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https://www.courtlistener.com/api/rest/v3/opinions/5284311/ | OPINION
LAMBERT, J., JUDGE:
This case is again before this Court upon remand from the Supreme Court of Kentucky for further consideration in light of its decision in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky.2014). Initially this Court vacated and remanded the case for further consideration by the trial court of the applicability of Kentucky. Revised Statutes (KRS) 439.3106. However, the Supreme Court granted discretionary review and in the meantime rendered Andrews, supra. After reviewing Andreivs, we again vacate and remand for the trial court’s consideration under KRS 439.3106.
In December 2009, Brann was indicted by a Graves County Grand Jury for theft by unlawful taking over $500.00. The charge stemmed from Brann stealing deposits from a Burger King restaurant in Mayfield, Kentucky,.totaling approximately $7,500.00. In February 2010, Brann pleaded guilty in reliance on an offer of pretrial diversion from the Commonwealth. The trial court approved the plea agreement and' placed Brann on pretrial diversion conditioned on him making monthly restitution payments.
Within several months, the Commonwealth moved to revoke Brann’s diversion for failure to make his required restitution payments. The trial court did not initially revoke Brann’s diversion, but ultimately it did revoke it in November 2011, based on Brann’s continued failure to make restitution payments. The trial court sentenced Brann to five years’ imprisonment.
In July 2012, the trial court entered an order granting Brann’s motion for shock probation and placed Brann on supervised probation for a period of five years. The trial court also imposed a number of conditions, which included, among others, that Brann make restitution payments, that he “be evaluated for alcohol and substance abuse and ... comply with any treatment or aftercare as recommended;” and that he “comply with ... other terms and conditions as required by Probation and Parole.”
Shortly after Brann’s release, a violation of supervision report was submitted, which alleged that he had violated the conditions of his probation. Specifically, that report indicated that Brann had failed to attend substance abuse treatment sessions, failed to report to his probation officer, and falsified a releasee’s report. The recommended sanction was revocation of probation.
On July 30, 2012, a revocation hearing was held at which Probation Officer Bradley Fooshee and Brann testified. Officer Fooshee testified that Brann’s supervision began on June 13, 2012, and that he had reported to the probation office on several occasions. However, consistently with the supervision report, Officer Fooshee testified that Brann had violated the conditions of probation by missing a meeting with a social services clinician after having been told to report the previous day; by missing a report date with him; and by falsifying a releasee report by providing a nonworking phone number. Officer Fooshee also testified that Brann had failed to pay any restitution.
In response, Brann testified that the meeting with the social services clinician “must have slipped [his] mind.” He further stated that he missed the meeting with Officer Fooshee because he got his dates mixed up. Brann testified that he was not trying to avoid supervision .and that he had initially reported to the probation office several times when Officer Fooshee was not there. Finally, he testi-*431fled that the phone number he listed on the releasee report was a valid number and produced phone records in support of his claim.
Following the testimony, Brann’s counsel argued that the Commonwealth had failed to establish that Brann could not be safely supervised in the community. The Commonwealth responded that revocation was appropriate, indicating that there had been a number of violations in a short period of time. At the conclusion of the hearing, the trial court revoked Brann’s probation and imposed a five-year sentence. In making its decision, the court noted that it had considered Brann’s past history and the fact that the violations had occurred so soon after Brann’s release and concluded that there was little chance for success in the future. A revocation order was subsequently entered in which the court found that Brann had violated the conditions of probation as follows: 1) failure to attend treatment for substance abuse; 2) falsifying a police report; and 3) failure to report to probation officer. This appeal now follows.
On appeal, Brann argues that the trial court abused its discretion in revoking his probation in light of recently enacted Kentucky Revised Statutes (KRS) 439.3106 and that the trial court’s findings were insufficient and amounted to a violation of his constitutional due process rights.
A trial court’s authority to grant and revoke probation is set forth in KRS Chapter 533. Under that chapter, a trial court may place a defendant on probation and impose certain terms and conditions. See KRS 533.020; KRS 533.030. If the defendant commits an additional offense or violates a condition of probation, the court may “revoke the sentence at any time prior to the expiration or termination of the period of probation.” KRS 533.020(1).
Kentucky case law has long recognized that probation revocation hearings rest within the trial court’s discretionary powers “both in respect to initiation of a hearing and the disposition thereof.” Ridley v. Commomvealth, 287 S.W.2d 156, 158 (Ky.1956). As such, an appellate court reviews a trial court’s decision to revoke probation for an abuse of discretion. Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky.App.2008). A trial court abuses its discretion if its decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). Furthermore, a trial court’s decision to revoke probation is generally “not an abuse of discretion if there is evidence to support at least one probation violation.” Lucas, 258 S.W.3d at 807-08 (internal citation omitted).
Brann first argues that the trial court’s revocation was improper under KRS 439.3016. Brann does not dispute that he violated the conditions of his probation, but claims the violations were an insufficient basis to revoke under the statute. The Commonwealth argues, however, that the revocation was a proper exercise of the trial court’s discretion and that KRS 439.3106 does not limit a court’s authority to revoke probation, and even if it does, Brann’s revocation conformed to the KRS 439.3106 standard.
KRS 439.3106 was enacted as part of the 2011 Corrections Reform Bill HB 463 and went into effect on June 8, 2011. The statute provides as follows:
Supervised individuals shall be subject to:
(1) Violation revocation proceedings and possible incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant risk to prior victims of the supervised individual or the community at *432large, and cannot be appropriately managed in the community; or
(2) Sanctions other than revocation and incarceration as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.
In Andrews, supra, just as here, the Commonwealth argued that KRS 439.3106 is not directed to trial courts and should not be viewed as limiting a court’s authority to revoke probation. However, the Court specifically rejected this contention, reasoning:
Without question, the power to revoke probation is vested in the trial courts and in the trial courts alone. KRS 533.010 et seq. Historically, our statutes have reflected the trial court’s broad discretion in overseeing a defendant’s probation, including any decision to revoke: “... [conditions of probation shall be.imposed as provided in KRS 533.030, but the court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of probation.” KRS 533.020(1). Whether KRS 439.3106 sets forth new criteria that trial courts must consider when determining the propriety of probation revocation is in essence a matter of statutory construction. As often noted, construing statutes requires us “to give effect to the intent of the General Assembly. We derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood'in the context of the matter under consideration.” Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky.2011).
Turning to KRS 439.3106, it is apparent that, although somewhat awkwardly worded, the statute sets forth the potential consequences following a probation violátion. If a supervised individual violates the terms of probation, there are two possible outcomes: revocation and possible incarceration, KRS 439.3106(1), or the imposition of sanctions “other than revocation,” KRS 439.3Í06(2). More specifically, KRS 439.3106(i) requires as conditions precedent to revocation that the probationer’s failure to comply with the terms of probation constitutes “a significant risk to [his] prior victims ... or the community at large,” and that the probationer “cannot be appropriately managed in the community.” There is no qualification in the language that marks these conditions as intended only for consideration by the DOC’s probation and parole officers. Indeed, the plain language of the statute lends itself to only one conclusion — both the trial court and the Department of Corrections’ officers must assess a probationer’s conduct in light of KRS 439.3106 and proceed in accordance with the statute. This interpretation of KRS 439.3106(1) as requiring trial courts in revocation proceedings to consider specifically the risks to others, appropriate management of the probationer in the community, and the feasibility of lesser sanctions is underscored by other provisions of the chapter, as well as the associated administrative regulations, specifically those concerning the imposition of sanctions other than revocation and incarceration. When setting the conditions of supervision, a sentencing court may require the DOC to impose accountability measures known as graduated sanctionsTor violations of the conditions of supervision: *433For supervised individuals on probation, the court having jurisdiction of the case shall determine the conditions of community supervision and may impose as a condition of community supervision that the department supervising the individual shall, in accordance with KRS 439.3108, impose graduated sanctions adopted by the department for violations of the conditions of community supervision.
Id. at 777-78.
In the instant case, the trial court did not articulate that it had considered KRS 439.3106 in its order revoking Brann’s probation. Thus, we vacate the Graves Circuit Court’s order revoking Brann’s probation and remand for consideration under KRS 439.3106 in light of the Supreme Court of Kentucky’s opinion in Andrews.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284314/ | ORDER
Per curiam:
Duane Beard appeals from the motion court’s denial of his Rule 29.15 motion which claimed structural error at trial depriving him of a fair and impartial jury; ineffective assistance of trial and appellate counsel in failing to challenge a venireper-son or to claim plain error on appeal because the venireperson was selected for the jury; and ineffective assistance of trial counsel in failing to inform Beard of a plea offer. Finding no error, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284315/ | Order
Per Curiam:
Tamara L. Sandifer appeals the judgment of the Circuit Court of Jackson County, Missouri, finding her guilty, following a bench trial, of driving while intoxicated, § 577.010,' RSMo (2000). Because a published opinion would serve no jurisprudential purpose, we have instead provided an unpublished memorandum of law to the parties. The judgment is affirmed. Rule 30.25(b).
2 | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284316/ | ORDER
Per curiam:
Appellant Ricky Arnold (“Arnold”) was convicted by a jury of attempted enticement of a child in violation of Section 566.151. On appeal, he challenges the sufficiency of the evidence supporting his conviction. Finding no error, we affirm. Rule 30.25(b). A memorandum explaining *491our decision has been provided to the parties. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125629/ | Judgment of County Court reversed,, and that of the justice affirmed. Opinion by
Hardin, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284317/ | ORDER
PER CURIAM
Alexander Lemle (“Movant”) appeals the motion court’s judgment denying his motion for post-conviction relief under Rule 29.151 without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal, and we find the motion court did not clearly err in denying Movant’s motion without an evi-dentiary hearing. An extended opinion would have no jurisprudential purpose. We have, however, provided a memorandum setting forth the reasons for our deci*502sion to the parties for their use only. We affirm the judgment pursuant to Mo. R. Civ. P. 84.16(b) (2015).
. All rale references are to Missouri Supreme Court Rules (2015) unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125647/ | Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by
Smith, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125648/ | Motion for re-argument denied, with ten dollars costs. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285292/ | OPINION
CLAYTON, JUDGE:
White/Reach Brannon Rd., LLC (“White/Reach") and K. Stephen Reach (collectively, the “Appellants”) appeal both the October 8, 2013 Jessamine Circuit Court order that granted partial summary judgment to Rite Aid of Kentucky, Inc. *633(“Rite Aid”), a third-party defendant and now Appellee, and also the October 28, 2013 supplemental judgment granting attorneys’ fees, expenses, and court costs of $102,200.36 to Rite Aid. After careful consideration of the record and the legal arguments, we affirm.
BACKGROUND
This cáse began as a foreclosure action by Town and Country Bank and Trust against White/Reach and Reach for nonpayment of three loans, personally guaranteed by Reach, that concerned the development of an 8.5-acre tract. On May 21, 2012, White/Reach and Reach filed a third-party complaint in the foreclosure action wherein the Appellants alleged breaches by Rite Aid of the Lease Agreement, dated December 18, 2007, the Amendment to Lease, dated March 16, 2009, and a Purchase Agreement, dated February 25, 2010.
Under the Lease Agreement and the Amended Lease, White/Reach, as landlord, and Rite Aid, as tenant, agreed that White/Reach would lease to Rite Aid a building to be constructed by White/Reach on land it owned in Jessamine County, Kentucky. The property was commonly referred to as 3090 Brannon Road (“Bran-non Road property”). White/Reach had purchased the property to construct the building for Rite Aid with the- express understanding that it was to be leased by them. The property comprised a 2.37-acre lot on the 8.5-acre development. •
The agreements between White/Reach and Rite Aid were part of a long-term business relationship. ■ White/Reach had constructed fifty-four Rite- Aid pharmacies since 2005, and over one hundred Rite Aid pharmacies overall throughout the Midwest and Southeast. ■ Typically, the pharmacies were built on property purchased by White/Reach and leased to Rite Aid under long-term leases similar to the Lease Agreement and Amended Lease in this matter. 1
According to White/Reach, it'purchased the Brannon Road property after negotiations with Rite Aid wherein Rite Aid represented that it intended to enter into a lease agreement and then later buy out the lease arrangement. -Rite Aid'asserted that during the economic crash in late 2008, the parties mutually agreed to delay the construction start date. Accordingly, the original Lease was amended. Pursuant to the Amendment to the Lease, White/Reach was to have begun construction of the building for the Rite Aid by August 28, 2010, and to deliver the completed building by the “outside delivery, date” of February 28, 2011.. Hence, the amendment gave White/Reach the discretion to build and deliver the store to Rite Aid any time after December 1, 2009, but no later than August 28, 2010, with final delivery of a completed building not later than February 28, 2011. The Lease was so amended on March 16, 2009.
No notice of default, as required under the Lease, was ever given by White/Reach to Rite Aid, even though White/Reach lost its construction financing from a syndicate of banks led by Town and Country Bank. Reach testified that the banks quit funding his project in early 2010 and that this kept Whites/Reach from being able to complete the building in accordance with the Lease, as amended.- At this point,.White/Reach claimed to have no funds to construct the building. Hence, Rite Aid proffers that the parties substituted a real estate Purchase Agreement dated February 25, 2010, -vyhich constituted a novation of the original agreements.
In the Purchase Agreement, Rite Aid unequivocally agreed to purchase the Brannon Road property, which relieved White/Reach of its contractual obligation *634to build anything on the property. When the parties entered into the Purchase Agreement, Rite Aid immediately put $2.46- million .in escrow for thirteen months. White/Reach agreed to sell (not lease) the vacant Lot without a budding to Rite Aid for $2.46 million, which was more than the fair market value. During this time, the deadline for closing the Purchase Agreement was extended by agreement of the parties several times.
Nonetheless, White/Reach never gave notice it was ready to close or tendered a deed to Rite Aid. On February 25, 2011, Rite Aid informed White/Reach that if the sale did not close immediately, the escrow account would be dissolved. The sale did not happen, and it dissolved the escrow account in mid-March 2011. Moreover, Rite Aid points out that even if the Lease or the Amendment had not been replaced by the Purchase Agreement, the “outside delivery date” of February 28, 2011, found in the amended Lease, passed without any construction. In fact, no building was ever constructed.
Then, in April or May 2011, after Rite Aid had terminated the Purchase Agreement and after all the construction- deadlines had passed, White/Reach notified Rite Aid that it wanted to build the Rité Aid store under the abandoned Lease. Surprised by White/Reach’s attempt to reinstate the Lease Agreement, Rite Aid delivered formal notice of default of the Lease on May 13, 2011, as authorized by Section 8(g), (i), and (j) of the Lease, as amended, for failure to meet the construction' deadlines. White/Reach had sixty days to correct the defaults but during the sixty-day period, it did not begin construction on the Rite Aid store. On July 12, 2011, Rite Aid wrote White/Reach and declared the Lease to be finally terminated without any possible cure.
Returning to White/Reach’s third-party complaint, when White/Reach filed the complaint, it maintained that despite the Lease Agreement and Amended Lease, Rite Aid prevented White/Reach from the construction of the pharmacy on the Bran-non Road property, and this delay caused significant damages to White/Reach. According to White/Reach, because Rite Aid did not approve the construction of the pharmacy the initial plans commissioned by White/Reach expired and caused their damages. Therefore, White/Reach averred in the Complaint that Rite Aid was responsible for delay of damages under the original Lease, breached the build-to-suit lease, breached the real estate contract, and breached the implied duty of good faith and fair dealing. Further, it requested indemnity and contribution as to White/Reach and Reach.
Concerning delay damages, Rite Aid responded that it had no obligations under the Lease until the store was actually built and. no control over the start of construction. Rite Aid pointed out that in the Amendments to the Lease, both parties agreed to extend the construction deadlines for White/Reach and to increase the amount of rent paid by Rite Aid once White/Reach completed the store. Also, Reach testified repeatedly that the banks ceased funding .the project in early 2010. Finally, when it entered into the Purchase Agreement, it agreed to purchase the Lot to relieve White/Reach from the duty and expense of constructing the building.
Hence, White/Reach has no basis for claiming delay damages since the alleged delays were agreed to in the Lease Amendments and Purchase Agreement. Rite Aid also countered the allegations in the Complaint by noting that no notice of breach or default was ever given by White/ Reach. Therefore, Rite Aid adamantly claims there is no basis for the Appellants’ *635delay of damages claim or breach of the lease claim since it fully complied with all the duties and obligations under the Lease and Purchase Agreement.
Moreover, Rite Aid argued that since White/Reach never constructed the building, Rite Aid had- no contractual duty to pay rent. And, significantly, Rite Aid posited that White/Reach committed the first and only breach of the Lease by not constructing the building-. • This breach relieved Rite Aid from all further performance. Rite Aid-also observed that during the time White/Reach was obligated in good faith to seek a release of the Town and Country Bank’s mortgage on the property, it never .advised the Bank of the existence of the parties’ binding real estate purchase agreement with -its escrow account.
On June 7, 2013, Rite Aid filed a motion for summary judgment including a request for attorneys’ fees. It asserted that the' Lease Agreement and Amended Lease had been replaced by the later-executed Purchase Agreement. White/Reach countered that the Purchase Agreement was an exec-utory accord, and therefore, did not act as a novation of the original lease.
On October 8, 2013, the trial .court granted partial summary judgment and dismissed the complaint against Rite Aid in its entirety. The trial court’s dismissal of the third-party complaint was supported by the contracts themselves, admission of Stephen Reach, and other undisputed evidence. The order was made final and appealable by its terms.
Next, on October 28, 2013, the trial court entered a supplemental judgment awarding Rite Aid its attorneys’ fees. This judgment was also final and appeal-able. White/Reach appealed the decisions. The appeal was held in abeyance during the pendency of White/Reach’s Chapter 11 bankruptcy proceedings. The dispute with the Bank was resolved, but White/Reach and Rite Aid were unable to settle their differences. during the bankruptcy proceedings. Consequently, the matter was returned to the Court of Appeals’ active docket.
STANDARD .OF REVIEW
The standard of review on appeal of a summary judgment is whether the trial judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law. Pearson ex rel. Trent v. National Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky.- 2002). Further, summary judgment is only proper when “it would be-impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). In ruling on a motion for summary judgment, the Court is re quired to construe the record in a light most favorable to the party opposing the motion. Id. And a party opposing a summary judgment motion “cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but ‘must present affirmative; evidence in order to defeat a properly supported motion for summary judgment.’ ” Id. at 481. ,
• •Further, the proper interpretation of insurance -contracts is a matter of law to be decided by a court; and, thus, an appellate court uses a d'e ’novo, not a deferential, standard of review. Hugenberg v. West American Ins. Co./Ohio Cas. Group, 249 S.W.3d 174, 185 (Ky.App.2006): Similarly, when an appellate court reviews a trial court’s decision to grant-summary judgment as in this case,- the appellate court must determine whether the trial court correctly found that there were no genuine issues of material fact. Kentucky Rules of Civil Procedure .(CR) 56.03. Since “sum*636mary judgment involves only legal questions and the existence of ahy 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 Corporation, 56 S.W.3d 432, 436 (Ky.App.2001).
With these standards in mind, we turn to the issues in the case.
ANALYSIS
Numerous arguments are proffered by the. parties on appeal. ■ The Appellants argue that the trial court committed reversible error in granting the partial summary judgment. It contends that the Purchase Agreement was not a novation of the Lease but an executory agreement existing. alongside the Lease. In making the argument, the Appellants state that regarding the Purchase Agreement, Rite Aid failed to demonstrate express or implied intent for the novation; failed to demonstrate that the documents cover the;same matter and scope; and, failed to show that the express terms of the contract cannot exist together.
In addition, the Appellants 'assert that White/Reach could have constructed the building; that Rite Aid did not establish that White/Reach -acted improperly by not advising the Bank of the escrow account; that no promissory estoppel existed; and finally, that issues of material fact existed as to indemnity and contribution ■ claipis. Finally, White/Reach and Reach insist that the, trial court .committed reversible 'error by awarding Rite Aid attorneys’ fees and costs in the supplemental judgment.
Rite Aid defends these assertions by attesting ■ that the Purchase ■ Agreement was a novation and substituted contract for the Lease and Amended Lease; that Rite Aid- properly terminated the Purchase Agreement and escrow deposit after White/Reach failed to deliver clear title to the Brannon Road Property; that Rite Aid properly terminated the Lease' even if there was not a novation or substituted contract; that White/Reach is estopped from denying the Purchase Agreement superseded the terms of the Lease; that White/Reach’s lack of financing prevented it from building the facility; that White/ Reach’s unclean hands and breach of implied duties of. good faith and unfair dealing barred its' recovery; that White/ Reach’s consent is a complete bar to claims of construction delays and breach of the implied covenant of good faith and fair dealing; ■ that White/Reach is not entitled to recover against Rite Aid on theories of indemnity and contribution; and finally, that the economic loss rule limits White/ Reach’s recovery of contractual remedies.
Novation
Rite Aid argues that the Purchase Agreement signed on Fébruary 25, 2010, was a novation and substituted contract, replacing the Lease Agreement under Kentucky contract law. When the Purchase Agreement was signed, all obligations under the prior Lease were replaced by the parties’ obligations under the Purchase Agreement. White/Reach answers that the Purchase Agreement was an executory accord., and therefore, not a novation of the original lease agreement.
As explained in Combs, a novation is the entering into a new contract which takes the place of the- original one and in which it is merged and extinguished. If the new contract in express terms rescinds the old- one, no question can be asked; yet the same result follows, as a necessary implication, and takes place by operation -of law, without any' express agreement to that effect, whenever the new contract is manifestly in place of or inconsistent with a former- one, or which renders a former contract- impossible of *637performance. Combs v. Morgan, 307 Ky. 711, 717, 211 S.W.2d 821, 825 (1948) (citation omitted). Further, a contract- novation relieves parties of The obligations under the contract and results in a new agreement. Wells Fargo Financial-Kentucky, Inc. v. Thomer, 315 S.W.3d 335, 339 (Ky.App.2010).
Wheréas an accord is “a method of discharging a claim whereby the parties agree 'to give and accept something other than that which1 is due in settlement‘Of the claim and to perform the agreement.” Bruestle v. S & M Motors, Inc., 914 S.W.2d 353, 354 n. 1 (Ky.App.1996) (cita tions omitted). If the subsequent contract is an executory accord (or an accord without satisfaction) then a breach of that contract will allow the non-breaching party to sue either on the accord or on the origihal obligation:’ Brown v. Noland Company, Inc., 403 S.W.2d 33, 35 (Ky.App.1966). Thus, under the Appellants’ reasoning, the Purchase Agreement was an executory accord, that -is, to be performed if the Lease as amended was not discharged.
Negating the Appellants’' suggestion that the Purchase Agreement was an exec-utory accord is language in Paragraph 18 of the Purchase Agreement that-specifically states: .
This Agreement’ and all of the exhibits attached hereto and incorporated herein by this reference supersede all previous agreements or discussions between the parties concerning the sale of the Property, constitutes an integrated and complete state of the Agreement, and may only be amended by a written amendment executed by both parties.
When the Purchase Agreement was signed, Rite Aid put $2.46 million in escrow, and it remained there for thirteen ■months. The written agreement, acknowledged by both parties and the actions by Rite Aid, demonstrate that the-Lease and Amended Lease were superseded or modified by novation or subsequent contract wherein the obligations under the prior -Lease- Were discharged- and the new obligations were substituted.
The Appellants argue that they would not have entered into the Purchase Agreement had Rite Aid not insisted. Further, White/Reach alleges that actions by Rite Aid prevented them from performing under the Lease, and because Rite Aid prevented White/Reach from reaching the terms of the Lease,, it proposed a Purchase Agreement. However, other than self-serving statements by Reach, .no evidence was provided that Rite Aid prevented the construction of the facility. Keeping in mind Steelvest’s instruction that a party opposing a summary judgment motion “cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but ‘must present affirmative evidence in order to defeat a properly supported motion for summary judgment,’ ” the testimony by Reach is insufficient to establish this fact. Steelvest, 807 S.W.2d at 481.
Indeed, the impediment to the construction of the building appears to be White/ Reach’s lack of financing for the project. Moreover, Rite Aid, under the Lease and the Amended Lease, had no contractual obligations to White/Reach until the building was constructed.
•White/Reach’s claim is also belied by their actions — entering into the Purchase Agreement. As noted in' the aforementioned language in Paragraph 18 of the Purchase Agreement, when it was signed, all obligations under the prior Lease were replaced by the parties’ new obligations under the Purchase Agreement. The language unambiguously references the new obligation of both parties. Therefore, contrary to the- Appellants’ assertions that *638intent did not- exist, the language itself established mutual intent to establish a novation.
•Regarding whether the parties intended to enter into a new contract with the signing of the Purchase Agreement, the best evidence of what parties to a contract intended is what they do or stop doing after the contract is signed. First, White/Reach was unable to perform its material obligations under the Lease because it lacked construction financing to build the new store. Second, White/Reach made no effort to construct the building during the thirteen months after Rite Aid placed $2.46 million in escrow. Rite Aid, on the other hand, fulfilled its contractual duties under the Purchase Agreement when it deposited the full purchase amount into escrow. These facts demonstrate that White/Reach believed it was no longer obligated to build the store and that Rite Aid was willing to purchase the land without a building. Therefore, the proposition that the Purchase Agreement was a novation to the Lease is supported by the parties’ actions.
A Court ascertains when parties enter into a new written contract, which addresses the same subject matter, and the terms ai-e clear and unambiguous, as a question of law. 58 Am.Jur,2d Novation § 22 (2016). Further, under Kentucky law, a written contract complete in itself will be conclusively presumed to supersede a prior one related to the same subject matter. Menefee v. Rankins, 158 Ky. 78, 164 S.W. 365, 367 (1914). Here, the Pur chase Agreement, concerning the same property as the Lease, mandated that Rite Aid purchase the property without any building. Consequently, the new agreement concerns the same property but is completely inconsistent with leasing, and no building is on the property. Therefore, the Purchase Agreement supersedes the Lease, as amended. Moreover, the intent of the parties to enter into a novation may be inferred, when the new contract renders the former contract impossible to perform. Combs, 211 S.W.2d at 825.
■White/Reach suggests that Rite Aid reneged on its Purchase Agreement when it removed the money from escrow on March 15, 2011, more than a year after it originally funded the escrow., But White/Reach failed to perform its obligation under the Purchase Agreement since it never delivered clear title by Warranty Deed to. Rite Aid as required under the Purchase Agreement. Thus, the sale for $2.46 million never occurred. And Rite Aid gave White/Reach ample time to meet its contractual obligation. The record .indicates that Rite Aid granted an amendment, to the escrow • on May 12, 2010, to allow White/Reach until June 18, 2010, to obtain a mortgage release from Town & Country Bank, r
Meanwhile, Rite'Aid was unaware.that the Bank had agreed to reléase the mortgage to White/Reach for $2.2 to $2.3'mil-lion in early .2010. In fact, during the thirteen months that the funds were in escrow, White/Reach never informed the Bank of the amount of the offer nor the amount in escrow. The Bank only learned about the amount of Rite Aid’s offer in June 2011, well after the June 2010 closing date in the Purchase Agreement. Significantly, the Appellants do not argue the Bank knew it before then. .
White/Reach cannot have it both ways. It cannot argue that Rite Aid breached the Purchase Agreement because the Bank would have accepted it om June 16, 2011, when it failed to inform the- Bank the amount of:the,escrow during the thirteen months it existed. By the time the Appellants -.informed the Bank, Rite Aid had terminated the Lease,-, the Purchase Agreement and the -escrow account. In*639deed, it was almost sixteen months after the parties entered into the Purchase Agreement on February 25, 2010.
Sometime in April or May 2011, after Rite Aid terminated the Purchase Agreement and after all construction deadlines under the. Lease Agreement had passed, White/Reach notified Rite Aid that it wanted to build the store under the abandoned Lease. Rite Aid was surprised and responded by delivering formal notice of default of the Lease on May 13, 2011, as required under Sections 8(g), (i), and (j) .of the Lease, as amended, for failure to meet the original construction deadlines. Under the Lease, as amended, White/Reach had sixty days to cure its default. White/ Reach never began construction during the sixty-day. cure period, and indeed, has never constructed a building on the site.
Therefore, even if the Purchase Agreement was not a novation, the Appellants breached the Lease Agreement and its Amendments! According to Section 8(j) of the Lease, as amended, White/Reach was required' to begin construction of the building by the start date of August 28, 2010,- and deliver the completed building to Rite Aid by the “outside delivery date” of February 28, 2011. White/Reach never started nor completed the construction of the building. Thus, under the Lease, as amended, Section 3(a), Rite Aid never became liable to pay rent.
In sum, White/Reach and Reach never established that Rite .Aid breached- any specific provision of any written contract. Moreover,. Rite Aid did establish that White Reach failed to give notice of nonperformance as required under Section 25(a) of the Lease; ,White/Reach did not timely inform the Bank of Rite Aid’s offer or its amount to purchase the Lot; .and, White/Reach never constructed a building on the Lot before or after the final opportunity to cure. These factors are fatal to the Appellants’ third-party complaint, and the.trial court properly dismissed it. .
Promissory Estoppel
' White/Reach maintains that the Purchase Agreement was an executory accord, and consequently, it was entitled to seek récovery under the Lease. Thus, the trial court’s acceptance that based on promissory estoppel, White/Reach was es-topped from denying the Purchase Agreement superseded the Lease was in error. We disagree.
Promissory estoppel requires “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a 'third person and which does induce such action or forbearance , [and it] is binding if injustice can be avoided only by enforcement of the promise.”' Sawyer v. Mills, 295 S.W.3d 79, 89 (Ky.2009).
When the parties entered into the Purchase Agreement, Rite Aid reasonably expected that by paying $2.46 million into escrow, it would no longer be obligated to pay rent under the rescinded Lease, particularly since no building had been constructed. Rite Aid suffered detrimental reliance through the loss of the use. of the escrow funds for more than a year. White/Reách cannot claim damages under the Lease for a building that was never constructed, particularly for an injury that was self-created. It never informed the Bank that it had agreed in early 2010 to release the Lot for $2.2 to $2.3 million.
Indemnity or Contribution-
White/Reach has used the terms “indemnity” and “contribution” without providing any basis in law or fact to support a viable claim against Rite Aid under either theory. These issues are properly dismissed under the partial summary judgment. In addition, White/Reach has no basis for seeking tort damages to supple*640ment the various written agreements with Rite Aid. The economic loss rule in' Kentucky limits any recovery by White/Reach solely to contractual remedies that the parties negotiated and bargained for in their express written agreements. .Oiddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 729, 733 (Ky.2011). Nonetheless, since Rite Aid never breached any contract with .White/Reach, it owes no damages. , . ...
Attorneys’ Fees
The Appellants contend that the trial court erred in granting attorneys’ fees and costs to Rite Aid in the supplemental judgment. They based this claim on the premise that the partial summary judgment was in error. We have upheld the .summary judgment, and thus, the award of attorneys’ fees and costs is proper under the contractual agreement between the' parties. See Section 21 of the Purchase Agreement.' ‘
CONCLUSION
Our review of the record, which includes Stephen Reách’s testimony, the express terms of the parties’ written agreements, and consideration of the requirements Of the Statute of Frauds,1 demonstrate that the grant of partial summary judgment and the supplemental judgment for attorneys’ fees and costs was proper, and heneé, we affirm the decisions of the Jessamine Circuit Court.
ALL CONCUR. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284318/ | ORDER
PER CURIAM
Guyton Thomas (“Movant”) appeals from the denial of his Rule 29.15 post-conviction relief motion without an eviden-tiary hearing. After a jury trial, Movant was found guilty of one count of unlawful use of a weapon, in violation of Section 571.030, RSMo (2000).1 Movant was sentenced as a prior and persistent offender to seven years 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).
. Movant was also found not guilty of first-degree murder and armed criminal action. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284319/ | *503ORDER
PER CURIAM.
Clinton T. Reynolds (“Defendant”) appeals after his conviction by a jury of three counts of first-degree statutory sodomy, Section 566.062, RSMo. Defendant argues the trial court abused its discretion when it prohibited Defendant’s counsel from eliciting from Detective Richard Black that after Agent Beeler’s interrogation, Detective Black sought to obtain a written statement from Defendant, but Defendant declined because he felt like he was being treated like a terrorist.
We have reviewed the briefs of the parties and the record on appeal and find the trial court did not abuse its discretion. An opinion reciting the detailed facts and restating the principles of law would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284320/ | ORDER
PER CURIAM
Joseph Hicks (Defendant) appeals his convictions for two counts of first-degree child molestation. In two points on appeal, Defendant claims that the trial court erred by (1) admitting Victim’s out-of-court statements pursuant to § 491.075 RSMo Cum. Supp. 2008 and (2) admitting Defendant’s inculpatory statement made to police. We affirm.
We have reviewed the briefs of the parties and the record on appeal and have determined that an extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2426454/ | 555 S.W.2d 563 (1977)
Jimmy MILLER, agent for Midland Ins. Co., Appellant,
v.
STATE of Arkansas, Appellee.
No. 77-62.
Supreme Court of Arkansas, In Banc.
September 26, 1977.
McArthur & Johnson, Little Rock, for appellant.
Bill Clinton, Atty. Gen., by Jackson M. Jones, Asst. Atty. Gen., Little Rock, for appellee.
*564 HOLT, Justice.
Appellant entered into an appearance bond agreement for Willie Earl Knighten's appearance in municipal court where he was a defendant on a felony charge. He appeared there and after a hearing was certified to the circuit court where an information was filed on the charge. A new bond was not made. There the defendant failed to appear on plea and arraignment date, although notified and ordered to do so. The circuit court then ordered appellant, as surety, to show cause why the bond should not be forfeited. Subsequently, appellant was ordered to pay the bond based upon the court's interpretation of Rules of Crim.Proc, Rule 9.2(e) (1976), which requires that an appearance bond "shall serve to guarantee all subsequent appearances of a defendant on the same charge . . . before any court, including appearances relating to appeals and upon remand." From that order appellant brings this appeal.
Ark.Stat.Ann. § 22-242 (Supp. 1975) (Act 470 of 1971) provides that the Supreme Court "shall have the power to prescribe . . . rules of . . . procedure with respect to any or all proceedings in criminal cases ... in all the inferior courts of law in this state." Rule 9.2(e) was adopted pursuant to this statute. Appellant asserts that § 22-242 is an unconstitutional delegation of legislative rule making power in violation of the doctrine of separation of powers as enumerated in Art. 4, §§ 1 and 2, Ark. Const. (1874) and, further, was enacted outside the authority of the enabling act. Historically, appellant says, bail bond procedures have been a legislative function. In Sibbach v. Wilson, 312 U.S. 1, 61 S. Ct. 422, 85 L. Ed. 479 (1924), the court held that the legislature's power to regulate practice and procedure may be exercised by granting courts the authority to establish rules not inconsistent with other statutes or the United States Constitution. Therefore, here the legislature's delegation of power, if necessary, to prescribe rules of criminal procedure was not unconstitutional nor outside the enabling act, provided the rule in question is truly procedural which appellant claims it is not. Appellant insists the rule relates to substantive law. In Roberts v. Love, 231 Ark. 886, 333 S.W.2d 897 (1960), we said:
... [A]s relating to criminal law, substantive law is defined as `that which declares what acts are crimes and prescribes punishment therefor.' Procedural law is `that which provides or regulates the steps by which one who violates a criminal statute is punished.' Substantive law . `creates, defines, and regulates rights, as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion.'
As was stated in Sibbach, supra, "[t]he test must be whether a rule really regulates procedure,the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them." The bail provisions of Rule 9.2(e) merely provide the process or procedure by which a defendant, as here, may obtain pre-trial release on a charge arising out of his alleged violation of substantive law.
Further, In re Ark. Criminal Code Revision Com'n, ex parte, 259 Ark. 863, 530 S.W.2d 672 (1975), in approving the Rules of Crim.Proc, including 9.2(e), we said that the rules were adopted "[p]ursuant to Act 470 of 1971 and in harmony with the Court's constitutional superintending control over all trial courts . ." Consequently, we implicitly rejected the argument advanced here that we had no inherent rule making authority absent an enabling statute. The enabling act here merely recognizes and is harmonious with this court's inherent powers rather than conferring an express power. See also State v. Gibson Circuit Court, 239 Ind. 394, 157 N.E.2d 475 (1959); State v. Roy, 40 N.M. 397, 60 P.2d 646 (1936); In re Constitutionality of Section 251.18, Wis. Statutes, 204 Wis. 501, 236 N.W. 717 (1931); State v. Superior Court for King County et ah, 148 Wash. 1, 267 P. 770 (1928).
Appellant next argues that the appearance bond only assured the defendant's *565 presence in the municipal court and that, absent a clear extension of the contract liability to the circuit court in the agreement, his surety obligation cannot be extended past the terms of the contract. Appellant asserts that Rule 9.2(e), which provides that an appearance bond shall guarantee all subsequent appearances of a defendant in any court, should not be read into the bond to extend liability beyond the plain import of the contractual agreement which, here, was limited to assuring the defendant's presence in the municipal court.
In support of his contention, appellant cites Trimount Dredging Co. v. U. S. Fidelity & Guaranty Co., 166 Md. 556, 171 A. 700 (1934); and Commonwealth v. Stryker, Inc., 109 Pa.Sup. 137, 167 A. 459 (1933), wherein it was held that the bond obligation could not be extended past the plain import of the contractual agreement and state statutes pertaining to contractor's bonds could not be read into the bond. However, as the court in Commonwealth recognized, other jurisdictions hold different views.
Here we are dealing with a bond which was required by law as a condition for the pre-trial release of a criminal defendant. In Arkansas "[i]t is familiar law that when a bond is required by statute and issued pursuant thereto, the bond will be construed as if the terms of the statute had been written into the contract." Empire Life v. Armorel Planting Co., 247 Ark. 994, 449 S.W.2d 200 (1970). See also Fort Smith Structural Steel Co. v. Western Surety Co., D.C.Ark., 247 F. Supp. 674 (1965); and Crawford v. Ozark Ins. Co., 97 Ark. 549,134 S.W. 951 (1911). It is well settled law that in determining the extent of liability on a statutory bond, if there is any conflict between the statute and the bond, the language of the statute is controlling. Carter v. St. Paul Fire & Marine Ins. Co., 283 F. Supp. 384 (1968); and Detroit Fed. & Surety Co. v. Yafee Iron & Metal Co., Inc., 184 Ark. 1095, 44 S.W.2d 1085 (1932). In Rodriquez v. People, 554 P.2d 291 (Colo. 1976), the court stated: "[Sjtatutes relating to bail implicitly constitute a part of the surety contract." 8 Am.Jur.2d, Bail and Recognizance § 96 reads: "[T]he sureties on a bail bond cannot change or lessen a liability fixed by statute."
Here the appearance bond was issued pursuant to § 22-242 and Rule 9.2(e). The latter states that the appearance bond "shall serve to guarantee all subsequent appearances of a defendant on the same charge ... before any court . ." Reading the applicable rule into the bail bond agreement here, the bond would apply to appellant's appearance before the circuit court as well as his appearance before the municipal court.
Affirmed.
BYRD, J., dissents for the reasons set forth In re Ark., Criminal Code Revision Com'n, ex parte, 259 Ark. 863, 530 S.W.2d 672, at p. 871, (1975), et seq. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284321/ | ORDER
PER CURIAM
Damon Houston appeals from the motion court’s judgment denying his Rule 29.151 motion. We have reviewed the briefs of the parties and the record on appeal, and we conclude the motion court’s denial of post-conviction relief was not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties, for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b) (2015).
. All rule references are to Mo. R. Crim. P. (2015), unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125630/ | Judgment reversed and new trial-ordered before another referee, costs to abide event. Opinion by
Smith, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125631/ | Judgment of the County Court and of the justice reversed. Opinion by
Hardin, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284323/ | ORDER
PER CURIAM
Brandon Bibbs appeals from the motion court’s denial, after an evidentiary hearing, of his Rule 29.15 amended motion for post-conviction relief claiming ineffective assistance of counsel. 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/5284324/ | ORDER
PER CURIAM.
Michael M. Curtis (“Defendant”) appeals from the trial court’s denial of his motion to suppress evidence. Defendant argues the trial court erred in denying his motion to suppress because certain physical evidence and his statements were obtained as a result of an unlawful search and seizure.
We have reviewed the briefs of the parties and the record on appeal and find the trial court did not err. An opinion reciting the detailed facts and restating the principles of law would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information *506only, setting forth the reasons for this order pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284325/ | ORDER
PER CURIAM
Byron Pollard (Defendant) appeals the' denial of his Rule 29.07(d) motion to withdraw his guilty plea. Defendant claims the motion court erred in denying his motion before imposition of sentence because his guilty plea was unknowing and involuntary. Wé affirm.
We have reviewed the briefs of the parties and the record on appeal and have determined that an extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284326/ | DON E. BURRELL, P.J. — OPINION AUTHOR
Stacey Phillips (“Relator”), the plaintiff in a product liability suit, seeks a writ of prohibition against the Honorable James A. Hackett (“Respondent”) that would prevent Respondent from enforcing an order that Relator produce certain of her psychological-treatment records. Relator claims that the records in question are immune from discovery based on the physician-patient privilege. See section 491.060(5).1 We agree with that claim and now make permanent our preliminary writ of prohibition.
Applicable Principles of Review and Governing Law
Rule 56.01(b)(1) provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action[.]” (Emphasis added.) Medical records are subject to the physician-patient privilege, as codified under section 491.060(5). Brandt v. Pelican, 856 S.W.2d 658, 661 (Mo. banc 1993). Any information a physician acquires from a patient while attending the patient and which is necessary to enable the physician to provide treatment is privileged. State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. banc 1995).
A trial court has broad discretion in administering the rules of discovery, and an appellate court should not disturb the trial court’s rulings absent an abuse of discretion. State ex rel. Delmar Gardens N. Operating, LLC v. Gaertner, 239 S.W.3d 608, 610 (Mo. banc 2007). However, a writ of prohibition is appropriate when a party has been directed to produce material that is privileged. State ex rel. Boone Ret. Ctr., Inc. v. Hamilton, 946 S.W.2d 740, 741 (Mo. banc 1997). Writ relief is appropriate because the damage to the party against whom discovery is sought is irreparable; once the privileged material is produced, there is no way to undo the disclosure on appeal. Id.
Background
Relator sued defendants Ford Motor Company (“Ford”) and Joe Machens Ford, Inc., after her 1997 Ford Explorer rolled over, allegedly because of design and manufacturing defects. Relator’s initial peti*509tion sought monetary damages for both physical and psychological injuries.
Based on those claims, Ford propounded to Relator a discovery request (“Request for Production #2”) that sought “[a]ny written records or reports of all hospitals, clinics or other institutions, and of all phy-. sicians, medical practitioners, psychologists, psychiatrists, or physical therapists who have ever treated or cared for [Relator] for injuries to the parts of her body that she claims weré injured in the accident at issue.” 2, In initially responding to this request, Relator attached a disc that purported to contain “all medical records pertaining to [Relatoras injuries sustained in the rollover.”
Ford subsequently sought court-ordered production of Relator’s psychological records, which, apparently, were not included-on the disc. After á status hearing, and with Ford’s consent, Relator filed an amended petition that removed any allegation of psychological injury. A few days later, Relator supplemented her response to Request for Production #2 with the following statement:
[Relator] has filed a First Amended Petition withdrawing her claims for psychological injuries therefore that part of the question is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. [Relator] again respectfully directs [Ford] to [Re-latoras medical records for any and all written records and reports [Relator] is aware of relating to the injuries [Relator] sustained in the rollover.
Around the same time, counsel for Ford sent an email to counsel for Relator that stated, “There really is no confusing [sic] re the Psychological damage issue. Now that an amended petition has been filed removing that claim, we don’t need those records.” ■ .
Despite that assurance, Ford subsequently filed a second' motion to compel production of Relator’s psychological records. As in its first motion, Ford asserted that these records were required to be produced pursuant to its Request for Production # 2. According to Ford, Relator’s supplemental response contained a single objection — that Relator’s psychological injuries are “ ‘irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.’” Ford argued that this objection should be overruled because “it is highly likely that the subject accident was discussed with [Relatoras treating psychological doctors” and that any records would-be admissible as “party admissions and statements made to a medical provider for the purposes of receiving medical treatment.” In opposing Ford’s motion, Relator filed ' a memorandum claiming, inter alia, that her psychological records are protected by the physician-patient privilege.
Following a'hearing on Ford’s second motion to compel, Respondent issued an order overruling Relator’s “timely filed objection” to Request for Production # 2 and granting Ford’s motion to compel “as to that Request.”
Analysis
Points I and II — The Applicability of the Physician-Patient Privilege
Relator raises two points on appeal, both of which are based on the same premise: that Respondent erred in compelling her to disclose privileged psychological rec*510ords. As noted above, Ford claims it is entitled to these records based solely on Request for Production #2. As a preliminary matter, we must address Ford’s contention, raised in defense of Respondent, that Relator did not invoke the physician-patient privilege in response to Request for Production # 2, thereby failing to preserve the objection for our review.3
First, it is important to note that Relator is seeking a writ of prohibition, not appealing a judgment. Therefore, even if we presume that Relator’s objection was untimely, “[w]e are not restricted only to issues that the appellant properly raised or preserved in circuit court.” State ex rel. Am. Standard Ins. Co. of Wis. v. Clark, 243 S.W.3d 526, 529 (Mo.App.W.D.2008). “A writ of prohibition is a discretionary remedy, and we ‘may accept limitations on the issues or examine new points not offered ab initio.’ ” Id. (quoting State ex rel. Carver v. Whipple, 608 S.W.2d 410, 412 (Mo. banc 1980)).
We also note that Request for Production # 2 is not a model of clarity. By its own terms, it is limited to written records or reports of psychologists or psychiatrists “who have ever treated or cared for [Relator] for injuries to the parts of her body that she claims were injured in the accident at issue.'” (Emphasis added.) If this particular wording ever served to make Relator’s psychological records responsive to the request, we seriously question whether it continued to do so once all of Relator’s claims for psychological injury were withdrawn.
At any rate, Ford concedes that Relator objected to this portion of the question as “‘irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.’ ” (Emphasis added.) In addressing this objection, Ford focuses entirely on the relevance of the records in question and exceptions to the hearsay rule. In doing so, Ford overlooks that privileged material is specifically excluded from matter discoverable under Rule 56.01(b)(1), and, like hearsay, is generally not admissible evidence. See Section 491.060(5). We acknowledge that Relator’s objection as stated may have lacked specificity, see Rule 58.01(c)(3), but all parties understood that Relator was arguing privilege (not hearsay) no later than when she filed her memorandum in opposition to Ford’s second motion to compel. In this context, Relator’s objection is preserved. Cf. Clark, 243 S.W.3d at 529 (finding that an objection to discovery requests, alleged to lack specificity under Rule 58.01(c)(3), was preserved where the record revealed that the parties understood the specific basis for the objection at hearings on a motion to compel production).
We turn now to the question of whether the physician-patient privilege, under the circumstances of this case, bars the disclosure of Relator’s psychological records. Relator analogizes her case to State ex rel. Dean v. Cunningham, 182 S.W.3d 561 (Mo. banc 2006). In that case, our supreme court held that where a party has not alleged psychological injury (beyond “garden variety” emotional distress), the party’s psychological records are not relevant to the issue of damages and are not discoverable. Id. at 567-68. In defending Respondent, Ford argues that Relator’s psychological records are discoverable because Ford had a good faith belief *511that they would “contain information that directly negates [Relatoras theory of causation-in-fact[,]” and Ford directs our attention to State ex rel. BNSF By. Co. v. Neill, 356 S.W.3d 169 (Mo. banc 2011).
At issue in Neill was whether the trial court erred in not allowing discovery of a plaintiffs psychiatric records on the basis that the records were not relevant to a personal injury claim alleging only physical damages. Id. at 171-72. It does not appear from the opinion that any claim was made that the records should not be subject to production because they were privileged. In the absence of such a privilege claim, our supreme court observed that, “The pertinent inquiry is whether the requested material ‘appears reasonably calculated to lead to the discovery of admissible evidence.'’" Id. at 174 (quoting Rule 56.01(b)(1)) (emphasis added). Under that analysis, the trial court was held to have abused its discretion by focusing solely on damages and failing to consider whether the plaintiffs records were relevant and admissible, as argued by the defendant, as to other issues, e.g., causation. Id. at 174-76.4
The Court’s holding in Neill has no applicability here. Ford claims, based upon an alleged good faith belief, that Relator’s psychological records may reflect statements by Relator regarding whether she was wearing a seatbelt.5 Ford is correct that such statements, assuming they exist, would be relevant to the issue of causation. However, unlike Neill, the admissibility of such records over an objection that they are privileged is at issue in this case. When records are privileged, the fact that they may be relevant to an issue does not make them discoverable. State ex rel. Stinson v. House, 316 S.W.3d 915, 919 (Mo. banc 2010). To the contrary, “[t]he very nature of an evidentiary privilege is that it removes evidence that is otherwise relevant and discoverable from the scope of discovery.” Id. (citing Rule 56.01(b)(1)).
The privilege may, of course, be waived by the patient, and the general rule in regard to litigation is that “once the matter of plaintiffs physical condition is in issue under the pleadings, plaintiff will be considered to have waived the privilege under [section] 491.060(5) so far as information from doctors or medical and hospital records bearing on that issue is concerned.” State ex rel. McNutt v. Keet, 432 S.W.2d 597, 601 (Mo. banc 1968).
*512Ford does not contend that Relator’s psychological condition is at issue under the pleadings — -whether as to causation, damages, or otherwise. Rather, Ford seeks to discover statements made by Relator, in the context of psychological treatment, that could possibly be relevant to a theory of causation wholly unrelated to Relator’s psychological condition. In the absence of a claim that Relator’s psychological condition was a factor in either causing the accident or contributing to her physical injuries, the privileged material is not discoverable. Rule 56.01(b)(1); see also Neill, 356 S.W.3d at 175.
Our preliminary writ of prohibition is made permanent.
NANCY STEFFEN RAHMEYER, J.— CONCURS
GARY W. LYNCH, J. — CONCURS
. All statutory references are to RSMo 2000. All rule references are to Missouri Court Rules (2015).
. Ford’s Request for Production # 2 also contained the statement, "In lieu of producing copies of the records or reports, you may sign the attached authorization allowing release of the records and reports directly to the undersigned.” Relator did not execute the attached authorization.
. Ford cites Rule 58.01(c)(3), which states, "If information is withheld because of an objection, then each reason for the objection shall be stated." Ford also cites Rule 61.01(a), which states, “Any failure to act described in this Rule may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed timely objections to the discovery request or has *511applied for a protective order as provided by Rule 56.01(c).”
. In Neill, the plaintiff claimed that he had lost consciousness and was injured due to the defendant’s failure to provide a reasonably safe workplace. 356 S.W.3d at 174. However, based upon the available evidence, the defendant had reason to believe that the plaintiff’s injuries were caused by the use, abuse, and abrupt cessation of medications prescribed by the plaintiff’s treating psychiatrist. Id. In Neill, the Court also reaffirmed its holding in Dean, stating:
Of course, a claim that otherwise undis-coverable records "might” lead to the discovery of admissible evidence would not justify a fishing expedition into those records, nor can it be used as part of an attempt to evade the limitation on discovery of psychiatric records of plaintiffs who do not claim psychological injury. See Dean, 182 S.W.3d 561 at 568.
Id. at 175.
. Ford set forth its causation argument in its brief as follows:
As previously stated, a major issue in this litigation is whether [Relator] was belted at the time of the subject accident, because [Relator] has alleged that her Explorer was defectively designed in that her seat belt failed to prevent her ejection, [reference to exhibit omitted]. Obviously, if [Relator] was not using her seat belt prior to the accident, that fact would negate [Relator]'s theory of causation-in-fact, i.e., even if the seat belt was designed differently, it would not have prevented [Relator]’s injuries because she wasn't using the seat belt. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284327/ | OPINION
D. KELLY THOMAS, JR., J.,
delivered the opinion of the court,
in which JAMES CURWOOD WITT, JR., and JEFFREY S. BIVINS, JJ., joined.
Following a jury trial, the Defendant, Harold Morris, was convicted of aggravated rape, a Class A felony; aggravated robbery, a Class B felony; and aggravated burglary, a Class C felony. See Tenn. Code Ann. §§ 39-13-402, -13-502, -14-403. The trial court imposed an effective sentence of twenty-five years to be served at one hundred percent. On appeal, the Defendant contends (1) that the trial court erred in denying his motion to suppress evidence and (2) that the trial court erred in denying his motion to dismiss on the grounds that his right to a speedy trial had been violated. Following our review, we affirm the judgments of the trial court.
FACTUAL BACKGROUND
The victim, O.W.,1 testified that on April 08, 2007, she was eighty-nine years old, a widow, and lived alone in a rural area of Morgan County. That evening, a man O.W. did not know knocked on her door and said that he wanted to “know about the family that lived up above” her, “whether they were home or not.” The man then “just came in” the victim’s house without her permission, “sat down in the chair by the door[,] and just went to talking to [her] about that family.” When he finished talking, the man “got up and locked the front door and pulled [her] phone out of the wall.”
O.W. testified that the man grabbed her by her feet, dragged her “out of [her] chair,” and started “to pull [her] clothes off.” The man then penetrated her vagina. The victim testified that she tried to fight the man off but that she was scared and that he was stronger than she. She also testified that her breasts were injured during the rape from where the man had been “chewing on them.” After he finished raping her, the man took the victim’s wedding rings, a bracelet, and a watch. O.W. testified that in taking the jewelry, the man “tore [her] finger up.” O.W. later learned that she also suffered a cracked rib during the attack.
The man left once he had the victim’s jewelry. The victim testified that the man *581was wearing “blue jeans and a blue jean jacket” and that he drove away in a gray van with “windows all the way around” it. O.W. then called her neighbor, Glen Moore, to tell him what happened. The police were called, and O.W. was eventually taken to a nearby hospital. • O.W. testified that, at first, she did not tell anyone that she had been raped because she was “embarrassed to talk about it” but claimed that she eventually told her neighbor and the staff at the hospital. However, there was no rape kit performed at the hospital. O.W. later picked the Defendant’s picture out of a photographic lineup and identified him at trial as her attacker.
Mr. Moore testified that he received a phone call from the. victim around 4:00 p.m. and that she told him “something terrible [had] happened.’.’ When he got to the victim’s house, Mr. Moore found her sitting in a chair with blood “dripping off of her finger.” Mr. Moore testified that it looked like something had “skinned” her finger and left arm. Mr. Moore’s wife tended to the victim’s injuries while he left to search for the van. The victim’s son testified that she was in “pretty bad shape mentally” when he got to her house. He testified that the victim did not say anything while they were at her house about being raped, that she told the hospital staff that the attacker had attempted to rape her, and that she did not actually say she was raped until the preliminary hearing.
Chief Allan Dagley of the Sunbright Police Department testified that in 2007 he worked for the Morgan County Sheriffs Office (MCSO) and was the first officer to-respond to the victim’s home. Chief Dag-ley recalled that the victim had a “little bit of blood” on her hand, “was real nervous,”- and pacing. Chief Dagley testified that the victim did not say anything about being raped while he Was at her house but that -later, “once she got a little more comfortable with actually what had just happened,” she stated that the attacker had “taken her clothes off and gotten on top of her and assaulted her.”
Investigator Mike Wren of the MCSO testified that he led the investigation in this case. Investigator Wren testified that he was given an anonymous tip that he “might want to check in the Cumberland County jail.” Officer Tony Aikens of the Crossville Police Department testified that on the evening of April 8, 2007, he spotted the Defendant driving a light blue van that had “[wjindows all around.” The van’s headlights were off, and its tag was expired. Officer Aikens turned on his blue lights, and the Defendant fled for over two miles. The van was eventually stopped by a “spike strip.”
The Defendant was wearing blue jeans and “a jean jacket” when he was taken out of the van. The Defendant had “a strong odor of alcohol coming from his breath,” had blood shot eyes, and “very slurred speech.” The Defendant stated to Officer Aikens, “[T]his is retarded, I’ve drank too much.” Officer Aikens arrested the Defendant ■ for driving under the influence (DUI) as well as felony evading arrest and took him to the Cumberland County jail.
Corrections Officer Terry Boots of the Cumberland County Sheriffs Department (CCSD) testified that it was department procedure to search and inventory the personal property of every person booked into the Cumberland County jail. Officer Boots testified that he searched the Defendant and found a watch, a bracelet, and two rings in a pocket of the Defendant’s jeans. The items were then inventoried and placed in to a property bag that was locked in' the jail’s property room. Officer Boots testified that the items were the Defendant’s personal property and not seized as evidence. ' ■
*582Acting on the anonymous tip, Investigator Wren contacted Investigator Scott Griffin of the CCSD and arranged to view the jewelry found when the Defendant was arrested. Investigator Wren testified that “[b]ased on what [he] had seen on [the] inventory sheet, it matched up with the description of the things that [the victim] had [taken], so [they] did look in the bag and [he took] some photographs.” Investigator Griffin testified that he took possession of the jewelry that day, April 16, 2007, to keep as possible evidence. However, Investigator Wren recalled viewing the property on April 9 or 10, 2007. Investigator Wren testified that he showed the photographs of the items to the victim and that she identified them as the jewelry taken by her attacker. The victim was sure that the jewelry was hers because it had been given to her by her deceased husband.
Investigator Wren testified that he showed the victim a photographic lineup on April 10, 2007, and that she identified the Defendant as her attacker. Investigator Wren looked at the Defendant’s van at the impound lot and testified that it “matchefd] almost perfectly” the victim’s description. Investigator Wren also noticed that the van was damaged and had mud on it. Investigator Wren testified that he believed the Defendant fled the victim’s home on an old “oil well road” behind the victim’s home and that was where the mud and damage to the Defendant’s van had come from. Officer Wren testified that he took custody of the Defendant and the jewelry from the CCSD on May 14, 2007.
Based upon the foregoing evidence, the jury convicted the Defendant of aggravated rape, aggravated robbery, and aggravated burglary. The trial court sentenced the Defendant as a Range I, standard offender to eight years for the aggravated robbery conviction and five years for the aggravated burglary convection. The trial court sentenced the Defendant to twenty-five years to be served at one hundred percent for the aggravated rape conviction. The trial court ordered the sentences to be served concurrently for an effective twenty-five year sentence. This appeal followed.
ANALYSIS
I. Motion to Suppress
The Defendant contends that the trial court erred in denying his motion to suppress the jewelry found in his pants when he was arrested in Cumberland County. The Defendant argues that since the jewelry was taken from his “person and placed in a secured location for his later retrieval ..., there was a reasonable expectation of privacy for which a warrant was required.” The State responds that since the items were seized during a valid inventory search at the Cumberland County jail, Investigator Wren did not need a warrant to examine and photograph the jewelry.
A. Standard of Review
On appellate review of suppression issues, the prevailing party “is entitled to the strongest legitimate view of the evidence ... as well as all reasonable and legitimate inferences that may be drawn from that evidence.” State v. Talley, 307 S.W.3d 723, 729 (Tenn.2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996)). Questions about “the assessment of witness credibility, the weight and value of evidence, and the resolution of evidentiary conflicts are entrusted to the trial court.” State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the trial court “makes findings of fact in the course of ruling upon a motion to suppress, those findings are binding on appeal unless the evidence in the record preponderates against them.” *583Id. However, “when the trial court does not set forth its findings of fact upon the record of the proceedings, the appellate court must decide where the preponderance of the evidence lies.” State v. Bobby Killion, No. E2008-01350-CCA-R3-CD, 2009 WL 1748959, at *13 (Tenn.Crim.App: June 22, 2009), perm. app. denied, (Tenn. Oct. 26, 2009) (citing Fields v. State, 40 S.W.3d 450, 457 n. 5 (Tenn.2001)). Additionally, a trial court’s conclusions of law along with its application of the law to the facts are reviewed de novo without any presumption of correctness. Meeks, 262 S.W.3d at 722. Here, the trial court simply overruled the Defendant’s motion without making any findings of fact or conclusions of law.
Both the federal and state constitutions offer protection from unreasonable searches and seizures with the general rule being “that a warrantless search or seizure is presumed unreasonable and any evidence discovered subject to suppression.” Talley, 307 S.W.3d at 729 (citing U.S. Const, amend. IV; Tenn. Const, art. I, § 7). As has often been repeated, “the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject to only a few specifically established and well delineated exceptions.’ ” Coolidge v. Neto Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); see also State v. Berrios, 235 S.W.3d 99, 104 (Tenn.2007). Such exceptions to the warrant requirement include “searches incident to arrest, plain view, exigent circumstances, and others, such as the consent to search.” Talley, 307 S.W.3d at 729. These constitutional protections “are designed to safeguard the privacy and security of individuals against arbitrary invasions of government officials.” Id. (quoting State v. Keith, 978 S.W.2d 861, 865 (Tenn.1998)) (internal quotation marks omitted). Therefore, “a trial court necessarily indulges the presumption that a warrantless search or seizure is unreasonable, and the burden is on the State to demonstrate that one of the exceptions to the warrant requirement applied at the time of the search or seizure.” Killion, 2009 WL 1748959, at *14.
B. Validity of Search at Cumberland County Jail
The warrantless search of the Defendant’s person by Officer Boots was justified under two exceptions to the warrant requirement. The first justification was a search incident to arrest because it has been routinely held “that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” State v. McDougle, 681 S.W.2d 578, 584 (Tenn.Crim.App.1984) (quoting United States v. Edwards, 415 U.S. 800, 803, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974)). The second justification was based upon the fact that law enforcement authority in cases of incarceration “extends to performing a detailed ‘inventory search’ of all personal effects in the arres-tee’s possession.” State v. Crutcher, 989 S.W.2d 295, 301 (Tenn.1999) (citing Illinois v. Lafayette, 462 U.S. 640, 648, 103 S.Ct. 2605, 77 L.Ed.2d. 65 (1983)). Therefore, Officer Boots’s warrantless search of the Defendant and seizure of the jewelry were valid.
C. “Second Look”
Given that Officer Boots’s search of the Defendant and seizure of the jewelry were valid, the operative question for our analysis is whether Investigator Wren *584needed a warrant to examine the jewelry-after it had been placed in the Cumberland County jail’s property room. For almost half a century, the United States Supreme Court has declared that reasonableness is the “touchstone of the Fourth Amendment.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801,114 L.Ed.2d 297 (1991) (citing Katz, 389 U.S. at 360, 88 S.Ct. 507). In order to evaluate whether a reasonable expectation of privacy exists, under both our state and federal constitutions, we must determine “(1) whether the individual had an actual, subjective expectation of privacy and (2) whether society is willing to view the individual’s subjective expectation of privacy as reasonable and justifiable under the circumstances.” State v. Munn, 56 S.W.3d 486, 494 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). “A subjective expectation of privacy that society does not regard as reasonable will not invoke Fourth Amendment protection.” State v. Brandon Ray Roland, No. E2002-00927-CCA-R3-CD, 2003 WL 21983024, at *14 (Tenn.Crim.App. Aug. 21, 2003), 'perm, app. denied, (Tenn. Dec. 22, 2003).
The question of whether a warrant is needed before a police officer can take a “second look” at items previously seized during an inventory search is one of first impression in this state. However, the consensus among jurisdictions that have addressed this issue appears to be that once a person has “been lawfully arrested and his property has been lawfully seized by law enforcement personnel pursuant to that arrest, the arrestee has no reasonable expectation of privacy in that property, and later examination of the property by another law enforcement official does not violate the Fourth Amendment.” Williams v. Commonwealth, 259 Va. 377, 527 S.E.2d 131, 136 (2000) (citing cases from various jurisdictions). This is because no “situation imaginable is as alien to the notion of privacy than an arrestee sitting in a jail cell, completely separated from his effects that are lawfully controlled and inventoried by the very police that are investigating him.” Oles v. State, 993 S.W.2d 103, 109 (Tex.Crim.App.1999). Put another way, an “arrestee has no reasonable expectation that the police will not scrutinize closely those items that are in their legitimate custody, discovering evidence, perhaps, even where none was initially suspected.” Wallace v. State, 373 Md. 69, 816 A.2d 883, 894 (2003) (quoting Holland v. State, 122 Md.App. 532, 713 A.2d 364, 368 (1998)).
The fact that the items were evidence of a separate crime from the DUI the Defendant was initially arrested for does not alter this analysis because the test to determine reasonableness examines an individual’s subjective expectation of privacy and not a police “officer’s investigatory motive.” Wallace, 816 A.2d at 898. Here, Investigator Wren received an anonymous tip that he “might want to check in the Cumberland County jail.” Investigator Wren reviewed the inventory sheet for the Defendant’s property and saw that the jewelry listed matched the description of the items taken from the victim. He then examined the jewelry and took photographs of it. After that, Investigator Wren went to look at the Defendant’s van and saw that it matched the victim’s description. He then showed the pictures of the jewelry to the victim. The victim identified the jewelry as belonging to her and picked the Defendant’s picture out of a photographic lineup, after which Investigator Wren arrested the Defendant and seized the jewelry. Based upon the foregoing, we cannot conclude that Investigator Wren’s actions violated any actual, subjective expectation of privacy held by the Defendant. Accordingly, we affirm the *585trial court’s denial of the Defendant’s suppression motion.
II. Right to Speedy Trial
The Defendant contends that the trial court erred in denying his- motion to dismiss on the grounds that his right to a speedy .trial had been violated. The Defendant argues that the over two-year delay between his indictment and his trial violated his right to a speedy trial and prejudiced his .defense. According to the Defendant, the jewelry that was found when .he was arrested belonged to his mother, but she died prior to trial, leaving him with no way to establish his defense. The State responds that the trial court did not abuse its discretion in denying the Defendant’s motion and that the Defendant failed to show he was prejudiced by the delay.
