resulted from a peculiar risk of harm created by a con- • fluence of artificial and natural conditions at the beach and that the municipality was grossly negligent in failing to warn or protect the public against those dangers. The trial court denied the jurisdictional plea, but the court of appeals reversed and dismissed the claims for want of jurisdiction. No. 01-12-00848-CV, 2018 WL 867428, at *1 (Tex.App.-Houston [1st Dist.] March 7, 2013). At issue on appeal is whether there is some evidence of the municipality’s liability to invoke the Texas Tort Claims Act’s waiver of governmental immunity, as limited by the recreational use statute. See Tex. Civ. PRAC. & Rem. Code §§ 75.003(e)-(g), 101.021-.022, .025.
The Tort Claims Act generally waives governmental immunity in premises-liability cases when a governmental unit breaches the duty of care that a private party would owe to a licensee. Id. §§ 101.021-.022, .025. If premises are open to the public for recreational activities, however, the recreational use statute elevates the burden of proof required to invoke the Tort’ Claims Act’s immunity waiver by classifying recreational users as trespassers and requiring proof of gross negligence, malicious intent, or bad faith. Id. § 75.002; State v. Shumake, 199 S.W.3d 279, 281 (Tex.2006). In previous cases applying these statutes, we have held that landowners owe a duty to warn or protect recreational users when artificial conditions create dangerous conditions that are not open and obvious, but have no duty to warn or protect against conditions that are open or inherent, and thus obvious, regardless of whether such conditions are naturally or artificially created. Compare Shumake, 199 S.W.3d at 281-82, 288 (man-made culvert created dangerous, hidden undertow), with City of Waco v. Kirwan, 298 S.W.3d 618, 626 (Tex.2009) (edge of cliff is inherently dangerous) and Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 660 (Tex.2007) (artificial condition was visible and known to recreational cyclist). The allegation in this case is that artificial conditions interacted with natural conditions to exacerbate and increase inherent risks well beyond what a reasonable recreational user might reasonably anticipate. This case thus involves a convergence of natural and artificial conditions as well as open, inherent, and latent dangers.
Regardless of whether a duty exists, however, when gross negligence is alleged, immunity is waived only if the governmental entity (1) knew about a condition of the property giving rise to an extreme degree of risk and (2) proceeded with conscious indifference to the rights,, safety, or welfare of others. Shumake, 199 S.W.3d at 287; see also Tex. Civ. Prao. & Rem. Code § 41.001(11). Construing the record in the light most favorable to the petitioner, as we must, there is no evidence that the municipality had knowledge of concealed conditions at the beach creating an extreme risk of harm. We therefore affirm the court of appeals’ judgment.
I. Background
The tragic deaths of a young father and his twin daughters occurred in the waters adjacent to the Texas City Dike, a man-made peninsula jutting 5.4 miles into Galveston Bay off the coast of Texas City, Texas. The Dike was initially created more than 100 years ago to help preserve the Texas City Ship Channel from excessive siltation.
Because of the ship channel’s location in Galveston Bay near an inlet to the Gulf of *628Mexico, currents carry silt into the man-made channel and frequent dredging is required to keep-the water navigable. The United States Army Corps of Engineers constructed the Dike to help stop the flow of silt into the channel. Originally completed in 1915, the Dike was extended to its current length in 1984. To maintain the ship channel, the Corps of Engineers regularly dredges the channel and deposits dredged materials consisting of fine-grain sediment at a “spoil area” on the north side of the Dike. Over time, the spoil area has developed into a man-made beach.
In 1981, the State conveyed ownership of the Dike to Texas City and required that the Dike be used only for public purposes. See Act “Granting Dike” to City of Texas City, 42nd Leg., R.S., ch. 54, § 1, 1931 Tex. Spec. Laws 134, 134-35. Texas City has owned, maintained, and operated the Dike ever since. In 1963, the Texas Legislature opened the Dike up to recreational activity. Act of May 22, 1963, 58th Leg., R.S., ch. 503, § 2, 1963 Tex. Gen. Laws 1316, 1317. To facilitate access, an asphalt road stretches the length of the five-mile peninsula.
With coastal waters accessible via 10 miles of shoreline, visitors to the Dike engage in recreational activities including boating, fishing, crabbing, and swimming, in addition to non-water-related activities like picnicking, running, and cycling. Amenities at the Dike include boat ramps, piers, parking areas, picnic shelters, portable restrooms, fish-cleaning tables, and street and boat-ramp lights. At some point, signs were erected at several locations along the Dike bearing the following admonitions:
• “Warning! No Swimming [or] Diving. Beware [of] undertow and wake from passing ships.”
• “Beware [of] undertow[,] wake, rip current, and sink holes.”
• “No lifeguard on duty. Swim in designated area only.”
• “No lifeguard on duty. Swim at your own risk. Beware of undertow from passing ships.”
Some of the signs’ warnings were in English only and others were in both Spanish and English.1
On September 13, 2008, Hurricane Ike made landfall near Galveston, Texas. The hurricane caused considerable damage to the Dike — eroding beaches, damaging the roadway, upending and damaging improvements, and destroying or damaging all the warning signs. Due to ongoing repairs, Texas City closed the Dike to the public for nearly two years.
While public access was suspended, Texas City repaired or replaced the road, piers, boat ramps, picnic shelters, and lighting structures. But, not all warning signs were replaced. The only warning signs the City replaced were “monument” signs at two boat ramps that were reopened following the hurricane.2 Those signs, which are large, wooden destination markers, are similar to signs that had been in place at the same locations before the hurricane. The signs include the following *629warning in English and Spanish: “Warning! No Swimming [or] Diving.” The signs also caution in English: “Beware [of] Undertow and Wake from Passing ships.” Texas City elected not to replace other warning signs destroyed by the storm. The evidence in the record does not establish the location or number of those signs but it is undisputed that the signs that were not replaced had warned about swimming outside designated areas, cautioned that no lifeguard was on duty, advised recreational users to swim at their own risk, or warned about rip tides and sink holes.
On October 3, 2010, less than a month after the Dike re-opened to the public, Edith and Hector Suarez visited the Dike along with their nine-year-old twin daughters and other family members and friends. They paid the $5 entrance fee charged to nonresidents on the weekends and drove to the beach area that had been formed over time by the deposition of silt dredged from the ship channel. The beach, which was appointed with covered picnic tables, afforded visitors unimpeded access to the water. No area was designated for swimming at the beach, and no signs prohibited swimming or warned of swimming dangers at that location. The tide was high, the wind was strong, and the water was choppy with breaking waves. As soon as the Suarez family had parked their vehicle, the twin girls, still dressed in street clothes, waded into the water up to their knees. Very shortly thereafter, they were seen struggling to stay afloat in deeper water approximately 10 feet from the beach. Hector Suarez and two other men struggled to save the girls, but the rescue attempt failed. Hector and his daughters drowned as they were swept farther from the shore, and the other two rescuers had to help one another back to the beach to escape the strong current.3
William Worsham, a coastal engineer retained to ascertain how the incident had occurred, determined that breaking waves and the “noticeably slippery” surface of the submerged beach caused the young victims to lose their footing despite standing in shallow water; the scalloped shape of the beach’s surface was characteristic of a beach that can generate rip currents when interacting with waves; and the convergence of these conditions caused the girls to be swept from knee-deep water “to waters deep and rough enough to result in drowning.” According to Worsham, on the day of the incident, “[w]ater conditions adjacent to the beach were turbulent and highly variable, consisting of choppy water, brealdng waves, oscillating onshore and offshore currents, and longshore currents. It is clear upon inspection that these are difficult swimming conditions.” Moreover, “[g]iven the wave and current conditions, upon reaching a water depth of even half a person’s height[,] it would be quite difficult ... to maintain .sufficient contact with the bottom to resist being moved in the direction of water motion.” In Worsham’s opinion, “[e]ven water depths of less than two feet were capable of causing loss of balance,” a condition that “was prevalent within 25 feet of the shore in the case of the children involved.” Worsham’s “[i]ni-tial analysis showed wind-generated waves interacted with the [man-made] beach and caused the upset and loss of footing of the young victims, and that [stronger] tidal currents and local currents resulting from the interaction of waves with the beach surface would transport a person toward *630deeper water once he/she had lost contact with the bottom....”
Edith Suarez, individually and on behalf of the decedents, sued Texas City, alleging it had actual or constructive knowledge that hidden, dangerous conditions existed in the water where the family drowned and was therefore negligent and grossly negligent in (1) creating a beach, (2) allowing swimming in the area, (3) failing to provide signs warning of perilous conditions that were not obvious to swimmers, and (4) failing to conduct studies to determine the existence of any such perils. Suarez asserted that, in doing so, Texas City failed to use the ordinary care a reasonable and prudent person would have employed to reduce, eliminate, or warn about the risk and, accordingly, breached its duty to warn or make the premises reasonably safe. In the alternative, Suarez claimed Texas City created an attractive nuisance, enticing the public to swim near an area that looked like a beach, knowing there were hidden dangers in the form of deadly undertows, currents, and deep holes in the beach water. In bringing suit against Texas City, Suarez averred that governmental immunity was waived under the Wrongful Death Act and, in the alternative, the Tort Claims Act and the recreational use statute.
Texas City answered with a plea to the jurisdiction, general denial, and several affirmative defenses. The City’s plea, as supplemented, asserted that Suarez’s pleadings and evidence were insufficient to support jurisdiction. Texas City denied that it owed a duty under the circumstances or that there was any evidence it acted with the culpability required to invoke a statutory waiver of immunity. More specifically, the City asserted it owes recreátional users only the degree of care afforded to a trespasser, which does not-include warning or protecting against beach conditions and associated risks that are open and obvious, ordinary and natural features of submerged land, and inherent in open-water swimming. The City further alleged that evidence of conscious indifference was lacking and argued that the use of some warning signs affirmatively negated conscious indifference. In addition to other arguments, the City denied the existence of a defect, special or otherwise; asserted that its discretionary decisions regarding placement of warning signs is not actionable under the Tort Claims Act; and argued that the Wrongful Death Act does not waive immunity for municipalities. See Tex. Civ. Prac. & Rem. Code § 101.056.
Texas City also moved for summary judgment on identical grounds and further challenged causation as a matter of law. In support of both the plea and the motion for summary judgment, Texas City offered the affidavit of Tom Kessler, the City’s Director of Public Works, and attached photographs showing that warning signs erected by Texas City after Hurricane Ike and installed at two boat ramps were substantively identical to the monument signs damaged in the hurricane. The photos also show that a sign at a third boat ramp bore no warnings either before or after Hurricane Ike.
In response to Texas City’s jurisdictional plea and motion for summary judgment, Suarez offered the following evidence: (1) deposition testimony from both the current mayor of Texas City, Matthew T. Doyle, and the Director of Public Works, Tom Kessler; (2) an affidavit from one of the would-be rescuers recounting the events leading up to the drownings; (3) Texas City’s responses' to Suarez’s request for admissions; and (4) an affidavit from Worsham, the coastal engineering expert, in which he “characterize[d] natural and man-made forces that were potentially in*631volved” and “describe[d] in a physical sense how this incident occurred.” In his affidavit, Worsham observed that “[t]he directional orientation of [the] recreational beach with respect to wind-generated waves, tidal currents, and ship-generated hydrodynamic effects is unique in the upper Texas coastal region, and does not exist naturally anywhere in Texas” and that, on the day of the incident, “[t]he manmade structure (Texas City Dike) and beach interacted with the [natural] waves and tidal currents to cause energetic breaking waves and stronger currents, each of which was highly variable in strength and direction.” He opined that “[t]he water motion in the form of wave action and currents initially caused the loss of footing of these two young victims and resulted in the relatively rapid movement of the young victims from knee deep water into deeper rough water.”
After a hearing, the trial court denied Texas City’s plea to the jurisdiction and motion for summary judgment. Texas City filed an interlocutory appeal from the denial of its jurisdictional plea. See Tex. Crv. Prao. & Rem. Code § 51.014(a)(8). The court of appeals reversed the trial court’s order and rendered judgment dismissing Suarez’s claims for lack of jurisdiction. In addition to other holdings.that are not at issue on appeal, the court of appeals held that the record contained “no evidence [creating] a factual dispute with regard to whether [Texas City] had actual knowledge or awareness of the alleged unique and dangerous property condition existing at the beach at the time of the drowning deaths of Suarez’s family.” 2013 WL 867428, at *12. Accordingly, the court concluded that Suarez failed to bring a valid gross-negligence claim under the recreational use statute and, as a result, Texas City retained immunity from suit. Id.
Suarez moved for panel and en banc reconsideration. Although the court of appeals denied both motions, Justice Keyes, a non-panel member, dissented in an opinion challenging the court’s jurisdictional analysis. Justice Keyes stated that the court had improperly relied on precedent pertaining only to natural conditions and incorrectly applied the standard of review by crediting inferences in support of Texas City rather than in favor of Suarez. — S.W.3d -, -, No. 01-1200848-CV, 2013 WL 5913185, at *10-13 (Keyes, J., dissenting on reh’g). Because Justice Keyes’s dissent addressed the merits of the panel’s decision and expressly disagreed with a question of law material to the decision, we have jurisdiction over this interlocutory appeal. See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805 (Tex.2002) (citingTEX. Gov’t Code § 22.225(b)(4)).
The issues on appeal to this Court are limited to the existence of evidence to support Texas City’s liability under the recreational use statute as it pertains to the Texas Tort Claims Act’s waiver of immunity. The specific matters presented for our consideration are (1) the existence and parameters of any duty to warn or protect recreational users from the conditions at the man-made beach and (2) whether there is some evidence that Texas City was grossly negligent in discharging any such duty.
II. Discussion
A. Governmental Immunity
Absent a valid statutory,or constitutional waiver, trial courts lack subject-matter jurisdiction to adjudicate lawsuits against municipalities. City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex.2014); Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d *632686, 638 (Tex.1999). The Texas Tort Claims Act waives immunity from suit but only “to the extent of liability created by [the Act].” See Tex. Civ. PRAC. & Rem. Code § 101.025(a). The immunity waiver is therefore intertwined with the merits of a claim under the Act.
Under the Tort Claims Act, a governmental unit is liable for “personal injury and death so caused by a condition or use of ... real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Id. § 101.021; see State v. Shumake, 199 S.W.3d 279, 283 (Tex.2006). In premises-defect cases, the governmental unit owes “only the duty [of care] that a private person owes to a licensee on private property.”4 Id. § 101.022(a). When property is open to the public for “recreation,” however, the recreational use statute further limits the governmental unit’s duty by classifying recreational users as trespassers and limiting liability for premises defects to claims involving gross negligence, malicious intent, or bad faith. Id. at § 75.002. In doing so, the statute elevates the burden of proof necessary to invoke the Tort Claims Act’s statutory waiver. Id. §§ 75.003(d)-(g) (the recreational use statute neither creates liability nor waives sovereign immunity, but “limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under [the Tort Claims Act]”); 101.058 (the recreational use statute controls to the extent it limits a governmental unit’s liability under the Tort Claims Act). As used in the recreational use statute, the term “recreation” includes a non-exclusive list of activities, including “swimming” and “picnicking.” Id. § 75.001(3). Suarez does not dispute that her family was engaged in these activities and that the recreational use statute therefore applies. See City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex.2002).
Furthermore, Suarez does not allege that Texas City acted with malicious intent or in bad faith; accordingly, Texas City “may be liable for gross negligence only to the extent that it owed ... a legal duty.” See Kirwan, 298 S.W.3d at 623. Considering the interplay between the Texas Tort Claims Act and the recreational use statute, Texas City retains immunity from suit absent evidence of circumstances giving rise to a duty to warn or protect coupled with the requisite mental state. Suarez contends that immunity is waived because (1) Texas City had a duty to warn about or protect against the extreme and unusual dangers created by the interaction of natural forces with the manmade dike and (2) there is some evidence Texas City acted with gross negligence by failing to warn or protect the decedents from those conditions. See Shumake, 199 S.W.3d at 287-88.
B. Standard of Review
Whether subject-matter jurisdiction exists is a question of law that can be challenged, as it was here, by a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). We review de novo the disposition of Texas City’s jurisdictional plea. Miranda, 133 S.W.3d at 226. Because we address a plea to the jurisdiction in which disputed evidence implicates both the court’s subject-matter jurisdiction and the merits of the case, we consider relevant evidence submitted by the parties to determine if a fact *633issue exists. Id. at 227. We take as true all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any doubts in the nonmovant’s favor. Id. at 228. If the evidence creates a fact question regarding jurisdiction, the plea must be denied pending resolution of the fact issue by the fact finder. Id. at 227-28. If the evidence fails to raise a question of fact, however, the plea to the jurisdiction must be granted as a matter of law. Id. at 228.
C. Analysis
We have been called upon on several occasions to examine when circumstances existing in a recreational setting give rise to a duty to warn or protect. We have found such a duty when an artificial condition created a risk of harm that was latent and not so inherent in the recreational use that it could reasonably be anticipated. See Shwmake, 199 S.W.3d at 281-82, 288 (recognizing a duty to warn or protect when a man-made structure— an underground culvert — interacted with the natural perils associated with river tubing to create a powerful undertow that sucked a nine-year-old girl under water and trapped her in the culvert). On the other hand, we have declined to impose a duty for premises conditions that are open and obvious, regardless of whether such conditions are artificial or naturally occurring. See Kirwan, 298 S.W.3d at 623, 626 (concluding that landowner had no duty to warn about risk of falling associated with sitting on cliffs edge even though the particular risk — the collapse of the cliff — was unexpected); Flynn, 228 S.W.3d at 655, 659-60 (finding no duty to warn or protect cyclist from visible oscillating sprinkler that knocked the plaintiff off her bike as she rode along a public trail). For naturally occurring conditions, our jurisprudence suggests that obvious conditions include dangers that are not necessarily visible but are inherent in the recreational use. . Kirwan, 298 S.W.3d at 626. Although we have not directly addressed whether a duty arises with respect to conditions that are naturally occurring but concealed and unexpected, we have said we could “envision” such a duty
where a landowner knows of a hidden and dangerous natural condition that is located in an area frequented by recreational users, where the landowner is aware of deaths or injuries related to that particular condition, and where the danger is such that a reasonable recreational user would not expect to encounter it on the property.
Id. at 626.
Here, we need not consider whether Texas City had a duty to warn or protect under the circumstances alleged to exist at the Dike because, even assuming the existence of such a duty, there is no evidence that Texas City was grossly negligent.
As used in the recreational use statute, gross negligence has both objective and subjective components:
(1) viewed objectively from the standpoint of the actor at the time of its occurrence, the act or omission involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(2) the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
Flynn, 228 S.W.3d at 660 (citing Tex. Civ. Prac. & Rem. Code § 41.001(11)); Louisiana-Pac. Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex.1999). To raise a fact issue regarding gross negligence, there must be legally sufficient evidence that Texas City had actual, subjective awareness that conditions at the beach involved an extreme
*634degree of harm but nevertheless was consciously indifferent to the rights, safety, or welfare of others. Flynn, 228 S.W.3d at 660. “[I]n other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care.” Louisiana-Pac. Corp., 19 S.W.3d at 246-47. We assume for purposes of our analysis that there is some evidence of an extreme risk considering both the probability and magnitude of the harm. But Suarez’s claim fails nonetheless because there is no evidence that Texas City was subjectively aware of perils at the beach that were beyond the ken of a reasonable recreational user. See Bellmead, 89 S.W.3d at 614 (in premises-defect cases, the risk or condition alleged must be the cause of the resulting injury).
To satisfy the subjective-knowledge component of the gross negligence standard, the governmental entity must have “knowledge that the dangerous condition existed at the time of the accident.” City of Corsicana v. Stewart, 249 S.W.3d 412, 414-15 (Tex.2008). Suarez’s allegation that Texas City had knowledge of latent perils at the man-made Dike rests on circumstantial evidence and inferences alleged to arise from evidence that, prior to Hurricane Ike, Texas City (1) had posted warning signs — including signs that said: “Beware. Undertow and wake, rip currents, and sink holes,” “No lifeguard on duty. Swim at your own risk,” and “Swim in designated area only” — but failed to replace the signs after the hurricane; (2) had previously provided a “designated swimming area” somewhere at the beach but had not established such an area after Hurricane Ike; and (3) knew an unspecified number of drowning deaths had previously occurred at unknown locations along the Dike over the course of an tmspecified time period. To the extent this evidence raises any inference that the City knew uniquely perilous conditions existed at the beach (or the Dike generally), the evidence is equally consistent with mere knowledge of risks inherently associated with open-water swimming. As such, it is no evidence of subjective awareness of and conscious indifference to the enhanced marine hazards alleged to have caused or contributed to the drowning deaths of Hector Suarez and his daughters. See City of Keller v. Wilson, 168 S.W.3d 802, 814 (Tex.2005) (“When the circumstances are equally consistent with either of two facts, neither fact may be inferred.” (quoting Lozano v. Lozano, 52 S.W.3d 141, 167 (Tex.2001))).
Circumstantial evidence can establish actual knowledge but such evidence must “either directly or by reasonable inference” support that conclusion. Stewart, 249 S.W.3d at 415 (quoting State v. Gonzalez, 82 S.W.3d 322, 330 (Tex.2002)). An inference is not reasonable, however, if it is premised on mere suspicion — “some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence.” Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727-28 (Tex.2003) (citing Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 210 (Tex.2002)). “When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 & n.3 (Tex.1993) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). An inference is not reasonable if it is susceptible to multiple, equally probable inferences, requiring the factfinder to guess in order to reach a conclusion. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (citing Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001)); see also City of Keller, *635168 S.W.3d at 814. Reviewing the record in the light most favorable to Suarez, we conclude there is no evidence Texas City knew perilous conditions existed along the Dike that exceeded those inherently associated with aquatic activities in open water or beyond what would reasonably be expected to exist.
Suarez first relies on undisputed evidence that before Hurricane Ike, Texas City had erected signs on the Dike warning visitors about undertows, wakes, rip currents, and sink holes and cautioning them not to swim or to swim at their own risk. Although the admonitions on those signs certainly imply an understanding of the perils associated with entering the waters surrounding the Dike, they refer to common marine hazards that a reasonable recreational user would know or expect to exist, especially in areas where boaters and swimmers regularly interact. They do not, perforce, give rise to an inference that Texas City had actual knowledge of any conditions or risks beyond those open and inherent in open-water recreational use. Indeed, the signs do not even hint that conditions at the beach were of such magnitude as to sweep away even non-swimmers wading in shallow water. As we acknowledged in Kirwan, landowners may err on the side of safety by warning visitors of dangerous natural conditions whether or not the landowner has any duty to provide such warnings. 298 S.W.3d at 625-26. Other than guesswork and conjecture, the language used on the pre-Hurricane Ike warning signs gives no purchase to Suarez’s allegation that Texas City was aware of an unusual, extreme, and concealed risk of harm at the Dike.
Suarez next points to the establishment and subsequent elimination of a “designated swimming area” as evidence that Texas City had knowledge of dangerous conditions in the water. In her brief, Suarez contends that (1) Texas City specifically designated “safe areas for swimming” before Hurricane Ike, (2) no designated swimming area was reestablished after the hurricane, and (3) her husband and daughters drowned in an area previously designated for swimming. The inference Suarez suggests is not clear. She implies both that designating a swimming area at the beach supports an inference that swimming was recommended as being safe there and that the designated swimming area was discontinued because it was not safe to swim at that location.
For some period of time, Texas City had erected a warning sign on the Dike that read “No lifeguard on duty. Swim in designated area only.” The sign may have been placed at the beach, but the record is unclear on that point. The location of the designated swimming area is also speculative, but may have been at the beach and possibly in the area where the drownings occurred. But even assuming the facts are as Suarez alleges, what inference do these facts generate? One could equally infer any of the following: (1) Texas City’s knowledge that swimming at any location at the Dike was abnormally dangerous; (2) Texas City knew that, whatever conditions existed at the Dike, they were no different in the designated location; or (3) establishing a segregated swimming area was futile when people can and do enter the water all along the 10-mile shoreline.
Tom Kessler, Director of Public Works, testified that the swim area “wasn’t there very long”; “you’re swimming at your own risk in that area, too”; “[t]here was nothing special about it. It was just set aside”; “[t]he hazards were essentially the same [because] [i]t’s the same bottom, the same currents, same everything, other than it had some [pylons] around it”; and swimming occurred outside as well as inside the designated swimming area when it existed. *636The only evidence in the record regarding the purpose of the designated swimming area is that it had been intended to reduce the interaction between recreational boaters and swimmers. Mayor Doyle testified that “[t]he pylon area was there to separate the boats, the catamarans ... from the swimmers.... It may have been a designated swimming [area] but it certainly wasn’t the only swimming area” because people “swim all over the dike.” Nothing more insidious could reasonably be inferred from the absence of a specially designated swimming area after Hurricane Ike.
Suarez next contends that Texas City knew dangerous conditions existed because people had previously drowned at the beach. Although Kessler affirmed that “other drowning deaths on the dike [occurred] before October 3, 2010,” the record in this case is not comparable to other cases in which courts have found sufficient evidence of knowledge based on evidence of prior incidents.
In Shumalce, the city knew about the dangers associated with a man-made culvert because only days before the incident, both a Parks Department employee and the Austin Parks Department were informed that three park . patrons nearly drowned in the same area from the same undertow that killed the Shumakes’ daughter. 199 S.W.3d at 281, 288. Similarly, in City of Houston v. Cavazos, a child drowned while attempting to cross a river over a concrete slab partially covered in water. 811 S.W.2d 231, 231 (Tex.App.Houston [14th Dist.] 1991, writ dism’d). The slab appeared to be covered with about a foot of murky water but the water concealed a fifteen-foot drop-off at the concrete slab’s edge. Id. The child slipped, fell, and was carried into deeper water where he drowned. Id. In Cavazos, the court found evidence of knowledge based in part on testimony from two law-enforcement officers that the dangers at the location were well known to the city. Id. at 234-35. Both officers stated unequivocally that the area was dangerous and that warnings were imperative. Id. One of the officers testified that he had personally posted warning signs five years before the child died, the signs were not up at the time of the incident because the city had removed them, and the city must have known about the dangers because as many as three drownings had occurred every year at the same location over a seven-year period. Id. at 235; see also City of El Paso v. Zarate, 917 S.W.2d 326, 332-33 (Tex.App.-El Paso 1996, no writ) (finding evidence of knowledge where a child nearly drowned in the same location four years earlier).
Here, the record is devoid of similar evidence. Suarez presented no evidence describing the number, nature, location, frequency, or circumstances of any previous drownings over the fifty-year period the Dike has been open to the public for recreational purposes. No evidence exists that any previous drownings occurred under conditions similar, in any respect, to those conditions Suarez’s expert attributed to the deaths of Hector Suarez and his daughters. In fact, nothing in the record suggests that any drownings or near drownings occurred with such frequency or under such conditions that it would be reasonable to infer actual knowledge of risks in excess of those normally associated with coastal-water recreation. Considering the Dike’s size, the plethora of hazards inherently present there, and the length of time it has been open to the public, the bare fact that other drownings have occurred does not create a reasonable inference that Texas City had subjective knowledge of an extreme risk of harm.
*637Finally, Suarez cites deposition testimony from the current mayor, Matthew Doyle, who was responsible for determining whether and to what extent to replace warning signs at the Dike that were damaged or destroyed by Hurricane Ike. Doyle admitted that he knew that wakes from passing ships could affect wave action along the Dike and that choppy water from wind, undertows, and rip tides increases the risk of drowning. Again, these are risks and conditions that would ordinarily be anticipated by reasonable recreational users interacting with coastal waters along a peninsula stretching five miles into Galveston Bay. The mayor consistently asserted that undertows “oe-eur[ ] out in the water, period” and “[a]ny time you enter the water, you’re taking on some kind of risk.” Moreover, while the mayor acknowledged that the Dike affects the natural conditions in the water, he also asserted the effects were no different from those other land masses would cause and, even without the Dike, dangers would still exist because “[w]e’re on the Gulf Coast.” No knowledge of the particular risk alleged can be inferred from mere knowledge that marine activities are inherently dangerous and can be affected by variable conditions.
Construing the evidence and every reasonable inference in Suarez’s favor, we conclude there is no evidence from which a reasonable factfinder could conclude that Texas City possessed actual, subjective awareness that the combined effect of the Dike’s size and location, along with the deposition of fine-grained sediment, altered the natural conditions in the water at the beach. There is likewise no evidence that Texas City knew about or appreciated the gravity of any danger created by the combined effect of man-made and natural conditions in the water at the beach. Because the evidence fails to raise a genuine and material fact issue concerning gross negligence, Texas City retains immunity from suit and the trial court lacks jurisdiction over Suarez’s claims.
III. Conclusion
We hold Suarez failed to produce evidence sufficient to invoke the Texas Tort Claims Act’s waiver of immunity from suit. We therefore affirm the court of appeals’ judgment dismissing the petitioner’s claims for want of jurisdiction.
. There is a suggestion in the record that at least some of these signs were posted at the behest of a former Texas City mayor, Chuck Doyle, in response to his son’s diving accident, the circumstances of which are not elucidated. Texas City’s current mayor, Matthew T. Doyle, is the former mayor’s son and was the victim of the referenced diving accident. He testified that he did not know about a particular impetus for erecting warning signs at the Dike and stated that his accident had nothing to do with swimming skill or ability but resulted from a mistake.
. A monument sign without a warning was replaced with another, similar sign at a third boat ramp.
. Because Edith and Hector Suarez share a surname, we refer to Hector by his first name to avoid confusion.
. Exceptions amplifying the government’s duty exist and were alleged to apply in this case. See Tex. Civ. Prac. & Rem. Code § 101.022(a), (b). However, the court of appeals determined those matters adversely to Suarez, and they are not at issue on appeal to this Court. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2188788/ | 915 N.E.2d 984 (2009)
SCUBY
v.
STATE.
Supreme Court of Indiana.
March 10, 2009.
Transfer denied. All Justices concur. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284168/ | CONCURRING STATEMENT
Richardson, J.,
filed a concurring statement
in which Johnson, Alcala, and Newell, JJ., joined.
Juvenile criminal law in Texas is one of our more difficult areas of law, encompassing not only the Family Code, but also the Codes of Criminal Procedure and Civil Procedure. Attorneys not specializing in juvenile law have difficulty navigating the field, so a pro se litigant faces a distinct disadvantage. Relator in this case has made repeated attempts to file his pro se post-conviction complaint for time credit, but each time he has come up short. The problem lies with the fact that relator is asking for relief via an Article 11.07 of the Code of Criminal Procedure application for writ of habeas corpus from a juvenile adjudication, which is not a final felony conviction. By way of analogy, relator has tried to mail a letter with the wrong address on it and then called the phone company to find out where the letter went. He’s getting nowhere.
Relator filed this third writ of mandamus in which he claims that he filed what would be his second application for a post-conviction writ of habeas corpus under Article 11.07 in the S14th District Court, a juvenile court in Harris County. Having received no response from the court, relator now seeks a writ of mandamus from this Court ordering the 314th District Court to forward his 11.07 application. I concur with this Court’s judgment denying leave to file, but I write separately to clarify why relator is not entitled to relief from this Court.
Relator, who is now 37 years old, was a juvenile in 1991 when he was adjudicated for engaging in delinquent conduct by committing murder and sentenced to twenty years’ imprisonment. Because such an adjudication is not a final felony conviction for the purposes of Article 11.07, relief is not available from this Court under that article’s provisions. Ex parte Valle, 104 S.W.3d 888 (Tex.Crim.App.2003); see also Tex. Fam.Code Ann. § 51.13. Although quasi-criminal in nature, proceedings in juvenile court are considered civil cases; thus, the Texas Supreme Court, rather than this Court, is the court of last resort for such matters. Id. This Court has therefore concluded that it lacks jurisdiction to issue extraordinary writs in juvenile cases, even those initiated by a juvenile offender who has been transferred to the Texas Department of Criminal Justice-Institutional Division (TDCJ) because he is now an adult. In re Hall; 286 S.W.3d 925, 927 (Tex.2009) (citing Ex parte Valle, 104 S.W.3d at 889).
In November of 1991, relator was sentenced to twenty years’ confinement on his murder adjudication. Nine years later, on May 31, 2000, relator was paroled. After approximately eleven years on parole, relator was arrested for DWI on July 20, 2011. Relator pled guilty to the DWI-3rd and was sentenced to three years in TDCJ. *657Subsequently, relator’s parole on the juvenile murder adjudication was revoked. Relator believes he was wrongfully denied street-time credit for the eleven years he spent on parole.
This Court will not review the merits of relator’s claim for street-time credit because we do not have the jurisdiction to do so in a juvenile matter. His proper remedy would be to seek a writ of habeas corpus through the juvenile justice system. The procedure for handling writs of habe-as corpus are not specifically addressed in the juvenile justice portion of the Family Code, but the appeal procedures in that section “do not limit a child’s right to obtain a writ of habeas corpus.” Tex. Fam. Code Ann. § 56.01(o) (West 2014). Except when in conflict with a provision of the Family Code, the Texas Rules of Civil Procedure govern juvenile proceedings. Tex. Fam.Code Ann. § 51.17(a); In re M.R., 858 S.W.2d 365, 366 (Tex.1993). Juveniles may file applications for writs of habeas corpus pursuant to Article V, Section 8, of the Texas Constitution, which gives “District Court judges ... the power to issue writs necessary to enforce their jurisdiction.” Tex. Const, art. V, § 8; see also Ex parte Valle at 890.
Our denial does not preclude relator from filing an application for writ of habe-as corpus pursuant to Article V, Section 8 of the Texas Constitution with the 314th District Court of Harris County. If the 314th District Court does not respond, then relator may seek relief by way of writ of mandamus issuing from the intermediate appellate court. See Tex. Const, art. V, § ■ 6(a).
For the reasons set out above, I concur with this Court’s order denying leave to file. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284169/ | OPINION
J. Brett Busby, Justice
Appellant A. Reagan Clark, individually and as the representative of the estate of his mother, Lois Clark, intervened in an ongoing lawsuit against appellees Conoco-Phillips Company, DCP Midstream, LP, ConocoPhillips Gas Company, and DCP Midstream Marketing, LLC (collectively ConocoPhillips). Clark alleged that Cono-*722coPhillips underpaid royalties it owed him and his mother pursuant to oil and gas leases of their mineral rights in Fort Bend County. ConocoPhillips filed a motion for summary judgment asserting Clark’s claims for underpayment of royalties were barred by the four-year statute of limitations. The trial court granted the motion.
On appeal, Clark asserts in a single issue that the trial court erred in granting ConocoPhillips’s motion for summary judgment because the running of the limitations period was tolled so long as Clark’s claims against ConocoPhillips. were part of a previously filed class-action lawsuit alleging that ConocoPhillips had underpaid royalties. According to Clark, that tolling ended when the Supreme Court of Texas affirmed the decertification of his part of the class, and he timely intervened in the ongoing royalty underpayment lawsuit thereafter. Because we agree with Clark, we sustain his single issue on appeal, reverse the trial court’s summary judgment, and remand this matter to the trial court for further proceedings in accordance with this opinion.
Background
The facts of this case are undisputed and the issue on appeal raises only legal questions. We therefore set out only a brief summary of the facts relevant to the resolution of this appeal.
A. The Clarks sign oil and gas leases.
In 1993, Clark and his mother, Lois Clark, each executed an oil and gas lease to Phillips Petroleum Company1 of mineral interests located in Fort Bend County. ConocoPhillips commenced work on the first Clark well in 1996, the well started producing natural gas in late 1996, and the first sales were reported in January 1997. A second well began production in December 1998.. ConocoPhillips operated the Clark wells and paid royalties through December 2003.
The Clark Leases are two-pronged or hybrid leases because they provide for the payment of a one-sixth royalty on natural gas production based on either the proceeds of sales or the market value of the gas, depending on the point of sale.2 The Clark Leases also contain express marketing provisions.3
B. The Bowden class-action lawsuit is filed.
On February 16, 1999, a class-action lawsuit styled Kathryn Aylor Bowden, et al. v. ConocoPhillips Company, et al., was filed in Fort Bend County, Texas. The Bowden plaintiffs alleged that ConocoPhil-lips had underpaid oil and gas royalties. *723The first class certification motion filed in the Bowden lawsuit sought to certify one class of underpaid royalty owners. The trial court certified a single class with three subclasses of plaintiffs. Clark contends that his claims and those of his mother were included in Subclass 1, which covered those royalty owners whose leases provided for payment on a proceeds or market value basis and whose gas had been sold by Phillips Petroleum Company to Phillips Gas Marketing Company. Co-nocoPhillips filed an interlocutory appeal contesting each certified subclass.
C. The trial court’s first class certification order is reversed.
This Court reversed the trial court’s certification of Subclass 1 because it included the claims of both market-value lessors and proceeds lessors. See Phillips Petroleum Co. v. Bowden, No. 14-00-01184-CV, 2001 WL 1249995, at *5 (Tex.App.-Houston [14th Dist.] Oct. 18, 2001, no pet.) (not designated for publication). The case was remanded to the trial court without prejudice to further consideration of class certification. Id.
D. The trial court certifies the Bow-den subclasses a second time.
Following remand, the Bowden plaintiffs filed an amended motion for class certification asking the trial court to certify new subclasses. The revised Subclass 1, which was certified by the trial court in June 2002, included lessors who were paid royalties based on proceeds of sales.4
E. The second class certification order is reversed.
ConocoPhillips once again filed an interlocutory appeal of the trial court’s class certification order. On May 1, 2003, this Court issued its opinion and judgment reversing the class certification and remanding the case. See Phillips Petroleum Co. v. Bowden, 108 S.W.3d 385, 404 (Tex.App.-Houston [14th Dist.] 2003), aff'd in part, rev’d in part, 247 S.W.3d 690 (Tex.2008). The Bowden plaintiffs petitioned for review by the Supreme Court of Texas. The supreme court granted the petition, heard oral arguments on December 1, 2004, and issued its opinion affirming the decertification of the revised Subclass 1 on February 15, 2008. See Bowden, 247 S.W.3d at 709. The supreme court’s mandate issued on March 28, 2008.
F.Clark intervenes in the remanded Bowden lawsuit.
Following the decertification of revised Subclass 1, Clark intervened in the Bow-den litigation on February 12, 2010. Clark alleged that ConocoPhillips had underpaid royalties for gas produced from the Clark Leases from 1996 through November 2003. The trial court severed Clark’s claims into a separate case.
ConocoPhillips moved for summary judgment on two grounds: (1) Clark’s lawsuit was barred because the statute of limitations had expired prior to his intervention in the Bowden litigation; and (2) the filing of the Bowden class-action suit did not toll the running of limitations because Clark’s claims did not fit within Subclass 1. The trial court granted the motion without specifying the grounds. This appeal followed.
Analysis
In a single issue on appeal, Clark contends the trial court erred when it granted ConocoPhillips’s motion for summary judgment because (1) the running of limitations on his claims against ConocoPhillips was *724tolled by the filing of the Bowden class-action lawsuit; and (2) he timely intervened once that tolling ended.
I. Standard of review
We review a trial court’s order granting a traditional summary judgment de novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex.2007). To prevail on a traditional motion for summary judgment, a movant must prove entitlement to judgment as a matter of law on the issues set out in the motion. Tex.R. Civ. P. 166a(c). When the movant is a defendant, a trial court should grant summary judgment only if the defendant (1) negates at least one element of each of the plaintiffs causes of action, or (2) conclusively establishes each element of an affirmative defense. Primo v. Great Am. Ins. Co., 455 S.W.3d 714, 719-20 (Tex.App.-Houston [14th Dist.] 2014, no pet.).
A defendant moving for summary judgment on the affirmative defense of limitations must conclusively prove that defense as a matter of law. Diaz v. Westphal, 941 S.W.2d 96, 97-98 (Tex.1997). To meet this summary judgment burden, the defendant must conclusively negate any relevant tolling doctrines the plaintiff raised in the trial court. Id. at 98.
II. ConocoPhillips did not conclusively prove its affirmative defense of limitations.
ConocoPhillips asserted in its motion for summary judgment that Clark’s claims were barred by the four-year statute of limitations because they concerned royalties paid between 1997 and 2003 but were not filed until February 2010. Clark responded that his suit was timely because the running of limitations was tolled during the pendency of the Bowden class-action suit filed in February 1999 and de-certified in 2008. In addressing Clark’s tolling argument, ConocoPhillips has not disputed (either in the trial court or on appeal) that the filing of a putative class-action suit in a Texas state court suspends the running of limitations for all purported members of the class. See Grant v. Austin Bridge Co., 725 S.W.2d 366, 370 (Tex.App.-Houston [14th Dist.] 1987, no writ) (citing Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974)). This doctrine, which was first recognized by federal courts applying similar federal class-action rules, is commonly known as American Pipe tolling.
Instead, ConocoPhillips notes that limitations remains tolled only “until class certification is denied,” id. and ConocoPhillips contends that any tolling was too short to render Clark’s claims timely for two reasons. First, ConocoPhillips argues that tolling ceased when the trial court signed its second class certification order in June 2002 because Clark’s claims were not included in revised Bowden Subclass l.5 Second, it argues that even if Clark’s claims were part of revised Subclass 1, any tolling ceased when this Court reversed the certification of the revised subclass in May 2003, not when the supreme court affirmed that reversal and issued its mandate in 2008. We address each argument in turn.
A. The tolling of limitations on Clark’s claims did not cease in June *7252002 because they fit within revised Bowden Subclass 1.
Revised Bowden Subclass 1 consisted of:
Royalty owners who own or owned royalty interests under leáses located in the state of Texas; where Phillips Petroleum Company is the lessee; under the terms of the lease, the payment of royalty of natural gas production is based on proceeds or amount realized; from which Phillips Petroleum produced natural gas (including natural gas liquids) that was directly sold or indirectly sold or transferred to Phillips Gas Marketing for marketing or resale; and during the period February 1995 through the present.
Bowden, 247 S.W.3d at 695. ConocoPhillips contends it has conclusively shown that Clark’s claims were not included in this subclass because the two-pronged Clark Leases based the payment of royalty on either proceeds or market value, and Clark’s expert performed a damage calculation based on market value. Clark responds that his claims challenge Conoco-Phillips’s payment of royalties under the proceeds prong of the Clark Leases based on the amounts realized from its sales to Phillips Gas Marketing, and therefore his claims for underpayment of royalties and breach of marketing obligations fall within revised Subclass 1 regardless of how his damages are calculated. We agree with Clark.
The supreme court observed that many of the leases in revised Subclass 1 — including the leases of the named subclass representatives — contained two-prong gas royalty clauses identical to Clark’s clause. Id. at 699 & n. 2. The putative members of revised Subclass 1 alleged that Conoeo-Phillips failed to market the gas reasonably because it sold the gas to a wholly-owned subsidiary, Phillips Gas Marketing. Id. at 696, 699-700. In addition, Conoco-Phillips recognized in its own motion for summary judgment that revised Bowden Subclass 1 “include[d] royalty owners with gas royalty clauses requiring Phillips to calculate the royalty as a percentage of the proceeds Phillips receives for selling the gas.”
In his own petition, similarly, Clark alleged that ConocoPhillips breached the leases by underpaying royalties because ConocoPhillips based the royalty payments on the proceeds it received from sales to an affiliated company, Phillips Gas Marketing. In Clark’s view, this action violated ConocoPhillips’s duty to market the gas reasonably and diligently. Because Clark’s claims fit within those alleged in revised Subclass 1, we hold that tolling continued as to those claims when revised Subclass 1 was certified. See Bowden, 247 S.W.3d at 696 (“The' revised Subclass 1 only includes claims from royalty owners paid on an amount-realized or proceeds basis and who assert claims for breach of an implied covenant or express covenant to market.”).
B. Tolling ceased when the supreme court affirmed the reversal of revised Subclass 1.
Having determined that American Pipe tolling continued to apply to Clark’s claims following the second class certification, we next consider when “class certification [was] denied” and tolling came to an end. Grant, 725 S.W.2d at 370. ConocoPhillips contends that tolling ended when this Court issued its opinion and judgment reversing the certification of revised Subclass 1 in May 2003. See Bowden, 108 S.W.3d at 404. We disagree.
ConocoPhillips brought an interlocutory appeal of the trial court’s second class certification order. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(3) (West 2011). *726Our appellate rules provide that “[t]he appellate court’s judgment on an appeal from an interlocutory order takes effect when the mandate is issued.” Tex.R.App. P. 18.6. Our court never issued its mandate reversing the certification of revised Subclass 1 because the Bowden plaintiffs filed a petition for review that the supreme court granted. See Tex.R.App. P. 18.1(a). Thus, our May 2003 judgment reversing the certification of revised Subclass 1 did not take effect, and we hold class certification was not denied for tolling purposes at that time. Rather, class certification was denied and tolling ended when the supreme court affirmed this portion of our Court’s judgment in 2008.6
In arguing against this result, Conoco-Phillips cites federal appellate decisions holding that tolling ends when a federal district court denies class certification. In these decisions, courts reason that even if the named plaintiffs (as putative class representatives) seek permission to appeal that denial, the court of appeals might choose not to permit an appeal, and in any event it is no longer reasonable after the denial for unnamed class members to rely on the named plaintiffs to protect their interests.7
These cases are distinguishable because unlike in the federal system, interlocutory orders of Texas courts granting or denying class certification are appeal-able as of right. Tex. Civ. Prac. <& Rem. Code Ann. § 51.014(a)(3). Moreover, the trial court in this case granted class certification. As the Fifth Circuit has recognized, once a class has been certified, “members of the certified class may continue to rely on the class representative to. protect their interests through the entire prosecution of the suit, including appeal.” Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 520-21 (5th Cir.2008); see also id. at 517 (discussing “the bedrock premise that a party who sues on a cause of action tolls the statute of limitations during the entire prosecution of the action, including the prosecution of any appeal; otherwise, a plaintiff could not count on an appeal to protect his or her rights”). A contrary rule would require certified class members to intervene or file individual suits while the appeal was pending, leading to the “ ‘needless multiplicity of actions’ ” that tolling was intended to prevent and “ignoring] the intended benefit of certification— efficient representation of a class of claimants.” -Id., at 521 (quoting Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 351, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983)).
ConocoPhillips also points to two federal district court decisions holding that tolling ceased when the court of appeals issued its judgment reversing a district court’s class certification order. According to these decisions, plaintiffs no longer had reason to rely on the named plaintiffs to advance their claims once the court of appeals issued its judgment, and the subsequent issuance of the mandate was merely a formality.8 Another federal district court has disagreed, concluding that once a class is *727certified, tolling continues through all appellate proceedings until the case is returned to the district court by way of a mandate reversing class certification.9
We conclude that the federal district court decisions ConocoPhillips cites are likewise not on point given the differences between state and federal appellate procedure. In the federal system, a court of appeals issues its mandate following the denial of any rehearing and does not await the possibility of review by the Supreme Court of the United States unless a special stay is sought. See Fed. R.App. P. 41. As discussed above, however, Texas has an express rule that the judgment of a court of appeals hearing an interlocutory appeal only takes effect when the mandate issues, and the mandate need not issue while a party seeks review in the Supreme Court of Texas. See Tex.RApp. P. 18.1(a), 18.6. Thus, when a Texas court of appeals issues a judgment reversing a class certification order but has not yet issued its mandate, and the class representatives seek supreme court review, we hold it is reasonable for unnamed plaintiffs reading the plain language of these Texas rules to continue relying on their class representatives to protect their interests.
Indeed, this case showed that such reliance was well founded because the class representatives persuaded the supreme court to reverse this Court’s judgment de-certifying revised Subclass 2. See Bowden, 247 S.W.3d at 708. If ConocoPhillips were correct that tolling ended when this Court issued its judgment in May 2003, thousands of unnamed subclass members could protect their rights only by intervening in the trial court or filing their own new lawsuits and by pursuing their separate claims over the years that the certification issue was pending before the supreme court, only to abandon those claims if the supreme court reinstated the certification of subclasses in which they still wished to participate. Such a proliferation of suits and accompanying waste of party and judicial resources is the very result that the tolling doctrine was designed to prevent. Taylor, 554 F.3d at 521; see Crown, Cork & Seal, 462 U.S. at 350-51, 103 S.Ct. 2392; American Pipe, 414 U.S. at 553-54, 94 S.Ct. 756 (observing that “a rule requiring successful anticipation of the determination of the viability of the class would breed needless duplication of motions” to intervene and “would deprive ... class actions of the efficiency and economy of litigation which is a principal purpose of the procedure”).
Decisions on tolling should “balance the competing interests of class action litigation (efficiency and economy)” against “those of statutes of limitation (protection against stale claims).” Odie, 747 F.3d at 320. As we have explained, continuing tolling through supreme court review promotes efficiency and economy. In addition, the filing of the class action provided ConocoPhillips with stale-claim protection by giving it notice of the claims Clark raises and the general identities of the plaintiffs who had such claims, allowing it to preserve relevant evidence and witnesses. See Crown, Cork & Seal, 462 U.S. at 352-53, 103 S.Ct. 2392. ConocoPhillips contends that the length of tolling is abusive and that allowing Clark’s individual claims disturbs society’s interest in repose. But it is ConocoPhillips that for many years fought against class-based resolution of these claims; the result of its success is that it must now defend timely individual lawsuits alleging those same claims. Odie, 747 F.3d at 323 n. 45; see Crown, Cork & Seal, 462 U.S. at 353, 103 S.Ct. 2392 (“[A]l-though a defendant may prefer not to de*728fend against multiple actions in multiple forums once a class has been decertified, this is not an interest that statutes of limitations are designed to protect.”).
C. Clark timely intervened after tolling ceased.
Finally, we turn to the question whether Clark timely intervened after the supreme court’s affirmance of this Court’s judgment decertifying revised Subclass 1 brought tolling to an end. We conclude that he did so.
The limitations period governing underpayment of royalty claims is four years — or at least 1,460 days10 — from the date the claim accrues. See Houston Endowment Inc. v. Atlantic Richfield Co., 972 S.W.2d 156, 159 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (applying four-year breach-of-contract statute of limitations to case involving payment of oil and gas royalties). Unless addressed by the lease, a claim regarding underpayment of royalties accrues ninety days after the end of the calendar month in which the produced gas is sold. See Tex. Nat. Res.Code Ann. § 91.402(a)(2) (West 2011).
Using this accrual rule, there is no dispute that Clark’s earliest claim accrued on April 1, 1997. A total of 687 days had passed when the Bowden class-action lawsuit was filed on February 16, 1999, tolling the running of the limitations period. The running of limitations remained tolled at least until February 15, 2008, the day the supreme court issued its opinion and judgment finally rejecting the trial court’s certification of revised Subclass 1. See supra at 9 n. 6; Grant, 725 S.W.2d at 370. Clark intervened in the Bowden litigation 728 days later on February 12, 2010. Thus, a total of 1,415 days had passed between the accrual of Clark’s earliest potential claim and Clark’s intervention.
Because the four-year limitations period had not yet run on Clark’s earliest possible claim at the time of his intervention, we hold the trial court erred when it granted ConocoPhillips’ motion for summary judgment on its limitations defense. We sustain Clark’s single issue on appeal.
Conclusion
Having sustained Clark’s issue on appeal, we reverse the judgment of the trial court and remand this case to the trial court for further proceedings consistent with this opinion.
. Phillips Petroleum Company merged with Conoco, Inc., and ConocoPhillips is the successor entity.
. The specific royalty clause provides:
As royalty, lessee covenants and agrees: .... [t]o pay lessor on gas and casinghead gas produced from said land (1) when sold by lessee, [one-sixth] of the amount realized by lessee, computed at the mouth of the well, or (2) when used by said lessee off said land or in the manufacture of gasoline or other products, the market value, at the mouth of the well, of [one-sixth] of such gas and casinghead gas.
.The express marketing provision provides:
Lessee covenants and agrees to use reasonable diligence to produce, utilize, or market the minerals capable of being produced from said wells, but in the exercise of such diligence, lessee shall not be obligated to install or furnish facilities other than well facilities and ordinary lease facilities of flow lines, separator, and lease tank, and shall not be required to settle labor trouble or to market gas upon terms unacceptable to lessee.
. The trial court again certified three subclasses. It is undisputed however, that Clark’s claims do not fit within either Subclass 2 or Subclass 3. We therefore need not further address those subclasses.
. ConocoPhillips did not argue in its motion for summary judgment, and has not argued on appeal, that American Pipe tolling ended when this Court issued its 2001 opinion rejecting the trial court’s first class certification order. See Bowden, 2001 WL 1249995, at *1; cf. Odie v. Wal-Mart Stores, Inc., 747 F.3d 3.15, 320-23 (5th Cir.2014) (holding American Pipe tolling continued when court of appeals reversed district court’s class certification but remanded for further proceedings on certification as to subclass that included plaintiff).
. We need not decide whether American Pipe tolling ended when the supreme court issued its opinion and judgment on February 15, 2008, or when the supreme court issued its mandate on March 28, 2008. As explained below, Clark's claims are timely using either date.
. See Fed.R.Civ.P. 23(f); Hall v. Variable Annuity Life Ins. Co., 727 F.3d 372, 375-6 (5th Cir.2013); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1380-85 (11th Cir.1998) (enbanc) (collecting cases).
.See Kelly v. Capital One, N.A., 717 F.Supp.2d 805, 807-08 (E.D.Wis.2010); Davis v. U.S. Steel Corp., 528 F.Supp. 220, 221-22 (E.D.Pa.1981).
. In re Initial Pub. Offering Sec. Litig., 617 F.Supp.2d 195, 199 n. 20 (S.D.N.Y.2007).
. The limitations period may be longer if it includes any leap days. In this case, the limitations period was running during one leap day (February 29, 2008) if tolling ended when the supreme court issued its opinion and judgment on February 15, 2008, but not if tolling ended when the supreme court issued its mandate on March 28, 2008. See supra at 9 n. 6. We need not decide when tolling ended, however. As explained above, Clark's claims are timely even if tolling ended on the earlier judgment date and the limitations period was 1,461 days (including one leap day). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284170/ | OPINION
Kem Thompson Frost, Chief Justice
This case involves an appeal from a juvenile court’s order requiring a person who had been found to have committed aggravated sexual assault as a juvenile to privately register as a sex offender under article 62.352(b)(2) of the Texas Code of Criminal Procedure. We affirm the trial court’s order requiring private registration. We conclude that we lack appellate jurisdiction over a subsequent order of the trial court.
I. Factual and Procedural Background
Appellant R.A. was alleged to have engaged in delinquent conduct by committing the offenses of aggravated sexual assault and indecency with a child. At the time of these offenses, R.A. was fourteen years old and the victim was six years old. R.A. stipulated to the truth of the allegations in the petition. In March 2008, when R.A. was fifteen years old, the trial court, sitting as a juvenile court (hereinafter the “Juvenile Court”), signed an adjudication order in which it found that R.A. had engaged in delinquent conduct. On the same day, after a disposition hearing, the trial court signed a disposition order in which the Juvenile Court found that R.A. was in need of rehabilitation and that the protection of the public and of R.A. required a disposition to be made. The Juvenile Court placed R.A. on probation for two years, subject to various conditions.
On the same day the Juvenile Court signed the disposition order, the Juvenile Court also signed an “Order Deferring Sex Offender Registration:” In this order, the Juvenile Court deferred its decision as to whether R.A. should be required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure.1 The Juvenile Court stated that the period of deferment would expire upon R.A.’s completion of probation or release or parole by the Texas Youth Commission.2 The record indicates that R.A.’s probation ended in March 2010, when he was seventeen years old.
. In October 2010, the State filed a motion in which it requested that the Juvenile Court order R.A. to register as a sex offender pursuant to subchapter H of Chapter 62. The State asserted that registration protects the public and that any potential increase in protection of the public resulting from registration of R.A. is not clearly outweighed by the anticipated substantial harm to R.A. and R.A.’s family resulting from registration. R.A. objected *732to and opposed the State’s motion, asserting that the Juvenile Court’s jurisdiction over R.A. ended when he completed probation in March 2010, and that the State waived its right to request registration by failing to request an order requiring registration until seven and a half months after R.A. completed probation.
The Juvenile Court held a hearing on the State’s motion in February 2011. At the hearing, the State called as witnesses R.A.’s probation officer, the probation department’s psychology supervisor, and a therapist who ran a treatment group that R.A. attended. The probation department recommended that R.A. be required to register. R.A. called as witnesses his mother, grandmother, grandfather, and his private therapist. His relatives testified that he had made marked improvements in his behavior and that registration would be harmful. His therapist testified that R.A. had made lots of changes and that he was not a threat to society. His therapist recommended that he not be required to register.
In June 2011, when R.A. was eighteen years old, the Juvenile Court signed an order in which it found as follows:
• The protection of the public would be increased by R.A. registering under Chapter 62;
• Any potential increase in protection of the public resulting from registration of R.A. is not clearly outweighed by any anticipated substantial harm to R.A. and R.A.’s family that would result from registration under Chapter 62;
• R.A. did not successfully participate in or complete the required sex-offender-treatment program; and
• The interests of the public require R.A. to register as a sex offender under Chapter 62.
The Juvenile Court ordered that R.A. register as a sex offender under Chapter 62 and that this sex-offender registration be private. In addition, the trial court ordered that “said registration shall be reconsidered by this Court 12 months from the date of this Order.” R.A. appealed this order (the “First Order”), generating this appeal.3
While R.A.’s appeal was pending in this court, the trial court, acting sua sponte, held a hearing to consider whether it should change the registration requirement in the First Order. The second hearing occurred in March 2013, twenty months after the Juvenile Court signed the First Order. In April 2013, when R.A. was twenty years old, the Juvenile Court signed an order (the “Second Order”) in which the court ordered R.A. to continue to register privately as a sex offender. R.A. has not filed a notice of appeal from the Second Order.
Before the Juvenile Court issued the Second Order, this court granted the State and R.A.’s request that this appeal be abated pending the trial court’s second hearing and order, given that the Second Order might moot this appeal. After the trial court signed the Second Order, this appeal was reinstated. The State and R.A. have filed supplemental briefing. In his supplemental briefing, R.A. continues to assert his prior challenges to the First Order. In addition, R.A. challenges the Second Order, arguing that the Juvenile Court abused its discretion in admitting certain evidence at the second hearing and in ordering that R.A. continue with the private sex-offender registration.
*733I. Jurisdiction
Before addressing R.A.’s issues, we first must address this court’s jurisdiction over the appeal. R.A. filed a notice of appeal in June 2011. Two days later, the trial court signed the First Order. In that order, the trial court stated that in twelve months it would reconsider its order requiring private registration by R.A. Consistent with this statement, the trial court, acting sua sponte, held a hearing in March 2013, to consider whether it should change the registration requirement in the First Order. In April 2013, the trial court signed the Second Order, declining to change the registration requirement in the 'First Order. Neither R.A. nor the State filed a notice of appeal from the Second Order.
A. Appellate Jurisdiction over the First Order
R.A. asserts that the Juvenile Court lacked jurisdiction over the First Order. If the Juvenile Court lacked jurisdiction over the First Order, this court lacks jurisdiction over this appeal from the First Order. See Curry v. Harris County Appraisal District, 434 S.W.3d 815, 820 & n. 2 (Tex.App.—Houston [14th Dist.] 2014, no pet.). A juvenile adjudicated of delinquent conduct based on the offense of aggravated sexual assault or the offense of indecency with a child generally is required to register as a sex offender. See Tex. Code Crim. Proc. Ann. arts. 62.001(5), 62.051 (West, Westlaw through 2013 3d C.S.). But, the person adjudicated of such delinquent conduct may move the juvenile court in which he was adjudicated for an exemption from the registration requirement. Tex. Code Crim. Proc. Ann. art. 62.351(a) (West, Westlaw through 2013 3d C.S.). If such a motion is filed, the juvenile court shall conduct a hearing to determine whether the interests of the public require registration under Chapter 62. Tex. Code Crim. Proc. Ann. art. 62.351(a) (West, Westlaw through 2013 3d C.S.). After such a hearing, the juvenile court shall enter an order exempting the movant from registration under Chapter 62 if the court determines that (1) the protection of the public would not be increased by registration of the movant under this chapter; or (2) any potential increase in protection of the public resulting from registration of the respondent is clearly outweighed by the anticipated substantial harm to the movant and the movant’s family that would result from registration under Chapter 62. Tex. Code Crim. Proc. Ann. art. 62.352(a) (West 2006). After this hearing, the juvenile court also may enter an order in which the court (1) defers a decision on requiring registration under Chapter 62 until the movant has completed treatment for the movant’s sexual offense as a condition of probation or while committed to the Texas Youth Commission; or (2) requires the movant to register as a sex offender but provides that the registration information is not public information and is restricted to use by law enforcement and criminal justice agencies, the Council on Sex Offender Treatment, and public or private institutions of higher education. See id. art. 62.352(b).
If the juvenile court enters an order in which it defers a decision on requiring registration, the court retains discretion and jurisdiction to require, or exempt the movant from, registration under Chapter 62 “at any time during the treatment or on the successful or unsuccessful completion of the treatment,” except that during the period of deferral, registration may not be required. Id. art. 62.352(c). Following successful completion of treatment, the movant is exempted from registration under this chapter unless a hearing under this subchapter is held on motion of the state, regardless of whether respondent is eighteen years of age or older, and the *734court determines the interests of the public require registration. See id. On the same day the Juvenile Court signed the disposition order, the Juvenile Court also signed a deferral order, stating that the State and R.A. both agreed that the court should defer its decision as to whether R.A. should be required to register as a sex offender under Chapter 62 until after R.A. had participated in or completed a sex-offender treatment program while on court-ordered probation. The Juvenile Court deferred its decision as to whether R.A. should be required to register as a sex offender under Chapter 62 until R.A. had participated in or completed a sex-offender treatment program while on probation or while committed to the Texas Youth Commission, if ever so committed. The Juvenile Court stated that the period of deferment would expire upon R.A.’s completion of probation or release or parole by the Texas Youth Commission. In the order, the Juvenile Court also stated that it retained discretion to require or excuse registration at any time during the treatment program or upon its successful or unsuccessful completion. We conclude that the trial court had jurisdiction to render this order, which was a valid order under article 62.352(b)(1), in which the Juvenile Court deferred consideration of this issue until R.A.’s completion of probation or release or parole by the Texas Youth Commission. Id. art. 62.352(b)(1). R.A. was not committed to the Texas Youth Commission, and the record indicates that he completed probation in March 2010. R.A. does not contend otherwise; rather, he argues that the Juvenile Court lost jurisdiction because the State did not move the Juvenile Court to decide whether R.A. should be required to register as a sex offender under Chapter 62 until seven and a half months after R.A. completed probation and the deferral period ended.
We conclude that the State filed its motion under article 62.352(c). Id. art. 62.352(b)(1). We now address whether the Juvenile Court had jurisdiction to rule on this motion and to decide whether R.A. should be required to register as a sex-offender under Chapter 62 in June 2011, more than fifteen months after R.A. completed probation and after R.A. had turned eighteen years old.
Before we address this specific issue, we consider the decision of the Supreme Court of Texas in In re N.J.A. and general principles regarding the jurisdiction of a juvenile court. See In re N.J.A., 997-S.W.2d 554 (Tex.1999). In In re N.J.A., the high court concluded that a juvenile court is not a court of general jurisdiction. See id. at 555. The N.J.A. court construed the version of Family Code section 54.05(b) that was applicable to that case to mean that a juvenile court lacked jurisdiction to conduct a disposition or adjudication hearing after the respondent is eighteen years old. See id. The N.J.A. court concluded that, when a respondent turns eighteen, the juvenile court’s jurisdiction is limited to transferring the case to the appropriate district court or criminal district court or dismissing the case. See id. at 555-56. The N.J.A. court did not address Family Code section 51.042, which then, as now, provided that if a child does not object to the juvenile court’s lack of jurisdiction due to the child’s age at the adjudication hearing or discretionary-transfer hearing, the child waives the right to object to the juvenile court’s lack of jurisdiction based on the child’s age at a later hearing, or on appeal. See id. The In re N.J.A. court held that, because the respondent in that case turned eighteen before the disposition hearing, the juvenile court’s jurisdiction was limited to transferring the case to the appropriate district court or criminal district court or to dismissing the case but that the court lacked jurisdiction *735to render an adjudication or disposition order. See id.
It might appear that the In re N.J.A. court concluded that once a respondent turns eighteen, the juvenile court only has jurisdiction to transfer the case to the' appropriate district court or criminal district court or to dismiss the case. See id. The better reading of this precedent, however, is that the high court concluded that (1) juvenile courts are courts of limited jurisdiction, rather than general jurisdiction; (2) therefore, their jurisdiction must be based on an applicable statute; and (3) under the statutes applicable in In re N.J.A., the juvenile court only had jurisdiction to transfer the case to the appropriate district court or criminal district court or to dismiss the case. See id.
Subsequent cases support this view of In re N.J.A. See In re B.R.H., 426 S.W.3d 163, 166-68 (Tex.App.—Houston [1st Dist.] 2012, orig. proceeding); In re T.A.W., 234 S.W.3d 704, 705 (Tex.App.—Houston [14th Dist.] 2007, pet. denied). In In re T.A.W., the adjudication hearing did not begin until after the respondent had turned eighteen. See In re T.A.W., 234 S.W.3d at 705. This court cited In re N.J.A. for the proposition that, although a juvenile court does not lose jurisdiction when a juvenile turns eighteen, such jurisdiction is generally limited to either transferring the case under Family Code section 54.02(j) or dismissing the case. See id. Although the juvenile court in In re T.A.W. conducted the adjudication hearing after the respondent had turned eighteen, this court did not conclude, as the In re N.J.A. court did, that the juvenile court lacked jurisdiction to conduct an adjudication hearing or render an adjudication order; rather, this court affirmed the trial court’s adjudication order after concluding that the respondent had waived any objection to the trial court’s lack of jurisdiction by failing to object at the adjudication hearing, as required by Family Code section 51.042. See Tex. Family Code Ann. § 51.042 (West, Westlaw through 2013 3d C.S.). Thus, the In re T.A.W. court interpreted In re N.J.A. as requiring that the applicable statutes be construed to determine whether the trial court’s order could be reversed for lack of jurisdiction. See In re T.A.W., 234 S.W.3d at 705.
Likewise, in In re B.R.H., the court of appeals held that the juvenile court did not abuse its discretion in refusing to dismiss, and retaining for adjudication, a petition alleging delinquent conduct against a respondent who had turned eighteen. See In re B.R.H., 426 S.W.3d at 166-68. The court based its ruling on Family Code section 51.0412, which was enacted after In re N.J.A. was decided. See Tex. Family Code Ann. § 51.0412 (West, Westlaw through 2013 3d C.S.) (providing that a juvenile court retains jurisdiction over a person, without regard to the age of the person, who is a respondent in an adjudication proceeding, a disposition proceeding, a proceeding to modify disposition, a proceeding for waiver of jurisdiction and transfer to criminal court under section 54.02(a), or a motion for transfer of determinate sentence probation to an appropriate district court under certain • circumstances). The In re B.R.H. court correctly concluded that to the extent In re N.J.A. indicates that a juvenile court lacks jurisdiction to conduct a disposition or adjudication hearing that falls within the scope of section 51.0412 after the respondent turns eighteen, Family Code section 51.0412 supersedes that decision. See Tex. Family Code Ann. § 51.0412; In re B.R.H., 426 S.W.3d at 167.
A juvenile adjudicated of delinquent conduct based on one of the offenses listed in article 62.001(5) (including the offenses of aggravated sexual assault and indecency *736with a child) is required to register as a sex offender unless exempted from registration under subchapter H of Chapter 62. See Tex. Code Crim. Proc. Ann. arts. 62.001(5), 62.051, 62.351 et seq. Under Texas Family Code section 54.05(a), various dispositions, including R.A.’s disposition, may not be modified on or after the child’s eighteenth birthday. See Tex. Family Code Ann. § 54.05(a), 54.05(a) (West, Westlaw through 2013 3d C.S.). Under Texas Family Code section 54.05(b), various dispositions, including R.A.’s disposition, automatically terminate on the child’s eighteenth birthday. See Tex. Family Code Ann. § 54.05(b). Nonetheless, the duty to register as a sex offender arises from Chapter 62, and R.A.’s duty to register or any exemption therefrom is not part of the disposition that terminated on R.A.’s eighteenth birthday.4
Though it may be unusual for the Legislature to expand the jurisdiction of a juvenile court by enacting new provisions of the Code of Criminal Procedure, that is what has occurred in subchapter H of Chapter 62. See Tex. Code Crim. Proc. Ann. art. 62.351 et seq.; In re J.M., 2011 WL 6000778, at *1-3. The Legislature enacted these statutes after the Supreme Court of Texas’s decision in In re N.J.A. See In re N.J.A., 997 S.W.2d at 555-56. Thus, if the Juvenile Court acted under the authority of article 62.352 when it issued the First Order, the Juvenile Court had jurisdiction to do so. See Tex. Code Crim. Proc. Ann. art. 62.352; In re J.M., 2011 WL 6000778, at *1-3. To the extent In re N.J.A. indicated that after the respondent turns eighteen, a juvenile court lacks jurisdiction to determine whether a respondent should be required to register as a sex offender, subchapter H of Chapter 62 has superseded that decision. See Tex. Family Code Ann. § 51.0412; In re B.R.H., 426 S.W.3d at 167. To the extent subchapter H of Chapter 62 provides the juvenile court authority to act and In re N.J.A. indicates that the juvenile court lacks jurisdiction because the respondent is eighteen or older, subchapter H of Chapter 62 has superseded In re N.J.A. See Tex. Code Crim. Proc. Ann. art. 62.351 et seq.; In re B.R.H., 426 S.W.3d at 167; In re J.M., 2011 WL 6000778, at *1-3.
Thus, we must determine whether the Juvenile Court acted under the authority of article 62.352. This statute provides in pertinent part as follows:
*737(b) After a hearing under Article 62.851 or under a plea agreement described by Article 62.355(b), the juvenile court may enter an order:
(1) deferring decision on requiring registration under this chapter until the respondent has completed treatment for the respondent’s sexual offense as a condition of probation or while committed to the Texas Juvenile Justice Department; or
(2) requiring the respondent to register as a sex offender but providing that the registration information is not public information and is restricted to use by law enforcement and criminal justice agencies, the Council on Sex Offender Treatment, and public or private institutions of higher education.
(c) If the court enters an order described by Subsection (b)(1), the court retains discretion and jurisdiction to require, or exempt the respondent from, registration under this chapter at any time during the treatment or on the successful or unsuccessful completion of treatment, except that during the period of deferral, registration may not be required. Following successful completion of treatment, the respondent is exempted from registration under this chapter unless a hearing under this subchapter is held on motion of the prosecuting attorney, regardless of whether the respondent is 18 years of age or older, and the court determines the interests of the public require registration. Not later than the 10th day after the date of the respondent’s successful completion of treatment, the treatment provider shall notify the juvenile court and prosecuting attorney of the completion.
Tex. Code Crim. Proc. Ann. art. 62.352. We review the trial court’s interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989). In construing a statute, our objective is to determine and give effect to the Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. *v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the Legislature chose. See id.
Under the unambiguous language of article 62.352(c), the Juvenile Court had discretion and jurisdiction to require,' or exempt R.A. from registration under Chapter 62 “on the successful or unsuccessful completion of treatment.” Tex. Code Crim. Proc. Ann. art. 62.352. The statute provides that, following successful completion of treatment, the respondent is exempted from registration as a sex offender unless a hearing under subchap-ter H of Chapter 62 is held on the motion of the prosecuting attorney. See id. Though article 62.352(c) provides jurisdiction to the juvenile court to require registration or exempt from registration on the successful or unsuccessful completion of treatment, the statute does not mention a presumed outcome or motion by the State if the respondent unsuccessfully completes treatment. See id. Nonetheless, a sister court has held that, even if the respondent unsuccessfully completes treatment, the State still may move for a hearing under article 62.352(c) and the juvenile court still may require registration under this statute. In re J.M., 2011 WL 6000778, at *1-3. We agree that, *738even if R.A. unsuccessfully completed treatment, the State still may move for a hearing under article 62.352(c) and the juvenile court still may require registration under this statute. See Tex. Code Crim. Proc. Ann. art. 62.352(c); In re J.M., 2011 WL 6000778, at *1-3.
On appeal, R.A. asserts that he successfully completed treatment and that under article 62.352(c) he was exempted from registration as a sex offender unless a hearing was held on motion of the prosecuting attorney. According to R.A, he successfully completed treatment on March 14, 2010. The State did not move for a hearing until October 29, 2010, seven and a half months later. R.A. asserts that the State’s motion had to be filed “very soon after” March 14, 2010, for the Juvenile Court to have jurisdiction under article 62.352(c). Because seven and a half months later is not “very soon after,” R.A. claims that the Juvenile Court no longer could exercise jurisdiction.
In the First Order, the Juvenile Court specifically found that R.A. “did .not successfully participate in and/or complete the required sex-offender treatment program.” R.A. has not challenged this finding on appeal. Even so, we need not decide whether R.A. successfully completed treatment because we conclude that, whether or not R.A. successfully completed treatment, the State still had the ability to file a motion requesting a hearing on the issue of whether R.A. should be required to register as a sex offender. See Tex. Code Crim. Proc. Ann. art. 62.352(c); In re J.M., 2011 WL 6000778, at *1-3.
As to the seven-and-a-half-month delay by the State in moving for a hearing, the interests of R.A. and of the public are best served by a motion by the State either during treatment or promptly thereafter. ' Nonetheless, the statute does not provide a specific deadline for the State to file a motion or for a hearing to be held. We conclude that the seven-and-a-half month delay did not cause the Juvenile Court to lose jurisdiction to determine whether R.A. should be required to register as a sex offender. See Tex. Code Crim. Proc. Ann. arts. 62.351, 62.352(c); In re J.M., 2011 WL 6000778, at *1-3 (holding that juvenile court had jurisdiction to require respondent to register privately as a sex offender, in case in which State did not file motion for hearing until four and a half months after respondent unsuccessfully completed treatment). We conclude that, under articles 62.351 and 62.352(c) the Juvenile Court had jurisdiction to determine whether R.A. should be required to register as a sex offender and whether this registration should be public or private. See Tex. Code Crim. Proc. Ann. arts. 62.351, 62.352(c); In re J.M., 2011 WL 6000778, at *1-3.
The State has suggested that the appeal from the First Order may have become moot due to the issuance of the Second Order. As we explain below, the Second Order did not supersede the First Order. A determination by this court that the Juvenile Court erred in requiring R.A. to register privately as a sex offender would have a direct effect on R.A.’s potential criminal liability for failing to register. See Tex. Code Crim. Proc. Ann. arts. 62.102 (West, Westlaw through 2013 3d C.S.). R.A.’s appeal from the First Order is not moot.
B. Appellate Jurisdiction over the Second Order
At the hearing in which the trial court issued the First Order, the Juvenile Court indicated it would revisit the issue in a year. Then, in the First Order, the Juvenile Court stated that its registration order would be “reconsidered” twelve months from the date of the First Order. *739R.A. timely appealed from the First Order. While R.A.’s appeal was pending in this court, the trial court, acting sua sponte, held a hearing to consider whether it should change the registration requirement in the First Order. The second hearing occurred in March 2018, twenty months after the Juvenile Court signed the First Order. In April 2013, the Juvenile Court signed the Second Order, in which the court ordered R.A. to continue to register privately as a sex offender. Before the Juvenile Court issued the Second Order, this court granted the State’s and R.A.’s request to abate this appeal pending the trial court’s second hearing and order. R.A. has not filed a notice of appeal from the Second Order. After the trial court signed the Second Order, this court reinstated the appeal. A supplemental record relating to the Second Order has been filed with this court, and this court ordered the parties to file supplemental briefing.
RA. filed a supplemental brief asserting issues challenging the Second Order. In its supplemental brief, the State questions whether this court has appellate jurisdiction to review the Second Order. R.A. asserts that this court has jurisdiction over the Second Order because he prematurely filed a notice of appeal or because the Second Order is a modification of the First Order under Texas Rule of Appellate Procedure 27.3.
R.A. argues that he did not need to file a second notice of appeal because his appeal from the First Order was a timely appeal of a final order. In the context of the procedures provided in subchapter H of Chapter 62, the First Order was a final order in which the Juvenile Court actually disposes of all claims and parties then before the court. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192, 200 (Tex.2001) (providing that a judgment that issues without a conventional trial is final for purposes of appeal if it actually disposes of all claims and parties then before the court or states with unmistakable clarity that it is a final judgment). R.A. timely appealed from the First Order, and this court has jurisdiction over this appeal and R.A.’s challenges to the First Order.5
R.A. asserts that, if the First Order is interlocutory, then R.A. filed an effective premature notice of appeal under Texas Rule of Appellate Procedure 27.1(a), but the First Order is a final order and R.A. filed a notice of appeal from the First Order, not the Second Order. Though R.A. perfected an appeal from the First Order by filing a premature notice of appeal under Rule 27.1(a) two days before the Juvenile Court rendered the First Order, we cannot construe this notice of appeal as a premature notice of appeal from the Second Order, which the trial court rendered twenty-one months later. See Tex. R. App. P. 27.1(a).
Texas Rule of Appellate Procedure 27.3 provides:
After an order or judgment in a civil case has been appealed, if the trial court modifies the order or judgment, or if the trial court vacates the order or judgment and replaces it with another ap-pealable order or judgment, the appellate court must treat the appeal as from the subsequent order or judgment and *740may treat actions relating to the appeal of the first order or judgment as relating to the appeal of the subsequent order or judgment. The subsequent order or judgment and actions relating to it may be included in the original or supplemental record. Any party may nonetheless appeal from the subsequent order or judgment.
Tex. R. App. P. 27.3. In the Second Order, the trial court found that the interests of the public required that R.A. continue to register privately as a sex offender under Chapter 62 and that R.A.’s Texas Juvenile Sex Offender Risk Assessment, previously determined to be “high risk,” should be reduced to “moderate risk.” In the Second Order, the Juvenile Court then ordered that R.A. continue to register privately as a sex offender under Chapter 62 and that R.A.’s Texas Juvenile Sex Offender Risk Assessment should be reduced to “moderate risk.”
The Second Order did not vacate or replace the Juvenile Court’s First Order, nor did the Second Order modify the First Order. In the Second Order, the Juvenile Court evaluated whether or not the interests of the public required that R.A. continue to register privately as a sex offender at the time of the Second Order. The Juvenile Court did not address whether the interests of the public required that R.A. register privately as a sex offender at the time of the First Order or whether the First Order should be modified, vacated, or replaced. In the First Order, the trial court ordered R.A. to register privately as a sex offender under Chapter 62 and did not address R.A.’s Texas Juvenile Sex Offender Risk Assessment. In the Second Order, the trial court ordered R.A. to continue to register privately as a sex offender under Chapter 62 and reduced R.A.’s Texas Juvenile Sex Offender Risk to “moderate risk.” Though the trial court may have modified R.A.’s risk assessment, that risk assessment was not contained in the First Order; therefore, the order reducing the risk assessment did not modify the First Order. Because the Juvenile Court did not modify, vacate, or replace the First Order in the Second Order, we conclude that this court does not have jurisdiction over the Second Order under Rule 27.3. See Tex. R.App. P. 27.3. Because no notice of appeal has been filed from the Second Order and because there is no other basis for this court to exercise appellate jurisdiction, we conclude that we lack appellate jurisdiction over the Second Order and R.A.’s issues challenging that order.6 See Overka v. Bauri, No. 14-06-00083-CV, 2006 WL 2074688 at’ *1 (Tex.App. — Houston [14th Dist.] Jul. 27, 2006, no pet.) (mem.op.).
III. Issues and Analysis
A. Did the trial court reversibly err in connection with the First Order?
In his first issue, R.A. asserts that the First Order should be reversed because the trial court committed procedural errors sufficient to cause an improper registration order. Under this issue, R.A. argues that the trial court conducted the hearing on the State’s motion in contravention of the plea agreement between R.A. and the State, and that the Juvenile Court erred in denying his request to withdraw the plea. An appellate court reviews a respondent’s challenge of an order requiring registration as a sex offender for procedural error and an abuse of discretion. See Tex. Crim. Proc. Code Ann. art. 62.357(b) (West, Westlaw through 2013 3d C.S.).
*741
1. Did the trial court err in conducting the hearing in contravention of the plea agreement between the State andR.A.?
R.A. argues that he had an “agreed stipulation and plea agreement” with the State that limited the period of decision making on registration to the time R.A. was in treatment and during probation. According to R.A., the plea agreement exempted him from registration unless the State brought a motion to require registration within this time period. R.A. relies on the language in the court’s order deferring registration to support his argument. He does not reference any other plea agreement and our record does not contain a separate plea agreement.
The court’s order states in pertinent part:
[The State and R.A.] presently agreed to DEFER the issue of whether R.A. should be required to register as a sex offender pursuant to Chapter 62 of the Texas Code of Criminal Procedure until after such time as Respondent has participated in and/or completed a sex offender treatment program while on Court Ordered probation. Such parties further agreed that said deferment ends upon the completion of the child’s probation or the child’s release and/or parole by the Texas Youth Commission, if ever so committed.
The record reflects that R.A. and the State agreed to defer the issue of whether R.A. should be required to register as a sex offender pursuant to Chapter 62 until after such time as R.A. had participated in or completed a sex-offender treatment program while on court-ordered probation. As discussed above, the requirement that a respondent register under Chapter 62, or any exemption from this requirement, is not part of the respondent’s disposition. See Tex. Code Crim. Proc. Ann. art. 62.351(a); id. art. 62.352(c); id. art. 62.353(a),(b); In re J.M., No. 12-10-00159-CV, 2011 WL 6000778, at *1-3.
The language in this order reflects an agreement between the parties to defer the decision of whether R.A. should register as a sex offender. It articulates a time period during which registration will not be ordered, and it articulates the ending of that time period. The interval during which registration will not be ordered ends after R.A. completed probation. But, the order does not reflect that the parties agreed to limit the time period during which registration could be ordered after that date. Likewise, the language does not reflect any agreement by the State to limit the time period during which it could file a motion seeking an order requiring R.A. to register.
R.A. argues that the trial court’s findings that it retained discretion to require or excuse registration at any time during the treatment program or upon successful or unsuccessful completion show a limitation. First, this language does not reflect any agreement of the parties; it is a separate finding by the court. Second, that language does not limit the court’s jurisdiction to any specific time period. Other than the order, R.A. does not point to any additional plea agreement that limited the State’s ability to bring a motion. R.A.’s argument lacks merit.
2. Did the trial court err in denying R.A.’s request to withdraw his plea?
R.A. argues that the trial court erred in denying his request to withdraw his plea because the State violated its alleged plea agreement regarding disposition. As discussed above, the requirement that a respondent register under Chapter 62, or any exemption from this requirement, is not part of the respondent’s dispo*742sition. See Tex. Code Crim. Proe. Ann. art. 62.351(a); id. art. 62.352(c); id. art. 62.353(a),(b); In re J.M., No. 12-10-00159-CV, 2011 WL 6000778, at ⅝1-3. Even as to the agreement to defer the issue of whether R.A. should be required to register as a sex offender pursuant to Chapter 62, R.A. has not shown that the State violated that agreement. The court did not abuse its discretion or commit procedural error in denying R.A.’s request to withdraw his plea or stipulation of evidence under Family Code 54.03(j). See Tex. Fam. Code Ann. 54.03(j). Having concluded that the arguments under the first issue lack merit, we overrule that issue.
B. Did the trial court abuse its discretion in ordering R.A. to register privately as a sex offender?
In his second issue, R.A. asserts that the trial court erred in requiring him to register as a sex offender because any potential increase in protection to the public in requiring him to register was outweighed by the substantial harm to him. To be exempted, the respondent must show by a preponderance of the evidence that protection of the public would not be increased by registration of the respondent or that any potential increase in protection of the public from registration is clearly outweighed by the anticipated substantial harm to the respondent and the respondent’s family that would result from registration.7 Id. arts. 62.351(b), 62.352(a).
Generally, the test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the trial court acted arbitrarily or unreasonably. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Under an abuse-of-discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. See Baltzer v. Medina, 240 S.W.3d 469, 475 (Tex.App.—Houston [14th Dist.] 2007, no pet.). There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Id.
At the hearing, the State presented evidence from R.A.’s probation officer, the probation department’s psychology supervisor, and a therapist who ran a treatment group R.A. attended. The psychology supervisor testified that she evaluated R.A. in 2007 and diagnosed him with oppositional-defiant disorder, attention-deficit-hyperactivity disorder, borderline intellectual functioning, and provisional sexual abuse of a child, pending the outcome of R.A.’s adjudication. She noted that R.A. had a full scale IQ score of 55.
R.A.’s probation officer testified that R.A.’s behavior during detention was “uncontrollable.” After R.A. completed detention, his school reported two concerning instances. In one instance, R.A. told a female student he could smell between her legs. In another instance, R.A. pushed a male into the bathroom. This instance concerned school personnel because there was a belief that R.A. instigated altercations to “get closer” to other males. The probation officer acknowledged a letter from R.A.’s school stating that after his probation ended, R.A. progressed at school and his discipline issues decreased. The *743probation department recommended public registration. ,
The therapist who ran R.A.’s treatment group testified that R.A. attended 42 group-therapy sessions with her between March 2008 and May 2009. The therapist testified that R.A. behaved appropriately and did his work throughout most of the program, but that he experienced a relapse in March 2009. The relapse involved an incident in which R.A. asked an eight-year-old male to “jack him off’ while they were alone in the restroom together at the treatment group facility. The therapist questioned R.A. about the incident and R.A. admitted it had occurred. After the incident, RA.’s mother withdrew him from-the program. The therapist stated R.A. demonstrated aggressive and predatory behavior that she did not normally see in other children. Based on the repeated incidents, the therapist opined that R.A. was at a high risk to reoffend.
On cross-examination, the therapist admitted that R.A. was not supervised in the restroom at the time of the relapse even though he was supposed to be under 24-hour constant supervision at that time. She also acknowledged that there are concerns about treating people with lower mental capabilities in a big-group setting because they might not receive the individual attention they need. She testified that a big group would be “more than eight, more than ten, 12” and admitted that R.A.’s group sometimes had more than a dozen juveniles.
R.A. presented testimony from his mother, grandmother, grandfather, and individual therapist. R.A.’s grandmother characterized the changes in R.A. between 2007 and the present as “day and night.” She testified that she was proud of R.A.’s progress and had hired R.A.’s therapist to continue working with him after R.A.’s probation period ended. In her opinion, labeling R.A. as a sex offender and requiring him to register would unnecessarily prevent him from success. She believed R.A. would have a hard enough time in life because of his intellectual limitations. R.A.’s grandfather testified that R.A. had matured and had learned to cope with the issues by following the methods the doctor prescribed. R.A.’s grandfather stated that he thought R.A.’s life and career would be hampered by registration.
In her testimony R.A.’s mother described the teamwork put into place during R.A.’s probation, explaining how she had replaced the probation officer to continue the teamwork with R.A.’s school and counselor. She described R.A.’s progress at his school and the increasing freedoms he had gained because of that progress. She stated that recently R.A. had become very dependable and was taking pride in his school work, especially in the culinary field. R.A.’s mother testified that R.A. now has career goals and has taken responsibility for his life. She stated that, registration would hurt him by affecting his career and limiting where he attends school.
R.A.’s individual therapist described R.A.’s progress in therapy. He explained that R.A. had learned to identify how other people felt based on their emotions and had begun to learn how to relate to other human beings. He said R.A.’s social skills had improved significantly and that R.A. had demonstrated good judgment in staying away from problems. According to the therapist, R.A. has identified his thinking errors. R.A.’s therapist opined that requiring registration could “destroy him.” In his opinion, it would be an upward struggle for R.A. to become a semi-self-sustaining adult. The therapist thought that combining that struggle with the burden of being registered as a sex offender would erode R.A.’s motivation and would *744eradicate the progress made toward improving R.A.’s self-image. R.A.’s therapist stated that, in his professional judgment, requiring registration would be cruel. R.A.’s therapist stated, “I do not feel now or in the future he will be a threat to society. I really do not feel that.”
R.A. argues that (1) the evidence did not show he was a current threat to the public, (2) the evidence supporting registration came from the beginning of his detention period, (8) the evidence presented did not outweigh evidence that registration would harm R.A., (4) ordering private registration negated the only argument that registration would protect the public, and (5) private registration does not increase protection to the public because the police database exists whether or not R.A. is required to register. In 2008, R.A. was adjudicated for having committed a serious sexual offense against a child. The State presented evidence that since that time there had been troubling incidents at school and a separate incident in which R.A. relapsed at his group-therapy treatment center. While the relapse occurred two years before the hearing, it is evidence that R.A. struggles with predatory behavior. This evidence is sufficient under the first inquiry to prove that R.A. is at risk to relapse and therefore registration will increase the public’s protection. See In the Matter of S.M., No. 12-12-00264-CV, 2018 WL 1046891, at *3 (Tex.App. — Tyler Mar. 13, 2013) (mem. op.) (finding sufficient evidence to require registration where juvenile relapsed).
R.A. presented compelling evidence that he has made significant progress, but the evidence also showed that R.A. has more progress to make. For example, the State presented testimony that an important component of treating sexual offenders is helping them to develop victim empathy. While R.A.’s therapist testified that he had made substantial social progress, including learning to identify people’s emotions based on their facial expressions and learning how to greet people, the therapist also suggested that R.A. had further progress to make. He did not testily that R.A. had the ability to empathize with his victims. R.A.’s family members also conceded that R.A. has limitations that will make life extremely difficult. Everyone agreed that R.A. needed to continue therapy. While these limitations may make the requirement that he register as a sexual offender more difficult on R.A., they also show that R.A. is at an increased risk to reoffend and that makes the need to protect the public greater. See In the Matter of B.M., NO.2-07-153-CV, 2008 WL 281275, at *4 (Tex.App. — Fort Worth Jan. 31, 2008) (concluding there was sufficient evidence to support registration where juvenile’s psychological evaluations showed high likelihood to reoffend and juvenile did not successfully complete treatment) (mem.op).
R.A. argues that the State did not refute his evidence that registration would hamper him and that the State did not show how private registration would protect the public. We do not doubt that registration will pose a hardship to R.A. At the same time, private registration restricts the information to use only by law-enforcement and criminal-justice agencies, the Council on Sex Offender Treatment, and public or private institutions of higher education. R.A. argues that private registration does not protect the public. But, private registration does provide notice to institutions of higher education. Given the concerns about incidents at R.A.’s high school and the evidence that he has further progress to make, we conclude that the trial court did not abuse its discretion in implicitly determining that the protection of the public would be increased by registration and that any potential increase in *745protection of the public from registration was not clearly outweighed by the anticipated substantial harm to R.A. and R.A.’s family that would result from registration.8 See id. Accordingly, R.A’s second issue is overruled.
IV. Conclusion
We have jurisdiction over R.A.’s appeal from the First Order. But, R.A. did not appeal the Second Order, and we lack jurisdiction to review that order. The trial court had jurisdiction to render the First Order, and the State did not violate any agreement in filing its motion seven and a half months after R.A. completed probation. R.A. has not shown that the trial court committed procedural errors or abused its discretion in rendering the First Order.
The First Order is affirmed.
. Unless otherwise specified, all statutory references in this opinion are to the Texas Code of Criminal Procedure.
. The record reflects that R.A. was not committed to the Texas Youth Commission.
. This appeal is under article 62.357(b). See Tex. Code Crim. Proc. Ann. art. 62.357(b) (West, Westlaw through 2013 3d C.S.).