The Defendant was originally indicted on May 21, 2007. On March 10, 2009, the Defendant filed a pro se motion to dismiss his appointed counsel because counsel had “been ineffective and [- ] prolonged the process of ... his case.” The same day, the Defendant filed a pro se motion invoking his right to a speedy trial but made no claim that he had been’ prejudiced by the delay. The trial court granted the Defendant’s motion to remove his appointed counsel and appointed a new attorney to represent him at trial.
'A few days before the trial, the Defendant filed a pro se motion to dismiss his case based upon the violation of his right to a speedy trial. Again, the Defendant made no claim that he had been prejudiced by the delay. At a hearing immediately before the start of the trial, defense counsel made the following argument regarding prejudice:
There are — there are some interesting issues on who in fact'is the owner of the jewelry that was taken from him as part of the suppression issue obviously. It is our position that it was his personal property and belonged where it was until he was out.
But clearly our problem that we have is- the prejudice front just the two year delay in getting to trial had meant that he’s not had the opportunity to work and get defenses in line. Testimony of witnesses who-could come in and say “oh. yeah, the watch that belonged to his mother” and that sort of thing.
During the hearing, defense counsel did not 'elaborate on who the possible witnesses were or why they were unavailable tu testify at trial.
In response, the State noted that the case had originally been set for a plea agreement but that the Defendant decided to reject the agreement when “the time for [it to be entered] came.” The trial court denied the Defendant’s motion to dismiss stating that there was “not. any particular prejudice shown by the timing in this particular case.” The Defendant was tried on June 25, 2009. At the motion for new trial hearing, the Defendant first raised the argument that “during the course of the delay his mother passed so she wasn’t available to be called to” testify that the jewelry belonged to her.
A. Standard of Review
Once the State initiates criminal proceedings, the right to a speedy trial is implicated pursuant to the Sixth Amendment to the United States Constitution and to article 1, section 9 of the Tennessee-Constitution. See TenmCode Ann. § 40-14-101 - (2006); Tenn. R.Crim. P. 48(b). The right is meant to protect the defendant “against oppressive pre-trial incarceration, the anxiety and concern due to unresolved criminal charges, and the risk that evidence will be lost or memories diminished.” State v. Utley, 956 S.W.2d 489, 492 *586(Tenn.1997). In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court devised a balancing test to determine speedy trial issues and identified the following factors for consideration: (a) the length of delay; (b) the reason for the delay; (c) the defendant’s assertion of his right to a speedy trial; and (d) the prejudice to the defendant. See also State v. Bishop, 493 S.W.2d 81, 84-85 (Tenn.1973) (implicitly adopting the Barker balancing test for our State’s constitutional and statutory right to a speedy trial). The balancing test adopted in Barker “necessarily compels courts to approach speedy trial cases on an ad hoc basis.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. The remedy for the denial of a speedy trial is dismissal of the charges. Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).
The first Barker factor, length of delay, is a threshold factor, serving as the triggering mechanism “that will necessitate the consideration of the other three factors.” State v. Wood, 924 S.W.2d 342, 346 (Tenn.1996). Until the accused establishes a period of delay that is “presumptively prejudicial,” there will be “no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. 2182; see also State v. Easterly, 77 S.W.3d 226, 235-36 (Tenn.Crim. App.2001). Generally, “a delay must approach one year to trigger the Barker v. Wingo analysis,” although “the line of demarcation depends on the nature of the case.” State v. Utley, 956 S.W.2d 489, 494 (Tenn.1997); see Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 n.l (1992). The delay of over two years between the Defendant’s initial indictment and his trial is enough to require inquiry into all of the Barker factors. We review a trial court’s determination regarding a claim of a violation of the defendant’s right to a speedy trial for abuse of discretion. Easterly, 77 S.W.3d at 236.
B. Length of Delay
The reasonableness of the length of the delay depends “upon the peculiar circumstances of each case.” Easterly, 77 S.W.3d at 235. The delay “that can be tolerated for ‘an ordinary street crime’ is generally much less than for a serious, complex felony charge.” Id. (citing Barker, 407 U.S. at 530-31, 92 S.Ct. 2182). However, “the presumption that [the] delay has prejudiced the accused intensifies over time.” State v. Simmons, 54 S.W.3d 755, 759 (Tenn.2001). While the over two-year delay between the Defendant’s initial indictment and his trial is sufficient to trigger the full Barker analysis, “this period of delay is not necessarily unreasonable when compared to other cases.” Id. (delay of twenty-three months); see also Doggett, 505 U.S. at 653,112 S.Ct. 2686 (delay of six years); Wood, 924 S.W.2d at 346 (delay of thirteen years); Easterly, 77 S.W.3d at 236 (delay of twenty months). Additionally, “the delay is not egregious, given the fact” that the Defendant is charged with three felonies ranging from Class C to Class A. Easterly, 77 S.W.3d at 236 (delay of twenty months not egregious given the fact the defendant was charged with a Class A felony). Therefore, this factor weighs in favor of the State.
C. Reason for Delay
The next Barker factor to be considered, reason for the delay, generally falls into one of the following categories: “(1) intentional delay to gain a tactical advantage over the defense or delay designed to harass the defendant; (2) bureaucratic indifference or negligence; (3) delay necessary to the fair and effective prosecution of the case; and (4) delay *587caused, or acquiesced in, by the defense.” Wood, 924 S.W.2d at 346-47. Intentional delay is “weighted heavily” against the State while “negligence or oversight are considered against the [State] but afforded comparatively more neutral weight.” Easterly, 77 S.W.3d at 236 (citing Barker, 407 U.S. at 631, 92 S.Ct. 2182).
There is nothing in the record to suggest that the delay in this case was intentionally caused by the State. Instead, the delay appears to have been caused, in part, by the Defendant’s decision to reject a plea agreement when “the time for [it to be entered] came.” See Wood, 924 S.W.2d at 347 n. 12 (stating that “[g]ood faith attempts to plea-bargain” are an example of delays caused, or acquiesced in, by the defendant). Additionally, delay was caused by defense counsel requesting and receiving a psychiatric evaluation of the Defendant. See State v. Hallock, 875 S.W.2d 285, 289 (Tenn.Crim.App.1993) (holding that part of the delay was “attributable ... to the defendant’s request for [a] psychological evaluation”). Further delay was caused by the Defendant’s motion to remove his appointed counsel in March 2009. These types of delays, which are caused or acquiesced in by the defendant, are weighed against the defendant in the Barker analysis. Therefore, this factor weighs in favor of the State.
D. Assertion of Right
The third factor in the Barker analysis is “the defendant’s assertion or failure to assert the right to a speedy trial.” Simmons, 54 S.W.3d at 760. A defendant’s assertion of the right “is entitled to strong evidentiary weight in determining whether the right has been denied, and failure to assert the right will make it difficult to prove it was denied.” Wood, 924 S.W.2d at 348. The defendant’s failure to assert the right “implies [the] defendant does not actively seek a swift trial.” Id. Here, the Defendant, while waiting until March 2009 to do so, did assert his right to a speedy trial in a pro se motion filed along with his motion to dismiss appointed counsel. Accordingly, this factor weighs in favor of the Defendant.
E. Prejudice
The final Barker factor is whether the accused suffered any prejudice as a result of the delay. Simmons, 54 S.W.3d at 760. This factor is the most important factor in the analysis and seeks to protect the following specific interests of the defendant: “(1) preventing oppressive pretrial incarceration; (2) minimizing the accused’s anxiety and concern; and (3) limiting the possibility of impairment to preparation of the defense.” Easterly, 77 S.W.3d at 237. The weight of the first three factors in favor or against the defendant determines whether prejudice is presumed or if the defendant bares the “burden to show actual prejudice.” United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir.2002) (citing Doggett v. United States, 505 U.S. 647, 656-57, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). Here, two of the first three factors weighed against the Defendant; therefore, he had the burden “to put forth specific evidence of prejudice.” Id. at 490.
Generally, “[i]f witnesses die or disappear during a delay, the prejudice is obvious.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. However, “some substantiation is required” even for this type of prejudice. 5 Wayne R. LaFave et al., Crim. Proc. § 18.2(e) (3d ed.). At a minimum, a defendant must show “that the witness truly is now unavailable, that he would have been available for a timely trial, and that his testimony would have been of help to the defendant.” Id. (citing cases). A blanket statement that “gives *588no indication as to the content and relevance of the lost testimony” is not sufficient to establish prejudice. United States v. Harris, 566 F.3d 422, 433 (5th Cir.2009).
The Defendant has made no claims that his pretrial incarceration was oppressive or that the delay caused him anxiety and concern. Rather, the Defendant’s sole claim of prejudice was that the preparation of his defense was impaired by the delay. Specifically, the Defendant claims on appeal that his mother would have testified that the jewelry belonged to her, but she died prior to trial. However, the only showing the Defendant made on this claim prior to the trial court’s ruling was a blanket statement that the delay precluded the “testimony of witnesses who could come in and say 'oh yeah, the watch that belonged to his mother,’ and that sort of thing.” This blanket statement was not sufficient for the trial court to find prejudice.
Furthermore, the only information regarding the Defendant’s mother was trial counsel’s statement during the motion for new trial hearing that she died sometime during the delay. The Defendant presented no evidence, such as a death certificate, to substantiate this claim and establish the date of her death. Such evidence is essential to any court’s determination of whether the Defendant was prejudiced by the delay. Nor, was there any evidence that the Defendant was unable to preserve his mother’s testimony. As such, the Defendant has failed to establish that he was prejudiced by the delay.
F. Balance of Factors
The delay of over two years between the Defendant’s indictment and his trial was lengthy enough to trigger a Barker inquiry, but it was not unreasonable in view of the complexity of the case and the number of felony charges faced by the Defendant. The record reflects that the majority of the delay was caused, or acquiesced in, by the Defendant. Thé Defendant did assert his right to a speedy trial but waited until almost two years had elapsed before he did so. Given that the first three factors balance against the Defendant, he had the burden of establishing that he was prejudiced by the delay, which he failed to establish. Accordingly, we hold that the trial court did not abuse its discretion in denying the Defendant’s motion to dismiss for lack of a speedy trial.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgments of the trial court are affirmed.
. It is the policy of this court to refer to victims of rape by their initials. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284328/ | OPINION
STEVE McKEITHEN, Chief Justice
A jury convicted Christopher Lee Sutton of five counts of improper relationship between educator and student'. In two appellate issues, Sutton challenges the legal sufficiency of the evidence and the constitutionality of section 21.12 of the Texas Penal Code. We reverse the trial court’s judgment and render a judgment of acquittal.
Legal Sufficiency
In issue one, Sutton contends that the evidence is legally insufficient to support his conviction for improper relationship between educator and student. Under a legal sufficiency standard, we assess all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). We give deference to the jury’s responsibility to fairly resolve conflicting testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.
A school employee commits an offense when he “engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works [.] ” Tex. Penal Code Ann. § 21.12(a)(1) (West Supp.2014) (emphasis added). “The prohibitions of section 21.12 are clear and unequivocal: if you are an employee of a Texas public or private primary or secondary school, you must not engage in sexual conduct with students who are enrolled at a school where you work[.]” Ex parte Morales, 212 S.W.3d 483, 499 (Tex.App.—Austin 2006, pet. ref'd). Teachers and other school employees “occupy positions of public trust with respect to the students enrolled at their school.” Id. at 497. Section 21.12 is “limited specifically to employee sexual conduct with students enrolled at the same school where the employee works, a class of persons uniquely within the proximity and influence of the employee.” Id. at 496. The indictment in this case alleged that Sutton was an employee of Caney Creek High School when he engaged in sexual contact or deviant sexual intercourse with G.T., a person enrolled at Caney Creek. On appeal, however, Sutton, contends that he was employed by Conroe Independent School District (“C.I.S.D.”) Police Depart*609ment, and not Caney Creek, and that he never worked at Caney Creek.
According to the evidence presented at trial, Sutton was employed'by C.I.S.D. Police Department. G.T. testified that, two weeks before his eighteenth birthday, he began having a sexual relationship with Sutton. G.T.’s mother testified that Sutton admitted to her that he had a sexual relationship with , G.T. William Harness, the Chief of Police for C.I.S.D. Police Department, testified that Sutton contacted him and admitted having an inappropriate relationship with G.T. while G.T. was a student at Caney Creek.
Carrie Galatas, the custodian of records for C.I.S.D., testified that Sutton was employed by C.I.S.D., but was not an employee of Caney Creek. G.T- testified that Sutton sometimes picked him up at the high school when Sutton was off duty, although Sutton may have been on call. G.T. testified that Sutton did not work for Caney Creek and he never saw Sutton working at the high school. Galatas explained that the school district is divided into five feeder systems and a sergeant is •in charge of each feeder. Sutton was assigned to The Woodlands feeder system and was not assigned to either Caney Creek or to the feeder system in which Caney Creek was located. All sergeants, including Sutton, office at the C.I.S.D. Police Department command center. Harness explained that sergeants were not bound to their assigned feeder, but were expected to respond to other feeders if needed, served as after hours and weekend on-call sergeant on a rotating basis, and had “overlapping responsibilities.”
Harness testified that Sutton owed a duty to all the schools within C.I.S.D. Mary Bice, an officer with the C.I.S.D. Police Department, testified that she considers herself to be an employee of C.I.S.D., but that she has a duty to all students, in the district. Harness explained that the supervising sergeants, like Sutton, were responsible for assisting officers " outside their assigned feeders and that there must have been a time when Sutton worked at one of the Caney Creek campuses. He testified that Sutton must have gone to Caney Creek High School because Sutton mentored Kimberly Grimes, the sergeant assigned to the Ca-ney Creek feeder. According to Harness, Sutton sometimes had to cover for Grimes. Harness and Bice testified that Sutton also supervised various school programs made available to students in the district, including G.T. who joined these programs. Bice testified that during a trip for one of the programs, G.T. stayed in Sutton’s hotel room.
On appeal, the State contends that the evidence supports Sutton’s conviction because Sutton’s duties extended to Caney Creek, Sutton was involved in-student programs in which G.T. participated, Sutton was present at Caney Creek to pick up G.T. and to meet with Grimes or cover for Grimes, and Harness testified that Sutton must have worked at one of the Caney Creek campuses at some point. However, based on the statute’s plain language, section 21.12(a)(1) is limited to an employee’s sexual conduct with a student enrolled at the school where the employee works. See Tex. Penal Code Ann. § 21.12(a)(1); see also Morales, 212 S.W.3d at 499. The record demonstrates that Sutton was an employee of C.I.S.D. Police Department. It is undisputed that the CISD Police Department offices are not located at Caney Creek. Although the jury may draw reasonable conclusions and inferences from the evidence, the record does not contain legally sufficient evidence.to allow the jury to reasonably conclude that Sutton worked at Caney Creek High School.
*610Further, the Legislature added a class of school district employees who would be in violation of this statute regardless of whether or not they worked at the school where the student was enrolled. Tex. Penal Code Ann. § 21.12(a)(2). The State did not charge Sutton under this portion of the statute, because the Legislaure did not include police officers in this class. Accordingly, we conclude that the evidence is legally insufficient to support Sutton’s conviction for improper relationship between educator and student. See Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781; see also Hooper, 214 S.W.3d at 13. Because no other offense was charged, we need not determine whether another offense was proved. See Pokladnik v. State, 876 S.W.2d 525, 527 (Tex.App. — Dallas 1994, no pet.). We sustain issue one and need not address issue two. See Tex.R,App. P. 47.1. We reverse the trial court’s judgment and render a judgment of acquittal.
REVERSED AND RENDERED. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284329/ | LEANNE JOHNSON, Justice,
dissenting
The majority opinion concludes that “the record does not contain legally sufficient evidence to allow the jury to reasonably conclude that Sutton worked at Caney Creek High School ...,” and that the evidence is legally insufficient to support Sutton’s conviction. T must respectfully disagree.
Based on the record, I conclude that the evidence is legally sufficient to support Sutton’s conviction for engaging in an offense as described in section 21.12(a)(1) of the Penal Code. See Tex. Penal Code Ann. § 21.12(a)(1) (West Supp.2014). The jury could have drawn reasonable conclusions and inferences from the evidence to reasonably conclude beyond a reasonable doubt that Sutton’s work as a Sergeant with the Conroe Independent School District (C.I.S.D.) police department extended to Caney Creek High School, even though his physical office may have been located elsewhere in the district.
Sutton initially argues on appeal that section 21.12(a)(1) does not apply to him because he was not an “employee” of the school where the student was enrolled.1 The majority does not specifically address this argument presumably because it concludes the evidence is legally insufficient for the jury to reasonably conclude that Sutton worked at Caney Creek High School. Section 21.12(a)(1) prohibits an “employee of a public or private primary or secondary school” from engaging in sexual contact, sexual intercourse, or deviate sexual intercourse with a person enrolled in a school at which the employee works. Section 21.12(a)(1) does not define the word “employee.” The legislature expressly states that the statutory provision in question applies to an “employee of a public or private” school. Sutton concedes on appeal that he “was officially employed by CISD not by any particular school,” and he agrees that all other public school employees in Texas would be employed by school districts and not individual schools. Because public school employees are employees of the particular school districts where they work, in order for subpart (a)(1) of the statute to mean what it says, i.e., that it applies to an employee of a public school, the statute must also necessarily include employees of public school districts.
Undefined terms in a statute are typically given their ordinary meaning, unless a *611different definition is apparent from the term’s use in the context of the statute. See Tex. Gov’t Code Ann. § 311.011 (West 2013); In re Shmv, 204 S.W.3d 9, 16 (Tex.App.—Texarkana 2006, pet. ref d). Jurors may “ ‘freely read [undefined] statutory language to have any meaning which is acceptable in common parlance.’ ” Kirsch v. State, 357 S.W.3d 645, 650 (Tex.Crim.App.2012) (alteration in original) (quoting Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App.1995)). While we apply the “plain language” of a statute, we must examine the context within which the words are used. When construing a statute, our primary objective is to ascertain and give effect to the legislature’s intent. Tex. Gov’t Code Ann. § 312.005 (West 2013). We may consider how a particular interpretation would lead to consequences that the legislature in the context in question could not possibly have intended. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).
It is apparent from the term “employee” 'as used in the context of the statute in question, that the legislature intended section 21.12(a)(1) to govern public school employees. To read the word “employee” as requiring the State to prove that the “employee” was officially employed by a school, rather than the school district where the employee works, would be directly contrary to the inclusion of “public schools” within subpart (a)(1), and it would mean that subpart (a)(1) would never apply to any teachers, educators, or other employees who work in any of the hundreds of public schools and school districts across the State of Texas, because they are officially employed by the school districts rather than the schools where they work. Therefore, I conclude that section 21.12(a)(1) applies to Sutton, a public school employee who was officially employed by the school district. See Tex. Penal Code Ann. § 21.12(a)(1); see generally Ex parte Guerrero, No. 05-06-01316-CR, 2006 WL 3718339, at *3, 2006 Tex. App. LEXIS 10780, at *8 (Tex.App.—Dallas Dec. 19, 2006, pet. ref'd) (not designated for publication) (Section 21.12 is not impermissibly vague for failing to define “employee” or “student” and the words are given their plain, ordinary meaning).
Sutton also argues that the evidence is legally insufficient for the jury to reasonably conclude that he worked at Caney Creek High School. When assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine based on that evidence and reasonable inferences therefrom, whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). We must give deference to the jury’s responsibility to fairly resolve conflicting testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.
It is undisputed on appeal that at the time of the offenses in question that Sutton was a Sergeant with the C.I.S.D. police department. According to the Chief of the C.I.S.D. police department, Sergeants in the C.I.S.D.’s police department work on a district-wide basis at the schools within the district. Sutton worked with G.T.’s mother at the C.I.S.D. police department, and Sutton was a like a “mentor” to G.T. In August of 2012, when G.T. was seventeen and enrolled as a student at Caney Creek High School, Sutton contacted G.T. on a *612mobile phone messaging service.2 At first, G.T. did not know the person that had initiated the contact was Sutton, but Sut-' ton could see a picture of G.T. that G.T. had posted on the mobile messaging site. Through the use of “the guessing game,” G.T. confirmed that the person who contacted G.T. was Sutton, and later that same month Sutton and G.T. began to meet for sexual encounters.
Q. [State’s Counsel]: Okay. And how would this work? I mean, what would he — how would you get together?
A. [G.T.]: I would ask my mom if Chris could take me home because — I mean, he just happened to be around the area and she would just say, yeah. You know ...
Q. Okay.
A. He could take me home.
Q. Take you home from school?
A. From school. G.T. testified that Sutton picked G.T. up from school while Sutton was using a C.I.S.D. vehicle and while Sutton was in uniform, that Sutton drove G.T. home, and that Sutton had sexual contact with G.T.3
The jury could have reasonably concluded from the evidence that Sutton, as a Sergeant with the C.I.S.D. police department, held a position of authority over students in the School District, including students at Caney Creek High School. Sutton was personally involved with two district-wide C.I.S.D. extracurricular programs and he worked with G.T. and other students in those programs. Sutton was the coordinator-in-charge of Kid Chat, a crime stoppers program in which Sutton worked with G.T. and other students from across the district to provide rewards for tips provided by students regarding criminal activity on school campuses:
Q. [State’s Counsel]: ... Can you tell us a little bit about what Kid Chat is?
A. [G.T.]: Yes. It is an organization where kids in the school district meet and we get these — I guess, what they’re called is bids. ' And where — I guess, Chris [Sutton] came to us with these bids. And it’s usually kids — anonymous kids calling in about, you know, either drugs they’ve seen in school and drugs being sold in school or other things that are happening in school that can be, I guess, rewarded with money because it will help the police department find these people and stop whatever is happening. I guess, the drugs or you know whatever — whatever other ■ illegal acts are happening.
Q. So, it’s kind of a tip line?
A. Yes.
Q. Student [sic] would come with information?
A. Yes.
Q. And who was in charge of Kid Chat? Who ran it?
A. Chris [Sutton].
Q. All right. So, would students from Caney Creek be involved with that?
A. Yes. Students from all around the school district.
Sutton was also involved with the Junior Leadership Program comprised of high school students identified as “Junior Leaders.” While G.T. was enrolled at Caney *613Creek High School, G.T. was a participant in both programs.
G.T.’s mother learned about Sutton’s relationship with G.T. from G.T.’s boyfriend, who had discovered old messages from Sutton on G.T.’s cell phone. Exhibits depicting certain cell phone records and several text messages were introduced into evidence without any objection from Sutton. According to a text message dated February 14, 2013, G.T.’s boyfriend sent G.T.’s mother a text stating that G.T. “had an affair with Chris Sutton during [G.T.’s] High[ ]School years. And again on February 8th. Check [G.T.’s] IPod when [G.T.] gets home. I’m done with [G.T.].” A series of text messages followed, and on February 15, 2013, G.T.’s boyfriend sent another message to G.T’s mother stating that Sutton was “at Caney Creek” when the boyfriend dropped G.T. off at school.
G.T.’s mother confronted Sutton about the allegations. Sutton admitted to G.T.’s mother that Sutton had an “inappropriate-relationship” and that he was “sexually active” with G.T. G.T.’s mother met with Sutton and with Sutton’s wife to discuss the matter further. G.T.’s mother testified that she believed the- relationship between Sutton and G.T. was against the law because at the time G.T. was still a student and Sutton was an employee of C.I.S.D. Sutton resigned from the C.I.S.D. police department. Chief Harness, the Chief over the C.I.S.D. police department, testified that when Sutton resigned from the police department, Sutton expressed that his primary concerns were for his family and “staying out of prison.”
Harness further explained to the jury that the C.I.S.D. police patrolled and responded to calls across the entire school district. Harness testified that Sergeants had “overlapping responsibilities,” and the Sergeants were always “on-call.” Harness described the C.I.S.D. police department as a “24/7” operation; the officers work during school hours, as well as during nights and weekends, across the entire district.
Q. [State’s counsel]: And they would be expected to respond to the entire district?
A. [Harness]: Yes, ma’am.
Q. So, do your sergeants have the duty only to their feeder zone?
A. No, ma’am.
Q. Okay. Do your sergeants have a duty to all of the schools in the Conroe Independent School District?
A. Yes, ma’am.
Although on paper Sutton was assigned to the Woodlands Feeder Zone and he was not assigned directly to Caney Creek High School, the Chief stated specifically that he knew Sutton’s work included coverage at Caney Creek High School.
Q. [State’s Attorney]: Did the defendant ever go to Caney Creek High School?
A. [Chief Harness]: Yes, I know he did.
Q. Okay. And how do you know that?
A. There’s assignments to Caney Creek High School. The sergeant that was assigned there, he mentored—
Q. And who was the—
A. It was Sergeant Grimes.
Q. Okay. And can you say her full name?
A. Kimberly Grimes.
Q. And the defendant mentored Kimberly Grimes?
A. Yes.
Q. And—
A. All the sergeants would be expected to go assist another sergeant.
*614Q. Okay. Now, I want to back up. Sergeant Kimberly Grimes[,] she was the sergeant that was in charge of what feeder?
A. At that particular time, Caney Creek.
Q. Okay. And the Caney Creek feeder would include Caney Creek High School?
A. Yes, ma’am.
Q. Now, to your knowledge, did the defendant and Sergeant Grimes have a personal relationship?
A. Yes.
Q. Okay. And did the defendant have to cover for Sergeant Kim Grimes on more than one occasion?
A. Yes.
In a jury trial, the jury is the exclusive authority on the credibility of the witnesses and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981). We give deference to the jury’s responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. A rational trier of fact could have drawn reasonable inferences from the evidence that Sutton worked on a district-wide basis, and that from time to time, he also worked at Caney Creek High School. Considering all of the evidence in a light most favorable'to the jury verdict, a rational jury applying the common, ordinary meaning of the undefined terms in section 21.12(a)(1) could conclude, beyond a reasonable doubt, that Sutton was guilty of engaging in an improper relationship as charged in the indictment. Accordingly, I would conclude that the evidence is legally sufficient to support Sutton’s conviction.
In Sutton’s appellate brief, Sutton also challenges the constitutionality of section 21.12(a)(1), arguing that the statute is unconstitutionally vague as applied to him because he “was not put on notice that his actions were proscribed by this section of the penal code.” Because I conclude the evidence is legally sufficient to support the jury’s verdict of guilt, I also briefly address Sutton’s constitutional challenge.
As a general rule, constitutional challenges to a statute are forfeited by the failure to object at trial. Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App,2004); Curry v. State, 910 S.W.2d 490, 496 n. 2 (Tex.Crim.App.1996). Issues of procedural default, such as preservation of error, are systemic and must be reviewed by the courts of appeals, even when the issue is not raised by the parties. Bekendam v. State, 441 S.W.3d 295, 299 (Tex.Crim.App.2014). To preserve error for review, Sutton had to challenge the constitutionality of section 21.12(a)(1) as applied to him in the trial court. See Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009) (facial challenge); Curry, 910 S.W.2d at 496 (as-applied challenge); ef,, Smith v. State, 463 S.W.3d 890 (Tex.Crim.App.2015) (wherein the plurality allowed the appellant to challenge for the first time on appeal in a petition for discretionary review the facial constitutionality of his conviction under Section 33.021(b) because that section of the statute has been declared facially unconstitutional.). No court has declared section 21.12(a)(1) facially unconstitutional, and the record shows that Sutton did not make an “as applied” constitutional challenge to the statute in the trial court. Accordingly, Sutton did not preserve his constitutional challenge for our review, and therefore I would also *615overrule his second issue.4
Accordingly, I would affirm.
. Sutton does not dispute the fact that he had a sexual relationship with G.T. while G.T. was enrolled as a student at Caney Creek High School, a school that is within the jurisdiction of theC.I.S.D.
. G.T. described the mobile phone messaging service as an application for cell phones for people “who are looking either to date someone, hook up with someone or you know be friends.”
. G.T. testified about the sexual encounters with Sutton. G.T. also recalled an occasion when G.T. and Sutton went on a "school trip” to San Antonio for Kid Chat, and G.T. stayed in a hotel room with Sutton. G.T. denied that any sexual activity occurred during that trip.
. With respect to Sutton's statement that he "could not be put on notice that his conduct was unlawful,” it is not a defense to prosecution that the actor was ignorant of the provisions of any law after it has taken effect. Tex. Pen.Code § 8.03(a) (West 2011). Notably, uncontested evidence presented at trial established that Sutton received a copy of the C.I.S.D. employee handbook. The custodian for the school district testified that the handbook contained a written rule that prohibited all school district employees from having any kind of dating or sexual relationship with any students. Therefore, presumably Sutton knew his relationship was expressly prohibited by his employer. Moreover, when Sutton was first confronted about the affair, Sutton admitted to G.T.’s mother that he had an "inappropriate relationship” with G.T., and he then stated to Chief Harness that his primary concerns were for his family and "staying out of prison.” Such statements could by implication indicate that Sutton knew his relationship was also in violation of the criminal law. Finally, simply because section 21.12(a)(1) fails to define the word “employee” does not render section 21.12(a)(1) unconstitutionally vague or otherwise fail to put Sutton on notice that his conduct was unlawful. Bynum v. State, 767 S.W.2d 769, 774 (Tex.Crim.App.1989); Guerrero, 2006 WL 3718339, at *3, 2006 Tex.App. LEXIS 3718339, at *8. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284330/ | OPINION ON REHEARING1
Harvey Brown, Justice
This health care liability case arises from the death of a UT Physicians (UTP) patient, Shana Lenoir, and her two unborn children hours after she received prenatal care at the UTP clinic. Suit was filed by Lenoir’s mother, Shirley Lenoir, and the father of her only living child, Christopher McKnight, in their individual and representative capacities (collectively referred to as “the Lenoirs”). The Lenoirs sued the resident-physician and nurse who treated Shana, the attending physician, and the clinic.
Both doctors moved for dismissal of the claims against them, arguing that they were employees of governmental units, acting within the scope of that employment and, as a result, the election-of-remedies provision of the Texas Tort Claims Act mandated their dismissal. The trial court granted then- motions and dismissed both physicians from the suit.
In three issues, the Lenoirs contend that neither physician was entitled to dismissal and challenge the affidavits submitted on the physicians’ behalf as conclusory. We overrule the challenge to the affidavits, affirm the trial court’s judgment dismissing Dr. Huang, reverse the portion of the judgment dismissing Dr. Gonski, and remand for further proceedings against Dr. Gonski.
Background
Shana Lenoir received prenatal care at the UTP clinic. Because the physician scheduled to see her was unavailable, she was seen by Dr. Gonski — a second-year medical resident. Shana told Dr. Gonski about complications with an earlier twin pregnancy that resulted in preterm delivery, the death of one twin, and lengthy hospitalization of the other. At the time Shana saw Dr. Gonski, she was between 32 and 35 weeks pregnant with twins. Dr. Gonski prescribed weekly injections of progesterone. A nurse gave Shana her first progesterone injection during the office visit. Several hours later, Shana began having difficulty breathing. Emergency medical assistance was called, but Shana and her unborn children died before they arrived at the hospital.
The Lenoirs sued the treating physician (Dr. Gonski), the attending physician overseeing Dr. Gonski (Dr. Huang), the nurse who injected the progesterone medication, and the UTP clinic.
Drs. Gonski and Huang moved for dismissal under Tort Claims Act section 101.106®, arguing that the election-of-remedies provision of the Act mandated dismissal of the health care liability claims asserted against them. See Tex. Civ. PRac. & Rem.Code Ann. § 101.106® (West 2011). Dr. Gonski alleged that she was an employee of the University of Texas System Medical Foundation, a nonprofit corporation that appoints medical residents to the *673UT Health Science Center residency program, ' that her conduct was within the general scope of her employment at the Foundation, and that the Lenoirs’ claim against her could have been brought against the “governmental unit (the Foundation)” .that employed her. Relying on the same provision, Dr. Huang asserted that he was an employee of the University of Texas Health Science Center at Houston and was overseeing the work of medical residents, including Dr. Gonski, at the UTP clinic as part of that employment. All parties presented affidavits and other evidence to the trial court. Following a hearing on the motions, both physicians were dismissed from the suit.
In this interlocutory appeal,2 the Lenoirs argue that the trial court erred by dismissing the claims against the physicians because they did not establish that they met the statutory definition of governmental unit employees.
Standard of Review
Generally, we review a trial court’s order on a motion to dismiss under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). However, the proper standard of review is not necessarily determined by the caption of the motion to which the order relates, rather it is determined by the substance of the issue to be reviewed. Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App. — Houston [14th Dist.] 2008, pet. denied).
Here, the motions to dismiss raised the issue of immunity. See id.; see also Franka v. Velasquez, 332 S.W.3d 367, 371 n. 9 (Tex.2011) (stating that Section 101.106 confers immumty in some instane-es to employees of governmental units). If immunity applies, the trial court lacks subject-matter jurisdiction over the case. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004); see also Univ. of. Tex. Health. Sci. Ctr. at San Antonio v. Webber-Eells, 327,S.W.3d 233, 240 (Tex.App.—San Antonio 2010, no pet.). Subject-matter jurisdiction is a question of law which we review de novo. Miranda, 133 S.W.3d at 226. Likewise, matters of statutory construction are reviewed under a de novo standard. .City of San Antonio v. City of Boeme, 111 S.W.3d 22, 25 (Tex.2003); see Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009).
Sovereign Immunity and Section 101.106 Dismissal
By common law, the State is immune from suit unless it consents by waiving immunity. Tex. Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex.2013); Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). The State may waive immunity to the degree it sees fit, taking into account public policy and financial considerations. See Tex. Natural Res. Conservation Comm’n v. IT Davy, 74 S.W.3d 849, 854 (Tex.2002). A waiver of sovereign immunity is construed narrowly. Tex. Gov’t Code Ann. § 311.034 (West 2013); Ngakoue, 408 S.W.3d at 353.
The Tort Claims Act (TCA) addresses governmental immunity. Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.001-.109 (West 2011). Through the TCA, Texas has chosen to establish a limited waiver of immunity in suits against the State for deaths proximately caused by a governmental employee’s negligence while acting within the scope of employment. if the death was *674caused by a condition or use of tangible personal property and the governmental unit would, were it a private person, be liable to the claimant under Texas law. Id. § 101.021.
The TCA applies both to the State and to governmental units of the State. See id. The term “governmental unit” is defined to include the State of Texas, all of its various agencies, political subdivisions, emergency service organizations, and “any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.” Id. § 101.001(3).
TCA Section 101.106, titled Election of Remedies, provides a mechanism for dismissal of governmental employees in certain circumstances. It provides:
(a) The filing of a suit under this chapter against a 'governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
Tex. Civ. Prag. & Rem.Code Ann. § 101.106 (emphasis added).
The Texas Supreme Court has held that any tort action brought against a governmental employee acting in the general scope of her employment is one that “could have been brought under this chapter against the governmental unit,” even if the particular tort alleged is one for which immunity has not been waived. Franka, 332 S.W.3d at 378, 381 & n. 66; see also Williams v. Nealon, 394 S.W.3d 9,13 (Tex.App. —Houston [1st Dist.] 2012, pet. denied) (noting that Franka removed from defendant-employee burden to show that suit could have been successfully maintained against government). As a result, to obtain summary dismissal under TCA section 101.106(f) in a tort case, the individual defendant has the burden to establish — as a matter of law — two things: (1) she is an employee of a governmental unit (2) working in the general scope of her employment. See Tex. Civ. PRAC. & Rem. Code Ann. § 101.106(f); Franka, 332 S.W.3d at 375; Williams, 394 S.W.3d at 13.
The election-of-remedies provision forces plaintiffs to decide “at the outset” “whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable.” Mission Consol. Indep. Sch. Dist. v. Garda, 253 S.W.3d 653, 657 (Tex.2008); accord Molina v. Alvarado, 463 S.W.3d 867, 871 (Tex.2015); Kamel v. Sotelo, No. 01-07-00366-CV, 2009 WL 793742, at *2 (Tex.App.—Hous*675ton [1st Dist.] Mar. 26, 2009, no pet.) (mem.op.). If the plaintiff sues the governmental unit, she is forever barred from suing the governmental unit’s employees. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(a); Molina, 463 S.W.3d at 869-70. If the plaintiff elects, instead, to sue the governmental employee and maintains that the employee acted independently (which could lead to individual liability unlimited by the cap imposed by TCA section 101.023), the plaintiff is forever barred from suing the governmental employer unless the governmental unit consents. Id. § 101.106(b); Garda, 258 S.W.3d at 659; see Ngakoue, 408 S.W.3d at 357.
Because it is an irrevocable decision, “a plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually.” Garcia, 253 S.W.3d at 657. This law “strongly favors dismissal of governmental employees.” Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex.App.—Houston [1st Dist.] 2011, no pet.); see Ngakoue, 408 S.W.3d at 355. But claims against governmental employees may be pursued if they do not fall within the election of remedies categories created by section 101.106.3
TCA section 101.001(2) defines an “employee” of a governmental unit as
a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
Tex. CIV. Peac. & Rem.Code Ann. § 101.001(2) (emphasis added). The burden is on the individual defendant to show that she was in the paid service of a governmental unit and that the governmental unit had the legal right to control the details of her work. See Miranda, 133 S.W.3d at 227-28 (“If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder....”). The court must “take as true all evidence favorable to the nonmovant” and “indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id. “[T]his standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id.
Dr. Gonski
Dr. Gonski alleges in her plea to the jurisdiction that she is an employee of a governmental unit, which she identified as the Foundation. Thus, it was her burden to establish, as a matter of law, that she was paid by the Foundation and that it had the legal right to control her work. See Miranda, 133 S.W.3d at 227-28. To the extent a fact issue exists on either point, dismissal was in error. See id.
Because we conclude that Dr. Gonski has,, not established that the Foundation had the legal right to control her work, we conclude that the trial court erred by *676granting her motion to dismiss. Based on this holding, we do not address whether the Foundation is properly considered a governmental unit. To explain our holding, we turn to Dr. Gonski’s evidence that she was in the paid service of and under the legal right of control of the Foundation.
A. Paid service
It is undisputed that Dr. Gonski received her pay from the Foundation; therefore,- she has.met this first element.
B. Right of control
The second element concerns the legal right of control over Dr. Gonski’s work. See Tex. Civ. PRAc. & Rem.Code Ann. § 101.001(2); Murk v. Seheele, 120 S.W.3d 865, 867 (Tex.2003).
The right of control in the context of a medical professional has been repeatedly addressed. E.g., Murk, 120 S.W.3d at 865 (holding that UT Health Science Center faculty-physician was properly dismissed because Health Science Center had right to control his work); Dalehite v. Nauta, 79 S.W.3d 243 (Tex.App.—Houston [14th Dist.] 2002, pet. denied) (concluding that doctor who moved for dismissal was employee of UTMB, not independent contractor, even though UTMB did not control details of diagnoses or treatments he performed); Smith v. Altman, 26 S.W.3d 705, 709 (Tex.App.—Waco 2000, pet. dism’d w.o.j.) (affirming denial of summary judgment because of fact issue regarding hospital’s right of control over physician). When the medical professional is a resident, the determination of which entity controls her work can be more complicated because residents are oftéii hired by one institution to work at a second location under the supervision of faculty-physicians employed by a third entity. See, e.g., Murk, 120 S.W.3d at 867 (holding that Health Science Center resident was not employee of Health Science Center because resident was paid by another entity, Bexar County Health District, which operated hospital where resident and faculty-physician-were both working).
As evidence that the Foundation had the legal right to control her work, Dr. Gonski relies on the affidavit of Dr. Brent King (President of the Board of Directors of the Foundation), the Foundation’s UT Graduate Medical Education Resident Handbook, and the Foundation’s articles of incorporation and bylaws.
1. King affidavit
Dr. King averred that the Foundation appoints residents to the Health Science Center residency program and that, as “a term and condition of their appointment, residents participating in the ... residency program are obligated to abide by the policies and procedures set forth in the Graduate Medical Education Resident Handbook.” Dr. Gonski argues that the requirement that she follow the Foundation’s Handbook establishes that the Foundation had the legal right to control the details of her work.
2. Handbook
The Foundation’s Handbook describes the its role in the Health Science Center’s residency program as administrative:
The Foundation performs administrative and education functions for the benefit of both the Resident Physician and the Program. These functions include, but are not limited to issuance of paychecks and other personnel services, maintenance of records, procurement and administration of benefits provided by the Foundation, and provision of mechanisms for effective coordination of the Programs among the hospitals.
In contrast, the Handbook describes the Health Science Center’s role as directorial *677and managerial. The Handbook lists the resident’s responsibilities, termed “conditions of appointment.” These include: “accept[ing] the duties, responsibilities, and rotations assigned by the [Center’s] Program Director”; meeting the Program’s standards for learning and advancement; abiding by the Center’s Handbook of Operating Procedures and the policies of the medical school and hospitals to which the resident is assigned; serving at the hospitals to which the Center’s Program Director assigns each resident; and participating on the hospital and departmental committees where assigned.
The Handbook states that the residents’ provision of medical care must be supervised by residency program faculty: “All patient care must be supervised by qualified faculty.” The requirement that faculty supervise residents is repeatedly emphasized: “It is essential that' the program provide a closely supervised experience. ...” This level of resident supervision “must” be provided because the attending physician “is ultimately responsible for that patient’s care.” The Handbook further states: “Faculty members functioning as supervising physicians should delegate portions of care to residents, based on the needs of the patient and the skills of the resident.” Relatedly, “[e]ach resident must know the limits of his/her scope of authority, and the circumstances under which he/she is permitted to act with conditional independence” from the “supervision faculty members.” Thus, the Health Science Center teaching staff determine, along with the Center’s Program Director, the level of responsibility assigned to each resident.
The Handbook specifies that the Center’s Program Director will establish the mechanism for evaluating residents and will determine, along with the Departmental Chairperson, whether a resident will advance within the program. Resident grievances are resolved by the Program Director and the Department Chairperson. The Foundation’s Policy Review Committee’s involvement is limited to ensuring that the Center’s decision-makers have provided the resident with the requisite notice of unsatisfactory performance and guidance, i.e., a procedural instead of substantive role. Thus, once appointed by the Foundation, reappointment and advancement decisions are made “at the discretion of the Medical School Department Chair and the Program Director.”
In other words, the Foundation’s Handbook instructs the resident to receive training from and follow the directions of the Health Science Center. The Foundation’s administrative role in connection with resident’s provision of medical care, under the supervision of Center faculty-physicians, does not support the conclusion that the Foundation has the legal right to control the details of the resident’s work. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607 (Tex.2002) (“merely exercising or retaining.a general right to recommend” safety measures does not create a right of control); Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 702 (Tex.App.—Houston [14th Dist.] 2007, pet. denied) (stating that requiring independent contractor to abide by premises owner’s safety rules and regulations and retaining authority to preclude work from beginning or stop work once it has begun does not establish actual control);' Bell v. VPSI, Inc., 205 S.W.3d 706, 714 (Tex.App.—Fort Worth 2006, no pet.) (stating that “requirements that a worker comply with applicable laws, regulations and safety requirements that relate to performance of the contract likewise do not constitute evidence that the employer controls the details of how the worker performs his job.”).
*678Likewise, retaining the right to terminate Dr. Gonski’s residency does not establish a legal right to control the details of her medical work. See Bell, 205 S.W.3d at 714.
3. Foundation’s corporate documents
The Foundation’s bylaws also do not demonstrate a right to control. Paragraph Four of the bylaws provides that “[a]ll physicians employed by the [Foundation] for the purpose of serving as a member of the staff of any hospital or hospitals that are neither owned nor operated by the [Foundation] shall, in the performance of their duties as members of the staff of such hospital or hospitals, be subject to the direction and control of the hospital or hospitals upon whose staff he serves.” Further, “[n]o physician employed by the [Foundation] shall serve upon the staff of a hospital not owned or operated by the [Foundation] unless and until the governing body of such hospital shall agree in writing to assume full responsibility for the direction and control of the acts of such physician while serving upon the staff of the hospital and shall further agree in writing to hold the [Foundation] harmless from all liability which may arise out of acts performed by such physician while engaged in the scope and course of his duties as a member of the staff of such hospital.”
The bylaws also provide that “[n]o director, officer, or employee of the [Foundation] shall be authorized to act on behalf of the [Foundation] to direct or control the acts of any physician employed by the [Foundation] while said physician is serving as a member of the staff of any hospital or hospitals not owned or operated by the [Foundation]. Paragraph Five continues, “Physicians employed by the [Foundation] shall have no authority to engage in the practice of medicine for or on behalf of the [Foundation] except at a clinic, hospital, or other facility owned or operated by the [Foundation] .... ”
Thus, a medical resident, such as Dr. Gonski, who is selected and paid by the Foundation but is not working at a Foundation-owned hospital, is subject to the “direction and control” of the hospital where she works. Consistent with that division of control and potential for subsequent liability, the hospital where the resident works has to agree, in writing, to control the resident’s work and indemnify the Foundation from any resulting liability. Another provision in the Foundation’s bylaws states that the Foundation will not indemnify residents with regard to the negligent practice of medicine: “The [Foundation] shall not reimburse or indemnify any ... employee for any expenses or liability which may be incurred by such ... employee while engaged in the practice of medicine.”
Through its bylaws, the Foundation has disavowed any right to control the work of a resident it appoints to the Health Science Center residency program who is working at a non-Foundation owned facility; the Foundation also has disavowed any liability for medical malpractice that might result from that work.4
Accordingly, we conclude that Dr. Gon-ski’s evidence does not establish, as a matter of law, that the Foundation had the legal right to control her work at UTP clinic, where she was treating Shana. Dr. Gonski makes several arguments for a con*679trary conclusion.. We consider each in turn.
C.Medical discretion is not analogous
Dr. Gonski analogizes the limitations on the Foundation’s ability to control her work to the concept of medical discretion discussed by the Texas Supreme Court in Murk v. Scheele, 120 S.W.3d 865 (Tex.2003). In that case, the plaintiffs sued a physician employed by the Health Science Center. Id. at 867. The plaintiffs agreed that the physician met the first element to qualify as an employee of the Health Science Center — i.e., he was paid by it — but they contended that he failed to meet the second requirement of control by the governmental unit because a physician “exercisers] ... independent professional judgment” so that the physician’s employer cannot be said to control the details of her work. Id.
The Court rejected the argument, holding that the “exercise [of] some independent medical judgment” does not take the physician out of the definition of an employee if the physician’s “practice is controlled by [the] governmental unit.” Id. According to the Court, the physician’s medical decisions “were subject to regimens prescribed by” the Health Science Center, including its requirement that the physician participate in daily rounds, be supervised and reviewed by other Health Science Center physicians, and have his decisions vetoed by more senior Health Science Center physicians. Id. “While the nature of his practice as a physician required him to make many medical decisions using his own professional judgment, the necessity for that judgment did not, by itself, vitiate [the Health Science Center]’s right to control the details of his practice.” Id. (citing St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 (Tex.2003), and Dalehite, 79 S.W.3d at 245-16).
We do not view Murk to support Dr. Gonski’s arguments. Rather, to the extent that case is applicable, it better supports the conclusion that a doctor working under the guidance of Health Science Center physicians is subject to the Health Science Center’s control.
D. Clinical setting is not dispositive
Next, Dr. Gonski argues that that the provision in the bylaws disavowing any right to control simply does not apply because “the care at issue did not occur in any hospital, but at a Clinic.” The distinction is unconvincing. Paragraphs four and five, when read together, require that a resident working at a location not owned by the Foundation be under the control of the entity operating that location. We disagree that this limitation applies only to hospitals and not clinics or other medical facilities. Further, the Program Director for the Health Science Center Residency Program to which Dr. Gonski was appointed explained that the UTP clinic is an “internal site” of the Health Science Center, which means that it was not owned by the Foundation.
E. In distinguishing actual control from legal control, Dr. Gonski still offers no evidence of right of control
Finally, Dr. Gonksi argues that actual control is a distinct legal concept from legal right of control and cases analyzing actual control are inapposite. On this basis, she seeks to distinguish St. Joseph Hosp. v. Wolff 94 S.W.3d 513 (Tex.2003), which involved a similar disavowment of the right to control a resident’s work. There, St. Joseph Hospital, which ran the resident’s training program in Houston, entered into a contractual relationship with CTMF to allow St. Joseph residents additional medical experience at hospitals out*680side of Houston. See id. at 520-21. The contract stated that St. Joseph did not have the right to control the work of its residents while assigned to CTMF for training. Id. at 522-23. The Texas Supreme Court held that that provision “makes it clear that St. Joseph in Houston had no direct control over ‘the details of the medical tasks performed by residents’ ” assigned to CTMF and treating patients at Brackenridge Hospital in Austin. Id. at 543. Thus, the Court concluded that St. Joseph Hospital was not vicariously liable for its resident’s actions while at Brackenridge Hospital. See id.
First, we note that the Foundation’s connection to Dr. Gonski is even more removed than St. Joseph’s connection to its resident. St. Joseph paid the resident, was the entity that operated the residency program through which he was taught, and managed his instruction while at its Houston hospital. It was only when the resident was assigned to Brackenridge Hospital in Austin that St. Joseph was not controlling his work.
Here, by contrast, the Foundation played only an administrative role, supporting another entity’s residency program. The evidence does not suggest that the Foundation played any role in training or supervising the residents; instead, that responsibility belonged to the Health Science Center and its faculty-physicians. Thus, the Supreme Court’s analysis in Wolff presumed that St. Joseph had a legal right of control (when the resident was working at its Houston hospital) that simply has not been established in this case with regard to Dr. Gonski and her alleged employer, the Foundation. See id. at 542-43.
Second, to determine whether an individual defendant meets the statutory definition of an employee under the TCA for dismissal, the TCA relies on the same “supreme test” of right of control as discussed in Wolff and other contexts. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.001(2) (defining “employee” to exclude any person “who performs tasks the details of which the [employer] governmental unit does not have the legal right to control”); Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex.1964) (stating that “right of control” is “supreme test” to determine employment status); see also Olivares v. Brown & Gay Eng’g, Inc., 401 S.W.3d 363, 368-78 (Tex.App.—Houston [14th Dist.] 2013) (reviewing decision on plea to jurisdiction of alleged governmental unit employee under “right of control” test), affd, 461 S.W.3d 117 (Tex.2015); Altman, 26 S.W.3d at 709 (analyzing sovereign immunity claim under “right to control” standard).
The record is devoid of any evidence that the Foundation had the legal right to control Dr. Gonski’s work. To the extent the Foundation placed requirements on the residents through its Handbook, the record also supports the conclusion that the Foundation required them to abide by the rules of the Health Science Center, follow directions from Health Science Center staff, and submit to their evaluations and advancement decisions.
The Foundation’s Handbook and corporate documents, as well as the affidavit of its board president, establish that the Foundation plays an administrative role in support of the Health Science Center’s residency program by appointing residents, issuing the residents’ paychecks, and coordinating efforts for the Health Science Center’s provision of training. This does not conclusively demonstrate that the Foundation had a legal right to control the details of Dr. Gonski’s work, even if we were to accept Dr. Gonski’s effort to distinguish legal right of control *681from the Health Science Center’s actual’ control.
F. Foundation and Health Science Center are separate entities
Dr. Gonski attempts to avoid a negative result from being paid by the Foundation but under the right of control of the Health Science Center by noting the two entities’ relatedness. She argues that the Foundation “is not wholly unrelated” from the Health Science .Center and, thus, being paid by one and under the control of the other should not take her out of the definition of a governmental unit employee. For support, Dr. Gonski refers us to this Court’s earlier decision, Kamel v. Sotelo, No. 01-07-00366-CV, 2009 WL 793742 (Tex.App. — Houston [1st Dist.] Mar. 26, 2009, no pet.) (mem.op.),
Kamel does not apply. There, the resident .took the opposite position and claimed to be an employee of the Health Science. Center, even though her paychecks were paid from a Foundation account. Id. at *3. This Court noted that there was no evidence to suggest that the Foundation was a separate entity from the Health Science Center, such that the resident would fail to meet the statutory requirement that the governmental unit that employed her both paid her and controlled her work. Id. at *5 & n. 8. Here, there is evidence in the record that the two entities are distinct. The record contains the Foundation’s articles of incorporation and bylaws,, which establish its separateness from the Health Science Center.
Moreover, Dr. Gonski took the position, in her underlying motion to dismiss, that she was supplying the evidence that was lacking in Kamel for the express purpose of establishing that she was an employee of the Foundation, not the Health Science Center as the Fame ¿.resident had asserted. Dr. Gonski explained:
This Motion carefully establishes the identity of the Foundation as Dr. Gon-ski’s true employer due, in part, to vague, past opinions addressing the em- ■ ployment status of [Health Science Center] resident physicians, which have not included an explanation of the relationship between [the Health Science Center], its residents, and the Foundation, which is Undertaken here. See e.g., Ka-mel v. Sotelo —
G. Conclusion
Dr. Gonski has not shown, as a matter of law, that the Foundation had the legal right to control her work. Without establishing that a governmental unit has the legal right to control her work, a movant cannot establish that she ia the employee of that entity to obtain dismissal under the election-of-remedies provision.5 See Tex Civ. Prac. & Rem.Code § 101.001(2) (defining “employee” eligible to take, advantage of Tort Claims Act to exclude any person “who performs tasks the details of which the [employer] governmental unit does not have the legal right to control”); id. § 101.106(f) (mandating dismissal of “employee” of governmental unit acting within general scope of employment if suit could have been brought under TCA against governmental unit);, see Adkins v. Furey, 2 S.W.3d 346, 348 (Tex.App.—San Antonio 1999, no pet.) (holding that medical resident failed to conclusively establish that he was employee of Health Science Center that ran his residency program instead of hospital where he was working, and stat*682ing that employment was issue for jury); cf. Harris Cnty. v. Dillard, 883 S.W.2d 166, 168 n. 3 (Tex.1994) (concluding that overly expansive reading of definition of “employee” would “reflect[ ] a view of governmental immunity not shared by the Legislature.”). Accordingly, we conclude that the trial court erred in granting Dr. Gonski’s motion to dismiss. We sustain the Lenoirs’ first issue.
Dr. Huang
Dr. Huang is a licensed physician who worked at the Health Science Center for nearly 20 years as an associate professor in the department of obstetrics, gynecology, and reproductive sciences. According to Dr. Huang, the Health Science Center employs physicians to provide two forms of professional medical services: (1) to educate and train medical students and residents and (2) to provide inpatient and outpatient medical care to patients. Dr. Huang averred that he was required to provide medical care to patients in assigned hospitals and out-patient clinics, including UTP clinic, and to supervise and train the Health Science Center’s residents in those locations. When Shana was treated at the UTP clinic by Dr. Gonski, Dr. Huang was the attending physician, charged with supervising the medical residents there that day.
The Lenoirs do not dispute that the Health Science Center is a governmental unit. Instead they argue that (1) Dr. Huang was not in the “paid service” of the Health Science Center, (2) he was an independent contractor as a matter of law because the medical practice at the UTP clinic was an “auxiliary enterprise” and, by statute, those who work for auxiliary enterprises are “contractors,” (3) the Health Science Center did not control the details of his work, and (4) his actions were ultra vires and, therefore, not within the scope of his employment.
A. Paid service
Dr. King, the Health Science Center Executive Vice Dean for Clinic Affairs, averred that, under Health Science Center policies, all physicians’ professional fees are required to be deposited into a trust account for the Health Science Center’s benefit. He explained that “[a]ll patient fees and other professional income generated by the [Health Science Center] faculty physician[s] are assigned to and become property of the [Health Science Center] to be held in the ... trust fund account ... to pay its faculty physicians’ salaries and fringe benefits, as well as for institutional development,” “to pay for research, equipment, development of new programs, and the endowment of chairs and professorships,” as well as “administrative expenses associated with patient billing and collections.” Thus, the fees generated by Dr. Huang’s professional work at the UTP clinic were placed in an account for the benefit of the Health Science Center, which used the funds for a variety of expenditures, only one of which was Dr. Huang’s and other physicians’ compensation. Dr. Huang confirmed in his affidavit that his compensation for “inpatient and out-patient professional medical services” was “solely received” from the Health Science Center.
The Lenoirs argue that Dr. Huang was not in the “paid service” of the Health Science Center because payment for his services were made by outside sources and deposited into a trust account. However, the only entity authorized to remove funds from the trust account was the Health Science Center and it was within the Health Science Center’s discretion where to expend those funds once withdrawn. Only a portion of the trust funds were *683used by the Health Science Center to compensate Dr. Huang. There is no evidence that Dr. Huang was paid by any source other than Health Science Center funds from the trust account. According, we conclude that Dr. Huang was in the paid service of the Health Science Center.
B. Employee versus auxiliary-enterprise independent contractor
Next, the Lenoirs argue that Dr. Huang was an independent contractor working for an auxiliary enterprise instead of an employee of the Health Science Center. For support, the Lenoirs point to Government Code section 2252.061, which defines “auxiliary enterprise” to mean “a business activity that is conducted at a state agency, provides a service to the agency, and is not paid for with appropriated money.” Tex. Gov’t Code Ann. § 2252.061(1) (West 2008). The Lenoirs contend that UTP clinic provided a service that was not paid with appropriated funds and, therefore, was an auxiliary enterprise. The auxiliary enterprise statute also provides that “an individual, association, corporation, or other business entity that operates an auxiliary enterprise or performs a service of the auxiliary enterprise” is a “contractor.” Id. § 2252.061(2). The Lenoirs contend that, under these two provisions, Dr. Huang is a “contractor” instead of an employee.
Under the Lenoirs’ analysis, the term “contractor” is synonymous with “independent contractor,” which would exclude Dr. Huang from the statutory definition of a governmental employee. We find nothing in the statute to support this approach. Instead, to address whether Dr. Huang is an “employee” as defined by the TCA, we must determine whether the governmental unit had the “legal right to control” his work. Tex. Civ. Pbac. & Rem.Code Ann. § 101.001(2) (defining employee); § 101.106(f) (mandating dismissal of governmental unit employee acting within general scope of employment if suit could have been brought against governmental unit under TCA). Accordingly, we focus our analysis on whether the Health Science Center had the legal right to control Dr. Huang’s work.
C. Legal right to control work
The Management Agreement between the Health Science Center and the UTP clinic provided that the Health Science Center “has requested [UTP] to assist [it] with certain functions to support the provision of health care by faculty physicians of [the Health Science Center].” The UTP clinic was contractually required to provide the Health Science Center with medical offices, furnishings, clinic equipment, and business and clinical supplies. The UTP clinic was required to supply “non-physician personnel reasonably necessary for [the Health Science Center]’s practice” at the medical offices. The agreement further provided that UTP “shall be responsible for all non-medical operations of [the Health Science Center]’s practices at the Offices,” including scheduling, maintaining patient records, marketing, billing, and collections. The Health Science Center, on the other hand, was required “at all times [to] be responsible for the quality of medical care practiced at the Offices.”
Dr. Huang had a written agreement with UTP. That agreement did not purport to be an employment agreement. Instead, it was a “participation agreement” through which Dr. Huang agreed to “participate in” the clinic’s “professional activities.” In turn, UTP agreed “to arrange for the delivery of health care services to patients ... by its participating physicians.... ” Cf. Farlow v. Hams Methodist Fort Worth Hosp., 284 S.W.3d 903, 915 (Tex.App.—Fort Worth 2009, pet. denied) (hold*684ing that agreement between doctor and hospital was not' employment agreement but, instead, addressed logistics necessary to provide hospital’s on-call coverage requirements).
The agreement also provided. that Dr. Huang would accept new patients unless the Health Science Center provides UTP written notice otherwise. If such notice were given by the Health Science Center, Dr. Huang would have been prohibited, under the terms of his agreement with UTP, from accepting any new patients. Thus, the agreement gave the Health Science Center control over whether Dr. Huang could see new patients at the UTP clinic.
According to Dr. Huang’s affidavit, the Health Science Center also controlled his work schedule at the clinic. He averred: “I was assigned to be at the [UTP] clinic during the afternoon [of Shana’s medical treatment] by the Department of Obstetrics, Gynecology, and Reproductive Sciences at [the Health Science Center].” He also averred that “providing professional medical services at the [UTP] clinic [on • that day] was a condition of my employment with [the Health Science Center] and was a part of my patient care and teaching responsibilities with [the Health Science Center].” -
There is no indication that a UTP clinic employee or manager supervised Dr. Huang’s clinic work. Neither is there evidence that his clinic participation was distinct from his obligation, as a Health Science Center physician, "to provide outpatient care for the community and training for the medical residents. In fact, the UTP participation agreement stated that Dr. Huang was required to retain his faculty status at the Health Science Center •to qualify for participation. If Dr. Huang left his Health Science Center faculty position, his participation at UTP would “be automatically terminated.”
Thus, the agreement between UTP and Dr. Huang is reasonably viewed as an agreement between UTP and a Health Science Center physician, not a physician who also happens to teach at the Health Science Center. The evidence supports the conclusion that it was the Health Science Center, and not UTP, that held the legal right to control Dr. Huang’s provision of medical care at the clinic.
D. Acting within scope of employment
-The Lenoirs’ final challenge to Dr. ■Huang’s assertion that he was an employee of the Health Science Center questions whether he was acting within the scope of his employment with the Health Science Center when he oversaw Dr. Gonski’s care of Shana.
“Scope of employment” is defined by the TCA as the performance “of a task lawfully assigned to an employee.” Tex. Civ. PRac. & Rem. Code Ann. § 101.001(5). An employee’s “scope of authority extends to job duties to which the official has been assigned, even if the official errs in completing the task.” Lopez v. Serna, 414 S.W.3d 890, 894 (Tex.App.—San Antonio 2013, no pet.); see Anderson, 365 S.W.3d at 126 (“If the purpose of serving the employer’s business motivates the employee, his acts are within the scope of employment.”).
Dr. Huang’s work included educational, research, and administrative services provided at Health Science Center-affiliated hospitals and clinics. Hé taught and-supervised residents participating in the Health Science Centér’s residency program. ' This supervision occurred at Memorial Hermann Hospital and in clinical settings, including the UTP clinic. According to Dr. Huang’s affidavit, his Health ' Science Center employment re*685quired him to supervise these residents. He was the assigned attending physician at the UTP clinic on the day Shana received treatment there and, in that capacity, was required to, supervise Dr. Gonski and other residents providing care at the clinic. We, therefore, conclude that Dr. Huang was performing .a task assigned to him by his employer and acting within the scope of his employment with regard to Shana’s treatment.
The Lenoirs argue that Dr. Huang is not entitled to dismissal despite this conclusion because his actions were ultra vires, meaning that they were unauthorized and beyond the authority provided to him by his employer, due to Medicaid billing errors. In support of their argument, the Lenoirs rely on a 1987 ease that held that “Unlawful or unauthorized actions are not considered acts of the State” and State officials can be sued in their individual capacities for wrongful, unofficial acts. Bagg v. Univ. of Tex. Med. Branch at Galveston, 726 S.W.2d 582, 585-86 (Tex.App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.). However, the reasoning of this case has been rejected. See, e.g., City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex.2007); Tex. State Technical Coll. v. Cressman, 172 S.W.3d 61, 66 (Tex.App.—Waco 2005, pet. denied). The issue is not whether Dr. Huang’s conduct was somehow “unlawful or unauthorized”; it is, instead, whether Dr. Huang acted within or outside the scope of his employment. See Alexander v. Walker, 435 S.W.3d 789, 792 (Tex.2014); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex.1994).6
As more recent case law has established, an employee acts within the general scope of his employment if he is discharging the duties generally assigned to him even if he does so in a negligent manner. See City of Lancaster, 883 S.W.2d at 658; Hopkins v. Strickland, No. 01-12-00315-CV, 2013 WL 1183302, at *3 (Tex.App.—Houston [1st Dist] Mar. 21, 2013, no pet.) (mem.op.); Lopez, 414 S.W.3d at 894-95; Anderson, 365 S.W.3d at 126. Similarly, a governmental employee can act within the scope of his employment, even if it is later determined that some error was committed in connection with his actions. See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex.2004) (concluding that board of adjusters members were discharging duties assigned to them even though later judicial decision established that board action was incorrect).
Section 101.106(f) states that a. suit against a governmental employee in his individual capacity “is considered to be against the employee in the employee’s official capacity only” if the suit is “based on conduct within the general scope of that employee’s employment_” Tex. Civ. PRAC. & Rem.Code Ann. § 101.106(f). In other words, a suit against an employee acting within the scope of his employment is “in all but name only,.a suit against the governmental unit.” Ngakoue, 408 S.W.3d at 357. “Conversely, suits against an employee based on conduct outside the scope of employment are suits against an employee in his individual capacity and seek *686personal liability.” Molina v. Alvarado, 463 S.W.3d 867, 871 (Tex.2015) (citing Alexander, 435 S.W.3d at 791); cf. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 7 (Tex.2009). The election-of-remedies provision forces the plaintiff to decide at the outset whether the employee acted independently or within the general scope of his employment. Molina, 463 S.W.3d at 871; Garcia, 253 S.W.3d at 657. Here, the Lenoirs elected to proceed under the theory that Dr. Huang acted independently. We, however, have determined that he was acting within the scope of his authority with regard to the allegations of medical negligence asserted against him. Accordingly, Dr. Huang was entitled to dismissal under section 101.106(f).
Accordingly, we overrule the Lenoirs’ second-issue.
Challenge to Affidavits
In the Lenoirs’ final issue, they challenge affidavits relied on by Dr. Huang in support of his motion to dismiss. The Lenoirs objected to an assertion in Dr. Huang’s affidavit that he “was in the paid service of the Health Science Center on the day Dr. Gonski treated Shana and to the affidavit of the Health Science Center’s Senior Executive Vice President confirming Dr. Huang’s statement. The Lenoirs objected that these affidavits were “legally conclusory and factually incorrect” based on their legal argument that UTP was engaged in an “auxiliary enterprise” because the fees charged to the clinic’s patients passed through a trust fund before ultimately being used by the Health Science Center to pay its physicians’ salaries.