. See Tex. Code Crim. Proc. Ann. art. 62.351(a) (stating that "[d]uring or after disposition of a case under Family Code section 54.04 for adjudication of an offense for which registration is required under this chapter, the juvenile court on motion of the respondent shall conduct a hearing to determine whether the interests of the public require registration under this chapter. The motion may be filed and the hearing held regardless of whether the respondent is under 18 years of age”) (emphasis added); id. art. 62.352(c) (stating that "[fjollowing successful completion of treatment, the respondent is exempted from registration under this chapter unless a hearing under this subchapter is held on motion of the prosecuting attorney, regardless of whether the respondent is 18 years of age or older, and the court determines the interests of the public require registration”) (emphasis added); id. art. 62.353(a),(b) (providing that a person who has registered as a sex offender for an adjudication of delinquent conduct, regardless of when the delinquent conduct or the adjudication for the conduct occurred, may file a motion in the adjudicating juvenile court for a hearing seeking exemption from registration as provided by article 62.351 or an order that the registration be private, regardless of whether the person, at the time of filing the motion, is eighteen years of age or older); InreJ.M., No. 12-10-00159-CV, 2011 WL 6000778, at *1-3 (Tex.App. — Tyler Nov. 23, 2011, no pet.) (holding that, even following respondent's unsuccessful completion of treatment, the State may move for a hearing under subchapter H as to whether respondent should be required to register as a sex offender) (mem.op.).
. Because the First Order is a final order, Texas Rule of Appellate Procedure 29.6(a) does not provide a basis .for appellate jurisdiction over the Second Order. See Tex. R. App. P. 29.6(a) (stating that "[wjhile an appeal from an interlocutory order is pending, on a party’s motion or on the appellate court’s own initiative, the appellate court may review the following: (1) a further appealable interlocutory order concerning the same subject matter; and (2) any interlocutory order that interferes with or impairs the effectiveness of the relief sought or that may be granted on appeal”) (emphasis added).
. We do not address any issue relating to the Juvenile Court's jurisdiction to render the Second Order or the propriety of the Second Order.
. R.A. argues that because he is exempt, unless the State brings a motion to require registration under article 62.352(c), this provision shifts the burden of proof to the State. We need not address this issue because we determine that even if this provision shifts the burden of proof, the State presented sufficient evidence to satisfy the burden of proof.
. R.A. argues that he is entitled to a reversal because there is no reporter’s record- from proceedings related to potential disciplinary issues that occurred during R.A.’s probation. He cites Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex.1972) and Rogers v. Rogers, 561 S.W.2d 172 (Tex.1978), as standing for the proposition that an appellate court should reverse a judgment if a party, through no fault of his own, cannot obtain a record of prior proceedings. Under the Rogers line of cases, a party is at fault for the lack of a record if the party is present at a hearing and fails to object. See Henning v. Henning, 889 S.W.2d 611, 612-13 (Tex.App.—Houston [14th Dist.] 1994, writ denied). R.A. was present at the hearings and did not object to the failure to make a record. Accordingly, R.A. is not entitled to reversal on this ground. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284171/ | KENNETH S. HIXSON, Judge |,In July 2010, appellant Fabian Trotter pleaded guilty to possession of marijuana with the intent to deliver in exchange for a four-year probationary term. Appellant’s conditions of probation required that he pay all fines, costs, and fees as directed, among other conditions. All payments were directed to be paid in $50 per month installments beginning in August 2010. In October 2013, the State filed a petition to revoke his probation, contending that appellant violated five conditions, including the fines/costs/fees requirement. After a revocation hearing in June 2014, the trial court found, by a preponderance of the evidence, that appellant was inexcusably in violation of this condition. A judgment was entered upon revocation, sentencing appellant to five years in the Arkansas Department of Correction. Appellant’s attorney filed a timely notice of appeal from the judgment upon revocation and ordered the entire trial-court record. Subsequently, appellant’s attorney filed a no-merit 12brief pursuant to Arkansas Supreme Court Rule 4 — 3(k) (2014), along with a motion to be relieved as counsel, asserting that there is no issue of arguable merit to present on appeal. A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(l). The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Ark. Sup. Ct. R. 4 — B(k)(¿). Counsel’s brief recites the entirety of Rule 4-3(k)(Z). Although appellant was sent a copy of his attorney’s brief and motion by mail, notifying appellant of his right to present pro se points for reversal, appellant did not file any pro se points. The State did not file a brief with our court. In furtherance of the goal of protecting Constitutional rights, it is both the duty of counsel and of this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). After a full examination under the proper standards, we hold that counsel provided a compliant “no merit” brief demonstrating that an appeal would be wholly without merit, and further, that counsel’s motion to be relieved should be granted. The only adverse ruling was the decision to revoke probation. The burden upon the State in a revocation proceeding is to prove by a preponderance of the evidence that the defendant inexcusably failed to comply with at least one condition of his probation. Amos v. State, 2011 Ark. App. 638, 2011 WL 5110125; Ark.Code Ann. § 16—93—308(d) (Supp. 2011). This court will not ^reverse unless the trial court’s findings are clearly against the preponderance of the evidence, and our court defers to the credibility determinations made by the trial court and the weight it assigns to the evidence. Gossett v. State, 87 Ark. App. 317, 191 S.W.3d 548 (2004). Once the State introduces evidence of nonpayment, the defendant then has the burden of going forward with some reasonable excuse for his failure to pay as ordered. Sanders v. State, 2012 Ark. App. 697, 2012 WL 6200377. The ultimate burden of persuasion remains on the State, but it need only prove one violation in order to support the revocation of probation. Id. The evidence at the revocation hearing included the testimony of a sheriffs department employee, Amy Peyton, who was in charge of collection of fines and costs. Peyton testified that appellant owed $1,645 in fines and costs, but he had made no payments; she had not heard from him at all. Michael Alston supervised appellant’s probation. Alston’s records indicated that appellant worked in some type of construction job. Alston testified that he informed appellant at each visit that he needed to make sure that he made payments or he could have a warrant issued for nonpayment. Alston said that appellant told him that he was making his payments. Appellant did not testify to offer any explanation for failing to make any payments whatsoever. The trial court found that there was no proof to substantiate that appellant had the inability to make payments but substantial proof that appellant made “zero” attempts to pay. Upon revocation, this appeal followed. |4Based upon the foregoing, the trial judge’s decision to revoke appellant’s probation was not clearly erroneous or clearly against the preponderance of the evidence. Counsel correctly asserts that once the State introduced evidence of nonpayment, the burden shifted to appellant to go forward to offer some reasonable excuse for his failure to pay. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). Appellant offered no reasonable excúse. No issue of arguable merit could be raised on appeal to reverse. Appellant’s counsel correctly notes that there was no other adverse ruling. Having considered this no-merit appeal under the proper standards, we affirm the revocation of appellant’s probation and grant counsel’s motion to be relieved. Affirmed; motion granted. Whiteaker and Vaught, JJ., agree. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2200244/ | 96 Ill. 2d 138 (1983)
449 N.E.2d 129
In re S.R.H., a Minor, Appellee (The People of the State of Illinois, Appellant).
No. 56770.
Supreme Court of Illinois.
Opinion filed April 22, 1983.
*139 *140 Tyrone C. Fahner, Attorney General, of Springfield, and Dennis Schumacher, State's Attorney, of Oregon (Phyllis J. Perko and Martin P. Moltz, of the State's Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
G. Joseph Weller and Kathleen J. Hamill, of the Office of the State Appellate Defender, of Elgin, for appellee.
Appellate court reversed; circuit court affirmed.
JUSTICE UNDERWOOD delivered the opinion of the court:
The respondent in these juvenile proceedings was adjudged delinquent and made a ward of the circuit court of Ogle County on April 1, 1981, following a hearing at which the trial judge found respondent guilty of burglary. On appeal, a divided appellate court reversed the trial court's judgment, holding that the failure to specifically allege respondent's lack of authority to enter the private premises involved rendered fatally defective the supplemental petition filed by the State. (106 Ill. App. 3d 276.) We granted the State's petition for leave to appeal.
It is unnecessary for us to detail respondent's unfortunate history other than to note that he had been *141 placed on probation on June 24, 1980. Alleging that respondent had violated the conditions of his probation, the assistant State's Attorney filed a petition for revocation of probation on January 14, 1981. On the motion of respondent's probation officer, the trial court required respondent to undergo psychiatric evaluation at the Singer Zone Center, during which respondent escaped and committed the acts with which we are concerned. No further action was taken under the petition for revocation of probation, but a supplemental delinquency petition was filed alleging that "On or about February 28, 1981, in Monroe Center, Ogle County, Illinois, said minor [respondent] did commit the offense of BURGLARY in violation of Sec. 19-1, of Ch. 38 of the Ill. Rev. Stat. of said State, in that said minor knowingly entered a building, a garage of James Marx, located at R.R. 1, Eddy Road, Monroe Center, Illinois, with the intent to commit therein a theft."
At the hearing held thereon, Sherry Oswald, a friend of respondent's, testified that she and respondent had been riding in her car on the morning of March 1, and that respondent had informed her that "he knew somebody's house that we could go to that we could get some stuff because they were at church." She testified that respondent drove to the Marx residence and that she took a tape recorder from the garage while respondent removed some tools, placing them in the trunk of her car. Her testimony also revealed that although they had been driving in Rockford throughout the entire night and early morning of February 28 and March 1, neither she nor respondent used any alcohol or drugs, and respondent's demeanor had been normal when they were at the Marx garage. Although psychiatric testing conducted prior to the hearing indicated that respondent was sane at the time of the theft, respondent's testimony was limited to a statement that his recollection of the incident *142 was vague and that he was unable to remember anything other than the actual removal of the tools.
James Marx testified that he worked with a church youth group and became acquainted with respondent when respondent joined that group approximately nine months prior to the hearing. Mr. Marx further stated that respondent had been a frequent visitor at the Marx residence, but that neither respondent nor any other member of the youth group was given permission to visit the premises when the Marxs were not at home. The testimony of Father Kierney, a priest who was acquainted with respondent, however, indicated that respondent had spent time alone in the Marx residence on at least one occasion.
At the close of the hearing, respondent's attorney urged the trial court to find in favor of the respondent because the supplemental petition, which failed to characterize respondent's entry into the Marx garage as "without authority," did not state a cause of action and the evidence established a reasonable basis for an assumption by respondent that he had authority to enter the premises. These contentions were rejected by the trial court, which found him guilty of burglary and adjudged him delinquent.
The principal issue in this cause concerns the sufficiency of the allegations in the supplementary petition charging respondent with burglary. Under section 2-2 of the Juvenile Court Act, petitions in delinquency proceedings must allege facts establishing that the minor violated or attempted to violate a Federal or State law or municipal ordinance. (Ill. Rev. Stat. 1981, ch. 37, pars. 702-2, 704-1.) In addition, the Act provides minors the same procedural rights as adults "unless specifically precluded by laws which enhance the protection of such minors * * *." (Ill. Rev. Stat. 1981, ch. 37, par. 701-2(3)(a).) Respondent argues that these provisions, when *143 considered together, require delinquency petitions to conform to the requirements of section 111-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111-3). That section provides in part:
"Form of Charge.
(a) A charge shall be in writing and allege the commission of an offense by: * * * (3) Setting forth the nature and elements of the offense charged; * * *" (Ill. Rev. Stat. 1981, ch. 38, par. 111-3.)
Pointing to the omission from the petition of the words "without authority" contained in the statutory definition of burglary, respondent contends that the petition was invalid because it failed to contain all of the elements of the offense. Section 19-1 of the Criminal Code of 1961 defines burglary:
"Burglary.
(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, * * * with the intent to commit therein a felony or theft." (Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a).)
While respondent's argument has some surface logic, its premise is erroneous. It is well established that proceedings instituted under the Juvenile Court Act are not criminal in nature (see, e.g., People v. Woodruff (1981), 88 Ill. 2d 10; People v. Taylor (1979), 76 Ill. 2d 289; In re Beasley (1977), 66 Ill. 2d 385, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734), and we have consistently recognized that section 1-2(3)(a) does not extend to or guarantee to respondents in juvenile proceedings the rights accorded adult defendants in criminal proceedings. (See People v. Woodruff (1981), 88 Ill. 2d 10, 20; In re Beasley (1977), 66 Ill. 2d 385, 391.) Our conclusion that the requirements of section 111-3 of the Code of Criminal Procedure of 1963 are not applicable in juvenile proceedings is buttressed by the fact that those provisions appear exclusively in that code (cf. In re Beasley (1977), 66 Ill. 2d 385, 390), *144 which governs only criminal prosecutions (Ill. Rev. Stat. 1981, ch. 38, par. 111-1 et seq.). As we said in Woodruff, "this court has recognized the unique nature of juvenile proceedings and the value of retaining a distinction between the juvenile and criminal processes." (88 Ill. 2d 10, 19.) Adjudicatory hearings under the Juvenile Court Act are not intended to be adversary proceedings (Ill. Rev. Stat. 1981, ch. 37, par. 701-20) and do not lead to a criminal conviction (Ill. Rev. Stat. 1981, ch. 37, par. 702-9). Consequently, we cannot agree with respondent's contention that the supplemental petition must conform to the requirements of section 111-3.
Although juvenile proceedings are clearly not criminal prosecutions, "certain due process safeguards normally associated with criminal proceedings have been extended for the protection of juveniles to accord to them fundamental fairness." In re Beasley (1977), 66 Ill. 2d 385, 390. Even when we have characterized such proceedings as civil in nature (see, e.g., People ex rel. Hanrahan v. Felt (1971), 48 Ill. 2d 171; In re Fucini (1970), 44 Ill. 2d 305, appeal dismissed (1971), 403 U.S. 925, 29 L. Ed. 2d 704, 91 S. Ct. 2242), we have insisted upon adequate notice to the parties and that the proceedings otherwise comport with fundamental due process requirements. (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428. See McKeiver v. Pennsylvania (1971), 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976; In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068. See also In re Thompson (1980), 79 Ill. 2d 262; People v. Taylor (1979), 76 Ill. 2d 289; In re Beasley (1977), 66 Ill. 2d 385.) Determining due process requirements in a given case, apart from statutory provisions, necessitates an examination of the proceedings in terms of fundamental fairness. In re Thompson (1980), 79 Ill. 2d 262; People v. Taylor (1979), 76 Ill. 2d 289, 302.
While the violation of law alleged in a delinquency petition need not be stated in conformity with criminal code *145 requirements, fundamental fairness demands a statement of facts leaving no real doubt as to the acts charged. In measuring the sufficiency of that statement, we believe the standard used to determine the sufficiency of a criminal complaint challenged for the first time on appeal may appropriately be employed. Under that test, allegations are sufficient if they "`* * * apprised the accused of the precise offense with sufficient specificity to prepare his defense and allow the pleading of a resulting conviction as a bar to future prosecution arising out of the same conduct.'" People v. Walker (1980), 83 Ill. 2d 306, 314; quoting People v. Pujoue (1975), 61 Ill. 2d 335, 339. See also People v. Rege (1976), 64 Ill. 2d 473; People v. Grant (1974), 57 Ill. 2d 264.
Examination of the earlier-quoted charge in the supplemental petition leaves no doubt that it provided respondent with adequate notice of the acts charged and that he was not prejudiced by the omission of the phrase "without authority." Similarly, the allegations are sufficiently specific to preclude, on double jeopardy grounds, any future prosecution based upon the same conduct. We accordingly hold the supplemental petition was valid. Respondent's contention that the State failed to prove that his entry was unauthorized is not persuasive. Weighing the testimony of the witnesses regarding the extent of respondent's authority, if any, was within the province of the fact finder, and it is well established that we will not substitute our judgment for that of the trier of fact to reverse a finding of guilt unless the evidence is sufficiently improbable to raise a reasonable doubt concerning that finding. (See, e.g., People v. Carlson (1980), 79 Ill. 2d 564, 583; People v. Vriner (1978), 74 Ill. 2d 329, 342; cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858; People v. Manion (1977), 67 Ill. 2d 564, 578, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) In light of the owner's uncontroverted testimony that respondent was never given permission *146 to enter his garage, coupled with his statement that respondent was never authorized to enter the Marx home when no one was at home, the evidence supporting the finding of guilt in this cause is not so improbable as to justify a reasonable doubt of respondent's guilt.
For the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.
Appellate court reversed, circuit court affirmed.
JUSTICE SIMON, dissenting:
I do not dispute that juvenile delinquency proceedings are different from criminal prosecutions, but I am unable to conclude for that reason, as the majority does, that juveniles are entitled to any less protection in assessing the sufficiency of a charge of criminal behavior against them than an adult in identical circumstances would enjoy. I would affirm the decision of the appellate court.
It is true, as the majority states, that proceedings under the Juvenile Court Act are not generally viewed as being of a criminal nature, and that this has certain implications regarding the safeguards that must be afforded defendants in various situations. Thus, for example, this court has held that the statutory right to a speedy trial (People v. Woodruff (1981), 88 Ill. 2d 10), a supreme court rule relating to acceptance of guilty pleas (In re Beasley (1977), 66 Ill. 2d 385, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734), and common law hearsay rules (People v. Taylor (1979), 76 Ill. 2d 289) did not apply in juvenile proceedings. As far as I am aware, however, it was never the rule that anything goes simply because the defendant is a juvenile. Indeed, this court has recognized that since orders of supervision (In re R.R. (1982), 92 Ill. 2d 423, 429) and probation (e.g., In re Sneed (1978), 72 Ill. 2d 326, 331-34) may result in a loss of liberty just as significant as if the defendant had been convicted as a criminal, *147 various provisions in the Juvenile Court Act which enhance the protections accorded to minors for whom these orders are sought should be broadly construed to effect their purpose. Moreover, the court did not refuse to extend the safeguards in Woodruff, Taylor or Beasley to minors without discussing at some length why the safeguard was not essential from the standpoint of due process and was not intended by the legislature to apply to the particular juvenile proceeding at issue. In Taylor, the decision did not depend on the noncriminal nature of juvenile proceedings generally, but the court observed that the hearsay evidence in question possessed facial indicia of reliability and could therefore be admitted in a juvenile transfer hearing, in much the same fashion as hearsay evidence is admitted in sentencing hearings in criminal cases once guilt has been determined. (E.g., People v. La Pointe (1981), 88 Ill. 2d 482, 494-99.) In Woodruff and Beasley there was nothing to indicate that the statute or court rule in question was intended to apply to anyone other than a criminal defendant, for whose sole benefit they were promulgated.
The Juvenile Court Act is prefaced by the provision that "[t]he procedural rights assured to the minor shall be the rights of adults unless specifically precluded by laws which enhance the protection of such minors." (Ill. Rev. Stat. 1979, ch. 37, par. 701-2(3)(a).) In section 2-2, the Act defines as delinquent "any minor who prior to his 17th birthday has violated or attempted to violate * * * any federal or state law or municipal ordinance" (Ill. Rev. Stat. 1979, ch. 37, par. 702-2); in another section it requires that the delinquency petition set forth "facts sufficient to bring the minor under Section 2-1 [of the Act]" (emphasis added) (Ill. Rev. Stat. 1979, ch. 37, par. 704-1(2)(a)). Section 2-1 (Ill. Rev. Stat. 1979, ch. 37, par. 702-1) is entitled "Jurisdictional Facts" and refers to the statutory definition of a delinquent minor contained in section 2-2, which is quoted above. That, in my judgment, is a clear indication *148 that the legislature intended to require notice in the charging instrument of all of the essentials of the violation on which the delinquency charge is founded. Although there is no direct statement in the Act that this was meant to include the "nature and elements" of the violation, as is required in the context of a criminal prosecution (emphasis added) (Ill. Rev. Stat. 1979, ch. 38, par. 111-3(a)(3)), neither is there anything in the Act which "specifically preclude[s]" this interpretation, as section 1-2(3)(a) requires, and I find it difficult to understand how one can communicate the essentials of a charge without at least setting forth the essential elements which constitute the violation alleged.
The gist of burglary is not mere entry, regardless of intent; it is unauthorized entry with a felonious intent, or with the intent to commit a theft. Mere entry with felonious intent is not a violation of any law or ordinance that I know of. A charging instrument in a criminal case which charged only this would be facially defective and would have to be dismissed, at least if challenged in the trial court (People v. Lutz (1978), 73 Ill. 2d 204; People v. Abrams (1971), 48 Ill. 2d 446; see People v. Pujoue (1975), 61 Ill. 2d 335). I see no warrant for treating the minor in this case as if he had first raised the sufficiency of the delinquency petition on appeal and applying the lesser "actual prejudice" standard applicable in such cases (People v. Gilmore (1976), 63 Ill. 2d 23; People v. Pujoue (1975), 61 Ill. 2d 335) when in fact he raised it in the delinquency hearing. As I have mentioned, I find nothing in the Juvenile Court Act which specifically requires such lesser scrutiny, and without such a specific provision this court is not at liberty, under the Act itself (Ill. Rev. Stat. 1979, ch. 37, par. 701-2(3)(a)), to so treat a minor where an adult guilty of identical conduct and whose strategy at trial was the same would receive the full protection of the law as set forth in Lutz and Abrams. Nor am I impressed by appellate *149 court statements from time to time that the element "without authority," when missing from a charge of burglary, can be inferred without prejudice to the defendant because everybody knows lack of authority is an element of burglary. (People ex rel. McLain v. Housewright (1973), 9 Ill. App. 3d 803; see People v. Pettus (1980), 84 Ill. App. 3d 390, 393-94 (dictum); In re Whittenburg (1973), 16 Ill. App. 3d 224 (aggravated-battery charge upheld).) The holding of Lutz and Abrams is that, for purposes of challenges brought in the trial court, prejudice from such omissions is conclusively presumed.
Adjudications of delinquency may not be criminal convictions, but, as illustrated by this case, they often lead to incarceration. In addition, burglary is a serious charge, and a finding of guilt is likely to have severe consequences apart from incarceration for as long as it remains on the juvenile's record. Just as we do not allow adults to be deprived of their liberty without a full recitation in the charging instrument of the elements of the crime alleged, neither should we allow juveniles to face detention in a State facility and a record of delinquency based on a burglary offense without a similar recitation when they are charged with serious antisocial conduct. The Juvenile Court Act says nothing to the contrary, and in fact appears to require this very recitation. I fail to see the justification for permitting the State to omit essential information from delinquency petitions more or less as it pleases when it would take so little effort to include the elements of the violation as the law requires they appear in an indictment or information. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284173/ | OPINION
LAMBERT, J., JUDGE:
Tami Leigh Mix has appealed from the orders of the Jefferson Family Court terminating Brett Petty’s obligation to pay child support and medical expenses for their son as of May 30, 2014. She contends that these obligations should have continued for an additional six months pursuant to Kentucky Revised Statutes (KRS) 403.213(3) because their son remained a high school student after he reached the age of emancipation. Because we agree with Tami that the family court erred as a matter of law in assigning May 30, 2014, as the end of the school year, we affirm in part and reverse in part.
Tami and Brett are the natural parents of Tristan Mix (the child), who was born on November 15, 1994, in Louisville, Kentucky. Tami and Brett were not married, and Tami obtained a DNA test in June 2007 that confirmed paternity. In May 2008, Tami, who has been proceeding pro se throughout this proceeding, filed a complaint in the family court to set child, education, and medical support payments retroactively from June 2007, when paternity was determined, through the child’s graduation from high school. In her complaint, Tami stated that she was not working due to a permanent ankle injury she incurred in 2003. She had been living on $500.00 per month she received in maintenance from a prior marriage. The maintenance payments ended in May 2008, and she was in the process of applying for disability benefits.
Brett, through his attorney, filed a response and counter-petition, indicating that there had been some uncertainty concerning the child’s paternity. For his counter-petition, Brett requested that the court enter a finding of paternity, award joint custody of the child to him and Tami, set child support pursuant to the Kentucky Child Support Guidelines, and establish reasonable parenting time.
The family court ordered the parties to mediate the parenting time schedule and the calculation of child support. No agreement was reached. Tami was also ordered to present a letter from her treating physi-*893cían stating that she could not work so that their respective child support obligations could be calculated. By order entered September 15, 2008, the court approved the parties’ agreement regarding permanent child support. Brett agreed, and was therefore ordered, to pay $192.48 in child support on a bi-weekly basis as well as 80% of the uninsured medical expenses. The parties returned to court beginning in 2009 on various motions related to Brett’s child support obligation as well as the child’s insurance and medical expenses. In 2009, the court modified Brett’s child support to $825.00 per month due to his unemployment, but raised it in December 2009 to $898.38 per month, to be paid at a rate of $183.87 on a bi-weekly basis. In an order entered September 27, 2010, the court ruled on various motions, including whether Brett’s child support obligation should be modified. Because Tami did not present the court with any evidence regarding her claimed disability or inability to work, the court found her capable of earning at least minimum wage and imputed income to her. Based upon its calculations, the court did not find that there had been at least a 15% change in circumstances to support changing Brett’s monthly child support obligation, thereby denying Tami’s motion to modify, and ordered Brett to continue to pay Tami $183.87 biweekly in child support.
In 2012, Tami filed another motion to recalculate Brett’s child support and medical expense obligations. She stated that she had been diagnosed with breast cancer, chronic pain, and fibromyalgia, in addition to her ankle condition, and that she would be undergoing surgeries and procedures to treat her cancer diagnosis. Based upon her incapacities, Tami argued that her income should not be estimated as it had been previously. On September 27, 2012, the family court entered an order granting Tami’s motion to modify. The court ordered Brett to pay Tami $541.80 per month in child support and 99% of the uninsured medical expenses within thirty days of receipt of the expense, retroactive to June 6, 2012.
Brett moved the court to clarify the order related to the wage assignment portion and requested the income and medical insurance cost information be used to calculate the child support obligation. Tami objected to Brett’s discovery requests, including a request for production of documents, stating that it was an undue physical and mental burden for her to comply with the request due to her recovery from surgery. She mentioned in her motion that she had been homeschooling the child for several years. By order entered November 15, 2012, the family court set aside the wage assignment order and denied Tami’s motion for a protective order, noting that she had placed her medical condition before the court in her motion to modify when she argued that she should no longer be imputed income for purposes of the child support calculation. By separate order entered the same day, the court made more specific findings to support its child support order, including that there had been a substantial and continuing material change in Tami’s condition and that she should not be imputed income pursuant to KRS 403.212(2)(d). The court noted that Tami had been diagnosed with breast cancer in July 2011 and underwent surgery on August 30, 2012. The court also noted that Tami had applied for, but had not yet been approved for, SSI benefits. The only other evidence established that she earned $20.00 per month. Thus, the family court assigned 99% of the child support obligation to Brett and 1% to Tami. The court used the same allocation for the child’s health care expenses and extraordinary medical expenses.
*894In October 2013, Brett filed a motion to terminate child support based upon Tami’s choice to homeschool the child and her exclusive control over the length of time necessary to complete his high school education. While Tami stated in her 2008 petition that the child would turn eighteen years old at the beginning of his senior year, records attached to the motion revealed that it took thirteen months and twenty-seven months to complete his freshman and sophomore terms, respectively, and that he did not begin his junior year until February 2013. Tami had been using the A Beka Independent Study Program located in Pensacola, Florida, for the child’s curriculum, which did not offer a diploma upon graduation. Brett also noted that the child had been enrolled in a high school sports hockey league in Old-ham County for the 2011-2012 and the 2012-2013 academic years, which required academic standards to be maintained.1 Brett argued that if the child had been in a traditional program, he would have either completed his program or been in the final months of his senior year at that time. In an attached affidavit, Brett stated that he was unaware that the child was having any educational delays . until February 2013, but believed that he would be graduating in May 2013. Therefore, Brett moved the court to terminate his child support obligation upon the child’s nineteenth birthday, November 15, 2013.
The court held a hearing on February 17, 2014, on Brett’s motion to terminate child support.2 The court framed the sole issue before it as whether Tami delayed the child’s education to collect child support for a longer period of time.
Tami testified first, on cross-examination. The child had turned nineteen years old on November 15, 2013. He had been attending a homeschool program using different teachers through A Beka Academy, and Tami stated that the child attended school throughout the year, rather than taking a longer break during the summer. He began his senior year at the beginning of - November 2013, and he used various methods, including Saxon videos for math and A Beka courses for other subjects. Tami stated that his education had been delayed due to his attention deficit and oppositional defiant disorders. He had problems retaining information.
The child began his sophomore year in November 2010 and did not complete that grade level until January 2013. Tami explained that the child had been experiencing difficulty with his ADD and transitioning. She had also been diagnosed with cancer and underwent surgery for her cancer during that time. The child needed longer breaks to deal with her cancer diagnosis and treatment. His first longer break was in September 2011 for a total of sixteen school days, and the second break from August 27, 2012, to September 24, 2012, when she had surgery. He had not completed the work to get the credits from A Beka after the first year of his sophomore grade level due to his ADD. Had the child remained on point up until the tenth grade, he would have graduated in November 2013. The child began his junior year in early 2013 and completed it in November 2013. He began his senior year that month, and Tami believed he would *895complete his senior year in November 2014.
Tami discovered that support payments would continue by statute until the child’s nineteenth birthday if he was still in high school when she received interrogatories from Brett asking for information about the child’s education. She denied that she delayed his education in order to continue to receive child support payments. Tami stated that she had worked with the child’s medical providers over the years to deal with his issues. Based on the subjects he had to take and his learning disabilities, Tami believed it would take a full year to complete his courses, with breaks. She denied that he needed a tutor, stating that he was a straight-A student. It would just take longer for him to retain the information, and he would have to repeat videos and readings multiple times before he would learn it.
Brett testified that he had only been able to have limited time with the child. He was familiar with ADD because his eldest child had also been diagnosed with that condition. This did not cause his other child any problems. Brett did not believe his child with Tami would be at the same point had he attended a public school.
Tami chose to testify as well. The court directed her to show that the child was actively enrolled in his schoolwork. She presented evidence that she had notified Jefferson County Public Schools that the child would be homeschooled, took attendance, and kept report cards. The child was not employed outside of the home due to his learning disabilities; he would not be able to work full time and continue with his education. His education was a priority in their house. On cross-examination, Tami stated that the A Beka program they used was the independent study program. She said she did not control how fast he completed his courses; she said the child’s ADD and ODD controlled how quickly he could complete them. Tami denied that she had delayed the child’s education to collect more money.
In closing, Brett argued that the school year generally runs from August through May or June and that Tami had complete control over how long it would take the child to complete his academic years. Due to the delays at Tami’s hand, he asserted that child support should be terminated at that point. Tami argued that A Beka provided the curriculum and that it took the child longer to complete his courses due to his problems with retention and the need to repeat lessons and readings.
On July 23, 2014, the family court entered an order ruling on Brett’s motion to terminate his child support obligation. The court recognized that the child had reached the age of nineteen the previous November and had not yet graduated from high school. The court further recognized that Tami had been homeschooling the child using a curriculum from A Beka Academy. The court then stated:
While the dates of an academic school year for all schools and students is not exactly the same, a school year for students generally runs from the fall (August) of one year to the spring (May) of the following year. The Court not having been advised otherwise, will take judicial notice of a normal school year and finds “completion of the school year” for the student’s 2013-2014 academic school year, for the purposes of this action, to be May 30, 2014. [Emphasis in original.]
The court found that while the child had reached the age of nineteen, he had not graduated from high school and was pursuing a diploma through a homeschool program. Therefore, Brett’s motion to terminate child support was premature. *896However, the court went on to rule that his child support obligation would terminate by operation of law “on the date the child has completed the course work necessary for his graduation or the end of the 2013-2014 academic school year (May 80, 2014), whichever comes first.”
Tami moved the court to alter, amend, or vacate the above order in relation to the date Brett’s child support obligation would terminate. She stated that the child would still be a high school student after May 80, 2014, and would only be halfway through the academic year. She said that she submitted evidence and verbally informed the court about the child’s academic year, including evidence of his mental and learning disabilities. She requested that the termination date be extended to his actual completion of graduation credits or his twentieth birthday, whichever came first. To keep the order as it was written would cause the child to drop out of school and get a job to support himself, as she was not well enough to work. At the hearing on the motion, Brett objected to Tami’s motion. Tami again stated that the child would have to get a full-time job if the court denied her motion. The family court denied Tami’s motion by order entered August 4, 2014. This appeal now follows.
In her appeal, Tami continues to argue that the child would still be a high school student for an additional six months after the May 30, 2014, cut-off date the trial court imposed and that Brett’s child support obligation should continue.
Kentucky Rules of Civil Procedure (CR) 52.01 provides the general framework for the family court as well as review in the Court of Appeals: “In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment!.] • • • Findings of fact, shall not be set'aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted) (An appellate court may set aside a lower court’s findings made pursuant to CR 52.01 “only if those findings are clearly erroneous.”). Specifically related to child support, this Court stated in Seay v. Seay, 404 S.W.3d 215, 217 (Ky. App. 2013):
At the outset we note, that “[a]s are most other aspects of domestic relations law, the establishment, modification, and enforcement of child support are prescribed in their general contours by statute and are largely left, within the statutory parameters, to the sound discretion of the trial court.” Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky. App. 2000). “However, a trial court’s discretion is not unlimited. The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001).
This issue before this Court, however, is one of statutory interpretation, which requires de novo review. Roach v. Hedges, 419 S.W.3d 46, 47 (Ky. App. 2013).
This Court must decide whether the trial court’s decision to assign May 30, 2014, as the end of the school year, and therefore the termination date for Brett’s obligation to pay child support, was correct as a matter of law. KRS 403.213(3) provides for the termination of child support upon emancipation of the minor, but extends this period to a certain extent if the child is still a high school student:
Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child *897unless the child is a high school student when he reaches the age of eighteen (18). In cases where the child becomes emancipated because of age, but not due to marriage, while still a high school student, the court-ordered support shall continue while the child is a high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years....
As this Court stated in Smiley v. Browning, 8 S.W.3d 887, 889 (Ky. App. 1999), “[KRS 403.218(3) ] clearly is intended to encourage young persons to continue their educations and to obtain their high school diplomas by requiring any noncustodial parent to continue paying child support during the school year in which a particular child reaches the age of nineteen, provided the child is a ‘high school student.’ ” The amendments to this statute in 1992 represented “a change in Kentucky’s public policy regarding the duration of child support.... The statutory intent to recognize the necessity of a high school education in today’s society is readily apparent.” Marcinek v. Com. ex rel. Marcum, 999 S.W.2d 721, 723 (Ky. App. 1999). See also Com. ex rel. Francis v. Francis, 148 S.W.3d 805 (Ky. 2004). Here, the court determined that this statute applied to extend Brett’s child support obligation past the child’s eighteenth birthday. The evidence established that the child turned nineteen years old just after beginning his senior year in November 2013. This ruling has not been, challenged on appeal.
What has been challenged is the trial court’s decision to terminate child support on May 30, 2014, the date it set for the end of the normal 2013-2014 academic school year. Tami argues that the termination date should either be June 30, 2014, pursuant to KRS 158.050, or extended until the child completed his senior year in November 2014, pursuant to KRS 158.070(8), which would have coincided with the child’s twentieth birthday on November 15, 2014.
KRS 158.050 provides that “[t]he school year shall begin on July 1 and end on June 30.” Based upon the plain language of this statute, the trial court erred as a matter of law in assigning May 30, 2014, as the end of the academic school year. Accordingly, we must reverse the trial court’s assignment of May 30, 2014, as the end of the school year.
However, Tami also argues that the academic year for her child should have been extended an additional five months after June 30th to accommodate his educational needs. KRS 158.070(8) provides for continuing education time for students to achieve the necessary outcomes:
Schools shall provide continuing education for those students who are determined to need additional time to achieve the outcomes defined in KRS 158.6451, and schools shall not be limited to the minimum school term in providing this education. Continuing education time may include extended days, extended weeks, or extended years....
We disagree with Tami that the trial court erred or abused its discretion in failing to extend the child’s school year through November 2014. Based upon the circumstances of this case, including the lengthy extension of his sophomore year,3 we find no abuse of the trial court’s consid*898erable discretion in declining to extend the school year until the projected completion of the child’s senior term in November 2014.
As an aside, we find it troubling that Tami stated in her motion and informed the trial court at the hearing on the motion to alter, amend, or vacate that if the original ruling stood, the child would be forced to stop his education and seek employment to make up the lost child support because of her own inability to work. In her motion, she stated that “it would all be up to the student/child to earn the loss of the support” because of her medical problems. While there is no evidence in the record to support that the child has indeed stopped his education and taken a full-time job, Tami stated in her brief as follows:
The result has been that the hours he spent every day studying and doing his school work to achieve his diploma and good grades is now, and has been after the court ruling instead spent working a full time job to make up for the 99% of support and medical that was taken from him. Unfortunately the appellant with her disabilities and cancer issues including recent setbacks in procedures and emergency surgery and hospitalization, is unable to supply and make up for the lost 99% support & medical support lost from the father. The child working full time to support himself is exhausting and his ability to focus on school work at a min.
We note that Tami has been capably representing herself throughout these proceedings, making numerous appearances at the trial court level and filing motions below and her own appellate briefs in this Court. Requiring her son to seek full-time employment would certainly go against her testimony that his education was a priority in their household.
For the foregoing reasons, the orders of the Jefferson Family Court are reversed and remanded to the extent that the child support obligation should be extended to June 30, 2014. The orders are otherwise affirmed.
ALL CONCUR.
. At a hearing, Tami disagreed that the hockey league required the child to maintain academic standards.
. The court also considered Brett’s motion to alter, amend, or vacate an earlier order regarding credit for the use of mail order prescriptions. We shall not address this motion as it is not relevant to our decision in the present case.
. Most of the first year of the child’s twenty-seven-month sophomore term took place pri- or to Tami’s cancer diagnosis. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284174/ | Richard B. Teitelman, Judge
Brandon Roberts appeals from a judgment convicting him of second-degree domestic assault and witness tampering.1 Mr. Roberts asserts that the trial court erred by denying his request to instruct the jury on the lesser-included offense of third-degree domestic assault. He also asserts that the trial court erred by overruling his motion to sever the assault and *901witness tampering charges. The judgment is vacated because the trial court erred by not instructing the jury on the lesser-included offense of third-degree domestic assault.
Facts
In June 2012, Mr. Roberts and his daughter lived with A.A. and her three children. Mr. Roberts and A.A. got into a disagreement while Mr. Roberts was showering. Mr. Roberts exited the shower and hit A.A. A.A. hit Mr. Roberts with the shower rod. Mr. Roberts then hit A.A. with the shower rod. A.A. left the bathroom and threw Mr. Roberts’ truck keys outside. Mr. Roberts went to find his keys. Mr. Roberts did not find his keys, but he did find a hammer. Mr. Roberts went back inside and repeatedly hit A.A. A.A. was unsure if Mr. Roberts had a hammer, but the children who witnessed the altercation ran to a neighbor’s house and stated that “Brandon’s beating my mommy with a hammer.”
The State charged Mr. Roberts as a persistent offender with second-degree domestic assault and victim tampering. At trial, Mr. Roberts testified that he acted in self-defense. The trial court instructed the jury it could find Mr. Roberts guilty of second-degree domestic assault if the State proved beyond a reasonable doubt that Mr. Roberts “knowingly” caused injury to A.A. The trial court rejected Mr. Roberts’ proposed instruction on the lesser-included offense of third-degree domestic assault, which would require the jury to find that Mr. Roberts “recklessly” injured A.A. The trial court also overruled Mr. Roberts’ motion to sever the charges.
The jury found Mr. Roberts guilty of second-degree domestic assault and witness tampering. The trial court sentenced Mr. Roberts to consecutive sentences of five years in prison for second-degree assault and two years for witness tampering. Mr. Roberts appeals.
I. The trial court erred by refusing the lesser-included offense instruction
In his first point, Mr. Roberts asserts that the trial court erred by refusing to submit his proffered jury instruction on the lesser-included offense of domestic assault in the third degree. Mr. Roberts is correct.
Section 556.046.8, RSMo Supp. 2013, provides that a trial court must “instruct the jury with respect to a particular included offense only if there is a basis in the evidence for acquitting the defendant of the immediately higher included offense and there is a basis in the evidence for convicting the defendant of that particular included offense.” There is almost always a basis in the evidence for acquitting the defendant of the immediately higher-included offense because the jury has a right to disbelieve all, some, or none of the evidence presented in a particular case. State v. Jackson, 483 S.W.3d 390, 399 (Mo. banc 2014). The State agrees that there was a basis in the evidence to acquit Mr. Roberts of second-degree domestic assault because, as recognized in Jackson, the jury, in its role as finder of fact, could disbelieve the State’s evidence. The issue in this case is whether there is a basis in the evidence for convicting Mr. Roberts of the lesser-included offense of third-degree domestic assault. If there is a basis in the evidence for convicting Mr. Roberts of the lesser-included offense, then the trial court erred by refusing to submit that instruction to the jury.
“[T]he jury’s right to disbelieve all or any part of the evidence, and its right to refuse to draw any needed inference, is a sufficient basis in the evidence to justify giving any lesser included offense *902instruction when the offenses are separated only by one differential element for which the state bears the burden of proof.” Jackson, 433 S.W.3d at 401. Lesser-included offenses that are separated from the greater offense by one differential element for which the State bears the burden of proof are referred to as “nested” lesser-included offenses. A “nested” lesser-included offense consists of a subset of the elements of the greater offense. Consequently, “it is impossible to commit the greater without necessarily committing the lesser.” Id. at 404. A defendant is entitled, upon proper request, to an instruction on a “nested” lesser-included offense and, therefore, does not have to introduce affirmative evidence or “cast doubt” over the state’s evidence in any way. Id. at 401-402.
In pertinent part, section 565.0732 defines the crime of second-degree domestic assault as “knowingly” causing physical injury to a family or household member. Section 565.074 defines the crime of third-degree domestic assault as “recklessly” causing physical injury to a family or household member. Section 562.021.4 provides that, “[w]hen recklessness suffices to establish a culpable mental state, it is also established if a person acts purposefully or knowingly.” Therefore, proof that Mr. Roberts committed second-degree domestic assault by “knowingly” causing physical injury to A.A. necessarily means there was also a basis in the evidence for the jury to convict Mr. Roberts of third-degree domestic assault by “recklessly” injuring A.A. Mr. Roberts was entitled to his properly requested instruction on the nested lesser-included offense of third-degree domestic assault.
The State argues that third-degree domestic assault is not a “nested” lesser-included offense within the offense of second-degree domestic assault because the different mental states do not constitute differential elements. The State reasons that each offense involved “physical injury,” but second-degree domestic assault requires proof that the defendant “knowingly” caused physical injury, while third-degree domestic assault requires proof that the defendant “recklessly” caused physical injury. The State concludes that “knowingly” is not a differential element that, when removed from the greater offense, leaves a smaller subset of elements that comprise the offense of domestic assault in the third degree. '
The State’s argument is without merit. The offenses of second- and third-degree domestic assault require the State to prove that the defendant acted with a different intent with respect to the infliction of physical injury. Different mental states are required to prove the separate offenses of second- and third-degree domestic assault, and these different mens rea requirements are differential elements on which the State bears the burden of proof. The remaining element of both offenses, the infliction of physical injury, remains the same.
The State also argues that the evidence showing that Mr. Roberts punched or struck A.A. cannot support an inference of recklessness because such conduct is practically certain to result in injury and, therefore, supports only an inference that Mr. Roberts “knowingly” caused physical injury to A.A. This argument is foreclosed by section 562.021.4, in which the legislature specifically provided that “knowingly” engaging in criminal conduct establishes that the conduct was also reckless. Therefore, if Mr. Roberts “knowingly” inflicted physical injury, he necessarily engaged in conduct sufficient to establish that he *903“recklessly” inflicted physical injury. The offense of third-degree domestic assault is a “nested” lesser-included offense within the offense of second-degree domestic assault.
II. Joinder
In his second point, Mr. Roberts asserts that the trial court erred in joining his charges and in denying his motion to sever. The propriety of joinder is a question of law. State v. McKinney, 314 S.W.3d 339, 341 (Mo. banc 2010). “Liberal joinder of criminal offenses is favored.” Id. An appellate court will reverse the trial court’s decision to overrule a motion to sever only if the court abused its discretion. Id. at 342.
Section 545.140.2 and Rule 23.05 provide for joinder of offenses. Section 545.140.2 provides:
“[T]wo or more offenses may be charged in the same indictment or information ... if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
Similarly, Rule 23.05 provides:
All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.
The statute and the rule both provide that offenses can be joined because the offenses are based on transactions that are “connected.” Offenses can be connected “by their dependence and relationship to one another.” McKinney, 314 S.W.3d at 341, quoting State v. Morrow, 968 S.W.2d 100, 109 (Mo. banc 1998).
Mr. Roberts was charged with domestic assault and with witness tampering for allegedly attempting to persuade the victim to not testify against him. The alleged assault and witness tampering are plainly “connected” because the tampering would not have occurred in the absence of the assault. Further, the alleged witness tampering was aimed directly at evading responsibility for the alleged assault. The two crimes are based on “connected” transactions. The trial court did not err by joining the offenses.
The fact that joinder was permissible does not mean that joinder was proper. Severance may still be required “to prevent substantial prejudice to the defendant if the charges are not tried separately.” McKinney, 314 S.W.3d at 342. To determine whether severance is required, courts consider the number of offenses joined, the complexity of the evidence and the likelihood that the jury can distinguish the evidence pertaining to each offense. Id.
Mr. Roberts was charged with two offenses with distinct and relatively simple elements. The assault charge required proof that Mr. Roberts injured A.A. The witness tampering charge required the jury to find that A.A. was the victim of the charged assault. It is unlikely that joining the assault and witness tampering charges would confuse the jury, nor would it invite the jury to convict Mr. Roberts based on irrelevant evidence. Joinder was appropriate, and the trial court did not abuse its discretion in overruling Mr. Roberts’ motion for severance.
Conclusion
The trial court erred by refusing Mr. Roberts’ proposed jury instruction on the nested lesser-included offense of third-de*904gree domestic assault. Consequently, Mr. Roberts’ conviction for second-degree domestic assault is vacated. Mr. Roberts’ conviction for witness tampering was based on his assault conviction and, therefore, must also be vacated.
The judgment is vacated, and the case is remanded.
All concur.
. This Court has jurisdiction pursuant to Mo. Const, art. V, § 10.
. All references to statutes are to RSMo 2000, unless indicated otherwise. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284175/ | ORDER
PER CURIAM
Antonio Green (Movant) appeals the motion court’s denial, without an evidentiary hearing, of his Rule 24.085 amended motion for post-conviction relief. Movant maintains that his two convictions for kidnapping as to the same victim violate his right to be free from double jeopardy. Accordingly, Movant claims that his guilty pleas were involuntary and the motion court erred by not granting his motion for post-conviction relief. 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/5284176/ | ORDER
PER CURIAM
D.O. (“Father”) appeals the judgment of the trial court terminating his parental rights to his son E.L.B. In his first three points, Father argues the court erred in terminating his parental rights pursuant to section 211.447.5,1 subsections (1), (3), and (6), because the evidence was insufficient to support termination on these grounds. In his fourth point, Father argues the court abused its discretion by finding it to be in Child’s best interest to terminate his parental rights.
*910We have reviewed the briefs of the parties and the record on appeal. The judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. A written opinion would have no precedential value. We have, however, furnished the parties, for their information only, with a memorandum setting forth the reasons for this order.
The judgment is affirmed pursuant to Missouri Supreme Court Rule 84.16(b).
. All further statutory references are to R.S.Mo. (Cum. Supp. 2013) unless otherwise noted. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285286/ | OPINION
John Donovan, Justice
A jury convicted appellant, Robert Luches Parish, of murdering Curtis Wyatt and Beverly Parish. In each case,, the trial court, after finding enhancement paragraphs “true,” sentenced appellant to life imprisonment. In a single issue, appellant claims the evidence is factually and legally insufficient to support the murder convictions. We affirm.
I. Background
On the evening of February 23, 2011, Erica Morgan, who had recently been released from jail, spent time with friends drinking at a bar. At closing time, around 2:00 a.m. on February 24, 2011, Morgan returned to the home of her boyfriend, Michael Simons. After arguing with Si-mons, Morgan saw people in the front yard at appellant’s house, which was nearby, and she walked over to visit. Appellant lived in the house with his aunt, Beverly Parish and Curtis Wyatt, who were both home with appellant at that time.
Morgan gave appellant ten dollars and asked him to buy her some crack cocaine. Appellant -agreed, left Morgan inside his *424house, and then returned with “a dime” of crack cocaine.. After smoking the crack, appellant “flipped out,” paced the room, cursed at Morgan and Wyatt that they were going to get him sent to the penitentiary, and ordered them to get out of his room.'
Morgan and Wyatt walked out of appellant’s bedroom and into the living "room. Wyatt sat on a chair in the living room and began cleaning the crack pipe. Appellant entered the living room and shot Wyatt in the mouth with a gun. Wyatt spit out some of his teeth that had been dislodged by the bullet and asked appellant why he shot him. Wyatt then crawled around a corner where appellant shot him multiple times before fatally wounding and killing him. Appellant also fired two shots through a bedroom door where Beverly was located. Both shots struck and killed Beverly. Appellant then turned toward Morgan and shot her in the mouth and again in the right hand. Morgan begged appellant not to shoot her anymore. Appellant stopped shooting, and Morgan ran back to Simons’s house, but he refused to let her inside. Not knowing what to do, Morgan initially lay down on a sofa on Simons’s porch and then walked over to a nearby street curb and sat down.
Jarrod Tolbert, who lived near Simons and around the corner from appellant, came outside after he heard a séries of at least five gunshots with a- pause in between rounds. Tolbert heard moaning and found Morgan sitting on the street curb; she appeared to be in shock. Morgan told Tolbert that appellant had shot her in the mouth. Morgan was making gurgling and giggling sounds. Tolbert initially did not believe Morgan had been shot until he saw the wounds and bloodstains at the back of Morgan’s neck. Tolbert paid a friend to drive Morgan to receive medical attention. Morgan was dropped off at a nearby Are station and, thereafter, was transported by ambulance to the hospital. . Morgan’s hands were not tested for gunshot residue at the hospital." 'J
After putting Morgan in his friend’s car, Tolbert went to appellant’s house to check on the occupants. Before going. inside, Tolbert called the police. Tolbert then knocked on appellant’s window and called out appellant’s name, but there was no response. Tolbert went, inside and found that Wyatt and Beverly were both dead. Tolbert called 911 and told the dispatcher that there had been a homicide, two people had been shot, and one person had been shot in the mouth. Tolbert named appellant as the shooting suspect to the 911 operator. Appellant was not in' the house when police arrived.
Morgan survived being shot twice, but injuries to her mouth and throat prevented her from speaking for several weeks. Nevertheless, Morgan communicated by writing notes to the officers ’who were investigating the murders of Beverly and Wyatt. Morgan identified appellant as the person who shot and killed Wyatt and then shot Morgan. Morgan also identified appellant from a photo array shown to her in the hospital. After providing the officers with extensive notes, Morgan signed ■ a sworn statement detailing the incident. Ultimately, after receiving a voice box, Morgan provided a recorded oral statement to the officers.
Detective Roy Swainson, one of the investigating officers, found Wyatt and Beverly dead in their home when he arrived within hours of the shooting. Officer Lorenzo Verbitskey, a crime-scene unit investigator, collected blood samples, teeth, and seven spent. 9~millimeter Winchester Luger shell casings from’ around the house. A crack pipe was collected from Wyatt’s pant pocket. Officer Verbitskey documented bullet holes in the door of the *425bedroom where Beverly’s body was found and concluded that she was likely standing near the door' when the two bullets were fired. Officer Verbitskey saw no signs of a struggle in the 'house,1 and none of Morgan’s DNA evidence was found under the fingernails of Wyatt or Beverly. Ballistics testing conducted by Tammy Lyons, a firearms examiner, showed that, all bullets were fired from the same weapon. Morgan later identified the same gun that was determined to be the murder weapon as the gun that appellant used to shoot her and Wyatt. Detective Swainson found that the results of the DNA testing were consistent with his investigation, including Morgan’s account of events. .
After the shootings, appellant neither returned to his house nor contacted his sister, Patricia Parish. A few days after the shootings, on February 26, 2011, Patricia unlocked her grandmother’s house for a cleaning crew and, while speaking with a friend across the street, observed appellant entering appellant’s home; Patricia called the police. On that same day, appellant approached Tolbert in Tolbert’s front yard, and appellant showed Tolbert his gun; Tolbert contacted the police.
- Later that day, when, patrol officers spotted appellant walking in the street, appellant ran away as one officer pursued him- on foot and another in a patrol car; he refused to obey orders to stop. Appellant tried to jump a fence; the officer on foot caught up to appellant, and a confrontation ensued, causing the officer in his patrol car to exit and assist in subduing appellant. One officer handcuffed appellant’s left arm; however, appellant, freed his right arm, pulled out a gun, and threatened to kill the officers if they did not shoot him. Both officers struggled with appellant to obtain control over the gun, and it was only after a third officer" tasered appellant’s thigh that they-were able to take the gun from appellant. That gun, based on subsequent ballistic analysis and identification, was the same weapon that was used to kill Wyatt and Beverly.
Clay Davis, a DNA analyst, determined that there was DNA evidence 6f Morgan, Wyatt, and Beverly in the, house. Davis did not have a known DNA profile of appellant at the time of his testing and thus did not compare the DNA profile of appellant to DNA evidence'in the house. Davis testified that Morgan’s DNA was not found under the fingernails of either Wyatt or Beverly, demonstrating there was no physical contact between them at that time. Davis did not' test the gun retrieved from appellant for DNA evidence as he determined that the gun had been handled by too many people without gloves to allow for proper testing. Additionally, no gunshot-residue testing was performed on appellant because tod much time had passed between the shootings and his apprehension.
Dr, Albert Chu, a medical examiner who performed an autopsy on Beverly’s body, determined Beverly’s cause of . death was gunshot wounds to the head, neck, arid torso. Dr. Chu also performed an autopsy on Wyatt’s body and determined Wyatt’s cause of death was gunshot wounds to the head, neck, and torso. The toxicology report revealed that Wyatt had ethanol and cocaine in his system. '
Patricia testified that around the time their grandmother passed , away (late-December , 2010) appellant’s behavior changed; he was displaying anger with the family, using drugs more frequently, ac1> ing paranoid, procuring a gun, “engaging” more often with Wyatt, and arguing with *426Beverly. Patricia recalled an incident during that time frame when Wyatt said that appellant punched him in the jaw and put a knife to his neck, prompting Beverly to call the police. Additionally, on or around February 20 or 21, 2011, appellant told Patricia that Wyatt had stolen his gun and that appellant was going to kill Wyatt if he did not give the gun back. Patricia testified that appellant was irritated with his family because the amount he stood to inherit from his grandmother’s insurance policy was reduced when the family used a portion to pay for burial expenses of an aunt and because appellant could not cash the check made out to him in the reduced amount because it was made out to “Robert Seymour,” using his grandmother’s last name.
II. Sufficiency of the Evidence
In his sole issue, appellant argues the evidence is factually and legally insufficient to support his convictions. The Court of Criminal Appeals has abolished factual-sufficiency review, holding the evidence is reviewed only for legal sufficiency. See Howard, v. State, 333 S.W.3d 137, 138 (Tex.Crim.App.2011); accord Temple V. State, 390 S.W.3d 341, 360 (Tex.Crim.App.2013). Thus, we will consider appellant’s issue under the legal-sufficiency standard of review.
A. Standard of review
When determining whether evidence is legally sufficient, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 660 (1979)). We do not sit as a thirteenth juror and may not substitute our judgment for that of the fact finder by -re-evaluating weight and credibility of the evidence. Isassi v. State; 330 S.W.3d 633, 638 (Tex.Crim.App.2010). Rather, we defer to the responsibility, of the fact finder to fairly resolve conflicts in testimony, .weigh the evidence, and draw- reasonable inferences from basic facts to ultimate facts. Id. This standard applies equally to both circumstantial and direet evidence. Id. Circumstantial evidence is as probative as direct evidence in establishing guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). Our duty as the reviewing court is to ensure the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State,. 235 S.W.3d 742, 750 (Tex.Crim.App.2007).
B. Analysis
A person commits murder if he (1) intentionally or knowingly causes the death of an individual, (2) intends to cause serious bodily'injury and commits an act clearly dangerous to human life ’ that causes the death of an individual, or (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, hé commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(l)-(3) (West 2011). When the charge authorizes the jury to convict on more than one theory, as it did' in both of the cases under review,2 we will uphold the *427verdict if the evidence is sufficient on any of the- theories presented. Hooper, 214 S.W.3d at 14.
A person acts intentionally with
respect to the nature of his conduct or to a result of his conduct when'it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Penal Code Ann. § 6.08(a) (West 2011). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b).(West 2011). Proof of a mental state almost always depends upon circumstantial evidence. Vanes v. State, 63 S.W.3d 824, 833 (Tex.App.-Houston [14th Dist.] 2001, no pet.). A jury may infer intent or knowledge from any facts that tend to prove its existence, including the acts, words, conduct of the accused, and the method of committing the offense. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim.App.2004); Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002). A jury may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that .death or serious bodily injury could result from the use of the weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996).’ A firearm is a deadly weapon per se. Tex. Penal Code Ann. § 1.07(a)(17)(A) (West Supp.2015).
In framing his issue for review, appellant contends that there was “insufficient evidence beyond a reasonable doubt that [he] shot and killed Curtis Wyatt and Beverly Parish.” He further maintains that the “testimony of Jarrod Tolbert and Erica Morgan was too inconsistent, contradictory and contrary to the evidence to support a verdict of guilty in these cases.” Appellant does not articulate what .evidence is lacking and does not identify specific testimony of Tolbert and Morgan that purportedly fails to support the jury’s verdicts.
Although appellant suggested during jury argument and cross-examination that Morgan shot Wyatt and Beverly and, in the course of struggling with appellant for the gun, Morgan shot herself twice, the jury heard testimony from Morgan to the contrary. Morgan denied struggling with appellant’ for the gun. Instead, Morgan testified that she heard five shots when appellant shot Wyatt and then appellant shot her twice. Tolbert’s testimony corroborated Morgan’s testimony as to the timing and minimum number of shots fired. See Jackson, 443 U.S. at 326, 99 S.Ct. 2781 (holding that appellate courts defer to the jury’s resolution of conflicts in evidence as long as the resolution is rational).
Appellant further questioned Morgan’s credibility by suggesting -that Morgan, a convicted prostitute, had sexual relations with Wyatt and appellant; however, Morgan denied having such relations with either man. But, even if the jury believed she had such relations, the jury was' nonetheless free to believe Morgan’s testimony regarding the murders. - Further, the jury heard Morgan admit having a criminal history for multiple offenses, admit smoking crack cocaine with appellant and Wyatt a few days before the shootings, admit touching appellant’s gun a few days before the shootings, admit drinking and getting high during the evening of February 23, 2011, and admit smoking crack cocaine with Wyatt and appellant immediately pri- or to the shootings. We must defer to the jury’s implied . assessment that Morgan was credible • despite the above-cited admissions.
*428In addition to Morgan’s testimony, physical evidence linked appellant to the offenses: (1) officers collected seven spent shell casings, supporting Morgan’s testimony that appellant fired seven shots that night3; (2) crime scene investigators observed two bullet holes in Beverly’s door, which matched the autopsy results indicating that Beverly had been shot twice; (3) DNA evidence (the lack of Morgan’s DNA under the fingernails of Wyatt or Beverly) supported Morgan’s testimony that appellant shot her and Wyatt without provoca^ tion and that there was no physical contact between Morgan, Wyatt, and Beverly; and, (4) the crack pipe recovered in Wyatt’s pant pocket as well as the toxicology results corroborated Morgan’s testimony that she, Wyatt, and appellant were smoking crack prior to thé shootings.
Patricia’s testimony provided sufficient evidence of appellant’s motive for the murders by showing, that after their grandmother died, appellant’s more frequent drug, use caused, him to be angry and paranoid, he had issues with Wyatt and threatened to kill, him, appellant argued with Beverly, and appellant was upset with the family over the reduction in his inheritance. While • motive is not. an element of murder, it may provide circumstances indicative of guilt.4 See Clayton v. State, 235 S.W.3d 772, 781 (Tex.Crim.App.2007).
Finally, appellant’s conduct after the shootings provided additional circumstantial evidence in support of the verdicts: (1) he left , the house before first responders arrived; (2) he did not call the police and report the shootings; (3) he did not contact his sister; and (4) he not only resisted arrest but threatened to shoot officers if they did not kill him. See Devoe v. State, 354 S.W.3d 457, 470 (Tex.Crim.App.2011) (recognizing flight is circumstantial evidence of guilt). And, his possession of the murder weapon at the time of his arrest was highly probative of his guilt.
In summary, the. jury heard evidence that appellant deliberately shot Wyatt multiple times causing his death, and, in furtherance of shooting Wyatt, appellant shot Beverly twice, causing her death. We therefore, hold that the evidence is legally sufficient to support the jury’s finding beyond a reasonable doubt that appellant committed murder. See Aguirre v. State, 732 S.W.2d 320, 326 (Tex.Crim.App.1987) (opinion on reh’g) (sufficient evidence to support appellant’s conviction of murdering his daughter when appellant fired a shotgun into a door to kill his wife but the shotgun pellets hit his daughter, killing her).
We overrule appellant’s issue and affirm the trial court’s judgments.
. Officer Verbitskey noted that there was an overturned laundry basket in the living room; however, he did not perceive it as indicating signs of a struggle.
. In the case involving Wyatt’s death, the jury was instructéd only as to the first two theories *427of murder; however, the charge in the case involving Beverly’s death instructed the jury on all three different theories of murder, as alleged in the indictment.
. While Morgan did not see Beverly on February 24, 2011, and did not know whether she was in the house at-the time, Patricia testified that Beverly lived in the house with appellant, was dropped off at her house around 10:00 p.m, on February 23, and was known to come 1 out of her'bedroom when appellant was involved in arguments or disturbances with family members.
. Intent may be inferred from acts, words and conduct of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991) (en banc); Mouton v. State, 923 S.W.2d'219, 223 (Tex.App.-Houston [14th Dist.] 1996; no pet.). A culpable mental state is almost always proven through circumstantial evidence. Warren v. State, 797 S.W.2d 161, 164 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). Intent is a fact question and may’be inferred from circumstantial evidence. See Salinas v. State, 163 S.W.3d . 734, 739-40 (Tex.Crim.App.2005); Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App.2004). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5286552/ | SHERRI B. SULLIVAN, P.J.
Introduction
John Shockley, Sr. (Appellant) appeals from the trial court’s judgment convicting him of the class C felony of stealing a motor vehicle and sentencing him to three years as a persistent offender. We reverse and remand.
Factual and Procedural Background
William Liebermann (Liebermann) owns a 1991 Honda Civic in “great condition” with no mechanical problems. Liebermann arrived at his parking lot where he kept his Civic parked and noticed it was missing. A nearby surveillance camera system revealed the Civic had been taken the day before, on April 21, 2014. The video revealed a truck that had “I buy junk cars” language written on it entering the parking lot at 8:50 a.m., then leaving. At 3:50 p.m., a different truck pulled into the parking lot. Appellant and another man stepped out of the truck and walked around the Civic. The two pushed the Civic out of the parking lot, and then Appellant got back into the truck and the other man stepped inside the Civic. The Civic then went out of view of the surveillance camera.
Police later arrested Appellant. Appellant made a statement to police and testified at trial that he buys and sells junk cars; he received a call from an individual seeking to sell the Civic for $150 because it was broken down. Appellant paid the individual only $75 because he provided no title. Appellant then sold the Civic to an individual in Troy for $200.
The State charged Appellant with felony stealing a motor vehicle on April 21, 2014, under Section 570.030.1 Appellant opted for a bench trial, and after being found to be a persistent offender, was tried and found guilty as charged. The court sentenced Appellant to three years. This appeal follows.
Point on Appeal
In his point on appeal, Appellant claims the trial court erred in entering judgment for the class C felony of stealing a motor vehicle and in sentencing him to three years’ imprisonment for that offense because the sentencing enhancement factors contained in Section 570.030.3 apply only to “any offense in which the value of property or services is an element,” and value is not an element of stealing a motor vehicle.
Standard of Review
Appellant made no objection at his judgment and sentencing. An unpre-served claim of error can be reviewed only for plain error, which requires a finding of manifest injustice or a miscarriage of justice resulting from the trial court’s error. State v. Celis-Garcia, 344 S.W.3d 150, 154 (Mo.banc 2011). Plain error relief is appropriate when the alleged error so affects the rights of the defendant as to cause a manifest injustice or miscarriage of justice. State v. Phelps, 965 S.W.2d 357, 358 (Mo. App. W.D. 1998). An unauthorized sentence affects substantial rights and results in manifest injustice. Drennen v. State, 906 S.W.2d 880, 882 (Mo.App. E.D. 1995).
Discussion
Section 570.030, titled Stealing — Penalties, provides in pertinent part:
*921. A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.
[[Image here]]
3. Notwithstanding any other provision of law, any offense in which the value of property or services is an element is a class C felony if:
(1) The value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand dollars; or
[[Image here]]
(3) The property appropriated consists of:
(a) Any motor vehicle, watercraft or aircraft; or
[[Image here]]
(d) Any firearms.2
*93For purposes of this appeal, the relevant language of Section 570.030.3 is the class C felony sentence enhancing qualifier, “any offense in which the value of property or services is an element [emphasis added],” preceding and qualifying a long list of different properties listed (a) through (p). As set forth above, (a) includes a motor vehicle, which is pertinent in our case. Subsection (d) lists firearms, the relevance of which becomes apparent shortly.
The property Appellant stole was a motor vehicle, but although Section 570.030.3(1) expressly includes value as an element of the crime for stealing property or services valued at $500 or more but less than $25,000, Section 570.030.3(3)(a) does not include the value of the motor vehicle as an element of the crime. As such, the statute may not be used to enhance Appellant’s motor-vehicle stealing conviction to a class C felony. The same result occurred in State v. Bazell, 497 S.W.3d 263 (Mo.banc 2016), although the stealing offense in that case involved firearms.
In Bazell, Mr. Bazell was charged with, among other things, class C felony stealing for stealing firearms. Bazell, 497 S.W.3d at 265. The Bazell Court stated that “the felony enhancement provision [in Section 570.030.3] ... only applies if the offense is one in which the value of the property or services is an element.” Id. at 266. Because Mr. Bazell’s firearms stealing conviction under Section 570.030.3(3)(d) did not include the value of the firearms as an element of the crime, the Court reversed the firearms conviction. Id. at 267. Likewise, in the instant case, Appellant’s motor-vehicle stealing conviction under Section 570.030.3(3)(a) did not include the value of the motor vehicle as an element of the crime. Based on Bazell, Appellant’s point on appeal is well-taken, which the State concedes. The point is granted.
Conclusion
Appellant’s class C felony stealing a motor vehicle conviction is reversed and remanded for entry of misdemeanor stealing and for resentencing.
Roy L. Richter, J., and Colleen Dolan, J., concur.
. All statutory references are to RSMo 2000.
. Section 570.030 in its entirety provides:
1, A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.
2. Evidence of the following is admissible in any criminal prosecution pursuant to this section on the issue of the requisite knowledge or belief of the alleged stealer:
(1) That he or she failed or refused to pay for property or services of a hotel, restaurant, inn or boardinghouse;
(2) That he or she gave in payment for property or services of a hotel, restaurant, inn or boardinghouse a check or negotiable paper on which payment was refused;
(3) That he or she left the hotel, restaurant, inn or boardinghouse with the intent to not pay for property or services;
(4) That he or she surreptitiously removed or attempted to remove his or her baggage from a hotel, inn or boardinghouse;
(5) That he or she, with intent to cheat or defraud a retailer, possesses, uses, utters, transfers, makes, alters, counterfeits, or reproduces a retail sales receipt, price tag, or universal price code label, or possesses with intent to cheat or defraud, the device that manufactures fraudulent receipts or universal price code labels. 3. Notwithstanding any other provision of law, any offense in which the value of property or services is an element is a class C felony if:
(1) The value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand dollars; or
(2) The actor physically takes the property appropriated from the person of the victim; or
(3) The property appropriated consists of:
(a)Any motor vehicle, watercraft or aircraft; or
(b) Any will or unrecorded deed affecting real property; or
(c) Any credit card or letter of credit; or
(d) Any firearms; or
(e) Any explosive weapon as defined in section 571.010; or
(f) A United States national flag designed, intended and used for display on buildings or stationary flagstaffs in the open; or
(g) Any original copy of an act, bill or resolution, introduced or acted upon by the legislature of the state of Missouri; or
(h) Any pleading, notice, judgment or any other record or entry of any court of this state, any other state or of the United States; or
(i) Any book of registration or list of voters required by chapter 115; or
(j) Any animal considered livestock as that term is defined in section 144.010; or
(k) Live fish raised for commercial sale with a value of seventy-five dollars; or
(l) Captive wildlife held under permit issued by the conservation commission; or
(m) Any controlled substance as defined by section 195.010; or
(n) Anhydrous ammonia;
(o) Ammonium nitrate; or
(p) Any document of historical significance which has fair market value of five hundred dollars or more.
4. Notwithstanding any other provision of law, stealing of any animal considered livestock, as that term is defined in section 144.010, is a class B felony if the value of the livestock exceeds ten thousand dollars.
5. If an actor appropriates any material with a value less than five hundred dollars in violation of this section with the intent to use such material to manufacture, compound, produce, prepare, test or analyze amphetamine or methamphetamine or any of their analogues, *93then such violation is a class C felony. The theft of any amount of anhydrous ammonia or liquid nitrogen, or any attempt to steal any amount of anhydrous ammonia or liquid nitrogen, is a class B felony. The theft of any amount of anhydrous ammonia by appropriation of a tank truck, tank trailer, rail tank car, bulk storage tank, field (nurse) tank or field applicator is a class A felony,
6. If the actor appropriates or attempts to appropriate property that is owned by or in the custody of a financial institution and the property is taken or attempted to be taken physically from an individual person to deprive the owner or custodian of the property, the theft is a class B felony.
7. The theft of any item of property or services pursuant to subsection 3 of this section which exceeds five hundred dollars may be considered a separate felony and may be charged in separate counts.
8. Any person with a prior conviction of paragraph (j) or (l) of subdivision (3) of subsection 3 of this section and who violates the provisions of paragraph (j) or (Z) of subdivision (3) of subsection 3 of this section when the value of the animal or animals stolen exceeds three thousand dollars is guilty of a class B felony. Notwithstanding any provision of law to the contrary, such person shall serve a minimum prison term of not less than eighty percent of his or her sentence before he or she is eligible for probation, parole, conditional release, or other early release by the department of corrections.
9. Any offense in which the value of property or services is an element is a class B felony if the value of the property or services equals or exceeds twenty-five thousand dollars.
10. Any violation of this section for which no other penalty is specified in this section is a class A misdemeanor. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284180/ | ORDER
PER CURIAM:
Freddie Russell appeals the judgment of the motion court denying his Rule 29.15 motion for postconviction relief without an evidentiary hearing. Russell sought to set aside his convictions and sentences for attempted manufacture or production of methamphetamine and possession of methamphetamine. He contends that the motion court clearly erred in denying his motion because he was denied effective assistance of counsel when trial counsel *912failed to object to the State’s improper closing argument and when appellate counsel failed to assert on direct appeal that the trial court erred in denying his motion to suppress evidence found in his apartment and garage. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.
The judgment is affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284181/ | Order
Per Curiam
Carlos Sarmiento appeals the circuit court’s order denying his Rule 29.15 motion without an evidentiary hearing, following his conviction for first-degree murder and armed criminal action. Sarmiento contends he was entitled to postconviction relief because his trial counsel was ineffective in failing to investigate and obtain evidence showing that someone else may have committed the crimes. Upon a thorough review of the record and the briefs, we find no error and affirm the judgment denying post-conviction relief. A formal, published opinion would serve no jurisprudential purpose; however, we have provided the parties with a Memorandum explaining the reasons for our decision. Rule 84.16(b) | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284182/ | Order
Per Curiam:
D.M.M., a juvenile, appeals the judgment of the Circuit Court of Jackson County, Missouri, finding that D.M.M. had committed acts for which she would have been criminally responsible had she been an adult, and finding that D.M.M. also committed the status offense of violating a court order. Finding no error, we affirm. Because a published opinion would serve no jurisprudential purpose, the parties have separately been provided a legal memorandum setting forth the reasons for our ruling. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284184/ | ORDER
PER CURIAM.
Frederick Spencer (Appellant) appeals from the trial court judgment dismissing his Petition filed pursuant to 42 U.S.C. § 1983 against Jennifer Joyce, as St. Louis City Circuit Attorney; and Richard Gray, Jerry Lee, Thomas Irwin, Betty Battle Williams, Francis G. Slay, and Mark Lawson, in their official capacities as members of the.St. Louis City Board of Police Com*31missioners (collectively the Respondents). We have reviewed the briefs of the parties and the record on appeal and conclude the trial court committed no error in dismissing Appellant’s Petition against the Respondents. 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). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284185/ | ORDER
PER CURIAM.
Christopher Ransfer appeals the judgment entered upon his conviction by jury of one count of robbery in the first degree and one count of 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) (2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125610/ | Judgment and order denying new trial affirmed. Opinion by
Talcott, P. J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2661203/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WALTER L. JACKSON, JR.,
Plaintiff,
Civil Action No. 10-1861 (BJR)
v.
MEMORANDUM ORDER
RAY MABUS, Secretary of the Navy,
Defendant.
This matter is before the Court upon consideration of the parties’ cross-motions for
summary judgment. Plaintiff, Walter L. Jackson, Jr., a former enlisted member of the United
States Navy, brings this action against the Secretary of the Navy. Jackson alleges, inter alia, that
the Board for Correction of Naval Records (“BCNR” or “the Board”), acting on behalf of the
Secretary, acted arbitrarily and capriciously in violation of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701, et seq., when it declined to alter Jackson’s military record. Jackson
challenges both the Board’s rejection of his initial claim, and its rejection of his request for
reconsideration. Because the Court finds that the Board’s decision to reject his request for
reconsideration violated the APA, the Court will defer ruling on the motions for summary
judgment and remand to the Board to address more completely Jackson’s request for
reconsideration.
I. BACKGROUND
Jackson enlisted in the Navy in 1989. Am. Compl. at ¶ 3, Dkt. No. 20. By 2005, Jackson
had risen to the rank of first class petty officer (referred to as “E-6”), and was stationed at U.S.
Naval Computer and Telecommunications Station (“NCTS”) Bahrain in support of naval
operations in the region. Id. at ¶¶ 18, 47. While Jackson had had a successful 16-year military
career, in 2005 Jackson began experiencing disciplinary problems. Administrative Record
(“AR”) 58, 126, 187, Dkt. No. 16. Jackson’s troubles started when he was found guilty of
absence without leave on November 27, 2005. AR 58. He was later found guilty of
insubordination and received a permanent reduction in rank to E-5 on May 24, 2006. Am.
Compl. at ¶ 47; AR 126. Following these incidents, Jackson’s commanding officers
recommended that Navy not re-enlist him and Jackson was ultimately discharged on July 18,
2006. Am. Compl. at ¶ 55.
On January 2, 2007, Jackson applied to the BCNR for correction of his military records,
alleging that his commanding officers had improperly punished him for absence without leave
and insubordination. AR 203-10. He requested, inter alia, that his former rank of E-6 be
reinstated and that certain disciplinary actions be removed from his record. AR 210. A three-
member civilian panel of the BCNR reviewed Jackson’s application and denied it on May 7,
2007 finding no error in the actions of his commanding officers and agreeing with their
recommendations that the Navy not re-enlist him. AR 602-04.
On September 11, 2007, Jackson filed a request for reconsideration with the Board. AR
262-77. The Board also received a large box full of binders containing supporting
documentation. See AR 37. Apparently because of an oversight, the Board did not consider the
2
materials in the box and the request for reconsideration together and rejected Jackson’s request
for reconsideration for lack of new or material evidence. See AR 37.
In 2010, Jackson commenced the present action against the Secretary of the Navy seeking
to reverse the decision of the Board. Am. Compl. at ¶ 59. Jackson alleges, inter alia, that the
Board violated the APA by failing to provide sufficient reasoning or rely on substantial evidence
when denying Jackson’s initial application and his request for reconsideration.
In January 2011, Judge Henry Kennedy, the judge presiding over this case at the time,1
with the consent of the parties, remanded the action to the BCNR to determine whether Jackson’s
binders contained any “new or material evidence.” Order, Dkt. No. 5. Jackson’s binders
contained two new documents. Am. Compl. at ¶ 65. The first consisted of a report from an
investigator hired by Jackson. AR 9-11. The second document consisted of the results of
Jackson’s polygraph examination which confirmed Jackson’s view of events surrounding his
absence without leave charge. AR 17-18. On September 28, 2011, a three-member panel of the
Board again rejected Jackson’s request for reconsideration finding a lack of new or material
evidence. AR 5. That decision stated:
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, reviewed the request on 28
September 2011, and determined that it was not accompanied by
new material evidence or other matter as those terms are defined in
title 32, Code of Federal Regulations, section 723.[9]; accordingly
the panel denied [Jackson’s] request.
AR 5.
II. LEGAL STANDARD
The Secretary of the Navy, who acts through the BCNR, “may correct any military record
1
This case was reassigned to the undersigned judge on December 19, 2011. Reassignment, Dkt.
No. 18.
3
of [his] department when [he] considers it necessary to correct an error or remove an injustice.”
10 U.S.C. § 1552(a)(1). Federal courts review final decisions of the BCNR under the APA.
Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997); see Kreis v. Sec’y of Air Force, 406 F.3d
684, 686 (D.C. Cir. 2005) (applying the APA to a denial of a request for reconsideration).
Under the APA, a reviewing court shall “defer to the [BCNR’s] decision unless it is
arbitrary and capricious, contrary to law, or unsupported by substantial evidence.” Frizelle, 111
F.3d at 176; accord 5 U.S.C. § 706(2)(A), (C). “The requirement that [the BCNR’s decision] not
be arbitrary and capricious includes a requirement that the [BCNR] explain its result.” Dickson
v. Sec’y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995) (citation omitted). The BCNR must
“provide an explanation that will enable the court to evaluate the [BCNR’s] rationale at the time
of decision.” Id. (citation omitted). Thus, the BCNR is required to “examine the relevant data
and articulate a satisfactory explanation for its action including a rational connection between the
facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983).
III. ANALYSIS
Jackson argues that the Board’s rejection of his request for reconsideration was arbitrary
and capricious because the Board did not adequately explain why it rejected his proffered
evidence. Pl.’s Mot. Summ. J. at 9, Dkt. No. 22. Under Board regulations, new evidence is
“evidence not previously considered by the Board and not reasonably available to the applicant
at the time of the previous application.” 32 C.F.R. § 723.9. Material evidence is evidence that is
“likely to have a substantial effect on the outcome.” Id. As previously noted, upon remand, the
Board considered Jackson’s new submissions, namely an investigator’s report and the results of
Jackson’s polygraph test. AR 5. The Board determined that neither of these documents
4
contained any evidence that would warrant a change in the Board’s decision. AR 5. However,
Plaintiff contends that the Board merely provided a “boilerplate” response that “not only fails to
connect the facts to the decision, it does not even bother to address the facts.” Pl.’s Mot. Summ.
J. at 9.
The Secretary counters that the Board’s decision to reject Jackson’s request for
reconsideration is amply supported in the record. Def.’s Opp’n at 16, Dkt. No. 25. In the
Secretary’s view, the investigator’s report simply utilizes the same arguments and materials that
Jackson already presented to the Board in his initial application for correction. Id. at 16-17.
Additionally, the Secretary argues that the polygraph results only confirm Jackson’s subjective
belief that he should not have been punished for absence without leave – an argument Jackson
already presented to the Board in his initial application. Id. Therefore, in the Secretary’s view,
neither piece of evidence satisfies § 723.9’s new and material evidence standard.
The Secretary’s argument misses the point. This Court is not tasked with determining the
strength of Jackson’s evidence, only with gauging the adequacy of the Board’s decision making
process. See Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989) (A district court
must “determine only whether the Secretary’s decision making process was deficient, not
whether his decision was correct”). While the Board’s decision need not be “a model of analytic
precision to survive a challenge,” the Court must be able to determine “the [Board’s] path” from
the facts found to the decision made. Dickson, 68 F.3d at 1404 (citing Bowman Transp., Inc. v.
Arkansas-Best Freight System, Inc., 419 U.S. 281, 286 (1974). Here, the Board failed to provide
even the barest explanation for its decision. While the Board did cite the regulation governing
requests for reconsideration, the Board failed to address any facts found, let alone, provide an
adequate explanation connecting those facts to its decision. See Dickson, 68 F.3d at 1405
5
(“When an agency merely parrots the language of a statute without providing an account of how
it reached its results, it has not adequately explained the basis for its decision”). Accordingly,
the Court finds the Board’s rejection of Jackson’s request for reconsideration arbitrary and
capricious.
IV. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that this matter is remanded to the BCNR to address more completely
Plaintiff’s request for reconsideration submitted in September 2007, and it is further
ORDERED that proceedings in this matter are hereby STAYED pending the BCNR’s
response, and it is further
ORDERED that the parties shall submit a status report every 60 days starting from today
during the stay as well as ten days following the BCNR’s response, and it is further
ORDERED that the Court will defer ruling on the remaining issues raised in the parties’
cross-motions for summary judgment until the BCNR has issued its response.
SO ORDERED, this 30th day of January, 2013.
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
6 | 01-04-2023 | 04-03-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3108034/ | RECEIVED
r.ntior OF APPEALS
JUN 0 7 2013
t**»«r**»», ««.}» N/»^}RtGT
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-79,045-01
EX PARTE PAUL DOUGLAS GATES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F-1045830-L IN CRIMINAL DISTRICT COURT NO. 5
FROM DALLAS COUNTY
Per curiam.
OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk ofthe trial court transmitted to this Court this application for a writ of habeas corpus. Exparte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated
robbery and sentenced to forty-five years' imprisonment. The Fifth Court of Appeals affirmed his
conviction. Gates v. State, No. 05-11-00404-CR (Tex. App.—Dallas 2012, no pet.).
Applicant contends that appellate counsel rendered ineffective assistance because counsel
failed to advise him of his right to file a petition for discretionary review (PDR) and to timely notify
him that his conviction had been affirmed. We remanded this application to the trial court for
findings of fact and conclusions of law.
The trial courtmade findings and conclusions and recommendedthat we grantApplicantan
out-of-time PDR. Weagree. On this record, there was a breakdown in the system. Exparte Riley,
193 S.W.3d 900,902 (Tex. Crim. App. 2006). We find that Applicant is entitledto the opportunity
to file an out-of-time PDR of the judgment of the Fifth Court of Appeals in case number 05-11-
00404-CR that affirmed his conviction in cause number F-l 045830-L from Criminal District Court
No. 5 of Dallas County. Applicant shall file his petition for discretionary review with this Court
within 30 days of the date on which this Court's mandate issues.
Delivered: June 5,2013
Do not publish
OFFICIAL BUSINESS
STATE OF TEXAS
RO. BOX 12308, CAPITOL STATION PENALTY FOR PITNEY BOWES
AUSTIN, TEXAS 78711 PRIVATE USE 02 1R $ 00 384
0002003152 JUN05 2013
MAILED FROM ZIPCOOE 78701
WR-79,045-01
St?0FAPPE"-S CLERK
SB DQU-N3B 7S202
ir##t^^lW^##W(J. | 01-04-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/6125612/ | Judgment reversed and new trial ordered before another referee, costs to abide event. Held, that the offer made by the defendants to prove by the witness Bowman certain declarations of John M. Stuart, was erroneously excluded. (69 N. Y., 104; 22 Hun, 389.) | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2198642/ | 458 B.R. 16 (2011)
In re David GIZA, Debtor.
In re Linda Y. Giza, Debtor.
David Giza and Linda Y. Giza, Plaintiffs
v.
Amcap Mortgage, Inc., Deutsche Bank National Trust Company, as Trustee, and OneWest Bank, FSB, Defendants.
Bankruptcy Nos. 07-41782-HJB, 09-30886-HJB. Adversary No. 09-03032.
United States Bankruptcy Court, D. Massachusetts, Western Division.
October 12, 2011.
*18 L. Jed Berliner, Meghan R. Bristol, Berliner Law Firm, Springfield, MA, for Plaintiffs.
Amcap Mortgage, Inc., pro se.
Howard M. Brown, Sarah A. Smegal, Bartlett Hackett Feinberg P.C., Boston, MA, for Defendants.
MEMORANDUM OF DECISION
HENRY J. BOROFF, Bankruptcy Judge.
Before the Court is a "Motion for Judgment on Partial Findings" (the "Motion for Judgment"), filed by defendant Deutsche Bank National Trust Company, Trustee under the Pooling and Servicing Agreement Series ITF Series NBAS 2006-C ("Deutsche Bank"). By its Motion for Judgment, Deutsche Bank alleges that plaintiffs David and Linda Giza (together, the "Gizas") have failed to offer sufficient credible evidence to support the essential elements of their claim under the Massachusetts Consumer Credit Cost Disclosure Act, Mass. Gen. Laws ch. 140D, § 1, et seq. ("MCCCDA") that their residential mortgage held by Deutsche Bank should be rescinded. The Gizas' rescission claim is grounded on their allegation that, at the closing of their loan, the original lender failed to furnish them with all of the forms mandated by the MCCCDA. The Gizas having completed their case and rested, and the Court having carefully reviewed the confused evidence presented, the Court finds and rules that the Gizas have failed to rebut the presumption of delivery under the MCCCDA of the relevant documents and, accordingly, have failed to meet their burden of production. The *19 Court's findings of fact and conclusions of law, pursuant to Rule 7052(a) of the Federal Rules of Bankruptcy Procedure, are cobbled from the parties' Joint Pre-Trial Statement and the evidence presented at trial.
I. FACTS AND TRAVEL OF THE CASE
The Gizas are spouses residing at 15 Orchard Street in Palmer, Massachusetts (the "Property") and are debtors in these separately filed Chapter 13 cases.[1] The Gizas purchased the Property on or about January 6, 1988, subject to a purchase-money mortgage; the Property has since served as their primary residence.
On April 1, 2006, the Gizas sought to refinance their mortgage with Amcap Mortgage, Inc. ("Amcap").[2] The new loan (the "Loan") was approved and the closing (the "Closing") was conducted at the Property on May 24, 2006. Three persons were present: David Giza, Linda Giza, and a female closing agent (the "Closing Agent").[3] According to the Gizas, the Closing lasted somewhere between one and two hours. Trial Tr. June 13, 2011 at 16:12-13; 105:10-11. David Giza executed a promissory note in favor of Amcap and both David and Linda Giza executed a mortgage in order to secure payment of the Loan.[4] Among the various documents executed by the Gizas (generally, the "Loan Documents") were some number of Notices of Right to Cancel (the "Notices") and Truth in Lending Disclosure Statements (the "Disclosure Statements"). Trial Tr. at 18:15-21; 73:6-74:5. Both the Notices and the Disclosure Statements included written acknowledgments of receipt (the "Acknowledgments"), acknowledging the receipt of the required number of forms (two Notices and one Disclosure Statement per borrower). Id. at 74:6-76:2.
At trial, the Gizas appeared hard-pressed to recall the actual events that took place at the Closing, including the manner in which and what documents were presented to and signed by them; however, they concede that they signed the Acknowledgments. Id. at 75:17-76:1. Following the execution of the Loan Documents, the Closing Agent gave the Gizas a set of copies of the Loan Documents (the "May 2006 Documents"). The Gizas could not recall whether the May 2006 Documents given by the Closing Agent to the Gizas were loose and then placed by Linda Giza in a folder or envelope or whether they were given to her by the Closing Agent in a folder or envelope. Id. at 20:14-24. In any event, Linda Giza testified that she took the May 2006 Documents and put them in a safe located on the Property. Id. at 21:24-22:2. The Gizas testified that they did not look at or examine the May 2006 Documents prior to Linda Giza putting them in the safe on the Property and have no recollection of looking *20 at or examining the May 2006 Documents until February 2008. Id. at 28:19-30:13; 107:22-108:8; see also Joint Pre-Trial Statement, Docket No. 149 ("JPTS"), at ¶ 17-18.
At some point in 2007, the Gizas sought to list the Property for sale. In an effort to clean the Property in preparation for sale, some documents, including at least one document related to the Loan, were relocated to a storage facility not on the Property.
On May 10, 2007, David Giza filed a voluntary Chapter 13 case in this Court. In re David Giza, No. 07-41782. Some time between the commencement of that case and February 2008, Linda Giza claims to have discovered that the "seam" on the original folder or envelope containing the May 2006 Documents "let loose." Trial Tr. at 30:7-21; see also JPTS, at ¶ 23. She then separated the May 2006 Documents into different containers. Trial Tr. at 31:20-24; see also JPTS, at ¶ 23. Linda Giza testified that she put the papers relating to David Giza into a "Landry, Lyons & White" folder, but she could not recall for certain the second container used to hold the remaining papers nor whether she put them back in the safe.[5] Trial Tr. at 31:25-32:13; 33:7-14. Linda Giza further testified that at some time between David Giza's case filing and February 2008, she brought the Landry, Lyons & White folder to the Gizas' attorney's office where copies were made. Id. at 23:5-24:5; 32:17-21. Afterwards, Linda brought her papers home, and put them back in the safe located on the Property.[6]Id. at 26:6-13; 32:22-33:6.
On February 4, 2008, Linda Giza claims to have taken documents out of the safe located on the Property and handed them to David Giza who then took them to the Gizas' attorney's office (the "February 2008 Documents"). Id. at 34:6-22; 108:10-109:25. The February 2008 Documents were scanned at the Gizas' attorney's office and remained in David Giza's custody throughout the scanning. David Giza then took the February 2008 Documents home and Linda Giza put them back in the safe located on the Property. Id. at 35:22-36:1.
On June 14, 2008, the Gizas' attorney sent a notice of rescission (the "2008 Rescission Letter") to Amcap and Deutsche Bank on behalf of the Gizas, claiming Truth in Lending Act ("TILA") violations[7] as grounds for the Gizas rescinding the Loan. See Pls.' Ex. 2.
On October 30, 2008, Linda Giza claims to have again personally delivered documents taken from the safe on the Property to the Gizas' attorney's office for scanning (the "October 2008 Documents").[8] The October 2008 Documents remained in Linda Giza's custody throughout the scanning and subsequently went home with her where she put them back in the safe located on the Property. Trial Tr. at 37:3-38:8.
On May 27, 2009, Linda Giza filed a voluntary Chapter 13 case in this Court. In re Linda Giza, No. 09-30886. Three days later, on May 30, 2009, the Gizas instituted the instant adversary proceeding *21 in David Giza's case against Amcap, Deutsche Bank, and OneWest Bank, FSB ("OneWest"), the servicer of the Loan. David Giza and Linda Y. Giza v. Amcap mortgage, Inc., Deutsche Bank National [Trust] Company, as Trustee, and OneWest Bank, FSB, A.P. No. 09-04099.
On June 2, 2009, the Gizas' attorney sent a second notice of rescission (the "2009 Rescission Letter") to Amcap, Deutsche Bank, and OneWest on behalf of the Gizas, this time citing TILA and MCCCDA violations[9] as grounds for the Gizas rescinding the Loan. See Pls.' Ex. 3.
On June 25, 2009, three weeks after David Giza filed his adversary proceeding, Linda Giza filed a nearly identical adversary proceeding in her bankruptcy case, although she added claims for violation of the automatic stay by the defendants with regard to her interest in the Property. Linda Y. Giza v. Amcap mortgage, Inc., Deutsche Bank National Trust Company, [as Trustee], and OneWest Bank, FSB, A.P. No. 09-03032. On June 3, 2010, the two adversary proceedings were consolidated.
Through their Complaint, the Gizas sought to (1) have this Court determine the validity and extent of the recorded mortgage in light of the 2008 and 2009 Rescission Letters and (2) recover, under TILA and MCCCDA, statutory damages, injunctive relief, costs, and attorney's fees for the failure of the defendants to honor their mortgage rescission.[10] In response to the Gizas' Complaint, Defendants Deutsche Bank and OneWest moved to dismiss. On April 15, 2010, this Court issued its decision dismissing all of the Gizas' asserted claims against OneWest and all of the claims against Deutsche Bank, save for the Gizas' claim for rescission under MCCCDA. Giza v. Amcap Mtg., Inc. (In re Giza), 428 B.R. 266 (Bankr.D.Mass.2010) ("Giza I").