The Lenoirs further objected to the affidavits of the Health Science Center’s residency program director and the Foundation’s president. The Lenoirs again allege that these affidavits contain “legal conclusions not supported by facts.”
The trial court did not rule on the Le-noirs’ objections.
A. Standard of review
An objection that an affidavit is conclusory “is an objection to the substance of the affidavit that can be raised for the first time on appeal.” Skelton v. Comm’n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex.App.—Houston [14th Dist.] 2001, no pet.); Green v. Indus, Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex.App.—Houston [1st Dist.] 1999, no pet.). The Lenoirs did not have to obtain a ruling on their objections to preserve this issue for appeal. Green, 1 S.W.3d at 130. We review an assertion of trial court error regarding the admissibility of evidence under an abuse of discretion standard. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.2000).
B. Affidavits were not conclusory
Conclusory statements in affidavits are insufficient to establish the existence of a fact. See, e.g., Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996); Brownlee v. Brownlee, 665 S,W.2d 111, 112 (Tex.1984); James L. Gang & Assocs., Inc. v. Abbott Labs., Inc., 198 S.W.3d 434, 442 (Tex.App.—Dallas 2006, no pet.). “A conclusory statement is one that does not provide the underlying facts to support the conclusion.” Weech v. Baptist Health Sys., 392 S.W.3d 821, 826 (Tex.App.—San Antonio 2012, no pet.). Thus, an affidavit that is merely a sworn statement of the allegations in a pleading or that simply paraphrases statutory language is conclusory and lacks probative force. See Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex.App.—Dallas 2005, no pet.); Nichols v. Lightle, 153 S.W.3d 563, 570 (Tex.App.—Amarillo 2004, pet. denied). On the other hand, logical conclusions are not improperly conclusory *687if they are based on underlying facts stated in the affidavit or its attachments. Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.—Houston [1st Dist.] 1997, no pet.).
The Lenoirs’ contention that the affidavits are conelusory does not hinge on whether there are facts in the attached documents to support the statements made in the affidavits. Each of these affiants refers to documents or attaches them to the affidavits. These attachments include accrediting agency regulations, articles of incorporation, bylaws, and other supporting documents. The documents support the assertions made in the affidavits. See id.
Rather, they contend that the affidavits are “legally conelusory and factually incorrect” because — despite these affiants’ understanding of the relationship Dr. Huang had with the UT entities and despite what the attached documents say— Lenoir’s legal arguments have effectively undone the employment relationship.
These affidavits explain the interrelationship of the entities within the UT System and Dr. Huang’s role and connection to those entities. We do not agree that an explanation of the UT System structure becomes inadmissible simply because a party argues that the law should interpret the facts differently. Because we have rejected the Lenoirs’ legal contentions challenging Dr. Huang’s employment, we likewise reject their assertion that the statements are conelusory.
Accordingly, we overrule the Lenoirs’ third issue.
Conclusion
We overrule the Lenoirs’ challenge to the dismissal of Dr. Huang. We further overrule their challenge to the affidavits attached to his motion to dismiss. We
sustain the Lenoirs’ issue challenging the dismissal of Dr. Gonski and, therefore, reverse that part of the trial court’s judgment and remand for further proceedings against Dr. Gonski.
. We issued an opinion on November 25, 2014. The appellants and one appellee (Leah Anne "Gonski Marino f/k/a Leah Anne Gonski) moved for rehearing; Gonski also moved for en banc reconsideration. We grant rehearing, withdraw our previous opinion and judgment, and substitute this opinion and judgment in their place. The disposition remains the same. We deny the motion for en banc reconsideration as moot. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 33 (Tex. App. — Houston [1st Dist.] 2004, pet. denied) (op. on reh’g).
. A parly against whom a dismissal order is entered based on governmental immunity may bring an interlocutory appeal of that order. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(8) (West Supp.2014).
. As explained in Mission Consolidated Independent School District v. Garcia, 253 S.W.3d 653, 657 (Tex.2008),
Under the Tort Claim Act's election scheme, recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only, id. § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, id. § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, id. § 101.106(f).
. Dr. Gonski argues that we should disregard the bylaws because they "have never been followed, and thus must be considered abandoned,” and further, they conflict with the Foundation’s articles of incorporation. There is no evidence of abandonment, and the provisions do not conflict. We reject both arguments.
. Because we conclude that Dr. Gonski failed to establish as a matter of law that she was the employee of the Foundation, for TCA purposes, we do not reach the Lenoirs’ alternative arguments that the Foundation was not a governmental unit entitled to immunity or that Dr. Gonski’s conduct was not within the scope of her employment but was ultra vires.
. The Lenoirs’ reliance on City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex.2009), is likewise misplaced. The portion of that opinion on which the Lenoirs rely is concerned with declaratory judgment actions against state officials acting outside of their authority. Id. at 373 & n. 7. It has no application to this suit against Dr. Huang for damages. In the referenced footnote, the Texas Supreme Court acknowledges that state officials may be sued in their individual capacity but notes that such suit would be for “conduct fairly attributable to the officer himself,” meaning outside of his general scope of employment. Id. at 373 n. 7 (citing Aldenv. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 2267-68, 144 L.Ed.2d 636 (1999)). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284331/ | OPINION
J. LAMBERT, JUDGE:
Allan Grundy, proceeding pro se, has appealed from the October 28, 2013, order of the Jefferson Circuit Court vacating the order revoking his probation, but refusing to vacate his one-year sentence, and the January 13, 2014, order denying his Kentucky Rules of Civil Procedure (CR) 59.05 and CR 52.02 motions to vacate the October 28, 2013, order. We affirm the orders on appeal.
*839In September 1996, Grundy was indicted by the Jefferson County grand jury on charges of first-degree trafficking in a controlled substance (cocaine), a Class C felony, and illegal use or possession of drug paraphernalia, a Class A misdemeanor. Following a jury trial in October 1997, Grundy was adjudged guilty of first-degree illegal possession of a controlled substance (cocaine) and illegal possession of drug paraphernalia. The trial court, entered a judgment of conviction on December 17, 1997, and sentenced him to one year’s imprisonment, but probated Grundy’s prison sentence for five years subject to his compliance with several listed conditions. These conditions included continued good behavior, refraining from violating the law, and compliance with any other regulations and supervision of the Division of Probation and Parole office and the direction of his probation officer. Grundy’s five-year probation was to expire on December 15, 2002. Grundy did not appeal his conviction.1
On October 16, 2002, the Commonwealth moved to revoke Grundy’s probation based upon a probation report dated September 30, 2002. The report established that Grundy had been convicted of two counts of second-degree rape and for being a second-degree persistent felony offender (PFO II) earlier that year, and he was sentenced to a total of twenty-years’ imprisonment. The trial court held a revocation hearing on December 18, 2002, and as a result of the hearing ordered Grundy’s probation to be revoked. The court remanded Grundy to the custody of the sheriff for service of the one-year sentence imposed under the final judgment entered December 17, 1997. In an amended order entered January 23, 2003, the trial court ordered this sentence to run consecutively with the twenty-year sentence imposed in the subsequent convictions.
Thereafter, Grundy filed several post-conviction motions, seeking relief pursuant to RCr 11.42, CR 59.05, and RCr 10.26. The trial court denied these motions as time-barred. In October 2010, Grundy filed a motion to void the sentenced imposed by the orders revoking his probation pursuant to CR 60.02(e) and (f), arguing that the original order was a legal nullity because the,court did not have jurisdiction to revoke his probation after the probationary period had expired' and that the amended order was entered more than ten days after the entry of the original order. By opinion and order entered May 31, 2011, the trial court denied Grundy’s motion for CR 60.02 relief, stating that he should have raised this issue at the time of séntencing or in his first RCr 11.42 motion.
Grundy moved the court to alter, amend, or vacate its order pursuant to CR 59.05 and RCr 1.0.26, and to make findings pursuant to CR 52.02. ' The Commonwealth objected to the motion, arguing that Grundy had not established that he was entitled to the extraordinary remedy of CR 60.02 relief. Grundy also moved to supplement his motion to vacate pursuant to CR 15.04. The court denied the pending motions on September 6, 2011, and Grundy filed an appeal with this Court. See Grundy v. *840Commonwealth, 400 S.W.3d 752 (Ky.App. 2013).
On appeal, this Court reversed the trial court’s orders, holding that the court lacked jurisdiction to revoke Grundy’s probation because his probationary period had expired prior to the entry of- the order revoking. Therefore, the order, revoking his probation was void, and Grundy was entitled to CR 60.02 relief, despite the passage of time between his 2003 .probation revocation and the filing of his CR 60.02 motion. This Court ultimately reversed and remanded “this matter to the trial court with instructions to vacate Grundy’s one-year sentence as provided in the amended order revoking probation entered oh January 23, 2003.” Id. at 755 (footnote omitted).
After the opinion became final, the trial court entered an order on October 28, 2013, vacating its 2002 order and 2003 amended order revoking Grundy’s probation. The court did not vacate Grundy’s one-year sentence, as he requested. Grundy filed a CR 59.05 motion to alter, amend, or vacate the trial court’s order and requested the court to enter an order in conformity with the direction of this Court. In response, the Commonwealth argued that the trial court’s actions were consistent with the opinion of this Court, which only held that the trial court did not have jurisdiction to revoke Grundy’s probation. This Court had not held that the trial court lacked jurisdiction to enter the original judgment of conviction. In an opinion and order entered January 31, 2014, the trial court denied Grundy’s motion-to alter, amend, or vacate. The court noted that Grundy was serving a twenty-year sentence under two Jefferson County indictments for two.counts of rape and that his conviction in the present case had been used to enhance his sentence in the later cases based on his status as a PFO IL In denying the motion, the court recognized that Grundy’s “CR 60.02 Motion was based on this Court’s revocation of his probation; not on [his] underlying conviction and sentence.” The court agreed with the Commonwealth’s argument that because this Court did not hold that the trial court lacked jurisdiction to impose the original sentence, Grundy had received all of the relief to which he was entitled. This appeal now follows.2-
On appeal, Grundy argues that the trial court abused its discretion and that he was denied equal protection and due process of law when the trial court denied his motion for CR 59.05 relief. He asserts that the trial court did not follow the directive of this Court on remand in light of the voided revocation orders. The Commonwealth disputes this argument, continuing to argue that Grundy received all of the relief to which he was entitled when the trial court vacated the orders revoking his probation.
,CR 59.05 provides that “[a] motion to alter or amend a judgment, or to vacate a judgment and enter a new. one, shall be served not later than 10 days after entry of the final judgment.”
Although CR 59.05 does not specifically set forth the grounds for relief under the rule, the Supreme Court of Ken-, tucky has cited to its federal counterpart, Federal Rules of Civil Procedure 59(e), in limiting the grounds to the following:
There are four basic grounds upon which a Rule 59(e) motion may be granted. First, the movant may dem*841onstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent manifest injustice. Serious misconduct of counsel may justify relief under this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law.
Gullion [v. Gullion ], 163 S.W.3d [888,] 893 [(Ky.2005)], quoting 11 Wright & Miller, Federal Practice and Procedure: Civil (2d Ed.) § 2810.1.
Bailey v. Bailey, 399 S.W.3d 797, 801 (Ky.App.2013). “A trial court’s ruling on a motion made pursuant to CR 59.05 is reviewed under an abuse of discretion standard.” Id., citing Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 483 (Ky.2009).
In the present case, we must agree with the Commonwealth that the trial court did not abuse its discretion in denying Grundy’s motion for CR 59.05 relief. This Court, in its earlier opinion, directed the trial court to vacate the orders revoking Grundy’s probation, not the original 1997 judgment convicting him of drug charges. Only the revocation orders were void because they were entered after his five-year probationary period had ended. The end result is that Grundy should not have been required to serve the one-year sentence because the revocation orders were void, which is exactly what the trial court did on remand by vacating those orders. This Court’s opinion did not address the validity of the original judgment and conviction at all, nor was that issue raised in the prior appeal, and there is no question that the trial court had jurisdiction to enter the original judgment.
Therefore, the trial court did not abuse its discretion on remand in refusing to grant Grundy’s motion for CR 59.05 relief and vacate the one-year sentence imposed in the original 1997 judgment as a result of Grundy’s conviction.
For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
. Following the 1997 jury trial, Grundy filed a motion to set aside the jury verdict pursuant to Kentucky Rules of Criminal Procedure (RCr) 13.04 and CR 50.02, and for a new trial pursuant to RCr 10.02. The trial court denied this motion by order entered August 20, 2004, and denied the motion for findings of fact on October 7, 2004. Grundy appealed this ruling to the Court of Appeals, and the appeal was dismissed for lack of subject matter jurisdiction on September 21, 2005, because the trial court had orally denied his motion for a judgment notwithstanding the verdict or for a new trial prior to entering the final judgment and sentence.
. Shortly after he filed the notice of appeal, Grundy was released from incarceration, and he currently resides in Louisville. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284332/ | OPINION
LAMBERT, J„ JUDGE:
Jeffrey McGaha, proceeding pro se, has appealed from the March' 7, 2014, order of the Adair Circuit Court denying his post-conviction motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing.' Because we hold that the record refutes the issues of fact McGaha raises and that he is not entitled to relief, we affirm the order on appeal.
Our Supreme Court summarized the factual history of this case in its opinion on McGaha’s direct appeal, which we shall adopt:
[McGaha] and the victim, Mike Co-wan, were neighbors in a rural part of *844Adair County. The evidence presented at trial by the Commonwealth indicated that the relationship between [McGaha] and Cowan was marred by a series of disputes. The most recent difficulty was over a light on [McGaha’s] storage building that shone onto Cowan’s property and annoyed him. Cowan retaliated by shining spotlights at. [McGaha’s] residence. On the evening before the fatal incident, [McGaha] complained to the police about the spotlights. When police officers arrived at the scene in response to that complaint, Cowan and his wife became belligerent. They were arrested and taken to jail.
The following afternoon, after his release from jail, Cowan visited a neighbor’s residence on his ATV. As Cowan returned home, [McGaha], driving in his car, saw him and steered directly into his ATV without braking. The impact knocked Cowan off the ATV. As a result of the blow from [McGaha’s] vehicle, Cowan suffered severe blunt force trauma which alone would have been fatal. After the collision, however, while Co-wan was lying on the ground, [McGaha] approached him and delivered a second fatal injury by shooting him in the head with a shotgun.
[McGaha] was indicted for murder. At trial, [McGaha] admitted that he killed Cowan, but claimed that he was acting in self-defense. In support of that claim, [McGaha] presented evidence of Cowan’s threats, harassment, and intimidation directed toward [McGaha] and members of his household. [McGa-ha] also alleged that shortly before the fatal incident, Cowan had pointed a gun at [McGaha] and gestured, as if he was pretending to shoot at [McGaha]. [McGaha] saw Cowan place the gun on his ATV, and ride it over to the neighbor’s residence. [McGaha] testified that he followed Cowan to speak with him, and that he took his shotgun for protection. [McGaha] said that when he encountered Cowan on his ATV, Cowan aimed his gun at [McGaha]. Fearing that he would be shot, [McGaha] drove his car into Cowan’s ATV. After the collision, [McGaha] claims he got out of his car with his shotgun, and demanded that Cowan show his hands. According to [McGaha], Cowan then said, “I’m still going to fucking kill you.” Believing that Cowan was reaching for his gun, [McGaha] shot him in the head.
The jury, rejecting [McGaha’s] self-defense claim, convicted him of murder and recommended a sentence of twenty years’ imprisonment. The trial court entered final judgment consistent with the jury’s verdict and sentencing recommendation. [McGaha’s] post-judgment motions for judgment notwithstanding the verdict and for a new trial were denied,
McGaha v. Commonwealth, 414 S.W.3d 1, 3-4 (Ky.2013), as modified (Sept. 26, 2013).
On direct appeal, McGaha raised four issues, including the failure of a juror to disclose a social media relationship with the victim’s wife; the jury’s consideration of penalty phase issues during the guilt phase; whether excluded evidence would have supported his self-defense claim; and whether a witness should have been permitted to testify that the victim had raised a gun at him twenty-five years previously. The Supreme Court rejected each of McGaha’s arguments in its opinion affirming.
In addressing the exclusion of evidence argument related to the victim’s racist speech, the Court stated as follows:
As previously noted, the evening before Cowan’s death, Trooper Wolking responded to [McGaha’s] 911 complaints about harassment by Cowan, involving *845the spotlights focused upon [McGaha’s] property. [McGaha] proffered Wolk-ing’s testimony, as avowal evidence, that Cowan referred to [McGaha’s] fiancé and her child as the “nigger baby and its nigger mother.” Wolking also said in his avowal testimony that Cowan had stated repeatedly that the “nigger baby and nigger mother needed to live down the road with the other niggers and Mexicans.”
[McGaha] contends that this evidence was relevant to show Cowan’s propensity for violence. While the statements made by Cowan were outrageously racist, it does not follow that this character flaw translates into a propensity for violent conduct. Thps, this particular evidence was of little probative value. On the other hand, its admission into evidence at trial would have substantially diminished the character of the victim in a way that would have been highly prejudicial to the Commonwealth’s case. Cowan’s racist comments to the police officer would unduly influence the jury simply because of the victim’s verbal expressions of a racist attitude, It follows that the trial court did not abuse its discretion by excluding the evidence.
Id., at 9-10. Related to testimony addressing the family’s fear of the victim, the Supreme Court stated:
[McGaha] contends that the trial court improperly excluded the testimony of his flaneé and her child regarding their personal fear of Cowan because he had harassed and terrorized them. However, both witnesses testified, to a degree, regarding their fear of Cowan, and [McGaha] fails to cite us to any avowal testimony, or other means of making known the substance of the testimony that was excluded by the trial court. Thus, because of [McGaha’s] failure to develop this argument sufficiently for us to undertake a meaningful review of the issue, he is not entitled to relief upon the grounds that the trial court excluded testimony of his household regarding their fear of Cowan.
Id. at 10 (footnote and citations omitted).
On August 1, 2013, McGaha filed a pro se motion to vacate, set aside, or correct sentence pursuant to RCr 11.42, citing ineffective assistance of counsel. In addition, he moved for appointment of counsel and for an evidentiary hearing. 'McGaha asserted that his trial counsel failed to question the jury about racial prejudice and racially prejudicial remarks the victim had made; failed to hire expert witnesses regarding gunshot residue and accident reconstruction; failed to raise the defense of extreme emotional disturbance (EED); failed to introduce relevant mitigating evidence during the penalty phase; failed to file a motion in limine to prevent the trial court from excluding racial issues; and failed to object to the exclusion of evidence of hate speech by the victim. McGaha also alleged that his appellate counsel was ineffective for failing to file a reply brief or to adequately and sufficiently brief and cite to any testimony or avowal testimony to develop his argument. .
On March 7, 2014, the trial court entered- an order denying McGaha’s motion for post-conviction relief without an evi-dentiary hearing.' This appeal now follows.
The applicable standard of review in RCr 11.42 post-conviction actions is well-settled in the Commonwealth. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving -that: 1) counsel’s performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. *846Commonwealth, 702 S.W.2d 37 (Ky.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance. The movant must show that his counsel’s representation fell below an objective standard of reasonableness and 'bears the burden of proof. In doing so, the movant must overcome a strong presumption that counsel’s performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky.1969); McKinney v. Commonwealth, 445 S.W.2d 874, 878 (Ky.1969).
If an evidentiary hearing is held, the reviewing court must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky.App.1983). If an evidentiary hearing is not held, as in this case, our review is limited to “whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky.1967). See also Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky.App.1986). More specifically, the Supreme Court set forth the applicable standard as follows:
2. After the answer is filed, the trial judge shall determine whether the allegations in the motion can be resolved on the face of the record, in which event an evidentiary hearing is not required. A hearing is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record. Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743-44 (1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994); Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967). The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Drake v. United States, 439 F.2d 1319, 1320 (6th Cir.1971).
Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky.2001).
The Supreme Court of Kentucky revisited the law addressing RCr 11.42 proceedings in Haight v. Commonwealth, 41 S.W.3d 436 (Ky.2001) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009)), noting that “[sjuch a motion is limited to the issues that were not and could not be raised on direct appeal.” Haight, 41 S.W.3d at 441. The Court went on to state:
In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See Morrow; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
A defendant is not guaranteed error-less counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. McQueen v. Commonwealth, Ky., 949 S.W.2d 70 (1997).
Id. at 441-42.
For his first argument, McGaha addresses alleged ineffective assistance of counsel during jury selection. First, he alleges that his trial counsel was ineffective for failing to question prospective jurors regarding racially prejudicial remarks made by the victim. In the order denying the motion for RCr 11.42 relief, the trial court stated:
*847[McGaha’s] first argument for relief states that counsel performed deficiently by failing to question prospective jurors regarding their possible racial prejudice. [McGaha] argues uncovering racial bias was warranted because his girlfriend’s daughter is bi-racial and lived with them. He suggested there “may” have been a juror with strong feelings about interracial relationships and that bias “may” have prevented him from receiving a fair trial.
There is no constitutional presumption of juror bias for or against certain racial groups. Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629[, 68 L.Ed.2d 22 (1981) ]. Further, “there is no per se constitutional rule in such circumstances requiring inquiry on voir dire as to racial prejudices.” Id. Under the facts at bar, [McGaha] has failed to establish the likelihood of racial or ethnic prejudice affecting the jurors. There is no reason to believe the facts of this case would somehow impede the jurors’ ability to deal impartially with the subject matter. Race is not an issue. In fact, all the parties directly involved are of the same race, Caucasian. The issue for the jury was whether [McGaha] was acting in self-defense when he shot the victim. Counsel was not deficient in failing to inquire about possible racial prejudice. On the contrary, the attempt to question the venire regarding said subject matter would be improper.
McGaha contends that the trial court’s reasoning was flawed, stating that “[r]ace is the entire issue of why this confrontation between Mr. McGaha and the Cowan’s [sic] existed at all. (The races involved are White, Black, Hispanic, and Native American).”
The Commonwealth, on the other hand, cites to the United States Supreme Court’s discussion of ineffective assistance as it relates to jury selection in Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 5-6, 157 L.Ed.2d 1 (2003), in support of its argument that the trial court’s ruling was correct:
When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (counsel is “strongly presumed” to make decisions in the exercise of professional judgment). That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court “may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.” Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003). Moreover, even if an omission is inadvertent, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell, supra, at 702, 122 S.Ct. 1843; Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, supra, at 689, 104 S.Ct. 2052; United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
The Commonwealth also observes that “asking potential jurors whether they are racist is unlikely to elicit an honest response (if any are indeed racist) and is almost certain to alienate many jurors.”
We agree with the Commonwealth that any failure on the part of McGaha’s trial counsel to question jurors regarding racial prejudice did not in any way equate to ineffective assistance. This was a matter *848of trial strategy, and such questioning would not have elicited the response McGaha was seeking, but instead would have put the jurors in the unquestionably awkward position of having to admit to being racist, if they were.
For his next argument pertaining to jury selection, McGaha challenges his trial counsel’s failure to ask further questions of one of the jurors related to her relationship with the victim’s family. This issue was raised, and rejected, on direct appeal in his argument addressing that juror’s failure to disclose a social media relationship with the victim’s wife during jury selection. In considering the questioning process, the Supreme Court observed:
Although succinct, her answers were responsive to the questions and truthful. We .see in the record no indication that Juror 234 was attempting to conceal the social media relationship, or that she was in any way deceptive. Moreover, by her acknowledgment that she casually knew some of the Cowan family, [McGaha] was given an unfettered invitation to inquire further. He could have asked: “Which members of the Cowan family do you know?” Then, he could .have followed up with other questions allowing him to, discover the depth and scope of her acquaintances within the Cowan family. But, [McGaha] declined to do so.
While the parties have the right to assume that the answers given by potential jurors are complete, candid and truthful, we cannot expect potential jurors to appreciate the nuances of potentially disqualifying relationships, and volunteer answers to the questions that counsel failed to ask. Juror 234 manifestly did not give a false answer regarding her Facebook relationship with the victim’s wife. If her casual relationship with some members of the Cowan family was cause for concern for any party; it was incumbent upon that party, not the juror, to delve more deeply into the matter. We see no misconduct on the part of Juror 234.
McGaha, 414 S.W.3d at 6.
However, as the Commonwealth argues in its brief, McGaha failed to include this argument in his motion for RCr 11.42 relief below. Therefore, this argument is not properly before the Court, and we shall not address it any further. “It is a matter of fundamental law that the trial court should be given an opportunity to consider an issue, so an appellate court will not review an issue not previously raised in the trial court.” Marksberry v. Chandler, 126 S.W.3d 747, 753 (Ky.App.2003), as modified on reh’g (Jan. 30, 2004) (footnote omitted). Accordingly, we perceive no error in. the trial court’s ruling related to jury selection.
For his' second argument, McGaha claims that his trial counsel was ineffective for failing to seek expert witnesses on gunshot residue (GSR) and accident reconstruction. In ruling on this argument, the trial court stated:
At trial, the Commonwealth’s forensic expert testified that gunshot residue was found on the hands of both the victim and [McGaha]. Defense counsel ably cross-examined the witness and it was conceded that the gunshot residue found on the victim could have come from firing a gun. However, a plethora of witnesses testified that a gun was not found at the scene; therefore, apparently the jury did not believe the gunshot residue found, on the hands of the victim was the result of firing a weapon. Again, this fails to establish defense counsel was deficient.
*849In his brief, McGaha disputes the testimony of the factual witnesses, and he implies that the gun had been removed from the victim prior to the arrival of the police by one of the witnesses to the shooting. He states: “Steve Phillips (Neighbor) was the first person to arrive at Cowan’s body; three more people arrived before the police got there, Brandon Cowan, (Nephew), Billy Cowan (Brother), and Charlene Co-wan (Wife). All of whom had ample opportunity to remove Cowan’s gun before the police arrived.” He also argues that if an unbiased expert had reviewed the evidence, that expert could have established how the gunshot residue got on the victim’s hands. Therefore, he claims that his trial counsel “had an affirmative duty to have physical evidence in this case examined to determine whether or not it supported his client’s testimony and to introduce that evidence which offered a plausible explanation for the most damaging elements of the Commonwealth’s case.”
At trial, firearms specialist Lawrence Pilcher testified about GSR and explained that this cloud of residue would follow the shot stream of the firearm until it hit something or fell to the ground due to gravity. Ken Rider," the Trace Section Supervisor at Kentucky State Police’s Cen: tral Forensic Laboratory, analyzed the GSR swabs from the front and back of the victim’s hands. This analysis consisted of measuring how much of three elements— barium, antimony, and lead — was detected on his hands. Mr. Rider concluded that significant amounts of all three elements were detected on inside (palms) and outside of both of the victim’s hands. He then testified that there were three reasons the GSR might have been detected: 1) the victim could have handled an object with GSR on it; 2) he could have discharged a firearm; and/or 3) he could have been in close proximity to a - discharging firearm.
In his RCr 11.42 motion, McGaha contended that Mr. Pilcher, whom he refers to as Felcher, testified “that what traces of gun shot [sic] residue (GSR) that was found on Cowan’s hands probably came from him attempting to .put his hands towards the top of his head where impact of the buck shots fired from the shotgun that Jeff shot him with.” And in his appellate brief, McGaha again makes a similar claim, attributing this statement that the victim had been trying to shield his face to the Commonwealth’s expert witness. But as the Commonwealth states in its brief, no witness testified that the victim had GSR on his hands because he had been trying to protect his head-
Our reyiew of the closing arguments establishes that the Commonwealth’s Attorney put forth this theory that, based upon the testimony .of the medical examiner, Mr. Pilcher, and Mr. . Rider, the GSR was on the victim’s hands because he had been trying to protect his head. In his closing argument, defense counsel also raised, and disputed, this theory, asserting that the evidence was just as strong ,to prove that the victim had handled, discharged, or was in close proximity to a firearm, rather than protecting his head. Through cross-examination and closing arguments, defense counsel was able to dispute the Commonwealth’s theory, albeit unsuccessfully, and present an alternate theory as to how the GSR came to be on the victim’s hands.
As to his trial counsel’s failure to hire an accident reconstructionist, we agree with the Commonwealth that McGa-ha did not explain how such an expert might have supported his defense and testimony. Therefore, we hold-that the record refutes McGaha’s argument that his trial counsel was ineffective in failing to *850hire an expert in GSR or an accident re-constructionist, and we reject this argument.
For his third argument, McGaha contends that his trial counsel was ineffective for failing to include evidence regarding the victim’s racist speech and prejudice and for failure to raise an EED defense. For both of these arguments, the record refutes McGaha’s claims.
In addressing the racist speech argument, the trial court stated:
The second part of [McGaha’s] argument concerning racial bias involves the statements of the victim. The victim made racist statements to Trooper [Wolking] and [McGaha] maintains these statements should have been admitted in furtherance of his efforts to secure an instruction on extreme emotional distress (EED). This argument is addressed on direct appeal and the Court’s decision to preclude the victim’s racist speech was affirmed by the Kentucky-Supreme Court.
Our review of the record establishes that defense counsel attempted numerous times during the trial to introduce the racist comments the victim had made. These racist statements were mentioned during voir dire, during defense counsel’s opening statement, and during the testimony of McGaha’s fiancé. The court would not permit such remarks to be introduced into evidence, reasoning that only fear-inducing language could be introduced and that the racial remarks would be more apt to induce anger, not fear. Defense counsel objected to the court’s ruling.
As to McGaha’s argument that his attorney failed to raise an EED defense, the record clearly refutes this assertion. Defense counsel sought to raise this defense by tendering jury instructions, including an EED instruction, as well as orally requesting this instruction. The court declined to do so, finding no evidence to establish a triggering event or that McGaha had been acting under a sudden passion or in the heat of the moment. Rather, the court based its decision on McGaha’s own testimony that he had been sitting on the porch thinking about the situation and made a rational decision to meet with the victim to attempt to resolve their differences. Defense counsel objected on the record to the court’s decision.
Therefore, we hold that the record refutes McGaha’s claim and that he failed to establish ineffective assistance of counsel on this issue.
For his fourth argument, McGaha contends that his counsel was ineffective in failing to offer relevant mitigating evidence during the sentencing phase. The trial court rejected this argument, stating that evidence of McGaha’s work history, peaceable nature, and education was already in the record. We agree with this observation of the record, and we further agree with the Commonwealth that any further mitigating evidence could not have resulted in a better outcome because the jury sentenced him to the minimum sentence of twenty years. See Kentucky Revised Statutes (KRS) 507.020(2) and KRS 532.030(1).
For his final argument, McGaha raises an IAAC claim, citing his appellate counsel’s1 failure in the direct appeal to present the Supreme Court with the evidence of the victim’s racist remarks to show his propensity for violence; to sufficiently brief and cite to avowal testimony to support the argument; and to file a reply brief. The trial court rejected this claim, noting that McGaha had not offered *851any support to this allegation and that he “was afforded excellent, competent, and experienced representation through the trial and appellate process.” We agree.
In Hollon v. Commomvealth, 334 S.W.3d 431 (Ky.2010), the Supreme Court of Kentucky recognized the claim of ineffective assistance of appellate counsel (IAAC) in post-conviction RCr 11.42 proceedings.
On the appeal of the trial court’s order on the RCr 11.42 motion, it is incumbent on the Court of Appeals to review in the first instance the trial court’s ruling regarding IAAC. If the Court of Appeals concludes that there was ineffective appellate assistance, then it should proceed to address the omitted issue or issues oh which the IAAC claim is based. Should the Court of Appeals conclude that there was no IAAC meriting relief then, of course, it would be unnecessary for that Court to address the issue or issues omitted from the matter-of-right appeal. Any final opinion of the Court of Appeals would, as always, be subject to discretionary review by the Supreme Court pursuant to CR 76.20.
Id. at 440 (footnotes omitted). The Supreme Court went on to “emphasize ‘ignored issues’ to underscore that IAAC claims will not be premised on inartful arguments or missed case citations; rather counsel must have omitted completely an issue that should have been presented on direct appeal.” Id. at 437. “Finally, the defendant must also establish that he or she was prejudiced by the deficient performance, which, as noted, requires a showing that absent counsel’s deficient performance there is a reasonable probability that the appeal would have succeeded.” Id. (citation omitted).
We agree with the Commonwealth that McGaha’s arguments are procedurally improper as the issues of the victim’s racist remarks and of his and his family’s fear of the victim were raised and rejected on direct appeal. Thus, they were not “ignored issues.” Additionally, the filing of a reply brief is optional. See Kentucky Rules of Civil Procedure (CR) 76.12(1) (“An appellant ... may file a reply brief.”)
For the foregoing reasons, the Adair Circuit Court’s order denying McGaha’s motion for RCr 11.42 relief is affirmed.
ALL CONCUR.
. We note that McGaha’s trial counsel represented him on direct appeal. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284333/ | ORDER
Per curiam:
Joel Mercado-Ramos appeals from a decision by the Labor and Industrial Relations Commission finding Mercado-Ramos ineligible for unemployment benefits because he was discharged for misconduct connected with work. Finding no error, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284335/ | Joseph M. Ellis, Judge
Dustin Meyer, acting in his capacity as personal representative for the Estate of Norma J. Meyer, appeals from a judgment entered in the Circuit Court of Cooper County declaring that the assets of the Norma J. Meyer Revocable Living Trust were not assets of the Estate of Norma J. Meyer. The trial court rejected Appellant’s arguments that the Trust had been created as a result of undue influence on the part of Tommy Richardson or, in the alternative, that the Trust had been terminated by Norma J. Meyer1 prior to her death. For the following reasons, the judgment is affirmed.
In 2001, when Norma first met Richardson at a bar in Jefferson City, she was married to Paul Meyer, with whom she had three children (Lisa Brinkley, Steve Meyer, and Jeffrey Meyer) and multiple grandchildren. Norma and Richardson immediately became involved in an intimate relationship. Shortly thereafter, Norma and Paul separated, and Norma and Richardson began living together. Eventually, Paul and Norma divorced in 2003. After the divorce, Norma stopped visiting or calling her children on a regular basis, and the children made little effort to maintain contact with her.
With proceeds from the divorce, in November 2003, Norma purchased approximately 300 acres of farmland in Cooper County upon which she intended to operate a ranch with Richardson. She soon purchased livestock and began farming/ranching operations on the property. She built a home on the ranch and moved there with Richardson.
On July 19, 2005, Norma executed the Trust, which had been drafted by St. Louis attorney James Anding at her direction. The trust named Norma as trustee and provided that she would be succeeded as trustee by Richardson2 upon her death. The trust language provided that, upon Norma’s death, Richardson was to receive the ranch property and Norma’s daughter, Lisa Brinkley, was to receive all of the personal property placed in the Trust. Norma also executed a pour-over will, also drafted by Anding, at that time. Norma subsequently transferred the ranch to the Trust by warranty deed executed on August 29, 2005, and recorded on March 13, 2006. She also transferred certain personal property and title to her motor vehicles to the Trust.
In May 2006, Norma decided to end her relationship with Richardson. She enlisted the assistance of the Cooper County *861Sheriffs Department in asking Richardson and the ranch’s other employees .to leave the premises and not return. While on the property and performing a consent search, the Sheriffs department found marijuana in the rim of Richardson’s cowboy hat and a birth certificate he had forged for himself, with Norma’s aid, in the name of Robert Pressler. Richardson was arrested and was eventually convicted of one count of forgery, for which he received a sentence of five years probation, subject to a special condition that he not have any further contact with Norma. Richardson did not have any further contact with Norma aside from complying with a request from her that he pick up his personal property from the ranch at a designated time when she was not present.
On September 23,2009, Norma executed a will that had been prepared by Jefferson City attorney Mike Riley at her direction. The Will generally provided that Norma’s property should be divided between Lisa Brinkley and Jeffery Meyer. The Will made no mention of the Trust, nor did it specifically reference any property owned by the Trust.
Norma died on August 16, 2011. Letters testamentary were granted to Jeffrey Meyer on March 14, 2012. Subsequently, Jeffrey, acting as personal representative of the Estate, filed a Petition for Discovery of Assets against Richardson, individually and as Trustee of the Norma J. Meyer Revocable Living Trust.3 The petition averred that Richardson had exerted undue influence over Norma and that, by executing her 2009 Will, Norma had intended to revoke the Trust. It asked the court to enter a judgment finding that the Trust was revoked in its entirety and that all assets conveyed to the Trust should be deemed to be assets of the Estate. After filing the action, Jeffrey died, and his son, Dustin Meyer, was named Personal Representative of the Estate.
The case was tried to the court in June and July 2014. The trial court subsequently entered its judgment finding that there was no clear and convincing evidence to support a claim that the Trust was created as the result of undue influence on the part of Richardson. It further found that the .record did not contain sufficient evidence to support the Estate’s claim that Norma had revoked the Trust. In so finding, the court noted that “Norma attempted to change the terms of her testamentary directives, but circumstances combined to create a miseommunication between her and her attorney, so that in the end, she made a new will but failed to. revoke her trust.” Appellant brings two points on appeal.
“This case involves a proceeding for discovery of assets, which is authorized under section 473.340, and is essentially a search for assets belonging to a decedent at' his or her death.” In the Estate of Lambur, 397 S.W.3d 54, 62 (Mo. App. S.D.2013). “In such a proceeding, the court’s role is to determine whether specific property has been adversely withheld from the estate.” Id. (internal quotation omitted). “Upon the trial of the discovery of assets action, the ‘court shall determine the persons who have an interest in said property together with the nature and extent of any such interest.’ ”. In the Estate of Herbert v. Herbert, 152 S.W.3d 340, 345 (Mo. App. W.D. 2004) (quoting § 473.340.3) . If the court “determines that the property belongs to the estate, it shall order the transfer of the title or possession, or both, to the estate.” Id. (citing § 473.340.3)
*862“The standard of review in a discovery of assets proceeding is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Id. at 344. Accordingly, “[t]he judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” In re Estate of Hock, 322 S.W.3d 574, 579 (Mo. App. S.D. 2010). “We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences.” Salem United Methodist Church v. Bottorff, 138 S.W.3d 788, 790 (Mo. App. S.D. 2004). “Credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness.” Id.
In his first point, Appellant contends that the trial court erred in finding that Norma had not revoked her 2005 Trust. He argues that the evidence showed that Norma intended for the 2005 Trust to be revoked when she executed the 2009 Will and that she should be deemed to have waived the Trust’s requirement that any revocation be made “by instrument in writing executed by Settlor and delivered to the Trustee.”
With regard to the revocation of a revocable trust, § 456.6-602.3 provides:
The settlor may revoke or amend a revocable trust:
(1) if the terms of the trust provide a method of amendment or revocation, by substantially complying with any method provided in the terms of the trust; or
(2) if the terms of the trust do not provide a method, by any other method manifesting clear and convincing evidence of the settlor’s intent, including the terms of a later duly probated will or codicil that identify the trust being revoked or the trust terms being amended.
Accordingly, where, as here, “the terms of the trust provide a method for amendment, the Settlor may amend the trust only by substantially complying with the method provided in the terms of the trust.” Banks v. Central Trust & Inv. Co., 388 S.W.3d 173, 176 (Mo. App. E.D. 2012) (citing § 456.6-602.3)
Norma’s 2005 Trust specifically provides that Norma, as the Settlor, reserved the right during her lifetime to revoke the Trust “by instrument in writing executed by Settlor and delivered to the Trustee.”4 The Trust goes on to provide that “[t]he manner provided in this Item for altering, amending and/or revoking this Agreement, as the case may be, shall be the exclusive method for such alteration, amendment or revocation, notwithstanding any contrary provision of applicable law.” Thus, under the terms of the Trust, in order to revoke the Trust, Norma was required to (1) execute a written instrument revoking the trust and (2) deliver that written instrument to the Trustee. Norma is presumed to have known the terms of the 2005 Trust and, therefore, to have been aware of these requirements.5 Rouner v. Wise, 446 S.W.3d 242, 254 (Mo. banc 2014).
Where, as here, “‘the settlor reserves a power to modify the trust only in *863a particular manner or under particular circumstances he [or she] can modify the trust only in that manner or under those circumstances.’” Banks, 388 S.W.3d at 176-77 (quoting In re Estate of Mueller, 933 S.W.2d 903, 907 (Mo. App. E.D. 1996)); see also In re Gene Wild Revocable Trust, 299 S.W.3d 767, 774 (Mo. App. S.D. 2009); In re Thomas L. Harris Trust, 204 S.W.3d 267, 271 (Mo. App. S.D. 2006); Salem United Methodist Church, 138 S.W.3d at 794; Maple Tree Invs. v. Port, 821 S.W.2d 562, 564 (Mo. App. W.D. 1991); Love v. St. Louis Union Trust Co., 497 S.W.2d 154, 159 (Mo. banc 1973).
The 2009 Will, while expressly revoking all previous wills and codicils, makes no mention of the 2005 Trust or trusts in general.6 Nothing contained therein can be interpreted as having revoked the 2005 Trust. Indeed, Appellant concedes on appeal that “[n]o written instrument was in evidence in which Norma explicitly revoked the 2005 trust.”
Appellant argues, however, that Norma had the authority to waive all of the revocation requirements set forth in the Trust and that she should be deemed to have done so based upon extrinsic evidence presented at trial regarding her intent in executing the 2009 Will. He contends that testimony that Norma told the attorney drafting her 2009 Will that she wanted “everything” to go to Lisa and Jeffrey proved that she wanted the property held by the Trust to go to them and that she intended for the Trust to be revoked. He argues that, since Norma never explicitly stated in writing that she was revoking the trust, it should be inferred that she waived the written instrument requirement.
While the requirement of delivery of the written instrument by the settlor to the trustee may be for the trustee’s benefit and might arguably be waivable by the trustee under certain circumstances, see St. Louis Union Trust Co. v. Dudley, 162 S.W.2d 290, 293 (Mo.App.E.D.1942), a question we need not and do not decide herein, the other requirements for revocation are most certainly not waivable and must be satisfied to effectuate the revocation of a trust. Maple Tree Invs., 821 S.W.2d at 564. The requirement that any amendment to or revocation of the trust be effectuated through a written instrument executed by the settlor serves a very significant purpose. It protects the integrity of the trust, operating similarly to the Statute of Frauds. By requiring a written instrument for any amendment or revocation, the Trust insures that challenges like the present one, attempting to avoid and/or alter the provisions of the Trust through the use of parol evidence and hearsay, are precluded. Were we to allow a party challenging a trust to overcome the written instrument requirement in the manner prescribed by Appellant, the provision would be rendered meaningless.
Since the record does not contain a written instrument revoking Norma’s 2005 Trust, the trial court did not err in finding *864that Appellant failed to prove that the Trust was revoked. Point denied.
In his second point, Appellant claims that the trial court erred in finding that the record did not contain clear and convincing evidence that the Trust was created as a result of undue influence on the part of Richardson. He contends that “the evidence presented at trial required the trial court to find that Richardson exerted undue influence over Norma to cause her to execute the 2005 trust.” Appellant argues that he presented sufficient evidence to establish a prima facie case of undue influence; that Richardson, therefore, bore the burden of rebutting the presumption of undue influence; and that Richardson failed to adequately rebut that presumption. He claims that the trial court’s finding is, therefore, against the weight of the evidence.
“Undue influence ... is usually defined as such overpersuasion, coercion, force, or deception as breaks the will power of the testator or grantor and puts in its stead the will of another.” In re Estate of Hock, 322 S.W.3d at 579 (internal quotation omitted). “[E]ven when evidence of influence over the settlor is shown, it does not amount to undue influence unless it removed the settlor’s free agency.” Cima v. Rhoades, 416 S.W.3d 320, 325 (Mo. App. E.D. 2013). The task before the trial court is to resolve the evidence and determine as a matter of fact whether the Trust was executed as a result of such influence. Id. The party challenging the validity of the will or trust at issue bears the burden of proving undue influence. Id. at 324.
“[A] presumption of undue influence arises in discovery of assets cases where substantial evidence shows (1) a confidential and fiduciary relationship; (2) benefaction to the fiduciary; and (3) some additional evidence from which undue influence may be inferred.” In re Estate of Hock, 322 S.W.3d at 579 (internal quotation omitted). The import of this presumption was analyzed by the Eastern District of this Court in Watermann v. Eleanor E. Fitzpatrick Revocable Living Trust, 369 S.W.3d 69, 75-76 (Mo. App. E.D. 2012), which noted:
Through the use of this presumption, Missouri places a prima facie case requirement upon the party alleging undue influence which once satisfied, allows the party to submit the case to the jury. Thus, in a jury-tried case, the court is required to determine if the plaintiff made a prima facie case when the defendant makes a motion for directed verdict at the close of plaintiffs case or at the close of all evidence. Further, when a plaintiff makes a prima facie ease in a jury-tried case, the presumption does not disappear upon the introduction of rebutting evidence; rather, it raises an issue for the jury.
However, in a court-tried case, the trial court is not as concerned with the question of a ‘prima facie case’ as it is in a jury-tried ease. In a court-tried case, the court has considerable discretion in the taking of evidence and in determining the order of the evidence, and it may hear all of the evidence before ruling on the case. Further, even if a plaintiff makes a prima facie case, this does not mean that the plaintiff is entitled to recover. The fact that a plaintiff’s evidence, if believed by the trial court, would make a prima facie case is not determinative on appeal.
(internal citations and quotations omitted). “Therefore, in court-tried cases, the court need not specifically evaluate whether the contestant met the elements giving rise to a presumption of undue influence, but rather must only determine the ultimate question of fact: whether the trust was the *865result of undue influence that deprived the settlor of his or her free agency.” Cima, 416 S.W.3d at 324.
Where the trial court has made a factual finding regarding undue influence in a court-tried case, this Court’s task is limited to reviewing the trial court’s ultimate conclusion according to our standard of review, simply determining whether it is supported by substantial evidence and/or is against the weight of the" evidence! Id. In making that determination, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the judgment and to disregard all contrary evidence and inferences. Salem United Methodist Church, 138 S.W.3d at 790. Furthermore, the “[credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness.” Id.
In advancing his argument that the trial court erred in finding that Appellant failed to sufficiently prove undue influence, Appellant disregards our standard of review — he accepts as credible the evidence he presented at trial, disregards evidence favorable to Richardson, and draws inferences favorable to himself. When properly viewed, however, the trial court’s finding is clearly not against the weight of the evidence.
“The mere existence of a confidential relationship is not sufficient to compel a finding of undue influence.” Watermann, 369 S.W.3d at 76. “There must be facts and circumstances tending to show that undue influence was an active factor in the [challenged] transaction.” Id. (internal quotation omitted). ' Furthermore, “[i]t is not undue influence for the beneficiary to exercise influence as long as it was not so coercive or importunate as to deprive the benefactor of his or her free agency.” Id. (internal quotation omitted).
Anding, the attorney who drafted the Trust for Norma, testified that Norma had contacted him for estate planning services after being referred to him by her financial advisor, Greg Reynolds. He testified that Norma asked him to draft a revocable trust for her and that nobody else provided him with any direction related to the creation of the Trust. Anding stated prior to the execution of the Trust he had spoken with Norma multiple times on the phone and had met with her personally at her ranch on one occasion. Anding testified' that Richardson was not present for his meeting with Norma at the ranch and that he never received any instructions from Richardson related to the Trust. Anding said that Norma had told him that she was leaving her children out of the Trust because she felt her children would be adequately taken care of by then-wealthy father.7 Anding testified that during his interactions with Norma he never had any reason to doubt her competence or intelligence and that he never thought that she was under the influence of any third party with regard to making decisions related to the Trust. Anding stated that after his meeting with Norma, she had asked him to explain the terms of the Trust and how it worked to Richardson. Anding indicated that Richardson merely listened to the explanation of how the Trust would work and did not ask any *866questions or instruct Anding in any way. Anding testified that he subsequently met with Norma at a bank in Columbia, Missouri where she executed the Trust after discussing its provisions with him for approximately three hours.
Richardson testified that, prior to their break-up, he and Norma had shared a dx-eam of running a ranch and growing old together on it. Richardson testified that, prior to Norma’s meeting with Anding on the ranch, he and Norma had never discussed her creating a trust. He stated that, after Norma met with Anding, she had summoned him to the house where she and Anding had explained to him that Norma was leaving the farm to him in a trust and was also “doing some wills and stuff.”
Richardson testified that, subsequently, at Norma’s request, he had driven her to a bank in Columbia, Missouri to meet with her attorney. He testified that he waited for her in the bank while Norma and her attorney conferred until he was eventually summoned into the conference room where Anding and Norma explained the documents Norma had executed to him. Richardson testified that he never forced or compelled Nonna to do anything regarding the Trust and will she executed in 2005. The trial court was entitled to believe the testimony of Anding and Richardson and to find that the evidence did not establish that Richardson had asserted any undue influence over Nonna in the creation of the Tinxst.
Appellant points to evidence that Norma stopped seeing her children and grandchildren shortly after her divorce and did not begin seeing them again until sometime after Richardson left the ranch. He argues that it was unnatural for her to leave property to her lover over her own children. He further makes much of the fact that Richardson was present on the ranch when Norma met with her attorney and was present at the bank when she executed the trust. Appellant also relies on testimony that there were guns in the house and that Norma was generally fearful of Richardson. From this evidence, Appellant argues that the only reasonable conclusion is that Richardson exerted undue influence over Norma and substituted his will for her own in the creation of the Trust. The trial court was not required to believe any of the evidence or testimony relied upon by Appellant and, even if it found it to be credible, was not required to afford it any weight or to draw the inferences relied upon by Appellant. Salem United Methodist Church, 138 S.W.3d at 790.
Viewing the evidence in accordance with our standard of review, the trial court’s finding that Appellant failed to prove that Richardson exerted undue influence over Norma in the creation of her trust is not against the weight of the evidence. Point denied.
The judgment is affirmed.
All concur.
. Because a significant number of the individuals involved in this case share the same last name, we will refer to them by their first names throughout this opinion. In so doing, we intend no disrespect.
. The language of the Trust uses the name “Robert Pressler” instead of Tommy Richardson to refer to Richardson. This was an alias that Norma helped Richardson assume within the first month of their relationship. She even helped Richardson create a fake Michigan birth certificate in that name. The trial court found that to Norma, Robert Pressler and Tommy Richardson were one and the same person and that, in using the name Robert Pressler in the Trust, Norma was referring to Richardson. This finding has not been challenged on appeal.
. The petition also named Brinkley as a defendant based upon her status as a beneficiary of the Trust. Brinkley, however, sided with the Estate in the case.
. Similarly, the Trust reserved to the Settlor the authority to amend, alter, or modify the Trust “by instrument in writing executed by Settlor and delivered to and executed by the Trustee.”
. Similarly, Norma executed the deed transferring ownership of the ranch to the Trust and is, therefore, presumed to know that she did not personally own that property.
. We further note that there is no apparent inconsistency between the 2005 Trust and the 2009 Will. The 2009 Will divided any property owned by Norma at the time of her death, on a percentage basis, to Lisa and Jeffrey. The 2009 Will revoked and replaced Norma’s 2005 Will, which was a spillover will executed to deal with the property personally held by Norma outside of the Trust at the time of her death. The 2009 Will does not specifically reference any property held by the Trust, and Norma never made any attempt to convey title to the property held by the Trust back to herself. Thus, as written, the 2009 Will only applies to property owned by Norma at the time of her death and would not apply to property owned by the Trust. Accordingly, the provisions of both the 2005 Trust and the 2009 Will may be carried out without any apparent conflict.
. Andings notes, which were entered into evidence, reflect that Norma told him that her divorce from their father had affected her relationship with her children. The notes further reflect that she told Anding that she intended to disinherit her children, not because she didn’t love them but because they would be adequately taken care of as beneficiaries of an irrevocable $30,000,000 trust that had been created by their father and their share of father’s'remaining estate. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284336/ | Per Curiam
Following a bench trial, the circuit court awarded a judgment of $272.24 to the City of Kansas City, Missouri (“City”) on its claim against Edna Crook and Mary Tail-man for unpaid water service bills. The City appeals, contending the circuit court erred in failing to award damages covering the full three-year period of the alleged delinquency. The City also contends the court erred in allowing hearsay testimony and documents proffered by Crook and Tallman. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment.
AFFIRMED. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284337/ | Gary M. Gaertner, Jr., Judge
Introduction
Jermaine Pate (Defendant) appeals the judgment entered upon his convictions for robbery in the first degree and armed criminal action. He argues the trial court should have dismissed the charges due to a violation of his constitutional right to a speedy trial, and alternatively that the trial court should have suppressed incriminating statements he made as fruit of being unlawfully held for more than 24 hours. Finally, he argues that there was insufficient evidence to prove that he committed *907the robbery with a dangerous instrument. We affirm.
Background
Just after midnight on October 25, 2012, Ganesh KC (Victim) arrived at his apartment in University City. He parked his white Toyota Camry in the parking area behind his apartment. As he got out of his car, two men, one of whom was Defendant, walked toward Victim and asked if he had jumper cables. Victim responded that he did not. Defendant asked if he could use Victim’s cell phone, and Victim gave it to him. The other man was behind Victim, and at that point he held a knife to Victim’s neck from behind. Defendant then pointed a gun at Victim and demanded Victim’s car keys. Victim gave them to Defendant, and the two men got into Victim’s car, in which Victim also had a laptop and some sports equipment, and drove away.
Victim contacted the police, and when they arrived, Victim gave them a description of the two men as well as the items stolen. Victim’s cell phone was equipped with a program that could be used to locate the phone, which police did. They tracked the phone to a retail store, where an employee gave them the name of a customer who had brought the phone into the store to be unlocked. The police eventually traced the phone to Darnesha Nunn (Nunn). Nunn said Defendant had given her the phone and a laptop and asked her to sell them, which she did. At the time, she did not know they were stolen. Police showed Nunn surveillance photos from the area- of the robbery taken near the time of the robbery, and Nunn identified Defendant and Tim Valley (Valley) as the two men pictured.
Detective Jesse Meinhardt created two separate photographic lineups containing pictures of Defendant and Valley and showed them to Victim. Victim identified Defendant as the man who had pointed a gun at him, and Valley as the man with the knife. Detective Meinhardt then put out a “wanted” for Defendant and Valley, which alerted other police officers that they could arrest Defendant, but was different than an arrest warrant because it had not been signed by a judge who had verified probable cause.
On February 12, 2013, Cuba, Missouri police officers arrested Defendant. They transported Defendant to University City, Missouri, where Detective Meinhardt met with him the next day, February 13, 2013. After advising Defendant of his Miranda1 rights, Detective Meinhardt took a statement from Defendant, who maintained he did not do anything.
Detective Meinhardt then obtained warrants for Defendant’s arrest for robbery in the first degree and armed criminal action. Detective Meinhardt returned to speak with Defendant the next day, February 14, 2013, and showed him the warrants. Defendant waived his Miranda rights and wrote out a statement in which he admitted robbing Victim and apologized for taking Victim’s car.
Defendant waived his right to a jury trial, and the court tried his case on May 12, 2014. Defendant moved to dismiss the charges, arguing the State had violated his right to a speedy trial, which the trial court denied. Defendant also moved to suppress his written statement as well as later statements he had made during recorded telephone calls from jail. He argued that all of these were made while he was being unlawfully detained without an arrest warrant longer than 24 hours. The *908trial court denied Defendant’s motion and convicted him of robbery in the first degree and armed criminal action. The court sentenced Defendant to concurrent terms of thirteen years in prison for each offense. This appeal follows.
Discussion
Defendant raises four points on appeal. He argues the trial court erred in failing to dismiss the charges against him due to a violation of his right to a speedy trial. He also argues the trial court clearly erred in denying his motion to suppress his written statement as well as portions of phone calls he made from jail, and finally, that there was insufficient evidence from which the trial court could find him guilty of armed criminal action.
Point I
Defendant argues that the trial court erred in failing to dismiss the charges against him and in proceeding to trial because the 15-month delay between his arrest and his trial violated his constitutional right to a speedy trial. We disagree.
We review de novo whether a defendant’s constitutional rights have been violated. State v. Sisco, 458 S.W.3d 304, 312-13 (Mo. banc 2015) (citing State v. Schroeder, 330 S.W.3d 468, 472 (Mo. banc 2011)), In so doing, we defer to the trial court’s factual findings and credibility determinations. Id.
“The United States and Missouri Constitutions provide equivalent protection for a defendant’s right to a speedy trial.” State ex rel. McKee v. Riley, 240 S.W.3d 720, 729 (Mo. banc 2007). There is no bright-line test to determine a violation of this right, rather a “court must balance four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.” Id. (citing Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).
The first factor triggers the analysis, because until there is a delay that is presumptively prejudicial, we need not consider the other three factors. State ex rel. Garcia v. Goldman, 316 S.W.3d 907, 911 (Mo. banc 2010). In Missouri, a delay of eight months is presumptively prejudicial. Id. Here, the delay of 15 months between Defendant’s arrest in February of 2013 and trial in May of 2014 is presumptively prejudicial, thus we must balance the other factors. See id.
Regarding the second factor, the reason for the delay, it is “incumbent upon the State to establish the reasons justifying the delay.” State v. Mason, 428 S.W.3d 746, 750 (Mo.App.E.D. 2014), abrogated on other grounds by Sisco, 458 S.W.3d at 311-13. We assign different weights to different reasons for the delay. Mason, 428 S.W.3d at 750 (citing Garcia, 316 S.W.3d at 911). A deliberate attempt by the State to hinder the defense weighs heavily against the State. Mason, 428 S.W.3d at 750 (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). Neutral reasons, such as overcrowded dockets or the State’s negligence also weigh against the State, but less heavily. Id. Conversely, “[d]elays attributable to the defendant weigh heavily against the defendant.” State v. Darnell, 858 S.W.2d 739, 745 (MoApp.W.D. 1993) (internal quotations and citations omitted).
Here, the reasons for the delay are predominantly neutral. Once the trial court set a date for trial, it was not continued. Before that, while the record reflects several continuances of pretrial conferences, it notes no reason for each continuance. During that time period, Defendant changed attorneys and at one point indi*909cated a desire to proceed pro se. At a pretrial conference on November 22, 2013, the trial court denied Defendant’s motion to proceed pro se in light of Defendant’s explanation that it was simply a misunderstanding with his attorney. We see nothing in the record indicating a deliberate attempt by the State to delay trial or hamper the defense. See State v. Fleer, 851 S.W.2d 582, 597 (Mo.App.E.D. 1993). The delay coinciding with Defendant’s change of attorney was likely to allow time for new counsel to prepare, which is reasonable. Any weight against the State in the second factor is slight in this case.
The third factor is Defendant’s assertion of his right to a speedy trial. Here, Defendant sent pro se letters to the court and the prosecutor requesting a speedy trial, beginning in June of 2013. The trial court instructed Defendant regarding the Missouri Department of Corrections’ form for requesting a speedy trial in November of 2013, which Defendant filed in January of 2014. Defendant asserted his right early in the proceedings and did so multiple times, thus this factor is weighed in his favor. Mason, 428 S.W.3d at 752.
Finally, the most important factor in our analysis is any resulting prejudice to Defendant. Id. We consider three additional factors in determining prejudice, the third of which is “the most vital to the analysis”: (1) the oppressiveness of pretrial incarceration, (2) whether it unduly heightened the defendant’s anxiety, and (3) the impairment of the defense. Id. (quoting State v. Newman, 256 S.W.3d 210, 216-17 (Mo.App.W.D. 2008)). ■
Here, Defendant argues his anxiety was evidenced by his repeated requests for a speedy trial. Defendant does not argue that the delay impaired his defense. Under the circumstances here, the evidence of the crime was memorialized in photographs and police reports, and it is unreasonable to believe Victim’s memory as to who had robbed him was so eroded by the delay here as to cause him to mis-identify Defendant, especially when Victim had identified Defendant in a photographic lineup within a few months of the crime. Any impairment of the defense is speculative at best. Thus, in this particular case, the effects of the delay on Defendant are outweighed by the lack of impairment to his defense. See Mason, 428 S.W.3d at 752.
In view of all relevant factors, we find no error in the trial court’s decision to proceed to trial in that under the circumstances, the delay here did not violate Defendant’s constitutional right - to a speedy trial. Point denied.
Points II and III
In both of Defendant’s next points, he argues the trial court clearly erred in denying his motion to suppress his written statement to police as well as recordings of calls he made from jail' containing incriminating statements. In Point II, he argues the trial court should have suppressed these statements because they were the fruit of an unlawful arrest. In Point III, he argues in addition that these statements should have been suppressed because he was unlawfully detained for more than 24 hours without an arrest warrant, in violation of Section 544.170, RSMo. (CurmSupp. 2014). We disagree with both arguments.
We review a trial court’s ruling on a motion to suppress for substantial evidence to support the ruling, reversing only if the ruling is clearly erroneous. State v. Faruqi, 344 S.W.3d 193, 199 (Mo. banc 2011). We view the facts and reasonable inferences in the light most favorable to the ruling. State v. Gaw, 285 S.W.3d 318, 319 (Mo. banc 2009).
*910
1. Probable Cause to Arrest Defendant
First, Defendant argues that the trial court should have suppressed his statements because his warrantless arrest in Cuba, Missouri, violated his Fourth Amendment protection against unreasonable searches and seizures in that it was based only upon the “wanted” issued by Detective Meinhardt, rather than a warrant for Defendant’s arrest. Defendant argues that any statements he made while in police custody, therefore, were the fruit of this unlawful arrest.
The “wanted” here was simply a way to inform other police officers that Defendant was involved in a robbery, and it gave other police officers authority to arrest Defendant if they encountered him. Detective Meinhardt testified the “wanted” was different than an arrest warrant because it was not a statement of probable cause signed by a judge, as an arrest warrant is. See In re Green, 593 S.W.2d 518, 518 (Mo. banc 1979) (quoting Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)) (“arrest warrant may not issue unless there has been a finding of probable cause by a neutral and' detached magistrate”). Thus, we consider the legality of Defendant’s arrest as a warrantless arrest.
A warrantless arrest is valid where it is supported by probable cause. U.S. v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); State v. Garrett, 627 S.W.2d 635, 641 (Mo. banc 1982) (noting “[t]his proposition is so well recognized that it needs no authority”). “The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest.” Watson, 423 U.S. at 417, 96 S.Ct. 820.2
Probable cause exists where “knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense.” State v. Clayton, 995 S.W.2d 468, 477 (Mo. banc 1999) (quoting State v. Tokar, 918 S.W.2d 753, 767 (Mo. banc 1996)). The information supporting probable cause must be known to the officers before the arrest. Clayton, 995 S.W.2d at 477. It may be made up of the “collective knowledge and the facts available to all of the officers participating in the arrest; the arresting officer does not need to possess all of the available information.” Id. (quoting State v. Mayweather, 865 S.W.2d 672, 675 (Mo.App. E.D. 1993)).
Moreover, “[i]nformation supplied by one police department can provide the probable cause for an officer in another police department to make an arrest.” State v. Boyd, 784 S.W.2d 226, 228 (Mo.App.E.D. 1989). Radio bulletins, telephone calls, computer records, and police flyers have all been upheld as permissible means of authorizing officers to arrest, so long as the individual officer disseminating the information had probable cause to arrest at that time.3 See U.S. v. Hensley, *911469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (noting police may arrest on basis of wanted flyer, but admissibility of resulting evidence uncovered “turns on whether the officers who issued the flyer possessed probable cause to make the arrest”) (citing Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) (noting in making arrest, police are entitled to rely on message over police radio or reliable telephone communication from another police officer)); see also Arizona v. Evans, 514 U.S. 1, 15-16, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (establishing exception to exclusionary rule when officer relies in good faith on erroneous computer record stating defendant had outstanding warrant for arrest); State v. Franklin, 841 S.W.2d 639, 643 n.4 (Mo. banc 1992) (noting no rational distinction between stop made in reliance on police radio dispatch or wanted flyer; citing cases).
In such a case, the State must show that the officer who provided the information had probable cause that would have enabled the officer to make the arrest himself. State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998). If it is later apparent that the officer requesting assistance in arresting the accused did not have probable cause for the arrest, evidence obtained incident to the arrest may be suppressed.4 See Whiteley, 401 U.S. at 568, 91 S.Ct. 1031 (holding because radio bulletin message at issue was unsupported by probable cause, exclusionary rule applied to evidence uncovered during search incident to arrest); but see Evans, 514 U.S. at 13, 115 S.Ct. 1185 (noting Whiteley ’s “precedential value regarding application of the exclusionary rule is dubious”).
Here, the trial court’s denial of Defendant’s motion to suppress is supported by substantial evidence because the record reflects that probable cause existed for Defendant’s arrest. Detective Mein-hardt had gathered surveillance footage depicting Defendant in the area of the robbery at the time of the robbery. Nunn had identified Defendant in those photos and had said that she received the stolen cell phone and laptop from Defendant, who wanted her to sell it. Victim had identified Defendant in a photographic lineup as the person who robbed him. This was sufficient to warrant a prudent person’s belief that Defendant had robbed Victim, and Detective Meinhardt was cognizant of this information at the time he disseminated the “wanted.” We see no discernable difference between Detective Meinhardt’s telephone call and subsequent sending of the “wanted,” and a radio bulletin or a police flyer. See Franklin, 841 S.W.2d at 643. The crux is whether the communication was supported by probable cause, and here it was. While an arrest warrant would have provided clear evidence of probable cause as opposed to the tenuous nature of a “wanted,” the Cuba police department’s reliance on the “wanted” was lawful under the circumstances here. Thus, any statements Defendant made thereafter are not subject to exclusion for unlawful arrest. Point II denied.
*912
2. Section 544.170
Defendant also argues that the trial court should have suppressed his statements because he made them after being detained without an arrest warrant for longer than Missouri’s statutory limit of 24 hours. Section 544.170 provides that any person being held without a warrant “shall be discharged from said custody within twenty-four hours from the time of such arrest, unless they shall be charged with a criminal offense by the oath of some credible person, and be held by warrant to answer to such offense.” Here, Detective Meinhardt conceded that it was over 24 hours from the time of Defendant’s initial arrest in Cuba, Missouri, to the time that Detective Meinhardt obtained an arrest warrant for robbery in the first degree and armed criminal action.