On May 20, 2010, the parties filed a Joint Pre-Trial Statement with this Court, agreeing to a discovery plan with respect to the Gizas' remaining claim. In the meantime, sometime in early May 2010, Linda Giza claims to have found additional documents related to the Amcap Loan in a storage facility not located on the Property. (She testified at trial to having no recollection as to how they got there. Trial Tr. at 40:7-41:19; see also JPTS, at ¶ 36.) On May 25, 2010, the Gizas personally delivered to their attorney, various documents related to the Loan, including those discovered in the storage facility, as well as documents related to the adversary proceeding (the "May 2010 Documents"). Trial Tr. at 40:7-16; see also JPTS, at ¶ 37. The May 2010 Documents were scanned at the Gizas' attorney's office and remained in the Gizas' custody throughout the scanning. Upon completion of the scanning, the May 2010 Documents were sealed in a large envelope.[11]
Throughout June and July 2010, the May 2010 Documents were inspected and scanned on multiple occasions both on and away from the Property. JPTS, at ¶ 41-44. On June 11, 2010, one of the Gizas' attorneys came to the Property and inspected the May 2010 Documents. The inspection was conducted on the Property and in the Gizas' presence. The Gizas testified that the attorney observed them *22 put the May 2010 Documents in the safe located on the Property.[12] Trial Tr. at 44:6-7. At trial, Linda Giza was unable to recall whether the May 2010 Documents were put into a new envelope prior to putting them in the safe, although she testified that someone (she could not recall who) signed the flap to the envelope. Id. at 44:8-15.
On June 21, 2010, the Gizas filed a Motion to Amend and the instant Amended Complaint. The proposed amendments sought to correct several factual errors and assert additional claims against Deutsche Bank and OneWest, in an attempt to draw OneWest back into the case. Most significant was the Gizas' discovery and amended allegation that a total of four Notices, rather than a total of three as previously alleged, were actually given to the Gizas at the Closing, but three to David Giza and only one to Linda Giza. On January 4, 2011, this Court denied all of the Gizas' substantive requests to amend the Complaint, with the exception of permitting the Gizas to change the number of Notices received. Giza v. Amcap Mtg., Inc. (In re Giza), 441 B.R. 395 (Bankr. D.Mass.2011) ("Giza II").[13]
On February 28, 2011, Deutsche Bank filed a Motion for Summary Judgment arguing that the Gizas' claim under the MCCCDA was untimely, as they failed to exercise their right to rescind within the three-day period required by § 10(a) of the MCCCDA and therefore, could not state a claim under the MCCCDA as a matter of law. Deutsche Bank further contended that because the Gizas each signed the Acknowledgments, there existed a legal presumption that the Gizas did in fact receive the required number of Notices and Disclosure Statements. The Gizas objected to Deutsche Bank's Motion for Summary Judgment, maintaining that they had a legitimate claim under the MCCCDA and that there were genuine issues of fact and law to be determined by this Court. Following a hearing held on April 21, 2011, this Court denied Deutsche Bank's Motion for Summary Judgment from the bench and set a new trial date for June 13 and 17, 2011.
On June 13, 2011, this Court commenced trial and Deutsche Bank simultaneously filed the Motion for Judgment that is currently before this Court. Both David and Linda Giza testified and a total of 20 exhibits were admitted into evidence. At the conclusion of the Gizas' evidence, this Court took the Motion for Judgment under advisement, suspending the balance of the trial pending a ruling thereon. The Gizas declined to submit a new memorandum in response to the Motion for Judgment and instead asked this Court to take notice of their "Brief in Opposition to Defendant's Motion for Summary Judgment." Trial Tr. at 132:5-7.
II. POSITIONS OF THE PARTIES
The Gizas argue that they properly rescinded the Loan pursuant to Chapter 140D, § 10 of the MCCCDA and § 1635 of TILA because Amcap failed to deliver to each of them the required number of Notices and Disclosure Statements. And because Deutsche Bank failed to honor the Gizas' valid notices of rescission, the Gizas claim that they are vested with the right to retain the net Loan proceeds and Deutsche Bank therefore has no allowable *23 claim in the Gizas' underlying bankruptcy cases.
The Gizas concede that their execution of the Acknowledgments at the Closing gives rise to a rebuttable presumption that they each did in fact receive two Notices and one Disclosure Statement. However, the Gizas contend that they have presented sufficient evidence to rebut this presumption.
Deutsche Bank objects to the Gizas' claims on the facts and as a matter of law. First, Deutsche Bank argues that the Gizas cannot avoid the MCCCDA's time bar for rescission by claiming that they have an extended right to rescind due to the alleged missing documents. Deutsche Bank maintains that even if the Gizas are able to show that they did not receive the requisite number of Notices and Disclosure Statements, the missing forms should be considered a mere "technical violation" since the Gizas' claim is not that the Notices and Disclosure Statements were deficient, but rather that they simply received an insufficient number of them. Deutsche Bank further asserts that a technically incorrect Notice complies with TILA and the MCCCDA if it substantially informs the borrower of the right to cancel the loan. Second, Deutsche argues that even if the Gizas could extend their right to rescind as a matter of law based upon the claim of receiving an insufficient number of Notices and Disclosure Statements, they have not provided sufficient credible evidence to overcome the presumption of receipt created by the Gizas' Acknowledgments that they each received two copies of the Notice and one of the Disclosure Statement.
In response to Deutsche Bank's first argument, the Gizas maintain that the plain language of the MCCCDA allows them to rescind the Loan for a period of four years after its consummation because the original mortgage lender did not deliver to them the required number of Notices and Disclosure Statements. And although the Gizas do admit to the collective receipt of four Notices and one Disclosure Statement per their Amended Complaint, they argue that they have demonstrated that Linda Giza received only one of those Notices and that the one Disclosure Statement was addressed to both David and Linda Giza, leaving one Notice and one Disclosure Statement undelivered. In addition, the Gizas point to several authorities holding that the failure to deliver the requisite number of forms during a closing should not be considered a mere technical violation, as Deutsche Bank claims.
In response to Deutsche Bank's second argument, the Gizas do not dispute that they each signed the Acknowledgments nor do they dispute that their signatures create a rebuttable presumption of delivery. The Gizas do, however, again maintain that they have presented sufficient evidence to allow this Court to find that they have rebutted that presumption.
III. DISCUSSION
A. Summary Judgment on Partial Findings
A motion for judgment on partial findings in a bench trial is governed by Rule 52(c) of the Federal Rules of Civil Procedure ("Rule 52(c)"), as made applicable to adversary proceedings in bankruptcy by Rule 7052 of the Federal Rules of Bankruptcy Procedure. Under Rule 52(c), "[i]f a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue." Fed.R.Civ.P. 52(c). Such a judgment must be "supported by findings of *24 fact and conclusions of law as required by Rule 52(a)." Id. A court should therefore enter a judgment under Rule 52(c) "[w]hen a party has finished presenting evidence and that evidence is deemed by the [judge] insufficient to sustain the party's position." Morales Feliciano v. Rullan, 378 F.3d 42, 59 (1st Cir.2004). A motion for judgment on partial findings should be granted, "where the plaintiff fails to make out a prima facie case, or despite a prima facie case, the court determines that the preponderance of evidence goes against the plaintiff's claim." Mosher v. Evergreen Management, Inc. (In re Mosher), 432 B.R. 472, 475 (Bankr.D.N.H.2010). Such a motion does not require the court to "draw any special inferences in the nonmovant's favor, or consider the evidence in the light most favorable to the nonmoving party. Instead, the court must [weigh] the evidence, resolv[e] any conflicts, and decid[e] where the preponderance lies." Id.
B. Relevant TILA and MCCCDA Background
TILA was enacted as a federal consumer protection statute with "the broad purpose of promoting `the informed use of credit' by assuring `meaningful disclosure of credit terms' to consumers." Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) (quoting 15 U.S.C. § 1601(a)). The MCCCDA is a Massachusetts statute "`closely modeled'" on TILA. Fuller v. Deutsche Bank Nat'l Trust Co. (In re Fuller), 642 F.3d 240, 243 (1st Cir.2011) (quoting Mayo v. Key Financial Services, Inc., 424 Mass. 862, 864, 678 N.E.2d 1311 (1997)). "[T]he regulations promulgated under TILA and [M]CCCDA are substantially similar. . . . The only differences are with respect to the statutes of limitation for rescission and damage claims." Whitley v. Rhodes Fin. Servs., Inc. (In re Whitely), 177 B.R. 142, 147-48 (Bankr. D.Mass.1995).[14] Accordingly, "[M]CCCDA `should be construed in accordance with federal law.'" In re Desrosiers, 212 B.R. at 722 (citations omitted).
Chapter 140D, § 10(a) of the MCCCDA allows a borrower to rescind a loan that is secured by the borrower's principal dwelling if the creditor did not provide to the borrower all disclosures required by the *25 statute. See Mass. Gen. Laws ch. 140D, § 10(a) (2005). The borrower has
the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms [(the Notices)] required under this section together with a statement containing the material disclosures [(the Disclosure Statement)] required under this chapter, whichever is later.
Id. (emphasis added).
The related regulation, "Notice of Right to Rescind," provides that:
In a transaction subject to rescission, a creditor shall deliver two copies of the notice of the right to rescind to each consumer entitled to rescind (one copy to each if the notice is delivered in electronic form in accordance with the consumer consent and other applicable provisions of the E-Sign Act). The notice shall be on a separate document that identifies the transaction and shall clearly and conspicuously disclose the following:
1. The retention or acquisition of a security interest in the consumer's principal dwelling.
2. The consumer's right to rescind the transaction.
3. How to exercise the right to rescind, with a form for that purpose, designating the address of the creditor's place of business.
4. The effects of rescission, as described in 209 CMR 32.23(4).
5. The date the rescission period expires.
209 C.M.R. § 32.23(2)(a) (2005)(emphasis added). As cited above, Chapter 140D, § 10(a) of the MCCCDA entitles each borrower in a residential mortgage transaction to a disclosure statement.[15]See Mass. Gen. Laws ch. 140D, § 10(a). Chapter 140D, § 12(a) delineates the contents of the "statement containing the material disclosures" (13 in total) to which § 10(a) refers. Id. at § 12(a).
TILA likewise requires that lenders "clearly and conspicuously disclose" to each borrower, his or her rights under the transaction, including the right to rescind. See 15 U.S.C. § 1635(a). Regulation Z expands on this disclosure standard, providing the proper form of such disclosures:
The creditor shall make the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep. . . . The disclosures shall be grouped together, shall be segregated from everything else, and shall not contain any information not directly related to the disclosures required under § 226.18 [("Contents of disclosures")]....
12 C.F.R. § 226.17(a)(1) (2009).[16] Additionally, "[i]n a transaction subject to rescission" under TILA, "a creditor shall deliver two copies of the notice of the right to rescind to each consumer entitled to rescind."[17]Id. at § 226.23(b)(1) (emphasis added).
*26 Both TILA and the MCCCDA provide that "the period for canceling a residential loan transaction ends three business days after the latest of three events: the closing; the date the consumer receives required Truth-in-Lending disclosures; or the date the consumer receives proper notice of the right to cancel." Dimare v. Ameriquest Mortgage Co. (In re Dimare), 2009 WL 5206628, at *6 (Bankr.D.Mass. 2009) (citing Mass. Gen. Laws ch. 140D, § 10(a)). However, under the MCCCDA, if the creditor fails to deliver the Disclosure Statement or Notices, then the borrower may rescind his loan up to four years following the consummation of the loan. See Mass. Gen. Laws ch. 140D, § 10(f). To rescind, the borrower must notify the creditor of his or her intent to do so, in accordance with regulations of the commissioner.[18]Id. at § 10(a).
C. The Burden of Proof and the Rebuttable Presumption
Under the MCCCDA, a borrower's written acknowledgment that he or she received two Notices and one Disclosure Statement creates a rebuttable presumption that the borrower did in fact receive those forms:
Written acknowledgment of receipt of any disclosures required under this chapter, or any rule or regulation issued thereunder, by a person to whom information, forms, and a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof.
Mass. Gen. Laws ch. 140D, § 10(c).[19] However, both the MCCCDA and TILA are silent as to the evidence and weight of evidence required to overcome this rebuttable presumption. See Sousa v. Wells Fargo Bank (In re Sousa), No. 07-1215-JMD, 2011 WL 917853, at *5 (Bankr. D.N.H.2011); Jaaskelainen v. Wells Fargo Bank, N.A. (In re Jaaskelainen), 391 B.R. 627, 641 (Bankr.D.Mass.2008), aff'd in part, vacated and remanded in part, 407 B.R. 449 (2009).[20] As a result, the courts of the *27 First Circuit have applied different approaches in order to determine what and how much evidence is sufficient to rebut the presumption of receipt. The "Bursting Bubble" theory and the "Folder" theory are the two approaches most frequently applied depending on the evidence presented. For the reasons that follow, the Gizas fail to rebut the presumption of delivery under either approach.
Under the "Bursting Bubble" theory, "a party need only introduce rebutting evidence that is sufficient to support a finding contrary to the presumed fact." In re Sousa, 2011 WL 917853, at *5 (citing 2 McCormick on Evidence § 344). When the Gizas each signed the Acknowledgments, a rebuttable presumption of receipt arose in Deutsche Bank's favor. Accordingly, the Gizas have the burden of going forward and presenting evidence that would support a finding that they never received the requisite number of Notices and Disclosure Statements.
The Bankruptcy Court for the District of New Hampshire was presented with the same issue in In re Sousa. See 2011 WL 917853. There, the Sousas' (the borrowers) "credible testimony" was sufficient for the court to find that "the presumption of delivery of the notice of the right to rescind was rebutted." Id. at *7. Judge Deasy characterized the Sousas' testimony as "consistent, persuasive, and ... based on their specific recollections." Id.
At trial, the Sousas presented only their testimony to rebut the presumption of delivery. However, both Mr. and Mrs. Sousa's testimony recounting the events were unshakable. The Sousas described a closing process where they took the time to review each document they signed. The Sousas testified that they not only signed, but also read, the acknowledgments of receipt. Additionally, however, the Sousas testified that they were told by the closing agent that the copies of all the closing documents, including the Notices and Disclosure Statements, would be provided at the end of closing, but they never were.
Applying the Bursting Bubble theory, Judge Deasy began with Federal Rules of Evidence Rule 301 in his evaluation of whether the Sousas had met their burden of rebutting the presumption of delivery:
A presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
Fed.R.Evid. 301. The court reasoned that, "[b]ecause a borrower's sworn testimony or affidavit is considered evidence, such evidence may rebut the presumption if it is credible and contradicts the presumed fact." In re Sousa, at *6.[21] Judge Deasy *28 found that at trial the Sousas argued "unequivocal[ly] that they did not receive any copies of the closing packet at any point in time [and made] every effort to acquire the paperwork." Id. Accordingly, he found that the Sousas' testimony "both disposed of the possibility that copies of the notice of right to cancel were actually provided and was credible" and therefore, they successfully rebutted the presumption of delivery. Id.
Unlike the testimony provided by the Sousas, the Gizas' testimony at trial was inconsistent, unpersuasive and based on confused and fragmented recollections. The Gizas could neither recall the identity of the Closing Agent nor the actual events of the Closing itself. Further, the Gizas conceded having signed the Acknowledgments without any actual knowledge of whether they did in fact receive the documents they were acknowledging to have received. Finally, the Gizas testified that they did not look at or examine the Loan Documents (there, the May 2006 Documents) upon receiving them or before putting them in a safe on the Property. Unlike the debtors in In re Sousa, the Gizas' testimony did not eliminate the possibility that the correct number of copies of the Notice were actually provided at the Closing. Undoubtedly, the Gizas failed to rebut the presumption of delivery under the Bursting Bubble theory.
Under the "Folder" theory (also known as the "Envelope" theory), a party "claim[s] that all of the documents that [he or she] received at the closing were contained in an envelope." Jackson v. New Century Mortgage Corp., 320 F.Supp.2d 608, 611 (E.D.Mich.2004). "The sufficiency of the `folder theory' is related to the reliability of the folder itself." In re Jaaskelainen, 391 B.R. at 642. The presumption has only been rebutted when the integrity of the Closing Booklet has been established through credible witness testimony. Id.; See also Jackson, 320 F.Supp.2d at 612.
In the instant case, the Gizas submitted the documents they presented at their February 2011 depositions, which they then maintained and still maintain to represent the documents they received at the Closing (the "February 2011 Documents"). See Pls.' Exs. 1(a) and 1(b). The February 2011 Documents contain four Notices: three bearing David Giza's name at the "Customer's Signature" line and one bearing Linda Giza's name at the "Customer's Signature" line, though all four list "David Giza, Linda Y. Giza" as the "Borrower(s)." Id. The February 2011 Documents also include one Disclosure Statement bearing both David Giza's and Linda Giza's names at the signature line and lists "David Giza, Linda Y. Giza" as the "Borrower(s)." Id. However, the February 2008 Documents, the documents on which the 2008 Rescission Letter was sent and the initial Complaint was based, contained only three Notices.[22] It is with this unexplained discrepancy *29 that the Gizas fail under the Folder theory to overcome the presumption that they received only the documents comprising the February 2011 Documents. The Gizas have referenced as many as five versions of the Loan Documents to account for the inordinate amount of times the Loan Documents were handled between May 24, 2006 and trial.[23] Even if the Gizas were able to show that the February 2011 Documents were the only documents they received at the Closing, the Folder theory, without more, is insufficient to rebut the presumption that they each received two copies of the Notice. See Wells Fargo Bank, 407 B.R. at 456; Jackson, at 612. The Court does not find that either of the Gizas testified in a knowingly false way; however, the best characterization of their testimony is that they do not know exactly what they received at the Closing, nor are they certain as to what happened thereafter to those documents that they did receive. All they can say with any assurance is that the documents which they have been able to locate do not appear to include all of the disclosures which they ought to have received from the Closing Agent. They cannot say with certainty that they never received those documents which they are now unable to locate. Under these circumstances, the Folder approach must fail as well.
IV. CONCLUSION
The MCCCDA's silence as to the standard that a party must meet to rebut the presumption of delivery does not mean that no such standard exists. Nor does it mean that bare allegations and haphazard documentary evidence of nonreceipt are sufficient to rebut the presumption. The inability of the Gizas to testify with certainty as to what they received at Closing, coupled with the confusing travel and custody of the documents which they did receive, are singly and together insufficient to rebut the presumption of delivery of those relevant documents as provided as a matter of law under the MCCCDA. For the foregoing reasons, Defendant's Motion for Judgment must be GRANTED.
An order consistent with this Memorandum will issue accordingly.
NOTES
[1] David Giza filed a voluntary Chapter 13 case on May 10, 2007. Linda Giza filed her voluntary Chapter 13 case on May 27, 2009.
[2] The Amcap mortgage was later assigned to Deutsche Bank on February 21, 2008 and recorded on June 24, 2008. Although Amcap was originally named as a defendant in the adversary proceedings initiated by the Gizas, the claims against Amcap were withdrawn by the Gizas' motion on January 3, 2011.
[3] The parties designated the identity of the Closing Agent as an issue of fact to be litigated at trial; however, the issue was not addressed before the Gizas rested. While this omission is curious, the identity of the Closing Agent is not material to the outcome of this case.
[4] The mortgage was granted to Mortgage Electronic Registration Systems, Inc. ("MERS") and its successors and assigns, as nominee for Amcap and its successors and assigns.
[5] What method was used to separate the May 2006 Documents and what constituted what she characterized as "David's papers" was not established.
[6] Whether the "papers" were placed back in the Landry, Lyons, & White folder when she brought them home was not established.
[7] See 15 U.S.C. § 1635(a).
[8] Again, from which folder(s) these documents were taken or if the October 2008 Documents were contained in a folder has not been established.
[9] See Mass. Gen. Laws ch. 140D, § 10(a).
[10] The Gizas also sought to "reserve" a cause of action under Massachusetts General Laws Chapter 93A ("Regulation of Business Practices for Consumers Protection").
[11] The travel of the May 2010 Documents after being scanned and sealed has not been established.
[12] The Gizas did not present the attorney as a witness at trial.
[13] In that opinion, this Court expressed its "surprise" that it took over thirteen months from the original commencement date of the adversary proceeding for the Gizas to discover and/or disclose the number of Notices they actually received at the Closing.
[14] As explained by this Court in Desrosiers v. Transamerica Fin. Corp. (In re Desrosiers),
[t]he two statutes are substantially the same, except that TILA contains a one-year statute of limitations for a damage claim, § 1640(e), and a three-year statute of limitations for a rescission claim, § 1635(f), while the limitation period for both remedies under CCCDA is four years, Mass. Gen. Laws ch. 140D, § 10(f) (statute of limitations regarding right of rescission), Mass. Gen. Laws ch. 260, 5A (1997) (statute of limitations regarding right to damages).
212 B.R. 716, 722 (Bankr.D.Mass.1997) (citations omitted). This Court further noted in In re Desrosiers that, although the Board of Governors of the Federal Reserve exempted credit transactions subject to the MCCCDA
`from chapters 2 and 4 of the Federal act,' pursuant to authority granted it in 15 U.S.C. § 1633 (See 48 Fed.Reg. 14882, 14890 (1983)) and Chapter 2 of the statute includes §§ 1631 through 1646, the Board also enacted a regulation providing that `[n]o exemptions granted under this section shall extend to the civil liability provisions of section [1640] and [1641] of the act.' Regulation Z, 12 C.F.R. § 226.29(b)(1) (1997). Accordingly, a Massachusetts resident can bring a claim for damages under § 1640 of TILA, but cannot rescind a credit transaction under § 1635 of that statute; he or she can pursue that remedy only under CCCDA. See Botelho, 195 B.R. 558, 565 (Bankr.D.Mass.1997); Myers v. Federal Home Loan Mortgage Co. (In re Myers), 175 B.R. 122, 125-26 (Bankr.D.Mass.1994). Nevertheless, it is still appropriate to refer to the provisions of the federal statute and regulations at issue here because they do not differ from their Massachusetts counterparts in any material way.
Id. at n. 6; See also Giza I, at 272-73.
[15] The plain language of the statute, "a statement containing the material disclosures," indicates the singular nature of the requirement that each borrower receives one disclosure statement.
[16] Here too the plain language of the regulation that, "[t]he creditor shall make the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep," indicates the singular nature of the disclosure statement requirement under TILA. § 226.17(a)(1).
[17] The content requirements of the TILA Notice mirror verbatim that of the MCCCDA Notice. See § 226.23(b)(1)(i)-(v).
[18] Mass. Gen. Laws ch. 140D, § 10(b) prescribes the process that is to occur once a consumer takes the initial steps to rescind the loan.
[19] In Cromwell v. Countrywide Home Loans, Inc., et al., (In re Cromwell), Judge Hillman of this District found and ruled the language of the Acknowledgment: "`[t]he undersigned each acknowledge receipt of two copies of NOTICE OF RIGHT TO CANCEL,'" to be "ambiguous":
The placement of the word `each' before `acknowledge' renders the phrase susceptible to two meanings. First, that the Debtors acknowledged each received two copies as the Defendants' assert, or second, that they each acknowledged receipt of a total of two copies as the Debtors suggest.
No. 08-159444-WCH, 2011 WL 4498875, at *17 (Bankr.D.Mass.2011). Accordingly, Judge Hillman ruled that "the ambiguity must be resolved against the drafter of the Acknowledgment such that it did not create a presumption of adequate delivery of a total of four copies of the [Notice]." Id. (citing LFC Lessors, Inc. v. Pac. Sewer Maint. Corp., 739 F.2d 4, 7 (1st Cir.1984) ("an ambiguous contract should be construed against the drafting party"); Chelsea Indus., Inc. v. Accuray Leasing Corp., 699 F.2d 58, 61 (1st Cir.1983) ("[I]n case of doubt, an instrument is to be taken against the party that drew it"); ER Holdings, Inc. v. Norton Co., 735 F.Supp. 1094, 1100 (D.Mass.1990) ("Massachusetts law construes ambiguous contractual language against the drafter")).
This Court need not reach the issue before Judge Hillman. Even if the language were ambiguous as capable of the two meanings offered in Cromwell, the Gizas cannot rely on either as a rebuttal to the presumption of delivery where they did not testify with any assurance or consistency as to what they received, where they put it or what happened to it thereafter.
[20] The District Court affirmed the Bankruptcy Court's ruling that Appellants had violated the MCCCDA by failing to provide debtors each with two copies of the Notice of Right to Cancel and vacated and remanded the Bankruptcy Court's determination that rescission may not be conditioned upon tender by debtors. Wells Fargo Bank N.A. v. Jaaskelainen, 407 B.R. 449, 463 (D.Mass.2009). While not relevant here, this Court has expressed a different view as to the latter issue. See Giza I at 273-276.
[21] The Court noted the "split over whether a borrower's testimony of non-receipt [by itself] is enough to rebut the presumption of delivery in TILA." In re Sousa, at *6. Compare CUNA Mut. Ins. Group v. Williams, 185 B.R. 598, 599 (9th Cir. BAP 1995) ("The law in this circuit is that denial of receipt does not rebut the presumption."); Rhoades v. Credithrift, Inc. (In re Rhoades), 80 B.R. 938, 941 (Bankr. C.D.Ill.1987) (holding something more than denial of receipt is required); McCarthy v. Option One Mortg. Corp., 362 F.3d 1008, 1012 (7th Cir.2004) (holding that mere assertion of non-receipt is not enough to raise a genuine issue of fact as to compliance with the regulation), with Stutzka v. McCarville, 420 F.3d 757, 762 (8 th Cir.2005) (stating the debtor's affidavit would have at least rebutted the presumption of delivery); Williams v. First Gov't Mortg. and Investors Corp., 225 F.3d 738, 751 (D.C.Cir.2000) (rejecting the district court's legal standard that the plaintiff's testimony, on its own, was insufficient to rebut the presumption of delivery); Williams v. Gelt Fin. Corp (In re Williams), 232 B.R. 629, 641 (Bankr.E.D.Pa.1999) ("[I]t's not clear what else a consumer could present to `prove the negative' of non-receipt other than testimony of the same."); Underwood v. American Home Mortg. Corp. (In re Underwood), 66 B.R. 656, 662 (Bankr.W.D.Va.1986) (finding that the debtor's testimony combined with discrepancies in dates on the TILA forms was enough to rebut the presumption).
[22] See Plaintiffs' June 21, 2010 Motion to Amend: "Two recent reviews of the May 24, 2006 closing package (which took place subsequent to the filing of the complaint in this matter) reveal that a total of four Notices of Right to Cancel are contained in the closing package, three of the Notices are addressed to plaintiff husband David Giza and only one is addressed to plaintiff wife Linda Giza. Reviews of the presented closing package which took place prior to the filing of the complaint in this matter revealed only two Notices of the Right to Cancel addressed to plaintiff husband David Giza and only one addressed to plaintiff wife Linda Giza. The Complaint is being amended to clarify what was and wasn't given the plaintiffs."
[23] The May 2006 Documents; the February 2008 Documents; the October 2008 Documents; the May 2010 Documents; and the February 2011 Documents (Pls.' Exhibit 1(a) and 1(b)). | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/593748/ | 978 F.2d 716
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Floyd J. FITCH, Defendant-Appellant.Mary K. FITCH, Plaintiff-Appellant,v.UNITED STATES of America; Joan Rockwood; Corey Angel;Century 21 Amber Realty; State of California,Defendants-Appellees.
Nos. 91-55259, 91-55462.
United States Court of Appeals, Ninth Circuit.
Submitted July 31, 1992.*Decided Oct. 30, 1992.
Before: KILKENNY, GOODWIN and FERGUSON, Circuit Judges.
1
MEMORANDUM**
2
In these consolidated appeals, Floyd J. Fitch ("Floyd") and his wife, Mary K. Fitch ("Mary"), separately challenge the foreclosure sales of their property for unpaid taxes. We reject their arguments and affirm both judgments.
FACTS AND PRIOR PROCEEDINGS
3
As the result of Floyd's refusal to file personal income tax returns for the years 1979 through 1982, and because he filed false W-4 forms in 1982 and 1986, the Internal Revenue Service ("IRS" or "government") assessed back taxes, penalties, and interest against him totalling more than $100,000.00. When the taxes, penalties and interest remained unpaid, the IRS recorded notices of federal tax liens against two parcels of land belonging to the Fitches, viz., one at 17108 Raymond Place, Gardena, California ("Raymond property"), and one at 14519 Purche Avenue, Gardena, California ("Purche property"). Although both parcels of land were originally held by the Fitches as community property, Mary quitclaimed her interest in the Purche property to Floyd in 1984, making him the sole owner thereof.
4
The government later instituted proceedings against Floyd to reduce the federal tax liens to judgment. See United States v. Floyd Fitch, et al., CV-89-2610-AWT. The complaint in that action also named as defendants his wife, Mary, the Fitches' three adult children, Home Savings and Loan Association ("Home Savings"), Serrano Reconveyance Company ("Serrano"), Jefco Investments ("Jefco"), and Gerald and Georgia Rahmeyer, as parties possibly claiming interests in the real property. Following the district court's denial of Floyd's motion to dismiss, stipulated judgments were entered into between the government and the three children, Jefco, and the Rahmeyers. The government also agreed to the entry of stipulated orders for judgment that a lien held by the State of California for unpaid taxes had priority over the government's liens, and the lien held by Home Savings had priority over the government's lien against the Purche property. Defendant Serrano, as trustee of a deed of trust securing a promissory note issued by the Fitches to Home Savings, was also a party to the sipulation in favor of the latter.
5
On August 3, 1989 the government moved for and obtained an entry of default against Mary. Four days later she filed an objection to the request for entry of default, arguing that she had not been properly served with the summons and complaint. Mary effectively waived her objection to the manner of service, however, when she and Floyd filed an answer to the complaint the following week. Moreover, neither in her objection nor in the Fitches' answer did Mary move to set aside the entry of default.
6
On November 17, 1989 the government moved for summary judgment against Floyd. Although he filed something in opposition entitled "Judicial Notice, Revocation of Power of Attorney", Floyd's response failed to address the issues raised by the government in its motion. After a hearing with oral argument, the district court entered an order granting the motion on December 27, 1989. Nine days later the court entered judgment in favor of the government, ruling that Floyd was indebted to the United States in the amount of $107,495.69. As part of its judgment the court ordered the foreclosure and sale of the two parcels of land, with the proceeds therefrom to be applied in satisfaction of the liens.
7
On December 28, 1989 (i.e., the day after it obtained an order granting summary judgment against Floyd), the government applied for entry of default judgment against Mary. Mary neither filed anything in opposition thereto nor appeared at the hearing scheduled for January 8, 1990. The district court entered default judgment against her four days later.1 In its judgment the court ruled, inter alia, that the Raymond property was jointly owned by Floyd and Mary as community property and was fully subject to Floyd's tax liabilities incurred during his marriage to Mary. On the same day (i.e., January 12, 1990) the court also entered separate orders authorizing the IRS to conduct judicial sales of both the Purche and Raymond properties and to distribute the proceeds in accord with the priorities specified in those orders. The orders further stated that any surplus was to be deposited with the court for later distribution.
8
On January 19, 1990 Floyd filed a notice of appeal from the summary judgment. We dismissed Floyd's appeal for failure to prosecute. See United States v. Floyd Fitch, No. 90-55230 (9th Cir. Dec. 21, 1990). Mary neither signed the notice of appeal nor filed a separate notice of appeal from the default judgment entered against her in that action.
9
On June 11, 1990 the government disposed of the Raymond and Purche properties by judicial sale. Eight days later Floyd filed an objection, but only as to the sale of the Raymond property. Because neither Floyd nor Mary asserted any challenge to the disposition of the Purche property, the district court entered an order confirming that sale on July 18, 1990. Following a hearing on the government's motion to confirm the sale of the Raymond property, the court ruled that Floyd's contentions were meritless and issued an order confirming that sale as well on August 7, 1990. After distributing the sale proceeds, the government deposited the surplus ($120,539.56) with the district court.
10
On September 21, 1990 the government filed a motion to schedule further proceedings for distribution of the surplus. The district court granted the motion, after which the government, the State of California, and the Fitches all filed claims to the surplus. The government's claim for $114,727.84 represented assessed liabilities for unpaid taxes on both Floyd's and Mary's incomes for the years 1983 through 1990, including post-assessment interest. The State of California's claim was for $1,670.89 plus interest, representing the difference between the sum it had received under the original distribution and the amount still owed by Floyd for unpaid state income taxes. The Fitches claimed a total of $741,721.00 (i.e., $450,000.00 claimed by Floyd and $291,721.00 by Mary) on a variety of theories, including (1) they were non-resident alien preamble citizens who had not entered into any contractual relationship with the federal government entitling the latter to tax them under the provisions of the Uniform Commercial Code, (2) the tax proceedings were unlawful because they were actually disguised bankruptcy proceedings, and (3) only a state court had jurisdiction to determine the Fitches' community property rights.
11
The district court conducted a hearing on the various claims to the surplus on January 14, 1991. The court's ruling, embodied in an order filed ten days later, awarded the State of California $1,688.10 plus 54cents per day to the day of payment, the IRS $114,727.84, and the remaining balance to the Fitches. Only Floyd appealed from this final distribution order. See United States v. Floyd J. Fitch, No. 91-55259.
12
In the meantime (i.e., on September 20, 1990) Mary filed an action in California state court against the United States, Corey Angel (buyer of the Raymond and Purche properties), Century 21 Amber Realty (broker for Mr. Angel in his efforts to resell the properties), Joan Rockwood (listing agent for Mr. Angel), and the State of California. Mary's complaint alleged, inter alia, that she had been deprived of property without a judicial determination of her community property rights or her liability for unpaid taxes. In her prayer for relief she sought the return only of the Raymond property and $105 million from the government.
13
The defendants timely removed the case to federal district court, whereupon Mary moved to have it remanded to state court. See Mary K. Fitch v. United States, et al., CV-90-5645-AWT. The district court denied her motion. She renewed the motion, which was also denied, and then sought reconsideration of the second denial, which the district court also denied.
14
On January 4, 1991 the government moved to dismiss or, in the alternative, for summary judgment, arguing that Mary's action was essentially a challenge to the IRS's tax collection efforts and was therefore barred both by the doctrine of sovereign immunity and the Anti-Injunction Act. The government further noted in its motion that, because the matters raised in the complaint had already been determined against Mary in the previous litigation involving her and her husband, her action amounted to nothing more than a collateral attack on the earlier judgment.
15
Mary filed an opposition to the government's motion on January 29, 1991. On February 15, 1991 the district court granted the government's motion for summary judgment and dismissed the action as against it. On March 6, 1991 the court entered summary judgment in favor of the remaining defendants, concluding that res judicata barred the action as against them, and entered final judgment in favor of all defendants later the same day. Mary timely appealed from that final judgment. See Mary K. Fitch v. United States, et al., No. 91-55462.
DISCUSSION
16
The government argues that, because the district court's judicial sale orders of January 12, 1990 were final decisions from which Floyd timely appealed, the only remaining issue before this court with respect to Floyd's appeal (i.e., No. 91-55259) concerns the propriety vel non of the district court's order distributing the surplus sale proceeds. Although we are inclined to agree with the government's position, we conclude that, regardless whether Floyd is barred from asserting his earlier claims concerning the judicial sale orders, his contentions are meritless in any event. Cf. Clow v. U.S. Dep't of Hous. & Urban Dev., 948 F.2d 614, 616 & n. 2 (9th Cir.1991) (per curiam) (doctrine of hypothetical jurisdiction allows a court to forgo resolution of difficult jurisdictional questions where merits of appeal are insubstantial).
17
Contrary to the Fitches' assertions, the district court had jurisdiction over them and the proceedings. See 26 U.S.C. § 7402; 28 U.S.C. § 1340. Moreover, the record shows that the government complied with the relevant provisions of the Internal Revenue Code giving rise to the liens on the Fitches' property, see 26 U.S.C. §§ 6203, 6321, and correctly reduced those liens to judgment as required by 26 U.S.C. § 7403, both as to the tax years 1979-1982 and for the subsequent years of 1983-1990. Finally, because Mary quitclaimed her interest in the Purche property to Floyd and the Fitches purchased the Raymond property during the course of their marriage to each other, the district court correctly held that both properties were liable for the debts they incurred (viz., unpaid taxes) during the course of their marriage. See Cal.Civ.Code §§ 5110, 5120.110(a); United States v. ITT Consumer Financial Corp., 816 F.2d 487, 491 n. 12 (9th Cir.1987).
18
With respect to Mary's appeal (i.e., No. 91-55462), it is clear that that portion of her action against the government amounts to nothing more than a collateral attack on the previous judgment entered against her and her husband in CV-89-2610-AWT, a decision from which she did not bother to appeal. Having failed to challenge the district court's ruling when she had the opportunity to do so, she cannot be heard now to complain about that judgment. In light of the district court's resolution of those issues revolving around the Fitches' interests in the Purche and Raymond properties in the earlier litigation, the district court did not err by entering summary judgment in favor of the remaining defendants. See Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir.1985).
19
Because we find no merit to any of the appellants' remaining arguments, the judgments appealed from are hereby
20
AFFIRMED.