Because law enforcement could have avoided this scenario entirely by initially obtaining an arrest warrant for Defendant, it is troubling that law enforcement failed to obtain an arrest warrant within the 24-hour statutory period following Defendant’s arrest by. the Cuba police on the “wanted.” From the record, probable cause existed well before Defendant’s arrest.5 Additionally, Detective Meinhardt testified that he had received multiple phone calls from Defendant’s family members, whom he had contacted early on during his investigation. Detective Mein-hardt said they called to let him know that Defendant had come to Defendant’s mother’s home in Cuba, Missouri, and they wanted Defendant to leave. It was these phone calls that led Detective Meinhardt to contact the Cuba police and send them a copy of the “wanted.” It appears from the record that at any time during this period, Detective Meinhardt could have sought an arrest warrant.for Defendant.
Regardless, Section 544.170 “addresses only the length of time an arrestee can be held without being formally charged; it does not address probable cause for an arrest.” State v. Ard, 11 S.W.3d 820, 827 (Mo.App.S.D. 2000). As we have already determined, it is clear that law enforcement had probable cause to arrest Defendant here.
Beyond that, the question is whether Defendant’s statements were voluntary. “[A] violation of Section 544.170 does not automatically make a statement involuntary.” State v. Heckadon, 400 S.W.3d 526, 527 (Mo.App.S.D. 2013); see also Roberts v. State, 476 S.W.2d 490, 494 (Mo. banc 1972) (deciding under prior version of statute containing 20-hour limit that “detention beyond the statutory limit, standing alone, is not sufficient to make an otherwise voluntary statement involuntary”). Defendant does not argue that his statements were otherwise involuntary beyond the Section 544.170 violation, and we see no evidence to that effect.
Moreover, while “persons without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause,” the United States Supreme Court has determined that such determination within 48 hours of arrest complies with the Fourth Amendment, so long as no unreasonable delays are present, such as a delay for the sake of gathering additional information to justify the arrest or a delay motivated by ill will. County of Riverside v. McLaughlin, 500 U.S. 44, 53, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). “Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings *913where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.” Id. at 56-57, 111 S.Ct. 1661.
Here, Detective Meinhardt obtained an arrest warrant within 48 hours of Defendant’s arrest. Detective Meinhardt testified that Cuba police arrested Defendant in the evening of February 12, 2013, or the early hours of February 13. Detective Meinhardt first interviewed Defendant on the afternoon of February 13, and he obtained an arrest warrant the following day. There is no evidence that law enforcement intentionally delayed obtaining arrest warrants. Further, there is nothing to suggest that the delay in obtaining an arrest warrant here was due to anything other than the time it took to transport Defendant from Cuba, Missouri, to University City, Missouri, or other practical realities involved in law enforcement. See id.
Thus, while law enforcement must scrupulously uphold the 24-hour time limit in Section 544.1706; in this particular circumstance, the trial court did not clearly err in denying Defendant’s motion to suppress on this basis. Point III denied.
Point IV
Last, Defendant argues that there was insufficient evidence to support his conviction for armed criminal action because the evidence did not establish beyond a reasonable doubt that he actually used a gun in robbing Victim. We disagree.
We review challenges to the sufficiency of the evidence to determine whether there is sufficient evidence in the record from which a reasonable factfinder could conclude that the defendant was guilty beyond a reasonable doubt. State v. Fortner, 451 S.W.3d 746, 755 (Mo.App.E.D. 2014). We accept as true all evidence and reasonable inferences in favor of the State and disregard all evidence and inferences to the contrary. Id.
Section 571.015.1 provides that a person commits armed criminal action when he or she commits “any felony ... by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.” RSMo. (2000). A gun is a statutorily defined deadly weapon. Section 556.051(22), RSMo. (Cum.Supp. 2014).
Here, Victim testified that Defendant pointed a gun at him and demanded his car keys. Defendant points out that Victim admitted on cross-examination that he had never before seen a real gun, that he was seven to ten feet away from Defendant, Defendant was holding up a black object with his arm parallel to the ground, and Victim assumed that it was a gun. Defendant argues that this testimony, coupled with Nunn’s testimony that Defendant carried a stun gun rather than a real gun, renders the trial court’s conviction the result of speculation.
However, the testimony of a single witness is sufficient to support a conviction, even if that testimony is inconsistent. See State v. Shaw, 602 S.W.2d 17,19 (Mo.App.E.D. 1980). Victim’s testimony that he saw Defendant point a gun at him was sufficient evidence from which the trial court could conclude defendant had a gun. Victim’s testimony on cross-examination and the other evidence that Defendant only carried a stun gun were matters for *914the trial court to weigh and resolve as the factfinder. See State v. Holman, 230 S.W.3d 77, 83 (Mo.App.S.D. 2007) (factfin-der resolves conflicts in evidence and may believe all, part, or none of witness’ testimony). Viewing the evidence as Defendant urges would be to grant him the benefit of inferences from the evidence, which is in direct opposition to our standard of review.
There was sufficient evidence in the record from which the trial court could find Defendant guilty of armed criminal action. Point denied.
Conclusion
The trial court did not err in proceeding to trial because under the circumstances here, the 16-month delay between Defendant’s arrest and his trial did not violate his constitutional right to a speedy trial. The trial court also did not clearly err in denying Defendant’s motion to suppress incriminating statements he made in police custody and later from jail because they were not the fruit of an unlawful arrest. Additionally, in absence of any evidence that the delay in obtaining warrants was unreasonable, Defendant’s statements were not rendered involuntary by the fact that the State held him for over 24 hours in violation of Section 544.170. Finally, there was sufficient evidence from which the trial court could find Defendant guilty of armed criminal action. The judgment of the trial court is affirmed.
Philip M. Hess, P.J., concurs.
Angela T. Quigless, J., concurs.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Defendant argues essentially that for a war-rantless arrest to be valid, there must have been exigent circumstances justifying the arrest. The United States Supreme Court has refused to adopt this requirement. See U.S. v. Watson, 423 U.S. 411, 450, 96 S.Ct. 820, 46 L.Ed.2d 598 (1975) (Stewart, J., dissenting) (Justice Stewart urging adoption of rule that police must obtain warrant before arrest except where exigent circumstances exist).
. These types of police communications can also support an investigative stop, rather than an arrest, where police have reasonable suspicion the person stopped has committed a crime, rather than probable cause. See U.S. v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) ("We conclude that, if a flyer or bulletin has been issued on the basis of articu-*911lable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification.... [EJvidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop, ... and if the stop that in fact occurred was not significantly more intrusive than would have been permitted the issuing department”).
. Additionally, in certain instances, officers relying on objectively unreasonable communication may incur civil liability for an unlawful arrest. See U.S. v. Celio, 945 F.2d 180, 184 (7th Cir. 1991) (citing cases).
. Detective Meinhardt created the "wanted” on December 4, 2012. We have already determined that the "wanted” was supported by probable cause.
. A violation of Section 544.170 is not without consequence. While such violation may not necessarily invalidate the arrest or require exclusion of resulting statements or evidence, any person who intentionally violates Section 544.170 is guilty of a class A misdemeanor. Section 544.170.3. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284338/ | ROBERT G. DOWD, JR., Presiding Judge
The State of Missouri and the Department of Natural Resources (collectively “the State”) appeal from the trial court’s dismissal of its amended petition against the Didion Land Project, LLC. We reverse and remand.
In 2011, the State filed a petition for injunctive relief and civil penalties against Didion and its individual owners alleging violations of various Missouri environmental laws. Didion operated a foundry at a site in St. Charles County until 2009, at which time Didion began demolition of the foundry facility. The petition alleged that Didion failed to perform an asbestos inspection or notify the DNR of the demolition. It also alleged that at various times known and unknown, Didion generated solid waste at the site without determining whether the waste was hazardous and then unlawfully dumped that solid waste on the *916ground and in nearby waters. The State also alleged that on three occasions in 2011, Didion unlawfully refused the DNR access to the site to conduct a compliance inspection regarding the solid waste. The State asserted that each of these actions was a violation of a specific environmental statute or regulation. The State sought preliminary and permanent injunctive relief prohibiting Didion from further violations of these laws and civil penalties for each day Didion was in violation.
The State applied for and was granted a temporary restraining order prohibiting Didion from taking any action at the site. The State also applied for a preliminary injunction, and in February of 2012, the court entered the parties’ agreed order of preliminary injunction. Therein, Didion was ordered to properly characterize, transport and dispose of various materials at the site. Once completed, Didion would be allowed to prepare the site for construction of a storage building. Foundry sand also was to be characterized and disposed of accordingly. Didion was prohibited from taking any other action at the site. The tasks in the preliminary injunction were to be completed in ninety days.
Shortly thereafter, the State filed a motion to show cause why Didion should not be held in contempt for violating the preliminary injunction. The court held a hearing in April of 2012, after which the parties agreed on a resolution, and the court assessed a civil penalty of $2,000 against Didion for its failure to comply and ordered Didion to obey the orders in the preliminary injunction. In December of 2012, the State moved again to show cause why Didion should not be held in contempt, alleging that only a portion of the hazardous waste and materials had been dealt with, that organic peroxide remained and that new materials were being stored on the site; moreover, Didion had not yet paid the penalty for its first violation of the preliminary injunction. The court entered another order of contempt in which Didion was again ordered to comply with all the court’s orders and applicable environmental laws and assessed an additional penalty of $6,000 for failing to pay the earlier assessed penalty and failure to comply with the court’s previous orders. In January of 2013, that order of contempt was amended to indicate some completion of the preliminary injunction tasks and to extend the time in which to complete others.
By June of 2013, the parties still disagreed as to whether the tasks in the preliminary injunction had been fully completed. The State filed its third motion to show cause why the court should not hold Didion in contempt, and Didion filed a motion to dissolve the preliminary injunction. The State also filed an application for a new temporary restraining order and preliminary injunction. In July of 2013, the court held a hearing, at the outset of which, it stated expressly that it was taking up the State’s motion to show cause and Didion’s motion to dissolve the preliminary injunction. The court also granted the State leave to file an amended petition, over no objection from Didion, although it was not actually filed until much later. The parties presented evidence and arguments over two days.
Shortly thereafter, the court issued its “findings and judgment.” Therein, the court identified three matters being taken up by the court: the State’s motion to show cause, Didion’s motion to dissolve the preliminary injunction and the State’s new motions for temporary restraining order and preliminary injunction. The court found that there was no longer any hazardous waste at the site and the concerns that necessitated the entry of a temporary restraining order and preliminary injunc*917tion no longer existed. It also found that there was no current irreparable harm to justify the issuance of a new temporary restraining order or preliminary injunction. Finally, the court found that while Didion had not further violated the preliminary injunction, it had failed to pay the penalties previously and properly entered for earlier violations. The court denied the State’s motion to hold Didion in contempt, denied the application for another temporary restraining order and preliminary injunction and granted Didion’s motion to dissolve the preliminary injunction order except as to the $8,000 in civil penalties Didion still owed and as to the foundry sand on site that Didion was still obligated to “deal with” in compliance with all applfi cable laws.
In November of 2013, the State actually filed the amended petition it had been granted leave to file months earlier. Therein — in addition to repeating the allegations and requests for relief stated in the original petition — the' State alleged that Didion stored hazardous waste at the site from October of 2009 until at least December of 2012 and therefore was a hazardous waste facility and had failed to comply with numerous requirements imposed on such facilities; Didion’s storage of hazardous waste without proper security or a contingency plan created a public nuisance; since September of 2010, Didion stored foundry sand, which it intermittently discharged into the waters of the state without a permit; and that sometime during 2012 and 2013, Didion excavated without notice as required of underground facility operators. The State again sought preliminary and permanent injunctive relief prohibiting Didion from further violations of environmental laws and from further public nuisance and sought civil penalties for each day Didion violated those laws. Didion filed a counterclaim for enforcement of the' Missouri sunshine law and statutory damages a couple of days later.
The trial court then issued an order directing the parties to “review orders and determine if issues remain” before the court would “entertain trial setting and/or motions to dismiss.” The State responded to the court’s order with a letter explaining that while the' court had concluded there was no necessity for a preliminary injunction, no decision had yet been made on any of the alleged violations of environmental laws or other allegations and requests for relief stated in the amended petition. The State also filed a motion for a trial setting, and the court set a “case review” in January 2014, at which time counsel would pick a trial date. A few days prior to the scheduled case review, Didion filed a motion to dismiss the amended petition, in which it asserted that the parties had a “full and fair trial on the merits” at the July 2013 hearing. Didion claimed that the decision entered after that hearing was a “full and final order,” which denied all the injunctive relief and civil penalties requested and which barred further litigation, citing the doctrines of res judicata and collateral estoppel. The trial court granted Didion’s motion to dismiss and denied the State’s motion for a trial setting without explanation after a hearing, a transcript of which has not been provided to this Court.1 This appeal follows.
*918On appeal, the State contends that the motion to dismiss should have been denied because it relied on matters outside the amended petition — namely the July 2013 hearing and order — without first properly converting the motion to one for summary judgment. The State also argues that the July 2013 hearing and order did not address all the claims set forth in its amended petition, and thus it should not have been dismissed on the preclusion principles asserted by Didion.
First, Didion’s motion to dismiss was based solely on res judicata and collateral estoppel. Thus, it is to be treated as a motion for summary judgment, even though proper notice of its conversion thereto was not given, because all the materials necessary to decide the question— namely, the trial court’s own file containing its previous rulings that allegedly precluded further litigation — were before the court. See Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125-26 (Mo.App.E.D. 1999).
More importantly, none of the preclusive principles on which Didion relies apply to. the circumstances of this case or justify the trial court’s dismissal. Didion argues that the July 2013 order bars further litigation of this case. But the July 2013 order was a preliminary injunction ruling that — like all trial court rulings prior to final judgment — was interlocutory. Res judicata and collateral estoppel apply to final judgments and preclude re-litigation of the claims or issues decided therein in subsequent causes of action. Allen v. Titan Propane, LLC, 404 S.W.3d 914, 916 (Mo.App.S.D. 2013). Thus, they have no application here to the interlocutory rulings of a trial court in an ongoing cause of action. Likewise, the law of the case doctrine does not apply to successive trial court rulings. American Standard Insurance Company of Wisconsin v. Stinson, 404 S.W.3d 303, 314-15 (Mo.App.E.D. 2012). Rather, that doctrine requires a trial court to apply appellate court decisions to subsequent proceedings in the case. Id. While a trial court has the discretion to decline re-argument of its previous rulings, it also has the discretion to reconsider and change its interlocutory orders at any time prior to entry of final judgment. See Pathway Financial v. Schade, 793 S.W.2d 464, 470 (Mo.App.E.D. 1990). The law of the case doctrine does not limit that discretion, and the trial court in this case was not bound under that doctrine to follow any of its earlier decisions. See id. None of these preclusive principles support the trial court’s dismissal of this case.
It appears that the trial court agreed with the claim in Didion’s motion that the July 2013 hearing was a full and fair trial on the merits. But again, the July 2013 hearing occurred as part of the preliminary injunction phase of this proceeding. The issuance of a preliminary injunction — and its continued necessity over the course of the litigation — depends on the likelihood of success at trial and the threat of irreparable harm in the meantime. Cook v. McElwain, 432 S.W.3d 286, 292 (Mo.App.W.D. 2014). Whereas, at the permanent injunction stage, the trial court must finally determine the merits of the claims — not merely the probability of prevailing — and weigh the harm caused by an order that permanently prohibits or requires a particular action. Id. The parties are entitled to a separate trial on the merits before permanent injunctive relief is ruled upon and, thus, they are not required to present their entiré case at the preliminary injunction stage. Id. For *919these reasons, the trial court may not simply adjudicate the merits of a claim for permanent injunction on the evidence presented at a preliminary injunction hearing. Id. at 291.
The trial on the merits may be advanced and consolidated with the preliminary injunction hearing, but only by the clear and unambiguous order of the trial court under Rule 92.02(c)(3) or by agreement of the parties, neither of which exists here. See id. at 290-91. To the contrary, the scope of the July 2013 hearing — as expressly stated at the outset by the court — was limited to the State’s motion to hold Didion in contempt and Didion’s motion to dissolve the preliminary injunction. The court’s order also expressly ruled only on those motions and on the State’s requests for a new temporary restraining order and preliminary injunction. Nothing in that order purports to deal with the merits of entering a permanent injunction or granting the other relief requested in the original petition, much less the additional claims stated in the amended petitions. Contrary to Didion’s interpretation, the civil penalties ordered in July 2013 addressed only Didion’s violation of the preliminary injunction and failure to pay the first monetary penalty issued. There has yet to be a determination of the alleged violations of environmental laws in the past or the propriety of penalties therefor.
We must reverse the dismissal order, order the trial court to reinstate the amended petition and remand for further proceedings consistent with this opinion.
Mary K. Hoff, J. and Roy L. Richter, J., concur.
. Because it does not specify, the order is deemed to be a dismissal of the petition "without prejudice.” Ordinarily, such an order would not be appealable. But because the practical effect of this order was to terminate the litigation — in as much as it was dismissed on preclusion principles — it is appeal-able. Brown v. Brown-Thill, 437 S.W.3d 344, 351 n. 1 (Mo.App.W.D. 2014) (dismissal without prejudice on grounds claims were addressed and resolved in federal litigation *918appealable because had practical effect of terminating action in form cast). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284339/ | ORDER
PER CURIAM.
Mitchell L. Murdock (Appellant) appeals from the judgment entered by the trial court upon a jury verdict finding him guilty of stealing. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court did not err in denying Appellant’s motions for acquittal. 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 *920pursuant to Missouri Rule of Criminal Procedure 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284340/ | ORDER
PER CURIAM.
Gerald Edwards appeals from the motion court’s judgment denying, following an evidentiary hearing, his amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 29.15.1 We have reviewed the briefs of the parties and the record on appeal and con-elude the judgment of the motion court was not clearly erroneous. Rule 29.15(k). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).
. All rule references are to Mo.R.Crim.P. 2013, unless otherwise indicated. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284356/ | ORDER
PER CURIAM
Larry Mueller appeals from the motion court’s Findings of Fact, Conclusions of Law, and Order denying, without an evi-dentiary hearing, his amended Rule 24.035 Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing. We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential or precedential purpose. We have, however, provided a memorandum *409opinion 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/5284342/ | KURT S. ODENWALD, Judge
Introduction
Appellant Lance Murray (“Murray”) appeals from the judgment of the trial court entered after a jury verdict. The jury found Murray guilty on three counts: first-degree robbery, armed criminal action, and first-degree tampering. Before trial began, Murray filed a motion to proceed pro se. The trial court granted Murray’s motion. On appeal, Murray argues that the trial court erred in granting his motion to proceed pro se. Because Murray made a timely, unequivocal, knowing, and intelligent waiver of his right to counsel, we affirm the judgment of the trial court.
Factual and Procedural History
Murray was charged with first-degree robbery, armed criminal action, and first-degree tampering. The charges stemmed from the robbery of a White Castle at gun point and the subsequent fleeing of the scene in a stolen minivan. Murray received counsel from the Missouri State Public Defender. On January 31, 2013, counsel entered her appearance on behalf of Murray and began conducting discovery.
On August 15, 2013, Murray filed his first motion to terminate counsel and proceed pro se. The criminal-assignment judge interviewed Murray and decided that Murray was not competent to represent himself.1 On October 15, 2013, Murray filed another motion to proceed pro se. The trial court heard that motion on the trial date the following week.
When the trial court asked for background information on Murray’s motion to proceed pro se, Murray explained that he was dissatisfied with his counsel. Murray believed counsel showed a “lack of interest” every time they met and that counsel did not have Murray’s “best interest at heart.” Murray stated:
I know under — I have a right under the 6th Amendment of the United States Constitution to pro se, and I believe— and I did — Your Honor, I did carefully consider this. And I believe — and I know I can represent myself I do not want [counsel] representing me at all.
Murray assured the trial court that “the whole case is prepared. I got all my questions. Everything. Everything I need. Everything is prepared.” At the time, Murray had not seen the surveillance video. Murray believed the' surveillance video would prove his innocence.
The trial court began examining Murray under oath. Murray reiterated that he wanted to represent himself. Murray said, “I would like to have assistance, because I do want to see .the surveillance video [from the robbery]. Due to the fact of me being locked up, I wouldn’t be able to show myself the video surveillance. So I would like to have assistance, collateral assistance.” The court responded that, while Murray could watch the surveillance video, the court could not guarantee any other assistance: “you either want to go *924on your own or you don’t,” Murray responded “I will be ready to go.” The court warned Murray that he was facing serious charges and that representing himself was a mistake; Murray replied that he did not trust his attorney and he did not want anyone to represent him. Next, the court confirmed that Murray could read and write, and that Murray had a 12th grade education.
The court reyiewed the range of punishment for the charged crimes. Murray understood that first-degree robbery and armed criminal action carried potential life sentences, but mistakenly believed that first-degree tampering carried a 20-year sentence, when in fact the maximum sentence is seven years. Murray stated that he understood the judge would sentence him as a prior offender; that armed criminal action carried a minimum sentence of three years in prison; that he would serve at least 85% of a potential robbery sentence; that he would likely receive prison time if he was found guilty; and that his appointed counsel was ready and able to represent him for free. The court warned Murray that technical rules of procedure and evidence applied to him and that he would not receive help from the court or the prosecutor. The court said, “[y]ou understand that if you ... get fouled up by the rules of procedure, you will be much worse off than if you had a lawyer?” Murray acknowledged that he understood.
The court proceeded to ask Murray about the legal elements of the case:
[MURRAY]: Legal elements?
[COURT]: Right. What does the state have to prove.
[MURRAY]: Beyond a reasonable doubt that I am guilty of this crime, if they come with factual evidence that I am guilty of this crime.
[COURT]: Do you know what kind of evidence they have to present?
[MURRAY]: It’s all about really what the jury believes.
[COURT]: Do you know what makes up robbery in the first degree as opposed to robbery in the second degree?
[MURRAY]: Nah. Second degree robbery would be based upon — I don’t think a gun was used, right? I don’t really—
[COURT]: Well, that’s one of the issues, Mr. Murray. You know whether the law requires proof of a specific intent or a general intent for any of the charges?
[MURRAY]: No.
The court explained the hazards of mishandling procedural issues, such as objections. Murray responded:
I won’t use objections the wrong way, because there are certain things — some things is people — people will say, they really don’t make sense. I’ll let — certain things I will let just pass me by anyway, because some things, if I don’t understand, the jury don’t understand them. If they’re using big words, big old fancy words, God can’t understand. Believe me, most likely he don’t understand either.
Murray believed he was competent. The court warned: “I know you have a high estimate of your ability, but, you know, it’s kind of like a doctor taking out his own appendix, Mr. Murray.... It may not work.” The court explained that rules of evidence could keep Murray’s evidence out, that certain issues would be lost if not raised, and that Murray’s actions in front of the jury could prejudice his case. Murray said he understood the dangers and still wanted to represent himself.
The court asked if Murray had any defenses. Murray responded, “[a]ny defenses? I got — I got a lot of defense, for real. Lot of defense. I got my paperwork ready,” The court inquired about Murray’s *925mental health, to which Murray responded: “No, I been to college and everything, I detect — did a couple of good things. I’m a welder in town.” Murray gave a long response including his use of drugs, which he does not do anymore because God made him better. The court warned that Murray would not be able to come back to court and complain that his lawyer was inadequate. The court asked:
[COURT]: For the last time, I strongly advise you against it, but do you want to represent yourself?
[MURRAY]: Yes, I win.
[COURT]: The problem I have, you know, Mr. Murray, is similar to the problem that [the criminal-assignment judge] had. I’m concerned about your ability to understand the rules of procedure .... [I]f I do let you represent yourself, we’re going to follow certain-rules. One of the rules is that I’m going to do all the questioning of the jurors for jury selection. I’ll give you and the prosecutor 10 minutes a piece to talk to them, to ask them any questions you want to ask them.... Otherwise, we’re going to proceed in strict accordance with the rules.
The court asked if Murray had' jury instructions. Murray said he would “let [the court] do that.” The court again warned:
Well, that’s another issue, because that’s — there are some jury instructions that the court gives automatically. There are others that only the defendant can ask for, or that the state asks for and the defendant objects. So if you don’t know anything about jury instructions, you’ve got another problem.
After a brief recess for Murray to watch the surveillance video, the court accepted Murray’s signed memorandum waiving his right to counsel. After Murray indicated he had no questions about the waiver, Murray confirmed that he still wished to represent himself. The court found that Murray was fully informed of and. understood his right to assistance of counsel, and that Murray was literate and mentally competent. The court also found Murray “knowingly, voluntarily, and intelligently” waived his right to counsel with full knowledge of the consequences and the effect of the waiver. Murray proceeded to trial pro se, with his original counsel retained as “standby counsel.” Standby counsel sat inside the bar in the event Murray had a question, but not at counsel table.
After trial, the jury convicted Murray on all counts: first-degree robbery, armed criminal action, and first-degree tampering. The trial court sentenced Murray to fifteen years, three years, and two years, respectively, in prison. The three sentences were run consecutively to each other, for a total of twenty years in prison. This appeal follows.
Point on Appeal
In his sole point on appeal, Murray contends that the trial court erred in allowing Murray to represent himself pro se during trial. Murray argues that the court did not adequately, advise him about possible defenses, and did not overrule his request despite demonstrating fundamental misunderstandings about the trial process,
Standard of Remeto
A constitutional claim must be made at the first opportunity to be preserved for review. State v. Fassero, 256 S.W.3d 109, 117 (Mo. banc 2008). While no objection was raised during trial, we cannot expect Murray to file an objection to his own motion in order to preserve this issue for appeal. After trial, standby counsel filed a motion for new trial alleging the trial court erred -in allowing Mur*926ray to proceed pro se. Since standby counsel raised the issue in the motion for new trial, this was the first opportunity. Thus, the issue was preserved. Appellate review of the factors constituting a valid waiver of the right to counsel is de novo. State v. Johnson, 328 S.W.3d 385, 394 (Mo.App.E.D. 2010) (citing United States v. Kind, 194 F.3d 900, 903-904 (8th Cir. 1999)).
Discussion
The Sixth Amendment right to counsel “implicitly embodies a correlative right to dispense with a lawyer’s help.” Faretta v. California, 422 U.S. 806, 814, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (internal quotation marks omitted). This right applies to the states through the Due Process Clause of the Fourteenth Amendment. State v. Black, 223 S.W.3d 149, 153 (Mo. banc 2007). A trial court has no discretion to force an attorney upon a defendant who validly waives the right to counsel. Id. “The defendant’s knowledge of all relevant facts need not appear in the trial record to support a finding that the waiver of counsel was proper.” State v. Garth, 352 S.W.3d 644, 654 (Mo.App.E.D. 2011). A valid waiver is timely, unequivocal, knowing, and intelligent. Black, 223 S.W.3d at 153.
I.Murray’s waiver was timely.
A defendant must assert the right to proceed pro se in a timely manner. Black, 223 S.W.3d at 153 (citing United States v. Brown, 744 F.2d 905, 908 (2d Cir.1984)). Murray’s trial date was October 21, 2013. Murray began filing documents on his own on March 27, 2013. Murray then filed his first motion to proceed pro se on August 15, 2013. After the first motion was denied, Murray again asserted his right to proceed pro se in a second motion on October 15, 2013. Because Murray repeatedly asserted his right to proceed pro se months before trial, his waiver was timely.
II. Waiver was unequivocal.
An ambiguous request to proceed pro se is not sufficient, because of the possibility that the defendant will argue on appeal that the right to counsel was denied. State v. Hampton, 959 S.W.2d 444, 447 (Mo. banc 1997). Whether the court allows or does not allow a defendant to represent himself, the defendant will likely challenge either decision on appeal; this likelihood underscores the importance of requiring an explicit and unequivocal waiver. Black, 223 S.W.3d at 153.
Murray repeatedly and unequivocally asserted his right to proceed pro se during the trial court’s questioning. Murray believed counsel did not have his “best interest at heart.” Murray stated he had a “right under the 6th Amendment of the United States Constitution to pro se ... 1 did carefully consider this.” Murray said, “I do not want [trial counsel] representing me at all.” On numerous occasions, the court asked Murray directly if he still wanted to represent himself, and each time Murray responded that he did. Thus, Murray’s waiver was unequivocal.
III. Murray’s waiver was knowing and intelligent.
Whether to allow a criminal defendant to waive the right to counsel is one of the most sensitive rulings a trial court must make. Black, 223 S.W.3d at 155. A criminal defendant will likely appeal either decision. Id. Whether a defendant’s waiver is made knowingly or intelligently depends on the particular facts and circumstances of the case. Id. at 154. This test considers the background, experience, and conduct of the defendant. Id.
*927While there is no “rigid procedure” or “script” to follow, a trial court should explore certain areas of inquiry to ensure the waiver is knowing and intelligent. Id. at 155. “First, a trial court should inquire into the defendant’s capacity to make an intelligent decision and his knowledge of his own situation.” Id. at 156. Second, a trial court should make certain that the defendant understands the possible penalties if convicted. Id. Third, a trial court should be sure that the defendant understands exactly what rights and privileges the defendant is waiving and the dangers associated with waiving constitutional rights. Id. These areas of inquiry are discussed in turn.
A. Murray’s capacity to make an intelligent decision and knowledge of the situation.
It is important to remember that waiving counsel is the defendant’s choice. See Faretta, 422 U.S. at 834, 95 S.Ct. 2525. The defendant’s “technical legal knowledge” of the law or procedure is not relevant to the assessment of whether the defendant knowingly exercised the right to defend himself. Id. at 836, 95 S.Ct. 2525. It is error for a trial court to reject defendant’s waiver simply because the court felt an attorney could do a better job. Black, 223 S.W.3d at 155. Rather, the court should ensure the defendant (1) is not acting under duress, (2) does not suffer from mental incapacity, (3) is literate, and (4) is “minimally familiar” with the trial process, including possible defenses, the different phases of trial, objection procedure, and the elements of the crime charged. Id. at 156.
First, the record does not indicate Murray was under any duress when he waived his right to counsel. The trial court asked Murray directly: “[h]as anybody offered you any promise or consideration or in any way force [sic] you to act as your own lawyer?” Murray’s response was negative. Nothing in the record suggests any duress.
Second, the record shows Murray did not suffer from any mental incapacity. A mental incapacity that allows a court to deny self-representation occurs when defendants “suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Indiana v. Edwards, 554 U.S. 164, 178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). The court specifically asked Murray if he suffered from “any problems with [his] mental health?” Murray responded that he had not. Murray admitted that he had previously “been on drugs” but also that he was no longer using drugs. No evidence suggests Murray was using drugs or intoxicated while attempting to waive his right to counsel. Nothing else in the record suggests “severe mental illness.”
Third, the trial court confirmed that Murray was literate. The court asked if Murray could read and write. Murray stated he could. Murray confirmed he had graduated the 12th grade. Further, the trial court was aware of the numerous filings Murray made before trial that indicated Murray could read and write. Therefore, the record reflects that Murray was literate.
Fourth, the record indicates Murray was “minimally familiar” with the trial process. This is a low bar because we are not concerned with Murray’s technical knowledge of the law. See Faretta, 422 U.S. at 836, 95 S.Ct. 2525. The trial court asked about potential defenses; Murray responded, “Any defenses? I got — I got a lot of defense, for real. Lot of defense. I got my paperwork ready.” Elsewhere in the record, Murray mentioned his plans to show the jury surveillance video of the incident. Murray believed the video would *928prove he was misidentified. Further,. Murray believed he would “be able to catch everybody lying when we go to trial.” Murray was at least “minimally familiar” with potential defenses. The trial court was not required to give “detailed advice” about possible defenses; the court was not Murray’s counsel but an impartial arbitrator. See State v. Garth, 352 S.W.3d 644, 654 (Mo.App.E.D. 2011).
Similarly, the record indicates Murray was at least “minimally familiar” with' the different phases of trial, objections, and the elements of the crimes charged, Murray knew that a jury had to be selected. He knew the State had to prove “[bjeyond a reasonable doubt that [he was] guilty of [the] crime.” Murray was unclear as to the difference between first- and second-degree robbery and the difference between general- and specific-intent crimes, but he also indicated a strategy for making objections at trial:
I won’t use objections the wrong way, because there are certain things people will say, .they really don’t make sense; I’ll let — certain things I will let just pass me by anyway, because some things, if I don’t understand, the jury don’t understand themf If they’re using big words, big old fhncy words, God can’t understand. Believe me, most likely he don’t understand either.
The record reflects /that Murray had minimal familiarity with the trial process and a strategy for making (or not making) objections. Therefore, Murray had the capacity to make an intelligent decision and knowledge of his own situation.
B. Murray’s understanding of possible penalties if convicted.
Murray understood the possible penalties if he was convicted. The trial court informed Murray that he,was charged with first-degree robbery, a^med criminal action (“ACA”), and fir^t-degree tampering. Murray understood. Murray, without help from the court, knew that both first-degree robbery and ACA carried potential life sentences. Murray overestimated the punishment on first-degree tampering, which he believed carried a twenty-year sentence rather than its actual seven-year sentence. The court informed Murray that the court would sentence him, not the jury, because Murray was a prior offender. The court reminded Murray of the mandatory-minimum prison sentences: three years if convicted for ACA and 85% of any robbery prison sentence, Murray indicated he was aware of all of these facts. Hence, Murrayjunderstood the possible penalties he would convicted.
C. Murray’s\mderstanding'Sbf exactly what fights and privileges he was Rawing, and the dangers associated with 'waiving constitutional rights. x
The court should first ensure that the defendant understands that he has^a right to counsel, including appointed counsel if indigent. Black, 223 S.W.3d at 156. If. th,e defendant chooses to continue, the court should advise generally that it is a inistake to proceed without a lawyer. Id. Then, the court should warn the defendant specifically about the dangers and repercussions of the decision tó waive counsel. Id. A trial court cannot force an attorney upon a defendant who validly waives the right to counsel.’ Id. at 153.
The trial court informed Murray that “you have the right to an attorney represent you, and you understand that [appointed counsel] would represent you free of charge?” The trial court repeatedly and directly advised Murray that proceeding pro se was a bad idea. The court remarked, “it’s kind of like a doctor taking out his own appendix, Mr. Murray_ It may not work.” The court warned Murray that certain objections and issues would be lost if not raised. The court stressed that Murray was “likely to be *929convicted without a lawyer.” Murray repeatedly ignored those Warnings. The trial court told Murray, “You understand that acting as your own attorney, you will be opposed by an experienced prosecutor, and neither the court nor the prosecutor will help you during the trial?” The trial court warned about the failure to follow procedure: ‘You understand that if you disrupt the trial or.get fouled up by the rules, of procedure, you will b¿ much worse off than if you had a lawyer?” The court insisted it could not “operate as a coach.” The court stressed that it was' nearly impossible to negotiate a plea bargain without a lawyer.. The court cautioned Murray of the problems he would face related to jury selection, presenting evidence, objecting to evidence, preserving ■ issues, and submitting jury instructions. Finally, the court said, “[f]or the last time, I strongly advise you against it, but do you want to represent yourself?” Murray maintained his insistence on representing himself.
The trial court inquired into Murray’s capacity to make an intelligent decision and his knowledge of his own situation, Murray’s understanding of the possible penalties if convicted, and the rights, privileges, and dangers of waiving the right to counsel. Accordingly, Murray’s waiver of his right to counsel was voluntary and intelligent. Because the waiver was also timely and unequivocal, the trial judge did not err in granting Murray’s motion to proceed pro se. Point denied.
Conclusion
The decision of the trial court is affirmed.
Sherri B. Sullivan, P.J., concurs.
Patricia L. Cohen, J., concurs.
. In the Twenty-Second Judicial Circuit, the criminal-assignment division (Division 16) assigns cases to trial divisions and rules on certain pretrial matters, Twenty-Second Judicial Circuit Court Rule 6.2.2 (amended Oct. 31, 2008). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284343/ | ORDER
Per Curiam:
Jesse Morales appeals the denial of his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284344/ | ORDER
PER CURIAM
Marian Priess (“Appellant”) appeals from the trial court’s judgment following a bench trial granting an injunction enjoining Appellant from obstructing, impeding, or interfering with a thirteen-and-one-half-feet roadway easement and granting judgment in favor of Mildred Akins (“Respondent”) against Appellant in the amount of $4,980 for removal of rock outcroppings and trees. 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/2198661/ | 130 Ill. App. 2d 201 (1970)
264 N.E.2d 446
People of the State of Illinois, Plaintiff-Appellee,
v.
James McBride, Defendant-Appellant.
Gen. No. 53,922.
Illinois Appellate Court First District, Fourth Division.
September 23, 1970.
*202 *203 Patrick T. Murphy and Freddy S. Meinfelder, of Chicago, for appellant.
Edward V. Hanrahan, State's Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State's Attorneys, of counsel), for appellee.
MR. JUSTICE LEIGHTON delivered the opinion of the court.
In two separate indictments, defendant was charged with one murder and two armed robberies. After a jury trial, he was convicted of voluntary manslaughter and both robberies. The court imposed concurrent sentences of two to ten years.
In this appeal it is contended that (1), the trial judge erred in not allowing a psychologist (in testimony before the jury), to answer hypothetical questions concerning defendant's sanity; (2), the trial judge erred in refusing to instruct the jury on the subject of sanity; (3), the trial judge erred in giving the jury an instruction defining murder when the evidence could not support a conviction for that offense; (4), the trial judge erroneously instructed the jury on the subject of self-defense; and (5), defendant was prejudiced by final arguments in which the assistant state's attorneys made a personal attack on defendant's court-appointed counsel.
On August 27, 1967, at approximately 6:15 a.m., Preston Fox was the night clerk in the Nicollet Hotel in Chicago. Present at the time was a self-described prostitute, Mrs. Helen Barnes, who lived in the hotel and was the maid. Defendant entered the hotel. Moments later, Fox and defendant exchanged words, followed by an altercation in which each man struck the other with his hand. Fox drew a .38-caliber gun from his pocket. *204 The two men struggled for the gun. As they did, Mrs. Barnes stepped into a room nearby. In the struggle, the men moved out of Mrs. Barnes' vision. When they returned within Mrs. Barnes' view, she saw the gun in defendant's right hand. The two men again struggled out of Mrs. Barnes' vision. She heard the gun go off. Mrs. Barnes then heard Fox say, "You did it." He fell to the floor and died a short time later from a wound caused by a bullet that entered his left chest.
With Fox's gun in his possession, defendant ran out of the hotel and went six blocks north and west to a filling station at 327 West Chicago Avenue. A taxicab was being checked by the station attendant, Lester Woodruff. Standing nearby was the driver, Randall Ehardt. Using the gun, defendant robbed both men, taking $17.00 from Woodruff and between $6.00 and $7.00 from Ehardt. Defendant then ordered Woodruff to lie on the ground near some gas pumps. He ordered the cab driver to drive him away. Woodruff heard defendant say, "I've killed one man and another doesn't make any difference." After the cab left, Woodruff called the police.
When Ehardt drove from the filling station, defendant, seated in front, held him at gun-point. The cab went a short distance north, then east. He then told Ehardt "[t]hat he wanted to go to the County Hospital Blood Bank." At one intersection, an illegal left turn by Ehardt (ordered by defendant) attracted a police car. Ehardt attempted to comply with the officers' command to stop; but defendant told him "to take off." A short distance away the cab was stopped by a road block. Defendant was forced out, arrested and searched. On his person $23.00 in currency were found. In the cab was found the gun defendant took from Preston Fox. It and a bullet taken from the body of Fox were admitted in evidence. Defendant, through his counsel, stipulated that the bullet was fired by the gun.
In his defense defendant called Doctor Joseph Garvin, a psychologist. His testimony disclosed that more than eleven months after the events in question he examined defendant and subjected him to psychological tests. Doctor Garvin was asked whether he could "tell the ladies and gentlemen of the jury and the court something *205 about McBride's personality and makeup." There was an objection. In proceedings outside the jury's presence, the assistant state's attorney argued that the question asked Doctor Garvin would have elicited irrelevant evidence. He argued that a question concerning defendant's personality or his personality traits could not raise an issue concerning sanity. After hearing counsel, the trial judge sustained the state's objection. Defendant's attorney requested and was given leave to make an offer of proof by questioning Doctor Garvin outside the presence of the jury.
In answers to questions put to him by defense counsel, the court and the assistant state's attorney, Doctor Garvin said that in his opinion defendant, at the time of the offenses charged in the two indictments, was not suffering from any mental disease or mental defect. A hypothetical question was asked Doctor Garvin. Then, before he could answer, he was asked:
THE COURT: "Are there enough factors there for you to conclude?"
A. "There really aren't. We are asking about an act here which could have numerous interpretations, it might indicate that the man was not sane or thinking rationally, but it might indicate many other things, I do not know his purpose or "
MR. MURPHY: Q. "By the fact you say there might be this, that and the other thing, would you characterize these thoughts in your own mind as a doubt?"
A. "I think you could say that, yes, there would be something for further exploration, but I could not come to any conclusion, there is no one conclusion that follows from those facts is the point I want to make."
Q. "Doctor, I'm not asking you on the sanity issue at all."
A. "Okay, then I would have a doubt, I would have some doubt."
*206 Counsel for the defendant then told the trial judge he wanted the jury to hear Doctor Garvin's answer. There was an objection by the State. The objection was sustained. It is this ruling that forms the basis for defendant's first contention. Defendant argues that the trial judge erred in precluding Doctor Garvin from answering the hypothetical question in testimony before the jury.
[1] This contention is without merit. Doctor Garvin's doubt concerning the sanity of a hypothetical person was not material. It would have had no bearing on defendant's sanity at the time of the alleged offenses. It would not have been evidence that as a result of mental disease or mental defect defendant lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law when he committed the offenses charged against him. In contrast with People v. Noble, 42 Ill. 2d 425, 248 NE2d 96, there was no medical evidence on which the testimony of Doctor Garvin, a psychologist, could rest. Under these circumstances, the trial judge's ruling was correct. Compare People v. Pecora, 107 Ill. App. 2d 283, 246 NE2d 865.
Defendant's second contention is that the trial judge erred in refusing to give the jury two of his instructions concerning sanity. Defense instruction No. 13:
Every man is presumed sane until this presumption is overcome by evidence sufficient to raise a reasonable doubt of sanity at the time of the crime. The presumption of sanity is overcome by evidence, tending to prove insanity of accused, which is sufficient to raise a reasonable doubt of sanity at time of commission of act for which accused is sought to be held accountable, and when that is done presumption of sanity ceases and prosecution is then required to prove sanity of accused beyond a reasonable doubt, as a necessary element of crime charged (sic)....
Instruction No. 14:
A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental *207 disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
When these instructions were offered, the State objected on the ground that no evidence raised the issue of defendant's sanity. Defendant's counsel argued that both Lester Woodruff and Randall Ehardt testified that when defendant robbed them, he acted irrationally. Counsel urged that the testimony of the two lay witnesses and that of Doctor Garvin raised the issue of defendant's sanity at the time of the offenses. After hearing argument, the trial judge refused to give the two instructions.
[2-5] Under our law, "A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The terms `mental disease or mental defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct." Ill Rev Stats 1967, c 38, § 6-2(a), (b). The law presumes all men are sane. People v. Kenzik, 22 Ill. 2d 567, 177 NE2d 162. Because of this presumption, to raise an issue concerning sanity, there must be some evidence that tends to prove insanity. People v. Munroe, 15 Ill. 2d 91, 98, 154 NE2d 225. This being so, there must have been such evidence before defendant was entitled to any instruction on insanity. Evidences of idiosyncratic behavior and irresponsibility of conduct were insufficient to warrant an insanity instruction. United States v. Gorman, 393 F.2d 209 (7th Cir 1968), cert den, 393 U.S. 832, 21 L Ed2d 103, 89 S. Ct. 102. Neither the testimony of the two lay witnesses nor that of Doctor Garvin was enough to raise a reasonable doubt concerning defendant's sanity. People v. Davenport, 111 Ill. App. 2d 197, 249 NE2d 328; see 73 ALR3d 146, Annotated. Therefore, refusal of defendant's instructions on sanity was not error.
Defendant's third contention is that the trial judge erred in giving the jury an instruction defining murder when there was no evidence to sustain a verdict for *208 that offense. Defendant argues that the murder instruction without evidence of malice, express or implied, intimidated a confused jury into compromising defendant's claim of self-defense.
[6-8] Translating this language to terminology applicable to the Criminal Code,[*] this contention disregards the testimony of Helen Barnes who said she saw Preston Fox's gun in defendant's right hand. A few minutes later, according to her, a shot was fired. This testimony, if believed by the jury, tended to prove that defendant disarmed Fox and then shot him. Ordinarily, one is not justified in shooting or employing a deadly weapon against his antagonist after the latter has been disarmed or disabled. 40 CJS, Homicide, § 131. Although defendant contends the killing of Fox was self-defense, it was a question of fact whether defendant, without justification, shot and killed Fox after he was disarmed. Whether the killing of one person by another occurs under circumstances which justify the act under the doctrine of self-defense, or was the result of some other motive, is a question of fact to be determined by the jury, under proper instructions, from consideration of all the evidence. People v. Smith, 404 Ill. 125, 88 NE2d 444; People v. Adams, 113 Ill. App. 2d 205, 252 NE2d 35. This was a murder prosecution; and there was evidence of that offense. Consequently, it was proper for the trial judge to instruct the jury on that subject so that the jury could decide whether the defendant was guilty of murder or of the lesser included offense of voluntary manslaughter. See People v. Dorsey, 98 Ill. App. 2d 259, 240 NE2d 391.
Defendant's fourth contention is that the trial judge erroneously gave the jury two State instructions.
Instruction No. 18:
The court instructs the jury that a person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing *209 under the principles stated in the Court's instruction on self-defense, but his belief is unreasonable.
Instruction No. 22:
The court instructs the jury as a matter of law that the defense of self-defense is not available to a person who otherwise initially provokes the use of force against himself, unless:
1. Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
2. In good faith, he withdraws from physical conduct with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
[9, 10] It is obvious that No. 18 did not primarily concern self-defense. This was the State's instruction on voluntary manslaughter. It is a rule in homicide cases that if there is evidence, believed by the jury, which would reduce the offenses to manslaughter, an instruction defining the crime must be given. People v. Harris, 8 Ill. 2d 431, 134 NE2d 315; People v. Gajda, 87 Ill. App. 2d 316, 232 NE2d 49. In its notes to Illinois Pattern Instructions in Criminal Cases, IPI Criminal, 7.05, the Committee said, "When the charge is murder, the defense is self-defense, and the proof supports a voluntary manslaughter instruction and verdict, the order of instruction should be: first Instruction 7.01 (Murder); second, this Instruction 7.05; third, applicable instruction from Chapter 24 Defenses." The circumstances of this case made the instruction given proper.
[11] No. 22 was on the subject of self-defense. Because there was a question whether defendant or Preston Fox was the initial aggressor in the altercation that resulted in the homicide, this instruction gave the applicable law to the jury. In substance, the instruction was *210 IPI Criminal, 24.09. On the evidence which the jury heard, giving of this instruction was not error. People v. Jordan, 18 Ill. 2d 489, 165 NE2d 296.
[12, 13] Defendant's fifth contention complains of the final arguments of the assistant state's attorneys. He argues that they made a personal attack on his court-appointed counsel. We have carefully examined the summations to the jury. We find that the remarks complained about were concerned with the testimony of defendant's court-appointed counsel which was offered to impeach Mrs. Helen Barnes, the State's principal witness. The remarks which form the substance of this contention were addressed to the credibility of the two witnesses. Fairly construed, they were not reflections on defendant's court-appointed counsel. They were arguments concerning the evidence. Statements of counsel and argument based on proven facts and circumstances, or upon legitimate inference therefrom do not exceed the bounds of proper debate and are not to be discountenanced by the courts. People v. Conrad, 81 Ill. App. 2d 34, 49, 225 NE2d 713, affd 41 Ill. 2d 13, 241 NE2d 423.
After reviewing defendant's contentions, we conclude that he received a fair trial. Judgment is affirmed.
Judgment affirmed.
DRUCKER and ENGLISH, JJ., concur.
NOTES
[*] 9-1(a)(1) and (2), 9-2(b)7-1. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2187339/ | 915 N.E.2d 978 (2009)
KERBER
v.
GUTHRIE.
Supreme Court of Indiana.
January 8, 2009.
Transfer denied. | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5284345/ | ORDER
Per Curiam
Calvin Boswell appeals from the judgment denying his Rule 29.1 5 motion after he was convicted of first-degree murder, second-degree murder, first-degree assault, unlawful use of a weapon, and four counts of armed criminal action. Boswell contends he was entitled to an evidentiary hearing on the claim that his trial counsel was ineffective for failing to call a witness who would have offered testimony implicating an additional person in the crimes. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment denying post-conviction relief.
AFFIRMED. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284346/ | OPINION
Jane Bland, Justice
This appeal concerns a settlement factoring company’s rights, and an annuity company’s obligations, arising from two judicially-approved factoring agreements.1
*134The annuitant,. Erica Adegoke,2 entered into the agreements with two different factoring companies, the first in early 2003 with Settlement Capital Corporation (SCC) and the second later that year with Rapid Settlements, which assigned it to RSL-3B-IL. Pursuant to the Structured Settlement Protection Act (SSPA), the factoring companies each procured approval of their factoring agreements agreement with a transfer order. The first order, approving the SCC agreement, issued in January 2003 and the second order, approving the RSL agreement, issued in November 2003. The first order directed the annuity issuer, the Prudential Insurance Company of America and Prudential Structured Settlement Comp,any (collectively, Prudential), to deliver certain monthly structured settlement payments to SCC, and the second order directed Prudential to deliver parts of .the same payments to RSL.
After receiving notice of the second transfer order, Prudential suspended the assigned payments, contending that the two orders created conflicting obligations. In 2013, RSL sued Prudential for breach of contract and sought declaratory relief, asserting its rights as Adegoke’s.assignee under the factoring agreement. Prudential answered and interpleaded the funds. The parties proceeded to trial. The trial court granted Prudential’s motion for directed verdict on RSL’s breach of contract claim, and it awarded attorney’s fees based on the jury’s verdict.
On appeal, RSL challenges the trial court’s directed verdict, the propriety of the interpleader claim and attorney’s fee award,' and the severance of Adegoke’s petition in intervention from the claims involved in this appeal. We conclude that the trial court properly granted a directed verdict and awarded Prudential its attorney’s fees. We further conclude that it acted within its discretion in granting a severance. We therefore affirm.
Background
In November 1993, Adegoke agreed to a structured settlement to resolve her personal injury claim against a tort defendant. The tort defendant bought an annuity from Prudential to discharge, its obligation under the settlement agreement.
In January 2003, Adegoke sold a portion of her structured-settlement payments to SCC. The factoring agreement, as reflected in the order signed by the county court, approves Adegoke’s assignment to SCC of a portion of each of hér 'monthly structured-settlement payments due from February 5, 2003 through October 5, 2013. The court’s order directed Prudential “to deliver and make payable to [SCC] ” the full amount of each monthly payment due to Adegoke, and required SCC to remit to Adegoke the remainder of each payment.
In the November 2003 agreement, Ade-goke agreed to transfer to Rapid Settlements the residual monthly payments that she had retained after subtracting the amount owed to SCC under the January 2003 order, and Rapid assignéd the payments to RSL. The RSL factoring agreement delineated a period from February 4, 2004 through October 2013.
This appeal centers on the language in the November 2003 order that directs Prudential “to deliver and make payable” to RSL the “portion of the [assigned] monthly annuity payments” remaining after subtraction of SCC’s share. The structured-settlement payments sold to SCC and RSL *135do not overlap, but the two trial court orders approving the factoring arrangements direct Prudential to send the same funds to different companies. One order requires Prudential to send the entire amount of each payment to SCC; the other requires it to send a portion of that same payment to RSL.
Because the two orders imposed conflicting obligations on Prudential, it suspended the payments to SCC and RSL and sought a stipulation clarifying the obligations of the parties. From 2006 until 2012, Prudential, SCC, Rapid, and RSL made various attempts to resolve the conflict, to no avail.
Course of'proceedings
In 2012, RSL sued Prudential, asserting breach of contract and requesting declaratory relief. Prudential responded by in-terpleading the withheld annuity payments. It asked the trial court to resolve the conflicting payment obligations imposed by the two transfer orders and to declare the respective rights of Rapid, RSL, and SCC to the payments at issue and to clarify Prudential’s payment obligations under the orders.
In August 2013, Adegoke intervened in the suit. She sued RSL for breach of contract, alleging that it had failed to comply with the factoring agreement. She sought damages and attorney’s fees for the breach. RSL moved to compel arbitration on Adegoke’s claims. Adegoke nonsuited her claims, and the trial court signed an order dismissing them without prejudice.
The parties tried RSL’s breach-of-contract claim and Prudential’s attorney’s' fee claim to a jury. At the close of evidence, the trial court directed a verdict that RSL take nothing on its breach-of-contract claim. The jury decided the issue of Prudential’s attorney’s fees, finding that Prudential was entitled to attorney’s fees of $8,860.95. The trial court entered a judgment that RSL take nothing and awarded attorney’s fees to Prudential based on the jury’s verdict. After denying RSL’s motion for new trial, the trial court severed any remaining claims between Adegoke and RSL, making the judgment final. ■
Discussion
I. Directed Verdict on Breach of Contract Claim
A. Standard of review
We review directed verdicts under the same legal-sufficiency standard that applies to no-evidence summary judgments. City of Keller v. Wilson, 168 S.W.3d 802, 823-24 (Tex.2005); see Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013) (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003)). We sustain a legal-sufficiency point when (1) there is a complete absence of evidence regarding a vital fact, (2) rules of law or evidence preclude according weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, dr (4) the evidence conclusively establishes the opposite of the vital fact. Keller, 168 S.W.3d at 810. We consider the evidence in the light most favorable to the nonmovant, crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless' a reasonable jury- could not. Id. at 827. The nonmovant bears the burden to identify evidence before the trial court that raises a genuine issue of material fact as to each challenged' element of its cause of action. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206 (Tex. 2002). A directed verdict is proper if a party “fails to present evidence raising a fact issue essential to [its] right of recovery,” or if the party “admits or the evidence conclusively establishes a defense to [its] cause of action.” Prudential Ins. Co. *136of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000). We may affirm a directed verdict on any ground that supports it. Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 443 (Tex.App.-Dallas 2002, pet. denied).
B. Structured Settlement Protection Act
Rights and responsibilities arising from a transfer of structured-settlement payment rights, like those asserted in this appeal, cannot exist without agreements among the parties. Standing alone, however, those agreements cannot transfer settlement rights in Texas — they are unenforceable unless a Texas trial court has approved the proposed transfer in an order that complies with the SSPA’s requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 141.004 (West 2011); see also Washington Square Fin’l, LLC v. RSL Funding, LLC, 418 S.W.3d 761, 768, 771 (Tex.App.-Houston [14th Dist.] 2013, pet. denied) (agreeing with RSL Funding’s contention that “court approval is both a contractual and a statutory condition precedent to formation of a transfer agreement,” so that agreement, standing alone, could not provide basis for tortious-inter-ference claim).
To achieve a transfer of structured-settlement payment rights, a factoring company initiates a proceeding in the trial court by applying for approval of the proposed transfer. Tex. Civ. Prac. & Rem. Code Ann. § 141.006 (West 2011). A trial court’s order approving a transfer must include the following findings:
(1) the transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents; -■
(2) the payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received the advice or knowingly waived the advice in writing; and
(3)the transfer does not contravene - any applicable statute or an order of any court or other governmental authority.
Tex. Civ. Prac. & Rem. Code Ann. § 141.004. The factoring company’s application typically includes affirmative representations and evidence to support these three findings.
Before the court may approve a transfer, the factoring company must provide notice to other interested parties, including the annuity issuer. Tex. Civ. Prac. & Rem. Code Ann. § 141.006(b); see Tex. Civ. Prac. & Rem. Code Ann. § 141.002(7)(C) (West 2011). If the factoring company, as transferee, fails to comply with the notice requirements, it may be held liable to the structured-settlement obligor or annuity issuer for any “liabilities or costs, including reasonable attorney’s fees, arising as a consequence of the transferee’s failure to comply with [the SSPA].” Tex. Civ. PRAC. & Rem. Code Ann. § 141.005(3)(B) (West 2011).
The SSPA identifies the structured-settlement obligor or annuity issuer as an interested party in a proposed transfer of structured-settlement payments. Tex. Civ. Prac. & Rem. Code Ann. § 141.002(7)(C). Unlike the factoring company and the structured-settlement payee, it does not have any direct financial interest in the transfer. An annuity issuer does, however, have potential liabilities that could arise in connection with the transfer of a payment obligation, such as making payments to an incorrect or unauthorized payee. See Transam. Occid. Life Ins. Co. v. Rapid Settlements Ltd., 284 S.W.3d 385, 392 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (recognizing that annuity issuers “are not merely stakeholders, *137but rather have a unique interest in ensuring compliance with the statutory restrictions on the transfer of structured settlement rights” to avoid conflicting payment demands and potentially adverse consequences resulting from failure to comply with state structured settlement protection acts); Symetra Nat’l Life Ins. Co. v. Rapid Settlements, Ltd., No. 14-07-00880-CV, 2009 WL 1057339, at *5 (Tex.App.-Houston [14th Dist.] 2009, no pet.); see also Rapid Settlements, Ltd. v. Symetra Life Ins. Co., 234 S.W.3d 788, 802 (Tex.App.-Tyler 2007, no pet.) (affirming anti-suit injunction against factoring company to prevent annuity issuer from incurring unnecessary legal fees and expenses and from being exposed “to significant uncertainty as to whom it must pay and a significant risk of double liability5’) (quoting Symetra Life Ins. Co. v. Rapid Settlements, Ltd., No. H-05-3167, 2007 WL 114497, at *35 (S.D.Tex. Jan. 10, 2007), aff'd, 775 F.3d 242 (5th Cir.2014)).
The SSPA implicitly recognizes that an annuity issuer would incur an unforeseen increase in transaction costs and responsibilities if structured-settlement transfer agreements required an annuity issuer to make periodic payments to more than one party. The statute protects an annuity issuer from having to divide payments between the payee and any transferee, or between two or more transferees or assignees. See Tex. Civ. Prao. & Rem. Code Ann. § 141.005(4) (West 2011). It also protects the annuity issuer from increased transaction costs by limiting potential claims relating to the transferred payment rights. Specifically, following a transfer of structured-settlement payment rights, the SSPA provides:
the structured settlement obligor and the annuity issuer shall, as to all parties except the transferee, be discharged and released from any and all liability for the transferred payments.
Tex. Civ. PeaC. & Rem, Code Ann. § 141.005(1) (West 2011).
C. Analysis
1. The directed verdict
RSL’s breach-of-contract claim against Prudential derives from its asserted role as Adegoke’s assignee. To prevail on its breach-of-contract claim, RSL was required to prove: (1) the existence of a valid contract; (2) the plaintiffs performance or tendered performance; (3) the defendant’s breach; and (4) the plaintiffs damages resulting from that breach. Simien v. Unifund CCR Partners, 321 S.W.3d 235, 247 (Tex.App.-Houston [1st Dist.] 2010, no pet.); Winchelc v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex.App.-Houston [1st Dist.] 2007, no pet.). “Whether a party has breached a contract is‘a question of law for the court, not a question of fact for the jury, when the facts of the parties’ conduct are undisputed or conclusively established.” Grohman v. Kahlig, 318 S.W.3d 882, 887 (Tex. 2010) (citing Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971)); see also Orix Capital Mkts., L.L.C. v. Wash. Mut. Bank, 260 S.W.3d 620, 623 (Tex.App.-Dallas 2008, no pet.) (“Where the evidence is undisputed regarding a party’s conduct under a contract, the judge alone must determine whether it shows performance or breach of its contract obligation.”) (citing Lafarge Corp. v. Wolff Inc., 977 S.W.2d 181, 186 (TexApp.-Austin 1998, pet. denied)). '
RSL bases its breach-of-contract claim on its contention that Adegoke, as third-party beneficiary of the annuity contract, retained the right to sell the unassigned portions of her annuity payments to RSL through the transfer agreement and that Prudential’s failure to make those payments as. directed constituted a breach of *138that contract. This contention relies on J.G. Wentworth Originations, LLC v. Perez, No. 01-13-00264-CV, 2014 WL 3928590 (Tex.App.-Houston [1st Dist.] Aug. 12, 2014, no pet.) and J.G. Wentworth Origi-nations, LLC v. Freelon, 446 S.W.3d 426 (Tex.App.-Houston [1st Dist.] 2014, no pet.). In those cases, the original transfer orders contained servicing agreements that required the annuity issuer to send each periodic payment to the original factoring company, which in turn would remit the unassigned portion of the payment to the payee. Perez, 2014 WL 3928590, at *1; Freelon, 446 S.W.3d at 428. In the later factoring transactions in each case, the transfer orders ordered the original factoring company to remit to the second factoring company the part of the payment that had gone to the payee under the original transfer order. Perez, 2014. WL 3928590, at *4-5; Freelon, 446 S.W.3d at 432.
We held that the payee retained the right to assign some or all of the remain- - ing unassigned portion of the periodic payments by- directing the first factoring company to send the later-assigned portion to the second factoring company inSteqd of the payee, and that an order approving such transaction did not conflict with the-SSPA or the prior orders. Perez, 2014 WL 3928590, at *5-6; Freelon, 446 S.W.3d at 433.
That an annuitant has the right to sell unassigned payments, however, does not answer the salient issue here, which is whether the second transfer order in this case — directing Prudential, and not the first factoring company, “to deliver and make payable” to RSL the “portion of the [assigned] monthly annuity payments” remaining after subtraction of SCO’s share— actually effects a transfer. In the Went-worth cases, the annuity issuer’s obligation remained the same under both the original and later transfer orders — the only change was to the terms of the servicing agreement. See Perez, 2014 WL 3928590, at *1; Freelon, 446 S.W.3d at 429-30. Here, however, the second transfer order required Prudential to remit a portion of certain periodic payments to RSL even though the first order'required Prudential to send the entirety of each of the same periodic payments to SCC, the original factoring company. This difference renders the Wentworth cases inapposite.
Among other grounds, Prudential attacked RSL’s breach-of-contract claim by contending that the first order, which required. it to deliver 100% of the specified monthly payments to SCC, discharged any obligation that Prudential owed to Ade-goke with respect to those payments.
. The April 2003 factoring .agreement between RSL and Adegoke is premised on the recital that Prudential “has the continuing obligation to make the Periodic Payments to the Assignor.” That premise, however, is an incorrect recital of the parties’ positions at the time. Upon the trial court’s order approving the earlier SCC agreement in January 2003, Prudential’s obligation had changed with respect to the specified monthly payments: the SCC order obligated Prudential to deliver those payments to SCC. It was SCC that had assumed the obligation to remit the unassigned portion of any annuity payments to Adegoke. As a result, Prudential was “as to all parties except [SCC], ... discharged and released from any and all liability for the. transferred payments.” Tex. Civ. Prao. & Rem. Code Ann. § 141.005(1).
The evidence conclusively proves that Prudential owed no payment obligation to Adegoke when she entered into the RSL transfer agreement. Because the second transfer order did not effectively transfer to RSL Adegoke’s remaining interest in the specified periodic payments, RSL was not a “transferee” and thus, Prudential *139was not-liable to RSL.' See id. We hold that the trial court properly granted a directed verdict on ■ RSL’s breach-of-contract claim. This result comports with the SSPA. See Tex. Civ. Pra.C. & Rem. Code Ann. § 141.004. Any contract right RSL has against Prudential stemming from RSL’s structured-settlement transfer agreement with Adegoke becomes enforceable only after it passes through a transfer order that meets the SSPA’s requirements. See id. (admonishing that “[n]o direct or indirect transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been approved in advance in a final court order”).
Before it can approve a transfer order, a trial court must find that "the transfer does not contravene any applicable statute or an order of any court or other governmental authority.” Id. § 141.004(3). Here, the second order, on its face, contravenes the first order, which required Prudential to deliver the entirety of certain payments to SCC. It also contravenes the SSPA’s express proscription of any requirement that an annuity issuer “divide any periodic payment between the payee and any transferee or assignee or between two or moré transferees or assignees.” Id. § 141.005(4).
RSL claims that the fault for this error falls on Prudential because it was aware of the first order’s terms and, as an interested party in the proceeding for approval of the second factoring agreement, Prudential should have intervened and called attention to the discrepancy before the trial court signed the second order. But the SSPA has no provision imposing this responsibility on Prudential and we decline to read one into the statute in light of its provisions designed to minimize additional cost to the annuity issuer from factoring transactions. As an applicant seeking judicial approval of the factoring agreement, RSL bears the burden to proffer evidence to support the findings necessary to approve the agreement and to obtain an order that comports with the statute.
2. The attorney’s fees award
RSL next contends that Prudential brought'an improper interpleader action as a counterclaim, and thus the trial court abused its discretion in awarding Prudential its attorney’s fees. Texas interpleader law entitles an innocent stakeholder to recover its attorney’s fees from the funds it deposits if it has a reasonable doubt with respect to which claimant is entitled to the fund. United States v. Ray Thomas Gravel Co., 380 S.W.2d 576, 581 (Tex.1964); Heggy v. Am. Trading Employee Ret Account Plan, 123 S.W.3d 770, 780 (Tex. App.-Houston [14th Dist.] 2003, pet. denied)..
RSL first claims that Prudential is not entitled to attorney’s fees as a stakeholder because its' claim is more properly construed as one for declaratory relief rather than the equitable remedy of inter-pleader. We disagree. An interpleader is a suit to determine a right to property held by a disinterested third party who is in reasonable doubt about ownership and who, therefore, deposits the property with the trial court to permit interested parties to litigate ownership, letting the court decide who is entitled to the funds and thereby avoiding the peril of deciding ownership itself. FCLT Loans Asset Corp. v. FirstCity Fin’l Corp., 294 S.W.3d 661, 666 (Tex. App.-Houston [1st Dist.] 2009, no pet.). Interpleader protects a stakeholder from potential exposure to rival claims. See Tex. R. Civ. P. 43.
*140Second, RSL claims that Prudential has admitted that no conflict exists among the parties as to either the amount of the assigned payments or which party is ultimately entitled to them. But RSL ignores that it was Prudential — not any of the parties to the factoring agreements— that has consistently claimed that the two transfer orders present conflicting obligations: Prudential cannot comply with one without violating the other, and a violation of either order could subject it to liability if the issuing court were to enforce the violated order. The record supports the trial court’s consideration of Prudential’s action as one for interpleader.
We previously have endorsed the use of interpleader to reconcile conflicting court orders. See Texaco, Inc. v. LeFevre, 610 S.W.2d 173, 175-76 (Tex.App.-Houston [1st Dist.] 1980, no pet.). In Texaco, we rejected the appellee’s contention that the interpleader amounted to a collateral attack on the prior judgment, noting that the stakeholder interpleaded the funds not to correct, modify, or vacate the prior judgment, but to determine their rightful owner. Id. at 176.
RSL further contends that Prudential is not entitled to its attorney’s fees because it unreasonably delayed in depositing the in-terpleaded funds in the court registry. See State Farm Life Ins. Co. v. Martinez, 216 S.W.3d 799, 807 (Tex.2007). Prudential promptly complied with the requirement that it unconditionally tender the funds by bringing the interpleader action along with its answer to RSL’s breach-of-contract claim; it was not required to deposit the funds absent a court order. See Meggy, 123 S.W.3d at 776 (explaining that “only an unconditional tender, not a deposit, is required”). The record shows that the parties spent several years attempting to negotiate a resolution to them disputes before instituting legal action. At trial, RSL admitted that it had engaged in ongoing discussions with Prudential for a long time and that they had tried to work out their differences. The record, which contains the parties’ correspondence and testimony concerning the course and tenor of their negotiations, supports the trial court’s exercise of discretion in considering the interpleader. Accordingly, we hold that the trial court properly considered Prudential’s request for attorney’s fees as part of its. relief in interpleader and acted within its discretion in concluding that any delay in interpleading the funds did not bar Prudential from receiving compensation from the interpleaded funds for its attorney’s fees.
II. Severance
Texas Rule of Civil Procedure 41 governs severance of claims. See Tex. R. Civ. P. 41. The rule provides, in part, that “[ajctions which have been improperly joined may be severed ... on such terms as are just. Any claim against a party may be severed and proceeded with separately.” Id. The predominant reasons for a severance are to do justice, avoid prejudice, and promote convenience. F.F.P. Op. Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex.2007). Claims are properly severable if: (1) the controversy involves more than one cause of action; (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted; and (3) the severed claim is not so interwoven with the remaining action that it involves the same facts and issues. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990).
The trial court has broad discretion in the severance of causes of action, and we will reverse a severance decision only if we And an abuse of that discretion. Morgan v. Compugraphic Corp., 675 *141S.W.2d 729, 734 (Tex.1984); see Horseshoe Operating Co., 793 S.W.2d at 658.
Adegoke’s dispute with Rapid concerns its alleged failure to comply with the payments RSL owes to her under their factoring agreement. RSL contends that the trial court erred in severing Adegoke’s claims against it from the remainder of the interpleader action because those claims are inextricably intertwined with the dispute between RSL and Prudential. As a preliminary matter, however, we note that RSL has not identified any live controversy involving Adegoke that remained when the severance occurred. See RSL-SB-IL, Ltd. v. Prudential Ins. Co. of Am., No. 01-13-00933-CV, 2014 WL 3107663, at *3 (Tex.App.-Houston [1st Dist.] July 8, 2014, orig. proceeding) (observing Adegoke did not file opposition to RSL’s motion to compel arbitration and that she filed notice nonsuiting claims against RSL when she learned of motion to compel).
Furthermore, Prudential is not a party to the factoring agreement between Rapid and Adegoke. See Transam. Occid. Life Ins. v. Rapid Settlements, 284 S.W.3d 385, 392 (Tex.App.-Houston [1st Dist.] 2008, no pet.). Adegoke made no claim adverse to Prudential. Pursuant to the SSPA, the SCC transfer order discharged Prudential from any liability it had to Adegoke relating to the assigned payments. Accordingly, we hold that the trial court acted within its discretion in ordering a severance.
Conclusion
We hold that the trial court did not err in directing a take-nothing verdict on RSL’s breach-of-contract claim. We further hold that the trial court acted within its discretion in awarding Prudential its attorney’s fees and in severing claims between Adegoke and RSL from the remainder of the suit. We therefore affirm the judgment of the trial court.
. A factoring company buys streams of future structured-settlement payments in exchange for discounted lump-sum payments. The Structured Settlement Protection Act requires court approval for all direct or indirect transfers of structured settlement payment rights in Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 141.004 (West 2011).
. Erica Adegoke is deceased; her daughter, Olubumi Adegoke, inherited the remaining annuity payments. This development does not affect the issues on appeal, so we refer to them interchangeably as "Adegoke.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284347/ | OPINION
TERRIE LIVINGSTON, CHIEF JUSTICE
In these permissive interlocutory appeals 1 that hinge on the effects of a 1929 deed and a 1944" judgment by a district court in Karnes County, appellants' Orea Assets, G.P., L.L.C.; Orca/ICI Development; Orea Petroleum, Ltd.; and Allen Berry (collectively Orea), along with appel*156lant JPMorgan Chase Bank, N.A., as Trustee of the Red Crest Trust (JPMorgan), appeal the trial court’s February 5, 2014 “Rule 166 Order on Legal Matters Decided by the Court.” We affirm.
Background Facts
These appeals concern ownership and development rights to a 200.1-acre tract in Karnes County. In 1901, William May-field conveyed the tract to Mary Moravitz.2 In 1929, along with her husband J.W., Mary purportedly conveyed an undivided fifteen-sixteenths interest in all minerals within that tract to H.J. McMullen.3 The same year, H.J. conveyed the executive right to the tract,4 along with the rights to receive delay rentals and bonus payments, to McMullen Oil & Royalty Co., Inc. (McMullen Oil). H.J. retained for himself the right to receive royalty payments from production on the tract.
H.J. died in 1934; his wife, Susie, survived him. Through H. J.’s will, any of his interest in the tract passed to Susie, the will’s executrix. Susie later remarried and took the last name of Langille. She acted as McMullen Oil’s president before dying in 1938. Her will created a trust (the Langille Trust) that designated the Fort Worth National Bank (FWNB) as trustee and named her surviving children as beneficiaries.5 Susie’s will made some specific bequests to her husband and others but placed the general residue of her property, including any interest in the 200.1-acre tract that had been reserved by H.J., into the trust.
In 1943, Mary and her sons, who had leased the property for the development of minerals, filed a lawsuit in Karnes County against McMullen Oil to cancel Mary’s purported 1929 deed to H.J. They claimed that the deed had been forged and had been procured by fraud. In the last paragraph of the petition, the Moravitzes prayed that “the instrument ... conveying an undivided fifteen-sixteenths ... mineral interest in and under the 200.1 acres ... be cancelled ... and held for naught.”
McMullen Oil filed a document disclaiming its interest in the tract. The disclaimer stated,
This defendant denies the allegations in plaintiffs’ petition, but states in open court that it asserts no right, title, interest[,] or right of possession in and to the premises described in plaintiffs’ petition aforesaid, and says as far as it is concerned the plaintiffs herein have all right, title, interest [, ] and right of possession thereto. [Emphasis added.]
The Karnes County district court signed a judgment in 1944 that “cancelled and held for naught” the 1929 deed. The court, while reciting that McMullen Oil had filed a disclaimer, also declared that “title to the ... oil, gas[,] and other minerals” belonged to Mary and her sons. The judgment stated that the court had considered “evidence and argument of counsel,”- and it *157recited that the Moravitzes had signed the 1929 deed.
In 1961, .FWNB conveyed (while reserving a royalty) any mineral interests owned by it (as trustee) or the McMullens (before their deaths) to McMullen Oil. In 1966, McMullen Oil dissolved. As part of the dissolution, McMullen Oil conveyed to FWNB, as trustee under Susie’s will, all of McMullen Oil’s rights to any mineral interests that it owned. The 1966 document did not particularly describe (by metes and bounds, for example) the 200.1 acres or any other property that McMullen Oil may have had rights to at that time.
The Langille Trust terminated in 1984 upon the death of Susie’s last-remaining child, and under the terms of Susie’s will, the property in the trust was distributed to her grandchildren. In 1985, the grandchildren created the Red Crest Trust and transferred any oil, gas, and mineral interests that they owned into it. In 1991, the 1944 judgment was first recorded in Karnes County’s deed records.
JPMorgan eventually became the trustee of the Red Crest Trust. In 2010, JPMorgan executed a lease of minerals underneath the 200.1 acres to Orea. Near the same time, other parties, including the Moravitz family, also leased the right to develop minerals on the property.6 The parties’ existing leases and claims to the property are competing and irreconcilable.
Litigation ensued. Through their own pleadings and in response to appellants’ pleadings, the appellees listed above7 brought causes of action in which they claimed ownership or development rights to the 200.1 acres through the effect of the 1944 judgment that cancelled the 1929 deed, along with a series of transfers following the 1944 judgment. Appellees also contended that appellants had wrongfully clouded and slandered appellees’ title. Appellants claimed the rights by pleading that the 1944 judgment is void and unenforceable or that, if generally enforceable, the judgment still cannot extinguish appellants’ rights to the property.
The parties sought summary judgment concerning their claims to the property. JPMorgan moved for summary judgment on traditional and no-evidence grounds; it contended, in part, that the 1944 judgment that purported to cancel the 1929 deed was void and that JPMorgan, which allegedly did not have actual or constructive notice of the judgment until 1991, qualified as a bona fide purchaser for value even if the judgment was not void. Among other arguments, Orea likewise contended that the 1944 judgment was void because necessary parties were not joined in that lawsuit, that the 1929 conveyance constituted a valid link in its chain of title regardless of whether the 1944 judgment was generally valid; that upon H.J.’s death in 1934, all of McMullen Oil’s rights to the property passed to his estate (and thus, to Susie); and that, therefore, all rights relating to the property, including executive rights, passed from Susie to the Langille Trust and eventually to the Red Crest Trust.
Appellees contended, in part, that appellants’ arguments about title depended upon the judicially-cancelled 1929 deed and that after the entry of the 1944 judgment, which bound appellants (who were allegedly all in privity with McMullen Oil), no purchaser could have relied on the 1929 deed to become a bona fide purchaser.
*158Appellees also argued that appellants’ collateral attacks on the 1944 judgment im-permissibly hinged on extrinsic evidence and on reliance upon overruled, inapplicable legal principles. Finally, appellees contended that they had established an unbroken chain of" title dating back to Mayfield’s conveyance to Mary.
After receiving the parties’ extensive briefing and conducting two hearings for argument, the trial court entered á “Rule 1668 Order on Legal Matters Decided by the Court.” The trial court made three conclusions of law:
1. The judgment dated April 6, 1944, of the 81st District Court of Karnes County, Texas, in Cause No. 4602, Mary Moravitz et. al. v. McMullen Oil Royalty Company Inc., et. al., and recorded in Volume 623 at Page 361 of the Official Records of Karnes County (the “1944 Judgment”), is valid and enforceable against all parties in this cause;
2. The mineral deed dated September 11, 1929, from J.W. Moravits and Mary Moravits, as grantors, to H.J.. McMullen, as.grantee, and recorded in Volume 86 at Page .415 of the deed records of Karnes County (the “1929 Deed”), is void ab initio-, and
3. Neither the Defendants, Orea Assets G.P., L.L.C., JPMorgan Chase Bank, N.A.,. individually and as Trustee of the Red Crest Trust, and Phillip Mettham, nor their predecessors and successors in title to the 200.1 acres of property described in the 1944 Judgment (the “Property”) can rely upon the 1929 Deed to establish the defense of a bona fide purchaser for value without notice of a conflicting claim of ownership to the Property.
The trial court also stayed further proceedings pending resolution of this appeal.
The Validity of the 1944 Júdgment
In separate briefs, appellants argue that the trial court’s rule 166 order should be reversed because, among other reasons, the 1944 judgment is void and unenforceable. They contend that the Karnes Coun-, ty district court did not have jurisdiction to enter, the 1944 judgment because the Mo-ravitzes failed to join all necessary parties in their suit to cancel the 1929 deed. We disagree.
In an order issued under rule 166, a trial court may decide legal issues but may not decide contested factual issues. See Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 322 (Tex.App.Houston.[14th Dist.] 2003, pet. denied) (op. on reh’g). We review a trial court’s application of the law to undisputed facts de novo. See In re R.J.H., 79 SW.3d 1, 6 (Tex.2002); Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558, 562 (Tex.App.-Houston [14th Dist.] 2014, no pet.) (op. on reh’g) (“We review questions of law without deference to a lower' court’s conclusion.”).
Appellants’ challenge to the validity and enforceability of the 1944 judg’ment in this litigation is a collateral attack. See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.2005); Glunz v. Hernandez, 908 S.W.2d 253, 255 & n.3 (Tex.App.-San Antonio 1995, writ denied); see also PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex.2012) (“A collateral attack seeks to avoid the binding effect of a judgment in order to obtain specific relief that the judgment currently impedes.”). Only a void judgment may be collaterally attacked. Browning, 165 S.W.3d at 346. A *159judgment is void when the “court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.” PNS Stores, Inc., 379 S.W.3d at 272 (quoting Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010)).
Because courts prefer to give finality to judgments, collateral attacks on judgments are generally disallowed. In re Blankenship, 392 S.W.3d 249, 254 (Tex. App.-San Antonio 2012, no pet.) (citing Browning, 165 S.W.3d at 345). A collateral attack, which attempts to bypass the appellate process in challenging the integrity of a judgment, runs counter to the policy of finality. Id. Thus, when attacked collaterally, a judgment is “presumed valid.” PNS Stores, Inc., 379 S.W.3d at 273. But the presumption of validity disappears when the record establishes a jurisdictional defect. Id. The record affirmatively demonstrates a jurisdictional defect sufficient to void a judgment when it establishes that the trial court lacked subject matter jurisdiction over the suit. Id. A court’s review in a collateral attack is “limited to whether the -record affirmatively and conclusively negates the existence of jurisdiction, not whether the trial court otherwise erred in reaching its judgment.” Blankenship, 392 S.W.3d at 255.
Appellants argue that the Karnes County district court did not have jurisdiction to enter the 1944 judgment (and that the 1944 judgment is therefore void) because all parties owning an interest under the 1929 .deed and later conveyances connected to that deed were necessary parties to that lawsuit,9 the Langille Trust owned such an interest (at least á reserved royalty interest, as passed down from HJ.’s and Susie’s wills), and the Langille Trust was not joined in the suit. Although Orea asserts that appellees “do not dispute that the. Langille Trust was never joined as a party,” appellees argued in the trial court and contend on appeal that thé Langille Trust was made a party to the 1944 judgment through the doctrine of virtual representation.10 We agree.
For over a century, Texas courts have recognized that under the doctrine of virtual representation, there are “cases in which certain parties before the court are entitled to be deemed the full representatives of all other persons ... so far as to bind their interests under the decree, although they are not ... made ... parties.” Miller v. Foster, 76 Tex. 479, 486-87, 13 S.W. 529, 531-32 (1889) (holding that in a suit concerning a will, “the person entitled to the first estate of inheritance,” who was a named party to the suit, virtually represented parties who held dependent and contingent remainder interests and were not named parties); see Looney v. First Nat’l Bank of Floresville, 322 S.W.2d 53, 56 (Tex.-Civ.App.-San Antonio 1959, writ refd n.r.e.) (citing Miller and concluding that “after-born remainder-men [were] bound ... under the doctrine *160of virtual representation” although they were not named parties to the suit); S. Ornamental Iron Works v.- Morrow, 101 S.W.2d 386, 342 (Tex.Civ.App.-Fort Worth 1937, no writ) (stating that the doctrine of virtual representation “is not in conflict with the well-known rule of law that ‘every person is entitled to his day in court,’ for indeed he has had his day and his interests were represented by those upon whom his interests depend”); see also Aerojet-Gen. Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.) (explaining that under federal law, “a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative”), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). When it applies, the doctrine of virtual representation defeats a contention that a judgment is void for failure to join parties who were allegedly necessary and indispensable. See Mason v. Mason, 366 S.W.2d 552, 553-55 (Tex. 1963) (concluding that because virtual representation . applied, the “fact that ... thre'e ... minor beneficiaries were not made parties ... [did] not render the judgment void and subject to collateral attack nor [did] it constitute fundamental error”).
Although our supreme court first recognized in the contingent-remainder context that a named party may virtually represent interests of an unnamed party, courts thereafter extended the equitable doctrine of virtual representation to other contexts. See In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex.2006) (orig. proceeding) (stating that the doctrine is equitably based); Young v, City of Corpus Christi, No. 13-03-00559-CV, 2006 WL 1360842, at *5 (TexApp.-Corpus Christi May 18, 2006, no pet.) (mem. op.) (reciting relationships where virtual representation has been found, including “estate beneficiaries bound by administrators, presidents and sole stockholders by their companies, parent corporations by their subsidiaries, and a trust beneficiary by the trustee” (emphasis added) (quoting Sw. Airlines Co. v. Tex.' Int’l Airlines, Inc., 546 F.2d 84, 97 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977))); see also Allied Van Lines, Inc. v. Cent. Forwarding, Inc., 535 S.W.2d 412, 416 (Tex.Civ. App.-Waco 1976, writ refd n.r.e.) (holding that virtual representation principles precluded a second suit brought by private parties when the State of Texas was the plaintiff in the first suit in which a trial court construed a document common to both suits); Bingham v. Graham, 220 S.W. 105, 111-12 (Tex.Civ.App.-Amarillo 1920, no writ) (stating that the doctrine has been applied in cases involving trusts and unincorporated associations and explaining that the “parties [virtually] represented must have a common interest with those before the court”).
Today, the virtual representation doctrine applies, and a litigant is therefore deemed to be a party (whether or not it requests to be a party), when the litigant will be bound by the judgment, its privity of interest appears from the record, and there is an identity of interest between the litigant and a named • party to the judgment. See Lumbermens, 184 S.W.3d at 722 (citing Motor Vehicle Bd. of Tex. Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108, 110 (Tex.1999)); BJVSD Bird Family P’ship v. Star Elec., L.L.C., 413 S.W.3d 780, 783-86 (Tex.App.-Houston [1st Disk] 2013, no pet.) (reciting and applying the Lumber-mens elements); see also Mason, 366 S.W.2d at 554 (concluding that because trust beneficiaries’ interests were identical to the interests of the trustee, the beneficiaries were virtually represented); Indus. Generating Co. v. Jenkins, 410 S.W.2d 658, 661 (Tex.CivApp.-Austin 1966, no writ) *161(“It is the identity of interests which is of paramount importance in determining the applicability of the doctrine of virtual representation.”); Meyer v. Wichita Cnty. Water Improvement Dists. Nos. 1 & 2, 265 S.W.2d 660, 662 (Tex.Civ.App.-Fort Worth 1954, writ ref d n.r.e.) (stating that virtual representation occurs when the “representative parties actually participating in the suit ... are either prosecuting or defending rights or interests so substantially identical to those of [an unnamed party as to ensure] his adequate representation therein”); Peters v. Allen, 296 S.W. 929, 933 (Tex.Civ.App.-San Antonio 1927, no writ) (holding that an unnamed party was virtually represented when the named party “had the same interest in defending against said suit that [the unnamed party] would have had”). Parties may be in privity in at least three ways: (1) they can control an action even if they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they can be successors in interest, deriving their claims through a party to the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex.1996).
The record establishes that in 1938, Seth Barwise’s law firm filed a petition to probate Susie’s will that created the Langille Trust. Barwise had previously served as a witness to Susie’s signature on the will. Barwise also acted as the attorney for FWNB in its capacity as trustee of the Langille Trust.
In 1943, Barwise, acting as president of McMullen Oil, executed a mineral lease of part of the 200.1-acre property “owned by Mary Moravitz.” The lease allowed Clarke and Cowden Drilling Corporation (Clarke and Cowden) to drill for oil and gas, and it explicitly recognized H.J.’s (along with his heirs and assigns) rights to receive royalties.11 The Morav-itzes’ 1943 lawsuit, filed against both McMullen Oil and Clarke and Cowden, sought to invalidate the 1929 deed and, by extension, the claims of anyone to the 200.1-acre tract at that time other than the Moravitzes, including McMullen Oil, H.J. (along with his heirs), and Clarke and Cowden.12 Thus, the defendants to the 1943 lawsuit-McMullen Oil and Clarke and Cowden-were certainly aware that the result of that suit would affect not only their interests but the reserved royalty interest of H.J. (and his heirs), who had been named in their lease. Even so, Barwise’s law firm, which also represented the Lan-gille Trust, executed on behalf of McMul-len Oil the disclaimer that led to the 1944 judgment; the disclaimer expressed McMullen Oil’s recognition that the Mo-ravitzes had “all right, title, interest!,] and right of possession” to the 200.1-acre tract.13 [Emphasis added.]
In 1950, FWNB, in its capacity as trustee for the Langille Trust, executed a document titled “RATIFICATION OF LEASES.” That document establishes that H.J. had previously conveyed real property interests to McMullen Oil while reserving royalties in those interests; that H.J. and *162Susie had died and had successively conveyed H.J.’s remaining interests in the real property to FWNB in trust; that FWNB, as trustee of the Langille Trust, also owned “all of the capital stock of McMullen Oil” and had done so since Susie’s will was probated;14 that FWNB, as trustee of the Langille Trust, therefore had authority to ratify leases previously executed by McMullen Oil; - and that FWNB, as trustee of the Langille Trust, was ratifying “every oil and gas lease exe- ■ cuted by . .■ ■. McMullen Oil ... in connection with the real property covered by” HJ.’s conveyance to McMullen Oil.
As owner of McMullen Oil’s stock, according to Susie’s will (which created the trust in 1938), the trust had explicit authority, among other prerogatives, to vote on business matters, exchange stock, enter into any agreement with respect. to the redemption of any stock, or consent to reorganization of the business or the sale of its property. The trust also had authority, with respect to McMullen Oil (of which stock Susie owned at the time of her death), to “liquidate all or part of [the business], at [the trust’s] sole and exclusive discretion.” Further evidencing FWNB’s management of McMullen Oil, those entities shared a business address.15
Under Susie’s will, as the trustee of the Langille Trust, FWNB had express authority to “defend all claims and causes of action asserted against the Trust property,” which included all of the stock in McMullen Oil. Susie’s will also directed FWNB, as trustee, to “continue to operate and conduct [the] businesses in which [she was] engaged at the time of [her] death.”
The fused relationship between McMul-len Oil and the Langille Trust continued in the years following the 1944 judgment. In 1961, FWNB conveyed (while reserving a royalty) any mineral interests owned by it (as trustee) or the McMullens (before their deaths) to McMullen Oil. In 1966, McMul-len Oil dissolved. As part of the dissolution, McMullen Oil conveyed to FWNB, as .trustee under Susie’s will, all of McMullen Oil’s rights to any mineral interests that it owned. The record also establishes that in two 1961 transactions, one person acted as both the vice president of McMullen Oil and the Trust Officer of FWNB in its capacity as the trustee of the Langille Trust. |
These uncontroverted facts and the other facts recited above establish that McMullen Oil and the Langille Trust claimed a shared interest in the property in 1943, when the Moravitzes filed their law suit; that the Langille Trust’s interests in that suit (to obtain any royalties from production) were dependent on and would have aligned with the interests of McMullen Oil (which had executed a lease on the property to Clarke and Cowden); and that the Langille Trust, by its trustee FWNB, owned and controlled McMullen Oil at that time. Therefore, we conclude and hold that the virtual representation doctrine applies to deem the Langille Trust a party to the 1943 suit because the Langille Trust, as the sole stockholder of McMullen Oil, was bound by the judgment *163against McMullen Oil; the privity between the Langille Trust and McMullen Oil (based on the Langille Trust’s ownership, right of control, and control of McMullen Oil and the Langille Trust’s interest in the property that stood or fell alongside the validity of McMullen Oil’s interest under the allegations in the Moravitzes’ suit) appears from the record; and the record establishes an identity of interest between the Langille Trust and McMullen Oil. See Lumbermens, 184 S.W.3d at 722; Am-stadt, 919 S.W.2d at 658; Paine v. Sealy, 956 S.W.2d 808, 807 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (“Generally, a judgment against a corporation is res judi-cata in a subsequent suit against a stockholder.”); W. Inn Corp. v. Heyl, 452 S.W.2d 752, 760 (Tex.Civ.App.-Fort Worth 1970, writ refd n.r.e.)' (“The doctrine is established that stockholders of a corporation are in privity with the corporation as to all corporate matters and, in the absence of fraud, are bound by a decree against the corporation.”); see also Donzis v. Immudyne, Inc., No. 04-00-00685-CV, 2001 WL 913977, at *2 (Tex.App.-San Antonio Aug. 15, 2001, no pet.) (not designated for publication) (citing Paine and Heyl and stating that “[s]hareholders of a corporation are in privity with the corporation as to all corporate matters and are bound by a decree against the corporation, and vice versa”); Mobil Exploration & Producing U.S. Inc. v. McDonald, 810 S.W.2d 887, 890 (Tex.App.-Beaumont 1991, writ denied) (“A privy is one so connected in law with a party to the judgment as to have such an identity of interests that the party to the judgment represented the same legal right.”).
In reaching this holding, we reject Orca’s argument that at the time of the 1943 lawsuit, McMullen Oil had no interest in the property.16 For this proposition, Orea relies-on Pan Am. Petroleum Corp. v. Cain, 163 Tex, 323, 355 S.W.2d 506 (1962), overruled by Day & Co. v. Texland Petroleum, Inc., 786 S.W.2d 667 (Tex.1990) (op. on reh’g). In Cain, a grantor had conveyed an undivided one-fourth interest in the minerals of a tract but had reserved the right to lease the land without the joinder of the grantee. 355 S.W.2d at 507. The grantor then died, and his heirs executed four oil and gas leases on the property. Id. A party claiming interest in the land through the grantee , argued that the leases were ineffective because the grant- or’s power to lease had terminated upon his , death. See id. The supreme court agreed, concluding that a reserved executive right that is not a “power coupled with an interest” and that does nqt have “words of inheritance” in the reservation17 terminates with “the death of the original holder unless there is something to indicate that the parties intended that the power should survive and be exercised by others.” Id. at 509-10.
Attempting to apply Cain, Orea argues that when H. J. died in 1934, the rights he had conveyed to McMullen Oil in 1929— including the executive right, the right to receive delay rentals, and the right to receive bonus payments — reverted back to his estate (and eventually passed to the-Langille Trust), and McMullen Oil no longer had any interest in the property. For two reasons, we disagree.
First, the holding in Cain is inapposite to the facts here, in which McMullen Oil *164(the grantee), not H.J. (the grantor), held the executive right upon HJ.’s death and continued in existence for three decades thereafter. Cf. id. at 507 (“The controlling question presented by this appeal is whether the power to lease as reserved in a certain deed conveying an undivided mineral interest may be exercised by the heirs of the grantor after the latter’s death.” (emphasis added)). Orea has not directed us to authority that extends the holding in Cain to divest a grantee of mineral rights after the grantor’s death.
Second, in 1990, the supreme court overruled its 1962 Cain decision. See Day & Co., 786 S.W.2d at 669-70. Orea does not offer a persuasive reason why we should retroactively apply the 1962 Cain decision to the time of H.J.’s death in 1934 but should not retroactively apply the 1990 Day & Co. decision that overruled Cain,18 nor does Orea direct us to a pre-Cain decision, in effect in 1934, that supports the divesting result that Orea urges.
For all of these reasons, we overrule both of Orca’s issues, which depend on its argument that the Langille Trust was a necessary party and was not joined in the litigation leading to the 1944 judgment.19 We also overrule JPMorgan’s first issue, which challenges the validity and enforceability of the 1944 judgment on the basis of the asserted absence of the Langille Trust as a necessary party.
Alleged Bona Fide Purchaser
In its related secojnd and third issues, JPMorgan contends that (1) even if the 1944 judgment is not jroid or unenforceable, the effect of that judgment was only to declare the purported 1929 deed from the Moravitzes to H.J. voidable, not void ab initio; and (2) therefore, JPMor-gan, whose predecessor20 became trustee of the Red Crest Trust before the recording of the 1944 judgment and therefore did not have constructive notice of it, can rely on the 1929 deed to establish that it is a bona fide purchaser for value. ■ Appellees contend that the 1944 judgment declared the 1929 deed void and that therefore, JPMorgan cannot be a bona fide purchaser for value. We need not conclude whether the 1929 deed was void or voidable at its inception because we hold that when the Karnes County district court cancelled and held the deed for “naught” in 1944, no party could thereafter qualify as a bona fide purchaser while relying on that deed.
A person who acquires property in good faith, for value, and without actual or constructive notice of any third-party claim or interest is a bona fide purchaser. Fletcher v. Minton, 217 S.W.3d 755, 758 (Tex.App.-Dallas 2007, no pet.). A bona fide purchaser acquires a property •interest without being subject to prior claims. Madison v. Gordon, 39 S.W.3d 604, 606 (Tex.2001). But a party cannot *165be a bona fide purchaser for value when its chain of title includes a void deed. See Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 168 (Tex. 2013) (citing Wall v. Lubbock, 52 Tex.Civ. App. 405, 410-11, 118 S.W. 886, 888 (Austin 1908, writ refd)); Sanchez v. Telles, 960 S.W.2d 762, 768 (Tex.App.-El Paso 1997, pet. denied) (“A deed which is void cannot pass title even to an innocent purchaser from the grantee.”).
In their 1943 petition, the Moravitzes pled that in September 1929, H.J. approached them with an offer to “buy one[-]eight of [their] royalty for a period of two years.” According to the Moravitzes, H.J. said that if they did not agree to his offer, he “would drill a well next to their land and drain all the oil out from under it and they would get nothing, as [H.J.] had the land around them leased up.” The Moravitzes pled that H.J.’s statement about having leased the land surrounding their property was known by him to be false. They also pled that relying on this false statement, John Moravitz signed an instrument that purported to convey “an undivided one[-]eight of his royalty for a period of two years” but that Mary refused to sign the instrument and that her signa-toe was forged. Finally, they alleged that instead of the instrument conveying an undivided one-eighth of John’s royalty, as he had agreed, it conveyed “an undivided fifteen-sixteenths ... of all the minerals.” The pleading stated,
[The Moravitzes] allege that the statement made by the said H.J. McMullen that he was only purchasing one eighth ... of the royalty in and under said land, and did without the knowledge of the said John W. Moravitz, insert in said instrument that it conveyed an undivided fifteen[-]sixteenths ... of the minerals, constituted such a fraud on the part of McMullen that the interest obtained thereby ... should be cancelled and held for naught by the decree of this court.
In its judgment rendered the next year, the Karnes County district court recited that it had considered the pleadings, evidence, and argument of counsel; that Mary had signed the 1929 deed, and that the 1929 deed was “cancelled and held for naught.”
Comparing the Moravitzes’ pleading with the Karnes County district court’s judgment, JPMorgan argues that the trial court could not have found that the 1929 deed was forged (because the court found that Mary had signed it), that the only other ground pled by the Moravitzes for cancelling the deed was fraud, and that fraud makes a deed only voidable, not void. Even assuming the validity of this argument, however, we conclude that no party could have been a bona fide purchaser in relying on a voidable-at-inception 1929 deed after 1944, when the deed was can-celled and held for naught.
A deed that is voidable is “valid and represents prima facie evidence of title until there has been a successful suit to set it aside.” Nobles v. Marcus, 533 S.W.2d 923, 926 (Tex.1976) (emphasis added); see Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex.2007) (“Deeds obtained by fraud are voidable rather than void, and remain effective until set aside. ” (emphasis added)); Lighthouse Church of Cloverleaf v. Tex. Bank, 889 S.W.2d 595, 601 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (op. on reh’g) (“A voidable deed operates as valid and perfect until set aside.”) (emphasis added)). The logical reciprocal implication of this statement is that when there has been a successful suit to set a once-voidable deed aside, it has at that point been voided, and it is no longer valid nor represents prima facie evidence of title. See Brazzel v. Murray, 481 *166S.W.2d 801, 803 (Tex.1972) (explaining that a voidable act is “binding until disaf-firmed”); Pure Oil Co. v. Swindall, 58 S.W.2d 7, 10 (Tex.Comm’n App.1933, holding approved) (stating that under bona fide/innocent purchaser principles, “until [ a voidable ] instrument has been declared to be void, in an authoritative manner, persons who are ignorant of the circumstances under which the instrument was executed and delivered are entitled to consider it genuine” (emphasis added)); Smith v. Thornhill, 25 S.W.2d 597, 600 (Tex.Comm’n App.1930, judgm’t adopted) (“That which is voidable operates to accomplish the thing sought to be accomplished, until the fatal vice in the transaction has. been judicially ascertained and declared.”- (emphasis added)), judgment vacated on other grounds on reh’g, 34 S.W.2d 803 (Tex.Gomm’n App.1931, holding approved). Indeed, a voidable.act, by definition, is one that “may be voided.” See Black’s Law Dictionary 1805 (10th ed.2014); see also Webster’s Third New International Dictionary 2562 (2002) (defining “voidable” as “capable of being voided” or “capable of being adjudged void”).
When an act is “naught” — as the Karnes County district court declared the 1929 deed-it has “no worth” or “no existence, importance, or effect.” Webster’s Third New International Dictionary 1508 (emphasis added). Thus, we conclude that the Karnes County district court’s judgment that “cancelled and held for naught” the 1929- deed declared the deed void, worthless, and wholly ineffective at least as of 1944, regardless of whether the deed was void or merely voidable at its inception. Cf. Poag v. Flories, 317 S.W.3d 820, 825 (Tex.App.-Fort Worth 2010, pet. denied) (“A void deed is without vitality , or legal effect.”); see also Bradford v. Thompson, 470 S.W.2d 633, 635, 637' (Tex. 1971) (concluding that'a foreclosure was “null and void” and therefore declaring that a trustee’s deed arising from the foreclosure was “cancelled and held for náught”), cert. denied, 405 U.S. 955, 92 S.Ct. 1174, 31 L.Ed.2d 232 (1972); Black’s Law Dictionary 1805 (defining void to mean “[o]f no legal effect” or “null”). Likewise, we hold that from the time of the 1944 judgment forward, the 1929 deed, as' being cancelled and voided, was ineffective to pass title even to any alleged innocent purchasers, including JPMorgan’s predecessor.21 See Tex. Dep’t of Transp., 397 S.W.3d at 168; Sanchez, 960 S.W.2d at 768. In other words, while a voidable deed may convey property to an innocent purchaser, see Slaughter v. Qualls, 139 Tex. 340, 345, 162 S.W.2d 671, 674 (1942), the 1929 deed was no longer voidable in 1985, when JPMorgan’s predecessor acquired its interest; instead, it had been affirmatively cancelled! See Goodwin v. City of Dallas, 496 S.W.2d 722, 723 (Tex.Civ.App.-Waco 1973, no writ) (“[A] voidable deed ... effectually accomplishes the thing sought to be accomplished, until annulled in a suit brought for that purpose.” (emphasis added)); Harrison v. Craddock, 178 S.W.2d 296, 301 (Tex.Civ.App.-Galveston 1944, no writ) (“When a judgment is obtained rescinding a voidable deed, a vested interest in property is thereby obtained.”).
Although JPMorgan argues that the 1944 judgment was not recorded until 1991 (after JPMorgan’s predecessor acquired *167the property as trustee) and that JPMor-gan therefore did not have constructive notice of the judgment, JPMorgan cites no authority to establish that a party may be a bona fide purchaser when acquiring an interest that depends on a deed that has been previously voided or cancelled by an unrecorded judgment. We have not found such authority. Instead, JPMorgan relies on authority concerning unrecorded judgments that affected property conveyances but that did not cancel or void a deed. See, e.g., Woodward v. Ortiz, 150 Tex. 75, 77, 237 S.W.2d 286, 288 (1951); Permian Oil Co. v. Smith, 129 Tex. 413, 443-46, 73 S.W.2d 490, 504-05 (1934); Blocker v. Davis, 241 S.W.2d 698, 700, 703 (Tex.Civ. App.-Fort Worth 1951, writ refd n.r.e.); cf. Tex. Dep’t of Transp., 397 S.W.3d at 168 (stating that one holding under a void title cannot claim protection as an innocent purchaser).
We conclude and hold that because the Karnes County district court cancelled the 1929 deed and declared it as “naught” in 1944, the deed operated as void from at least that time forward, and JPMorgan’s predecessor could not therefore qualify as a bona fide purchaser for value when acquiring its interest years later.22 See Tex. Dep’t of Transp., 397 S.W.3d at 168; Sanchez, 960 S.W.2d at 768; see also Swindall, 58 S.W.2d at 10 (explaining that ignorance of defects in a deed is a defense to an innocent purchaser “until such an instrument has been declared to be void”). We therefore overrule JPMorgan’s third issue in which it contends that it may “rely on the 1929 Mineral Deed to establish that it is a bona fide purchaser for value.” And because a conclusion of whether the 1929 deed was void or voidable at its inception is not necessary to our determination of whether JPMorgan can qualify as a bona fide purchaser, we overrule JPMorgan’s second issue, which' challenges the trial court’s finding that the 1929 deed was void ab initio, as moot.23 See Tex.R.App. P. 47.1; XTO Energy Inc. v. Nikolai, 357 S.W.3d 47, 59-60 (Tex.App.-Fort Worth 2011, pet. denied).
Conclusion
Having overruled all of' appellants’ issues, we -affirm the trial court’s “Rule 166 Order on Legal Matters Decided by the Court” and uphold the trial court’s findings that (1) the 1944 judgment is valid and enforceable against all parties in this cause, and (2) appellants cannot rely on the 1929 deed to establish the defense’of a bona fide purchaser for value without notice of a conflicting claim to ownership of the property.
. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(d), (f) (West 2015); Tex.R.App. P. 28.3.
. The 1901 deed spells the name "Moravietz." Other references to the family’s name in the record use a "Moravitz” or "Mor'avits” spelling.
. The deed stated that the grantors retained a one-sixteenth royalty interest in the minerals.
. This deed stated that H.J. conveyed to McMullen Oil the "full right, power[,] and authority to execute such oil, gas[,] and mineral leases on the property ... without the joinder of H.J .... or any of his heirs ... on such terms and provisions as [McMullen Oil] may deem best.”
.FWNB, which was the independent executor of Susie’s will, morphed through mergers into several different entities after 1938, eventually becoming part of JPMorgan Chase Bank, National Association.
. The Moravitzes also conveyed an undivided 50% interest in the property’s minerals to Dorfman Production Company.
. Because appellees' interests in this litigation are aligned, we will generally refer to them (and to the arguments they have raised) collectively although they have briefed the appeals separately.
. ■ See Tex.R. Civ. P. 166 (authorizing a trial court, for the purpose of '“assist[ing] in the disposition of [a] case,” to hold a pretrial conference, consider pending motions, and enter an "order that recites the action taken”).
. Appellants rely in part on a 1936 decision in which the supreme court stated that it was "settled ... that in a suit to cancel a written instrument!,] ah persons whose rights ... [would] be affected by the cancellation [were] necessary parties” and that the absence ■ of such necessary parties was jurisdictional. Sharpe v. Landowners Oil Ass'n, 127 Tex. 147, 148, 92 S.W.2d 435, 436 (1936).
. Many of the appellees, in their "Second Amended Motion for Partial Summary Judgement” filed in March 2013, argued in part, “The Langille Trust and its interests were so connected in law with McMullen Oil as to have such an identity of interest that the party to the. judgment represented the same legal right, and was virtually represented in the 1943 Litigation.” The remaining appellees made a similar argument in a May 2013 summary judgment brief.
. The Moravitzes had previously executed a lease with Clarke and Cowden concerning the same property. These conflicting leases appear to have motivated the Moravitzes’ 1943 suit.
. JPMorgan recognizes that the Moravitzes sued Clark and Cowden because it had leased the 200.1-acre tract from McMullen Oil.
.Texas courts have concluded that such a disclaimer is generally irrevocable and binds not only the party entering it but also that party's privies. See Sanders v. Taylor, 500 S.W.2d 684, 686 (Tex.Civ.App.-Fort Worth 1973, no writ); Daugherty v. Templeton, 50 Tex.Civ.App. 304, 311, 110 S.W. 553, 558 (Dallas 1908, writ ref d).
. One of the recitals in the document stated that at "all times material herein all of the capital stock of McMullen Oil & Royalty Company, Inc., except director’s qualifying shares, was owned by the said HJ. McMullen, the said Susie McMullen Langille, and now by the [FWNB], Trustee.” We note that Orea represented in its abstract of title that tire probating of Susie's will established the Langille Trust "with [FWNB] as Trustee of stock in McMullen Oil.”
. On a 1943 tax return, McMullen Oil listed its address as "c/o Trust Dept., Fort Worth ’ National Bank.” Other documents within the record use a similar address for McMullen Oil in years preceding the 1944 judgment.
. JPMorgan does not present this argument on appeal,
. We note that the 1929 conveyance from H.J. to McMullen Oil stated that McMullen Oil had the right to execute oil and gas leases on the property “without the joinder of H.J. McMullen or any of his heirs, representatives[J or assigns." [Emphasis added.]
. As a general rule, Texas Supreme Court decisions apply retroactively. Emps. Ret. Sys. of Tex. v. Putnam, LLC, 294 S.W.3d 309, 325 (Tex.App.-Austin 2009, no pet.) (op. on reh’g).
. Appellees alternatively contend that even if the Langille Trust was not made a party through virtual representation, it was not a necessary party, and its absence does not render the 1944 judgment void. Because we conclude that the Langille Trust was a party to the 1944 judgment through virtual representation, we do not address the parties’ contentions concerning how the Langille Trust’s absence would have affected the validity or applicability of that judgment. We overrule all of appellants' arguments that depend on their premise that the Langille Trust was a necessary party and was not joined to the suit leading to the 1944 judgment.
.The Red Crest Trust was created in 1985 with Texas American Bank/Fort Worth named as trustee. Through a series of mergers, Texas American Bank/Fort Worth eventually became JPMorgan.
. JPMorgan acknowledges that the 1944 judgment “cancelled the [1929 deed] and vested title in the Moravitzes prospectively.” Our holding in this case, in which JPMorgan's predecessor acquired its interest after the 1944 judgment, is distinguishable from a circumstance where a conveyance is made through a deed that is merely voidable, a party then becomes an innocent purchaser, and the original deed is thereafter challenged or cancelled.
. At a hearing in the trial court, appellees made this argument. Their counsel contended,
Judge, once it’s voided, there’s void ab ini-tio which is,’ of course, forgery and things like that. And there’s void or voidable_
[A]nd once it’s voided, though, [and] adjudicated void, it’s of no effect.
And the case law says having recorded a void Deed, a Deed that is deemed void, whether void ab initio, or voidable, doesn’t give the Deed any validity.
. JPMorgan appears to challenge this finding only for the purpose of establishing its position as a bona fide purchaser. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284348/ | Opinion of the Court by
Justice Abramson
This action resulted in a jury verdict and judgment in favor of Keith Randall Spark-man d/b/a In-Depth Sanitary Service Group on claims of breach of contract and tortious interference with contract. On-appeal, Defendants CONSOL Energy, Inc. (“CONSOL”) and CONSOL of Kentucky, Inc. (“CKI”) raised various substantive issues- regarding the claims asserted and the trial, while Plaintiffs Keith Randall Spark-man (“Sparkman”) and In-Depth Sanitary Service, Inc. sought review of an evidentia-ry ruling by cross-appeal. The Court of Appeals never reached the issues raised by the parties, but instead sua sponte concluded that it had no jurisdiction over the appeal. The contracts at the center of the dispute were entered into by In-Depth Sanitary Service Group (“Group”), a sole proprietorship that was not named in the complaint, (as opposed to the Plaintiff In-Depth Sanitary Service Inc.), and consequently, the judgment was in fayor of Group, a “non-party.” Finding no appellate jurisdiction in those circumstances, the Court of Appeals reversed and remanded the judgment to Knott Circuit Court for farther proceedings including “any appropriate corrective action.” The appellate court also dismissed the cross-appeal on that same ground as well as for being improperly taken from the wrong judgment. We now reverse and remand this matter to the Court of Appeals to address the appeal and cross-appeal on the merits.
RELEVANT FACTS
CONSOL is a coal and natural gas company with' headquarters in Pittsburgh^ Pennsylvania. Its subsidiary, CKI, operates mining facilities in eastern Kentucky. In 2001, CKI contracted with Keith Spark-man to provide cleaning services at two of CKI’s facilities, the Jones Fork Mine Main Office and the Mill Creek Prep Plant. The contracts were executed between CKI and “In-Depth -Sanitary Service Group” (“Group”), a sole proprietorship operated by Sparkman. In 2002, Sparkman incorporated an entity named “In-Depth Sanitary Service, Inc.” (“Inc.”), a corporation wholly owned by Sparkman and his wife. Despite the creation of Inc., CKI continued to contract exclusively with Group, with Sparkman signing the contracts on behalf of Group.2 In 2004, CKI contracted *324■with‘'Group to clean a third'facility, the Jones Fork Slope Mine. The contracts for all three facilities were payable on a month-to-month basis and renewed on a year-to-year basis.
By 2005, the business relationship between Group and CKI had begun to deteriorate. In February 2005, CKI contacted Sparkman via a certified letter to inform him that it had terminated two of the three cleaning contracts with Group. Sparkman, disgruntled over the loss of the contracts,3 attempted to secretly record conversations with CKI and CONSOL representatives. As a result of the discovery of these efforts, CKI terminated Group’s remaining contract.
Sparkman filed a complaint against CONSOL and CKI, as well as certain individuals,4 for breach of contract and tor-tious interference with contract. The named plaintiffs were “Keith Randall Sparkman, Individually, and In-Depth Sanitary Services, Inc.”. Sparkman alleged that the CKI contracts were terminated unlawfully, while Inc. alleged that former Inc. employee Amy Little conspired with CKI employees to steal the facilities cleaning business from him.
The Knott Circuit Court jury trial took place in 2009 and lasted six days. Little, Scarberry, and Campbell were dismissed as defendants by directed verdict before the close of the trial. As reflected in the judgment entered on August 28, 2009, the jury found in favor of “Keith Randall Sparkman d/b/a In Depth Service Group” and awarded damages in the amount of $34,500.00 for breach of the contracts; $278,450.00 for tortious interference; $50,000.00 for past and future pain, suffering, and mental anguish; and $350,000.00 for gross negligence. CONSOL and CKI moved the trial court for a judgment notwithstanding the verdict and to alter, amend, or vacate the jury award. In response to CONSOL/CKI’s post-judgment motions, the trial court entered an order on October 14, 2009, amending the judgment to reduce the tortious interference award by $34,500.00.
CONSOL/CKI appealed the jury verdict to the Court of Appeals where CONSOL argued inter alia that it was privileged to interfere with the contracts of its wholly-owned subsidiary CKI, and did so without malice. Sparkman filed a cross-appeal challenging an evidentiary ruling made during the trial. All parties listed “Keith randall sparkman and IN-DEPTH SANITARY SERVICES, INC.” as the plaintiffs in the caption of their notice of appeal. However, the body of CONSOL/CKI’s notice of appeal identified “Keith Randall Sparkman d/b/a In Depth Sanitary Services Group” as the plaintiff, while the body of Sparkman’s notice of cross-appeal identified the plaintiff as: “Keith Randall Sparkman d/b/a In-Depth Sanitary Services, Inc.” The notices were timely filed.
As noted, the Court of Appeals disposed of the matter sua sponte based on a perceived lack of jurisdiction. Specifically, the Court of Appeals observed that while the complaint was filed by Sparkman and Inc., the contracts were actually entered into by Group. According to the Court of Appeals, the wrong parties had filed the suit and the trial court’s judgment award*325ed damages to a “non-party” — that is, “Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group” — a party that the appellate court concluded appears nowhere in the pleadings or at trial. Finding no jurisdiction over the parties named in the appeal, the Court of Appeals reversed and remanded the matter to the trial court “for further proceedings and appropriate corrective action, if any there be.” The court then dismissed Sparkman’s. cross-appeal on similar grounds while also noting that the cross-appeal had been taken from the wrong judgment and order. '
ANALYSIS
The contracts at the heart of this dispute are between CKI and Group, a sole proprietorship operated by Keith Spark-man. Proof to this effect was introduced at trial, and eventually the jury instructions proffered by the parties, the verdict and the judgment all referred to Group as the party for whom judgment was sought and entered. Unfortunately, Group was not a named plaintiff nor did it appear in the caption of CONSOL/CKI’s notice of appeal, although, interestingly, Group was named in the body of that notice as the party against whom the appeal was taken. Spotting the disconnect, the Court of Appeals invoked City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky.1990) to find a lack of jurisdiction and then reversed and remanded the matter to the trial court for correction of what it deemed a clerical error, albeit one that might not be subject to any corrective action. While this case has been unnecessarily complicated by the parties’ and the trial court’s failure to address the disconnect between the proof/judgment and the pleadings, the Court of Appeals erred in its disposition of the case, beginning with its conclusion that City of Devondale was controlling. To unravel this, we start there.
■ In City of Devondale, a group of Jefferson County residents brought a declaratory judgment action seeking to avoid annexation, and the circuit court allowed the City of Louisville and Jefferson County to intervene. 795 S.W.2d at 955. After the residents prevailed on summary judgment, Devondale filed a notice of appeal listing as the appellees against whom the appeal was taken all of the individual residents who had brought the suit. Weeks later, Devondale sought to correct its omission of the City of Louisville and Jefferson County as appellees by a motion to amend the notice of appeal. The Court of Appeals denied that motion and subsequently dismissed the appeal for failure to join necessary parties. On review this Court stated that “a notice of appeal, .., -transfers jurisdiction of the case from circuit court to the appellate court” and “places the named parties in the jurisdiction of the appellate court.” Id. at 957, The City of Louisville and Jefferson County were indispensable parties to the annexation dispute but the defective notice only transferred jurisdiction over the individual residents.. Recognizing the doctrine of substantial compliance as “salutary and progressive” in other contexts of appellate practice, this Court nevertheless declined to apply it in those circumstances “to retroactively create jurisdiction.” Id. The Court pointedly observed: “There are policy considerations that mandate strict compliance with the time limit on filing of the notice of appeal. Potential parties to an appeal have the right to know within the time specified in the rule that they are parties.” Id.
The instant case is manifestly different from City of Devondale. There the City of Louisville and Jefferson County were wholly separate and distinct from the individual residents and while the notice of appeal transferred jurisdiction over the individual residents to the appellate court it did nothing with respect to Louisville and *326Jefferson County. Here Keith Sparkman and Group, his d/b/a entity, were essentially synonymous, given the legal status of a sole proprietorship (discussed more fully infra), and all of the affected parties (along with their respective issues and proof) were not only before the trial court but also before the Court of Appeals, albeit imperfectly named. Contrary to the Court of Appeals’ observation, Group did appear in the proof of this case because Sparkman testified about his business operations (explaining he did business as Group) and his contracts with CKI. Additionally, the contracts entered as exhibits clearly bore the assumed name “In-Depth Sanitary Service Group.” The parties tailored the jury instructions/verdict to this proof, and the trial court did the same by specifically granting judgment' to Keith Sparkman d/b/a In-Depth Sanitary Service Group. Unlike City of Devondale, in this case there was no issue of any interference with a wholly separate and distinct party’s “right to know” that it was a party to an appeal. While the omission of Group as a named plaintiff left the complaint vulnerable to á motion to dismiss for- lack of standing (which probably would have prompted an appropriate amendment of the complaint years ago in the trial court) and that type of omission could be fatal under different circumstances, it was not here for the reasons addressed below.
I. The Judgment of the Trial Court Identified the Correct Party Because the Parties Mutually Consented to the Amendment of the Complaint to reflect Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group.
Sparkman argues that because the parties treated Sparkman and Group as one and the same throughout the proceedings and agreed to submit the case to the jury with instructions designating Group as the party for whom judgment was sought, all parties essentially consented to amending the complaint to include “Keith Sparkman d/b/a In-Depth Sanitary Service Group” as a party to the action. Having reviewed the record of this case in light of applicable law, We agree.
Under the Kentucky Rules of Civil Procedure (CR), a pleading may be amended so that it conforms to the evidence presented at trial:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleading as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
CR 15.02.
As expressly outlined in the rule, issues that are not raised in pleadings but are nevertheless tried are treated as though they were in fact raised in pleadings. CR 15.02. An amendment pursuant to CR 15.02 may be accomplished by the express or implied consent of the parties, and amendment can occur “even after judgment.” Id. A threshold issue on these facts is whether the naming of the proper plaintiff at the trial level constituted an “issue not raised-by the pleadings” that is subject to amendment by consent as referenced in CR 15.02. If so and CR 15.02 applies generally, then it is necessary to analyze the record to determine if the parties indeed consented to the amendment.
At least one case suggests that CR 15.02 does not permit amending a complaint to add an omitted party. In Shearer v. Hall, *327a motorist injured in a bridge collapse brought suit against individual members of the fiscal courts of the two. counties charged with maintaining the bridge. 399 S.W.2d 701, 702 (Ky.1965). The two counties themselves were never made defendants, but the trial court apparently treated the counties as if they were named in the complaint by referencing the doctrine of sovereign immunity in the judgment. Id. The Shearer Court was quick to reject -the notion that the counties (the absence of which from the pleadings was not raised until the appeal was filed) were estopped from raising the defense on appeal. Id. at 708. ■ The Court held that the plaintiffs’ failure to name the counties as parties did not fall under the purview of the CR 15.02 amendment rule, positing: “This question should not be confused with the situation where an ‘issue’ not raised by the pleadings, but tried by expressed or implied consent, is treated in all respects as if it had been raised in the pleadings under CR 15.02.” Id. In support of its position, the Court cited authority holding that naming individual members of a county’s fiscal court as defendants did not operate to join the county in an -action. Id. (discussing Howell v. Haney, 330 S.W.2d 941 (Ky. 1960)).
In Shearer, CR 15.02 could not be used to add a missing defendant to an action on appeal, but that, of course, is not the issue here. In this case the problem is with the naming of the plaintiff(s), not the defendants. As repeatedly noted, Sparkman filed suit both in his own name and' on behalf of the corporation, Inc. Had Spark-man failed to bring the complaint in his own name leaving only Inc. as a party, the Shearer holding would arguably foreclose any application of CR 15.02 to amend the complaint5 to add “Sparkman d/b/a/ In-Depth Sanitary Service Group” because Group and Inc. aré wholly separate entities. See Miller v. Paducah Airport Corporation, 551 S.W.2d 241 (Ky.1977) (individual was not proper plaintiff even though he was sole owner of the corporation that was the real party in interest). However, the issue presented here is not one. of adding a completely new party to the action. Rather, this case concerns proof adduced at trial to identify how the plaintiff operated his cleaning business, (ie., not as Keith Sparkman but as Sparkman d/b/a Group, a sole proprietorship) and, more importantly, whether the parties consented to amending the complaint to reflect that proof.
In Nucor Corp. v. General Elec. Co., 812 S.W.2d 136 (Ky.1991), this Court held that a trial court did not abuse it discretion when it permitted a plaintiff to amend the pleadings to conform to-the evidence in a lawsuit against a manufacturing company following a roof collapse at an industrial building. In that <;ase, the plaintiff alleged a breach of warranty claim that was ultimately determined to be time-barred. Id. at 146. Because the proof necessary to prove a breach of contract claim was already in evidence presented in support of the warranty claim, this Court found the trial court properly allowed amendment of the complaint to add a breach of contract claim, at the close of all the evidence. Id. at 145.
Much like this Court’s observation in Nucor, the evidence presented at the *328trial of this case supported the factual allegation that Sparkman conducted his cleaning business under the alias “d/b/a In-Depth Sanitary Service Group.” Significantly, all parties treated Group and Sparkman as interchangeable throughout the trial. All of the OKI contracts admitted at trial, identify Group as the vendor providing services. In his testimony and an affidavit introduced at trial, Sparkman explained that at the time he entered into contracts with OKI, he used the “doing business as” alias “In-Depth Sanitary Services Group.”6 The letter informing Sparkman that CONSOL/CKI was terminating its contracts was addressed to Group and bore the salutation: “Dear Keith.” CONSOL/CKI’s proposed jury instructions included references to “Keith Sparkman” as well as “Keith Sparkman d/b/a In-Depth Sanitary Services Group.” Finally, CONSOL/CKI’s notice of appeal was taken against “Keith Sparkman d/b/a In-Depth Sanitary Service Group.”7
The parties’ treatment of Spark-man and Group as interchangeable entities is understandable given the nature of the relationship between an individual proprietor and his sole proprietorship. A sole proprietorship is defined as “a business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity.” Black’s Law Dictionary (10th ed. 2014). A sole proprietorship, therefore, differs greatly from other business organizations such as corporations or limited liability companies (LLCs), even in cases where a business organization has only one shareholder or member. For example, the sole member of an LLC or sole shareholder of a corporation is not entitled to assert in his or her individual capacity the rights of the business organization. Turner v. Andrew, 413 S.W.3d 272 CKy.2013); Miller, 551 S.W.2d 241. An owner of a sole proprietorship, on the other hand, is liable in his or her personal capacity for the liabilities of the sole proprietorship, and may assert the rights of the sole proprietorship in his individual capacity:
In short, the individual proprietor is the ‘boss’, personally employing others as employees or agents. The business contracts — those made personally or by agents within their actual or apparent authority or, when made beyond the agency power, ratified — are the proprietor’s contracts. As to torts, the proprietor is responsible directly for those personally committed and vicariously (respondeat superior) for those committed by employees within the scope of their employment. The proprietor’s personal liability, therefore, is unlimited, subject to possible protection by contractual stipulation or insurance. To the extent that most personal assets might already be invested in the business, limited personal liability would not add much benefit as a practical matter. Credit can be had for the business to the extent of not only the business assets but also the proprietor’s personal assets.
*329William Bardenwerper, 4A Ky. Prac. Methods of Prac., Part III: Business Organization, § 18:1 (emphasis added).
Individual proprietors commonly operate sole proprietorships under aliases, or “assumed names,” often, as here, with the individual’s name’ followed by “doing business as.” To operate under an assumed name, Kentucky Revised Statute (KRS) 365.015(3) stipulates that a sole proprietor must first file a certificate of the assumed named with the “county clerk where the person maintains his or her principal place of business.” The purpose of this statute and its predecessors, as explained by this Court’s predecessor in Hayes v. Providence Citizens’ Bank & Trust Co., 218 Ky. 128, 290 S.W. 1028, 1029 (1927) is to protect the public by ensuring that consumers are aware of the identity of the persons or entities with whom they are conducting business. The Hayes case concerned money deposited with a bank by an individual (Hayes) under an assumed name. Id. at 1028. Hayes brought suit against the bank when it failed to properly account for his deposit and refused to pay him on demand per the parties’ agreement. Id. In response, the bank argued that during all times covered in Hayes’s complaint, Hayes had operated under an assumed name. Id. Because Hayes had admittedly failed to file the requisite certificate under the assumed named statute, the bank asserted that he could not seek to enforce the deposit agreement in his individual capacity.8 Id. Rejecting this argument, the Hayes Court concluded that while the failure to comply with an assumed name statute may result in statutory penalties, it does not (expressly, or impliedly) invalidate contracts made by the party operating under the assumed name. Id. at 1029. The Court opined that voiding a contract because a party has failed to comply with the assumed name statute would not further the objective of public protection, but would in fact encourage fraudulent practices. Id.
Turning to the case at bar, there is no evidence in the record that Sparkman filed a certificate memorializing the “Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group” assumed name pursuant to KRS 365.015(2). There was, however, evidence that Sparkman, as the sole proprietor of Group, was the signatory on all of Group and CKI’s contracts, and that he continued to use Group as an alias for himself in his individual capacity when conducting business with CKI. As a sole proprietorship, Group’s contracts are Spark-man’s contracts; and Sparkman’s failure to comply with the assumed name statute does not invalidate those contracts as the Court of Appeals suggested.9 See Hayes, 290 S.W. at 1028. The proof presented at trial used to establish the identity of the *330parties, though seemingly introduced as an obligatory technical matter, was sufficient to prove that Keith Sparkman, as the owner of Group, operated under the alias “Keith Sparkman d/b/a In-Depth Sanitary Service Group.” Because the proof necessary to establish the foregoing was already in evidence, Nucor permits the application of CR 15.02 to amend the complaint to reflect not merely Keith Randall Spark-man but also “Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group” as the proper party designátion.
Of course, consent is a requisite for any amendment of the pleadings under CR 15.02. Whether a party impliedly consents to the trial of unpleaded issues turns on the matter of actual prejudice. Nucor Corp., 812 S.W.2d at 146. Actual prejudice in the context of pleadings does not concern “winning or losing,” but rather “being unable to present’ a defense which would have been otherwise available.” Id. at 146. To quote from Nucor. “It seems clear that at the trial stage the only way a party "may raise the objection o'f deficient pleading is by objecting to the introduction of evidence on an unpleaded issue. Otherwise he will be held to have impliedly consented to the trial of such issue.” Id. at 145 (internal citations omitted).
As the parties concede, the complaint ■(brought.by Sparkman and by Inc.) and the judgment (awarding damages to Sparkman d/b/a In-Depth Sanitary Service Group) are facially incongruent. Furthermore, as the Court of Appeals correctly concluded, Inc. is a wholly separate entity from Group and Sparkman. However, an objection to Group’s technical absence from the complaint was always available to CONSOL and CKI, and yet those entities never challenged the identification of the plaintiffs). Cf. Fratzke, 12 S.W.3d 269 (plaintiffs amendment made on last day of trial without leave of court supplementing answer to reflect amounts for unliquidated damages was improper when defendant had no notice and was unaware of the supplemented answer). Instead, CONSOL and CKI included the proper designation of the contracting party, Group, in their own purposed jury instructions. Furthermore, the factual basis of Sparkman’s claim against CON-SOL/CKI remained the same throughout the proceedings. Nucor Corp., 812 S.W.2d at 146. Under these circumstances, CON-SOL/CKI suffered no actual prejudice, and Sparkman has appropriately invoked CR 15.02 on appeal. Bowling Green-Warren Cnty. Airport Bd. v. Long, 364 S.W.2d 167, 171 (Ky.1962) (CR 15.02 “may be invoked even though the appellate level has been reached.”); see also Parrish v. Kentucky Bd. of Medical Licensure, 145 S.W.3d 401 (Ky.App.2004).
Because “Keith Sparkman d/b/a In-Depth Sanitary Service Group” was an accepted designation of an existing party to the action by implied consent of the parties, even 'though the complaint simply said “Keith Sparkman”, the trial court’s judgment containing this designation of the party for whom judgment was entered was proper. The Court of Appeals erred in reversing and remanding the judgment to the trial court because 'there was appellate jurisdiction Over the matter and all affected parties.
II. Naming of the Parties in the Notice of Cross-Appeal was Sufficient to Transfer Jurisdiction to the Court of Appeals.
Much of the confusion surrounding the naming of the parties in this case derives from the formation of “In-Depth Sanitary Services, Inc.”, Sparkman’s confusingly similarly-named corporation. Inc. sought to recover damages as a result of the actions of a former employee, Amy *331Little, who was accused of attempting to usurp the cleaning contracts with OKI. Little was dismissed from the lawsuit by a directed verdict at trial. On appeal to the Court of Appeals, the caption of the, notice of cross-appeal identifies the plaintiffs as: “Keith Randall Sparkman and In-Depth Sanitary Services, Inc.” The body of the notice of cross-appeal differs, stating that “Keith Randall Sparkman d/b/a In-Depth Sanitary Services, Inc. ” (emphasis supplied) is the party giving notice of a cross-appeal from a judgment of the Knott Circuit Court entered on October 14, 2009. As previously noted, in the October 14 order the trial court denied CON-SOL/CKI’s motion for judgment notwithstanding the verdict but sustained their motion to reduce the jury award by $34,500.00.
The Court of Appeals sua sponte dismissed the cross-appeal reasoning that even if the party identified in the body of the notice, “Sparkman d/b/a In-Depth Sanitary Service, Inc.,” actually existed it was not a party to the underlying litigation, and, therefore, any notice of cross-appeal naming such a party was defective, referencing City of Devondale v. Stallings. The appellate court also sua sponte found that the cross-appeal was subject to dismissal because it challenged the wrong order, ie., the October 14 order amending the judgment as opposed to the original August 29 judgment.
A notice of appeal is “the procedural instrument by which an appellant invokes the appellate court’s jurisdiction.” Flick v. Estate of Wittich, 396 S.W.3d 816, 819 (Ky.2013) (internal quotations omitted). CR 73.03(1) simply provides that a notice of appeal “shall specify by names all appellants and appellees.” The purpose of naming the appellant/appellee is to provide sufficient'notice to the parties-of the coming appeal. Blackburn v. Blackburn, 810 S.W.2d 55, 56 (Ky.1991). To that end, this Court has long held that “naming a party in the caption of the notice is-, standing alone, sufficient to satisfy the rule, even though the party is not named in the body of the notice.” Lassiter v. American Exp. Travel Related Services Co., Inc., 308 S.W.3d 714, 718 (Ky.2010). In so doing, “fair notice is given to the opposing party, and thus the objective of the notice is satisfied.” Id.