*
The members of the panel unanimously agree that these appeals are appropriate for submission on the briefs and without oral argument per Fed.R.App.P. 34(a) and 9th Cir.R. 34-4
**
This disposition is not suitable for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir.R. 36-3
1
Mary filed a motion to reopen the default judgment on October 24, 1990. The district court denied the motion on December 16, 1990, ruling that she had asserted nothing under Fed.R.Civ.P. 60(b) that would justify setting aside the default judgment. See Fed.R.Civ.P. 55(c). Mary did not appeal from that ruling | 01-04-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5284190/ | BART F. VIRDEN, Judge hAIma Ozuna appeals from a Logan County Circuit Court order that terminated her parental rights to her four children.1 Pursuant to Linker—Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Rule 6—9(i) of the Rules of the Supreme Court and Court of Appeals, Ozuna’s attorney has filed a no-merit brief asserting that there are no issues that would support a meritorious appeal and a motion requesting to be relieved as counsel. The clerk of this court provided Ozuna with a copy of her counsel’s motion and brief and notified Ozuna of her right to file pro se points of appeal, which Ozuna has not done. We grant counsel’s motion to withdraw and affirm the termination of Ozuna’s parental rights. I. Background UThis case began as a FINS case on June 4, 2013, due to the family’s homelessness, and due to educational and medical neglect. At that time, the children, B.R., D.R., Y.R., and J.R. (aged fourteen, thirteen, eleven, and nine, respectively) were removed from the custody of their mother and placed in the custody of the Arkansas Department of Human Services (the Department). The circuit court granted the Department’s ex parte request for emergency custody on June 7, 2013. In a probable-cause order filed June 25, 2013, the circuit court found that it was in the best interests of the children to remain in the custody of the Department and ordered Ozuna to participate in parenting classes, counseling, family therapy and to complete a psychological evaluation. The circuit court also ordered that Ozuna maintain a stable home environment and employment. The circuit court ordered the Department to keep the children in the Fort Smith area so they could continue in the same counseling program and to set up visitation with Ozuna. On December 3, 2013, the circuit court entered an order adjudicating the children dependent-neglected, and found that returning the children to the parents would be contrary -to the welfare of the children at that time. The circuit court set the goal as reunification and ordered supervised visitation. It set a review hearing for January 7, 2014. In the review order, filed the same day as the hearing, the circuit court found that Ozuna had not complied with the case plan and that returning custody to' Ozuna was contrary to the welfare of the children. The circuit court ordered Ozuna to submit to random drug screens and a psychological evaluation. A permanency-planning hearing was set for June 3, |a2014. On June 27, 2014, the Department filed a petition calling for the termination of Ozuna’s parental rights, and a hearing was held on August 19, 2014. Ozuna testified about the circumstances leading up to the hearing. She explained that she had just had double knee replacement and much prior to surgery she had a serious infection in her knees that required hospitalization. Ozuna testified she also suffers from lupus and fibromyalgia. She explained that her positive drug tests for marijuana, methamphetamine, and amphetamines were redone and came back negative. She testified that part of the reason she had not been able to visit her children was because of the false positive result from 'the drug test. She confirmed that she had been referred for counseling, psychological evaluation and parenting classes but had been unable to attend since late April due to her physical impairment and residence in the rehabilitation facility, Legacy Health (Legacy). She said she had recently been going to counseling through the Christian Women’s Job Corp, and she had not completed parenting classes. Ozuna also testified that she has no transportation, that she was confined to a wheelchair, and that she received $721 per month in social security benefits. Ozuna also testified she thought the children had “always been fine in [her] care” and that they should never have been taken from her. She testified that they were taken from her because she did not see to it that they were in counseling and that they had missed over ten days of school. .She acknowledged that she had been ordered not to leave the jurisdiction, but that she had attempted to move to Texas where they would have a home, rather than | ¿continue to be homeless in Arkansas. Concerning the medical neglect, Ozuna explained that she took her daughter off of the medication Vyvanse because her daughter told her that it made her suicidal; however, she had not scheduled a follow-up visit with her daughter’s doctor. Ozuna admitted she -had attended only five visits with D.R. in eight months, even though she was supposed to have met with her every week. She blamed transportation and her health for her inability to visit her child. Ozuna testified that she was told that the children did not need anything, and so she never sent financial support to them during their time away from her. Ozuna also testified about B.R.’s sexual abuse. She admitted that B.R.’s paternal uncle sexually abused her on one occasion when he lived with them. Ozuna admitted she allowed him back into their home because he was homeless, and that he tried to abuse B.R. again. Ozuna testified that she called the police when she realized what was happening, and had him arrested. Stephanie Doherty, an attorney ad litem with the Department testified about the children’s progress ■ in the Department’s custody and what she had observed of Ozuna’s behavior. Doherty testified that each of the four children had issues they were addressing with the help of therapists. She testified Ozuna had visited regularly with her children in the previous year, but that she had not scheduled transportation to have visits with her children this year. Specifically, she stated that Ozuna had less frequently visited her children from January to April, and then even less so from April to August. Doherty testified that Ozuna | ^missed her parenting classes and that she had never attended counseling. She explained that the Christian Women’s Job Corp is mostly a bible-study group, and that they also offer help finding housing. Doherty testified that Ozuna was refusing to participate in physical therapy at Legacy and that the facility administration was trying to find another place for her to go. Doherty testified that she did not think reunification was possible and that the children were adoptable. She asserted that Ozuna had anxiety and depression, and the purpose of counseling was to address those issues. She testified that Ozu-na had a long and difficult history with the Department, beginning in 2008 with the opening of a protective-services case, and that Ozuna had never fully cooperated with the Department. Sandra Dillon, a therapist for two of the children, also testified at the hearing. She testified that B.R. was doing well in trauma-focused cognitive behavioral therapy that specifically addressed the sexual abuse she had endured. Sarah Franklin, J.R.’s therapist, stated he was doing well, but that during the last couple of months he had an increase in tantrums and oppositional behavior that could be a hindrance to adoption. She testified that he had begun taking ADHD medication, that he was doing well in school and that he had a good relationship with his foster parents. She testified that J.R.’s prognosis was good and that he would likely work through his problems. Deborah Cranberry, D.R.’s therapist, testified she was doing very well in the group home and was very adoptable. She described D.R.’s feelings of responsibility for her mom and their strong bond despite her mother’s issues. IfiSherry Blanton, the social-services director at Legacy, testified that Ozuna had refused to participate in physical therapy and that they were trying to find somewhere else for her to go. Blanton testified that any transportation to parenting classes or visitation could have been arranged through her and that Ozuna never attempted to make those arrangements. The circuit court entered the order terminating Ozuna’s parental rights on October 30, 2014. II. Applicable Law and Standard of Review This court review's all pleadings and testimony in the case on the question of the sufficiency of the evidence supporting the decision to terminate, and only adverse rulings arising at the termination hearing need be addressed in the no-merit appeal from the prior orders in the case. Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). Termination-of-parental-rights cases are reviewed de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. In order to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm caused by returning the child to the custody of the parent, specifically addressing the effect on the health and safety of the child. Ark.Code Ann. § 9 — 27—341(b)(3)(A)(i) & (ii) (Sup. 2009). Potential harm must be viewed in a forward-looking manner and considered in broad terms. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. The circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Each factor need not be proven by clear and convincing evidence, rather it is the overall evidence that must demonstrate clearly and convincingly that termination is in the children’s best interest. McFarland v. Ark. Dep’t Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). Additionally, the circuit court must find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark.Code Ann. § 9-27 — 341(b) (3) (B). Clear and convincing evidence is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007).When the burden of proving a disputed fact in equity is by clear and convincing evidence, the question that this court must answer on appeal is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Weatherspoon v. Ark. Dep’t of Human Servs., 2013 Ark. App. 104, 426 S.W.3d 520. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. However, we give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before 1 sit and judge the credibility of the witnesses. Dinkins, supra. Our supreme court has described the procedure for withdrawing as counsel from a termination-of-parental-rights appeal: [A]ppointed counsel for an indigent parent on a first appeal from an order terminating parental rights may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Counsel’s petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. The indigent party must be provided with a copy of the brief and notified of his right to file points for reversal within thirty days. If this court determines, after a full examination of the record, that the appeal is frivolous, the court may grant counsel’s motion and dismiss the appeal. Linker-Flores, 359 Ark. at 141, 194 S.W.3d at 747-48. III. Best-Interest Analysis The circuit court found by clear and convincing evidence that it was in the children’s best interest to terminate Ozu-na’s parental rights. Specifically, the circuit court found that the children were adoptable and that there was potential harm to the safety and welfare of the children if they were returned to their mother’s custody. The circuit court found that the juveniles were dependent/neglected, that they had been out of the custody of the parents for more than twelve months, and that despite meaningful efforts by the Department to rehabilitate Ozuna and correct the conditions that caused the removal, those conditions had not be remedied. Specifically, the circuit court found that the services offered included individual counseling, psychological evaluation, inpatient drug treatment, transportation, random drug screening, visitation, parenting classes, case management, and medical treatment. There was sufficient evidence to show potential harm to the children if they were |9returned to their mother’s custody. The court found that other factors subsequent to the filing of the original petition for dependency/neglect demonstrated that return of the children to Ozuna was contrary to their welfare, and despite meaningful efforts by the Department, Ozuna had manifested the incapacity or indifference to remedy the subsequent issues that prevented the children’s return. The specific issues that the court found had arisen were as follows: Ozuna did not complete parenting classes, she had not gained stable housing or employment, Ozuna had not regularly visited or maintained regular contact with the children, she had not participated in counseling as recommended, she had not submitted to a psychological evaluation, she had not submitted to random drug screens, and she had pot maintained consistent contact with the Department.2 IV. Other Grounds for Termination Aggravated circumstances are present when “[a] juvenile has been abandoned ... or a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification.” Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(rt)(8)(B)(i) (Supp. 2013). The circuit court found aggravated circumstances. Specifically, the circuit court found that there would be little likelihood that continued services would result in successful reunification because Ozuna had demonstrated no capacity | inor intention of complying with the case plan despite the Department’s efforts to offer meaningful services, including transportation, and had abandoned the children. In light of the testimony presented at the termination hearing, we hold that the circuit court’s order terminating Ozuna’s parental rights was not clearly erroneous, and we affirm. There were no other adverse rulings other than the termination itself. From our review of the record and the brief presented to us, we find that counsel has complied with Rule 6 — 9(i), and we hold that the appeal is wholly without merit. Consequently, we grant counsel’s motion to withdraw and affirm the order terminating Ozuna’s parental rights. Affirmed; and motion to -withdraw granted. Gladwin, C.J., and Hixson, J., agree. . Father Baltazaar Rivera’s parental rights were also terminated in this proceeding, but that termination is not the subject of this appeal. . The circuit court also found that Ozuna had tested positive for drugs, but that test was later found to be a false positive. In its order, the circuit court found drug abuse as a grounds for terminating her parental rights. The discredited positive drug test and the circuit court's finding of drug abuse were not given any weight in this appeal and are not addressed in this opinion. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284192/ | BRANDON J. HARRISON, Judge | ¶ This appeal asks whether the parties’ purchase agreement supports at least two reasonable interpretations on when Bee-Three Development, LLC could terminate its agreement with the Prochazkas and scuttle the sale of a commercial lot. If the agreement is not open to varying interpretations, then the Pope County Circuit Court’s summary judgment in favor of Bee-Three Development, LLC may be affirmed. If, however, the contract was open to different reasonable interpretations on the termination question, then the court erred as a matter of law in granting summary judgment. I. Bee-Three Development, LLC entered into a written agreement to purchase a commercial lot from Robert and Donna Prochazka. During the inspection period Bee-Three terminated the agreement and demanded that the Prochazkas return $7,000 in |2earnest money. The Prochaz-kas refused. Bee-Three sued for the earnest money; the Prochazkas counterclaimed for breach of contract and asked that the earnest money be forfeited to them as liquidated damages. Bee-Three then moved for summary judgment, and the circuit court granted the motion, concluding that one of the contract’s three termination clauses unambiguously gave Bee-Three an “absolute” right to terminate the contract within the inspection period. Because we are persuaded that the termination clause is ambiguous when the entire contract is considered, we reverse the summary judgment, reinstate the counterclaim, and remand. This controversy centers on Article 4 of the purchase agreement, which states: Article 4 Inspection of Property 4.1 Inspection Period. During the Inspection Period, Buyer may conduct soil, engineering, environmental, geotechnical, and other tests with regard to the Property, including phase 1 and phase 11 environmental studies; investigate the availability of necessary permits and licenses and the applicable governmental requirements relating to Buyer’s intended use of the Property, will satisfy itself that the Property is or, in a timeframe and at a cost acceptable to Buyer, can be platted as a separate single tax lot, will satisfy itself that the Property has utilities sufficient for Buyer’s intended use, and that the Land and that the Property has the right of access and determine generally the desirability and utility of the Property for Buyer’s planned use of the Property.... Upon the expiration of the Inspection Period, the Earnest Money shall be non-refundable and “at-risk” other than as a result of a default by Seller. 4.2 [Intentionally Omitted] 4.3 Right to Terminate. If Buyer determines, in its sole and absolute discretion, that the Property is not suitable for Buyer’s intended use, then Buyer may terminate this Agreement by notifying Seller in writing of its election to terminate on or before the last day of the Inspection Period. If Buyer timely gives the notice on or before the expiration of the Inspection Period, this Agreement will terminate and the parties will have no further rights, liabilities, or obligations, except for those which are expressly to 1¡¡survive, and the Earnest Money, less the independent consideration paid to Seller shall be returned to Buyer[.] If Buyer does not timely give written notice of its election to terminate this Agreement, Buyer has no further right to terminate this Agreement pursuant to this Section. Upon the expiration of the Inspection Period the Title Company is irrevocably authorized and directed to deliver the Earnest Money to Seller. And here is the heart of the circuit court’s ruling on ambiguity as it granted summary judgment to Bee-Three: When the Parties’ contract reserved to [Bee-Three] the right to terminate the contract “in its sole and absolute discretion,” that right was, by the very words that created it, absolute. To posit an interdependence between the “right to terminate” paragraph of the contract and the “right to inspect” paragraph, when the contract does not support such a nexus, is a violation of the clear meaning of the language and introduces an unwarranted and unjustifiable occasion to impute [an] ambiguity when there really is none. In line with its finding that there was no ambiguity in the contract, the court ruled that Bee-Three properly exercised a right to terminate the contract, granted its motion for summary judgment, and awarded Bee-Three the $7,000 earnest money and costs. The Prochazkas appeal that decision. II. A circuit court may grant a summary judgment when there are no genuine issues of material fact to be decided by a trier of fact and the moving party is entitled to judgment as a matter of law. Benton Cnty. v. Overland Dev. Co., 371 Ark. 559, 268 S.W.3d 885 (2007). After a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appeal, we determine if summary judgment was | ^appropriate based on whether the eviden-tiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review is not limited to the pleadings; we usually also focus on the affidavits, if any, and other documents filed by the parties, though this case is a bit different for reasons that will be explained in due course. Circuit courts initially decide whether a contract is ambiguous. Keller v. Safeco Ins. Co. of Am., 317 Ark. 308, 312, 877 S.W.2d 90, 93 (1994). A contractual provision is ambiguous when, as we stated at the outset, there is doubt or uncertainty as to its meaning so that it is open to at least two reasonable interpretations. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 297, 57 S.W.3d 165, 169 (2001). The primary contract-interpretation rule is to give the parties’ words the meaning that they intended them to have. E.g., Singletary v. Singletary, 2013 Ark. 506, at 10, 431 S.W.3d 234, 240-41. And we must give the words their plain and ordinary meaning. Id. “The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it.” Id. Another settled rule is that the parties’ intention must be gathered, not from particular words and phrases, but from the entire agreement. Id. When a contract is unambiguous the circuit court applies the plain language of the parties’ terms and determines as a matter of law how to apply the contract. Roberts Contracting Co. v. Valentine-Wooten Rd. Pub. Facility Bd., 2009 Ark. App. 437, 320 S.W.3d 1; see also Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). Ifjlf an ambiguity is present, the circuit court may nonetheless apply the contract as a matter of law if the ambiguity can be resolved by referring to the contract. See Zulpo v. Farm Bureau Mut. Ins. Co., 98 Ark. App. 320, 255 S.W.3d 494 (2007). If the contract’s terms cannot sweep away the initial uncertainty, then the court may look outside the contract. Singletary, supra. Considerable weight may be given to how the parties themselves understood a contract’s terms, as shown by their subsequent statements, acts, and conduct. Id. III. The Prochazkas maintain here, as they did in circuit court, that the termination language contained in Section 4.3 is ambiguous because it reasonably has more than one possible meaning. It could be read, as the circuit court did, to allow Bee-Three to terminate the contract within the inspection period because a potential (but undisclosed) tenant had backed out for reasons totally unrelated to the commercial lot’s ability to serve the undisclosed end user’s purposes. Or the contract could be read to mean what the Prochazkas believe it does: the termination must be related to an intended purpose of the inspection period as specified in paragraph 4.1 — for example, permits, engineering tests, utilities, rights of access to and from the property, tax-related issues, and the like. Given the reasonable differences in opinion on the parties’ contractual right to terminate, the Prochazkas argue that the court erred “when it substituted its opinion as the meaning of the language” instead of leaving it “to the trier-of-fact to determine the intent of the parties.” IfiWe begin by asking if the disputed contractual term in Section 4.3 is ambiguous, based on a four-comers reading of the document. See State Auto Prop. & Cas. Ins. Co. v. Ark. Dep’t of Envt’l Quality, 370 Ark. 251, 258, 258 S.W.3d 736, 742 (2007). In doing so we will not at this point consider the affiants’ testimony as is usually done in a summary-judgment case; that extrinsic evidence may not be used to create an ambiguity within the contract where one may not exist. Here again is the main provision at issue: “If Buyer determines, in its sole and absolute discretion, that the Property is not suitable for Buyer’s intended use, then Buyer may terminate this Agreement by notifying Seller in writing of its election to terminate on or before the last day of the Inspection Period.” Two additional termination clauses are present in the contract, and they each appear at different places. The second termination clause appears in Section 4.6 (titled “Utilities”) and allows the contract to be terminated “[i]f Buyer shall determine that any of the above is not true.” The third termination clause appears in Section 5.2 (titled “Covenants”) and allows Bee-Three to have a choice of remedies, including termination, if the Proehazkas made “untrue or misleading” representations or warranties. A reasonable view of the contract, which is opposite Bee-Three’s and the circuit court’s, is that the termination clauses are anchored more or less to the subject matter of the sections in which they appear. If that is so, then the termination clause in Section 4.B does not empower Bee-Three, as a matter of law, to terminate for the reason it has provided. A material ambiguity exists because Bee-Three’s right to terminate the purchase agreement could be viewed as being as “absolute” as the circuit court concluded it to be. Our dissenting colleagues see it this way, But in our view, the disputed termination 17provision can be read to mean that Bee-Three’s exercise of its termination right under Paragraph 4.3 must be substantially related to the purpose of the inspection period and the events and concerns expressed in Article 4. Why else place a termination clause under Article 4? Why not make the argued for “absolute right to terminate” provision a standalone provision, unmoored from any other subject matter or cohtext like an inspection period? See, e.g., Harris Corp. v. Giesting & Assoc., Inc., 297 F.3d 1270, 1272 (11th Cir.2002) (convenience-term case) (finding contractual language that a party “may terminate this Agreement for convenience at any time upon sixty days written notice to the other” to be unambiguous and allowed the party to terminate the contract for any reason). Moreover, the contract in this case does not define the term “intended use.” Having decided that there is an ambiguity within the contract that cannot be resolved by the contract itself, we may turn to the affidavits. They show that a genuine issue of material fact exists about the intended operation of Section 4.3’s termination clause. Bee-Three submitted an affidavit from Rob Holliday, who was one of Bee-Three’s managing members. According to him, after Bee-Three had a property under contract it would ensure the property was “viable” for the “specifications of the end user.” The “end use” in this -case, Holliday explained, was that Bee-Three would improve the property and then lease it to a client (the end user). Bee-Three terminated the agreement because, according to Holliday, “the client changed their mind and renewed [a lease] in their current location ... without a tenant or user we have no need to purchase the land and develop the property.” Holliday’s affidavit does not connect the failure to procure a tenant to some physical, engineering, permitting, or tax-related failure that was discovered |sduring the-inspection period. Robert Prochazka filed an opposing affidavit and stated that there were no “discussions about the contract being contingent upon [Bee-Three] securing a tenant.” He testified that Bee-Three shrouded the true purpose of the transaction — including the existence of its anticipated end-user client — in secrecy and should not be allowed to terminate the agreement under the circumstances. IV. How the parties intended the ambiguous purchase agreement to operate should be resolved by a trier of fact. See Tri-Eagle Enterprises v. Regions Bank, 2010 Ark. App. 64, at 5-6, 373 S.W.3d 399, 403-04. We therefore reverse the summary judgment, reinstate the Prochazkas’ counterclaim, and remand for further proceedings consistent with this opinion. Reversed and remanded. Abramson, Kinard, and Whiteaker, JJ., agree. Virden, J., concurs. Gruber, Vaught, Hoofman, and Brown, JJ., dissent. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2198645/ | 148 Ind. App. 131 (1970)
264 N.E.2d 95
MICHAEL KEANE B/N/F RICHARD L. KEANE
v.
RICHARD SCHROEDER.
No. 569A86.
Court of Appeals of Indiana.
Filed November 30, 1970.
*134 Thomas M. Moorhead, of Fort Wayne, for appellants.
Livingston, Dildine, Haynie & Yoder, of Fort Wayne, for appellee.
No petition for rehearing filed.
LOWDERMILK, C.J.
The case of Michael Keane, by his next friend, versus Schroeder was at issue on plaintiff's second amended complaint in one paragraph, and appellee's answer in four paragraphs, the first being in compliance with Supreme Court Rule 1-3. The second paragraph of answer was filed to pleading paragraph 2, which was dismissed and is not before the court. The third paragraph alleged defendant-appellee's dog was secured and the fourth paragraph alleged appellant, a four year old boy, to be a trespasser or licensee on premises of appellee and that appellee owed no duty to appellant other than to refrain from any willful or wanton act which would result in injury to appellant.
To the affirmative paragraphs of answer the plaintiff-appellant filed reply, pursuant to Rule 1-3.
In the case of Richard L. Keane v. Richard Schroeder the issues were formed by plaintiff-appellant's amended complaint alleging appellant to be the father of the appellant Michael Keane, and otherwise the same allegations as those alleged in Michael's second amended complaint. The alleged damages were hospital and medical expenses rather than personal injuries as alleged in Michael's second amended complaint.
To appellant Richard L. Keane's amended complaint appellee filed answer in three paragraphs, of which the first was in *135 compliance with Rule 1-3 of the Supreme Court; the second paragraph alleged appellee's dog was secured and the third paragraph alleged appellant Michael Keane to be a trespasser or licensee in identical language as the answer to Michael's complaint.
Appellant filed his reply to the second and third paragraphs of answer, pursuant to Supreme Court Rule 1-3.
The causes of action were consolidated; a trial was had by jury and at the close of appellant's evidence appellee filed a motion for directed verdict in each case, which was, in each case, sustained by the court. The jury, in compliance with the court's instruction, returned its verdict in each case for the defendant-appellee and on which the court timely entered its judgment that appellant, in each case, take nothing.
Appellants timely filed their respective motions for new trial on the grounds that: (1) The verdict and decision of the court is contrary to law; (2) Error of law occurring at the trial, in that the court sustained defendant's motion for directed verdict for defendant, and (3) Error of law occurring at the trial in the court directing the jury to return a verdict for the defendant.
Respective motions for new trial were overruled, after which appellants timely prayed an appeal, which was granted in each case.
In the motions for new trial appellants assigned as error in each cause that the court erred in overruling appellant's motion for new trial.
The complaints alleged that Michael Keane was a four year old boy; that the appellee kept a chow dog which he knew had bitten a five year old girl prior to biting appellant Michael Keane, that the dog was vicious and appellee knew he was vicious; that appellee knew small children could and would come into contact with the dog and that appellant was injured by the dog and thereby sustained damages.
*136 Basically, the facts are that the parties lived on the same block in Fort Wayne, Indiana, with the homes about directly opposite, but on separate streets paralleling one another.
The appellee kept a reddish-orange chow dog which weighed about 65 pounds in his backyard, which was enclosed with a house and garage on two sides and by a woven wire fence approximately three to three and one-half feet high on the remaining two sides. This dog was permitted to use the entire area of the backyard, having access thereto by a leash, which leash was affixed to a clothes line between the said buildings. The dog could not, while on the leash, get outside the yard.
In the yard was a swing, teeter-totter board and ladder arrangement, a tractor tire filled with sand, and also several bicycles. This yard was a good playground for appellee's children and other children in the neighborhood, including appellant, Michael Keane, and was freely used by such children at about all reasonable playtime hours for children. In the fence there was a gate near the house which small children the age of the appellant, Michael, were capable of opening.
On the 19th day of June, 1964, one Rhonda Miller, a five year old neighborhood girl, was bitten by appellee's chow dog while she was playing in appellee's backyard. Appellee had knowledge, and testified, that Rhonda Miller had been bitten by his dog.
As the result of the dog bite, Rhonda Miller sustained a deep tear mark under her eye about two inches in length and at the end of her cheek she sustained a two inch tear mark, as well as a dozen or more holes, in and out holes, in one side of her cheek and her nostrils were torn loose from either side. The nose was pulled loose from the bone structure and the dog's fangs had gone through her upper lip, her gums. She also had a deep hole that had gone right by and had just missed her jugular vein. She lost much blood at the time of her injuries.
*137 Following the biting of Rhonda Miller by the dog, neighborhood children continued to play in appellee's yard with the dog chained on the wire, as aforesaid.
On October 28, 1964, appellant, Michael Keane, was playing in appellee's backyard alone, except for the presence of the chow dog, Toby, when a neighborhood girl heard him scream and looked into appellee's yard and saw the dog, Toby, biting Michael and attacking him. At this time a male neighbor who had lived in the neighborhood 22 years heard what sounded to him like a bunch of dogs fighting and went to the Schroeder yard where he could see through the fence and saw the chow dog down on Michael. The neighbor yelled to the dog to no avail, but appellee's daughter came out of the house and rescued Michael from the dog. Appellee's daughter, after rescuing appellant, Michael, handed him over the fence to this neighbor and the dog still jumped for the boy, trying to get at him, and was repulsed in his efforts by striking the end of his leash before he could reach the boy. At the time the dog was attacking appellant, Michael, Michael was in a squatting position and had his hands over his head in an attempt to protect himself, with the dog's paws on the boy's shoulders and the dog biting him on the head.
The dog, Toby, refused to obey the order of appellee's daughter to leave the boy alone, as she approached in her efforts to rescue the boy.
As the result of the attack the boy was cut on the scalp with cuts looking like they had been made by a razor blade, with the skin laid wide open. The dog was larger than and out-weighed the appellant, Michael Keane, and the entire attack took place in the backyard of appellee's property, with the dog leashed on his wire and inside the fence.
At the time appellant, Michael Keane, went to the yard of the appellee he was wearing a fire engine red plastic helmet put out by a gasoline company. This helmet was equipped with *138 a speaker or amplifying device to amplify the voice of its wearer. Appellee further contends that the second bite, which was the biting of Michael Keane, was probably provoked by appellant, Michael Keane's, use of such bright red helmet equipped with a microphone and amplifier in close proximity to the dog when it was leashed to the clothes line in the fenced enclosure. Appellee further contends appellants wholly failed to establish that the biting of Michael was unprovoked.
We can find nothing in the record to indicate whether the amplifier was in working condition and we cannot find in the record that the appellant, Michael Keane, amplified his voice by use of the helmet and amplifier.
Appellee contends that before a prima facie case is established, it must be shown by substantive evidence of probative value:
(1) That the defendant kept and maintained a dog with "vicious" or "dangerous" propensities.
(2) That the defendant either knew, or in the exercise of reasonable care, should have known, of such "vicious" or "dangerous" propensities in the dog.
(3) That the defendant, with such knowledge, failed to keep the dog secure.
We agree that the biting of a person by a dog upon provocation is not sufficient to establish a vicious disposition of the dog. However, we can find no evidence in the record that Michael Keane provoked the dog, as the first knowledge of Michael Keane's being in the appellee's backyard with the dog came to those who heard the dog attacking Michael.
Appellee cites many cases to the effect that sudden pain or fright sometimes causes a dog to snap involuntarily. Circumstances must be considered in such a case to determine whether a dog, under such sudden pain or fright, which has previously bitten someone, is of a vicious or dangerous character and all *139 surrounding facts and circumstances must be considered and the question addressed to the sound discretion of the court or jury.
The law in Indiana is that triers of the fact shall take into consideration their experiences in the ordinary affairs of the life of men in arriving at their finding and verdict, and this is so well settled that it needs no citation of authority. This court, has heretofore said, in Davoust v. Mitchell (1970), 146 Ind. App. 536, 257 N.E.2d 332, 336:
"... the trial court could consider the ordinary affairs in the lives of men and women and although this court cannot and does not weigh the evidence, we are of the opinion that in deciding whether the evidence is sufficient to sustain the judgment, that we, too, may consider things that happen in the ordinary affairs of life and men."
And in so doing, we are of the opinion that a dog, which, through sudden pain or fright involuntarily snaps for its own protection is not necessarily vicious, nor does it necessarily have vicious propensities. On the other hand, a dog which may, through sudden pain or fright, involuntarily snap and having done so then proceeds in a vicious attempt to emasculate its victim, who may have unintentionally or inadvertently caused the dog pain or fright, is demonstrating a vicious propensity. Were a dog docile and did not have vicious propensities, the involuntary snap after the pain or startling of the dog would be the last unfriendly act of the dog, as it would be expected, as a nonvicious dog, to recognize its surroundings and have no desire to or make any effort to injure or mutilate.
The sole question involved in this appeal is the propriety of the trial court's sustaining appellee's motion for a directed verdict at the close of appellants' evidence. In order to determine these cases it is necessary for us to discuss the following points:
1. The legal status of the appellant, Michael Keane, a four year old child non sui juris while he was on the appellee's *140 property and the duty arising therefrom and any breach of such duty.
2. The vicious propensities of appellee's dog and appellee's knowledge of such prior to the date of injury of appellant, Michael Keane.
3. The proper function of a directed verdict.
Appellants contend that appellant Michael Keane was on appellee's premises as an invitee, while the appellee contends that appellant Michael Keane was in appellee's yard as a licensee at sufferance.
This court said, in the case of Wozniczka v. McKean (1969), 144 Ind. App. 471, 247 N.E.2d 215, 221, Transfer denied August 27, 1969:
"... the status of the Appellant, at most, was that of a licensee by permission or sufferance. The general duty owed a licensee or licensee by permission or sufferance is accurately stated in West's Indiana Law Encyclopedia, Vol. 21, § 36, Negligence, at page 295, which states:
`The duty owed by a person who owns or is in charge of premises to another on such premises as a licensee without invitation, express or implied, has been said to be the same as the duty owed by him to a trespasser. Generally there is no affirmative duty to exercise care with respect to a mere licensee or licensee by permission, and no duty to protect him from injury. The usual statement of the general rule is that the only duty an owner or occupant of premises owes to a bare licensee thereon is not to injure him willfully or wantonly.
`The owner or occupant of premises is not under any legal duty to a mere licensee to keep the premises free or safe from dangers of obstructions, pitfalls, excavations, trapdoors, or openings in floors. A licensee by permission or a mere licensee takes premises as he finds them and he goes there at his own risk and enjoys the license subject to its concomitant perils, and the owner is not liable for any injuries resulting to him owing to defects in the conditions of the premises.
`On the other hand, if the owner of premises discovers the presence of a licensee in a situation of peril, he may *141 not do an affirmative act which might reasonably be expected to increase the peril, and he should use reasonable care to avoid injuring the licensee after his danger is discovered. Likewise the owner has the duty not to set traps for a licensee, not knowingly to expose him to a hidden peril, and to protect him from active negligence.'"
This court, in Wozniczka v. McKean, supra, held, in discussing the duty due a licensee, where, in such case the plaintiff was a five year old child, non sui juris, as follows:
"There are two areas of extension to the general rule stated as to licensees or licensees by permission or sufferance. The factual context of the cases in these two areas of extension are often similar and sometimes indistinguishable. One of these extensions is the doctrine of attractive nuisance. In this regard both of the parties agree that this is not an attractive nuisance case and that the Plaintiff-Appellant is not attempting to recover upon an attractive nuisance theory. A second extension is reflected in § 40 at page 301 of West's Indiana Law Encyclopedia, which states:
`The rule that one is bound to exercise ordinary care to avoid injury to a mere licensee or trespasser who is discovered in a position or situation of peril, as considered supra §§ 36-38, applies with respect to children of tender years, and knowledge, actual or constructive, of the presence of an infant licensee or trespasser in a position of peril imposes on the owner or occupant of premises the duty to exercise reasonable care in the use of his property so as not to injure the child, and the amount of care required to be exercised may be greater than that necessary in the case of an adult.
`The probable presence of children on property where a dangerous activity is being carried on, imposes a duty of ordinary care on the owner of such property to anticipate their presence by keeping a lookout for them, and such duty applies not only with respect to children under seven years of age, but may apply to older children whose presence the owner has reason to expect. If he is bound to know of the presence of children he must also know from common experience that they are frequently heedless of danger, and he should not start in motion something that is likely to cause their injury. If the probable presence of children on the premises raises a *142 duty to them of ordinary care, such duty may be violated before the children arrive on the premises, by leaving things undone which should have been done in anticipation of their coming, but the duty of care arising from the probable presence of children on the premises is relative rather than absolute.'
"The general common law duty is well stated in 65 C.J.S. Negligence § 63 (58) at page 779, which states:
`Generally, a person exposing dangerous articles or instrumentalities on his premises in such a manner that children are likely to come in contact therewith to their obvious danger should reasonably anticipate the injury that is likely to occur and is bound to take reasonable care to prevent it. * * * This duty may exist even though the dangerous thing is not an attractive nuisance.'" (Our emphasis.)
In Brown v. Kujawa (1968), 142 Ind. App. 310, 234 N.E.2d 509, at page 510, Transfer denied May 14, 1968, a licensee was identified as follows:
"A licensee is one `* * * who, for his own convenience, curiosity, or entertainment, goes upon the premises of another by his (the owner's or occupant's) permission of sufferance.' [Citing cases.]"
In Cleveland, etc., R. Co. v. Means (1914), 59 Ind. App. 383, 405, 104 N.E. 785, 792, this court stated:
"The owner of the premises owes the adult licensee no duty of active vigilance to discover his presence or his surroundings while on his premises by permission only, because such adult is presumed to go there with the understanding that he will take the premises as they are, with all the uses to which the owner may subject them while there, and that he will look after his own safety and welfare, and that he has discretion and judgment to do so. In other words, the owner of the premises does not know and has no reason to anticipate that such adult licensee will place himself in a situation of peril. To indulge such an assumption when a child licensee of immature years, judgment, and discretion is involved would be against our common understanding and reason and lacking in every element of humanity and justice. Constructive knowledge on the part of a railroad company that children non sui juris are on its *143 tracks, or probably will be on its tracks, at a particular place, of necessity, carries with it knowledge of the peril or probable peril and helpless condition of such children, and hence the vigilance or care, which in the first instance was only negative in character, may become affirmative in the second instance and require that the company in such case shall, in some degree, at least, exercise for the child the care and vigilance which it must know the child is unable to exercise for itself, and, must not, by an affirmative act of omission or commission, expose such child to a danger which it knows, or has reason to believe, is unknown to and not understood or appreciated by such child. The duty of ordinary care which the owner of premises owes to the child licensee thereon is recognized and affirmed even in those jurisdictions which refuse to recognize or apply the attractive nuisance doctrine, as evidenced by the case of Wheeling, etc., R. Co. v. Harvey, supra." (Our emphasis.)
This court said, in Drew v. Lett (1932), 95 Ind. App. 89, 95, 182 N.E. 547, 549:
"The questions of the particular child's ability to appreciate the danger, and his power to avoid it, are usually questions of fact for the jury."
In the case of Wozniczka v. McKean, supra, Judge Sharp of this court discussed the reasoning in Echevarria v. United States Steel Corp., 392 F.2d 885 (7th Cir.1968), in which case the plaintiff had a mental capacity of five and was playing with his brother and friend, ages eleven and fifteen, on a public playground when he started pursuing a pigeon and pursued the same onto a very dangerous part of the appellee's premises and thereby sustained injuries to his person. The court said:
"The holding and reasoning in Echevarria v. United States Steel Corporation, supra, is parallel to and consistent with the statement of this court in Brush v. Public Service Co. of Indiana, 106 Ind. App. 554, 562, 21 N.E.2d 83, 86 (1939), as follows:
`Generally speaking it is true that the duty of the owner or occupant of the premises to a person injured thereon depends to some extent on whether such person was there as a trespasser, or as licensee by permission or passive acquiescence only or as a licensee by the *144 inducement or invitation express or implied of such owner or occupant. The duty as expressed by our courts in general terms is to the effect that the owner or occupant of premises owes no duty in the trespasser thereon, except to refrain from wilfully or intentionally injuring him after discovery of his presence. Cleveland, C.C. & St. L.R. Co. v. Means, 1914, 59 Ind. App. 383, 104 N.E. 785, 108 N.E. 375.
`We recognize that there are exceptions to the general rule, such as cases to which the attractive nuisance doctrine and the doctrine of last clear chance have been applied and cases where children and persons non sui juris are likely to come in contact with a dangerous force. Cleveland, C.C. & St. L.R. Co. v. Means, supra; Fort Wayne & Northern Traction Co. v. Stark, 1920, 74 Ind. App. 669, 127 N.E. 460; Terre Haute, I. & E. Traction Co. v. Sanders, 1922, 80 Ind. App. 16, 136 N.E. 54; Harris v. Indiana General Service Co., supra.' (Our emphasis)"
The Supreme Court of Florida, in Idzi v. Hobbs (1966), Fla., 186 So. 2d 20, wherein a five year old child received injuries from a fire a home builder set to underbrush and materials stacked four feet high, and wherein the defendant in that case knew that children had been playing in the area and wherein the plaintiff attempted to poke the fire, slipped and fell into the fire, said:
"While the fact that a child has been warned of a danger may be enough to defeat his recovery, where it is found to be effective in making him fully aware of the situation, it is appreciation of the danger which is required to bar recovery, rather than mere knowledge of the existence of the condition itself, and where the child is too young to understand, or not sufficiently impressed to forego the attractive hazard, the warning may be found not to relieve the defendant of liability, if he could reasonably be expected to do more. * * *
"It was for the trier of the facts whether or not this minor plaintiff sufficiently discovered the condition or realized the risk involved. The mere knowledge that he had of the existence of the fire, and the mere fact that sometime in the past he had been instructed about the danger of fire, does not necessarily mean that he realized the risk involved in intermeddling in it or in coming within the area made dangerous *145 by it. Because of his immaturity and want of judgment a child may be incapable of understanding and appreciating, or making intelligent decisions on, all of the possible dangers which he may enocunter." (Our emphasis.)
We are of the opinion, after having reviewed the above enumerated cases and many more cited by the respective parties that because of the child's tender age of four years and the fact that he and other children of his age and even older were permitted by appellee to play in appellee's backyard that appellant Michael Keane was a licensee by permission; that he was in appelle's backyard, which was equipped as a playground for children and that appellee had every reason to know or anticipate that appellant Michael Keane or some other child would probably be in the backyard playground and come in contact with appellee's chow dog. Cleveland, C.C. & St. L.R. Co. v. Means, supra.
We are of the further opinion that appellee owed appellant, Michael Keane, a child non sui juris, the duty of ordinary care while such child licensee was on appellee's premises.
We shall next discuss the matter of the necessity of a dog's having vicious propensities to injure others, which vicious propensities must be known to the dog's owner before liability attaches to the owner for injuries inflicted by the dog.
It has often been said that the dog was entitled to his first bite, and the horse or mule to its first kick before the owner can become responsible for any damages inflicted on persons by the dog or horse.
We have heretofore set out in this opinion the amount of proof required to make appellee responsible for the acts of his dog, Toby, in attacking the appellant, Michael Keane.
It is our opinion that it is not the first bite of the dog or the first kick of the horse that controls, but the controlling factor is the "vicious" or "dangerous" propensity of the animal.
*146 Appellee contends that the dog was not "vicious" or "dangerous" and the only evidence introduced by appellants in the trial court with respect to the "vicious" or "dangerous" propensities of the dog was that in June of 1964 the dog, Toby, bit one Rhonda Miller, age five years, while in appellee's backyard playground and that subsequently the dog bit appellant, Michael Keane. No one witnessed the first bite and the circumstances of the attack on Rhonda Miller are unknown.
Appellee further contends that the dog having bitten Rhonda Miller in June, 1964, is not evidence that the dog was "vicious" or "dangerous".
The law in Indiana is not well settled as to the legal effect of a previous bite per se. There is, however, law on this point in other jurisdictions. In Indiana we seem to have adopted a broader rule and look to the "vicious" or "dangerous" propensities of the animal.
Appellee relies on the case of Butler v. Pantekok (1962), 231 Ore. 563, 373 P.2d 614, wherein a four year old child was bitten by a dog. The plaintiff introduced evidence at the trial that the child had previously been bitten by the dog. The court rejected plaintiff's contention that the prior bite was sufficient to establish the dog's "vicious" propensities and said:
"The plaintiff argues that the evidence that the dog bit the plaintiff in December, 1959, is conclusive of the animal's vicious character and defendant's knowledge thereof. It may be questioned whether the jury would not have been justified in refusing to accept the testimony about this previous incident; but, that aside, although a dog is no longer entitled to one bite (Restatement, 3 Torts 22, comment g to section 509), we do not understand it to be the law that the mere proof that on another occasion a dog bit a human being is conclusive evidence that the animal has vicious propensities. That would depend on the circumstances and here the circumstances under which Jo An was bitten in December, 1959, if that actually occurred, are not disclosed."
Appellee further cites the case of Mitchell v. Newsom (Mo. App., 1962), 360 S.W.2d 251, wherein the court stated:
*147 "The court in Maxwell v. Fraze, supra, discussed the necessity for looking at the circumstances surrounding previous acts of the dog when it said at page 265 of 344 S.W.2d: `The circumstances surrounding the occasion of the biting and its extent demonstrate whether the incident of the prior bite is sufficient evidence or some evidence of a vicious propensity of the dog to inflict injury.' In any event, there is no showing of actual knowledge by defendant, and this one isolated instance would not justify holding him with constructive knowledge of it."
We must next determine what is a vicious propensity. These words are defined in Doe v. Barnett (1969), 145 Ind. App. 542, 251 N.E.2d 688, Transfer denied March 18, 1970, at page 694:
"A vicious propensity is a propensity or tendency of an animal to do any act which might endanger the safety of person or property in a given situation. It is the act of the animal and not the state of mind of the animal from which the effects of a dangerous propensity must be determined. A dangerous propensity may, for example, be deduced from very playful conduct."
In Doe v. Barnett, supra, the court also said:
"These Indiana authorities are in accord with the general rules of liability found in Vol. 3 C.J.S. Animals, § 145, which states:
`The owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and insofar as such propensities are of a nature likely to cause injury he must exercise reasonable care to guard against them and to prevent injuries which are reasonably to be anticipated from them.'"
The evidence is most clear that Toby, a sixty-five pound chow dog, had the complete run of appellee's backyard, subject to his being tethered to a wire or clothes line running down the center of the same from end to end. The leash was of *148 sufficient length to permit the dog to have access to the entire area within the enclosure.
Appellee permitted youngsters of the neighborhood to use his backyard to play with the divers playthings for the enjoyment of children and permitted Toby to be among the children at all times they were playing in and making use of appellee's backyard. In June of 1964 Rhonda Miller, age five years, was attacked by Toby and severely bitten about the mouth, neck and had her nose torn loose from her face by this dog, but there were no witnesses as to why or how it happened.
After the attack on the Miller child appellee continued to permit the dog to have the same full access to the yard and playground even though he had knowledge of the dog's attack of Rhonda Miller and that his children and the neighborhood children continued to play in his backyard playground.
Appellee had knowledge of the dog having bitten Rhonda Miller and reasonable men could only infer from that knowledge that he had knowledge of the severity and viciousness of the attack, as evidenced by the severity of the injuries.
This court cannot believe that Rhonda Miller's serious mutilation and injuries were the result of a bite from a dog which may have been caused by sudden pain or fright, which sometimes causes a dog to snap involuntarily. An involuntary snap could not have inflicted all the serious wounds and injuries to Rhonda Miller that she received, as a snap would have been only one set of fang marks, while it is admitted that she had several fang marks and was mutilated.
Likewise, no one witnessed the biting of Rhonda Miller. The dog attacked her while only she and the dog were present. Appellee continued to leave the dog unattended in the yard while still permitting neighborhood children to play therein. It was while Toby was so unattended that Michael Keane entered the yard and in the absence of any witnesses as to what happened between Michael and Toby the dog, Toby, viciously attacked Michael.
*149 The serious mutilation of Rhonda Miller is evidence that the dog would continue a vicious attack once he began the same, whether he was startled or provoked or under sudden pain, or whether he began the attack on his own initiative. Had the dog not had "vicious" propensities he would have ceased his attack after the involuntary snap appellee claims he gave Rhonda Miller, as a result of sudden pain or fright, if there was such, when he realized that there was no attack against him.
It is our opinion that the biting of Rhonda Miller in June, 1964, was evidence of a "vicious" propensity in the dog, Toby, and that the dog might attack or injure other persons without being provoked so to do, or if provoked by sudden pain or fright by a person non sui juris, he would continue his attack on such person after the pain or fright subsided or ceased to exist and that the one isolated instance was sufficient to hold that appellee had knowledge of such "vicious" propensities.
As was said in 4 Am. Jr. 2d, Animals, § 101.5 Supp., page 19:
"... Scienter may be established by constructive or imputed notice as well as by actual knowledge." (Our emphasis.)
Certainly, the appellee had constructive or imputed notice from such wounds and injuries to Rhonda Miller that the dog had vicious propensities and it was not safe to permit him to be accessible to non sui juris children who would come into appellee's yard to play and oftentimes unattended by others.
We must next determine if there was sufficient evidence for the case to be submitted to the jury.
Upon the filing of the motion for directed verdict it was the duty of the court to consider the evidence most favorable to the party against whom the motion was directed and to consider all reasonable inferences deducible therefrom.
*150 The rule is well established that unless there was a total lack and failure of substantial evidence and reasonable inferences therefrom of probative value on at least one essential element of plaintiff's case, the court should not give a peremptory instruction for a directed verdict.
In reviewing the evidence most favorable to the appellants to determine whether there was substantial evidence of probative value or reasonable inferences to be drawn therefrom to sustain the appellants' cause of action it is our duty to draw against the party requesting a peremptory instruction all inferences which a jury might reasonably draw. Burke v. Burke (1963), 135 Ind. App. 235, 191 N.E.2d 530; Phares v. Carr (1952), 122 Ind. App. 597, 106 N.E.2d 242; Layman v. Hall Omar Bkg. Co. et al. (1966), 138 Ind. App. 673, 213 N.E.2d 726.
Under the facts of this cause as heretofore stated and applying the test heretofore set out to determine if a verdict should have been directed for the appellee, we are of the opinion that there was substantial evidence and reasonable inferences therefrom of probative value that the dog, Toby, showed vicious propensities in severely bitting Rhonda Miller just four months before the attack on the appellant, Michael Keane, which were known to the appellee; that the appellee made no change in the manner in which he kept the dog tethered in the backyard playground and the dog had the same access to persons in the backyard which he had at the time of his first attack, which was on Rhonda Miller, that the trial court should have permitted submission of the case to the jury.
We hold it to be error to direct a verdict for the appellee here in each cause and that the decision in each cause is, therefore, contrary to law.
The judgment in the case of "Michael Keane by his next friend, Richard L. Keane versus Richard Schroeder" is reversed *151 and the court is ordered to sustain the motion for a new trial therein.
The judgment in the case of "Richard L. Keane versus Richard Schroeder" is reversed and the court is ordered to sustain the motion for a new trial therein.
Carson, Lybrook and Sullivan, JJ., concur.
NOTE. Reported in 264 N.E.2d 95. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284193/ | Bart F. Virden, Judge, concurring. I concur with the result reached by the majority in this summary-judgment case. While I see no ambiguity in the language regarding termination of the contract. I agree that the case should be remanded for trial because I believe there is a genuine issue of material fact as to the buyer’s “intended use” and whether the sellers’ property was suitable for such use. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284195/ | OPINION OF THE COURT BY
JUSTICE KELLER
A jury found in favor of Mary Banker on her retaliatory discharge claim against the University of Louisville Athletic Association, Inc. (ULAA), and the trial court awarded attorney fees to Banker’s attorney, Bryan Cassis. ULAA filed a motion for a judgment notwithstanding the verdict or for a new trial, which the trial court denied. ULAA then appealed to the Court of Appeals, which reversed and remanded for dismissal of Banker’s claim. Banker filed a motion for discretionary review and, because the Court of Appeals did not address all of the issues raised by ULAA, it filed a cross-motion for discretionary review. We granted both motions and consolidated the appeal and cross-appeal.
On appeal, Banker argues that she put forth sufficient evidence to establish that ULAA discharged her for engaging in a protected activity under the Kentucky Civil Rights Act and that the Court of Appeals substituted its view of the evidence for the jury’s. In its cross-appeal, ULAA argues that the jury’s award of damages and the trial court’s award of an attorney fee were not supported by the evidence. Having reviewed the record and the arguments of the parties, we reverse and remand.
I. BACKGROUND.
ULAA hired Banker to work as an assistant track and field coach in September 2007. Her job duties included recruiting and coaching multi-event athletes, ie. athletes who participate in the heptathlon or decathlon. When hired, Banker signed a one year renewable contract which provided that she would be paid $37,500 per year and would be notified by April 30 if ULAA was not going to renew the contract. Furthermore, the contract provided that the Director of Athletics could terminate Banker’s employment without cause upon recommendation of the head coach by giving Banker 30 days’ notice.
During her tenure at the University Banker made complaints to the head coach, Ron Mann, about language used by the male coaches. In particular, she noted that those coaches referred to athletes as “pussies” and “sallys,” told them they “ran like a girl,” and asked them if they had a “mangina.” According to Banker, Mann’s response was to tell her to deal with these issues herself. Banker also complained that she was asked to perform tasks her male counterparts were not asked to do. Specifically, she was asked to make party decorations and help Mann’s wife in the kitchen prior to and during a recruiting luncheon and to make cookies for the com*459pliance officers. Finally, Banker complained that she had been told to “bat her eyes and flip her hair” when seeking approval from the compliance office for recruiting visits. According to Banker, Mann was equally unresponsive to these complaints. Therefore, in February 2008, Banker complained to Senior Associate Athletic Director Julie Hermann. Her-mann discussed the issues raised by Banker with the other assistant couches, after which, according to Banker, the other coaches then began acting with hostility toward her, staring at her and refusing to talk to her.
Because she did not feel her complaints were being adequately addressed by those within the athletic department, Banker complained to Malinda Durbin, the University’s Affirmative Action/Sexual Harassment Officer, on April 22, 2008. Durbin discussed the issues raised by Banker with Hermann and assigned the investigation of Banker’s complaints to Hermann. Following her investigation, Hermann concluded that Banker’s allegations were without merit.
On May 15, 2008, Coach Mann advised Banker that her contract was not being renewed. When Banker pointed out that ULAA had not timely notified her that her contract was not being renewed, ULAA reinstated her. Pursuant to the contract, Mann then recommended to the athletic director, Tom Jurich, that Banker be discharged, which Jurich did. Banker did not perform any work for ULAA thereafter; however, ULAA paid Banker her salary and benefits through July 30, 2008.
On August 6, 2008, Banker filed suit against Jurich and ULAA asserting claims of breach of contract, breach of covenant of good faith and fair dealing, gender discrimination, retaliation, hostile work environment, wrongful discharge, and intentional infliction of emotional distress. The parties then undertook discovery and, by the time this matter went to trial in September 2010, the only claims that remained against ULAA were gender discrimination, hostile work environment, and retaliatory discharge. The only claim that remained against Jurich was retaliatory discharge.
At trial, Banker testified consistent with what is set forth above and argued that she was discharged because she complained to Durbin. For their part, ULAA and Jurich put on proof that Banker was not a good coach or recruiter, that she did not live up to expectations, and that the decision not to renew her contract had been made several days before Banker complained to Durbin.
The jury found for Jurich and for ULAA on Banker’s gender discrimination and hostile work environment claims. However, the jury found for Banker on her retaliatory discharge claim against ULAA and awarded her $300,000 in damages for emotional distress and $71,875 for lost wages. Following trial, Cassis moved for attorney fees, which the court awarded, and ULAA moved alternatively for a judgment notwithstanding the .verdict (JNOV) or a new trial. The trial court denied ULAA’s motion.
ULAA appealed to the Court of Appeals, arguing that: the trial court erred by not granting its motion for JNOV because Banker had not met her burden of proof; the trial court should have stricken the jury’s lost wages award; the trial court should have reduced or stricken the jury’s award for emotional distress; and the trial court should not have awarded the amount of attorney fees it did. The Court of Appeals held that Banker had not met her burden of proof and that the trial court should have granted ULAA’s motion for JNOV. Because the Court’s opinion rendered the issues related to damages and *460attorney fees moot, it did not address them. We set forth additional facts as necessary below.
II. STANDARD OF REVIEW.
We review the issues raised by the parties using slightly different standards. Therefore, as we analyze each issue, we set forth the appropriate standards as necessary.
III. ANALYSIS.
A. Retaliatory Discharge.
As noted above, the jury found in favor of Banker on her retaliatory discharge claim, and the trial court denied ULAA’s motion for JNOV or a new trial.
When reviewing a trial court’s denial of JNOV, “we are to affirm ... ‘unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.’ ” Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky.App.2003) (quoting Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.App.1985)) (emphasis added). Likewise, “ ‘[t]he trial court is vested with a broad discretion in granting or refusing a new trial, and this Court will not interfere unless it appears that there has been an abuse of discretion.’ ” Id. (quoting Whelan v. Memory-Swift Homes, Inc., 315 S.W.2d 593, 594 (Ky. 1958)). “The reason appellate courts defer to the trial court’s decision to grant a new trial is because the decision may depend on factors that do not readily appear in the appellate record, such as witness demeanor and observations of the jury.” CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 74 (Ky. 2010).