The caption of Sparkman’s notice of cross-appeal was styled: “KEITH RANDALL SPARKMAN AND IN-DEPTH SANITARY SERVICES, INC.” Focusing on the naming of the plaintiff in the body of the notice of cross-appeal— “Keith Randall Sparkman d/b/a In Depth Sanitary Services Inc.” — , the Court of Appeals asserted that it lacked jurisdiction to entertain the cross-appeal over what it perceived to be a non-party.10 This conclusion is erroneous in light of our case law. While we agree that the variance in party names is both frustrating and confusing, the naming of both Sparkman and Inc. in the caption of the notice was sufficient to give fair notice to the opposing parties, CONSOL and CKI. See Lassiter, 308 S.W.3d at 718. Because the notice of the cross-appeal was sufficient under our case law and CR 73.03 to confer appellate jurisdiction, the Court of Appeals erroneously dismissed the cross-appeal on that ground.
The Court of Appeals further concluded that Sparkman cross-appealed the wrong judgment. The appellate court *332explained that because Sparkman attempted to raise evidentiary issues in his cross-appeal, he was required to appeal from the August 28 judgment of the trial court, rendering his cross-appeal from the October 14 order subject to dismissal. Again, we disagree. Almost thirty years ago, in Ready v. Jamison, 705 S.W.2d 479, 482 (Ky.1986) this Court held that failure to properly specify the final judgment from which the appeal was taken does not warrant automatic dismissal, “so long as the judgment appealed from can be ascertained within (sic) reasonable certainty from a complete review of the record on appeal and no substantial harm or prejudice has resulted to the opponent.” Here, as often is the case, post-judgment motions delayed finality of the original judgment until entry of an order disposing of those motions, an order that in this case partially modified the original judgment. The best method of designating the judgment appealed from in these circumstances is something akin to that used in CON-SOL/CKI’s notice of appeal. They indicated they were appealing “the Judgment entered ... on August 28, 2009, the Court having denied the Defendants’ Motion for Judgment Notwithstanding the Verdict, and to Alter, Amend or Vacate the Judgment on October 14, 2009.” This designation encompasses both of the post-trial judgments/orders. Nevertheless, under the longstanding rule from Ready v. Jami-son, the reference to the October 14, 2009 order alone was not fatal. The judgment appealed from could be “ascertained with reasonable certainty” and there was no harm or prejudice whatsoever to CONSOL or CKI. 705 S.W.2d at 482. The cross-appeal should not have been dismissed on this ground, either.
CONCLUSION
For the reasons explained herein, we reverse the Court of Appeals’ opinion and remand this matter to that Court for a full review of the merits of the appeal and cross-appeal.
All sitting. All concur.
. The parties have attached identical copies of the signed purchase orders which constitute the three contracts. Each is signed by Spark-man on behalf of Group, but each also has a *324contractor register sheet which lists Inc. as the contractor.
. Sparkman was also suspicious that an Inc. employee was engaged in an extramarital affair with a CKI employee.
. Other named defendants were former Inc. employee Amy Little, CKI mine supervisor Clell Scarberry, and CKI/CONSOL human resources supervisor Craig Campbell.
. For clarification’s sake, we note that the pleading subject to amendment in the instant case is the complaint. CR 15.02 only applies to the pleadings listed in CR 7.01, specifically: complaints, answers, replies to counterclaims, answers to cross-claims, third-party complaints, Rule 14 summons, and third-party answers. Fratzke v. Murphy, 12 S.W.3d 269 (Ky.1999). This list is inclusive, and other types of pleadings (such as interrogatories) are not "pleadings” within the meaning of CR 15.02. Id. at 271.
. The Court of Appeals suggested that Spark-man jointly owned Group with his wife. However, the record reflects that Sparkman was the sole owner of Group. Sparkman's wife is a 50% owner of the corporation, Inc.
. The judgment naming “Sparkman d/b/a In-Depth Sanitary Service Group” was taken from the jury award, which was based on jury instructions proposed by CONSOL. If the jury instructions erroneously named a "non-party” to the litigation, there is a cognizable question as to whether CONSOL affirmatively invited the error. This Court recently concluded that when a party invites error by proposing erroneous jury instructions, that party has waived its right to appellate review of the "defect.” Thornton v. Commonwealth, 421 S.W.3d 372, 377 (Ky.2013).
. For comparison, the statute in Hayes was section 199M of the Kentucky Statutes, which read: "No person or persons shall hereafter carry on or conduct or transact business in this state under an assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual, or individuals conducting or transacting such business, unless such person or persons shall file in the office of the clerk of Ae county or counties in which such person or persons conduct or transact or intend to conduct or transact such business, a certificate setting forth the name under which said business is, or is to be, conducted or transacted, and the trae or real full name or names of the person or persons owning, conducting or transacting the same, with the post office address or addresses of said person or persons. Said certificate shall be executed and duly acknowledged by the person or persons so ' conducting, or- intending to conduct, said business.”
. The Court of Appeals questioned whether the "third creature”, i.e., Group, "even exists” due to failure to file an assumed name certificate.
. “Keith Randall Sparlcman d/b/a In Depth Sanitary Services Inc.”'is an inappropriate designation because it improperly conflates the names of the original plaintiffs. Moreover, an individual cannot do business as a corporation. However, the caption of the notice was' consistent with the style of the case as it proceeded in the trial court. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284349/ | OPINION OF THE COURT BY
CHIEF JUSTICE MINTON
As recently as three years ago, this Court reaffirmed our commitment to the historic rule prohibiting the use of post-trial juror statements to impeach a facially valid verdict — a rule, as we said in Commonwealth v. Abnee, that is “firmly rooted in the early years of Kentucky jurisprudence.” 1
Relying upon post-trial comments attributed to jurors implying that the jury had not agreed unanimously on all of the statutory elements of the crime of first-degree stalking — one of the crimes of which he had just been convicted — Theodore Maras moved the trial court for judgment of acquittal notwithstanding the verdict or a new trial. The trial court denied the motion and entered judgment imposing sentence. The Court of Appeals affirmed the judgment. We granted discretionary review and now affirm the Court of Appeals because the record does not warrant departure from the historic rule.
*334I. FACTUAL AND PROCEDURAL BACKGROUND.
A romantic relationship developed between Christina Potter and Maras, and they began living together. After a few months together, Potter filed for an emergency protective order (EPO) against Mar-as, alleging domestic violence. Potter soon dropped the action after discussing the matter with Maras and some of his family members.
The next year, Potter sought a second EPO. And this time, Potter followed through, obtaining a domestic violence order (DVO) against Maras. The DVO mandated Maras have no contact with Potter and refrain from possessing any firearm for a period of three years. The DVO also required Maras to stay at least 600 feet from Potter and her family members.
Despite the DVO’s clear prohibition, Maras continued- to ■ contact Potter. He made numerous phone calls to her and sent her several text messages. At one point, Maras even threatened to commit suicide over the couple’s breakup. Mar-as’s behavior became increasingly unnerving.
In the weeks leading up to his arrest for violating the DVO, Maras left a note on Potter’s door detailing how much he missed her and how distressed he was over her inventing excuses for not talking to him. With the note, Maras left a collection of Potter’s personal items and, strangely enough, a shotgun barrel. Maras waited outside in his truck but ’left before the police arrived.
On another occasion, as Potter was leaving for work, she discovered an intoxicated — and armed — Maras sitting in his truck in front of her home. Maras told Potter he came to say goodbye. Potter asked what Maras meant by this, and he replied that she knew what he was talking about: Potter asked Maras to give her the gun, which he did, and then told Maras to go home, sober up, and leave her alone.
. While at work that day, Marás left several notes on Potter’s car and was waiting outside when she left work. Potter contacted the police when she got home'. The police took possession of the firearm Mar-as had that morning — a double-barrel shotgun that had been cut down and the barrel sawed off. The firearm was loaded with two shells.
A few days later, Maras again violated his DVO when he attempted to contact Potter outside her daughter’s home. Mar-as was eventually arrested for violating the DVO and charged with first-degree stalking, violation of a protective, order, being a felon in possession of a firearm, and" being a first-degree persistent felony offender (PFO 1).
During its deliberation at trial, the jury apparently sent a note to .the trial court asking for clarification about the meaning or interpretation of the jury instructions.2 The trial court discussed the jury’s question with both the Commonwealth and Maras’s counsel and returned a note advising the jury no clarification could be provided. ■
The jury convicted Maras of all charges.3 For the violation of a protective *335order, a misdemeanor, the jury recommended a sentence of nine months’ confinement. For the stalking conviction, the jury recommended a sentence of five years’ imprisonment.
Following the jurors’ deliberation but before they left the courtroom, the trial court instructed the jurors to return to the jury room and informed them that they would be finally excused following a brief discussion. As to the ensuing discussion with these former jurors, the judge later notified both Maras’s counsel, as well as the Commonwealth’s attorney, that she had spoken to the jurors about the question they had posed to her during deliberation regarding the instructions. Days later, and based on the trial judge’s disclosure, Maras filed a motion for judgment notwithstanding the verdict (JNOV), seeking a new trial. Maras alleged that some members of the jury had, after they had been discharged, informed the trial court that they could not unanimously agree on whether Potter feared for herself. The jurors apparently acknowledged, however, that they could unanimously agree that Potter, at the very least, feared for others, ie., her boyfriend and daughter. Allegedly, this was the basis for the jury’s conviction of Maras.
II. ANALYSIS.
From the outset, we should be clear about what this case involves and what it does not. This case does involve a review of whether post-verdict juror statements can be used to overturn a verdict. But this case does not — as Maras attempts to argue — require this Court to resolve his main argument that he was convicted of a crime nonexistent under the Kentucky Penal Code. A detailed review of the statutory elements of first-degree stalking is unnecessary to resolve this ease on discretionary review.
Our modern expression of the time-honored principle we recently reaffirmed in Abnee is found in Kentucky Rules of Criminal Procedure (RCr) 10.04, which states that “[a] juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot.”'' The sound policy reasons supporting the rule are self-evident. - Again, in Abnee, we noted:
The rule serves several important purposes. It aids in protecting the sanctity and finality of judgments based upon jury verdicts. It promotes open and frank discussion among the jurors during deliberations. By barring the use of a juror’s testimony to attack a verdict, the rule protects individuals who have served on juries from potentially corruptive influences that, in the hope of altering a verdict, might otherwise be brought to bear against a former juror.4
But the rule is not ironclad. Over time, we ' have acknowledged limited circumstances where the clear text of the rule must yield to constitutional demands. These limited circumstances can be summed up rather simply: juror testimony is permitted when it “concern[s] any overt acts of misconduct by which extraneous and potentially prejudicial information is presented to the jury[.]”5
*336Reviewing the record in the case before us, we cannot say with certainty what any of the former jurors actually said or intended to say about their verdict when they conversed with the trial judge at that post-trial meeting in the jury room. It is entirely plausible that the jurors who spoke meant exactly what Maras now alleges: that the jury only found him guilty based on a “fear for others” theory of the crime. If this were the case, then Maras’s conviction would at least arguably be a misapplication of the law.
But the mere possibility .that a jury may have misapplied the law is not sufficient to warrant setting aside a verdict. Maras’s attack on the verdict here can be accurately characterized as nothing more than “an attempt to expose the jury’s collective mental process to judicial scrutiny.” 6 Notably, there is no claim that the trial court provided inaccurate jury instructions; no claim that.evidence of Potter’s self-fear was absent7; and no claim that the jury was tainted by some overt act of misconduct. In other words, Maras presents no challenge to the facial validity of the verdict: the Commonwealth presented more than a “mere scintilla”8 of evidence for the case to be presented to the jury; and the jury convicted Maras of first-degree stalking, obviously a crime within the Kentucky Penal Code. In sum, Maras’s challenge is “the one form of attack on a verdict that has always been forbidden in Anglo-American criminal law”: an attempt “to probe [the jury’s] process of deliberation and find out how and why the jury reached its verdict.”9
The necessary side effect of our prohibition on examining10 the jury’s deliberation methodology is that “convictions must stand despite the presence of plausible suspicion that the jury’s mental process was ill-conceived.”11 It is important to remember that juries are a “group of laymen” placed between the accuser and the accused to “prevent oppression by the *337Government.”12 This role is a sacred one in criminal cases, made clear in this Commonwealth by its designation as such in our constitution. In hopes of protecting the jural institution, we must “trust[ ] that a jury will understand and follow the law as instructed, and [we must] indulge[ ] the jury when apparent gaps in understanding or logic later surface.”13 To do otherwise would be to undermine the entire enterprise: jury verdicts either would be the court’s verdict or “permitted to stand only by the court’s leave.”14 Accordingly, we are charged with refraining from entertaining suspicion or engaging in conjecture that the jury verdict may have resulted from compromise, mistake, or even carelessness — after all, “[j]uries may indulge in precisely such motive or vagaries”15 and “verdicts cannot be upset by speculation or inquiry into such matters.”16
Here, rather than constructing a solid attack on his conviction, Maras is able to build nothing more than a house of cards. RCr 10.04 prohibits the use of juror statements in the manner Maras posits here. Without more, e.g., indication of overt influence, a facially valid jury verdict will not be upset based on post-trial juror statements. The Court of Appeals correctly held that the trial court did not abuse its discretion in denying Maras’s motion.
III. CONCLUSION.
For the foregoing reasons, we affirm the opinion of the Court of Appeals upholding the judgment. Maras presents nothing more than speculation and conjecture, which are wholly insufficient to move this
Court to entertain setting aside a jury verdict.
All sitting. All concur.
. 375 S.W.3d 49, 52 (Ky. 2012) (citing Johnson v. Davenport, 26 Ky. 390, 393 (1830)).
. We say apparently because the discussion was not recorded in the record, outside of being recounted in Maras’s motion for a new trial following the entry of his sentence. In any event, that the discussion happened is uncontested.
. The charge of being a felon in possession of a firearm was severed. A few months after the trial now under review, Maras pleaded guilty to the firearm charge and was sentenced to five years’ imprisonment to be served concurrently with the sentences imposed for stalking and violation of a protec*335tive order. As for Maras's PFO-1 charge, the Commonwealth admitted before trial that Maras could not be found guilty of that offense so the charge was dismissed.
. Id. at 53.
. Id. at 54. The Supreme Court, some two days before oral argument in the instant case, noted perhaps an additional situation where juror testimony is allowed. In Warger v. Shatters, — U.S. -, 135 S.Ct. 521, 490 L.Ed.2d 422 (2014), the Court pointed out that ''[tjhere may be cases of juror bias so *336extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process.” Id. at 529 n. 3. Our Abnee opinion most likely includes the set of facts described by the Supreme Court in Warger, regardless, we need not deal with it today because Maras does not raise claims of juror bias.
. United States v. D’Angelo, 598 F.2d 1002, 1003 (5th Cir. 1979).
. Evidence of Potter’s own fear of Maras was admitted at trial. Of course, one way of impeaching a verdict is to argue the evidence was insufficient to submit the case to the jury in the first instance. Maras does not — and cannot — argue this. In point of fact, Maras admitted at oral argument that a directed verdict would have been inappropriate in light of the evidence introduced by the Commonwealth at trial.
. Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).
. D'Angelo, 598 F.2d at 1004.
. Maras makes the meritless argument that examine, as used in RCr 10.04, does not apply to what happened here — specifically, the instant jurors were not examined, because they were not interviewed or interrogated by the parties but, rather, the trial judge. For support, Maras cites the highly formal definition of examine: "to subject to legal inquisition; put to question in regard to conduct or to knowledge of facts; interrogate^]” Dictionary, REFERENCE.COM/BROWSE/EXAMINE?S=T. Conveniently, Maras overlooks any other definition, such as simply “to inquire into or investigate[.]” Id. In any event, examine does not carry with it a requirement of legal process. It means, instead, exactly what it says: inquiring into the decision-making process of the jury is not sufficient to impeach a verdict.
. D’Angelo, 598 F.2d at 1005.
. Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).
. D’Angelo, 598 F.2d at 1005.
. Id.
. United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943).
. Dunn v. United States, 284 U.S. 390, 394, 52 S.Ct. 189, 76 L.Ed. 356 (1932). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284350/ | OPINION OF THE COURT BY
JUSTICE KELLER
Ricky Barrett entered a conditional guilty plea to first degree possession of a controlled substance following the trial court’s denial of his motion to suppress evidence. The Court of Appeals affirmed, and this Court granted discretionary review. Barrett argues that police entered and searched his home in violation of the Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky Constitution. For reasons stated herein, we affirm the Court of Appeals.
I. BACKGROUND.
Covington Police received a tip from an anonymous caller that Ricky Barrett was currently located at 2721 Rosina Avenue.’ Dispatch confirmed that multiple arrest warrants had been issued for Barrett and directed officers to the residence. Dispatch also informed the officers that the last police contact with Barrett had occurred at that address and that Barrett was listed as the homeowner.1
*340Officer Edwards arrived first and walked around the house to identify the exit points. During his look around, Officer Edwards heard voices and the sound of clinking glasses or dishes from inside. Shortly thereafter, Officer Isaacs arrived and stayed at the back of the house while Officer Edwards returned to the front. When Officer Edwards first knocked on the front door and announced himself, the voices inside stopped, but no one answered the door. Officer Christian then arrived, and he replaced Officer Isaacs at the back door, and Officer Isaacs joined Officer Edwards at the front door.
Officer Edwards continued to knock on the door using his flashlight to knock louder. Without touching the handle or the lock, this added force caused the door to open.2 With this, the officers became concerned that a crime was being committed inside, so, acting according to common yet unwritten department practice, they again announced their presence and, hearing no response, entered.
Once inside, Officer Edwards positioned himself at the bottom of a staircase just inside the door, and Officer Isaacs searched the downstairs rooms. After Officer Edwards again announced the officers’ presence inside the house, he heard a woman’s voice call out from the second floor. Officer Edwards asked her to come downstairs, which she did. The woman told the officers that she was Deborah Barrett and that she owned the house. When asked if Ricky Barrett was inside the house, Mrs. Barrett replied that he was hiding upstairs in a closet. Officer Edwards remained downstairs with Mrs. Barrett, and Officers Isaacs and Christian proceeded up the stairs to locate Barrett.
The officers found a hallway closet at the top of the stairs, and Officer Christian remained outside of it while Officer Isaacs searched the other rooms on the second floor. While searching one bedroom, Officer Isaacs observed syringes and other drug paraphernalia in plain view. Officer Christian then heard noise from inside the hallway closet and called out for assistance. Officer Isaacs immediately returned and both officers found Barrett hiding inside and arrested him. Officer Isaacs then collected three syringes and a spoon and filter containing possible heroin residue from the bedroom, which Mrs. Barrett later identified as Ricky Barrett’s.
A Kenton County Grand Jury indicted Barrett for first-degree possession of a controlled substance (heroin). Barrett filed a motion to suppress the evidence collected from the bedroom. The trial court held a hearing on June 25, 2012 and, after hearing testimony from Officers Edwards and Isaacs and arguments from the parties, denied the motion. Barrett entered a conditional guilty plea, and the court sentenced him to 18 months’ imprisonment. The Court of Appeals affirmed the trial court’s denial of Barrett’s motion to suppress, and this Court granted discretionary review. For the following reasons, we affirm.
II. STANDARD OF REVIEW.
The standard of review of the trial court’s denial of a suppression motion is *341twofold: first, the trial court’s findings of fact are reviewed for clear error and are deemed conclusive if supported by substantial evidence; and second, the trial court’s legal conclusions are reviewed de novo. Commomvealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008).
III. ANALYSIS.
As he did before the trial court and the Court of Appeals, Barrett argues that: the initial entry into the residence by police was unlawful; and the search of the upstairs rooms exceeded a lawful scope. If either is correct then the evidence should have been suppressed as fruit of the poisonous tree in violation of the Fourth Amendment. We address each argument in turn.
A. The Initial Entry.
The Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky Constitution protect citizens against unreasonable searches and seizures by the government. The “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). However, “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
This Court has cited this rule in two prior decisions, but we have never had occasion to interpret the “reason to believe” standard set forth in Payton. See Kerr v. Commonwealth, 400 S.W.3d 250, 265 (Ky. 2013) and Farris v. Commonwealth, No. 2001-SC-0300-MR, 2003 WL 1938730, at *2 (Ky. Apr. 24, 2003). We continue to follow the Payton rule; nonetheless, before we apply it here, we must clarify the scope of the standard.
Despite what appears to be clear language, courts are split over the meaning of the phrase “reason to believe.” The majority of courts that have considered the standard have held that it is less exacting than probable cause. See United States v. Pruitt, 458 F.3d 477, 484 (6th Cir. 2006); United States v. Route, 104 F.3d 59, 62-63 (5th Cir. 1997); United States v. Risse, 83 F.3d 212, 216-17 (8th Cir. 1996); United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995). Other courts have held that the contrast between reason to believe and probable cause is a distinction without a difference. See United States v. Gorman, 314 F.3d 1105, 1114 (9th Cir. 2002) and United States v. Barrera, 464 F.3d 496, 501 n.5 (5th Cir. 2006) (noting that the distinction between probable cause and reason to believe is “more about semantics than substance”). A third group of courts have declined to interpret the standard because they found that the police entry in question was not justified under any interpretation. See United States v. Hill, 649 F.3d 258, 263 (4th Cir. 2011) and United States v. Hardin, 539 F.3d 404, 416 (6th Cir. 2008) (declining to follow Pruitt’s holding as dicta).
The Sixth Circuit’s line of decisions on this question is noteworthy. In Pruitt, police arrested Pruitt in his home for possession of contraband. 458 F.3d at 479-80. The Sixth Circuit held that the search warrant used by police to enter the residence was procedurally invalid; however, the Court denied Pruitt’s motion to suppress because there was already a warrant outstanding for his arrest and police entered the residence with a reasonable be*342lief3 that Pruitt was inside. Id. at 480-83. The Court held, “reasonable belief is a lesser standard than probable cause, and that reasonable belief that a suspect is within the residence, based on common sense factors and the totality of the circumstances, is required to enter a residence to enforce an arrest warrant.” Id.
Two years later, a different panel of the Court decided Hardin. There, police, acting pursuant to an arrest warrant and multiple informants, arrested Hardin in his girlfriend’s apartment and charged him with possession of contraband found during the arrest. Id. at 407-08. The issue in the case concerned the proper standard for evaluating the quantum of proof required for police to enter a residence to execute an arrest warrant. Id. at 410. The government argued that Pruitt’s “lesser reasonable belief.standard” and not probable cause should have applied. Id. However, the Court declined to follow Pruitt, labeling ⅜ holding as dicta because the Court found the police clearly had probable cause to believe that Pruitt was inside the residence. Therefore, the choice of one standard over the other was not necessary to the outcome of the case. Id. at 413. The Court then held that the information the police possessed failed to establish even a reasonable belief that Hardin was inside the apartment, so the Court declined to adopt either standard. Id. at 426.
In full consideration of the diversity of legal authority and the reasoning supporting that authority, we expressly adopt the plain language reason to believe standard from Payton and reject the probable cause standard. Thus, police executing a valid arrest warrant may lawfully enter a residence if they have reason to believe that the suspect lives there and is presently inside. Reason to believe is established by looking at common sense factors and evaluating the totality of the circumstances and requires less proof than does the probable cause standard. Pruitt, 458 F.3d at 482.
We adopt this rule for three key reasons. First and foremost, a plain reading of Payton requires reason to believe and not probable cause. In. the words of one federal district court, “when the Court wishes to use the term ‘probable cause,’ it knows how to do so.” Smith v. Tolley, 960 F.Supp. 977, 987 (E.D.Va. 1997). In setting forth the rule in Payton, the Supreme Court required the arrest warrant to be “founded on probable cause,” yet set reason to believe as the standard to justify entry. 445 U.S. at 603, 100 S.Ct. 1371. Therefore, the Court was clearly aware of the differences and .chose to require separate standards. As the Pruitt. Court noted:
By way of example, in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) thé Supreme Court held:
[B]y requiring a protective sweep to be justified by probable cause to believe that a serious and demonstrable potentiality for danger existed, the Court of Appeals of Maryland applied an unnecessarily strict Fourth Amendment standard. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and artic-ulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. *343dard to be applied by police for conducting protective sweeps, it is evident that the Supreme Court does not use the terms probable cause and reasonable belief interchangeably, but rather that it considers reasonable belief to be a less stringent standard than probable cause.
*342Id. at 337, 110 S.Ct. 1093 (emphasis added). While Buie addressed the stan-
*343Pruitt, 458 F.3d at 484.
Second, the rights of suspects will be adequately protected by using this standard. When police execute a valid arrest warrant, a neutral and detached magistrate has already made a' probable cause evaluation that the suspect has committed a crime. Commonwealth v. Marshall, 319 S.W.3d 352, 356 (Ky. 2010). It would be overly burdensome for police to make a second probable cause determination when executing a valid arrest warrant. Furthermore, a third party’s rights are not infringed because a search warrant is required to enter into a third-party’s residence to arrest a non-resident suspect. Steagald v. United States, 451 U.S. 204, 205-06, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).
Third, with this holding we join the majority of other courts in adopting the reason to believe standard. Although not controlling, we are persuaded by the reasoning of the overwhelming majority of federal circuit and state courts that have held that the “reason to believe” language is a less exacting standard than probable cause. Wayne R. LaFave, 3 Search And Seizure: A Treatise On The Fourth Amendment § 6.1(a) at n. 22 (5th ed. 2014) (citing Commonwealth v. Silva, 440 Mass. 772, 802 N.E.2d 535 (2004)).
As applied here, the police had a reason to believe, according to common sense factors and evaluating the totality of the circumstances, •' that Barrett lived at 2721- Rosina Avenue and was currently located • inside. The unidentified caller clearly stated that Barrett was present at the address. The dispatcher confirmed that the last police contact with Barrett occurred, at that address and reported that Barrett was the homeowner. Although this latter fact turned put to be false (Ricky Barrett, Sr. was the actual homeowner), it is undisputed that Barrett lived in the house and there- is no evidence that police acted in bad faith. Once police, arrived at the house, the sound of voices and movement inside perpetuated the belief that Barrett was inside. See Route, 104 F.3d at 62-63 (holding that the sound of a television on the inside of the house and the presence of a car in the driveway were sufficient to form the basis of the reasonable belief that the suspect was in the home). Finally, the fact that the voices and sounds from within the house stopped when Officer Edwards knocked and announced his presence bolstered the belief that someone wishing to avoid police contact was inside. Armed with .this reasonable belief, police were constitutionally permitted to proceed inside the house to arrest Barrett when no one answered the door.
In sum, we continue to follow a plain reading of‘the Paytoh rule which allows police to enter a suspect’s residence with a valid arrest warrant when they have a reason to believe that the suspect lives in the residence and can currently be found inside. Reason to believe requires less proof than probable cause and is established by evaluating the totality of the circumstances and common sense factors. Because we find that the police satisfied the appropriate standard, we discern no error in the trial court’s denial of Barrett’s motion to suppress as to the initial police entry.
B. The Search.
Barrett also argues that once the officers entered the residence, their search *344of the upstairs rooms exceeded a lawful scope. We disagree for two reasons.
It is weli established that war-rantless searches and seizures inside a home are presumptively unreasonable. Brumley v. Commonwealth, 413 S.W.3d 280, 284 (Ky. 2013). As set forth above, “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton, 445 U.S. at 603, 100 S.Ct. 1371. It would be absurd to hold that the Payton rule only allows police inside the threshold and no further. Taken to its logical conclusion, such a restrictive construction of the rule would result in the search being confined to the area just inside the doorway. Instead, when police have lawfully entered a suspect’s residence to execute a valid arrest warrant pursuant to Payton, they may search anywhere the suspect may reasonably be found but must terminate the search when the suspect is located. United States v. Pallais, 921 F.2d 684, 691 (7th Cir. 1990) (“Under Payton, police armed with an arrest warrant can search the entire residence of the person named in the warrant in order to execute it....”)
Here, the police lawfully entered Barrett’s house and immediately began searching for him on the first floor. When Mrs. Barrett revealed that Barrett- was hiding in a closet upstairs, police continued their search on the second floor. The officers did, in fact, find a hall closet at the top of the stairs; however, Mrs. Barrett did not specify in which upstairs closet Barrett was hiding. She could just as easily have been referring to a closet in a bedroom. To promote officer safety and conduct a quick general search before a closet by closet search, police reasonably checked the .other rooms on the. second floor before opening the hallway closet.
Furthermore, as soon as Officer Christian heard noise fl’om inside the closet he called for Officer Isaacs to end his search of the other rooms and assist him. Thus, the officers did not exceed the scope of a lawful search under Payton.
Moreover, the search of the bedroom was permissible under the protective sweep exception to the warrant requirement. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012). Buie permits two types of protective sweeps incident to an arrest that are reasonable and lawful under the Fourth Amendment. 494 U.S. at 334, 110 S.Ct. 1093; Brumley, 413 S.W.3d at 284. The first type allows police, as a precautionary matter and without probable cause or reasonable suspicion, to look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Id. The second type allows police to undertake a broader search if there are “articulable facts, which taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.
The Commonwealth argues that Officer Isaac’s search of the bedroom falls within Buie’s first category. We agree. We addressed a similar situation in Kerr v. Commonwealth. There, police arrested Kerr in the hallway of a guestroom, and this Court permitted the search of a nearby bedroom as a place adjoining the place of arrest from which an attack could be immediately launched. 400 S.W.3d 250, 267-68 (Ky. 2013). The same holds true here. Officer Isaacs performed a cursory visual inspection of the upstairs rooms to look for Barrett or anyone else who might be hiding. The rooms were adjoining the place *345of arrest, and there are no facts to suggest that Officer Isaacs exceeded the scope of his search to look in places where a person could not hide.
Under either warrant exception, Officer Isaacs was lawfully in a position to view the drug paraphernalia and there is no dispute that the items were in plain view and their incriminating nature was immediately apparent. Hazel v. Commonwealth, 833 S.W.2d 831, 833 (Ky. 1992). Thus, the plain view doctrine applies, and the evidence was lawfully seized.
IV. CONCLUSION.
For the reasons stated above, we affirm the trial court’s denial of Barrett’s motion to suppress the drug paraphernalia evidence.
All sitting. All concur.
. The actual homeowners were later determined to be Ricky Barrett, Sr. and Deborah *340Barrett, Barrett’s father and stepmother. Police did not cross-reference the dates of birth to confirm who owned the house, but Barrett does not argue that the officers acted in bad faith. Furthermore, although not the owner, it is undisputed that Barrett lived in the house.
. Both Officers Edwards and Isaacs testified at the Suppression Hearing that the use of the flashlight caused the door to open. However, on cross-examination, Officer Edwards admitted that he reported in the Uniform Citation that he "located the front door ajar." Officer Edwards explained that the door was not ajar but was not securely shut either.
. Courts have used "reasonable belief” synonymously with “reason to believe.” See, e.g., Hardin, 539 F.3d at 410; Gorman, 314 F.3d at 1111. • | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284351/ | OPINION
VANMETER, JUDGE:
Michelle Bootes appeals from the Jefferson Circuit Court’s order denying her motion to alter, amend or vacate the trial court’s judgment concerning child support and maintenance. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.
Michelle and Damon Bootes were married in 1997 and divorced by a limited decree of dissolution entered on February 28, 2014. The parties have four children born of the marriage, ranging in age from 9 to 13. Following entry of the decree of dissolution, the court entered an order on March 21, 2014 addressing division of property and expenses, including child support, attorney’s fees and maintenance.
On appeal, Michelle makes four arguments. First, she claims the trial court erred by failing to include Damon’s income from his secondary employment, a tax planning business, in its child support calculations. Next, she argues the trial court erred when calculating the amount of income she is capable of earning for purposes of child support and maintenance. Thirdly, Michelle alleges that the trial court erred by denying her maintenance. Finally, she claims the trial court should have awarded her attorney’s fees. Each argument is addressed below, with additional facts as necessary.
*354CR1 59.05 states: “A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.” In general, a trial court has unlimited power to alter, amend, or vacate its judgments. Gullion v. Gullion, 163 S.W.3d 888, 891-92 (Ky.2005). The Supreme Court of Kentucky has limited the grounds for relief under CR 59.05 to those established by its federal counterpart, Federal Rule of Civil Procedure 59(e). Id. at 893.
There are four basic grounds upon which a Rule 59(e) motion may be granted. First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent .manifest injustice. Serious misconduct of counsel may justify relief under.this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law.
/¿.(internal footnote omitted). A trial court’s ruling -on a CR 59.05 motion- is reviewed under an abuse of discretion ' standard. Bowling v. Kentucky Dep’t. of Corr., 301 S.W.3d 478, 483 (Ky.2009).
First, Michelle argues that the trial court improperly determined Damon’s gross income for purposes of child support calculations. Damon testified at trial that he operates a tax preparation business with his father, at which he. prepares all of the tax returns completed by the company. Damon’s father handles all of the administrative duties for the business, and Damon further, testified that the purpose of the tax preparation business is to supplement his parents’ social security benefits and improve their standard of living. In 2013, Damon had gross-receipts from the business totaling $47,458, but he testified that he gave all of the money from the business to his father.' Michelle argues that giving all of the income to Damon’s father constitutes more than just “administrative costs” or “ordinary and necessary expenses” of . the business and without findings as to the legitimate expenses of the business, the trial court should have considered all of the income from the business “gross income” for child support calculation purposes. ■
Generally speaking, a trial court enjoys “broad discretion in the establishment, enforcement, and modification of child support.” Accordingly, we review a trial court’s decision in this context for an abuse of discretion. An abuse of discretion-will only be found when a trial - court’s decision is arbitrary, unreasonable, unfair, or -.unsupported by sound legal principles.
Bell v. Bell, 423 S.W.3d 219, 222 (Ky.2014)'.
Child support is calculated based upon a parent’s income, or “actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed.” See KRS ' 403.211; KRS 403.212(2)(a). KRS 403.212(2)(b) states: “ ‘Gross income’ includes income from any source, except as excluded in this subsection[.]” KRS 403.212(2)(c) gives further guidance on income received from self-employment or proprietorship of a business, and describes gross income as “gross receipts minus ordinary and necessary expenses required for self-employment or business operation.” Here, the trial court found that since Damon has never claimed income from the tax preparation business on his personal income tax ’returns, that *355money was not part of his “gross income” for child support purposes.
“[I]n making child support determinations, courts must consider all income proven by substantial evidence, regardless of whether that income is documented.” Schoenbachler v. Minyard, 110 S.W.3d 776, 778 (Ky.2003). Although Damon chose not to report the income-from the tax planning business on his personal income tax returns, and chose to give all of the proceeds of the business to his father, such income is still gross income pursuant to KRS - 403.212(2)(c). In our view, Michelle provided the appropriate documentation to show that Damon was earning income from the tax preparation business. The burden then fell on Damon to prove that the amount paid to his father constituted an “ordinary and necessary business expense” required to operate the business pursuant to KRS 403.212(2)(c). The record is devoid of any such evidence. Accordingly, we believe the trial court erred by excluding this income from Damon’s income for purposes of child support calculations. We remand this matter to the trial court to determine how much of the $47,458 in gross receipts from the business is paid out as an ordinary and necessary business expense via a reasonable salary'to Damon’s father for his administrative work. The remainder constitutes gross income to be included in calculating Damon’s child support obligation.
Next, Michelle claims the trial court erred in calculating the amount she is able to earn. The court found. that Michelle is capable of earning $60,000 per year, given her earning history, education and experience in the pharmaceutical sales field. KRS 403.212(2)(d) states in pertinent part:
Potential income shall be determined based upon employment potential and probable earnings level based on the obligor’s or obligee’s recent work history, occupational qualifications, and prevailing job opportunities and earnings level in the community.
Michelle maintains that the trial court failed .to make findings concerning the “strength or nature of prevailing job op-. pprtuniti.es in the community or the expected earnings levels.” Üpon her motion for further findings of fact on this matter, the trial court stated “[t]he Court reached this number' after considering testimony that the Petitioner earned $55,489 in 2012 after only working for nine (9) months out of the year. The Court also considered Ms.- Bootes’ past earnings and education.”
Michelle cites Hempel v. Hempel, 380 S.W.3d 549, 553 (Ky.App.2012), .in which this court reversed the trial court’s imputation of income where the trial court failed to make findings on the strength or nature of prevailing job opportunities. However, in Hempel, the trial court gave no findings whatsoever when it found that the voluntarily underemployed father could earn the same amount as the mother. Here, the court considered Michelle’s work history, prior earnings, and the fact that she was beginning a new job at the time of trial. While we agree that the trial court did not explicitly give its findings regarding the job opportunities available in the community, we believe the trial court took this factor into consideration when imputing income to Michelle, especially since she had already procured a job at the time of trial, and expected to begin generating income within 60 days of employment. Hence, we affirm the' trial court on this issue.
Michelle next claims that the trial court erred, by denying her maintenance. An award of maintenance is within the trial court’s sound discretion. Powell v. Powell, 107 S.W.3d 222, 224 (Ky.2003). *356Awards of maintenance are appropriate when the party requesting maintenance “[l]acks sufficient property, including marital property apportioned to [her], to provide for [her] reasonable needs” and “[i]s unable to support [herself] through appropriate employment.” KRS 403.200(1). Michelle points out that KRS 403.200 also requires the court to consider the earning capacity of the spouse from whom maintenance is sought. While this is true, many other factors are to be considered, including those listed in KRS 403.200(2):
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.
As addressed above, Michelle is well educated, has earned upwards of $100,000 in the past, and is now capable of earning $60,000 per year. The trial court also found that Damon is capable of earning $85,000 per year and the parties’ four children live primarily with Damon.2 Given these factors, we do not believe the trial court abused its discretion in denying Michelle’s request for maintenance.
Lastly, Michelle asserts that the trial court failed to consider all of Damon’s income when denying her claim for attorney’s fees. Attorney fee awards in divorce cases are governed by KRS 403.220, which directs:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
“Under this statute, a trial court may order one party to a divorce action to pay a ‘reasonable amount’ for the attorney’s fees of the other party, but only if there exists a disparity in the relative financial resources of the parties in favor of the payor. But even if a disparity exists, whether to make such an assignment and, if so, the amount to be assigned is within the discretion of the trial judge. There is nothing mandatory about it. Thus, a trial court’s ruling on attorney fees is subject to review only for an abuse of discretion.” Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky.2004) (internal citations and quotations omitted).
As discussed above, we do believe the trial court erred by excluding the income *357from the tax preparation business from Damon’s gross income. However, even if Damon’s earning capacity is raised on remand, the disparity between the parties’ respective incomes is not so great that denying Michelle’s motion for attorney’s fees constitutes an abuse of discretion.
For the above reasons, the judgment of the Jefferson Circuit Court is reversed and remanded for further proceedings consistent with this opinion. . • ■
ALL CONCUR,
. Kentucky Rules of Civil Procedure.
. While Damon’s earning capacity will likely be adjusted on remand due to the erroneous exclusion of his income from the tax preparation business, this does not necessarily warrant a reversal of the court’s order regarding maintenance. We believe Michelle’s earning capacity is sufficient to meet her needs and maintain her lifestyle without maintenance even if Damon’s earning capacity is found to be greater than the original $85,000. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284352/ | ORDER
Per Curiam:
Antonio Jackson appeals the circuit court’s judgment, following a bench trial, convicting him of one count of robbery in the first degree, two counts of kidnapping, and three counts of armed criminal action. We affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284353/ | ORDER
PER CURIAM:
D.L.J. appeals from a judgment entered by the Circuit Court of Jackson County, Family Court and Juvenile Division, sustaining an allegation that he would be found criminally responsible if tried as an adult for tampering in the second degree, § 569.090. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, 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/5284355/ | ROBERT G. DOWD, JR., Presiding Judge, Writ Division Three
Harry M. Stockman (“Relator”) seeks a writ of prohibition or mandamus against the Honorable Thomas J. Frawley (“Respondent”) for denying his application for change of judge under Rulé 51.05. We entered a preliminary order of prohibition, and Respondent filed a timely answer and suggestions in opposition. We dispense with further briefing as permitted by Rule 84.24(j). We now make 'that preliminary order permanent, as modified below.
Relator and his wife filed cross-petitions for dissolution. Relator is a lawyer and represents himself. Both parties filed motions pendente lite .(“PDL”) to address certain temporary arrangements pending a final judgment. Relator sought temporary-maintenance, and Wife sought exclusive possession of the marital home, a restraining order preventing Relator from spending the proceeds of a large settlement and attorney fees. Respondent was designated the trial judge, after recusal of the originally assigned judge, on June 10, 2015. On June 25th, the court held what the docket sheet refers to as a “counsel status hearing.” There is no transcript of this hearing, and the parties have slightly different versions of the hearing. Relator describes the hearing as a “conference” at which he withdrew his PDL motion and agreed to the relief Wife sought in hers. Respondent describes it as a “hearing” at which the parties argued the merits of their PDL motions, the judge responded to those argument and then — waiving testimony — the parties conferred and prepared the proposed “consent judgment” that was signed by the judge. Thus,. it appears they both agree that no evidence was presented and .that the court’s order was a product of the parties’ agreement on the issues. The order stated that Relator had withdrawn his motion for maintenance PDL, it directed Relator to provide Wife with documentation of his expenditures of the settlement proceeds and it ordered Relator to “make effort to obtain his own residence” by a certain date or the court would hear Wife’s' motion for exclusive possession.
Shortly thereafter, Relator filed an application for change of judge under Rule 51.05, but did not include a notice of hearing. The court sua sponte set the application for hearing a few days later. At the hearing, Respondent indicated that having appeared before him on the PDL motions, Relator’s change of judge application was untimely. Respondent also indicated that having failed to file notice of hearing, Relator’s application was properly denied. As *404discussed more fully below, neither of these articulated reasons justifies Respondent’s denial of the change of judge request in this case.
The right to disqualify a judge is a keystone of our judicial system, and Missouri courts follow a liberal rule construing it. State ex rel. Walters v. Schaeperkoet-ter, 22 S.W.3d 740, 742 (Mo.App.E.D. 2000). A' civil litigant has a “virtually unfettered right to disqualify a judge without cause on one occasion.” Id. Thus, the presentation of a timely application for change of judge under Rule 51.05 requires a prompt change of judge. Id.
First, the application in this case was timely. Rule 51.05(b) provides that the application “must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer.” It goes on to say that “[i]f the designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to any appearance before the trial judge.” Rule 51.05(b). Thus, because Respondent was designated just fifteen days before the hearing at which the parties addressed their PDL motion, if that hearing constituted a “trial” under this rule, then having appeared at it precluded Relator from seeking a change of judge thereafter.
A “trial” within the meaning of Rule 51.05(b) means a full trial on the merits. State ex rel. Cohen v. Riley, 994 S.W.2d 546, 548 (Mo. banc 1999)1 (citing State ex rel. City of Berkeley v. Clifford, 976 S.W.2d 569, 571 (MoApp.E.D. 1998) and Reproductive Health Services, Inc. v. Lee, 660 S.W.2d 330, 342 (Mo.App.E.D. 1983)). Thus, even where evidence is taken at a hearing, there has not necessarily been a “trial on the merits” unless substantive — not merely preliminary — issues are ruled upon. See Riley, 994 S.W.2d at 548^19 (preliminary injunction hearing where evidence taken was not a “trial on the merits” for purpose of rule); see also State ex rel. Kramer v. Walker, 926 S.W.2d 72, 74 (Mo.App.W.D. 1996) (hearing on PDL motion where evidence taken on issue of temporary custody did not make subsequent change of judge motion on underlying modification proceeding untimely; judge had no discretion but to grant timely request for change of judge filed after ruling on pre-trial PDL motion). Likewise, where the matter before the court is not contested and the court settles no issue in dispute, “its order cannot be considered a substantive trial on the merits.” State ex rel. Welch v. Scott, 58 S.W.3d 690, 692 (Mo.App.W.D. 2001) (relying on Riley, supra). Similarly, when judgment on an issue is reserved, on the belief that further litigation would be necessary to resolve that issue, there has been no “trial” for purposes of Rule 51.05(b). Id.
Here, as in Riley and Scott, the conference and resulting order in this case does not resemble -a “trial” within the meaning of Rule 51.05(b). There was no evidence taken at this hearing on the parties’ PDL motions, and all of the issues were all settled by consent of the parties, not resolved by Respondent. That is, regardless of what Respondent’s response to the parties’ arguments prior to their agreement might have been, they entered a consent order rather than submitting testimony and asking Respondent to make a ruling. Moreover, contrary to Respondent’s claim, the court did not actually dispose of any of the substantive issues of maintenance and the distribution of mari*405tal property raised in the PDL motions. Wife sought a restraining order preventing Relator from spending the settlement proceeds, but the order merely directed Relator to account for his expenditures of those proceeds; it did not grant the restraining order or distribute that property. As to Wife’s motion for exclusive possession of the marital home, the order merely directed Relator to try moving out by a certain date. The court reserved ruling on Wife’s motion — and set a hearing thereon — in the event Relator had not moved by the appointed date. And, of course, Relator withdrew his PDL motion for maintenance, so there was no ruling on that motion at all. Because this was not a trial on the merits, Relator was permitted to file his application for change of judge thereafter.
Respondent contends that to allow the change of judge at this point in the litigation encourages litigants to play “peek and run,” resulting in unnecessary burden on the judicial administration and improper forum-shopping. Our courts share this concern, but have repeatedly recognized the “important countervailing interest in the liberal allowance of one change of judge as of right.” Riley, 994 S.W.2d at 549.
Second, Relator’s failure to comply with Rule 51.05(c) is not fatal to his application. That provision requires the filing party to also serve “notice of the time when it will be presented to the court.” The purpose of this requirement is to allow the opposing party the opportunity to contest the application. When the application is otherwise timely filed and timely served upon the opposing party and a hearing is held at which the opposing party had an opportunity to contest the application, the lack of notice is not a sufficient basis to deny the application. State ex rel. Director of Revenue, State of Mo. v. Scott, 919 S.W.2d 246, 248 (Mo. bane 1996). “Such a thin procedural argument alone cannot defeat such a significant right.” Id. Here, the court set the matter for hearing on its own within days of Relator filing his application. The opposing party was present at that hearing, had the opportunity to and did express her opposition to the application.
There being no basis to justify the denial of Relator’s application for change of judge, Respondent was required to grant it promptly. A writ of prohibition is appropriate where a judge has improperly denied a timely filed motion for change of judge. State ex rel. Eckelkamp v. Mason¡ 314 S.W.3d 393, 396 (Mo.App.E.D. 2010).
The preliminary order of prohibition is modified as follows and made permanent: Respondent is ordered to refrain from all action in the premises, except to sustain Relator’s timely application for change of judge.
Angela T. Quigless, J., and Gary M. Gaertner, Jr., J., concur.
. Contrary to Respondent’s stated belief at the change of judge hearing, none of the amendments to Rule 51.05 since Riley call its holding on this point into question. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125632/ | Judgment affirmed. Opinion by
Smith, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284712/ | RICHARDSON, J.,
filed a concurring opinion.
To decide this case under Florida v. Jardines,1 we have to decide if there has been a physical intrusion on Rendon’s property. I agree with the majority that this can be done under the facts of this case because Detective Stover led Baco up the stairs of Rendon’s apartment, building and across the landing directly to Ren-don’s apartment door,2 where Baco sniffed *812at the door and its threshold, then alerted Detective Stover to the presence of narcotics inside' the apartment.3 Consistently with the reasoning of Jardines, the majority rightly concludes that law enforcement officers invaded the curtilage of Rendon’s apartment because they brought a trained drug-detection dog directly up to the front door of an apartment-home for the purpose of conducting a canine-narcotics sniff. An apartment should be afforded some curtilage that carries with it the same property-based protections under Jardines as the curtilage of a house. I also agree that, if we can decide this case under Jardines by holding that the officers physically intruded into the curtilage of Ren-don’s apartment, there is no need to analyze whether the officers’ conduct violated Rendon’s reasonable expectation of privacy under Site. Every apartment, every home, has a front door threshold. And, while the Supreme Court has generally “eschewed bright-line rules” 4 in the Fourth Amendment context, the Supreme Court has drawn “a firm line at the entrance to the house.”5 The front door threshold of an apartment qualifies as a “classic exemplar of an area adjacent to the home,” and could not reasonably be interpreted as a common area shared by other apartment residents. I agree, therefore, that an apartment’s threshold and front door are part of the apartment and thus constitute its curtilage—property “immediately surrounding and associated with”6 the apartment. When Detective Stover led Baco directly to Rendon’s front door threshold to sniff for drugs, the police investigation took place in a constitutionally protected area.
When discussing the scope of the Fourth Amendment’s protections, the Supreme Court does not- differentiate between the types of residences and whether they are owned or rented. A home is a home, whether it is a single-family dwelling, or a condominium, a duplex, or an apartment in a high-rise building, multi-unit complex, or public housing.7 The court in People v. Bums expressed it well:
The reasoning behind the Court’s use of a generic term when discussing the scope of the fourth amendment is obvious: homes come in different shapes, sizes, and forms. Some homes afford greater privacy from prying eyes (and noses) than others. One individual may live on a vast estate secluded from the public while another may live in a highrise apartment building in the middle of a busy city. The fourth amendment protects both individuals’ right “to retreat into his own home and there be *813free from unreasonable governmental intrusion.” 8
And, although it is not necessary to decide today whether the officers violated Ren-don’s expectation of privacy under Katz by bringing Baco directly up to the front-door threshold to conduct a dog sniff, I write separately to call attention to Justice Kagan’s discussion of Kyllo v. United States9 in her concurring opinion in Jar-dines. Justice Kagan noted that the use of a drug-detection dog to investigate the contents of a home is no less a “sense-enhancing technology” that is not in general public use than was the thermal-imaging device in Kyllo v. United States.10 In Kyllo, the Supreme Court held that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’ constitutes a search—at least where (as here) the technology in question [a drug-detection dog] is not in general public use.”11 In this case, the police were using Baco to sniff Rendon’s front door in order to discern if there were narcotics inside Ren-don’s apartment. The sniff at Rendon’s front door intruded on the privacy expectations Rendon had inside his home. Even if one could argue that the dog was sniffing odors that were outside of the apartment and thus not within the privacy of Rendon’s home, a dog’s olfactory senses, being so. much stronger than a human’s, would render that reasoning inapplicable. In fact, dogs have been known to detect certain types' of cancers in humans using their sense of smell.12 A method of surveillance by which the government uses a device (such ás a specially trained drug-detection dog) that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, could be considered a search under the reasoning of Kyllo.
With these comments, I join the majority.
. No. 11-564, 133 S.Ct. 1409 (Mar. 26, 2013).
. Detective Stover testified at the motion to suppress hearing that he “deployed Canine Baco on the exterior of the apartment,” and that the dog “indicated a positive alert on the exterior of the door.” John Crook, another tenant, also testified at the hearing. Crook lives in a unit directly across the driveway from Rendon's apartment. Crook testified *812that he observed the drug-detection dog go up the stairs to Rendon’s front door and sniff at the door for “a couple of minutes.”
. According to Detective Stover’s search warrant affidavit, he “deployed K-9 Baco on the front door of the residence. K-9 Baco displayed a change in behavior and breathing at the bottom left portion of the front door seem [sic ] indicating the positive alert to the odor of illegal narcotics from within.” The sole basis for the warrant to search Rendon’s apartment was the dog sniff of the apartment door.
. Ohio v. Robinette, 519 U.S. 33, 39 (1996).
. Payton v. New York, 445 U.S. 573, 590 (1980) (stating the Fourth Amendment has "drawn a firm line at the entrance to the house,” one which cannot be reasonably crossed without a warrant); United States v. Santana, 427 U.S. 38, 42 (1976) ("under the common law of property the threshold of one’s dwelling is private”).
. Jardines, 133 S.Ct. at 1414.
. See Minnesota v. Carter, 525 U.S. 83, 99 (1998) (Kennedy, J., concurring) ("[I]t is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.”).
. 25 N.E.3d 1244, 1252 (Ill.App. 4th Dist. 2015) (quoting Jardines, 133 S.Ct. at 1414 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961))).
. 533 U.S. 27 (2001).
. Jardines, 133 S.Ct. at 1419-20 (Kagan, J., concurring).
. Kyllo, 533 U.S. at 34 (quoting Silverman v. United States, 365 U.S. 505, 512 (1961)).
. See Gianluigi Taverna, et al., Olfactory System of Highly Trained Dogs Detects Prostate-Cancer in Urine Samples, 193 J. of Urology 1392 (Apr.2015) available at http://www. sciencedirect.com/science/article/pii/S 002253471404573X. See also Meredith Cohn, Woman Credits Search/Rescue Dog with Detecting Her Lung Cancer, San Antonio Express News, Dec. 8, 2015, at Dl(reprinting from Meredith Cohn, Heidi the Dog’s Sniffing Leads to Owner’s Cancer Diagnosis, Baltimore Sun (Nov. 29, 2015, 7:36 PM), http://www. baltimoresun.com/healtb/bs-hs-dogs-sniff-disease-20151118-story.html.). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284357/ | ORDER
PER CURIAM.
Rodney Dysart (Defendant) appeals the judgment of conviction entered after a jury found him guilty of stealing a motor vehicle. Defendant claims the trial court erred in overruling his motions for judgments of acquittal at the close of the State’s evidence and the close of all evidence and convicting him of stealing a motor vehicle because the State produced insufficient evidence to establish the requisite mental state.
We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. 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 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284358/ | KURT S. ODENWALD, Judge
Introduction
Appellant Kurtis Starks (“Starks”) appeals from the judgment of the trial court entered after a jury verdict finding Starks guilty of one count of first-degree robbery. The trial court sentenced Starks to eighteen years in prison. On appeal, Starks argues that the trial court erred in denying his motion to suppress a confession he made during a police interrogation conducted in violation of his Miranda1 rights. Because Starks did not unambiguously and unequivocally invoke his right to have an attorney present prior to or during his custodial interrogation, the trial court did not err in denying his motion to suppress. Accordingly, we affirm the judgment of the trial court.
Factual and Procedural History
Around lunchtime at a U.S. Bank branch in St. Louis County, a man came up to the teller window wearing dark clothing and a hat covering his face. The man passed the teller a handwritten note reading, “give me your money, hurry, or I’ll f* * *ing shoot you.” The teller immediately handed over money and the man left. Once the suspect left, the bank immediately went on lock down.
After a police investigation, Starks was arrested and questioned. Starks was advised of his Miranda rights and agreed to speak with the officer. The interrogation was taped and transcribed. Starks confessed and was charged with first-degree robbery.
Starks filed a pretrial motion to suppress the confession and the trial court held a hearing, Starks alleged, inter alia, that his “repeated requests to speak with an attorney, made both prior to and contemporaneously with the interrogation, were ignored by the interrogating officials.” Starks also contended he “was not presented to a judicial officer ‘as soon as practicable,’ and [the statement] was obtained prior to presentation to a judicial officer.” The relevant exchange between Starks and the police officers follows:
[STARKS]: If I had — if I had — if I had a lawyer, then, still — I mean—
[DETECTIVE I]: Then your lawyer would talk to you and explain, after they make a decision over there, what the process is moving forward, okay? But it all starts—
[STARKS]: I probably can’t get out to get a lawyer.
[DETECTIVE 2]: Well, as he already explained to you, the Court will provide a lawyer for you.
[STARKS]: Your guys’ lawyers.
*413[DETECTIVE 1]: The courts’ lawyers, not our guys.
[STARKS]: What are you guys? State? Federal? What are you guys?
[DETECTIVE 2]: We’re St. Louis County.
[STARKS]: So you’re St. Louis County detectives?
[DETECTIVE 1]: Right.
[DETECTIVE 2]: Yeah.
After the suppression hearing, the trial court overruled Starks’s motion to suppress his confession. The prosecution presented the taped confession and corresponding transcript to the jury at trial. Defense counsel renewed the objection to the confession during trial, and the objection was overruled. The jury returned a guilty verdict. Starks was sentenced to eighteen years in prison as a persistent offender. In his motion for new trial, Defendant claimed, inter alia, that the trial court erred in admitting his confession, because “[t]he Detectives made promises to the defendant in order to get him to make a statement against his will.” The trial court overruled the motion. This appeal follows.
Point on Appeal
In his sole point on appeal, Starks contends that the trial court erred in admitting his taped statement and corresponding transcript into evidence because the statement violated his right to counsel during a custodial interrogation. Starks argues that he inquired about an attorney, but that police continued the interrogation instead of clarifying and scrupulously honoring his request.
Discussion
I. Preservation of Error
As a threshold matter, we must consider whether Starks’s claim is properly preserved for our review. To preserve an allegation of error for appellate review, an objection stating the grounds must be made at trial, that same objection must be set out in the motion for new trial, and the objection must be carried forward in the appellate brief. State v. Jackson, 948 S.W.2d 138, 141 (Mo.App.E.D. 1997); see also Rule 29.11(d)2 (requiring allegations of error in jury-tried cases to be included in the motion for new trial).
In his pre-trial motion to suppress, Starks argued that his confession should have been suppressed because “repeated requests to speak with an attorney, made both prior to and contemporaneously with the interrogation, were ignored by the interrogating officials.” Starks also contended that he “was not presented to a judicial officer ‘as soon as practicable,’ and [the statement] was obtained prior to presentation to a judicial officer.” Starks renewed the objection at trial. However, in his post-trial motion for new trial, Starks claimed only that “[d]etectives made promises to the defendant in order to get him to make a statement against his will.” Starks did not include in his motion for new trial that he was questioned and made statements after he invoked and was denied his right to counsel.
On appeal, Starks again argues he affirmatively invoked his right to counsel, questioning continued, and a confession was obtained in violation of his constitutional rights. Because Starks failed to raise this point in his post-trial motion for new trial,3 this issue was not preserved for *414appellate review. Accordingly,, only plain-error review is possible. State v. Thomas, 428 S.W.3d 801, 302 (Mo.App.S.D. 2014); Rule 30.20.
II. Plain-Error Review
Plain-error review is a two-step process. First, we determine whether plain error has occurred; that is, whether the claim for review facially demonstrates substantial grounds for believing that a manifest injustice or a miscarriage of justice has resulted. State v. Whitaker, 405 S.W.3d 554, 559 (Mo.App.E.D. 2013); Rule 30.20. In other words, this court must determine whether the trial court committed evident, obvious, and clear error affecting the defendant’s substantial rights. Thomas, 423 S.W.3d at 302. If there is plain error on "the face of the claim, the court has discretion to proceed to the second step: whether the claimed error actually resulted in a manifest injustice or miscarriage of justice. Whitaker, 405 S.W.3d at 559. If there is no plain error on the face of the claim, Rule 30.20 requires this Court to decline to exercise plain-error review. Bolden v. State, 423 S.W.3d 803, 812 (Mo.App.E.D. 2013).
The first step in our. plain-error analysis considers whether Starks’s claim facially demonstrates substantial grounds for believing manifest injustice or a misr carriage of justice has occurred. If a defendant’s confession is inadmissible because it violates that defendant’s Fifth and Fourteenth Amendment rights, the use of the confession may result in manifest injustice affecting substantial rights. State v. Beasley, 404 S.W.2d 689, 690 (Mo. banc 1966). Starks claims the confession violated his Fifth and Fourteenth Amendment rights to have counsel present during an interrogation.
In Miranda, the United States Supreme Court held “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “[F]urther questioning can be had only if the accused voluntarily, knowingly, and intelligently initiates the communication.” State v. Young, 781 S.W.2d 212, 214 (Mo.App.E.D. 1989); Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (Before an attorney is present, police can only interrogate further if the individual “initiates further communication, exchanges, or conversations with the police.”).
For these protections to apply, the individual being, interrogated must adequately assert the right to an attorney. This request for counsel must be unambiguous and unequivocal; if not, officers have no obligation to stop.questioning the individual. Davis v. United States, 512 U.S. 452, 461-62, 114 S.Ct., 2350, 129 L.Ed.2d 362 .(1994); State y. Parker, 886 S.W.2d 908, 918 (Mo. banc 1994).. The interviewee must specifically request counsel. State v. Kerr,, 114 S.W.3d 459, 463 (MoApp.S.D. 2003). The test is -objective: an accused must articulate his or her desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. State v. Lanos, 14 S.W.3d 90, 94 (Mo.App.E.D. 1999).
In Parker, police interviewed the defendant after reading him his Miranda rights. The defendant said he understood his rights but refused to sign a waiver form. Parker, 886 S.W.2d at 918. After making incriminating ■ statements, the defendant said he “ought to talk to an attorney.” Id. The Missouri Supreme Court held this statement was not an invocation of his right to counsel because the statement was not unambiguous. Id. As in *415Parker, Starks’s statements were not unambiguous. Starks said “if I had a lawyer” and “I probably can’t get out to get a lawyer.” Both of these statements were ambiguous because they expressed uncertainty as to whether Starks actually wanted a lawyer. As such, these statements fall short of a specific, unambiguous, and unequivocal request for an attorney..
A review of the record indicates no other specific requests for counsel. At most, there is general questioning about what type of counsel Starks could have, or whether he could “get out” of confinement to obtain counsel. The interviewing detectives even clarified that the court could appoint Starks a lawyer.4 Nevertheless, the record shows Starks made no unambiguous, unequivocal, or specific request for an attorney.5
Starks cannot facially demonstrate substantial grounds for believing-that manifest injustice or a miscarriage of justice occurred because he never unambiguously and unequivocally invoked his right to counsel- in his ‘ custodial ■ interrogation. Therefore, the trial court did not plainly err in overruling his motion to suppress.
Conclusion
The judgment of .the trial court is affirmed.
Sherri B. Sullivan, P.J., concurs.
Patricia L. Cohen, J., concurs..
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. All rule references are to Mo.R.Crim.P. (2015).
. Even Starks concedes the issues in the motion for new trial and on appeal are "slightly different.”
. The colloquy between Starks and Ae detectives suggests that Starks was not interested in a court-appointed attorney, which Starks referred to as "[y]our guys’ lawyers.”
. In his brief, Starks argues that the detectives did not “scrupulously honor[]” his rights when they, in response to Starks's equivocal statements, only told him the Court would provide a lawyer, but did not "make clear” Aat appellant could consult an attorney before continuing Ae investigation. It is often "good police practice for interviewing officers to clarify whether or not he actually wants an attorney.” Davis, 512 U.S. at 461, 114 S.Ct.' 2350. These clarifying questions may help minimize Ae chance of judicial second-guessing as to Ae meaning of the suspect's statements. Id. But, officers have no constitutional obligation to ask clarifying questions. Id. at 461-62, 114 S.Ct. 2350. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284359/ | PER CURIAM
Residents of the City of Houston filed a referendum petition requesting the City Council to reconsider and repeal its equal rights ordinance and, if it did not repeal the ordinance, to put it to popular vote. The City Council refused, claiming the petition'was invalid. Though the ordinance is steeped in controversy, the legal principles at play are relatively simple. First, “the power of... referendum ... is the exercise by the people of a power reserved to them,” and this power should be protected. Taxpayers’ Ass’n of Harris Cnty. v. City of Houston, 129 Tex. 627, 105 S.W.2d 655, 657 (1937). Second, city officials must perform their ministerial duties. See Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.1991). Finally, when officials refuse to do so, and when there is no adequate remedy by appeal, mandamus may issue. See In re Union Carbide Corp., 273 S.W.3d 152, 156 (Tex.2008) (orig. proceeding) (per curiam) (“[A] relator must show that it has no adequate remedy by appeal.”). We conclude that the Houston City Council has not performed a ministerial duty and there is no adequate remedy by appeal. Accordingly, we conditionally grant mandamus relief.
This dispute concerns the duties of the City Secretary and the City Council of Houston when a referendum petition is filed. If Houstonians dislike an ordinance passed by the City Council, they may submit a referendum petition: .
If ... a petition signed and verified, as required in section 2(a) hereof, by the qualified voters equal in number to [the required .amount] ... shall be filed with the City Secretary, protesting against the enactment or enforcement of such ordinance or resolution, it shall be suspended from taking effect and no action theretofore taken under such ordinance or resolution shall be legal and valid. *476Immediately upon the filing of such petition the City Secretary shall do all things required by section 2(b) of this Article. Thereupon the Council shall immediately reconsider such ordinance or resolution and, if it does not entirely repeal the same, shall submit it to popular vote at the next city general election, or the Council may, in its discretion, call a special election for that purpose; and such ordinance or resolution shall not take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.
Houston, Tex., Charter, art. VH-b, § 3 (emphasis added).
Thus, there are three general steps. First, the referendum petition must be “signed and verified in the [required] manner and form” by the required number of voters and be timely filed. Id. art. VH-b, § 2(a), 3. Second, the City Secretary must review the petition, certify the results of her review, and present such petition and certificate to the City Council. Id. art. VH-b, § 2(b). Third, after receiving the petition and City Secretary’s certificate, the City Council must either repeal the ordinance or submit it to popular vote. Id. art. VH-b, § 3.
The “signed and verified” requirement is two-fold. The required manner and form of the petition encompasses two broad aspects. The petition must be “signed by qualified voters of the City of Houston.” Id. art. VH-a, § 2. Each signature must be accompanied by the signatory’s printed name, address, date of signing, and birth date or voter registration number. Id.; see Tex. Eleo. Code § 277.002(a)(1) (imposing additional requirements for election petitions).
Those circulating the petition and gathering signatures must also swear that they themselves signed the petition and that the signatures they gathered are genuine.1 The mandamus record indicates that the Charter prescribes the following form of verification:
I,_, being first duly sworn on oath depose and say: that I am one of the signers of the above petition, that the statements made therein are true, and that each signature appearing thereto was made in my presence on the day and date it purports to have been made, and I solemnly swear that the same is a genuine signature of the person whose name it purports to be.
Sworn to and subscribed before me this_day of_, 2_
Notary Public, State of Texas
Houston, Tex., Charter, art. VII-a, § 3.
The filing of a “signed and verified” petition in the prescribed form and manner triggers the City Secretary’s duties. The Charter commits the following responsibilities to the City Secretary:
On or before the thirtieth day after the date of filing of the petition the City Secretary shall certify to the City Council (a) the greatest total vote cast for Mayor at any city general election held within three years next preceding the date of the filing of such petition, and (b) the number of valid signatures on said petition, and shall present such petition and certificate to the Council.
Id. art. VH-b, § 2(b).
In this case, after the City Council adopted the equal rights ordinance, a coalition of citizens (some of whom are the Relators in this proceeding)2 organized a *477petition drive calling for the City Council to repeal the ordinance or put it to popular vote. They gained around 55,000 signatures, but before submitting the petition, they crossed through as many as 24,000 signatures.3 Only 17,269 signatures were required for the petition to be valid.4 The coalition delivered the petition to the City Secretary on July 3, 2014.
The City Secretary reviewed a portion of the petition filing but stopped after determining there were enough valid signatures. Though she stopped her review by Friday, August 1, she waited until Monday, August 4 to report to the City Council.5 In the interim, the City Attorney finished his own review, and he asked the City Secretary to include his findings in her report. As a result, the City Secretary’s report contained two seemingly conflicted parts: her own analysis of the signatures (which indicate!! that the petition was sufficient), and the City Attorney’s review (which indicated it was not). With regard to her own findings, the City Secretary reported that:
As provided by Article Vllb, Section 2(b), as amended by Article V, Section 10, I am able to certify that [the required number of signatures is 17,269]; and [t]he number of signatures verified on the petition submitted on July 3, 2014 is 17,846.
[[Image here]]
17,846 signatures appearing on the petition contained correct information as required being (1) signature, (2) printed name, (3) voter registration number/residence address; and (4) date of signing.
In other words, even without having reviewed the entire petition, there were more than enough valid signatures.
Her report concluded, however, with a paragraph noting the City Attorney’s findings. This paragraph indicated that many of the signatures (even ones that the City Secretary said were valid) were on pages of the petition that were invalid. In other words, according to the City Attorney, entire pages of the petition could not be counted, disqualifying all of the individual signatures that were on them:
According to the City Attorney’s Office and reviewed by the City Secretary the analysis of the City Attorney’s Office, 2,750 pages containing 16,010 signatures do not contain sufficient acknowledgment as required by the Charter. Therefore, according to the City Attorney’s Office only 2,449 pages containing 15,249 signatures can lawfully be considered toward the signatures required.
The City Secretary later clarified in a deposition that her “review” of the City Attorney’s work merely constituted confirming his math — were there the number of signatures on the pages that he said there were? She did not double-check his reasons for concluding that many pages of signatures were invalid.
*478On August 4, 2014,'the City announced it would not reconsider the ordinance. In response, the petition organizers immediately sued the Mayor, City Secretary, and City in district court, seeking declaratory and injunctive relief. On August 11, they filed an original mandamus proceeding in the Fourteenth Court of Appeals., The court of appeals denied - the petition on August 15, holding the Relators had an adequate remedy by appeal. In re Woodfill, No,. 14-14-00648-CV, 2014, WL 4088704, at *1 (Tex.App.-Houston [14th Dist.] - Aug. 15, 2014, orig. proceeding). That same day, the petition organizers filed a supplemental petition in the district court, requesting a writ of mandamus. The mandamus record does not indicate the City asserted any counterclaims for affirmative relief. On August 26, the Rela-tors sought mandamus relief from this Court. While the proceedings in this Court were pending, the district court conducted a jury trial. According to the City, the jury’s verdict left just over 2,000 valid signatures. The trial court, however; disregarded some of the jury findings and, in a final judgment dated April 17, 2015, determined that the total number of valid signatures was 16,684 — still less than the required amount. . Accordingly, it denied all relief requested by the petition organize ers. , An appeal .is now pending in the Fourteenth Court of Appeals.
Mandamus may issue to compel public officials to perform ministerial acts. Anderson, 806 S.W.2d at 793. “An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion.” Id. Disputed facts, however, prevent the Court from resolving issues in a mandamus proceeding. In re Angelini, 186 S.W.3d 558, 560 (Tex.2006) (orig. proceeding).
The Relators assert that under the Houston Charter, after the City Secretary certifies the petition’s sufficiency, the City Council has a ministerial duty to immediately reconsider the ordinance and, if it does not repeal it, put it on the November 2015 ballot.6 The City responds that the City Council has no- duty to act because the City Secretary did not certify a sufficient number of signatures. Moreover, according to the City, disputed fact issues, such as whether signatures were forged or affidavits were defective, preclude mandamus.
We agree' with the Relators that the City Secretary certified their petition and thereby invoked the City Council’s ministerial duty to reconsider and repeal the ordinance or submit it to popular vote. The City Secretary unequivocally stated that “I am able to certify that ... [t]he number of signatures verified on the petition submitted on July 3, 2014 is 17,846,” and that only 17,269 were required. As for the City Attorney’s findings, the City Secretary merely stated that “[a]ccording to the City Attorney’s Office and reviewed by the City Secretary,” there were not enough valid pages. The City Secretary did not expressly adopt the City Attorney’s findings, and she never reviewed his reasons — she merely reviewed his math. The Charter requires the City Secretary to “certify” her findings, and the only findings she expressly certified were her own.7 *479The City Attorney may, no doubt, give legal advice to the City Secretary, but-he cannot assume her duties. Though the City Secretary’s report mentions the City Attorney’s findings, the City Secretary did not adopt the City Attorney’s findings as her own, review the substance of his findings herself, or certify the inadequacies to the City Council.
Once the City Council received the City Secretary’s certification, it had a ministerial duty to act. According to the Charter, following the City Secretary’s certification, “the Council shall immediately reconsider such ordinance or resolution and, if it does not entirely repeal the same, shall submit it to popular vote at the next city general election.” Houston, Tex., Charter, art. VH-b, § 3. The Charter gives the City Secretary, not the City Council, the discretion to evaluate the petition. Simply put, the City Secretary’s certification started the process outlined in the Charter for reconsidering ordinances following a referendum petition, invoking the Council’s ministerial duty to carry out1 its obligations.8
But what .of the City Council’s complaints of forgery, false oaths, and the like? Although, these issues were addressed at trial and are now pending before the court of appeals, we note that the City Secretary never claimed the referendum petition was plagued by forgery or perjury. Yet the City Council decided, of its own accord, not to act, disregarding the City Secretary’s certification that the'petition had enough signatures. The Charter, however, gives the City Council no discretion to reevaluate the petition; instead, it requires “immediate[ ]” action by the City Council following the City 'Secretary’s certification. To give authority to the “council to make the ultimate determination of sufficiency of the petition would commit the decision to a body that could not be considered impartial.” Howard, 589 S.W.2d at 750.9
*480If the City Council cannot independently evaluate the petition as a predicate to its ministerial duty to act, then it may not decide for itself that the petition is invalid and force the petition organizers to sue. Faced with the City Secretary’s certification, the City Council had no discretion but to repeal the ordinance or proceed with the election process. If the City Council believed the City Secretary abused her discretion in certifying the petition or otherwise erred in her duties, it was nevertheless obligated to fulfill its duties under the Charter and thereafter seek any affirmative relief to which it might be entitled. But the City Council did not do so. Instead, it refused to fulfill its ministerial duty, forcing the petition organizers to file suit. The mere existence of the City’s challenge to the petition does not negate the City Council’s duty to proceed with the political process unless that obligation is stayed by a court of competent jurisdiction.10 To hold otherwise would be to allow cities to freely shirk their obligation to follow through on properly certified petitions. Indeed, it would mean their obligation is not ministerial at all.
This accords with our past holdings that the power of initiative and referendum, as provided for in the city’s charter, is the exercise by the people of a power reserved to them, and not the exercise of a right granted. It follows that, in order to protect the people of the city in the exercise of this reserved legislative power, such charter provisions should be liberally construed in favor of the power reserved.
Taxpayers’ Ass’n of Harris Cnty., 105 S.W.2d at 657; see also Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex.1980) (orig. proceeding); Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 648-49 (1951).
Under the circumstances here, the Relators do not have an adequate remedy by appeal because the appellate process will not resolve the case in time for the referendum to be placed on the November 2015 ballot. If Houston voters are to consider the ordinance at the City’s general election this year, then no later than August 24, 2015, the City Council should order that it be put up for election.11 This leaves insufficient time for the appeal to be *481finally resolved. Under such circumstances, mandamus has long been recognized as an appropriate remedy when city officials improperly refuse to act on a citizen-initiated petition. For example, in Coalson v. City Council of Victoria, we granted mandamus and ordered a city to submit a proposed charter amendment to the public for a vote. 610 S.W.2d at 747. Any delay would have prevented the amendment from being voted on for another two years. Id. at 746. The courts of appeals have granted mandamus relief under similar circumstances,12 and this case is no different.
The City argues that when a writ of mandamus is sought to compel a public official to act on a referendum petition, it should be filed in the district court, not an appellate court. It is true that a mandamus proceeding to compel public officials to put something on the ballot may start in district court. Anderson, 806 S.W.2d at 792 n.l. However, mandamus proceedings may also originate in the appellate courts. See Coalson, 610 S.W.2d at 745-46 (granting mandamus in original proceeding before this Court regarding whether a charter amendment should be on the ballot). Indeed, the Election Code expressly authorizes the “supreme court or a court of appeals [to] issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election.” Tex. Elec. Code § 273.061. The Relators may seek relief in an original proceeding in this Court.
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The legislative power reserved to the people of Houston is not being honored. Accordingly, without hearing oral argument, Tex. R. App. P. 52.8(c), we conditionally grant the writ of mandamus lest the actions of city officials “thwart[ ] ... the will of the public.” See Coalson, 610 S.W.2d at 747. The City Council is directed to comply with its duties, as specified in the City Charter, that arise when the City Secretary certifies that a referendum petition has a sufficient number of valid signatures. Any enforcement of the ordinance shall be suspended, and the City Council shall reconsider the ordinance. If the City Council does not repeal the ordinance by August 24, 2015, then by that date the City Council must order that the ordinance be put to popular vote during the November 2015 election. The writ will issue only if the City Council does not comply.
. The Relators are Jared Woodfill; Steven *477Hotze, M.D.; F.N. Williams, Sr.; and Max Miller. Although the parties dispute whether Hotze has standing to pursue mandamus, the other parties’ standing is not disputed. Accordingly, we need not address the issue of Hotze's standing.
.The City’s briefing puts the number of crossed-out signatures at either 18,798 or around 24,000. The Relators do not contest these numbers in their briefing.
. The City Secretary put the number of required signatures at 17,269. In trial court proceedings regarding this same dispute, the court determined that 17,249 signatures were needed.
. Her report was dated August 1, but she later admitted this was a typographical error carried over from an initial draft of the certification report.
. In the alternative, the Relators argue the City Secretary should be compelled to finish reviewing all signatures on the petition. Because under the posture of the case as it now stands we conclude the City Council has a ministerial duty to reconsider the ordinance and, if it does not repeal it, submit it to popular vote, we do not reach this issue.
. , In an affidavit, the City Secretary averred that the "contention, that my staff or I ‘validated’ the July 3 Petition is not correct.” *479Nonetheless, it remains true that she "certified]” that she verified 17,846 signatures, but she did not say she was certifying the City Attorney’s work.
. See In re Jones, 335 S.W.3d 772, 776 (Tex.App.-Beaumont 2011, orig. proceeding) (per curiam) (“When the petition is properly certified, as provided by the Charter, the Charter permits only one action by the City Council: it must [] order and hold an election.... ”); In re Porter, 126 S.W.3d 708, 711 (Tex.App.Dallas 2004, orig. proceeding [mand. denied] ) ("We conclude the charter creates a ministerial duty for the city council to proceed with the steps to calling a recall election once the city secretary presents it with a certificate of sufficiency of a petition.”); Duffy v. Branch, 828 S.W.2d 211, 214 (Tex.App.Dallas 1992, orig. proceeding) ("[T]he city council has the ministerial duty to call the recall election.”); Howard v. Clack, 589 S.W.2d 748, 752 (Tex.Civ.App.-Dallas 1979, orig. proceeding) ("We find that section 93 imposes on the Garland City Council a mandatory, ministerial duty to order a recall election on presentation of a” petition accompanied by a certificate of the city secretary that the petition is sufficient.”); Holt v. Trantham, 575 S.W.2d 83, 86 (Tex.Civ.App.-Fort Worth 1978, writ ref’d n.r.e.) ("Upon the presentation of a proper petition made a condition precedent, the authorities appointed to call an election on a particular measure or proposition have no discretion to refuse to call it.”); Young v. State ex rel. Hughes, 87 S.W.2d 520, 521 (Tex.Civ.App.-Fort Worth 1935, writ ref’d) ("[T]he calling of the election by the board of aldermen is not a discretionary matter, but a ministerial duty whenever the clerk certifies to the board of aldermen that the recall petitions are sufficient.”).
. See also In re Susan, 120 S.W.3d 477, 480 (Tex.App.-Corpus Christi 2003, orig. proceeding) ("We cannot infer from [the city charter] that the city secretary or the city commissioners have a right or duty to examine the sufficiency of the petitions.”); Burns v. Kelly, 658 S.W.2d 731, 734 (Tex.App.-Fort Worth 1983, orig. proceeding) ("[W]e found that the city ■ charter contains no provision authorizing the ■ city council (or the city secretary or anyone else) to examine the signatures, etc., for au*480thenticity.... ”); Blanchard v. Fulbright, 633 S.W.2d 617, 621 (Tex.App.-Houston [14th Dist.] 1982, orig. proceeding) (per curiam) ("[W]e do not find any provision in the Angle-ton City Charter giving any of the city officials a discretionary right of review.”).
. We do not decide whether an injunction staying the election would be available. Compare Blum v. Lanier, 997 S.W.2d 259, 263 (Tex.1999) (“It is well settled that separation of powers and the judiciary’s deference to the legislative branch require that judicial power not be invoked to interfere with the elective process.”), with In re Lee, 412 S.W.3d 23, 27 (Tex.App.-Austin 2013, orig. proceeding) (requiring city council to order recall election, "subject to stay by a court of competent jurisdiction”), and Duffy, 828 S.W.2d at 214 (requiring city council to order recall election but allowing the district court to enjoin it if it "determines that the recall petition is insufficient”). Nor do we decide whether the City is entitled to any affirmative relief because the City has not sought it, the district court judgment remains pending on appeal, and, on the record before this Court, the City Council has not been relieved of its ministerial duty to either repeal the ordinance or institute the election process.
. For elections — such as this one — falling on "a uniform election date other than the date of the general election for state and county officers," the Election Code currently requires that the election be ordered "not later than the 71st day before election day.” Tex. Elec. Code § 3.005(c)(2). Election day this year is November 3, 2015. The 71st day before then is August 24, 2015. We note that the Election Code has been amended, and effective September l, 2015, the deadline is the 78th day before election day. Act of May 5, 2015, 84th Leg., R.S., ch. 84, § 3.
. See, e.g., Lee, 412 S.W.3d at 27 & n.l (conditionally granting mandamus relief and ordering election when the deadline was days away); In re Roof, 130 S.W.3d 414, 419 (Tex.App.-Houston [14th Dist.] 2004, orig. proceeding) (conditionally granting mandamus relief and ordering city secretary to present petition to city council); Duffy, 828 S.W.2d at 214 (conditionally granting mandamus relief and ordering recall election). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2181858/ | 192 Cal. App. 2d 198 (1961)
GLADYS SPURGEON, Plaintiff and Resent,
v.
JACK BUCHTER, Defendant and Appellant.
Civ. No. 19256.
California Court of Appeals. First Dist., Div. Two.
May 17, 1961.
Robert S. Thaman for Appellant.
Cornish & Cornish for Respondent.
KAUFMAN, P. J.
This is an appeal from a judgment in two consolidated actions.
The facts as found by the court below are as follows: On or about April 15, 1957, Gladys L. Spurgeon [hereafter referred to as respondent], and Jack Buchter [hereafter referred to as appellant], an architect, entered into an oral agreement on the following terms: the appellant was to design and prepare plans for the construction of an apartment building on respondent's property at the end of View Street in the city of Oakland, County of Alameda, State of California; the total cost of the building, including the architect's fees, was not to exceed $175,000; the apartments were to be rentable for an amount not to exceed $125 per month and afford the respondent a return on her investment. Respondent paid the appellant *201 $5,000 pursuant to the said oral agreement. Thereafter, appellant purported to reduce said agreement to writing for the purpose of evidencing the oral agreement. The parties executed and delivered each to the other an instrument in writing, which contained the following provision:
"Witnesseth, that whereas the Owner intends to erect a twenty four unit apartment building to be located at the end of View Street, Portion of Lots 13 and 14, Block P, Oakland, California, hereinafter called the Work, ... The Architect agrees to perform, for the above-named Work, professional services as hereinafter set forth. The Owner agrees to pay the Architect for such services a fee of 7% per cent of the cost of the Work ... If no supervision is desired, the fee will be 20% less or 5.6%."
At the time of the execution of the written agreement, it was orally understood and agreed by the parties, that the written agreement was intended to and did accurately relate all of the terms of the oral agreement and did not vary therefrom.
After receiving the $5,000, the appellant did not prepare or submit plans for a twenty four unit apartment building whichould be built in accordance with the cost and rental terms of the oral agreement. Instead, the appellant prepared and submitted plans for an apartment building which could not be constructed for less than $225,000, requiring rentals of not less than $160 per month in order to yield a return on the respondent's investment. Thereafter, about November 27, 1957, respondent demanded return of her $5,000. Appellant refused and claimed to be entitled to an additional $7,320.
Although the written agreement contained an arbitration clause, both parties waived this provision and filed suit. On June 6, 1958, respondent filed her complaint in action No. 290487, alleging the oral agreement and demanding return of her $5,000. On June 12, 1958, appellant filed his complaint in action No. 290627, alleging the written agreement and demanded the balance of $7,320 [5.6% of $220,000] for services rendered pursuant thereto. By stipulation, the two actions were consolidated and tried by the court without a jury.
The trial court found the facts as stated above, and further found: that the above quoted language of the written agreement was ambiguous and uncertain, and did not clearly express the oral agreement in that the size, cost and revenue to be derived from the building when completed were not expressed *202 therein; that by the use of the words "a twenty four unit apartment building," the parties intended a building which could be built at a total cost of $175,000, including the architect's fees, in which the apartments would be rentable for an amount not to exceed $125 per month, and still pay the owner a return on the investment. The court also found that the appellant had rendered services to the respondent with respect to the View Street property, by appearing before the Planning Commission of the City of Oakland in order to secure a building permit, but that said services were not included, or intended to be included, by the parties in the aforesaid oral agreement, or the written agreement, so that the right of the appellant to recover for these services was not litigated or tried in the instant proceedings.
The court concluded that the respondent was entitled to recover $5,000 in her action [No. 290487]; that the appellant was not entitled to recover anything in his action [No. 290627]; and entered judgment accordingly. The judgment specified that it was without prejudice to appellant's right to commence an independent action to recover for services rendered not included in either the oral or written agreements [i.e., the services relating to the building permit]. On this appeal, it is argued that: (1) the trial court erred in admitting evidence of the oral agreement relating to maximum costs and anticipated monthly rentals; (2) the findings of fact relating to the oral agreement are not supported by the evidence; (3) the trial court erred in allowing the respondent to recover her total $5,000 as the appellant had performed services for her, and his so-called independent right to recover for these services was barred by the statute of limitations (Code Civ. Proc., 339).
The first question on appeal is whether it was proper to permit the respondent to show the oral agreement limiting the cost of construction to $175,000, including the appellant's fee. Appellant argues that the evidence was erroneously admitted, as when parties have embodied the terms of an agreement in writing, that writing becomes the contract of the parties and it may not be varied or supplemented by evidence of prior or contemporaneous negotiations of the parties (Code Civ. Proc., 1856; Civ. Code, 1625; Estate of Gaines, 15 Cal. 2d 255, 264-265 [100 P.2d 1055]; Hale v. Bohannon, 38 Cal. 2d 458, 465 [241 P.2d 4].)
[1] This rule comes into operation when there is a single and final memorial of the understanding of the parties, or, *203 as it is sometimes said, the written memorial supersedes these prior or contemporaneous negotiations. (Estate of Gaines, supra; Dillon v. Sumner, 153 Cal. App. 2d 639, 643 [315 P.2d 84].) However, the rule is not calculated to, nor does it in practice, exert any compulsion upon the parties to put their entire understanding in writing (Lande v. Southern Calif. Freight Lines, 85 Cal. App. 2d 416, 420 [193 P.2d 144]), and does not, therefore, render inadmissible proof of contemporaneous oral agreements collateral to, and not inconsistent with, a written contract where the latter is either incomplete or silent on the subject, and the circumstances justify an inference that it was not intended to constitute a final inclusive statement of the transaction (Crawford v. France, 219 Cal. 439, 443-445 [27 P.2d 645]; Weil v. California Bank, 219 Cal. 538 [27 P.2d 904]; Van Slyke v. Broadway Ins. Co., 115 Cal. 644, 647 [47 P. 689, 928]).
[2] As recently stated by our Supreme Court in American Industrial Sales Corp. v. Airscope, Inc., 44 Cal. 2d 393, 397 [282 P.2d 504, 49 A.L.R. 2d 1344]: " 'It has long been the rule that when the parties have not incorporated into an instrument all of the terms of their contract evidence is admissible to prove the existence of a separate oral agreement as to any matter on which the document is silent and which is not inconsistent with its terms.' (Emphasis added.) This exception to the application of the parol evidence rule has been employed in a wide variety of situations to permit proof of a contemporaneous oral agreement where the writing involved was silent as to one element of the contract ..." (Mangini v. Wolfschmidt, Ltd., 165 Cal. App. 2d 192, 198-199 [331 P.2d 728].)
The test of the application of the general rule or its exception to a given case is the completeness or incompleteness of the written contract; or, in other words, whether such contract contains all the terms of the agreement. With few exceptions, this question is to be determined from an inspection of the contract itself. [3] If the writing imports on its face to be a complete expression of the whole agreement--that is, contains such language as imports a complete legal obligation--it is to be presumed that the parties have introduced into it every material item and term; and parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular one to which the parol evidence is directed (Harrison v. McCormick, 89 Cal. *204 327, 330 [26 P. 830, 23 Am. St. Rep. 469]; Hudson v. Barneson, 41 Cal. App. 633 [183 P. 274]).
[4] The question for determination is, therefore, whether the contract evidenced by the writings above referred to appears upon its face to embrace all the agreements of the parties. This question is substantially like that presented in Crawford v. France, 219 Cal. 439, 443 [27 P.2d 645], wherein an architect agreed to construct "a hotel building suitable for the needs of the owner." In determining the precise question here presented, the Supreme Court said at page 443:
"This evidence was offered to complete the written contract by adding a term which was obviously omitted and with which the appellant admittedly had not complied. The written contract was entirely silent as to cost of construction, the only subject which it covered with any degree of thoroughness being the architect's fees and the matter of their payment, which fees, however, could not be determined until the estimated cost was ascertained ..." and then citing Hudson v. Barneson, supra, concluded that evidence was admissible to show that the parties had agreed that the cost of construction was not to exceed $45,000. Hudson v. Barneson, like the instant case, also involved a dispute between an architect and his client. The appellant there, like the appellant here, argued that under the contract, which like the contract here, stated that the architect was to be paid 7 per cent of the cost of the work, he was entitled to the agreed percentage upon whatever the cost of the building he might design. In rejecting this contention, the court said at pages 636 and 637:
"... Disregarding the improvident nature of such a contract as appellants' construction would make of the one here involved, it is manifest that the plaintiffs' commissions could not be computed from the terms of the written contract alone. This shows its incompleteness. A necessary element of plaintiffs' cause of action was the cost of the buildings. Plaintiffs could not object to evidence on the part of defendant as to the amount of such cost upon the ground that the entire contract was included in the writings, while the necessities of their own case compelled them to adopt a like course to supply the same omitted portion of the contract. It cannot be held, therefore, that the letter imports on its face to be a complete expression of the whole agreement."
We think the above rules are clearly applicable in this case, particularly since the uncontroverted evidence showed that *205 there would be no competitive bidding on the construction of the building as the respondent had specified that R. Eoff was to be her contractor. We conclude, therefore, that the evidence relating to the oral agreement as to maximum costs and anticipated monthly rentals was properly admitted.
The second argument on appeal is that the evidence is insufficient to support the trial court's findings as to the terms of the oral agreement. We have examined the entire record [including the appellant's deposition, which constituted his entire case below, and which he did not see fit to include in the record on appeal and which we included on our motion], and are of the opinion that there was substantial evidence considered in connection with such inferences as the trial court may have reasonably drawn therefrom to sustain each and every material finding of fact upon which the judgment in favor of the respondent was predicated. Appellant argues that only respondent's testimony supports the finding and that in any event, respondent had knowledge of the additional cost factors, both through her own knowledge and that of her agent Eoff. [5] However, it is the duty of the trial court to pass upon the credibility of the witnesses and to determine the weight to be given their testimony. [6] In evaluating the testimony, the trial court is entitled to take into account the motive of the witness and his interest in the outcome of the case (Howard Homes, Inc. v. Guttman, 190 Cal. App. 2d 526, 533 [12 Cal. Rptr. 244]). [7] Conflicts in the evidence are for the trier of fact. [8] The appellate court must accept as established all facts and all inferences favorable to respondent which find substantial support in the evidence. [9] When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court (Minton v. Kraft, [fn. *](Cal.App.) 12 Cal. Rptr. 86).
The final argument on appeal is that the trial court erred in allowing respondent to recover $5,000, as the appellant had performed services for her, and any independent right of the appellant to recover for services rendered was already barred by the statute of limitations [section 339, Code of Civil Procedure] at the time when the judgment was entered on September 4, 1959. In the instant case, the appellant based his *206 complaint entirely on the written agreement, and did not mention his services before the planning commission, which preceded the written agreement. In his answer to respondent's complaint, appellant also relied completely on the written agreement and made no counterclaim. [fn. ] When the respondent, on the authority of Rowell v. Crow, 93 Cal. App. 2d 500 [209 P.2d 149], attempted to prove that appellant's plans were of no value to her, the court sustained appellant's objection as follows:
"The Court: Well, I think for the purpose of deciding the issue, the real issue that is before the Court here, the question of whether or not the plans were ever utilized afterwards, by this party or anybody else would be immaterial, as I see it now. So I will sustain the objection on that ground to that line of questioning."
The trial court specifically found that the appellant's services before the planning commission were not intended to be included in the written agreement.
In Rowell v. Crow, 93 Cal. App. 2d 500 [209 P.2d 149], the appellant architect brought an action to recover for professional services rendered; the trial court found in favor of the respondents on the ground that the oral agreement alleged by the appellant was subject to a condition that the plans would be so drawn that the building not cost more than $250,000. [10] In rejecting a point similar to the one raised here, the court said at page 503:
"The fourth point raised by appellant is that since he alleged a second cause of action for the same services based on quantum meruit and the court found that his services in preparing the plans and specifications and in placing and receiving the bids were reasonably worth the sum sued for, he is entitled to recover on that count. But, the court further found that 'defendants received no benefit whatever from the services of the plaintiff'; ... and that 'neither of the defendants ever promised or agreed to pay the plaintiff any amount whatever for his services except upon the sole condition that ... plaintiff should prepare plans and specifications for a building which could under the conditions actually existing be constructed at a cost not exceeding the sum of $250,000.00.' *207"
"Recovery on quantum meruit is based upon benefit accepted or derived for which the law implies a contract to pay. Where no benefit is accepted or derived there is nothing from which such contract can be implied ..."
[11] As the appellant in the instant case excluded the evidence relating to the value of his service, he cannot now complain of the error thus invited (Watenpaugh v. State Teachers' Retirement System, 51 Cal. 2d 675, 680 [336 P.2d 165]).
The record on appeal is deemed augmented to include the appellant's deposition. The judgment is affirmed.
Draper, J., and Shoemaker, J., concurred.
NOTES
[fn. *] *. A hearing was granted by the Supreme Court on May 16, 1961. The final opinion of that court is reported in 56 Cal.2d ___ [15 Cal. Rptr. 641, 364 P.2d 473], entitled Minton v. Cavaney.
[fn. ] . Although the issue has not been raised by the parties, it would appear that the appellant's claim for services rendered before the planning commission is also barred by section 438 of the Code of Civil Procedure (Datta v. Staab, 173 Cal. App. 2d 613 [343 P.2d 977]; Alston v. Goodwin, 174 Cal. App. 2d 16 [343 P.2d 993]). | 01-04-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3041503/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4467
___________
In re: Samuel Smith, Sr., *
*
Debtor, *
______________________________ *
*
Ross H. Briggs, * Appeal from the United States
* Bankruptcy Appellate Panel
Appellant, * for the Eighth Circuit.
*
v. * [UNPUBLISHED]
*
John V. LaBarge, Jr., *
*
Appellee. *
___________
Submitted: December 7, 2006
Filed: December 14, 2006
___________
Before SMITH, MAGILL and BENTON, Circuit Judges.
___________
PER CURIAM.
In this Chapter 13 bankruptcy matter, the debtor’s attorney, Ross Briggs,
appeals from an order of the Bankruptcy Appellate Panel (BAP) dismissing as moot
his appeal from the bankruptcy court’s1 order denying him attorney’s fees. For
1
The Honorable Barry S. Schermer, Chief Judge, United States Bankruptcy
Court for the Eastern District of Missouri.
reversal, Briggs argues, inter alia, that the BAP erroneously dismissed his initial
appeal as moot where it was still possible to order the debtor to pay the disputed
attorney’s fees and where the issue was “capable of repetition yet evading review.”
The BAP dismissed Briggs’s initial appeal upon the trustee’s motion after the
debtor had fulfilled his obligations under the plan; the trustee had, pursuant to a
bankruptcy court order, returned all the excess funds in the estate to the debtor; the
bankruptcy court had discharged the debtor; and Briggs had not sought or obtained a
stay of any of the relevant orders. We conclude that, because reversal of the
bankruptcy court’s denial of attorney’s fees would have been inequitable and
impracticable at that time, the BAP did not err in dismissing Briggs’s appeal as moot.
See In re Little, 253 B.R. 427, 430 (B.A.P. 8th Cir. 2000) (“[I]n bankruptcy
proceedings, the mootness doctrine . . . involves equitable considerations. Thus,
although effective relief may conceivably be fashioned, if implementation of that
relief would be inequitable, the appeal may be determined to be moot.”); cf. In re
Roller, 999 F.2d 346, 347 (8th Cir. 1993) (where debtors were appealing conversion
order but had failed to obtain stay of conversion order or of subsequent trustee
appointment or liquidation of assets under new plan, reversal of conversion order was
no longer practicable and district court properly dismissed appeal as moot).
Moreover, the exception to the mootness doctrine for cases “capable of repetition yet
evading review” did not apply. See Iowa Prot. & Advocacy Servs. v. Tanager, Inc.,
427 F.3d 541, 544 (8th Cir. 2005) (where prompt application for stay pending appeal
could have preserved issue for appeal, issue was not one that evaded review (cited
case omitted)). We therefore affirm the BAP’s dismissal order.
______________________________
-2- | 01-04-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/5284361/ | OPINION
Sherry Radack, Chief Justice
In this interlocutory appeal, Weather-ford Artificial Lift Systems, Inc. [hereafter, “Weatherford”] appeals the trial court’s granting the special appearance of A & E Systems SDN BHD [hereafter, “A & E Malaysia”]. See Tex. Civ. PRAo. & Rem Code Ann. § 51.014(a)(7)- (West ’ Supp. 2012). Weatherford contends that the trial court erred by' granting the special appearance because A & E Malaysia is subject to specific personal jurisdiction- in Texas.' We affirm.-
BACKGROUND
Appellant, Weatherford Artificial Lift Systems, Inc., is a subsidiary of Weather-ford International, Ltd. Weatherford is a Texas corporation that maintains a principal office and headquarters in Houston, Texas.
A & E Systems SDN BHD is a Malay-, sian corporation that specializes in the manufacturing and provision of anti-corrosion coatings and paints typically used in oil and gas activities. Its trademark products are Alocit and Enviropeel, two kinds of anti-corrosion coatings designed for asset protection in the oil and gas industry. A & E Malaysia’s principal office and headquarters are in Malaysia.
A & E Anti-Corrosion Systems, L.L.C. [hereafter, A & E USA] is a Florida limited liability company with its sole office and headquarters in Ponte Vedra, Florida. It was established as a Florida company in November 2009; prior to that A & E USA was a Delaware limited liability company, but the Delaware company was merged into the Florida company in December 2009. A & E USA is a wholly owned subsidiary of A- & E Malaysia. The two companies have separate, but somewhat overlapping, management. A & E Mayla-sia’s management consists of the following: Arthur Haycox, CEO; David Lee, CFO; Simon Haycox, Technical Director; and Mazlan Abdul Majid, Chairman. A & E USA’s management consists of the following: Richard Hoyland, Manager; Arthur Haycox, Manager; and Mazlan Abdul Ma-jid, Manager.' Of significance to this case, Arthur Haycox serves in management positions in both companies; he is the CEO of A & E Malaysia and a manager of A & E USA. A & E Malaysia often uses the *607name “A & E Group” to collectively refer to itself and its subsidiaries, though “A & E Group” is not a legal entity.
There is evidence that whenever A&E USA would receive a purchase order from a United States-based company, A&E USA would place an order with A&E Malaysia for the manufacture of the equipment or product specified. Once the United States customer paid A&E USA, A & E USA would then pay A&E Malaysia a portion of the payment it received for the product.
In the summer of 2009, a Weatherford employee brought the Enviropeel and Alo-cit products to the attention of Todd Travis, Weatherford’s Global Business Manager. Shortly thereafter, Travis initiated contact with “A & E Group” by clicking on a link through its global website, which generated an email to an officer at A & E Malaysia. Arthur Haycox eventually responded to Travis’s inquiry about Enviro-peel and Alocit.
Shortly thereafter, in August 2009, Travis wrote Arthur Haycox, stating that Weatherford was interested in pursuing a joint venture with “A & E Systems, USA.” The letter, addressed to Mr. Arthur Hay-cox at “A & E Systems,” stated:
This letter is to confirm Weatherford’s (WFT) interest in forming a joint venture (JV) with A&E Systems, USA for the exclusive distribution and application of coating Enviropeel and Alocit, here after termed “the coatings”, within North and South America regions. The JV will include licensing agreement for sales and application of the coatings for all wellheads globally.
(Emphasis added). Also in August 2009, Haycox invited Travis to attend a “grand opening” of A & E Malaysia’s warehouse in Malaysia, which Travis did in August 2009.
Around the same time that Travis visited the Malaysian warehouse, Weatherford began to purchase Alocit and- Enviropeel units for potential markéting to Weather-ford customers. The purchase-orders list the supplier as “A & É Anti Corrosion Systems, LLC,” or A &1E USA, as the supplier. The record contains seven such purchase orders, the earliest dated August 3, 2009, and the last one dated February 11, 2010. While there is evidence that Arthur Haycox told Weatherford it could issue purchase orders to- A & E Malaysia, Weatherford did not. Weatherford’s purchases' were all from A & E 'USA. Travis testified by affidavit that Arthur Haycox told him that “if Weatherford and A&E Group’s relationship did not work out at any point during the first year, that A&E Group would repurchase the products from Weatherford.” Only two of the units purchased were actually shipped to Weather-ford; the -rest remained at the warehouse in Malaysia while the -parties worked toward establishing the joint venture-.
During negotiations to work out the joint venture with A&E USA, draft contracts prepared by Weatherford provided that Harris County, Texas, would be the site of any arbitration, in the event of a dispute. The draft “Product Supply and Distribution Agreement” also stated that title to the goods would transfer to Weath-erford “at the port in Malaysia.”
Also during negotiations for the joint venture, in October 2009, Arthur Haycox sent marketing tools to Weatherford for use in showing the products to Weather-ford’s clients. And, in the fall of 2009, Richard Hoyland, of A & E USA, and Simon Haycox, of A & E Malaysia, went to Houston to train Weatherford employees about the use of the Alocit and Enviropeel products at Weatherford’s facilities in Houston. ■
*608By March 2010, the parties -had still not agreed to terms regarding the joint venture. On March 2, 2010, Arthur Haycox traveled to Houston and, along with A & E USA’s Richard Hoyland, met with Weath-erford’s Vice President, David Colley about moving forward with the parties’ relationship. Haycox swore by affidavit that he attended this meeting in his capacity at a manager of A & E USA. According to Weatherford’s second amended petition, during the next few months, the parties “struggled to communicate about or agree upon how to proceed forward,” and “it became clear” that the relationship “required termination.” It is undisputed that no joint venture was ever reached, and Weatherford’s second amended petition contains no claim or causes of action relating to the aborted attempts to form a joint venture with A & E USA.
On June 16, 2010, Weatherford manager Travis traveled to Kuala Lumpur, Malaysia, to meet with Arthur Haycox and negotiate a return of the products. After the meetings, Haycox emailed Travis their agreed negotiated terms, which the parties refer to as the Exit Agreement.1 The Exit Agreement is the contract giving rise to the underlying lawsuit. The term of the Exit Agreement giving rise to the present dispute provides:
A & E will purchase all unused Enviro-peel Units from [Weatherford] on or before 31st Dec 2010 (a list of the numbered units is attached), at the original purchase price from [A & E USA].
After the Exit Agreement was reached, Weatherford returned the products it had received to A & E USA in Florida. The items purchased, but never shipped, remained in the warehouse in Malaysia.
On March 24, 2011, A & E USA, via its manager Richard Hoyland, issued a series of credit notes to Weatherford, which stated that “Credits can be taken against all orders placed by the Weatherford organizations with [A & E USA] on a Global basis[.]” The credit notes also discounted the original purchase price of some of the products based on their age and color.
A dispute soon arose over compliance with the Exit Agreement. In particular, Weatherford objected to not being reimbursed in cash rather than credit and to the discounted values reflected in the credit notes. In 2012, Weatherford sued A & E USA for breach of contract and unjust enrichment. In sum, Weatherford alleged that A & E USA breached the Exit Agreement “by refusing to either 1) remit payment to Weatherford for the Products that Weatherford has paid for; or 2) deliver the Products which Weatherford has already purchased.”
In 2014, Weatherford filed a Second Amended Petition, and, for the first time, asserted claims against A & E Malaysia. Weatherford pleaded the same causes of action — breach of contract, unjust enrichment, fraudulent misrepresentation, and negligent misrepresentation — against both A & E USA and A & E Malaysia, claiming that “the entities were so intermingled that A & E USA was nothing more than the ‘alter ego’ of A & E Malaysia,” and that “A & E Malaysia is jointly and severally liable for the wrongful conduct of A & E USA.”
A & E Malaysia filed a Special Appearance, and Weatherford responded, claiming that A & E Malaysia’s contacts with Texas were sufficient to establish specific jurisdiction, and that “A & E USA is the Alter Ego of A & E, and the Two Must Be *609‘Fused’ For Jurisdictional Purposes.” The trial court granted A&E Malaysia’s special appearance, and Weatherford then filed this accelerated appeal.
SPECIFIC JURISDICTION
In two related issues on appeal, Weath-erford contends the trial court erred in granting A&E Malaysia’s special appearance because (1) A & E Malaysia has sufficient minimum contacts with Texas to establish specific personal jurisdiction, and (2) exercising jurisdiction over A&E Malaysia would not offend traditional notions of fair play and substantial justice.
Standard of Review
Whether a trial court has personal jurisdiction over a nonresident defendant is a question of law. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 790-91 (Tex.2005); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). Because the trial court’s exercise of personal jurisdiction over a nonresident defendant involves a question of law, an appellate court reviews the trial court’s determination of a special appearance de novo. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007); BMC Software, 83 S.W.3d at 794. However, the trial court must frequently resolve fact questions before deciding the jurisdictional question. BMC Software, 83 S.W.3d at 794; Capital Tech. Info. Servs., Inc. v. Arias & Arias, Consultores, 270 S.W.3d 741, 748 (Tex.App.-Dallas 2008, pet. denied) (en banc). In a special appearance, the trial court is the sole judge of the witnesses’ credibility and the weight to be given their testimony. Leesboro Corp. v. Hendrickson, 322 S.W.3d 922, 926 (TexApp.-Austin 2010, no pet.). We do not “disturb a trial court’s resolution of conflicting evidence that turns on the credibility or weight of the evidence.” Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex.App.-Austin 2005, no pet.). When a trial court does not issue findings of fact or conclusions of law, “all facts necessary to support -the judgment and supported by the evidence are implied.” BMC Software, 83 S.W.3d at 795. We will affirm the trial court’s ruling on any legal theory that finds support in the record. Dukatt v. Dukatt, 355 S.W.3d 231, 237 (Tex.App.-Dallas 2011, pet. denied).
Applicable Principles of Law
A Texas court may assert personal jurisdiction over a nonresident defendant if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due process guarantees. Moki Mac, 221 S.W.3d at 574. “Because the Texas long-arm statute reaches ‘as far as the federal constitutional requirements of due process will allow,’ the statute is satisfied if the exercise of personal jurisdiction comports with federal due process.” Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 113 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.) (quoting CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996)).
Personal jurisdiction is proper when the nonresident defendant has established minimum contacts with the forum state, and the exercise of jurisdiction comports with “traditional notions of fair play and substantial justice.” Moki Mac, 221 S.W.3d at 575 (citing Inf'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945)). Minimum contacts are sufficient for personal jurisdiction when the nonresident defendant has purposefully availed himself of the privileges of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Id. (citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)).
*610A nonresident defendant’s forum-state contacts may give rise to two types of personal jurisdiction: specific and general. Id. When specific jurisdiction is alleged, the inquiry focuses on the relationship among the defendant, the forum, and the litigation. Id. at 575-76. Pur-poséful availment alone will not support an exercise of specific jurisdiction. Id. at 579. Rather, specific jurisdiction has “two coequal components,” and “purposeful availment has no jurisdictional relevance unless the defendant’s liability arises from or re- ■ lates to the forum contacts.” Id. For a nonresident defendant’s forum contacts to support an exercise of specific jurisdiction, “there must be a substantial connection between those contacts and the operative facts of the litigation.” Moki Mac, 221 S.W.3d at 585; see Rush v. Savchuk, 444 U.S. 320, 329, 100 S.Ct. 571, 578, 62 L.Ed.2d 516 (1980)). The operative facts of the litigation are those facts that would be the focus of the trial. Pulmosan Safety Equip. Corp. v. Lamb, 273 S.W.3d 829, 839 (Tex.App.-Houston [14th Dist;] 2008, pet. denied) (citing Moki Mac, 221 S.W.3d at 585).
A general jurisdiction inquiry is very different from' a specific jurisdiction inquiry; It -requires a “more demanding minimum contacts analysis,” PHC Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 168 (Tex.2007) {quoting CSR, Ltd., 925 S.W.2d at 595), with a “substantially higher” threshold. Id. (quoting 4 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1067.5 (2007)). Usually, “the defendant must be engaged in longstanding business in the forum state, such as marketing or shipping products, or performing services or maintaining one or more offices there; activities that are less extensive than that will not qualify for general in personam jurisdiction.” Id. General jurisdiction is “dispute-blind,” meaning that it is an exercise of the court’s jurisdiction made without regard to the nature of the claim presented or whether the defendant’s alleged liability arises from those contacts. Id. The central question is whether the defendant’s contacts are “continuous and systematic” such that the relationship between the. nonresident and the state approaches -the relationship between the state and its own residents. Id. {citing Helicopteros Nacionales de Colombia, S.A v. Hall, 638 S.W.2d 870, 882 (Tex.1982) (Pope, J., dissenting), rev’d, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)).
Jurisdictional Alter Ego
In the trial court, both in its Second Amended Petition and its Response in Opposition to Defendant [A & E Malaysia’s] Special Appearance, Weatherford argued that A <& E USA was the alter ego of A & E Malaysia and that their jurisdictional contacts must be “fused.” Before this Court can determine which jurisdictional contacts are imputable to A & E Malaysia, we must first address the issue of jurisdictional alter ego.
This Court has explained the notion of jurisdictional alter ego as follows:
A parent company and its subsidiary may be “fused” for jurisdictional purposes if the plaintiff proves that “the parent controls the internal business operations and affairs of the subsidiary.” [BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 799 (Tex.2002) ]. “But the degree of control the parent exercises must be greater than that normally associated with common ownership and ■ directorship; the evidence must show that the two entities cease to be separate so that the corporate fiction should be disregarded to prevent fraud or injustice.” Id. (citing Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159 (5th Cir.1983)). A parent company can*611not be subjected to personal jurisdiction based on the local activities of its subsidiary when “the subsidiary’s presence in the state is primarily for the purpose of carrying on its own business and the subsidiary has preserved some semblance of independence from the parent and is not acting as merely one of its departments....” 4A ChaRles Alan WRIGHT & ARTHUR R. MlLLER, FEDERAL Practice And Procedure § 1069.4 (3d ed.2002).”[T]he party seeking to ascribe one corporation’s actions to another by disregarding their distinct corporate entities [must] prove this allegation, because Texas law presumes that two separate corporations are distinct entities.” PHC-Minden, L.P. v. Kimberly-Clark Carp., 235 S.W.3d 163, 173 (Tex.2007).”[V]eil-piercing for purposes of liability (‘substantive veil-piercing’) is distinct from imputing one entity’s contacts to another for jurisdictional purposes (‘jurisdictional veil-piercing’).” Id. at 174.
Our Supreme Court has identified four relevant factors in the jurisdictional veil-piercing analysis: (1) the amount of the subsidiary’s stock owned by the parent corporation; (2) the existence of separate headquarters; (3) the observance of corporate formalities; and (4) the degree of the parent’s control over the general policy and administration of the subsidiary. Id. at 175 (citing 4 A Wright & Miller, supra, § Í069.4). Parent companies normally exercise at least some control over their subsidiaries, and “[a] subsidiary corporation will not be regarded as the alter ego of its parent merely because of stock ownership, a duplication of some or all of the directors or officers, or an exercise of the control that stock ownership gives to stockholders.” Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571, 573 (Tex.1975).
Mikuni Corp. v. Foster, No. 01-11-00383-CV, 2012 WL 170603, at *4-5 (Tex.App.-Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem.op.).
When the trial court granted A & E Malaysia’s Special Appearance, it necessarily found against Weatherford on its jurisdictional alter-ego argument. And, while Weatherford at times refers to A & E USA and A&E Malaysia interchangeably as “A & E Group” and seeks to impute the A & E USA’s contacts to A & E Malaysia in its arguments, Weatherford does not bring an appellate issue challenging the trial court’s implied finding against alter ego. Indeed, Weatherford’s appellate brief does not mention jurisdictional alter ego at' all, nor does it analyze the alter ego issue using the test set forth by the supreme court in PHC-Minden. Thus, even if appellant’s brief could be construed as attacking the negative alter ego finding, it is nonetheless deficient. When an appellate issue is unsupported by argument or contains an argument lacking citation to the record or legal authority, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex. Tex., Inc., 150 S.W.3d 423, 427 (Tex.2004); see also Tex.R.App. P. 38.1(f). Because Weather-ford has not challenged the implied negative alter ego finding, we will not attribute A&E USA’s contacts to A & E Malaysia, and, to the extent there is a fact issue regarding to whom a contact is attributable, we will not disturb the trial court’s resolution of that issue and will imply all facts necessary to support the judgment. See BMC Software, 83 S.W.3d at 795.
The Contacts Relied Upon by Weather-ford and to Whom Attributable
Before determining whether the contacts are sufficient to establish personal jurisdiction, the Court must first determine to whom they are attributable — A & *612E USA or A & E Malaysia. Weatherford relies on the following contacts to establish personal jurisdiction over A & E Malaysia.
1. A draft Confidentiality and NonDisclosure Agreement between “A & E Group, having an address at 37B, Jalan USJ 21/11, UEP Subang Jaya, 47600 Subang Jaya, Selangor [Malaysia] and Weatherford International Ltd. (Weatherford), having an address at 515 Post Oak Blvd., Houston, Texas 77027, USA.” This document is dated July 15, 2009, and was sent from Malaysia to Texas shortly before Weatherford’s manager, Travis, traveled to A & E Malaysia to visit the grand opening of its warehouse. It was never signed by any party. Because it was sent by “A & E Group” from Malaysia and references a Malaysia address, this will be attributed to A & E Malaysia, not A & E USA.
2. A draft Product Supply and Distribution 'Agreement between Weath-erford and “A & E Group” that was drafted by Weatherford and sent by email to Arthur Haycox, which provided that “Arbitration proceedings shall be held in Harris County, Texas, USA.” The document was never signed by any party. Furthermore, the proposed joint venture was to have been between Weatherford and A & E USA, thus the contract drafted in furtherance of that proposed joint venture is necessarily attributable to A & E USA, not A & E Malaysia.
3. An email from A & E Malaysia to Weatherford in Texas with an attached powerpoint for Weatherford to use in explaining the Enviropeel and Alocit products that it had purchased from A & E USA to its customers. This is attributable to A & E Malaysia.
4. A trip to Houston by A & E USA employee, Richard Hoyland, and A & E Malaysia employee, Simon Hay-cox, to provide training to Weather-ford employees regarding the Envi-ropeel products that Weatherford had purchased from A & E USA. The trip by Simon Haycox is attributable to A & E Malaysia, but the trip by Hoyland is attributable to A & E USA.
5. A “few” meetings between Arthur Haycox and Todd Travis in Houston. Because Arthur Haycox is employed by both A & E USA and A & E Malaysia, we resolve the dispute as to which company he was representing at the time in the light most favorable to the trial court’s ruling. Thus, we consider Haycox’s meetings in Houston to be attributable to A & E USA.
6. A meeting in Texas on March 2, 2010, between Arthur Haycox, Richard Hoyland, and Weatherford Vice President David Colley to discuss the parties’ relationship. Again, we consider Haycox’s participation in this meeting in the light most favorable to the trial court’s ruling, i.e., attributable to A & E USA.
7. The “Exit Agreement,” which is memorialized in a June 18, 2010 email from Arthur Haycox to Todd Travis, was sent from Malaysia to Texas, and provided that “A & E will purchase all unused Enviropeel Units from WEP on or before 31st Dec 2010 ... at the original purchase price from A & E Anti Corrosion LLC [A & E USA].” The Exit Agreement was negotiated in Malaysia after Travis traveled to Malaysia and sent by email from Malaysia. Although Haycox’s email does not *613indicate whether he is acting for A & E USA or A & E Malaysia, the fact that the email distinguishes “A & E” from “A & E Anti Corrosion LLC” is some evidence that in this instance, Haycox was acting on behalf of A & E Malaysia in offering to purchase the products back from Weatherford. The Exit Agreement is, therefore, attributable to A & E Malaysia for purposes of a jurisdictional analysis.
Thus, the only contacts that we consider attributable to A & E Malaysia are (1) the draft Confidentiality and Non-Disclosure Agreement that was never executed; (2) an email containing a powerpoint presentation that Weatherford could use to market the products it had already purchased from A&E USA to its customers; (3) a single visit to Texas by an A & E Malaysia employee to demonstrate how to use the products that Weatherford had already purchased from A&E USA; and (4) the Exit Agreement itself.
“Substantial Connection” to Operative Facts of the Litigation
For Texas to exercise specific jurisdiction in this case, (1) A & E Malaysia must have made minimum contacts with Texas by “purposefully availing” itself of the privilege of conducting activities here, and (2) its liability must have arisen from or be related to those contacts. See Moki Mac, 221 S.W.3d at 576. Even if there is “purposeful availment” in Texas, minimum contacts will not exist, and jurisdiction will not attach, if there is not a “substantial connection” between the alleged contacts and the operative facts of the litigation. Info. Servs. Grp., Inc. v. Rawlinson, 302 S.W.3d 392, 404 (Tex.App.-Houston [14th Dist.] 2009, pet. denied).
A&E Malaysia argues on appeal, as it did in the trial court, that the contacts attributable to it, as opposed to those of A & E USA, do not have a substantial connection to the operative facts of the litigation.
In Mold Mac, the court analyzed-whether there was a substantial connection between the alleged contact and the operative facts of the suit. 221 S.W.3d at 569. In doing so, the court considered whether the alleged contact would “be the focus of the trial,” or “[would] consume most if not all of the litigation’s attention!.]” Id. at 585. In sum, the court instructed us to consider whether the alleged contact was “the subject matter of the case,” or was “related to the operative facts” of the cause of action asserted. Id. The court concluded that the alleged contact — a misrepresentation in a sales brochure — was not substantially related to the cause of action asserted — negligence of tour guides in leading a hike of the Grand Canyon that resulted in the plaintiffs’ son’s death. Id. “Whatever connection there may be between Moki Mac’s promotional materials sent to Texas and the operative facts that led to Andy’s death, we do not believe it is sufficiently direct to meet due process concerns.” Id.
The causes of action asserted by Weath-erford in its Second Amended Petition are breach of contract, unjust enrichment, and fraudulent misrepresentation. Specifically, Weatherford pleaded that “A & E has breached the terms and conditions of the Exit Agreement by failing to perform as required thereunder, namely by refusing to remit any payment to Weatherford for the Products that Weatherford paid for and either returned or that were never even received by Weatherford.” Similarly, the unjust enrichment claim is based on A & E Malaysia’s alleged failure to “remit[ ] the payments it owes to Weatherford[,]” and the fraudulent misrepresentation claim is based on its alleged “representation to Weatherford that it would buy back the *614Products from Weatherford and refund monies paid if the forecasted business relationship between the Parties’ did not work out.” Thus, the operative facts in this case will involve evidence regarding the . rights and obligations arising out of the Exit Agreement, i.e., whether A & E Malaysia promised, but did not, pay Weatherford for the products returned.
Of the four contacts with Texas attributable to A <⅞ E Malaysia, three do not have the necessary connection to the operative facts of th'e lawsuit. The Confidentiality and Non-Disclosure Agreement that A & E Malaysia sent to Weatherford before its manager, Travis, traveled to Malaysia to visit A <⅞ ' E Malaysia’s warehouse was never executed by' either party, and evidence regarding its existence will have little, if anything to do with the evidence presented at trial regarding the Exit Agreement. Similarly, the fact that A & E Malaysia sent marketing materials and an employee who conducted product training to Texas will also have little relevance to the contract issues that will dominate the trial. Weatherford’s pleadings make no complaint about the marketing material or training, and it is unlikely that either party will devote significant time to presenting evidence about them at trial. See Rawlinson, 302 S.W.3d at 401 (“[Vjisits' to Texas that are unrelated to the claims asserted are insufficient -to establish specific jurisdiction.”). Therefore, we conclude that, just as the marketing misrepresentation was not the subject matter of or related to the operative facts of the negligence action asserted in Moki Mac, the Confidentiality and NonDisclosure Agreement, marketing materials, and single training visit to Texas by A & E Malaysia’s employee are not the subject matter of or related to the operative facts of the causes' of action asserted by Weatherford, which all related to the allegation that A & E Malaysia failed to purchase the equipment that Weather-ford had purchased from A & E USA.
Weatherford contends that
the “operative facts” that will be the focus at trial include A & E’s continued efforts to create and benefit from a business relationship with Weatherford that would largely be executed in Texas, the representations and communications exchanged between the Parties regarding what they each expected from each other with regard to that business relations, A & E’s promises to refund the money that Weatherford paid for the Products, the “falling out” that eventually occurred between the Parties, the instructions given to Richard Hoyland from Arthur Haycox in Malaysia regarding the issuance of the Credit Notes, and A & E’s inspections and re-sale, from Malaysia, of the Products first paid for by Weatherford.
However, as stated earlier, the trial court could have determined that all of the negotiations in furtherance of the failed joint venture, and contacts made during those negotiations, were attributable to A & E USA rather than A & E Malaysia, and Weatherford has not challenged the trial court’s implied finding on that issue. Thus, we conclude that the sole contact that is attributable to A & E Malaysia, and which involves the operative facts of the lawsuit, is the Exit Agreement itself.
Purposeful Availment through “Exit Agreement”
Having determined that the Exit Agreement is A & E Malaysia’s sole contact that is substantially connected to the operative facts of the lawsuit, we must next determine whether that contact is sufficient to show that A & E Malaysia purposefully availed itself of doing business in Texas because “purposeful availment” and a “substantial connection” to operative facts *615are both required before Texas may assert specific jurisdiction. See Moki Mac, 221 S.W.3d at 576; Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002).
An individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the other party’s home forum.” Burger King v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 2185, 85 L.Ed.2d 528 (1985). “Merely contracting with a Texas resident does not satisfy the minimum contacts requirement!;] [n]or is jurisdiction justified by the single fact that a contract is'payable in Texas.” Blair Commc’ns, Inc. v. SES Survey Equip. Servs., Inc., 80 S.W.3d 723, 729 (Tex.App.-Houston [1st Dist.] 2002, no pet.). A contract is “ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.” Burger King, 471 U.S. at 479, 105 S.Ct. at 2185. However, a single purposeful act may suffice to establish minimum contacts providing the basis for jurisdiction. 471 U.S. at 475 n. 18, 105 S.Ct. at 1284 n. 18. But, purposeful availment requires a defendant to seek some benefit, advantage, or profit by availing itself of the jurisdiction. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005).
Here, the trial court could have found that all the prior negotiations were between A&E USA and Weatherford in seeking to establish a joint venture, and that when those efforts came to naught, A & E Malaysia stepped in to extricate its subsidiary by offering to directly repurchase the products A&E USA had sold to Weatherford. Thus, A&E USA’s negotiations cannot be “purposeful availment” by A&E Malaysia and those prior negotiations are not properly part of the jurisdictional analysis.
In Michiana, the court stated that the contacts of parties “who reach out beyond one state and create continuing relationships and obligations with citizens of another state” are purposeful rather than fortuitous. Id. at 785. The court in Mic-hiana concluded that a single sale of a motorhome to a Texas resident was not a purposeful availment because the relationship between the parties would end once the sale was consummated. Id. at 786-86.
In contrast, the Court in Burger. King found that a franchise agreement between a Michigan franchisee, Rudzewicz, and a Florida franchisor, Burger King, resulted in personal jurisdiction over the Rudzewicz in Florida because he voluntarily accepted the “long-term and exacting regulation” of his franchise from Burger King’s Florida headquarters, and his relationship to Florida could not be considered fortuitous. Burger King, 471 U.S. at 480, 105 S.Ct. at 2186.
Here, the Exit Agreement is more like the single RV sale in Michiana than the continuing franchise agreement in Burger King. The very nature of the Exit Agreement is to terminate, rather .than create, an ongoing relationship with Weatherford in. Texas. And, the ongoing relationship being terminated was between A&E USA and Weatherford. A&E Malaysia’s offer to purchase equipment that Weatherford had bought from A&E USA created, at best, a one-time obligation to pay a Texas resident. That contract, if any, was negotiated entirely in Malaysia and the payment required would have been made from Malaysia. Thus, we cannot conclude that the Exit Agreement itself is a sufficient purposeful contact to satisfy jurisdictional due process.
*616CONCLUSION
Based on the above, we conclude that the trial court did not err in granting A & E Malaysia’s special appearance and dismissing it from the lawsuit because it lacks the minimum contacts due process requires for the trial court to exercise personal jurisdiction over it.
We affirm the trial court’s order.
. For purposes of examining jurisdiction, we will assume without deciding that this is a valid and enforceable contract. We express no opinion as to the validity or enforceability of this contract, or whether it was breached by either party. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284362/ | OPINION
Tracy Christopher, Justice
On March 25, 2015, relator Shelby Lon-goria filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex.R.App. P. 52. In the petition, Shelby asks this court to compel the Honorable Loyd Wright, presiding judge of Probate Court No. 1 of Harris County, to set aside his February 18, 2015 order denying Shelby’s motion to dismiss the claims of real party in interest, Adriana Longoria, based on a forum-selection clause. We conditionally grant the petition for writ of mandamus, in part, and deny it, in part.
I. Background
Eduardo Longoria, Sr., a Mexican citizen and businessman, was the father of Shelby Longoria, Adriana Longoria, Eduardo Longoria, Jr. (“Wayo”), and Sylvia Dorsey. In 2002, Eduardo transferred shares of his two Mexican holding companies, Vértice Empresarial, S.A. de C.V. and Inmuebles y Terrenos, S.A. de C.V. (the “Mexican companies”), to'-a trust administered by a Mexican bank. Banca Afirme Grupo Financiero. Eduardo designated Shelby as 60% beneficiary and Wayo 40% beneficiary of this trust, which the parties describe as the “Afirme Trust.” At the same time, Eduárdo executed a new will, naming Shelby as executor. Eduardo also * signed a “Carta de Voluntad,” or “Wish Letter,” granting Sylvia and Adriana each $3,000,000 in cash to be distributed over time by the Afirme Trust. In December 2002, Eduardo and Adriana executed an “Acuerdo Privado,” or “Private Agreement,” providing that Adriana would receive $3,000,000 from the opérating cash flow generated by the Mexican companies.
Eduardo diéd in 2005. Dorothy Longo-ria, Eduardo’s wife and the mother of the children, died in 2012. On May 6, 2013, Tommy Dorsey, Sylvia’s husband and executor of Dorothy’s estate, sued Shelby for a demand for an accounting and breach of fiduciary duty to Dorothy, alleging that Shelby had diverted her community property interests to himself. Specifically, Tommy alleged, among other things, that (1) Shelby had induced' Eduardo into signing the 2002 Afirme Trust, into which Eduardo conveyed all of his and Dorothy’s shares in the Mexican companies and of which he made Shelby and Wayo the beneficiaries; and (2) Shelby had induced Eduardo into signing the 2002 will, leaving all of Eduardo’s remaining property to Shelby and Wayo.
On June 18, 2013, Shelby filed a will contest, alleging that Sylvia and Adriana had exerted undue influence over Dorothy in connection with her will, which divided Dorothy’s estate equally between Adriana and Sylvia and named Tommy executor, and that Dorothy lacked the capacity to *624execute the will. Shelby also sought the removal of Tommy as executor. On August 23, 2013, Shelby filed a third-party petition, alleging that Sylvia and Adriana were responsible in contribution for any damages found owing by Shelby to the estate.
Adriana answered the will contest on December 4, 2013, and filed counterclaims against Shelby on January 6, 2014. Adriana amended her counterclaims on December 11, 2014, February 5, 2015, and February 11, 2015. Adriana alleged that Shelby induced Eduardo into entering the Private Agreement and into believing that it would be a fair allocation of the estate. She also counterclaimed for tortious interference with inheritance rights, breach of fiduciary duty, tortious inference with the Private Agreement, breach of the obligation to perform the Private Agreement, and breach of the agreement to pay Adriana $100,000 upon Dorothy’s death and sought a declaration that an agreement called the Donation Agreement is not an enforceable contract.1
On January 14, 2015, Shelby filed a motion to dismiss Adriana’s counterclaims based on a forum-selection clause in the Private Agreement that provides for exclusive venue in the courts of Reynosa, Ta-maulipas, Mexico.
In response to the motion to dismiss, Adriana contended that (1) the forum-selection clause does not apply to her counterclaims; (2) the forum-selection clause is unreasonable and unjust in light of a preexisting fiduciary relationship between Shelby and Adriana, where the agreement was made, where the parties resided, and the unacceptability of the Mexican forum; (3) the forum-selection clause is unenforceable because it was procured through fraud and overreaching by Shelby; and (4) Shelby waived his right to enforce the forum-selection clause by litigating Adriana’s counterclaims in the trial court for a year without invoking the clause.
The trial court held a hearing on Shelby’s motion to dismiss on February 12, 2015, and signed the order denying Shelby’s motion on February 18, 2015.
II.Mandamus Standakd of Review
To be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex.2011) (orig.proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig.proceeding) (per curiam). A trial court abuses its discretion when it fails to properly interpret or apply a forum-selection clause. In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex.2010) (orig.proceeding) (per curiam). An appellate remedy is inadequate when a trial court improperly refuses to enforce a forum-selection clause because allowing the trial to go forward will vitiate and render illusory the subject matter of an appeal, i.e., trial in the proper forum. Id. Thus, mandamus relief is available to enforce an unambiguous forum-selection clause. Id.
III.Scope of the Forum-Selection Clause
Shelby argues that most of Adriana’s claims fall within the scope of the *625forum-selection clause in the Private Agreement.2
Forum-selection clauses are generally enforceable and presumptively valid. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex.2010) (orig.proceeding) (per curiam); In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex.2009) (orig.proceeding) (per curiam). A trial court abuses its discretion in refusing to enforce a forum-selection clause unless the party opposing enforcement meets its heavy burden of showing that (1) enforcement would be unreasonable or unjust; (2) the clause is invalid for reasons of fraud or overreaching; (3) enforcement would contravene a strong public policy of the forum where the suit was brought; or (4) the selected forum would be seriously inconvenient for trial. Laibe Corp., 307 S.W.3d at 316; In re ADM Inv. Servs., Inc., 304 S.W.3d 371, 375 (Tex.2010) (orig.proceeding).
The court must first determine whether the claims fall within the scope of the forum-selection clause. Deep Water Slender Wells, Ltd., 234 S.W.3d at 687-88. The court bases its determination on the language of the clause and the nature of the claims purportedly subject to the forum-selection clause. Id. at 688. If the claims fall within the scope, the court must determine whether to enforce the clause. Id.