Savage v. Three Rivers Med. Ctr., 390 S.W.3d 104, 111 (Ky.2012)(emphasis in original). In other words, we will not disturb the trial court’s ruling on ULAA’s motion unless the proof in favor of Banker is such that no reasonable juror could have found in her favor. Bierman v. Klapheke, 967 S.W.2d 16 (Ky.1998).
Because she pursued an unlawful retaliation claim, Banker was required:
[T]o first establish a prima facie case ... which consists of showing that “(1) she engaged in a protected activity, (2) she was disadvantaged by an act of her employer, and (3) there was a causal connection between the activity engaged in and the [defendant] employer’s act.” Kentucky Center for the Arts v. Handley, Ky.App„ 827 S.W.2d 697, 701 (1991), citing De Anda v. St. Joseph Hospital, 671 F.2d 850, 856 (1982).
Kentucky Dep’t of Corr. v. McCullough, 123 S.W.3d 130, 134 (Ky.2003), as modified on denial of reh’g (Jan. 22, 2004).
There is no dispute that Banker was engaged in a protected activity when she complained to Durbin. Furthermore, there is no dispute that she was disadvantaged when Jurich discharged her. However, ULAA argues that Banker did not and could not establish the requisite causal connection between those two acts.
A causal connection can be established through either direct or circumstantial evidence. Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir.2000). ‘Direct evidence is evidence, which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption.’ Walker v. Glickman, 241 F.3d 884, 888 (7th Cir.2001).
Id. at 135. Here, as in most cases, there is no direct evidence of causation. Therefore, Banker had to rely on circumstantial evidence, which is:
‘[E]vidence sufficient to raise the inference that [the] protected activity was *461the likely reason for the adverse action.’ Nguyen, 229 F.3d at 565. In most cases, this requires proof that (1) the decision-maker responsible for making the adverse decision was aware of the protected activity at the time that the adverse decision was made, and (2) there is a close temporal relationship between the protected activity and the adverse action. Id.
In support of its argument, ULAA relies primarily on Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001), and its progeny for the proposition that a causal connection cannot be made between a protected activity and an employer’s actions if the employer was “contemplating” those actions before the protected activity occurred. In Breeden, nine days after Breeden filed a discrimination suit, Breeden’s supervisor mentioned to the executive director of Breeden’s union that she was contemplating transferring Breeden to a different position. Id. at 272, 121 S.Ct. 1508. Breeden, who was subsequently transferred, claimed this was evidence of the employer’s retaliatory conduct. When the employer moved for summary judgment, Breeden “relie[d] wholly on the temporal proximity of the filing of her complaint ... and [the supervisor’s] statement” as evidence of a causal connection. Id. The Supreme Court determined that Breeden’s reliance solely on this temporal proximity was insufficient to create an issue of fact because it was undisputed that the supervisor did not know that Breeden had filed suit until the day after she mentioned the transfer to the union representative. Id. With these facts, the Court held that “[e]mployers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” Id.
ULAA argues that the facts in this case are similar to those in Breeden. Mann and Hermann testified that they met on April 16, 2008, six days before Banker complained to Durbin,. and decided not to renew Banker’s contract. According to ULAA, Banker offered no evidence to contradict that testimony, and no reasonable jury could have believed the decision to not renew Banker’s contract had been influenced or caused by Banker’s post-decision complaint to Durbin. The Court of Appeals agreed; however, we do not. As set forth below, a reasonable jury could have simply found that Mann and Hermann were not credible regarding when the decision to discharge Banker was made.
Banker testified that, several days after she complained to Durbin, Hermann said, “You should’ve come to me with this, you shouldn’t have gone to HR. I don’t know how I’m going to restore trust in you amongst the staff now. I don’t know how you can work downstairs anymore after this.”1 From these statements the jury could have reasonably inferred that, until Banker went to Durbin, no decision had been made regarding renewal of Banker’s contract. Furthermore, the jury could have reasonably inferred that Hermann was not contemplating discharging Banker but was interested in helping Banker, retain her job.
In addition to Hermann’s statements, Banker introduced an email from Her-mann to Durbin dated May 6, 2008, reporting on what Hermann’s investigation of *462Banker’s allegations revealed. In that email, Hermann stated:
Mary very much knows that her job is under review and feels she is under performing. This is true. She told me she went to HR to “cover herself.” I asked her what this means and she said, she knows Ron [Mann] is disappointed in her and does not respect her work and it’s made her paranoid. Throughout this process it has become clearer that Mary has struggled from the beginning to perform and out of frustration has confronted and verbally disrespected Head Coach Ron Mann repeatedly in the staff meetings out of frustration. This has caused their relationship to become very difficult and likely unrecoverable. This, combined with her lack of performance, will likely result in a non-renewal. I would recommend that Ron proceed to do so to the betterment of the program.... I had left you a couple of messages regarding proceeding to speak with Mary about her employment status. We cannot wait much longer as this should not linger to me. ■
As the trial court noted, Hermann refers in her email to non-renewal as “likely” and states that the relationship between Banker and Mann was “likely unrecoverable,” indicating no final determination had been made at the April 16 meeting. Additionally, we note that the email is significant not only for what it says, but for what it does not say, ie. that Hermann and Mann had already decided not to' renew Banker’s contract. From that omission a jury could reasonably conclude that no decision regarding renewal of Banker’s contract had been made prior to Banker’s meeting with Durbin.
Hermann testified she and Mann had decided not to tell Banker about the April 16, 2008, meeting so as not to jeopardize team dynamics. However, ULAA introduced evidence that: Banker was rude and confrontational to Mann; one athlete left the school, another athlete quit performing in multi-events, and a third athlete complained that Banker was the worst coach she had ever encountered; Banker had limited technical knowledge about the events she coached; Banker only recruited one multi-event athlete; and Banker had a negative impact on team dynamics. Based on that evidence, a jury could have reasonably inferred that it made no sense to delay getting rid of such a disastrous coach and, if that decision had been made, it would have been implemented sooner rather than later.
Based on the preceding, we cannot, as the Court of Appeals did, conclude that there was a complete absence of proof of causation. Thus, Banker made her prima facie case of retaliation. Having determined that Banker successfully proved her prima facie case, we proceed to analyze this case under the framework set forth in McDonnell Douglas,2
Under this framework, after the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to show a non-retaliatory reason for the adverse employment decision that disadvantaged the plaintiff.... [T]he case then proceeds with the plaintiff having to meet her initial burden of persuading the trier of fact by a preponderance of the evidence that the' defendant unlawfully retaliated against her.
McCullough, 123 S.W.3d at 134. In other words, the plaintiff must prove that the reasons given by the defendant were pre-textual. Id.
ULAA produced a significant amount of evidence that Banker was not a good *463coach, that she did not do her job with regard to recruiting, and that she was a disruptive influence. However, we do not agree with ULAA that Banker put forth nothing to refute this evidence. Banker testified that she had been a successful coach and athlete; that ULAA had recruited her; that she had successfully recruited at least one multi-event athlete; and that what ULAA deemed as disruptive behavior was simply her attempt to improve the program. This evidence, along with that previously set forth above regarding causation, was sufficient to support a reasonable inference that ULAA’s stated reasons for discharging Banker were pretextual.
Because we believe that the Court of Appeals injected its interpretation of the facts and did not view the proof in the light most favorable to Banker, we reverse. We next address the issues raised by ULAA in its cross-appeal.
B. Emotional Distress Damages.
In support of her claim of emotional distress damages, Banker testified that she suffered significant stress with accompanying loss of appetite, weight loss, depression, and sleep disturbance. Banker testified that she had not sought any treatment for her symptoms because she lost her health insurance and could not afford her COBRA payments. In addition to her own testimony, Banker offered testimony from her mother that Banker seemed stressed and lost weight during her time at the University and that Banker was devastated’when she lost her job. ULAA argues that this testimony, while it may have supported an award of damages for emotional distress, was not sufficient to support an award of $300,000.
As with the retaliatory discharge issue, the standard of review regarding the amount of damages awarded is whether the trial court abused its discretion when it denied ULAA’s motion for JNOV. Childers Oil Co. v. Adkins, 256 S.W.3d 19, 28 (Ky.2008).
However, our usual standard of review must be undertaken with an additional consideration: “The amount of damages is a dispute left to the sound discretion of the jury, and its determination should not be set aside merely because we would have reached a different conclusion. If the verdict bears any relationship to the evidence of loss suffered, it is the duty of the trial court and this Court not to disturb the jury’s assessment of-damages.” Childers Oil Co., Inc., 256 S.W.3d at 28 (quoting Hazelwood v. Beauchamp, 766 S.W.2d 439, 440 (Ky.App.1989)). “That is to say, we necessarily approach such questions with great caution.” Emberton v. GMRI, Inc., 299 S.W.3d 565, 579 (Ky.2009).
Savage, 390 S.W.3d at 120 (Ky.2012).
The trial court, which was in a position to observe the witnesses and the jury, found that:
During the trial [Banker] testified that she lost weight, was embarrassed, felt depressed, and was under extreme stress. Consistent with this testimony, [Banker’s] mother testified about how important coaching was to [Banker] and, accordingly, how “devastating” termination was. Having considered the facts surrounding [Banker’s] termination, it was reasonable for the jury to conclude that [Banker] did indeed suffer from a profound mental and emotional distress. In addition to the embarrassment of being fired for no good cause, [Banker] had good reason to worry that termination represented a severe setback on her career track. The verdict bears a relationship to the evidence of loss suffered, and the Court will not disturb the jury’s findings.
*464We agree with the trial court. Banker and her mother testified that Banker suffered significant emotional distress both before and after her wrongful discharge. And, while we might not have awarded the amount this jury did, we cannot say that the damage award bore no relationship to the evidence of loss. Thus, we hold that the trial court did not abuse its discretion by refusing to alter the jury’s finding. .
We note that ULAA cites only one case, Flowitt v. Ashland Hosp. Corp., 2007 WL 1519392 (Ky.App.2007), wherein the jury’s award of emotional distress damages was set aside.3 In Flowitt, a physician brought discrimination and contract claims against Ashland Hospital Corporation. Id. at *5. The jury awarded Flowitt $500,000 in emotional distress damages. Id. at *6. The Court of Appeals affirmed the trial court’s JNOV on Flowitt’s discrimination claims, then vacated the jury’s emotional distress damage award. Id. at *8-9. ULAA implies that the Court did so because the award was excessive; however, that is not the case. The Court held that, because Flowitt’s only viable claim was her contract claim, she could not as a matter of law receive emotional distress damages. Id. In dicta, the Court then held that, even if available, Flowitt would not have been entitled to emotional distress damages because she did not prove that any emotional distress was related to the breach of contract claim. As the Court noted, the evidence established that Flowitt’s emotional distress was either related to familial difficulties or to lawful actions taken by the hospital. Id. at *10. Thus, the Court did not, as ULAA implies, find that the amount of damages was excessive, it found that there was no evidence relating those damages to Flowitt’s only viable claim.
For the foregoing reasons, we affirm the trial court’s denial of ULAA’s motion for JNOV as to the award of emotional distress damages.
C. Lost Wages.
The jury awarded Banker $71,875 in lost wages. ULAA argues that the trial court erred in not setting aside that award because Banker did not present evidence that she had attempted to mitigate her damages. As set forth above, we review the trial court’s denial of ULAA’s motion for JNOV for an abuse of discretion. Savage, 390 S.W.3d at 111.
Following termination, a retaliatory discharge claimant is required to exercise “reasonable diligence to secure other comparable work ... [and] must [be] ready, willing and available for employment substantially equivalent to the position [she] lost.” Dollar Gen. Partners v. Upchurch, 214 S.W.3d 910, 918 (Ky. Ct. App.2006) (citations omitted). In reviewing an argument that a claimant did not mitigate her damages, “our only inquiry is whether appellant presented sufficient evidence that [she] exercised reasonable diligence to secure other work during the period for which damages were awarded.” Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461 (Ky.1990) (citations omitted).
In denying ULAA’s motion for JNOV, the trial court found that:
[Banker] testified that after her termination she sought other employment, but felt it was futile given the hiring season for assistant track and field coaches. When reviewing the proof as a whole, it was reasonable for the jury to infer that the termination, coupled with the pending law suit, acted as a virtual *465scarlet letter, precluding Ms. Banker’s employment as a collegiate coach.
We reviewed Banker’s testimony, and she made three statements about potential post-discharge employment. She testified that Mann told her that he knew of an assistant coaching job at Notre Dame and that he would make a call on Banker’s behalf; and she made reference to a potential coaching job at the University of Alabama Birmingham. However, she did not state whether she pursued either coaching job. Banker also testified that, because of the late notice of non-renewal, other coaching jobs had “already been applied for” and she “did not look for work.” Thus, the trial court’s statement that Banker looked for employment is not supported by the record. Because Banker did not put forth any proof that she looked for work after being discharged, we must remand to the trial court with instructions to strike the award for lost wages from the judgment.
D. Attorney Fees.
KRS 344.450 provides that:
Any person injured by any act in violation of -the provisions of this chapter shall have a civil cause of action in Circuit Court to enjoin further violations, and to recover the actual -damages sustained, together with the costs of the law suit. The court’s order or judgment shall include a reasonable fee for the plaintiffs attorney of record and any other remedies contained in this chapter.
When calculating attorney fees pursuant to KRS 344.450, the court is to first determine what the “lodestar” amount is, ie. the total number of hours worked multiplied by the appropriate hourly rate. The court can then adjust that lodestar amount upward or downward “for various special factors in the litigation.” Meyers v. Chapman Printing, Co., Inc., 840 S.W.2d 814, 826 (Ky. 1992). We review a trial court’s award of attorney fees for abuse of discretion. Id.
Pursuant to KRS 344.450, Banker filed a motion for an attorney fee of $186,656.25, based on an hourly rate of $275 and 678.75 hours of work. In support of her motion, Banker attached 27 pages of time records from Cassis dating from June 1, 2008 through October 4, 2010. Cassis stated that the records were contemporaneously recorded and the result of meticulous documentation of “all time spent working on this case and the time entries [were] date and time-specific down to .25 hourly increments.” ULAA moved for leave to take discovery on the issue of Banker’s attorney fee motion, arguing that the records attached to Banker’s motion were not the contemporaneous records. At a hearing on the fee motion, Cassis indicated that the records he had produced were the records he had. He also stated that he had taken the case on-a contingent fee basis; had made an open records request regarding ULAA’s fees; and had determined that ULAA’s attorneys had billed approximately 1,300 hours defending Banker’s claims, with a total amount charged similar to his request. The court then granted ■ ULAA’s discovery motion, limiting it to requests for production of documents and a deposition on written questions.
In response to ULAA’s requests for documents, Cassis provided “draft time entries” that appear to include all of his time records from January 1, 2008 through November 14, 2009. We note that these records are approximately two inches thick.
After receiving Cassis’s response to the request for production, ULAA filed its response to the motion for attorney fees. In that response, ULAA stated that it com*466pared the draft time records to the time records Cassis had attached to the fee motion and found: differences in the language used in the descriptions of the work performed; differences in the time entries, with the final version containing “padded” hours; hours and descriptions in the final version that did not appear in the draft version; multiple days when Cassis billed 20 or more hours; and “inflated” time because of Cassis’s practice of billing in quarter hour rather than tenth of an hour increments. Based on its review of Cas-sis’s records, ULAA asked the court to reduce the number of billable hours to 839.375 or half of the number of hours requested by Cassis. Cassis did not file a reply.
The trial court reviewed Banker’s motion and ULAA’s response and awarded Cassis a fee of $149,325. The court arrived at this fee by reducing the hourly rate from the $275 requested by Cassis to $220, with no change in the number of hours worked. As to the hourly rate, the court noted that Cassis had undertaken a risky case on a contingent fee basis against a popular defendant. According to the court, an hourly rate of $220 would be “sufficiently high enough to entice capable counsel to take [Kentucky Civil Rights Act] cases .... and ... reasonable in light of Mr. Cassis’ [sic] efforts.”
The court then found that the number of hours claimed was “reasonable in light of the contentiousness of the litigation, which included the following: lengthy dispositive motions, multiple discovery disputes, numerous depositions, hearings, client counseling, mediation, a week[-]long trial, post-trial motions, post-trial discovery disputes, and this contentious dispute over attorney fees.” In doing so, the court stated that it did not know how many hours defense counsel had billed4 but that having that information “would be helpful, nay, necessary, to know how many hours [ULAA] considered necessary to defend against [Banker’s] claims.” The court then stated that, rather than focusing on such matters, it would “focus on whether Mr. Cassis’ [sic] tabulation [of hours] is reasonable in light of the litigation.” The court concluded that it was and noted that the number of hours did not include the time that Cassis had spent litigating the attorney fee issue.
Finally, the court found that no adjustment in the lodestar amount was appropriate. In denying ULAA’s request for a downward adjustment, the court determined that, although Banker succeeded on only one of her claims, the “vast majority of the facts relevant to the winning retaliation claim were also relevant to [Banker’s] other claims.” As to Banker’s request for an upward adjustment, the court found the risks cited by Cassis were similar to the risks routinely undertaken by attorneys working on a contingent fee basis. Furthermore, the court noted that the lodestar amount was nearly equal to the 40% routinely taken by attorneys undertaking risky cases on a contingent fee basis.
ULAA argues that the trial court erred for four reasons: (1) it “failed to consider in any way ULAA’s documentation, and simply accepted [Cassis’s] representations at face value without scrutinizing the requisite proof;” (2) it “found that ULAA could not contest Banker’s counsel’s fee claim without disclosing its own counsel’s hours;” (3) it looked to what a reasonable *467contingent fee would have been; and (4) it refused to adjust the fee based on'the dismissal of the majority of Banker’s claims. We address each argument in turn.
First, we note that the trial court did consider ULAA’s documentation, reférring specifically to that documentation in its order. Furthermore, the trial court undertook an analysis of the “true effort to place value on the services rendered” as required by Hill v. Kentucky Lottery Corp., 327 S.W.3d 412, 429 (Ky.2010), noting the contentiousness of the litigation, including the postverdict motion practice. Therefore, this argument is not persuasive.
ULAA’s second argument fails because it is simply a misstatement of what occurred. ULAA complains that the trial court “found ULAA could not contest Banker’s counsel’s fee without disclosing its own counsel’s hours.” The trial court did state that it might consider ordering ULAA to provide that information; however, the court never did so. Furthermore, although the trial court stated in its order that having such information would be “helpful, nay necessary,” the court went on to state that making a comparison between ULAA’s and Banker’s counsels’ billing records “would produce even more billable hours for both Parties.” Instead, the court chose to “focus on whether Mr. Cas-sis’ [sic] tabulation is reasonable in light of the litigation” which is what is required under Hill. Therefore, this argument is without merit.
ULAA’s third argument is somewhat confusing. The trial court did, as ULAA notes, look to what a reasonable contingent fee would be in this situation. However, the court did not do so to determine the lodestar amount or to deny ULAA’s request for a downward adjustment. It did so as justification for denying Cassis’s request for an upward amendment in the lodestar amount, which benefitted ULAA. We are not certain why ULAA is arguing that a decision from which it benefitted was incorrect; however, regardless of ULAA’s reasons for making this argument, it is not persuasive.
ULAA does not cite any case law to support its fourth argument, that the court should have amended the lodestar amount downward based on Banker’s failure to prove the majority of her claims. However, as the trial court held, “the vast majority of the facts relevant to the winning retaliation claim were also relevant to the other claims.” Because these claims were “inexorably intertwined” it was not an abuse of discretion to deny ULAA’s motion to amend the lodestar calculation downward. See Hill, 327 S.W.3d at 429. Therefore, this argument is equally unpersuasive.
Finally, we note that Cassis, who was and apparently still is a solo practitioner, has been involved in this litigation for nearly seven years. Approximately five of those years have been spent litigating his entitlement to a fee and arguing issues on appeal. Considering the length and the contentiousness of this litigation, we discern no abuse of discretion nor anything unreasonable about the fee the trial court awarded. Therefore, we affirm the trial court’s denial of ULAA’s motion for JNOV on the attorney fee issue.
IV. CONCLUSION.
For the foregoing reasons, we reverse the Court of Appeals and remand this matter to the trial court for entry of a judgment striking the award for lost wages.
All sitting. All concur.
. Hermann denied making these statements; however, the jury was free to believe Banker and disbelieve Hermann.
. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
. ULAA did not follow Kentucky Rule of Civil Procedure (CR) 76.28(5) by tendering a copy of the decision with its brief; nonetheless, we address why Flowitt is not applicable.
. As we noted, Cassis stated at the hearing on his fee motion that defense counsel had billed ULAA for approximately 1300 hours of work. However, Cassis did not file any documentation regarding those bills, which is apparently why the court indicated that it did not have any information regarding the number of hours defense counsel billed. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284198/ | OPINION OF THE COURT BY
JUSTICE CUNNINGHAM
In April of 2003, Appellant, Lawrence E. Pate, was indicted by a Bracken Circuit Court Grand Jury on the charge of manufacturing methamphetamine, second offense, which is a Class A felony. Appellant committed the offense in October of 2002, while awaiting final sentencing for manufacturing methamphetamine in Pendleton County. Prior to trial, the Commonwealth presented Appellant with two separate plea deals. Both offers would have amended the charge of manufacturing methamphetamine, second offense, down to criminal attempt to manufacture methamphetamine, first offense. In addition, the Commonwealth agreed to recommend a sentence of five years imprisonment to run consecutively to the twenty year sentence Appellant received in the Pendleton County case. Appellant’s counsel advised him to reject both plea offers and risk going to trial, as he believed Appellant would likely receive a concurrent sentence. Accordingly, Appellant proceeded to trial in 2005 and was found guilty of manufacturing methamphetamine, second offense.
Kentucky State Police Detective Chuck Reetin testified during the Truth-in-Sentencing stage of the trial. Detective Rec-tin advised the jury that Appellant committed a “non-violent” offense. As such, Appellant would become eligible for parole after serving twenty percent of his sentence, or eight years if sentenced to forty years or more. 501 Kentucky Administrative Regulations 1:030 § 3(l)(c) (“KAR”). Detective Reetin also informed the jury that Appellant’s sentence could be reduced through good time credits, in addition to other meritorious credits. The jury ultimately recommended the minimum sentence of twenty years in prison.
Prior to the trial court ruling on Appellant’s final sentence, the Commonwealth’s attorney and Appellant’s counsel both informed the trial court that they believed Appellant, as a non-violent offender, would become eligible for parole after serving only four years of the recommended twenty-year sentence. Appellant’s counsel further urged the trial court to allow Appellant to serve his sentence concurrently with the Pendleton County sentence. The trial court ultimately sentenced Appellant to twenty years imprisonment. However, the trial court stated that it was required by KRS 533.060(3) to order Appellant’s twenty year sentence to run consecutively to his Pendleton County sentence, for a *484total of forty-years imprisonment. This Court subsequently upheld Appellant’s conviction and sentence in 2007. See Pate v. Commonwealth, 243 S.W.3d 327 (Ky.2007).
When Appellant began serving his sentence, the Department of Corrections (“DOC”) classified him as a non-violent offender. Over four years after he was sentenced, the DOC notified Appellant that his non-violent offender status had been changed to violent offender. Due to Appellant’s reclassification, his parole eligibility and sentence expiration dates were recalculated. As a violent offender, Appellant cannot be released on parole until he serves at least twenty years of his forty-year sentence.1 See KRS 439.3401(3); 501 KAR 1:030 § 3(l)(e) (To become eligible for parole, a violent offender must serve eighty-five percent of the sentence received or twenty years, whichever is less). Moreover, now that Appellant is classified as a violent offender, he may not obtain non-educational, good time credit as provided for in KRS 197.045(l)(b)(l), nor may he receive sentencing credit if “the credit reduces the term of imprisonment to less than eighty-five percent (85%) of the sentence.” KRS 439.3401(4). In light of these harsh sentencing restrictions, Appellant requested that the DOC reinstate his non-violent offender classification. The DOC explained that it had modified Appellant’s status due to its changed interpretation of the “violent offender” statutory definition.
The DOC, as an administrative agency, is tasked with interpreting statutes and regulations that it is charged with implementing. See Bd. of Trs. of the Judicial Form Ret. Sys. v. Att’y Gen. of the Commonwealth, 132 S.W.3d 770, 786-87 (Ky.2003). One of those statutes is KRS 439.3401, which this Court often refers to as the Violent Offender Statute.
Prior to 2006, the DOC interpreted the statute’s “violent offender” definition to include those prisoners who were serving time for the commission of a Class A felony only if the crime was one “involving the death of the victim or serious physical injury to a victim.” See KRS 439.3401(1), amended by KRS 439.3401(l)(a)-(i)(2006). Under this definition, the DOC did not regard Appellant as a violent offender because there was not an identifiable victim to Appellant’s crime. However, as will be discussed further, the General Assembly amended KRS 439.3401(1) in 2006 to clarify that the violent offender classification should be given to all Class A felony offenders, regardless of whether the victim suffered death or serious physical injury. Based on this amendment, the DOC changed its interpretation of the violent offender statute and classified all prisoners convicted of committing Class A felonies as violent offenders.
After Appellant exhausted all administrative remedies, he filed a declaration of rights petition in the Franklin Circuit Court. As grounds for his petition, Appellant argued that the 2006 amendment to KRS 439.3401 constituted an ex post facto violation. The Franklin Circuit Court dismissed Appellant’s petition at the DOC’s request. Appellant subsequently appealed the order of dismissal. See Pate v. Ky. Dep’t of Corr., 2009-CA-000734. In addi*485tion, Appellant filed a motion for clarification of his sentence in the Bracken Circuit Court. In support of his motion, Appellant alerted the trial court that the DOC had impermissibly increased his prison time by reclassifying him as a violent offender. The Bracken Circuit Court denied. Appellant’s motion, after which he appealed. See Pate v. Commonwealth, 2009-CA-002110. Lastly, Appellant moved the Bracken Circuit Court to vacate, set aside, or correct his judgment of conviction and sentence pursuant to Kentucky Rules of Criminal Procedure (“RCr”) 11.42, or, in the alternative, Kentucky Rules of Civil Procedure (“CR”) 60.02. Appellant asserted numerous arguments in his motion to support his claims of ineffective assistance of counsel, all of which the Bracken Circuit Court denied without the benefit of a hearing. In regards to CR 60.02, Appellant claimed that he was entitled to extraordinary relief because he proceeded with a jury trial under the false belief that he would be considered a non-violent offender. The Bracken Circuit Court was not persuaded by Appellant’s argument and denied relief. Like the other adverse rulings, Appellant sought appeal of his RCr 11.42/CR 60.02 motion in the Court of Appeals. See Pate v. Commonwealth, 2009-CA-000465.
The Court of Appeals consolidated all three appeals and rendered its opinion in July of 2013. As to Appellant’s petition for declaration of rights, the Court of Appeals affirmed the Franklin Circuit Court’s dismissal. The Court of Appeals provided a short analysis, comprised of the following sentence: “[A] statute imposing a condition that must be met before a prisoner may be eligible for parole is not an Ex Post Facto law because prisoners do not have a right to be paroled and because the Parole Board is not required to release a prisoner prior to the completion of his maximum sentence.” In addition, the Court of Appeals affirmed the Bracken Circuit Court’s order denying Appellant’s motion for sentence clarification. In doing so, the Court of Appeals explained that RCr 10.10 only allows for a trial court to correct a judgment when there is a clerical mistake. The Cdurt of Appeals further affirmed the Bracken Circuit Court’s denial of Appellant’s CR 60.02 motion because it believed that relief was procedurally barred.
Lastly, the Court of Appeals agreed with the majority of the Bracken Circuit Court’s order denying Appellant’s RCr 11.42 motion. Yet, the Court of Appeals did find merit in Appellant’s ineffective assistance of counsel claim that was based on trial counsel’s erroneous belief that Appellant’s sentences could be served concurrently. The Court of Appeals believed that Appellant would have likely accepted the Commonwealth’s plea offers had he been correctly advised that any sentence received would run consecutively to his Pendleton County sentence. As a result, the Court of Appeals reversed the trial court’s order denying Appellant’s RCr 11.42 motion, and remanded the case back to the Bracken Circuit Court with directions for it to hold an evidentiary hearing.
Appellant subsequently filed with this Court a motion for discretionary review, which we granted. Appellant does not appeal the Court of Appeals’ affirmance of the Bracken Circuit Court’s order denying his motion for sentence clarification, nor does he provide arguments in support of the ineffective assistance of counsel claims which the Court of Appeals denied. Moreover, the Commonwealth did not cross-appeal the Court of Appeals’ order remanding the case to the Bracken Circuit Court for an RCr 11.42 hearing. Our review, consequently, is limited to (1) whether the Franklin Circuit Court and the *486Court of Appeals erred in ruling that KRS 439.3401 does not constitute an ex post facto law; and (2) whether the Bracken Circuit Court and Court of Appeals erred in denying Appellant relief pursuant to CR 60.02.
We hold in the affirmative as to the second issue.
The Violent Offender Statute— KRS 439.3401
Prior to conducting our review, we must examine the pertinent amendment the General Assembly made to KRS 439.3401(1). The Violent Offender Statute was enacted in 1986. From 2002 — the year in which Appellant committed his second offense of manufacturing methamphetamine — until 2005, the year Appellant stood trial, KRS 439.3401(1) read as follows:
As used in this section, “violent offender” means any person who has been convicted of or pled guilty to the commission of a capital offense, Class A felony, or Class B felony involving the death of the victim or serious physical injury to a victim....
This version of KRS 439.3401(1) supplies the Court with two reasonable and drastically different interpretations regarding which crimes qualify as violent offenses. One way to interpret the statute is to require the victim to have suffered death or serious physical injury, only as to Class B felonies. Under this interpretation, a violent offendér is any person who committed a capital offense or a Class A felony, regardless of any injury to the victim. The other logical reading of the statute is to apply the qualifier to all three classes of offenses. Per this interpretation, a violent offender can include any person convicted of a capital offense, Class A felony, or Class B felony, so long as the victim of the crime suffered death or serious physical injury. As the record indicates, this is the interpretation that Detective Rectin, Appellant’s trial counsel, and the Commonwealth’s attorney applied. It is also the interpretation the DOC used for approximately the first four years of Appellant’s incarceration.
In. 2006, the General Assembly amended KRS 439.3401(1) to make clear that a violent offender is an offender that commits any Class A felony, despite the consequences the victim suffers. The amended version of KRS 439.3401(1) defines “violent offender” as follows:
(1) As used in this section, “violent offender” means any person who has been convicted of or pled guilty to the commission of:
(a) A capital offense;
(b) A Class A felony;
(c) A Class B felony involving the death of the victim or serious physical injury to a victim;
(Emphasis added). As stated, this particular amendment induced the DOC to reclassify Appellant as a violent offender.
Ex Post Facto Law
This Court will first address Appellant’s argument that his reclassification as a violent offender, pursuant to the 2006 amended version of KRS 439.3401(1), violates his constitutional right to be free from the application of an ex post facto law. See U.S. Const. art I, § 10, cl. 1, § 9, cl. 3, Ky. Const. § 19(1). The prohibition against ex post facto laws was designed “to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). In determining whether a statute violates the ex post facto prohibition, we must consider whether the law “imposes a *487punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Id. at 28, 101 S.Ct. 960 (quoting Cummings v. Mo., 4 Wall. 277, 325-326, 18 L.Ed. 356 (1867)). Thusly, our analysis is two-fold. We must not only determine if the 2006 amendment to KRS 439.3401 is “retrospective,” but we must also decide whether the statute imposes upon Appellant an “increased punishment.” „ See Martin v. Chandler, 122 S.W.3d 540, 547 (Ky.2003) (citing Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588, (1995)).
The Franklin Circuit Court disposed of this issue without conducting a hearing or a significant analysis. The court simply designated Appellant’s claim as “unmerito-rious without the need for detailed discussion,” after which it stated that Appellant “should have known the legal consequences of his acts.” The Court of Appeals’ analysis went a little further, but ended its discussion on that issue due to Appellant’s inability to surmount the “increased punishment” requirement. The Court of Appeals’ holding was based on its prior ruling that a statute imposing a condition precedent to the completion of one’s sentence cannot be regarded as extending that sentence. See Garland v. Commonwealth, 997 S.W.2d 487 (Ky.App.1999).
Increased Sentence
There is no doubt that Appellant has been negatively affected by his reclassification as a violent offender. However, whether his actual sentence has been lengthened is debatable. As noted, prior to being classified a violent offender, Appellant was eligible for parole after serving eight years of his sentence. See 501 KAR 1:030 § 300(e). Yet as a violent offender, Appellant must serve twenty years in prison before becoming parole eligible. See KRS 439.3401(3); 501 KAR 1:030 § 3(l)(c). While the twelve-year increase in time Appellant must serve before becoming eligible for parole is significant, we agree with the Court of Appeals that it does not necessarily elongate Appellant’s sentence. Cf. Purvis v. Commonwealth, 14 S.W.3d 21, 23 (Ky.2000) (holding that an increase in the length of post-release conditional discharge impermissibly increased the offender’s total punishment). As the Court of Appeals opined in Garland, Appellant does not have a right to parole, nor is parole guaranteed. 997 S.W.2d at 490. Thusly, we concur with the Court of Appeals that increasing the time one must serve prior to becoming parole eligible does not have a “very real and direct effect on the actual time the prisoner remains behind bars.... ” Hyatt v. Commonwealth, 72 S.W.3d 566, 571 (Ky.2002).
In addition to affecting Appellant’s parole eligibility, KRS 439.3401 also prohibits him from obtaining certain good time credits or other credits that reduce the term of imprisonment to less than eighty-five percent of the sentence. See KRS 439.3401(4). By his calculation, Appellant’s violent offender status has increased his minimum “serve out date” by at least ten percent. As a result, the amount of time Appellant must spend behind bars is lengthened by the loss of sentence reducing credits. See Weaver, 450 U.S. at 33, 101 S.Ct. 960 (holding that a retrospective reduction in gain time credits constituted an ex post facto law because it lengthened the period that a prisoner must spend in prison).
Retrospective Application
Our analysis now turns to the other ex post facto requirement — whether the pertinent 2006 amendment to KRS 439.3401 is retrospective. A law is retrospective if it “changes the legal conse*488quences of acts completed before its effective date.” Weaver, 450 U.S. at 31, 101 S.Ct. 960. Appellant argues that KRS 439.3401(1) is retrospective because the 2006 amendment reclassified him as a violent offender, whereas he was not considered to be one when he committed the criminal act of manufacturing methamphetamine in 2002. The DOC, on the other hand, claims that KRS 439.3401(1) has always classified all Class A felonies as violent offenses, including Appellant’s crime in 2002. The DOC maintains the 2006 amendment to subsection (1) did not substantively alter the violent offender definition; rather, the amendment was merely a textual modification to clarify its applicability. Our inquiry, therefore, is to determine if the pre-2006 version of KRS 439.3401(1) rendered Appellant a non-violent offender. If so, then the 2006 amendment reclassifying Appellant as a violent offender was retrospectively applied and in violation of the constitutional bar against ex post facto laws.
When faced with issues of statutory interpretation we “must interpret the statute according to the plain meaning of the act and in accordance with the legislative intent.” Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky.2002) (citing Commonwealth v. Montaque, 23 S.W.3d 629 (Ky.2000)). “The most logical and effective manner by which to determine the intent of the legislature is simply to analyze the plain meaning of the statutory language: ‘[r]esort must be had first to the words, which are decisive if they are clear.’ ” Stephenson v. Woodward, 182 S.W.3d 162, 169-70 (Ky.2005) (quoting Gateway Constr. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky.1962)). With these standards in mind, we turn our attention to the 2002 version of KRS 439.3401, which read as follows:
(1) As used in this section, Violent offender’ means any person who has been convicted of or pled guilty to the commission of a capital offense, Class A felony, or Class B felony involving the death of the victim or serious physical injury to a victim or rape in the first degree or sodomy in the first degree of the victim, burglary in the first degree accompanied by the commission or attempted commission of a felony sexual offense in KRS Chapter 510, burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020, 508.032, or 508.060, burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040, or robbery in the first degree....
The statute’s wording is clear in that it bestowed the categorization of violent offender to those criminals who committed certain felony offenses. KRS 439.3401 enumerated general offenses followed by more specific offenses, which if committed, rendered the criminal a violent offender. The general offenses — capital offenses, Class A felonies, and Class B felonies — are placed together in the same sentence separated by commas, while the more specific offenses are listed after the qualifying phrase “involving the death of the victim or serious physical injury to a victim.” Accordingly, we are left to speculate as to whether the qualifying phrase applied to all three general offenses, or just to the offense that directly precedes it.
In viewing KRS 439.3401 in its entirety, this Court believes that the General Assembly had the intent of categorizing all Glass A felonies as violent offenses, not just those wherein the victim suffered death or serious physical injury. There is no requirement that the Class A crime have a victim who suffers death or serious *489physical injury. Only the Class B felonies require it. Those Class B felonies include first-degree rape, first-degree sodomy, first-degree robbery, and first-degree burglary when accompanied by a felony sexual offense, assault, or kidnapping.
Notably, the General Assembly did not include even one Class A felony offense to this list of exceptions; and for good reason, as it intended on classifying all Class A felonies as violent offenses. To hold otherwise would be nonsensical. Take for example, the crime of first-degree arson. The crime is a Class’A felony pursuant to KRS 513.020(2). The elements of the crime do not necessarily involve injury to the victim. An offender may be convicted of first-degree arson, for example, if the offender starts fire to an apartment building with the intent of damaging the building, while also believing that the building is inhabited. Of course if no one is in the building when the fire occurs, then there would be no physical injury to the victims of the crime. If we were to interpret the statute as Appellant suggests, then this Class A felony would not be considered a violent offense because the victims did not suffer death or serious physical injury.
Our interpretation that all Class A felonies are violent offenses is not novel. Both this Court and the Court of Appeals have previously ascribed to the belief that “the violent offender statute ... has applied to all Class A felonies since its inception.” Commonwealth v. Pridham, 394 S.W.3d 867, 879 n. 8 (Ky.2012) (emphasis added); see also, Fambrough v. Dep’t of Corr., 184 S.W.3d 561 (Ky.App.2006) (“The statute ... applies to all convictions for any capital offense, for any Class A felony ... regardless whether the victim suffered death or serious physical injury.”). Moreover, our interpretation is substantiated by the 2006 amendment to the Violent Offender Statute, which now makes clear that the General Assembly intended on excluding. Class A felonies from the requirement that the victim suffer death or serious physical injury. Consequently, we agree with the DOC that the 2006 amendment to KRS 439.3401(1) was textual in nature and did not change the violent offender definition. This Court, therefore, cannot hold that KRS 439.3401 is an ex post facto law, as there was no substantive change for the DOC to apply retrospectively.
Contemporaneous Construction
In support of Appellant’s attempt to bind the DOC to its initial determination that he was a non-violent offender, Appellant requests that the Court invoke the doctrine of contemporaneous construction. Similar to the reasoning used to prohibit ex post facto laws, the contemporaneous construction doctrine prohibits an administrative agency, like the DOC, from revoking its long-held interpretation of a statute, while applying its new interpretation retrospectively. See Hagan v. Farris, 807 S.W.2d 488 (Ky.1991); Revenue Cabinet v. Lazarus, Inc., 49 S.W.3d 172, 174 (Ky.2001) (“The doctrine of contemporaneous construction means that where an administrative agency has the responsibility of interpreting a statute ... [it] is restricted to any longstanding construction of the provisions of the statute it has made previously.”).
Appellant claims that the DOC has long interpreted KRS 439.3401(1) to only apply to Class A felonies where the victim of the crime suffered death or serious physical injury. To corroborate his claim, Appellant provided the Court with an affidavit from Jonathan Hall, the Branch Manager of the DOC Offender Information Services. Mr. Hall stated the following: ,
Upon reviewing the change in the textual format of KRS 439.3401(1) effective July 12, 2006 in comparison to all previ*490ous versions it became apparent that KRS 439.3401(1) has always defined a violent offender as any person convicted of ... any Class A felony.... Following our discovery that our previous interpretation of KRS 439.3401(1) was incorrect any offender standing convicted of a ... Class A felony That (sic) was not previously considered a violent offender had their sentence recalculated pursuant to KRS 439.3401.
Mr. Hall’s affidavit proves that, at the very least, he believes his office interpreted the statute incorrectly until 2006. However, the record indicates that the DOC as a whole did not interpret the statute in the same manner. If there were contradicting interpretations, then this Court cannot conclude that the DOC held a long standing interpretation of the statute. Cf. Hagan, 807 S.W.2d at 490 (The transfer of a liquor license was upheld because the transferor strongly relied, to his detriment, on the ABC Board’s decades-old, consistent interpretation of its own regulation.). For example, Melissa Harrod, Administrator of Offender Information Services, stated in her affidavit that the DOC Central Office had always instructed its employees to calculate all Class A felonies as violent offenses. Moreover, in the DOC’s motion to dismiss Appellant’s petition for declaration of rights, the DOC explained that it has long regarded Class A felons as violent offenders.
Based on the aforementioned mixed interpretations, it is fair to assume that some DOC departments interpreted the statute correctly, while others did not. As our predecessor Court explained in Delta Air Lines, Inc. v. Revenue Cabinet, “[t]he failure of a public officer to correctly administer the law does not prevent a more diligent and efficient public administrator to [properly apply the law].” 689 S.W.2d 14, 20 (Ky.1985) (citations omitted). Indeed, “contemporaneous construction can[not] be based upon an administrative agency’s mistakes.” Lazarus, 49 S.W.3d at 175-76. Therefore, we will not utilize the doctrine of contemporaneous construction to bind the DOC to Mr. Hall’s erroneous classification of Appellant as a nonviolent offender. To hold otherwise would allow portions of an administrative body to amend a statute without the force of legislative action. See Ky. Bd. Of Tax Appeals v. Citizens Fidelity Bank & Trust Co., 525 S.W.2d 68, 75 (Ky.Ct.App.1975) (“[W]e are no more disposed to hold that an administrative body can change a law by mistake than to hold that it can do so on purpose.”).
CR 60.02
Appellant’s final argument is that the Bracken Circuit Court abused its discretion in denying his motion to vacate the judgment of conviction pursuant to CR 60.02. For the following reasons, Appellant maintains that equitable relief is required:
All the parties involved in the trial of [Appellant] appeared to be either unaware of the correct interpretation of KRS 439.3401(1) or unwilling to challenge it, evidenced by the rejection of plea offers and the acquiescence of the presentation of false testimony regarding penalty at trial....[A]ll parties assumed [Appellant] would receive twenty (20) years, with twenty percent (20%) parole eligibility, and the opportunity to earn sentence reducing credits when his judgment was entered.... It is patently unfair to “walk” a defendant through pre-trial and trial advising him incorrectly as to the potential punishment upon conviction, and then after the judgment is entered against him, learn that everyone involved was mistaken.
*491CR 60.02(f) states that “[a] court may, upon such terms as are just, relieve a party or his legal representative from its final judgment [for] ... (f) any other reason of an extraordinary nature justifying relief.” Relief given pursuant to CR 60.02(f) is rarely provided because it is truly extraordinary. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky.1996). CR 60.02(f) is the codification of the ancient coram nobis writ, which justifies relief when the “[enforcement of] the judg ment as rendered would be an absolute denial of justice and analogous to the taking of life or property without due process of law.” Id. at 361-62 (citing Jones v. Commonwealth, 269 Ky. 779, 108 S.W.2d 816, 817 (1937)). Based on this legal principle, Appellant argues that he was denied due process of law when he proceeded with a jury trial under the false pretense that, if convicted, he would be treated as an ordinary, non-violent offender.
Although the facts of this case are highly unique, and despite the lack of analogous case law, this Court readily concludes that extraordinary and compelling reasons exist requiring us to grant Appellant equitable relief. It is axiomatic that the concept of due process requires us “to observe that fundamental fairness [is] essential to the very concept of justice.” Lisenba v. Cal., 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941). In evaluating the fairness of the judicial process Appel lant received, we must entertain “the probability that the conviction would not have resulted if the truth had been revealed.” Anderson v. Buchanan, 292 Ky. 810, 168 S.W.2d 48, 54 (1943). Throughout Appellant’s entire prosecution, he was never informed that a conviction of manufacturing methamphetamine, second offense, would result in him being classified a violent offender. Instead, Appellant was told that the customary sentencing guidelines found in 501 KAR 1:030 § 3(l)(c) applied. This misinformation was provided to Appellant by his trial counsel and confirmed by the actions of not only the trial court, but also the Commonwealth’s attorney and an officer of the law. Consequently, Appellant was under the impression that if convicted, he could obtain sentence reducing credits and become parole eligible after serving only twenty percent of the sentence imposed. With this mistaken belief in mind, Appellant rejected the Commonwealth’s plea deals and stood trial. The Court has no doubt that Appellant would have sought conviction of a lesser crime had he been rightfully informed of the violent offender status that manufacturing methamphetamine, second offense, carries. To bind Appellant to a sentence that carries such harsh terms, those of which he was unaware would apply, places the overall integrity of the judicial system in question. See Anderson, 168 S.W.2d at 54.
In light of the DOC’s inconsistent interpretation of KRS 439.3401(1), it is likely that Appellant is not the only prisoner to have been convicted under the erroneous belief that he or she would be classified as a non-violent offender. However, what renders Appellant’s situation particularly unjust is that the Commonwealth offered him the opportunity to plead guilty to criminal attempt to manufacture methamphetamine, first offense — a non-violent, Class C felony. Had he accepted the plea offer, Appellant would have been sentenced to five-years imprisonment, to run consecutively with his Pendleton County sentence, for a total of twenty-five years in prison. In addition, Appellant would become parole eligible after serving twenty percent of the sentence. It is a clear violation of the fundamental concepts of fair play and justice to now require Appellant to serve forty years in prison, without the chance of parole for twenty years, in addition to the forfeiture of certain good *492time credits. See 501 KAR 1:030 § 3(1)(e); see also, Commonwealth v. Spaulding, 991 S.W.2d 651, 657 (Ky.1999) (explaining that a criminal conviction' obtained through wrongful information can be a reason of an extraordinary nature justifying relief pursuant to CR 60.02(f)). Accordingly, we find that the trial court abused its discretion in denying Appellant’s motion, as a substantial miscarriage of justice will certainly result if we allow the final judgment to stand. For these reasons, the Court holds that Appellant is entitled to extraordinary relief pursuant to CR 60.02(f), thereby requiring the Bracken Circuit Court to vacate its judgment and sentence upon remand, subject to retrial on the charge.
There was a motion brought in this case below under RCr 11.42 which is not before us. While the facts of this case may be unique, it is quite likely that there are several other defendants sentenced at the time of the previous Violent Offender Statute, under the impression that the Class A felony classification required injury to person. This is the first time that this Court has given our attention to the interpretation of KRS 439.3401 prior to the 2006 amendment. We have held that the change does not constitute an ex post facto law which would formally nullify the change in the classification of Appellant. However, a spate of litigation may await the DOC and the courts, unless the DOC applies the more lenient interpretation to those prisoners affected by its reclassification — that applies to those defendants sentenced before the clarifying change to KRS 439.3401(1).
Conclusion
In summary, the Court concludes that the 2006 amendment to KRS 439.3401 does not constitute an ex post facto law, nor does it invoke the doctrine of contemporaneous construction. For that reason, the Court hereby upholds the Court of Appeals’ opinion affirming the Franklin Circuit Court’s dismissal of' Appellant’s Petition for Declaration of Rights. Additionally, for reasons aforementioned, the Court concludes that Appellant is entitled to relief pursuant to CR 60.02(f). Therefore, the Court of Appeals’ opinion affirming in part and reversing in part the Bracken Circuit Court’s dismissal of Appellant’s motion for relief pursuant to RCr 11.42, or in the alternative, CR 60.02, is hereby reversed and remanded back to the trial court with instructions for it to vacate Appellant’s judgment of conviction and sentence. Since Appellant’s conviction and sentence are to be vacated, the Bracken Circuit Court is no longer required to conduct an RCr 11.42 hearing as ordered by the Court of Appeals. Furthermore, Appellant’s procedural posture shall revert back to the point in time prior to the Commonwealth’s initial plea offer. Appellant is on notice that the crime to which he is charged, manufacturing methamphetamine, second offense, is a Class A felony that, if ultimately convicted of, will require the DOC to categorize him as a violent offender within the meaning of KRS 439.3401. .
All sitting. All concur.
. Despite Appellant receiving twenty years to serve for his Bracken County conviction, the Court will refer to Appellant's sentence as forty years imprisonment pursuant to KRS 197.045(3): As the statute mandates, "[wjhen two (2) or more consecutive sentences are to be served, the several sentences shall be merged and served in the aggregate for the purposes of the sentencing credit computation or in computing dates of expiration of sentence.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284199/ | OPINION OF THE COURT BY
JUSTICE VENTERS
Appellant, Micah S. Holland, was convicted in the Christian Circuit Court for the wanton murder of his first cousin, Joey Weatherwax. He was sentenced to twenty years’ imprisonment. As grounds for relief, Appellant contends that trial court erred by: (1) instructing the jury on the charge of wanton murder, or alternatively, failing to direct a verdict on the wanton murder charge; (2) refusing to clarify for the jury the meaning of the word, “wantonly,” as used in the jury instructions; (3) excluding proffered évidence concerning the victim’s predisposition towards violence; (4) improperly instructing the jury *497on the issue of self-protection; and (5) denying his request for an instruction on extreme emotional disturbance. Appellant further claims that if any single error is insufficient to warrant the reversal of his conviction, the cumulative prejudice resulting from multiple errors requires us to reverse his conviction. For the reasons stated below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Weatherwax grew up together amidst a large, extended family in the Christian County area. The record discloses that both Appellant and Weather-wax suffered from mental and emotional issues for which they were prescribed medications, and that both experienced difficulties with alcohol and illegal drug use. More significantly, Appellant’s wife, Christina, had previously been married to Weatherwax, and this led to ongoing animosity between the two.
Various events foreshadowed the present trouble, including an altercation in Clarksville, Tennessee, between Appellant and other family members, which led Appellant to believe that his family members were “all against him.” On a different occasion, Appellant complained that Weatherwax and other family members had loosened the lug nuts on the wheels of his car and cut his brake or power steering lines. On yet another occasion, Weather-wax allegedly asked his grandmother for money to buy ammunition so that he could shoot Appellant.
During the late night hours of September 8, 2012, and the early morning hours of September 9, 2012, another cousin, Kyle Cherry, hosted a gathering at his residence that was attended by several family members, including Weatherwax. In the hours preceding this event, Appellant and Weatherwax engaged in several acrimonious telephone conversations during which each made threats against the other. In the last of these conversations, Appellant indicated that he was on his way to confront Weatherwax. Weatherwax encouraged Appellant to do so, and then armed himself with a two-by-four board to await Appellant’s arrival.
As Appellant arrived, Weatherwax ran toward his vehicle armed with the two-by-four. Appellant fired a shot from his open car window; the bullet struck Weather-wax, who collapsed on the road with the board at his feet. As he fled from the scene, Appellant ran over Weatherwax. The official cause of death was listed as a gunshot wound to the chest.
Appellant was charged with murder. At trial, he declined to testify and called no witnesses. His defense, based upon principles of self-protection, was presented through cross-examination of the Commonwealth’s witnesses and trial counsel’s arguments to the jury. The trial court instructed the jury that it could find Appellant guilty of murder if it believed he acted either wantonly or intentionally in causing Weatherwax’s death. The jury found Appellant guilty of wanton murder.
II. THE INSTRUCTION ON WANTON MURDER WAS WARRANTED BY THE EVIDENCE
Appellant challenges the sufficiency of the evidence supporting the charge of wanton murder. He contends that all of the evidence adduced at trial indicated that he intentionally shot Weatherwax and that he acted deliberately to protect himself from Weatherwax’s imminent attack. In Appellant’s view, the evidence supported only two possible verdicts: not guilty by reason of self-protection, or guilty of intentional murder. Accordingly, he contends that the trial court erred by instructing the jury on wanton murder. To the same *498end, he argues that the trial court should have directed a verdict on the wanton murder charge. We do not agree.
With respect to Appellant’s claim that a directed verdict on wanton murder should have been granted, leaving the jury to consider only the charge of intentional murder, we note as we have in the past that a motion for a directed verdict is not the proper means “for obtaining any relief short of complete acquittal.” Trowel v. Commonwealth, 550 S.W.2d 530, 531 n.1 (Ky.1977). Appellant does not claim that he was entitled to a directed verdict of total acquittal; he concedes that the Commonwealth presented sufficient evidence to justify an intentional murder instruction. Therefore, the appropriate avenue of relief was to object, as Appellant did, to the giving of an instruction on wanton murder. “When the evidence is insufficient to sustain the burden of proof on one or more, but less than all, of the issues presented by the case, the correct procedure is to object to the giving of instructions on those particular issues.” Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky.1977). We have no further need to discuss the directed verdict aspect of Appellant’s argument, and so we turn our attention to the allegation of instructional error.
It is well established that “[i]n a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony.” Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999); see also RCr 9.54(1). To ascertain whether the jury instruction on wanton murder was proper, “we must ask ourselves, construing the evidence favorably to the proponent of the instruction, whether the evidence would permit a reasonable juror to make the finding the instruction authorizes.” Springfield v. Commonwealth, 410 S.W.3d 589, 594 (Ky.2013).
The crime of murder may be committed by one acting intentionally (KRS 507.020(l)(a)), or wantonly (KRS 507.020(l)(b)). Neither form of murder is a lesser included offense of the other; each is an alternative form of the same offense. Ordway v. Commonwealth, 391 S.W.3d 762, 795 (Ky.2013). See also Smith v. Commonwealth, 737 S.W.2d 683, 689 (Ky. 1987) (“[T]he offense of murder may be committed with either of two culpable mental states, intentional or wanton.”). It is, however, worth noting that we have held that “[a]n instruction on a lesser included offense is appropriate if, and only if, on the given evidence a reasonable juror could entertain a reasonable doubt of the defendant’s guilt on the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense.” Osborne v. Commonwealth, 43 S.W.3d 234, 244 (Ky.2001). By the same reasoning, it follows that if the evidence is such that a reasonable juror could have a reasonable doubt about whether a defendant acted with the intention of causing the victim’s death and at the same time believe beyond a reasonable doubt that the defendant acted wantonly, an instruction on wanton murder would be proper.
Appellant concedes that the evidence could support a verdict of intentional murder in the event the jury rejected his self-protection defense. He argues, however, that a reasonable juror could not, from the evidence presented at his trial, reasonably believe beyond a reasonable doubt that he acted wantonly. To act “wantonly” with respect to another’s death, one must be “aware of and consciously disregard! ] a substantial and unjustifiable risk that [death] will occur.... The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from *499the standard of conduct that a reasonable person would observe in the situation.” KRS 501.020(3). In addition, however, to return a verdict of wanton murder, the jury must further find that the defendant’s conduct “create[d] a grave risk of death to another person.” KRS 507.020(b).
Applying the above standards to the evidence in this case demonstrates the propriety of the trial court’s instruction on these alternate forms of murder. As Weather-wax charged toward Appellant’s vehicle wielding a two-by-four, Appellant fired a single shot from the window of his car. He then ran his vehicle over Weatherwax in the process of fleeing from the scene. As related by those present at the shooting, Appellant’s state-of-mind during the critical moments could not be precisely gauged. Appellant did not testify or otherwise present direct evidence of his objectives during the incident, and so the jury was left to infer his state-of-mind based upon the totality of the evidence presented.
Certainly, “[a] defendant may be presumed to intend the natural and probable consequences of his act, and thus a jury is entitled to find an intent to cause death from an act of which death is a natural and probable consequence.” Smith v. Commonwealth, 737 S.W.2d 683, 688 (Ky.1987). And so, while the jury could have readily inferred that Appellant intended to kill his cousin, the proof of such an intention was not so compelling as to negate all other possibilities. “[W]hether a defendant actually has an intent to kill remains a subjective matter ... neither the inference nor the presumption of intent are mandatory.” Hudson v. Commonwealth, 979 S.W.2d 106, 110 (Ky.1998). A reasonable juror could easily have believed from this evidence that Appellant had no specific intent to cause Weather-wax’s death, and was instead simply indifferent to Weatherwax’s life as he consciously disregarded the substantial and unjustifiable risk of death to another person that his conduct was creating, thus satisfying the elements of KRS 507.020(b).
A trial court’s decision on whether to instruct the jury on a particular offense is necessarily based upon the evidence. In recognition of a trial court’s closer view of the evidence, we review questions concerning the propriety of giving a particular instruction for abuse of discretion. Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky.2006). Here, we see no abuse of discretion by the inclusion of a wanton murder alternative in the instructions under the circumstances of this case.
A further parsing of Appellant’s argument on this issue discloses the value in mentioning one other point. Appellant focuses his argument on the undisputed fact that he voluntarily and deliberately, i.e., intentionally, fired the gun at Weath-erwax, as if that fact was dispositive of the issue. His argument illustrates a common misperception. The proper inquiry under the intentional murder provision of KRS 507.020(l)(a) is not whether the defendant intended to fire the bullet at his victim; rather, it is whether he intended to cause the death of his victim when he fired the bullet. The difference may be subtle, but in reviewing the sufficiency of the evidence, the difference is critical. Obviously, intent to cause the death may be inferred from the intentional firing of the gun; but the ultimate question under KRS 507.020(l)(a) is whether Appellant acted “with intent to cause the death of another person” when he fired the gun, not whether he intended to fire his gun.
III. THE TRIAL COURT PROPERLY DECLINED TO ELABORATE ON THE MEANING OF THE WORD “WANTONLY”
After receiving the trial court’s instructions and retiring to deliberate, the *500jury sent a note to the trial court asking the judge to clarify the meaning of the word “wantonly” by providing an example of conduct that would be considered “wanton.” In, response, the trial judge explained to the jury in open court:
[T]he only thing I can tell you about the definition of wantonly is that which is already contained in the jury instructions which you have been provided. I understand that there has been a request for an example of what wanton would be and unfortunately I can’t give that to you.
Appellant complains on appeal that the judge should have provided the requested clarification to dispel any confusion the jury may have had about the concept. Appellant cites to Bollenbach v. U.S., 326 U.S. 607, 612-618, 66 S.Ct. 402, 90 L.Ed. 350 (1946), for the proposition that “[w]hen a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy.” Significantly, however, Appellant made no contemporary complaint about the trial court’s response to the jury’s request, and even now he offers no suggestion as to what the trial court should have said to the jury. Consequently, because the issue is not preserved, our review is limited to the manifest injustice standard contained in RCr 10.26.
We certainly agree with the conclusion of the United States Supreme Court in Bollenbach that the ability of the jury to discharge its responsibility “depend[s] on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria.” Id. at 612, 66 S.Ct. 402. Upon review, we are satisfied that the trial court properly responded to the jury’s inquiry and that the standard of Bollenbach was properly observed. The written instruction given to the jury included this explanation of the word “wantonly”:
A person acts wantonly with respect to a result or to a circumstance when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.
The foregoing instruction closely reflects the statutory definition of “wantonly” provided by KRS 501.020(3), and is consistent with the definition suggested in Cooper & Cetrulo, Kentucky Instructions to Juries, Criminal § 3.03 (5th ed. 2015).1
We acknowledge that the concept of wanton behavior, especially within the murder-self-protection paradigm, is more complex than some of the other matters that jurors must routinely address. But the idea of “wantonness” is well within the realm of an ordinary person’s real-life experiences, and we believe the articulation of the concept in the jury instructions would adequately convey its meaning to any reasonable individuals charged with the responsibility of rendering a verdict in a criminal case. We trust jurors to give careful, attentive, and deliberate reflection to the decisions they are required to make, even complex decisions. That is, after all, the reason their decision making process is called “deliberation.” We cannot flinch when they are called upon to do so in *501difficult cases. We do not expect trial judges to provide juries with quick answers to hard questions. Any attempt by a trial judge to simplify the juror’s task by giving them an example of what the judge regards as wanton conduct introduces the unreasonable and unnecessary risk that such examples would be grossly misleading or unduly suggestive. We commend this trial judge for refusing to do so. Far from manifest injustice and palpable error, we find no error at all in his handling of this matter.
IV. THE EXCLUSION OF EVIDENCE OF THE VICTIM’S PREVIOUS PARTICIPATION IN A ROBBERY DOES NOT WARRANT REVERSAL
Appellant contends that the trial court erred by sustaining the Commonwealth’s objection to his cross-examination of Amanda Combs, Weatherwax’s girlfriend. Appellant wanted to ask Combs about an occasion she witnessed when Weatherwax, with an accomplice, violently accosted and robbed a person. The trial court excluded the evidence because that episode was “a little too remote” and did not have “anything to do with the” crime charged. While we do not endorse the trial court’s reason for excluding the evidence, we are unable to find reversible error here because Appellant has not adequately preserved the issue by an avowal or other proffer disclosing what Amanda’s testimony would have been upon this point so that we may undertake a meaningful review.
KRE 108 states:
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and ... If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Generally, a homicide defendant may introduce evidence of his victim’s character for violence in support of the claim that he acted in self-defense or that the victim was the initial aggressor. However, such character evidence must ordinarily be in the form of reputation or opinion. Moorman v. Commonwealth, 325 S.W.3d 325, 332 (Ky.2010). Specific acts of violence by the victim are admissible to prove his violent character only when accompanied by proof “that the defendant knew of such acts, threats, or statements at the time of the encounter.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.15[4][d] (4th ed. 2003).
As we said recently in Henderson v. Commonwealth, citing KRS 103(a)(2), “[t]o preserve a trial court’s ruling for appeal ... the substance of the excluded testimony must be provided to the trial court” by way of an offer of proof “adducing what that lawyer expects to be able to prove through a witness’s testimony.” 438 S.W.3d 335, 339-40 (Ky.2014). We explained that the offer of proof serves two purposes: it “provides the trial court with a foundation to evaluate properly the objection based upon the actual substance of the evidence^]” Id. at 340, and, it “gives an appellate court a record from which it is possible to determine accurately the extent to which, if at all, a party’s substantial rights were affected.” Id.
Here, the trial court was not apprised of what Amanda had to say on the vital subject of Appellant’s knowledge of Weather-wax’s involvement in a violent robbery. We therefore have no means to adjudge the sufficiency of Combs’ proposed testimony. As such, we conclude the issue is not adequately preserved for review. We discern no basis for reversal in connection with this argument.
*502V. THE JURY INSTRUCTIONS PERTAINING TO SELF-PROTECTION WERE CORRECT
Appellant next argues that he was denied due process because the jury instructions, as they relate to the issue of self-defense,2 were misleading and confusing. Specifically, Appellant does not suggest that the instructions provided by the trial court in this case misstated the law; rather, he complains that the instructions were structured in a manner that diminished the jury’s ability to consider the concept of the imperfect self-defense. He argues on appeal that better instructions should have been given, namely, the ones suggested by this court in Commonwealth v. Hager, 41 S.W.3d 828 (Ky.2001). Ironically, the trial court expressly brought to the attention of trial counsel the instructions proposed in Hager. Significantly, neither the defense nor the prosecution requested the jury to be so instructed.
RCr 9.54(2) provides that “No party may assign as error the giving or the failure to give an instruction unless the party’s position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.” Clearly, Appellant never informed the trial court of deficiencies that he now claims unduly tainted the instructions and deprived him of a fair trial. He seeks palpable error review under RCr 10.26.
In Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky.2013), we held that “when the allegation of instructional error is that a particular instruction should have been given but was not, or that it should not have been given but was given,” RCr 9.54 bars palpable error review. We distinguished that kind of instructional error from the claim that a particular instruction was incorrectly stated. “[Assignments of error in ‘the giving or the failure to give’ an instruction are subject to RCr 9.54(2)’s bar on appellate review, but unpreserved allegations of defects in the instructions that were given may be accorded palpable error review under RCr 10.26.” Id.
To the extent that Appellant claims that the trial court was correct to instruct on imperfect self-defense, but that it incorrectly stated the instruction, we agree that review is available. However, upon review, we are not persuaded that any error occurred.
Appellant claims that, because of the way the instructions were structured, the jury was unable to give fair consideration to the concept of imperfect self-defense that might have mitigated the killing of Weatherwax from wanton murder to second-degree manslaughter or reckless homicide. The theory of imperfect self-defense that would justify an instruction on the lesser crime of second-degree manslaughter is based upon the factual premise that the accused had the actual subjective belief that deadly force was necessary to protect himself from .the victim. Once the jury concludes that the defendant did not have that actual belief, there is no longer the possibility of a lesser offense based upon imperfect self-defense.
In this case, the instructions explaining the concept of self-defense (Instruction Nos. 7 and 8) clearly incorporate the “actual belief’ element of that concept; and, those instructions preceded the instruc*503tions on the substantive offenses of murder (Instruction No. 9); first-degree manslaughter (Instruction No. 10); second-degree manslaughter (Instruction No. 11); and reckless homicide (Instruction No. 12). For the jury to find Appellant guilty under Instruction No. 9, murder, it had to beliéve beyond a reasonable doubt that Appellant “was not privileged to act in self-protection.” Therefore, the jury had to believe that Appellant did not have an actual belief that his use of deadly force against Weatherwax was necessary. Once the jury made the factual determination that Appellant did not have an actual belief in the necessity of acting in self-protection, the lesser offenses of second-degree manslaughter and reckless homicide were no longer viable options. If Appellant did not have' an actual belief in the necessity of using force against Weatherwax, he could not have had a recklessly or wantonly formed belief in that necessity.
We recognize the conceptual complexities inherent in Kentucky’s self-defense statutes, but we believe the instructions given in this case provided the jury with an accurate roadmap to navigate the legal intricacy involved. Perhaps, better instructions could have been designed for this particular case. At trial, however, the parties showed no interest in doing so. We see no manifestation of injustice here, and so we reject Appellant’s argument.
VI. THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT UPON A LESSER OFFENSE BASED ON EXTREME EMOTIONAL DISTURBANCE
Appellant next contends that the trial court erred by denying his request for an instruction on first-degree manslaughter based upon the theory that the jury could have reasonably believed from the evidence that, when he killed Weatherwax, he acted under the compelling influence of an extreme emotional disturbance (EED). First-degree manslaughter is a lesser degree of homicide than murder.
As with any lesser degree of an offense, “[a]n instruction on [first-degree manslaughter] is proper only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense [of murder], and yet believe beyond a reasonable doubt that he is guilty of the lesser offense [of first degree manslaughter].” Hudson v. Commonwealth, 385 S.W.3d 411, 416 (Ky.2012) (citing Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky.1998)). To support a manslaughter instruction based upon extreme' emotional disturbance, the evidence must have been such that it could induce a reasonable jury to believe that Appellant acted t violently because of “a temporary state of mind so enraged, inflamed, or disturbed as to over come [his] judgment, and to cause [him] to act uncontrollably from [an] impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.” McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky.1986).
Extreme emotional disturbance is the successor to the common law concept of “sudden heat of passion.” Spears v. Commonwealth, 30 S.W.3d 152, 154 (Ky.2000). The two primary distinctions between EED and sudden heat of passion are the abandonment of the common law requirement that the killing occur in a “sudden heat of passion” upon “adequate provocation” and that the jury view the situation subjectively, from the defendant’s point of view, rather than objectively. Id. at 155 (citations omitted). Thus, under EED, “mitigation is not restricted to circumstances which would constitute provocation ‘in the ordinary meaning of the term.’ ... In other words, it is possi*504ble for any event, or even words, to arouse extreme mental or emotional disturbance.” Id. (citations omitted).
It is well-settled that to qualify for an instruction on EED, there must be evidence of an “event that triggered] the explosion of violence on the part of the criminal defendant” and that event must be “sudden and uninterrupted.” Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky.1991), cert. denied, 506 U.S. 921, 113 S.Ct. 337, 121 L.Ed.2d 254 (1992). “[I]t is wholly insufficient for the accused defendant to claim the defense of extreme emotional disturbance based on a gradual victimization from his or her environment, unless the additional proof of a triggering event is sufficiently shown.” Id. (emphasis added).
Appellant does not identify with particularity any specific triggering event to explain his violent actions; instead, he cites a series of disagreeable interactions and threatening exchanges that festered over a period of several months, culminating in the hostility Weatherwax exhibited just before he was shot. Appellant places particular emphasis upon the following language from Spears: “[T]he fact that the triggering event may have festered for a time in [the defendant’s] mind before the explosive event occurred does not preclude a finding that [the defendant acted] under the influence of extreme emotional disturbance.” 30 S.W.3d at 155 (quoting Springer v. Commonwealth, 998 S.W.2d 439, 452 (Ky.1999)). Appellant also cites Fields v. Commonwealth, 44 S.W.3d 355 (Ky.2001) for the same theory.
In Spears, the defendant murdered his wife thirty-six hours after seeing her engaged in a tryst with her paramour. Notwithstanding the fact that a day and a half passed while the defendant’s emotions festered, there was in Spears, unlike here, a specific and identifiable triggering event.
In Fields, the defendant conceived a child in an extramarital affair and killed it shortly after its birth. This Court acknowledged that, from the evidence, one could reasonably believe either of two possible theories for a triggering event to support a finding that the defendant acted under the influence of EED when she killed her newborn infant. One theory identified the discovery of her out-of-wedlock pregnancy as the triggering event which remained uninterrupted until she gave birth and killed her child. The other theory identified the birth itself, following Appellant’s claimed state of denial with respect to her pregnancy, as an event, “so shocking to her as to constitute adequate provocation which triggered an EED.” Id. at 359.
In both Fields and Spears, specific qualifying events can be identified. Appellant has no such event which can be cited as the trigger for a sudden outburst of emotion driven violence. The argument that the sight of Weatherwax charging Appellant wielding a board as a weapon could have been a triggering event does not withstand scrutiny, given the context of the altercation. Appellant and his cousin had exchanged verbal barbs for weeks and hours leading up to the final confrontation. After their last phone conversation, Appellant arrived at the, party expecting a hostile reaction from his cousin and he was not disappointed. Appellant was apparently spoiling for a fight, so it is hard to conceive how Weatherwax’s action could be a “triggering event,” so sudden and shocking as- to overcome Appellant’s judgment, provoking him to react uncontrollably with a violent outburst.
Furthermore, Appellant did not testify, and so he provided no direct evidence to explain his state-of-mind or to identify a source of his extreme emotional distur*505bance, if in fact, he suffered such a disturbance. At most, we have evidence of the “bad blood” that existed between the two cousins, manifested by a series of events that would not trigger a sudden or a festering outburst of animus so severe as to constitute an extreme emotional disturbance as we have defined that concept. A jury could not find that Appellant acted as the result of an extreme emotional disturbance except by resorting to sheer speculation.
Upon examination of Appellant’s argument and the cases cited, we are not persuaded that he has identified any legally sufficient triggering event that could have induced within him “a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from [an] impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.” McClellan, 715 S.W.2d at 468. The trial court did not err in rejecting Appellant’s request for a first-degree manslaughter instruction based upon extreme emotional disturbance.
YII. CUMULATIVE ERROR AND DOUBLE JEOPARDY ISSUES
Appellant’s final arguments are that he is entitled to a reversal of his conviction based upon the cumulative prejudicial effect of multiple errors, and that upon reversal of his wanton murder conviction, a retrial of the charge of intentional murder is barred by double jeopardy. Because we conclude that Appellant’s trial was not marred by error, we necessarily conclude that there was no cumulative error. Because we affirm Appellant’s conviction for wanton murder, his argument that he cannot be retried for intentional murder is moot.
VIII. CONCLUSION
For the foregoing reasons, the judgment of the Christian Circuit Court is affirmed.
All sitting. All concur.
. We agree with the cited text that the last sentence of the definition of "wantonly" should be included in the jury instruction only when there is evidence to support the inference that the defendant was intoxicated at the time of the offense.
. The applicable Kentucky statutes and many appellate court decisions use the term "self-protection” instead of the more common term, "self-defense.” In the context of this case the terms are synonymous and we use them interchangeably. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284200/ | OPINION
KRAMER, JUDGE:
Appellants Amy Williams and Kuttawa Parks & The Mountain Preservation Alliance, Inc., appeal from the Lyon Circuit Court’s summary judgment orders vesting the City of Kuttawa (“City”) with fee simple absolute title to land conditionally dedicated to the City; denying the City’s request to abolish the restrictive covenants contained in the deed of dedication; and dismissing Appellant’s counterclaims against the City. After careful review, we affirm the Lyon Circuit Court.
FACTUAL AND PROCEDURAL BACKGROUND
Shortly after Charles Anderson’s death in 1895, three parcels of land were dedicated by his daughter Kitty Anderson and grandson Bartley Skinner to the town of Kuttawa’s Board of Trustees, under the condition the dedicated tracts remain parkland or revert to Charles Anderson’s heirs. Specifically, the handwritten deed set forth the following reservations, provisions, conditions and restrictions:
It is one of the express conditions of this grant that no school, college, or educational building of any kind shall ever be erected on or within any of said parks, nor any other kind of building except conservatories, shelter houses and such other buildings as are usually and customarily erected in public parks for the administration thereof, and for the comfort, refreshment and convenience of visitors.
No wines, beers, ales or any other alcoholic or intoxicating liquors or beverages of any kind shall ever be permitted to be sold, given away or used within the limits of any of said parks.
If at any time hereafter, [grantees] shall permit the said parks to fall into ruinous and unsightly condition, or shall permit the trees therein to be mutilated, killed, or cut down (except such thinning out of the forest growth as may be required to enhance the landscape effect and the beauty of said parks) or shall permit a portion or portions of the same to be enclosed or used by private individuals for farming, gardening or residence purposes, or for any other private or personal use whatsoever, or shall rent or lease any portion or portions of either or any of said parks for such private uses, or shall ever sell any portion or portions of said parks or either of them, or shall divest any of the grounds of either of said parks to any other use or uses than for the public park purposes herein provided; or if [grantees] should ever permit the sale or use within the limits of either of said parks of any kind of alcoholic wines, beers, ales or of distilled or any other kind of alcoholic or intoxicating liquors or beverages, as aforesaid, and prohibited herein or shall ever erect or cause or permit to be erected within the limits of said parks any school, col*508lege or educational buildings or buildings of any kind or any other kind of buildings except conservatories, shelter houses, and such other buildings as are usually and customarily erected in public parks for the administration thereof and for the comfort, refreshment and convenience of visitors using such parks, then all the grants rights and privileges conveyed herein shall terminate and become null and void, and all of the lands conveyed herein shall revert to and become the property of the heirs of the said Charles Anderson.
Since its dedication to the City, the land has remained parkland per the terms of the dedication. However, on May 22, 2006, the City of Kuttawa filed an action in the Lyon Circuit Court to quiet title to portions of two of the tracts dedicated by Anderson’s heirs and sought to abolish the reservations, provisions, conditions, restrictions and right of reversion contained in the deed in toto. Both tracts that were the subject of the City’s action abut Lake Barkley and are thickly forested and unmaintained by the City. The first, known as Walnut Grove Park, is a 2.77 acre “L” shaped tract located within old Kuttawa proper — southeast of Poplar Street, between 7 th Street and 9 th Street. Walnut Grove Park has been partially submerged beneath Lake Barkley, leaving two isolated peninsulas above water. The second is a 2.66 acre, steep and narrow strip of Vista Ridge Park — bound on the north by Interstate 24; the south by public access to the Lake; the east by highway 295; and the west by Lake Barkley.
The City joined Anderson’s heirs, all unknown owners, and all other persons claiming any right in the subject real estate and effectuated service on all defendants by Warning Order Attorney. However no responsive pleadings were filed, and Appellants intervened pursuant to Unknown Heirs, Devisees, Legatees & Assigns of Devou v. City of Covington, 815 S.W.2d 406, 413-14 (Ky.App.1991) (citation omitted).
Appellants’ answer generally denied the allegations in the City’s complaint and asserted counterclaims against the City, alleging the deed created a charitable trust for the benefit of the public; that the City, as trustee, breached its fiduciary duties to the public by filing suit; and that the City’s actions unconstitutionally impaired the terms of the deed of dedication. Appellants demanded dismissal of the quiet title action; class action certification; in-junctive relief restraining and enjoining the City from renting or leasing the parcels; and a declaration that the city acted ultra vires; as well as costs and attorneys fees associated with defending the City’s action.
On May 30, 2013, the Lyon Circuit Court entered partial summary judgment and found that pursuant to Kentucky Revised Statute (KRS) 381.221(1),1 the rever-sionary interest was abolished and the City held the parcels in fee simple absolute. Additionally, it found that the terms of the dedication were unambiguous, not against public policy, and that fulfillment of the terms was not impossible. The circuit court held that the parcels must remain subject to the reservations, provisions, conditions and restrictions contained in the deed. Subsequently, by summary judgment order entered September 27, *5092013, the circuit court found that the deed did not create a trust; that the City was within its authority to file the action to quiet title; and that the City was entitled to judgment as a matter of law on all of Appellants’ counterclaims. The court made its September 27, 2013 judgment final, and this appeal followed.
STANDARD OF REVIEW
The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56.03. “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Summary “judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Steelvest, 807 S.W.2d at 480 (citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky.1985)). Consequently, summary judgment must be granted “[o]nly when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor....” Huddleston v. Hughes, 843 S.W.2d 901, 903 (Ky.App.1992), (citing Steelvest, 807 S.W.2d 476) (citations omitted). “Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court’s decision and will review the issue de novo.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App.2001) (footnote omitted).
ANALYSIS
Appellants argue the circuit court erred in its interpretation of the deed, its conclusion that fee simple absolute vested in the City, and its dismissal of Appellants’ counterclaims.2 We first address the circuit court’s interpretation of the deed of dedication. Appellants proceed under the theory that the deed of dedication created a charitable trust in favor of the public and that the City was the trustee of the dedicated parks. We. disagree with the Appellants’ interpretation of the deed of dedication and agree with the circuit court that the deed fails to create a charitable trust and expresses an intent to gift the lands to the City.
The rules applicable to construction and interpretation of a deed or trust are generally analogous to the rules of construction and interpretation of contracts. Monroe v. Rucker, 310 Ky. 229, 220 S.W.2d 391, 392-93 (1949) (citation omitted). “[A] deed shall be construed based upon its provisions as a whole.” Florman v. MEBCO Ltd. Partnership, 207 S.W.3d 593, 600 (Ky.App.2006) (citation omitted). However if the instrument’s provisions are susceptible to more than one different — yet reasonable — interpretation, they are ambiguous; and, we may look to extrinsic evidence during our interpretation. Central Bank & Trust Co. v. Kincaid, 617 S.W.2d 32, 33 (Ky.1981). But absent ambiguity, we may look only “to the intentions of the parties, gathered from the four corners of the instrument using its words’ common meaning and un*510derstanding.” Florman, 207 S.W.3d at 600 (citation and internal quotations omitted). We will not substitute what was intended for what was said. Id.
Here, neither party argues that the deed is ambiguous. We agree; the deed is not susceptible to more than one reasonable interpretation. Thus, we look only to the four corners of the document to determine the intent of the parties. A reading of the plain language shows the grantors intended to gift the land to the City to be used as a park. The granting clause of the deed states in pertinent part:
... [The heirs of Charles Anderson] for [one dollar and charity] do give and convey unto ... the Board of Trustees of the said Town of Kuttawa and unto their successors in office forever, ... as Trustees herein for the said town of Kuttawa, and for the uses and purposes hereinafter fully set forth, all the following certain tract or parcels of land to wit:
... [legal descriptions] ...
To have and to hold forever as Trustees of said lands as public parks, for the use and benefit of the said Town of Kuttawa, subject however to the following reservations, provisions, conditions and restrictions to wit:
... [reservations, provisions, conditions and restrictions supra ]
To effectuate a gift there need only be an intent to make the gift, delivery of the gift, and acceptance of the gift. Rand v. Rand, 132 F.Supp. 929, 932 (E.D.Ky.1955) aff'd, 234 F.2d 631 (6th Cir.1956) (citing Hale v. Hale, 189 Ky. 171, 224 S.W. 1078, 1080 (1920)). Here, the deed of dedication expresses an intent to “give” the parkland to the City, through its trustees. The deed was recorded, and the City has maintained the land as a park pursuant to the terms of the conveyance for over 100 years, satisfying all requirements for effectuating a gift.
In contrast, the four corners of the deed ensure no trust could be created. Pursuant to our Uniform Trust Code,3 to create a charitable trust the settlor must: (1) have the capacity to create a trust; (2) indicate an intention to create the trust; (3) name a trustee who is not the sole beneficiary; and (4) assign some kind of duty to the trustee. The Anderson heirs’ deed of dedication clearly fails to satisfy the requirements for creating a charitable trust.
Appellants argue that references to “trustees” within the deed show an intent to create a trust; however, when the entire deed is examined, it expresses no such intent. On its face the instrument’s references to “trustees” are used only in the context of the City’s Board of Trustees. The plain language shows the grantors failed to name a trust as the grantee; failed to name a trustee of the purported trust; failed to assign active duties to any party; and failed to name an equitable beneficiary other than the City.
There being no named equitable beneficiary other than the City, there was no division of the legal and equitable interests necessary to create a trust. Here, the City was both the grantee and express beneficiary of the conveyance. The deed states in pertinent part that the parcels are being conveyed to “the Board of Trustees of the said Town of Kuttawa, ... as Trustee's herein for the said Town of Kut-tawa, ... for the use and benefit of the said Town of Kuttawa.” Nowhere does the deed indicate that another party other than the City should benefit from the conveyance. We will not substitute what the drafter may have meant for what was writ*511ten. Florman, 207 S.W.3d at 600. It is clear from the four corners of the deed that the grantors intended to give the land to the City. They chose to ensure the purpose of the gift was fulfilled, not through management by a trustee, but by operation of law in the form of restrictive covenants and a reversionary interest.4
Next we turn to dismissal of Appellants’ counterclaims. Because all but Appellants’ constitutional claims were derived from the City’s purported duties as trustee and we have determined that no charitable trust or trustee exists, we need not address those claims derived from the City’s purported duties as trustee.5
Consequently we are left only with Appellants’ claim that the City unconstitutionally impaired the contract between Anderson’s heirs and the City. “The Constitution of the United States, Article 1, Section 10, contains a virtually identical provision to Section 19 of the Kentucky Constitution, prohibiting any law impairing the obligation of contracts.” Adams v. Associated General Contractors of Kentucky, Inc., 656 S.W.2d 729, 730 (Ky.1983). And “[t]he threshold inquiry is ‘whether state law has, in fact, operated as a substantial impairment of a contractual relationship.’ ” Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983). “In order for a law to impair the obligation of a contract, the obligation must be rendered invalid, must be released or extinguished.” Adams, 656 S.W.2d at 730 (citing City of Covington v. Sanitation District No. 1, 301 S.W.2d 885, 888 (1957)). Here the record is bare with respect to Appellants’ constitutional claims; Appellants merely recite the provisions they allege were violated. However, the City did not create a law by seeking relief from the circuit court. The judgment of the circuit court did not invalidate, release or extinguish the City’s obligations under the deed. We therefore reject Appellants’ constitutional counterclaims. Because all of Appellants’ counterclaims were properly dismissed as a matter of law, their request for costs and attorneys’ fees was also properly denied.
CONCLUSION
The Anderson heirs’ deed of dedication made their intent to gift the land to the City clear. Appellants’ theory that the deed created a charitable trust was misplaced, and their counterclaims were without merit. Anderson’s heirs’ choice to ensure the purpose of the gift was fulfilled by restrictive covenants and a reversionary interest is readily apparent from the four corners of the deed. For the foregoing reasons, we affirm the circuit court’s summary judgment orders vesting the City with fee simple absolute title, denying abolition of the restrictive covenants, and dismissing Appellants counterclaims as a matter of law.
CLAYTON, JUDGE, CONCURS
NICKELL, JUDGE, CONCURS BY SEPARATE OPINION.
. KRS 381.221(1) states that:
Every possibility of reverter and right of entry created prior to July 1, 1960, shall cease to be valid or enforceable at the expiration of thirty (30) years after the effective date of the instrument creating it, unless before July 1, 1965, a declaration of intention to preserve it is filed for record with the county clerk of the county in which the real property is located.
. The City argues this appeal should be dismissed as moot because the circuit court upheld the restrictive covenants in the deed — a decision favorable to Appellants — and it contends, unappealable pursuant to Morrison v. Bartlett, 292 Ky. 530, 166 S.W.2d 989, 990 (1942). However, interpretation of the deed of dedication and dismissal of Appellants' counterclaims, discussed infra, are justiciable issues ripe for our review.
. Kentucky Revised Statute (KRS) 386B.4-020(1).
. Restatement (Second) of Trusts § 11 (1959) (An interest subject to a condition subsequent is not as a matter of law, because of the condition, held in trust.)
. On appeal Appellants also urge application of the cy pres doctrine; however, because no trust exists, application of the cy pres doctrine is not appropriate. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284201/ | NICKELL, JUDGE,
CONCURRING.
I respectfully concur. Despite establishment of the City of Kuttawa in 1871 by Charles Anderson — a successful lawyer, impassioned speaker, and principled public servant — and the generous gift of land for public parks by his progressive heirs, few *512today know much about the founder, who purportedly was also an avid naturalist and early landscape architect. Thus, while concurring with the majority opinion in whole, I simply wish to place the present controversy6 in context by providing some interesting historical perspective.
According to the Ohio History Connection, a private Ohio historic preservation society chartered in 1885:
Anderson was born near Louisville, Kentucky, on June 1, 1814. His father, Colonel Richard Clough Anderson, had fought in the American Revolution, serving as aide-de-camp to the Marquis de Lafayette. After the war ended, Colo.nel Anderson became a surveyor for the Virginia Military District and was based in Louisville. It was here that Charles Anderson was born at the family’s home known as “Soldier’s Retreat.”
In 1829, Anderson came to Oxford, Ohio, to attend Miami University. He graduated in 1883 and returned to Louisville, where he began to study law in the office of Pirtle and Anderson. After gaining admittance to the bar in 1835, Anderson decided to move to Dayton, Ohio, to set up his own law practice. Within a short time, he met Eliza J. Brown, the daughter of a Dayton merchant. They were married in September 1835. In addition to his legal work, Anderson also was a farmer. He made a name for himself in the community and was elected to a term as Montgomery County’s prosecuting attorney.
Anderson first became involved in state politics in 1844, when he was elected to the Ohio Senate as a Whig. Anderson advocated granting African Americans civil rights and argued, unsuccessfully, that Ohio should repeal its “Black Laws” [views contrary even to several of his own siblings]. In addition, he was involved in the construction of the new statehouse. He only served one term, traveling to Europe for several months after his service was over.
In 1848, Anderson moved his family to Cincinnati so that he could form a law partnership with Rufus King. Although his Cincinnati law practice was successful, around 1855 or 1856 Anderson chose to move back to Dayton. Anderson suffered from poor health at this time. Hoping that a change of climate would improve his health, Anderson moved to a farm that he had purchased in Texas near San Antonio in 1859.
By 1860, reports about the possibility of southern secession and civil war were frequent. Anderson became unpopular in Texas because of his vocal support for the Union. After the American Civil War began [with Texas seceding from the Union and joining the Confederacy], Anderson feared for his family’s safety. As he was attempting to make his way to Mexico with his family, he was arrested. He was taken back to San Antonio and imprisoned. He soon managed to escape to Mexico and was eventually able to return to Dayton.
President Abraham Lincoln sent Anderson to England to seek support for the Union war effort through public speaking. Anderson felt that this role did not contribute enough to the war and soon returned home to the United States. The governor of Ohio gave him *513a commission as a colonel in the Ninety-Third Ohio Volunteer Infantry in 1862. Anderson was severely wounded at the Battle of Stones River. He resigned his commission, believing that he would eventually die from his wounds. Instead, he eventually recovered. Rather than returning to military service, Anderson chose to enter politics once again. In 1868, he ran for lieutenant governor on the Union Party ticket. He was successful and served as lieutenant governor under Unionist governor John Brough.
When Brough died in office on August 29, 1865, Anderson became Ohio’s twenty-seventh governor. Anderson’s time as governor was short. He only served from August 29, 1865, until January 8, 1866, when Brough’s term officially ended [declining to become a candidate for reelection]. Because the Civil War was over by this time, Anderson’s time as governor was relatively uneventful. Anderson chose not to run for political office after leaving his position as governor, returning instead to his law practice in Dayton. In 1870, he moved to Lyon County, Kentucky, in search of a quieter life. Charles Anderson died in Kuttawa, Kentucky, on September 2,1895.7
Anderson was a cousin of John Marshall, fourth Chief Justice of the U.S. Supreme Court, and had ten siblings — only six of whom survived to' adulthood. His best known sibling, a brother, Robert Anderson, was a U.S. Army Major — subsequently promoted to Brigadier General— commanding Union troops stationed at Fort Sumter in Charleston, South Carolina, when the Confederate military bombarded it on April 12, 1861, marking the beginning of the Civil War. Another brother, Richard C. Anderson, Jr., a lawyer, was a member of the Kentucky House of Representatives from 1814-15 and 1821-22, where he served as Speaker in 1822; represented Kentucky in the U.S. House of Representatives from 1817-21; and served as U.S. Minister to Gran Colombia from 1823-26, dying in office of yellow fever.
Having founded, designed, chartered, and developed the City of Kuttawa during the early to mid 1870s, Anderson was eighty-one years of age and a resident of the community when he died. His body is buried beside that of his wife of sixty years, Eliza Jane Anderson, in the peaceful and picturesque Kuttawa Cemetery beneath a large, interesting monument in the shape of a Victorian bed frame, complete with headboard, footboard, and two side boards. Regrettably, the monument is deteriorating and in desperate need of restoration — its engraving quickly fading along with Anderson’s memory.
. As stated in the Appellee’s brief, the present controversy initially arose due, in large part, to the widespread topographical impacts upon the area formerly known as the "Land Between the Rivers,” and the City in particular, owing to flooding that resulted from the 1966 impoundment of Lake Barkley by the Tennessee Valley Authority when the U.S. Army Corps of Engineers completed Barkley Dam on the Cumberland River near Grand Rivers, Kentucky (formerly known as "The Narrows” and "Nickell Station”).
. Some sources indicate Anderson may have actually died while at Paducah, Kentucky, some thirty-five miles distance from the City, though his body was subsequently interred at the Kuttawa Cemetery. See Johnson, Rossi-ter and Brown, John Howard, eds., Twentieth Century Biographical Dictionary of Notable Americans, Vol. I, Boston, MA, USA: The Biographical Society, 1904; and Conover, Charlotte Reeve, Concerning the Forefathers, New York, NY; The Winthrop Press, 1902. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284202/ | ORDER
Per Curiam:
C.M.M., a juvenile, appeals from the circuit court’s judgment sustaining the juve*561nile officer’s petition, finding that he committed acts that would have constituted unlawful use of a weapon if committed by an adult. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284203/ | ORDER
PER CURIAM
James Boyd appeals from the motion court’s judgment denying his Rule 29.15 motion. We have reviewed the briefs of the parties and the record on appeal, and we conclude the motion court’s denial of post-conviction relief was not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum-setting forth the reasons for our decision to the parties, for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b) (2014). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284204/ | ORDER
PER CURIAM.
Boyce Blanchard appeals the judgment denying his Rule 29.15 motion for postcon-viction relief without an evidentiary hearing. We find that the motion court’s findings of fact and conclusions of law are not clearly erroneous.
No jurisprudential purpose would be served by a written opinion. We have, however, provided the parties a memoran*570dum setting forth the reasons for our decision. The judgment of the motion court is affirmed under Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284205/ | ORDER
PER CURIAM
Richard L. Bobbitt appeals the motion court’s judgment denying, without an evi-dentiary hearing, his Rule 29.15 motion for post-conviction relief.
We have reviewed the briefs and the record on appeal. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.
We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125614/ | New trial ordered, costs to abide event. Opinion by
Talcott, P. J.;
Smith, J., not participating in the decision. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125615/ | Judgment affirmed, witli costs to be paid by the appellants. | 01-04-2023 | 02-04-2022 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.