In construing a contract, we must ascertain and give effect to the parties’ intentions as expressed in the writing itself. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex.2011). If a contract is worded so that it can be given a certain or definite meaning then it is unambiguous, and the court will construe it as a matter of law. El Paso Field Servs., L.P. v. Mas-Tec N. Am., Inc., 389 S.W.3d 802, 806 (Tex.2012). If, after applying the pertinent rules of contract construction, the contract is subject to two or more reasonable interpretations, the contract is ambiguous. Id. The court must enforce an unambiguous contract as a matter of law without considering parol evidence. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.2008) (per curiam).
The Private Agreement between Eduardo and Sylvia provides the following, in relevant part:
*626First. Regarding “THE TRUST” The parties recognize the validity and scope of the “TRUST”, and in this'regard they are in agreement with all its terms and conditions, and therefore declare that the agreement is the final and definitive will of the parties, and therefore, they comply with all terms and agree that the shares contributed to it are to be transferred to the designated beneficiaries.
Second. Payment to ADRIANA LON-GORIA KOWALSKI. It is the will of her father that the amount of $3,000,000.00 (three million U.S. dollars) be delivered to his daughter ADRIANA LONGORIA KOWALSKI, from the operating cash flow generated by the companies represented by the shares contributed to the “TRUST”, or by their subsidiaries, and therefore it is the obligation of EDUARDO AND SHELBY LUIS LONGORIA KOWALSKI in the terms mentioned below:
On the date this Agreement is signed, the balance to be delivered to ADRIANA LONGORIA KOWALSKI, in terms of the preceding paragraph, amounts to the sum USD $2,069,100.00 (two million sixty-nine thousand one hundred U.S. dollars), according the statement of account that is attached hereto.
By virtue of the foregoing, an- annual amount of $150,000.00 (one hundred fifty thousand U.S. dollars) of principal and interest will be given to ADRIANA LONGORIA KOWALSKI, in monthly installments of $12,500 (twelve thousand five hundred U.S. dollars) until the complete payment of the balance referred to above. In addition, the balance payable shall earn a ndrmal interest rate 'of 75% (seventy-five percent) of the “prime rate” published by the Wall Street Journal.
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Third. Final and Definitive Will of the Parties. The parties state that this Agreement is the final and definitive will of . the parties; therefore, they are in agreement with all its terms, further stating that there is no mistake, fraud, bad faith, or any defect of will that might affect their understanding or decision regarding the content.
The TRUST’S obligation to deliver the mentioned quantities to ADRIANA LONGORIA KOWALSKI, in the terms set forth herein, shall continue in effect until full payment, acknowledging that, after payment of the amounts referred to in this Agreement, ADRIANA LON-GORIA KOWALSKI shall be satisfied in relation to any present or future obligation charged to the “TRUST” assets or to those of Messrs. EDUARDO and SHELBY LUIS LONGORIA KOWAL-SKI.
Fourth. Jurisdiction and Mexican Law. This Agreement is established under the jurisdiction and laws of the United Mexican States. Therefore, the parties exclusively submit to the laws of Mexico, thus they expressly waive the application of any law, regulation, provision or rule of any jurisdiction other than Mexico, which might correspond to them due to their residence, paternity, citizenship, domicile, kinship or commercial relationship. Therefore, in the event of any interpretation, dispute, or any aspect related to this Trust, they expressly submit to the court of the city of Reynosa, Tamaulipas, Mexico. Likewise, the issuance of any law, regulation or provisions in jurisdictions outside the Republic of Mexico, or any act performed outside the national territory by any party seeking to (i).impose restrictions on this Agreement or to impose the performance of acts different *627from the purposes for which it is authorized[;] (ii) impose taxes, duties-or tax burdens other than those under Mexican Law; (iii) expropriate, limit, confiscate, seize, dispose of, freeze or otherwise affect the rights of the Agreement based on federal, state or municipal laws,' outside the jurisdiction of the Republic of Mexico, shall not apply to this Agreement, in all cases the jurisdiction and laws of the Republic of the United Mexican States being applicable under the terms of the previous paragraph.
Having seen and read the foregoing, the parties sign it in the city of Reynosa, Tamaulipas, on DECEMBER 17th, 2002.
The Fourth Clause of the Private Agreement contains two paragraphs that address the choice of forum and choice of law provisions. The first paragraph provides the following, with respect to the forum selected by the parties: “in the event of any interpretation, dispute, or an aspect related to this Trust, they expressly submit to the courts of the city of Reynosa, Tamaulipas, Mexico.”3
Adriana contends that the forum-selection clause does not apply to the Private Agreement because it specifically applies to the Afirme Trust. Eduardo created the Afirme Trust, into which he placed his and Dorothy’s shares of the Mexican compa-' nies. The Third Clause of the Private Agreement expressly states that the source of the payments made to Adriana under the Agreement was the Afirme Trust. Adriana specifically alleged that (1) Shelby induced Eduardo into entering various transactions that would increase his own inheritance while decreasing the inheritances of Wayo, Sylvia, and Adriana; and (2) Shelby induced Eduardo into entering the Private Agreement and into believing that this would be a fair allocation of his ■ estate.' Adriana further asserted that Shelby did not make the required payments from the Afirme Trust, but from Eduardo’s funds and then from Dorothy’s funds after the death of Eduardo. Shelby ceased making any payments in October 2010.
.In the First Clause of the Private Agreement, Adriana recognized the scope and validity of the Afirme Trust and that the Mexican companies.held in the Trust would be the source of money to make the payments to her under the Private Agreer ment. Adriana acknowledged this in her response to the mandamus petition.
The Afirme Trust is the designated source of funds to pay Adriana under the Private Agreement. Without the Afirme Trust, there would be no causes of action against Shelby for interference with inheritance rights, tortious interference with the Private Agreement, breach of his contractual obligation to perform the Private Agreement, or breach of his fiduciary duty related to the purported trust relationship created by the Private Agreement.
Adriana contends that, even if the forum-selection clause applies to the Private Agreement, which she implicitly conceded would encompass her claims for tortious ■interference with the Private Agreement and breach of the contractual obligation to perform the Private Agreement, it still' does not apply to her claim for tortious interference with inheritance rights. Adriana has focused on the foium-selection clause as applying to the Private Agreement. As explained above, the forum-selection "clause is applicable to Adriana’s claims because she would have no grounds for her allegations without the Afirme Trust.
*628Moreover, courts have consistently held the language “any interpretation> dispute, or any aspect related to ” is broad. See, e.g., TGI Friday’s Inc. v. Great Nw. Rests., Inc., 652 F.Supp.2d 750, 759 (N.D.Tex.2009) (“Forum selection clauses cover claims ‘relating to’ an agreement are broad in scope.”); RSR Corp. v. Siegmund, 309 S.W.3d 686, 701 (Tex.App.—Dallas 2010, no pet.) (“The phrase ‘relates to,’ in particular, is recognized as a very broad term.”) (internal quotes and citations omitted); see also Young v. Valt.X Holdings, Inc., 336 S.W.3d 258, 263 (Tex.App.—Austin 2010, pet. dism’d) (holding that each fraud, breach of fiduciary duty, and securities claim “arises under” or “relates to” the stock sale and, therefore, was encompassed by the forum-selection clause). Adriana, furthermore, cannot plead tort claims to avoid the application of the forum-selection clause if those causes of action relate to the Afirme Trust. See My Café-CCC, Ltd. v. Lunchstop, Inc., 107 S.W.3d 860, 866 (Tex.App.—Dallas 2003, no pet.) (“Pleading alternative noncontrac-tual theories of recovery will not alone avoid a forum selection clause if those alternative claims arise out of the contractual relations and implicate the contract’s terms.”).
Adriana does not address her claim for breach of the fiduciary duty that allegedly arose prior to the existence of the Private Agreement. We, nonetheless, address whether Adriana’s pre-contractual tort claim is subject to the forum-selection clause. This court and other courts have held that fraud-in-the-inducement claims can be subject to a forum-selection clause because it is a dispute involving the parties’ agreement. See, e.g., Clark v. Power Mktg. Direct, Inc., 192 S.W.3d 796, 799-800 (Tex.App.—Houston [1st Dist.] 2006, no pet.); My Café-CCC, Ltd., 107 S.W.3d at 867; see also Accelerated Christian Educ. Inc. v. Oracle Corp., 925 S.W.2d 66, 73 (Tex.App—Dallas 1996, no writ), overruled in part on other grounds by In re Tyco Elecs. Power Sys., Inc., No. 05-04-01808-CV, 2005 WL 237232, at *4 (Tex.App.—Dallas Feb. 2, 2005, orig. proceeding [mand. denied]) (mem. op.) (stating that pre-contractual claims for misrepresentations made before the execution of the contract are not excluded from the scope of the forum-selection clause merely because the conduct took place before the contract came into existence). This court, however, did not address whether a forum-selection clause necessarily encompasses all pre-contractual claims. Clark, 192 S.W.3d at 800.
As explained above, the forum-selection clause is very broad, encompassing “any interpretation, dispute, or any aspect related to this Trust.” “When all the claims arise out of the parties’ contractual relations and implicate the contract’s terms, the forum selection clause will encompass all the causes of action relating to the agreement.” My Café-CCC, Ltd., 107 S.W.3d at 866. Adriana claims that Shelby had assumed a fiduciary duty to her by making payments to her from the Mexican companies ten years prior to the execution of the Private Agreement. Those payments then continued from the funds of the Afirme Trust. Adriana’s pre-contrac-tual claim for breach of fiduciary duty implicates the Afírme Trust and is subject to the forum-selection clause. There would be no breach of fiduciary duty without the trust.
Adriana further asserts that the forum-selection clause does not apply to her claim for breach of the promise between Shelby and Dorothy to pay her $100,000 upon Dorothy’s death. Shelby concedes that Adriana’s claim for the breach of the promise to pay her $100,000 upon Dorothy’s death does not fall within the scope of the forum-selection clause.
*629As to her request for a declaratory judgment that the January 11, 2005 Donation Agreement is unenforceable, Adriana first pleaded her request the day before the hearing on Shelby’s motion to dismiss. Adriana’s petition does not explain what the Donation Agreement is, no copy of the agreement was attached to the petition, and there was no briefing on the applicability of the forum-selection clause to this claim. Shelby, however, contends in his mandamus petition that the agreement bears directly on the manner in which payments would be made under the Private Agreement. Shelby suggests the request for a declaratory judgment was not before the court and “[t]he trial court will be able to address the proper venue for this claim [regarding the Donation Agreement] upon receiving direction from this Court relating to the other ■ claims.” The trial court stated in its order that it considered the pleadings of the parties and did not carve out any claims that were not being addressed in its ruling on the motion to dismiss. We do not have enough information from the mandamus record to determine that the forum-selection clause encompasses Adriana’s claim that Shelby breached the Donation Agreement.
In summary, we hold that the forum-selection clause applies to Adriana’s claims for (1) tortious interference with inheritance rights; (2) breach of fiduciary duty; (3) tortious interference with the Private Agreement; and (4) breach of the contractual obligation to perform the Private Agreement. The forum-selection clause, however, does not apply to Adriana’s claim that Shelby breached the agreement to pay Adriana $100,000 upon Dorothy’s death and, based on this record, we cannot say that Adriana’s claim that Shelby breached the Donation Agreement falls within the scope of the forum-selection clause.
V. Objections Raised by AdRiana
A. Adriana’s Objections to the Mandamus Record
Adriana complains that Shelby cites, in his mandamus petition, materials that were not presented to the trial court in connection with the motion to dismiss, which, therefore, should not be considered in the mandamus proceeding. Adriana refers to most of the items contained in the mandamus record filed by Shelby, including pleadings filed by the parties, a motion to quash, the reporter’s record of the hearing on a previously denied motion to dismiss for forum non conveniens, and filings related to the motion to dismiss for forum non conveniens. The trial court stated in the order that it considered, among other things, “the pleadings on file.” Moreover, a relator must file a “certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding.” Tex. R.App. P. 52.7(a)(1). There is nothing improper about the items Shelby included in the mandamus record, and we are not aware of any authority for penalizing a relator for erring on the side of over-inclusion in connection with a mandamus record. Therefore, we reject Adriana’s contention that we cannot consider most of the items in the record in our review of the mandamus petition.
B. Objections to Evidence Attached to the Motion to Dismiss
Adriana objected' to Exhibits 3 and 3A, which were the October 15, 2002 “Banca Afirme Fideicomiso No. 194-2”, the Afirme Trust, and a certified translation of the Afirme Trust, respectively. Johnny Carter, one of Shelby’s attorneys, stated,.in his affidavit submitted in support of Shelby’s motion to dismiss, in relevant part:
*6305. Attached as Exhibit 3 is a true and correct copy of a document dated October 15, 2002 titled “Banca Afirme Fidei-comiso No. 194-2.”
6. Attached as Exhibit 3A is a true and correct copy of a certified translation of Banca Afirme Fideicomiso No. 194.2.
Adriana argued that Carter did not testify that Exhibit 3 was a true and correct copy of the original or that he had personal knowledge of the execution or terms of the original, and, because Exhibit 3A was a translation of Exhibit 3, Exhibit 3A could “havé no better claim of authenticity than Exhibit 3.” Adriana requested that the trial court strike and disregard Exhibits 3 and 3A.
Shelby asserts that Adriana waived her objections to Exhibits 3 and 3A because she did not obtain a ruling from the trial court. Shelby contends that Rule 166a standards for summary judgment proceedings govern the motion to dismiss for improper venue. See Tex. R., Civ. P. 166a. Courts look to cases on arbitration for guidance on forum-selection clauses. See, e.g., Smith, 451 S.W.3d at 457 (“Reference to cases addressing the applicability of arbitration clauses is appropriate-when examining whether particular claims' or parties fall within a forum selection clause’s reach.”); In re Boehme, 256 S.W.3d 878, 884 (Tex.App.—Houston [14th Dist.] 2008, orig. proceeding) (“In deciding whether a party has waived a forum-selection clause, the Supreme Court has repeatedly resorted to cases involving arbitration agreements.”).
In the arbitration context, the trial court conducts a summary proceeding to determine the applicability of an arbitration clause based on the parties’ affidavits, pleadings, discovery, and stipulations. In re Estate of Guerrero, 465 S.W.3d 693, 700 (Tex.App.-Houston [14th Dist.] 2015, pet. filed) (en banc). The procedure is similar to a motion for summary judgment and is subject to the. same evidentiary standards. Id.
Under the summary judgment standard, copies of documents must be authenticated to constitute competent summary judgment evidence.’ Id. at 703. A properly sworn affidavit stating that the attached documents are true and correct copies of the original authenticates the. copies so they may be considered as summary judgment evidence. Id.
A defect in the form of authentication of documents, i.e., a defect in the affidavit attempting to authenticate the attached documents, is waived without an objection in, and a ruling from, the trial court. Id. at 706; see also Hicks v. Humble Oil & Ref. Co., 970 S.W.2d 90, 93 (Tex.App.—Houston [14th Dist.] 1998, pet. denied) (“Appellants objected to Exxon’s exhibits as not being properly authenticated but did not get a ruling of the trial court on any of their objections. By failing to seeure rulings on their objections to Exxon’s summary judgment proof, appellants have waived any complaint on this appeal as to their admissibility into evidence.”). Here, Adriana objected to the form of the authentication and, therefore, was required to obtain a ruling on her objections.
Adriana asserts that the trial court implicitly sustained her objections'by denying Shelby’s motion to dismiss. Shelby responds that a ruling on the merits of a summary judgment motion is not an implicit ruling on evidentiary objections to summary judgment evidence and the prevailing party cannot avoid waiver of its evidentiary objections by arguing that it received a favorable ruling on the merits of the motion. See Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 S.W.3d 596, 604 (Tex.App.—Houston [14th Dist.] 2012, no pet.) (holding that the trial court’s granting of a summary *631judgment is not an implicit ruling on the movant’s objection to the nonmovant’s summary-judgment evidence); Duncan-Hubert v. Mitchell, 310 S.W.3d , 92, 100 (Tex.App.—Dallas 2010, pet. denied) (holding that, where movant objected to nonmovant’s evidence, it could not be inferred that the trial court sustained mov-ant’s objections merely by granting summary judgment);
Even if the summary judgment procedure were not followed in the context of a motion to dismiss for a forum-selection clause, to preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion that was sufficiently specific and the trial court (1) rilled on the request, objection, or motion either expressly or implicitly or (2) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Tex.R.App. P. 33.1(a). There is nothing in the record to suggest that the trial court implicitly ruled on Adriana’s objections to Shelby’s exhibits submitted in support of his motion to dismiss. At the hearing, there was argument concerning the Afirme Trust, but Adriana did not object to the authentication of the Afírme Trust.
Adriana also objected to Exhibit 4 to the motion dismiss, which was the affidavit of Shelby’s Mexican law expert, Dr. Carlos Gabuardi, and in particular paragraph 4, subparagraphs b, c, and d; and paragraphs 11-19 because they contained opinions of the meaning and legal effect of the ordinary terms of a contract, which are questions of law for the court, and the parol evidence rule prohibits the admission of extrinsic evidence that alters the terms' of a written contract. Adriana further objected that the remainder of Gabuardi’s affidavit was irrelevant, asked the trial court to sustain her objections, and strike and disregard Gabuardi’s affidavit.
An objection to a defect in the substance of an affidavit may be raised for the first time on appeal. Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex.App.—Houston [14th Dist. 2012, pet. denied). The complained of portions of Ga-buardi’s affidavit are mostly his interpretations of the Private Agreement and the forum-seléction clause, which are questions of law for the court. See Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex.App.—San Antonio 2000, pet. denied) (“Expert testimony regarding the legal interpretation of an unambiguous agreement encroaches upon the trial court’s province to determine the correct legal interpretation!”). No ruling on an objection was required to preserve error on those' portions of Gabuardi’s affidavit because they offered legal conclusions. See Ramirez v. Transcon. Ins. Co., 881 S.W.2d 818, 829 (Tex.App.—Houston [14th Dist.] 1994, writ denied) (holding that “[a]n objection to an affidavit on the grounds that it states only a legal conclusion is one that relates to a defect of substance,” which may be raised for the first time on appeal).
Even though Adriana did not waive her objections to Gabuardi’s affidavit, we need not address her objections in light of the well-settled rules for contract construction. We have considered the interpretation of the forum-selection clause as a question of Taw, reviewing the trial court’s interpretation de novo, without considering parol evidence. See David J. Sacks, P.C., 266 S.W.3d at 450.
' VI. AdRiana’s Defenses to the ENFORCEABILITY OF THE FORUM- ■ Selection Clause
A. Whether thé Forum-Selection Clause is Unreasonable or Procured by Fraud
Adriana argues the .forum-selection clause in the Private Agreement is *632unreasonable because it contravenes a preexisting and overarching fiduciary relationship between Shelby and her and it was procured by fraud. Adriana claims a confidential relationship arose between Shelby and her, prior to the execution of the Private Agreement, because Shelby had assumed the obligation to make payments to her from the revenue of the Mexican companies he had been managing for a number of years. According to Adriana, because informal fiduciary relationships are not recognized in Mexico, the application of the forum-selection clause and the choice-of-law clause4 would deprive her of rights, which had vested prior to the Private Agreement’s existence. Adriana claims that Shelby, in his role as a fiduciary, failed to make her aware of the Private Agreement’s negating a potential cause of action. Also based on this claimed fiduciary relationship, Adriana asserts that she was fraudulently induced into executing the forum-selection clause.
No duty of disclosure arises without evidence of a confidential relationship. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674-75 (Tex.1998). A failure to disclose information may constitute fraud where there is a duty to disclose. Bradford v. Vento, 48 S.W.3d 749, 754-55 (Tex.2001). “Fraudulent inducement to sign an agreement containing a dispute resolution agreement such as an arbitration clause or forum-selection clause will not bar enforcement of the clause unless the specific clause was the product of fraud or coercion.” Lyon Fin. Servs., Inc., 257 S.W.3d 228, 232 (Tex.2008) (orig.proceeding) (per curiam). The fraud or overreaching in question must involve the negotiation of the forum-selection clause itself. Young, 336 S.W.3d at 266-67.
However, a party who signs a contract is presumed to know its contents and its legal effects. Profit Assocs., Inc., 286 S.W.3d 921, 923 (Tex.2009); Mo. Pac. R.R. Co. v. Lely Dev. Corp., 86 S.W.3d 787, 791 (Tex.App.—Austin 2002, pet. dism’d). A party cannot avoid a contract clause by simply failing to read it. In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex.2007) (orig.proceeding) (per curiam). Evidence that a party concealed a forum-selection clause combined with evidence proving that concealment was part of an intent to defraud a party may be sufficient to invalidate the clause.” Profit Assocs., Inc., 286 S.W.3d at 923.
Adriana, in her affidavit in support of her response to Shelby’s motion to dismiss, claimed that “Shelby discouraged me from reading the ACUERDO PRIVADO. He did not say to me that it contained a clause saying that I submitted to the courts of the city of Reynosa, Tamaulipas, Mexico in the event of any interpretation, dispute, or other aspect of the ACUERDO PRIVA-DO, or words to that effect, and I have had no such understanding, either when I signed it or since then.” Adriana does not claim that Shelby prevented her from reading the forum-selection clause. An allegation that Shelby merely “discouraged” her from reading the Private Agreement before she signed it is not sufficient to establish fraud. See id. at 923-24 (rejecting relator’s argument that forum-selection clause was procured by fraud or overreaching because relator was not shown the clause); U.S. Home Corp., 236 S.W.3d at 764 (holding there was no evidence of fraud as relators conceded that no one prevented them from reading the backside of a single sheet contract that contained the arbitration clause).
*633Moreover, Eduardo and Adriana agreed that the Private Agreement was the “final and definitive will of the parties” and there was “no mistake, fraud, bad faith or any defect of will that might affect their understanding or decision regarding the content.” See In re Emex Holdings, LLC, No. 13-11-00145-CV, 2018 WL 1683614, at *8 (Tex.App. — Corpus Christi Apr. 18, 2013, orig. proceeding [mand. denied]) (mem. op. en banc) (noting that the parties stated in the agreement that there was no fraud, bad faith, injury, or any other cause of nullity established by law and holding that the real parties had not clearly shown that the forum-selection clause was the product of fraud or overreaching).
Here, Adriana’s claim that she trusted Shelby as fiduciary to tell her that the forum-selection clause would negate a potential cause of action for breach of fiduciary duty in Mexico, does not render a forum-selection clause unenforceable. See id. (holding parties, who did not read the forum-selection clause before signing the agreement because they had instructed the attorney to change the clause and trusted him to do so, were charged with knowledge of the forum-selection clause). Not being able to bring certain causes of action in the designated forum is not a reason to avoid enforcement of a forum-selection clause. Lyon Fin. Servs., Inc., 257 S.W.3d at 234 (holding inability to assert a claim for usury under Pennsylvania law did not create a public policy reason to deny enforcement of the forum-selection clause).
Moreover, Adriana has not shown any evidence that Shelby knew that she would not be able to maintain claims for breach of fiduciary duty based on an informal confidential relationship under Mexican law. A claim based on the failure to disclose information necessarily presumes that the party with the duty to speak has knowledge of the facts. Cf. Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 670 (Tex.App.—Houston [14th Dist.] 2006, pet. denied) (stating that the failure to disclose information does not constitute fraud unless there is a duty to disclose information). Shelby had no duty to disclose facts of which he was not aware. See HTM Rests., Inc. v. Goldman Sachs <& Co., 797 S.W.2d 326, 329 (TexApp. — Houston [14th Dist.] 1990, writ denied) (“A party cannot be guilty of fraudulently or intentionally concealing facts of which he is not aware. Although silence can be a form of misrepresentation, the duty to speak does not arise until the silent party is aware of the facts.”) (citations omitted).
Adriana has not shown that Shelby had a duty to disclose to her the forum-selection and choice-of-law provisions in the Private Agreement and their consequences. Adriana further has not demonstrated that the forum-selection and choice-of-law provisions were procured by fraud or overreaching.
B. Whether Reynosa, Tamaulipas, Mexico is a Seriously Inconvenient Forum
Adriana further contends that the forum-selection clause is unenforceable as seriously inconvenient such that she will be denied her day in court because the specified forum — Reynosa, Tamaulipas, Mexico — is “one of the most -dangerous places in the world.” When inconvenience in litigating in the chosen forum is foreseeable at the time of contracting, the challenger must show that the trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. ADM Inv. Servs., Inc., 304 S.W.3d at 375. “By entering into an agreement with a forum-selection clause, the parties effectively represent to each *634other that the agreed forum is not so inconvenient that enforcing the clause 'will deprive either party of its day in court, whether for cost or other reasons.” -Int’l Profit Assocs., Inc., 274 S.W.3d at 680. Adriana agrees that financial- difficulties and inconvenience to the witnesses are not sufficient to avoid application of the forum-selection clause, but asserts that the dangerous conditions in Reynosa render the forum seriously inconvenient. See Lyon Fin. Sews., Inc., 257 S.W.3d at 234; In re Zotec Partners, LLC, 353 S.W.3d 533, 537 (Tex.App.—San Antonio 2011, orig. proceeding).
Relying on forum-non-conveniens cases, Shelby contends that purported dangerous conditions are not sufficient to avoid enforcement of a forum-selection clause- in the absence of evidence that such conditions have an adverse impact on the operation of the judiciary.5 Shelby presentéd uncontroverted evidence that Adriana, Sylvia, and Tommy have hired attorneys and filed claims against him in Tamaulipas, Adriana’s Mexican law expert has handled litigation in Tamaulipas, and Reynosa has a fully functioning court system. Adriana responds that forum non conveniens cases are not applicable in the forum-selection clause analysis. We disagree. There is no reason not to consider forum non conve-niens cases, which have addressed whether political unrest or other conditions render the alternative forum inadequate.
Under these circumstances, Adriana has not shown that litigating in Reynosa is so gravely difficult and inconvenient that she will for all practical purposes be deprived of her day in court.
C. Waiver of the Right to Enforce the Forum-Selection Clause
Adriana asserts that Shelby has waived his right to enforce the forum-selection clause. Adriana pleaded four of her six counterclaims on January 9, 2014, and added two claims in her amended pleadings on December 11, 2014, February 5, 2015, and February 11, 2015. Shelby litigated those four original causes of action for a year, including pleading affirmative defenses based on Texas law, before seeking dis*635missal of Adriana’s claims pursuant to the forum-selection clause. •
A party may waive the right to enforce a forum-selection clause. Boehme, 256 S.W.3d at 884. In determining waiver of a forum-selection clause, the court may look to arbitration cases for guidance. Id. The test for waiver of an arbitration clause is whether (1) the party seeking arbitration has “substantially invoked the judicial process,” and (2) the party resisting arbitration suffered actual prejudice as a result. Id.
Waiver is primarily a,function of intent and requires either the intentional relinquishment of a known right or intentional conduct inconsistent with claim-, ing that right. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 393-94 (Tex.2014). Whether a party .has substantially invoked the judicial process depends on the totality of the circumstances. Richmont Holdings, Inc. v. Superior Recharge Sys., L.L.C., 455 S.W.3d 573, 575 (Tex.2015) (per curiam).
Adriana contends that Shelby substantially invoked the judicial process by deposing her and serving her with written discovery requests and by. having his own deposition taken and responding to Adriana’s discovery requests. These limited actions do not establish that Shelby substantially invoked the judicial process such that he waived his right to enforce the forum-selection clause. See In re Vesta Ins. Grp., Inc., 192 S.W.3d 759, 763-64 (Tex.2006) (orig.proceeding) (per curiam) (holding the relators did not substantially invoke the judicial process by serving requests for disclosure, noticing four depositions, and sending a request for production); In re AIU Ins. Co., 148 S.W.3d 109, 121 (Tex.2004) (orig.proceeding) (holding the relator did not waive enforcement of the forum-selection clause by filing answer, requesting a jury, and paying the jury fee; Boehme, 256 S.W.3d at 885 (holding that deposing three witnesses, producing two witnesses for deposition, exchanging documents, and participating in a temporary injunction hearing did not constitute waiver . of forum-selection clause).
Adriana also asserts that she has been prejudiced by Shelby’s delay in seeking to enforce the forum-selection clause. Mere delay in moving' to enforce the forum-selection clause does not constitute waiver. Cf. Richmont Holdings, Inc., 455 S.W.3d at 576 (holding that moving to compel arbitration nineteen months after lawsuit was filed was not waiver of right to arbitrate); Vesta Ins. Grp., Inc., 192 S.W.3d at 763-64 (holding that moving to compel arbitration two years after lawsuit whs filed was not waiver of right to -arbitrate).
Adriana contends that Shelby gained an advantage in this litigation by questioning her at her deposition about the Private Agreement and payments made pursuant to it. Shelby responds that he had been seeking to take Adriana’s deposition since June 2013, several months prior to Adriana filing her counterclaims. Shelby's counsel questioned Adriana about the Private Agreement because Adriana had initiated changes to Dorothy’s will due to her dissatisfaction with the payments she received pursuant to the Private Agreement. Adriana cannot show prejudice from any discovery request's to which she responded as she chose to litigate in a forum not agreed to by the parties. See In re Automated Collection Techs., Inc., 156 S.W.3d 557, 560 (Tex.2004) (orig.proceeding) (per curiam) (holding that real party in interest could not show prejudice from any duplication of time or efforts in litigating case where it had initiated proceedings in a forum other that the one to which it had contractually agreed).
*636Adriana further argues that she suffered prejudice by Shelby’s delay in invoking the forum-selection clause because the one-year statute of limitations in Mexico will limit her recovery of damages. Shelby points out that, because the last payment Adriana received under the Private Agreement was in October 2010, the delay from January 2014 to January 2015 is immaterial for limitations purposes in Mexico. Moreover, Adriana is complaining of the choice-of-law provision in the Private Agreement, which is not the subject matter of the trial court’s order or this original proceeding. Adriana has not shown that she has been prejudiced by Shelby’s delay in seeking to enforce the forum-selection clause. Therefore, Adriana has not established that Shelby waived his right to enforce the forum-selection clause.
VII. Conclusion
We hold that Adriana’s claims for tor-tious interference with inheritance rights, breach of fiduciary duty, tortious interference with the Private Agreement, and breach of the contractual obligation to perform the Private Agreement fall within the scope of the forum-selection clause, but Adriana’s claims for breach of the agreement to pay her $100,000 upon Dorothy’s death and breach of the Donation Agreement do not. We further hold that Adriana has not established that the forum-selection clause was procured as a result of overreaching or fraud, that Reynosa, Tau-malipas is a seriously inconvenient forum, or that Shelby waived his right to enforce the clause.
Thus, the trial court abused its discretion by denying Shelby’s motion to dismiss based on the forum-selection clause contained in the Private Agreement as to Adriana’s claims for tortious interference with inheritance rights, breach of fiduciary duty, tortious interference with the Private Agreement, and breach of the contractual obligation to perform the Private Agreement, and Shelby does not have an adequate remedy by appeal. The trial court did not abuse its discretion by denying Shelby’s motion to dismiss as to Adriana’s claims for breach of the agreement to pay her $100,000 upon Dorothy’s death and breach of the Donation Agreement.
Accordingly, we conditionally grant the petition for writ of mandamus, in part, and direct the trial court to vacate its February 18, 2015 order to the extent that it denies Shelby’s motion to dismiss as to Adriana’s claims for tortious interference with inheritance rights, breach of fiduciary duty, tortious interference with the Private Agreement, and breach of the contractual obligation to perform the Private Agreement, and dismiss those claims. We deny the remainder of the petition as to Adriana’s claims for breach of the agreement to pay her $100,000 upon Dorothy’s death and breach of the Donation Agreement. The writ will issue only if the trial court fails to act in accordance with this opinion.
.Adriana does not explain in her third amended petition what the Donation Agreement is or identify the parties to it.
. Shelby contends that, as a non-signatory to the forum-selection clause, he can enforce the clause under estoppel principles. Even though Adriana has not argued that Shelby cannot enforce the forum-selection clause in the Private Agreement based on the fact that he is not a signatory to the Agreement we, nonetheless, address this issue.
Equitable estoppel theories allowing non-signatories to enforce arbitration agreements also apply to forum-selection clauses. Deep Water Slender Wells, Ltd. v. Shell Int’l Exploration & Prod., Inc., 234 S.W.3d 679, 693-94 (Tex.App.—Houston [14th Dist.] 2007, pet. denied) (citing Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., Inc., 177 S.W.3d 605, 622-24 (Tex.App.—Houston [1st Dist.] 2005, no pet.)). "A person who has agreed to resolve disputes with one party in a particular forum may be required in some circumstances to resolve related disputes with other parties in the same forum.” Smith v. Kenda Capital, LLC, 451 S.W.3d 453, 458 (Tex.App.—Houston [14th Dist.] 2014, no pet.). Under the theory of direct benefits estoppel, a nonsigna-tory may enforce a forum-selection clause that contains other terms on which the signatory plaintiff must rely to prosecute its claims. Id.-, In re Cornerstone Healthcare Holding Grp., Inc., 348 S.W.3d 538, 544-45 (Tex.App.—Dallas 2011, orig. proceeding). Direct benefits estoppel, applies when a signatory’s claim against a nonsignatory references or presumes the existence of the written agreement containing the clause. Smith, 451 S.W.3d at 458. Adriana’s claims against Shelby clearly reference or presume the existence the agreement containing the forum-selection clause, i.e., the Private Agreement. Therefore, Shelby may enforce the forum-selection clause in the Private Agreement to the extent that it encompasses Adriana’s claims.
. Emphasis added.
. The choice-of-law clause was not the subject of Shelby's motion to dismiss.
. .See, e.g., Paolicelli v. Ford Motor Co., 289 Fed.Appx. 387, 391 (11th Cir.2008) ("absent evidence the political unrest has affected the Columbian judicial system or would affect litigation of this case, this fact is not sufficient to outweigh the other factors that weigh in favor of dismissal”); Rustal Trading US, Inc. v. Makki, 17 Fed.Appx. 331, 337 (6th Cir. 2001) (holding political unrest in a foreign jurisdiction did not render the forum inadequate absent some showing that the unrest had had an adverse effect on the judicial system there); Transunion Corp v. PepsiCo, Inc., 811 F.2d 127, 129 (2d Cir.1987) (holding there had been no showing that political unrest in the Philippines had an adverse impact on the judicial system); Miralda v. Tidewater, Inc., Civ. A. No. 11-1170, 2012 WL 3637845, at *4 (E.D.La. Aug. 23, 2012) (observing that several federal appellate courts had uniformly concluded that political unrest of the altema-tive'forum had hot per se rendered the forum inadequate in the forum non conveniens context absent some showing that this unrest negatively affected the judicial system of the country or the litigation at issue); Morales v. Ford Motor Co., 313 F.Supp.2d 672, 682 (S.D.Tex.2004) (rejecting contention that political situation in Venezuela would make trial in U.S. more convenient because of "paucity of evidence and information submitted to the ■coúrt” on the issue); In re Bridgestone/Firestone, Inc., Tires Prods. Liability Litig., 190 F.Supp.2d 1125, 1143-44 (S.D.Ind.2002) (considering physical threats to litigants and witnesses arising from then current volatile political situation in Columbia — "of particular interest [was] the fact that, in the recent past, judicial officers have been the targets of guer-illa violation” — to be a factor weighing in favor of retaining jurisdiction); In re BPZ Res., Inc., 359 S.W.3d 866, 879 (Tex.App.—Houston [14th Dist.] 2012, orig. proceeding [mand. denied]) (holding that political unrest alone, was insufficient to establish that Peru was an inconvenient forum). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284363/ | OPINION OF THE COURT BY
JUSTICE NOBLE
The Appellant, Steven Pettway, was convicted of murder and intimidating a participant in the legal process after shooting and killing Troya Sheckles, and was sentenced to a total prison term of 55 years. He raises two issues on appeal: (1) whether he could be convicted of intimidating a participant in the legal process under KRS 524.040 for intentionally killing Sheckles, and (2) whether delayed disclosures of discovery material by the Commonwealth constituted arbitrary state action prohibited by Section 2 of the Kentucky Constitution warranting dismissal of the charges against him. Finding that the evidence of Sheckles’s intentional murder does not support conviction on the intimidation-of-a-witness charge, but that there is no merit to his claim regarding delayed discovery, this Court affirms the murder conviction and sentence but reverses his conviction and sentence for intimidating a participant in the legal process.
I. Background .
■Troya Sheckles was shot and killed in Shelby Park in Louisville around 7:30 p.m. on March 23, 2009. Several people saw the shooting, • and they all gave largely consistent descriptions of the shooter as being a male in dark clothing with a bandana tied around his face.
Steven Pettway and codefendant Dejuan Hammond1 were eventually charged with Sheckles’s murder, as well as intimidating a participant in the legal process under KRS 524.040 and retaliating against a participant in the legal process under KRS 524.055.
The Commonwealth’s theory of the case was that Pettway killed Sheckles at De-juan Hammond’s direction to prevent her from testifying in. the upcoming murder trial of his younger brother, Lloyd Hammond. Sheckles had witnessed the killing of William Sawyers in her home in 2006 and had identified Lloyd Hammond as the killer. Pettway was friends with the Hammonds, and the then-sixteen-year-old Pettway looked up to the much older De-juan Hammond as a sort of mentor. The Commonwealth’s evidence showed, among other things, that Pettway and Dejuan Hammond knew Sheckles was the essential witness for .the Commonwealth in Lloyd Hammond’s upcoming murder trial and had stashed a 9-mm pistol (the same *708kind used in Sheckles’s shooting) at a Mend’s house about a month before the murder. There was also testimony about numerous statements made by Pettway following the murder admitting that he had shot Sheckles so that she could not testify against Lloyd Hammond.
The jury ultimately convicted Pettway of murder and intimidating a participant in the legal process (but found him not guilty of the retaliation charge) and recommended a 50-year prison sentence for murder and five-year sentence for the intimidation conviction to run consecutively. The tidal court sentenced him to a total of 55 years’ imprisonment in accordance with the jury’s recommendations.
Pettway now appeals to this Court as a matter of right. See Ky. Const. § 110(2)(b). Additional facts will be developed as necessary in the discussion below.
II. Analysis
A. Pettway cannot be convicted of intimidating a participant in the legal process based on the intentional murder.
Pettway first claims that he could not be convicted of intimidating a participant in the legal process based on the intentional murder of Troya Sheckles.
There is no question, under the evidence, that Sheckles was intentionally killed; and there was more than sufficient evidence that Pettway was the killer. KRS 507.020(l)(a), the murder statute, requires that he have acted “[wjith intent to cause the death of another person,” and in doing so, “cause[d] the death of such person.” This, in turn, requires the death to have been his “conscious objective.” KRS 501.020(1). It is telling that he has not alleged that he was entitled to a directed verdict on this conviction.
On the other hand, the statute criminalizing intimidating a witness (among other participants in the legal process), KRS 524.040, provides, in relevant part, the following:
(1) A person is guilty of intimidating a participant in the legal process when, by use of physical force or a threat directed to a person he believes to be a participant in the legal process, he or she:
(a) Influences, or attempts to influence, the testimony ... of that person; [or]
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(c) Induces or attempts to induce, that person to absent himself or herself from an official proceeding to which he has been legally summoned.
The language of KRS 524.040 makes clear that section is intended to criminalize only intimidating acts perpetrated with the intent to cause the participant in the legal process to behave in a certain proscribed way (e.g., alter testimony or fail to appear to testify). It criminalizes the use of physical force or a threat that “induces” a participant in the legal process to act a certain way or “influences” that person’s testimony (or attempts to do so). To induce means “to lead or move by persuasion or influence.” Webster’s II New College Dictionary 565 (1995). Similarly, to influence means “[t]o cause a change in the character, thought or action of.” Id. at 569. Both necessarily contemplate subsequent action by the intimidated person as a consequence of the perpetrator’s intimidation.
In essence, this statute criminalizes harmful or threatening behavior intended to cause the victim herself to act in some way, specifically, to change her testimony or to absent herself from a trial or other proceeding completely. In other words, it is aimed at the use of duress and coercion to convince a witness to choose not to testify. Although that choice is not volun*709tary, being induced by harm or threat, it is nonetheless a choice.
But an actor cannot intentionally cause another person’s death and, at the same time, cause that other person to also behave in a certain way or to make a choice. A dead person cannot act and cannot choose. Preventing a witness from testifying (by killing them) cannot also influence the witness’s testimony or induce him not to testify. Obviously, killing someone under circumstances like those in this case is intended to prevent the person from testifying, but that conduct is not covered by KRS 524.040. Such conduct is not intended to change the witness’s conduct (other than to make it cease to exist) in how the witness testifies or chooses not to testify.
In contrast, KRS 524.055 criminalizes retaliating against a participant in the legal process. A person is guilty of that crime
when he or she engages or threatens to engage in conduct causing or intended to' cause bodily injury ... [to] a participant in the legal process or a person he or she believes may be called as a participant in the legal process in any official proceeding or because the person has participated in a legal proceeding....
KRS 524.055(1) (emphasis added). Unlike intimidation under KRS 524.040, this offense does not require that the use of physical force or the threat be intended to induce the victim not to participate in the official proceeding or influence how the victim participates. Instead, the offense of retaliation requires only that the person being retaliated against either be, be expected to be, or already have been a participant in the legal process. Though retaliation is ordinarily thought of as occurring after the fact (e.g.,' after a witness has testified), the statute is drafted to cover violence against a person who has not yet participated (e.g., has not yet testified), so long as the act is related to the person’s participation in the legal process. KRS 524.055(8). Thus, a defendant would be guilty of retaliating against a participant in the legal process for intentionally shooting and killing someone who is expected to provide adverse testimony at an upcoming trial. But the jury here did not convict on this charge.
To justify the intimidation conviction in this case, the Commonwealth cites Hatfield v. Commomvealth, 250 S.W.3d 590 (Ky. 2008), which held that a defendant may be properly convicted of both criminal attempt to commit murder and intimidating a participant in the legal process. In Hatfield, this Court considered and rejected claims that the trial court erred in refusing to grant directed verdicts of acquittal on an attempted-murder charge and an intimidation charge. See id. at 596-98. The victim in that case survived a very severe beating by Hatfield and others, and the evidence showed that the victim of the beating had witnessed a murder by Hatfield’s uncle. The question was whether there was sufficient evidence to sustain those convictions. In that regard, the Court correctly held that the evidence was sufficient to support finding that Hatfield had attempted to kill the victim and that the attack had been a means for intimidating her as a witness to the murder. In so holding, the Court aptly rejected Hatfield’s argument that the evidence was unbelievable due to inconsistencies in testimony because such questions of credibility are properly left to the jury.
But Hatfield is distinguishable from this case because there the assailants were not successful in their attempted murder. The charges in that case were considered independently when deciding whether a directed verdict was required. A reasonable jury could have believed, in considering *710the intimidation charge, that the beating was intended only to silence the witness. And, when considering the attempted murder charge, the jury could have believed that the assailants’ intent was to kill. If anything, this suggests that the verdicts in that case were inconsistent because the two intents were mutually exclusive. See KRS 505.020(l)(b) (“When a single course of conduct of a defendant may' establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when ... [^Inconsistent findings of fact are required to establish the commission of the offenses.”).
Hatfield, however, does not stand for the proposition that a defendant can intentionally murder a potential witness and be convicted of intimidating that same witness under KRS 524.040. Killing a witness forecloses the possibility of influencing that witness’s testimony or inducing the witness to absent herself from trial.
Instead, the appropriate charge is retaliating against a witness under KRS 524.055. Of course, Pettway was also charged with this offense, and it was properly presented to the jury. For whatever reason, the. jury did not convict on this charge.
It was thus error in this case to allow the jury to consider the charge of intimidating a participant in the legal process because the evidence does not support finding that Pettway shot and killed Sheckles with the intent to “influence” her to alter her testimony in Lloyd Hammond’s murder trial or to “induce” her not to testify.
This issue was not raised to the trial court below, and thus this Court reviews for palpable error under Criminal Rule 10.26. We will • reverse an unpre-sefved error that affects a party’s substantial rights only upon determining that manifest injustice resulted from the error. RCr 10.26. “[T]he required showing is probability of a. different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
Since Pettway could not have been guilty of intimidating a witness under any view of the facts and evidence in this case, the error is clearly palpable and manifestly unjust, and his conviction on this charge must be reversed.
Pettway further argues that this requires reversing his murder conviction and sentence as well, but this error did not taint his murder conviction. The same proof was offered and admissible both as evidence supporting the Commonwealth’s murder theory that Pettway killed Sheck-les at Dejuan Hammond’s request to prevent her from testifying at Hammond’s brother’s murder trial and, as noted above, as _ evidence of the charge of. retaliating against a participant in the legal process. The fact that the jury could properly convict for murder under that evidence but not for intimidation of a witness does not change the applicability of that evidence to the murder charge.
Pettway’s conviction and sentence for intimidating a participant in the legal process is therefore reversed.
B. Discovery failures by the Commonwealth do not amount to arbitrary state action in violation of Section 2 of the Kentucky Constitution and do not entitle Pettway to dismissal of his indictment with prejudice.
Pettway’s other claim does not allege any error by the trial court. Instead, Pettway is arguing that this Court has the duty to exercise its “inherent supervisory *711power” under Section 22 of the Kentucky Constitution to remedy alleged arbitrary actions by the Commonwealth’s attorneys in this case “by declaring that the rights of the state have been forfeited,” Reid v. Cowan, 502 S.W.2d 41, 42 (Ky. 1973). Specifically, he asks this Court to find that the Commonwealth’s failure to disclose discovery material until the second day of the first trial (which resulted in a mistrial for that exact failure) and subsequent failure to disclose additional material until a week before the second trial (as a result of which the trial court excluded the evidence under Criminal Rule 7.24(9)3) were arbitrary within the meaning of Section 2. And to remedy this supposed arbitrariness, he asks this Court to “enforce an estoppel to prosecute” him. In other words, he contends that he is entitled to have this Court dismiss his indictment with prejudice to remedy the two discovery violations.
The Commonwealth argues in response that the trial court acted properly under Criminal Rules 7.24 and 7.26; that the delayed disclosures did not amount to violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);4 and that Pettway cannot demonstrate any prejudice resulting from the discovery violations. In his reply brief, however, Pett-way states that the Commonwealth’s argument is “premised on a misunderstanding of the claim.” He then reiterates that his claim is instead an invocation of the Court’s supervisory powers “to1 vindicate Section 2 by-- declaring a forfeiture [by the Commonwealth] in this case” as a result of the alleged arbitrarily delayed disclosures of discovery materials.
Specifically, Pettway is asking this Court to exercise its inherent supervisory powers and dismiss with prejudice' all charges against him to vindicate the prohibition against arbitrary state action contained in Section 2 of the Kentucky Constitution.
As Pettway’s argument at least implicitly concedes, he has no grounds on which to claim that the trial court’s actions regarding the discovery violations by the Commonwealth below were error. The court granted his motion for a mistrial as-a result of the- first violation. Similarly, the trial court acted well within its discretion in declining to dismiss with prejudice the charges against Pettway following the second delayed disclosure. And the trial court ordered appropriate relief by excluding the belatedly disclosed evidence (potentially subject to a missing evidence instruction) when Pettway, going against the advice of trial counsel to seek a continuance, chose to proceed to trial despite the delayed disclosure. He, therefore, received all the relief to which he was entitled under Criminal Rules 7.24 and 7.26 and has no cause to complain further. See RCr 7.24(9).
*712Nevertheless, Pettway claims this extraordinary remedy is justified to cure the prosecution’s allegedly arbitrary actions in inadvertently failing to timely turn over discovery materials (which, incidentally, have not been shown to contain any exculpatory evidence). Ironically, this would require the Court itself to act arbitrarily. Pettway has already received appropriate judicial, remedies in the form of a mistrial and exclusion of evidence. To pile on would be nothing but arbitrary. And such action would raise significant separation-of-powers concerns. While we acknowledge the observation of Chief Justice Pal-more that “[sjometimes, as Holmes remarked, because the constable blundered the criminal must go free, that being the most effective method of helping the constable not to blunder the next time,” Reid v. Cowan, 502 S.W.2d 41, 42 (Ky. 1973), this is not one of those times. There was no blunder that could not be appropriately addressed, as the trial court did here, under our rules of procedure. This claim has no merit.
III. Conclusion
Because intentionally murdering a participant in the legal process cannot sustain a conviction for intimidating that participant, Pettway’s conviction and sentence for intimidating a participant in the legal process must be reversed. His conviction and sentence for the murder of Troya Sheckles is affirmed, and this matter is remanded to the Jefferson Circuit Court for entry of a new judgment consistent with this opinion.
All sitting. All concur.
. Hammond was tried separately.
. "Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Ky. Const. § 2. •
. Criminal Rule 7.24(9) provides the following:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or an order issued pursuant thereto, the court may direct such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed) or it may enter such other order as may be just under the circumstances.
,“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284364/ | *715OPINION OF THE COURT BY
JUSTICE ABRAMSON
This writ action arises from the criminal prosecution of Real Party in Interest William Bennett for first-degree assault and wanton endangerment. Bennett, contending he acted in self-defense and is immune from prosecution under Kentucky Revised Statute (KRS) 503.085, moved for dismissal of his indictment on immunity grounds and requested an evidentiary hearing. A review of the record reveals that Bennett was merely requesting a hearing so that the circuit court judge could view an enhanced videotape of the encounter that,led to the criminal charges and not that he be allowed to call witnesses. A senior judge, presiding in Respondent’s stead and acting pursuant to Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009), reviewed evidence of record, including a videotape, and concluded that there was probable cause to believe that the force Bennett used was not legally justified. Hence, he denied the motion to dismiss. On reconsideration and without reviewing the videotape or other evidence of record, the Respondént set aside the senior judge’s order and scheduled an evidentiary hearing on immunity, indicating her belief that Bennett was entitled to such a hearing and her interest in hearing from the witnesses. After asking Bennett’s counsel if he would be issuing subpoenas and receiving an affirmative response, the Respondent scheduled a hearing at which witnesses, including the victims, are to appear and testify.
The Commonwealth promptly sought a writ, which the Court of Appeals denied, concluding that the Commonwealth had an adequate remedy by appeal. We find that the Respondent erred -in not first considering the evidence of record (numerous witness statements from the victims, the defendant, and other witnesses as well as a videotape of the incident) to determine if there was probable cause to believe the force Bennett used was unlawful. In cases where the evidence of record is too limited for a circuit court to make that threshold determination, then a probable cause hearing may be appropriate but courts are not at liberty to bypass summarily the-procedure outlined by this Court in Rodgers, a procedure designed to balance the important immunity shield with the equally important interest in having the elements of a criminal charge decided by a jury where probable cause is present. Under our writ jurisprudence, there is no adequate remedy by appeal where the trial court’s erroneous action will result in a “substantial miscarriage of justice,” and “correction of the error is necessary and appropriate in the interest of orderly judicial administration.” Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). As- outlined below; that standard is met here and a writ is appropriate. Because a full understanding of this matter entails appreciating the relevant facts in the criminal -prosecution, we begin with a statement of those facts.
RELEVANT FACTS
On September 1, 2012, a group of people gathered at the home of Shelby Deutsch in celebration of his birthday. Bennett, who dated Deutsch’s daughter Jericka Deutsch, was in attendance. Before the evening was over, an altercation ensued involving several -people. Bennett fired a shot from his gun and the bullet struck Shelby Deutsch in the mouth, exiting his ear. A Louisville Metro Arson camera on a utility pole across the street recorded the incident. These basic facts are not in dispute.
Approximately two months later, Bennett was -indicted for first-degree assault as to Shelby Deutsch and two counts of first-degree wanton endangerment as to Michael Turner and -Tiffany Jecker, individuals present at the Deutsch home that *716night. In his motion to dismiss on immunity grounds and request for evidentiary hearing, Bennett contended that “police made the decision to charge the Defendant with little or no investigation and prior to viewing the video which clearly shows that Defendant acted in self protection.” After discussing this Court’s Rodgers .decision and the applicable probable cause standard, Bennett’s motion concluded with the following: “A simple view of the video of the events in this case clearly shows that the Defendant was under attack and acted in self-protection and thus the force used herein [was] legally justified.” In response, the Commonwealth noted that it had filed discovery in the case, including the videotape as well as statements from victims and witnesses taken shortly after the shooting, and requested that the trial court determine the immunity issue on the evidence of record as directed in Rodgers.
The trial court initially scheduled an April 22, 2013 hearing. At that hearing, the Commonwealth 'and the defense were both prepared to play videos of the incident, with the Commonwealth apparently relying on the original unenhanced videotape and the defense having an enhanced videotape of higher quality. A review of the hearing reveals that both counsel intended to rely on their respective videos and arguments regarding the evidence of record. Without viewing either videotape, Respondent opined that an evidentiary hearing with live testimony was necessary in order for the Commonwealth to meet its burden of proof and scheduled a hearing for July 22.
The Commonwealth made a motion to reconsider, and at a May 31 hearing on that motion Senior Judge Steve Mershon, sitting in Respondent’s stead, heard arguments of counsel. Three days later, after reviewing “all discovery, particularly including the videotape,” Judge Mershon issued a five-page order denying Bennett’s motion to dismiss. His factual findings were as follows:
Having reviewed the discovery, the Court finds that there is probable cause to believe, in fact, that on or about September 1, 2012, William Bennett and his girlfriend, Jericka Deutsch, were at a family gathering celebrating the victim’s birthday. Following a gathering for pizza, the parties returned to the Deutsch residence. At some point in the early evening, Mr. Deutsch and Mr. Bennett began arguing about Mr. Bennett’s relationship with Jericka Deutsch. The two men stepped outside and the verbal argument continued. Mr. Bennett left the gathering and came back with a gun a short time later with another male, Brandon Haycraft.
Mr. Deutsch and Mr. Bennett began verbally arguing again. The argument moved out to the front of the house. At some point, a group was gathered in front of the house around William Bennett’s car. Mr. Bennett was standing outside the car, and Brandon Haycraft was sitting in the front passenger seat of the car. The group out front consisted of Mr. Deutsch, Jericka Deutsch, Justin Deutsch, Michael Turner, Tiffany Jecker and Brandon Haycraft (in the car). At some point, Michael Turner lunged toward the Defendant and grabbed him by the shirt collar. William Bennett produced a gun and fired a shot. The bullet hit Shelby Deutsch. The bullet traveled into his mouth and exited his ear with minor damage. By pure coincidence, Louisville Metro Arson had a camera on the telephone pole across the street, and it was able to capture the incident. The Court has watched the video several times. Although the video is grainy and shot from a distance, witness statements seem to confirm that in the seconds before Michael Turner lung*717es towards Mr. Bennett, the situation seems relatively calm. The video shows one individual with his hands folded behind his head. The victim appears to be seen with both hand casually in his pockets, and there is a woman standing close to Mr. Bennett casually smoking a cigarette. Shortly after Michael Turner lunges towards William Bennett, it appears that the victim, Shelby Deutsch, can be seen trying to pull Mr. Turner off of Mr. Bennett. Shortly thereafter, it appears that Mr. Bennett pulls out a gun and shoots Mr. Deutsch. It appears that someone disarms Mr. Bennett and holds him on the ground until the police arrive.
(emphasis in original). Following a discussion of Rodgers, the order concludes with the following analysis:
The Court understands that Mr. Bennett may have a different version of the facts recited above. He could well argue that some of the witness statements do not comport completely with the video. However, this Court’s role is only to determine if there is probable cause to believe that: (1) a crime was committed; (2) Mr. Bennett committed the crime; and (3) the force used by Mr. Bennett was not fully justified under the controlling provisions of KRS Chapter 503. Based upon a review of the discovery, the Court finds probable cause as to all three.
The Court reaches these conclusions even before viewing the videotape. Several witnesses confirm that Mr. Bennett left the Deutsch residence after the initial confrontation. He was obviously in no danger and left without harm. However, he returned to the Deutsch home sometime later with another individual and with a gun1 There is probable cause to believe that any claim to self defense would have ended when Mr. Bennett safely exited after the original verbal altercation.
Even if the altercation had happened immediately upon his leaving, and immediately during or following the verbal altercation, the Court would reach the same conclusion. The videotape appears to show brief pushing and shoving and maybe a fist thrown for at most several seconds before the gun is pulled and Mr. Deutsch is shot. As reflected above, the videotape seems to reflect (there is no audio) that the situation was relatively calm just seconds before the incident. There was a woman casually smoking a cigarette and Mr. Deutsch was standing with his hands in his pockets. Within a very short time of the pushing and shoving beginning, a gun is pulled and a shot is fired. This Court determines that there was clearly probable cause to conclude that the force used by the Defendant was not justified under the controlling provisions of KRS Chapter 503.
(emphasis in original).
Bennett asked Respondent to reconsider Judge Mershon’s order, alleging he made “factual errors” and “assumptions not related to the issue of immunity” and that he applied the “wrong test” on the immunity issue. Bennett’s motion bears extensive quotation because it shows not only the specific grounds for his disagreement with Judge Mershon’s order but that he was relying solely on the evidence of record and not asking to call witnesses.
The issue of self-protection arises at the time Mr. Bennett was under attack at his car. He. was not grabbed by *718Michael Turner as the Order states. That is a claim made by the Commonwealth not reflected in any discovery. At least one witness stated Michael Turner was punching the Defendant multi- ■ pie times at the time the shot was fired. Judge Mershon obviously reviewed the CD supplied by the Commonwealth and not the enhanced CD filed by the Defendant. The Court’s finding that the situation was calm before Michael Turner’s attack is incorrect. The situation was volatile — Tiffany Jeeker was repeatedly getting into the Defendant’s face, and being pulled away by others. The last time she was pulled away is when Michael Turner attacked the Defendant.
Judge Mershon obviously relied heavily on the fact that the Defendant left the residence and returned. (He emphasized that twice in his Order). This is not relevant to the issue of self-protection and immunity and ignores the witness’s (sic) statements that the Defendant left to get away from the conflict and only returned to pick up Jericka Deutsch and her son'because he was called and requested to do so by both Shelby Deutsch and Jericka Deutsch.
⅝ ⅝ ⅝
The fact that Mr. Bennett left .the residence and returned is not relative [sic] to the issue of self-protection or immunity. Counsel agrees if Mr. Bennett had shot someone before he left the residence initially, immunity and self-protection would not be an issue. He was ■ not under physical assault at the time he initially left. Judge Mershon seems to feel that the return to the residence was some indication that Mr. Bennett is not entitled to immunity or to use force in self-protection once he was attacked after he returned. He ignores the discovery filed that at least two witnesses state Mr. Bennett was called and requested to return to the residence to pick up Jericka and- her-son. Shelby Deutsch states this repeatedly in his ■statement to Detective Schutte. Interestingly, Judge Mershon ignores the fact that the video reflects the Defendant left the residence and returned to his car, getting inside, and only exited the vehicle after he was surrounded and confronted. Judge Mershon acknowledges the video tape shows a brief pushing and shoving and a fist thrown at most several seconds before the gun was pulled and fired. Mr. Bennett agrees the physical assault upon him was brief but was continuing, thus, he was allowed to use such force as was necessary to stop that attack upon him. . The Commonwealth keeps arguing about the use of deadly physical force. There is no allegation of deadly physical force. Deadly physical force yas not used.2 If the Court finds that the Defendant was being physically assaulted and being punched, as the CD reflects, then he is justified in using physical force to stop that punching. The test Judge Mershon applied (commencing on page 3 of his Order) is not the correct test as outlined by Rodgers p. 754. The correct test is the “totality of circumstance[s]” must establish probable cause that the force used by the Defendant was not legally justified. The discovery here does not establish probable cause that the force used was unlawful.
(emphasis added).
The motion amply illustrated that Bennett was relying solely on “the discovery” of record in asking for reconsideration. *719However, after hearing from counsel at the July 22 hearing (which had remained on the court’s docket), and still not having reviewed the videotape or witness statements, Respondent scheduled another hearing for September 12, 2013, stating once again her intent' to hear from witnesses on the issue of self-protection. The Commonwealth sought and was denied a writ of prohibition in the Court of Appeals and then appealed to this Court. We now reverse.
ANALYSIS
I. The Writ Standard and “Orderly Judicial Administration.”
As stated in Cox v. Braden, this Court issues writs only
upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is. no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.
266 S.W.3d 792, 796 (Ky. 2008) (quoting Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004)). In the second class of writs, where a court is acting within its jurisdiction but erroneously, we have recognized an exception and dispensed with the element of great and irreparable harm if the case involves “a substantial miscarriage of justice” and “correction of the error is necessary and appropriate in the interest of orderly judicial administration.” Cox, 266 S.W.3d at 797. More than fifty years ago, in Bender, 343 S.W.2d at 801, this Court’s predecessor noted that in acting on cases that fall within this exception “the court is recognizing that if it fails to act the administration of justice generally will suffer the great and irreparable injury.” This' exception has formed the basis for three recent opinions from this Court approving writs, and because the exception is 'applicable here we review each of those cases.
In K.R. v. Commonwealth, 360 S.W.3d 179 (Ky. 2012), this Court invoked the “orderly judicial administration” exception to affirm a writ where a district court had declined to transfer a juvenile, to circuit court for prosecution despite KRS 635.020(4), the statute mandating transfer where there is probable cause to believe that a firearm was used in the commission of a felony. Reasoning that double jeopardy following prosecution of the charges in district court would preclude an adequate remedy by appeal, this Court turned to the orderly judicial administration prong and concluded that failure to follow a controlling, mandatory statute sufficed. The writ issued by the circuit court was affirmed.
In Commonwealth v. Engle, 302 S.W.3d 60 (Ky. 2010), this Court reversed the Court of Appeals, which had declined to issue a writ against a circuit judge who ordered the Department of Corrections to transport inmates to court proceedings in contravention of a statute clearly requiring the sheriff of the requesting county to perform those transport duties. This Court found the short time frame for implementing individual transport orders meant there would never be an adequate appellate remedy and, furthermore, that while one erroneous order might not be concerning, over time erroneous orders in 120 trial court venues would be a substantial interference with the orderly administration of justice. Id. at 65-66.
Perhaps the most analogous “orderly judicial administration” case for present purposes is this Court’s unanimous opinion in Commomvealth v. Peters, 353 S.W.3d 592 (Ky. 2011), wherein this Court reversed *720the Court of Appeals and reinstated a writ granted by the circuit court against a district court judge. The district court had ordered the Commonwealth to produce the complaining witness in a driving under the influence prosecution (the arresting officer) at a pretrial conference for purposes of an interview by defense counsel. This Court readily granted relief, observing first that there is no adequate remedy by appeal when the injury “could not thereafter be rectified in subsequent proceedings in the case.” Id. at 595 citing Indep. Order of Foresters v. Chauvin, 175 S.W.3d 610, 614-15 (Ky. 2005). After noting that there is rarely an adequate appellate remedy where the challenged order allows discovery, 353 S.W.3d at 595 (citations omitted), because once information is released it cannot be recalled, we held the district court’s order to appear and give testimony was akin to a discovery order, rendering any appeal after the fact inadequate. Next, this Court found that the district court’s order would interfere with orderly justice administration by undermining the right of a witness in a criminal case to refuse to answer questions prior to trial. Id. at 596-98. While the district court could order that the witness appear at a pretrial hearing to facilitate the plea process, it was prohibited from ordering him to provide an interview prior to trial of the matter. In reaching our decision, we reviewed the Kentucky Rules of Criminal Procedure and case law regarding pretrial discovery by the defense and Commonwealth and found no basis for the ordered pretrial interview. Moreover, state and federal case law clearly provides that a witness may refuse to be interviewed prior to trial by either the prosecution or the defense. Id. citing Radford v. Lovelace, 212 S.W.3d 72, 82 (Ky. 2006) rev’d on other grounds by Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009).
II. The Trial Court Was Acting Within Its Jurisdiction.
Turning to the case before us, the Commonwealth insists that this case involves the first class of writ, a trial court acting outside its jurisdiction. The Commonwealth essentially argues that once the immunity issue was addressed by the senior judge presiding in Respondent’s absence, Respondent had no jurisdiction to readdress it under Rodgers. In that case, we stated that the defendant may raise the KRS 503.085 immunity bar at the preliminary hearing in the district court or await an indictment and move for relief from the circuit court, but in either circumstance the court “must proceed expeditiously.” 285 S.W.3d at 755. We added, “[a] defendant may not, however, seek dismissal on immunity grounds in both courts,” and directed that a circuit court not revisit the issue once it has been decided by the district court. Id. That is not the case before us. Moreover, the circumstances, if any, that would justify a trial judge revisiting his or her own earlier probable cause determination regarding immunity, while an interesting issue, is also not the case before us. Instead, the issue is simply one of subject matter jurisdiction and, more specifically, whether the Respondent, as the presiding judge of the division of Jefferson Circuit Court to which the Bennett case was assigned, has jurisdiction to make an immunity ruling, even if that entails setting aside an earlier order of that court.3 Our precedent clearly establishes that subject matter jurisdiction is not lacking in that scenario.
*721In Watson v. Humphrey, 293 Ky. 839, 170 S.W.2d 865 (1943), a petitioner argued that the respondent circuit judge was without authority to set aside an earlier judgment (awarding the petitioner a first and prior lien) in order to address issues raised by a competing judgment involving the same property. Both judgments were entered in the same Jefferson County court. In denying the writ, the Watson Court noted jurisdiction in connection with the first class of writ “means jurisdiction of the subject matter ... The respondent unquestionably had jurisdiction to decide whether a judgment should be vacated or set aside and to determine its ultimate effect and its conclusiveness as to other parties. He may have acted erroneously but he was not acting beyond his jurisdiction.” Id. at 866-67. The same principle applies here. Undoubtedly, Respondent had the necessary subject matter jurisdiction to set aside the prior order denying dismissal, just as she has the jurisdiction to revisit other interlocutory orders, when justified by the circumstances. JPMorgan Chase Bank, N.A. v. Bluegrass Powerboats, 424 S.W.3d 902, 909 (Ky. 2014). The Court of Appeals was correct in concluding that a writ, if available, must be premised on findings required for the second class of writ where a court is acting within its jurisdiction but erroneously.
III. If Respondent is Acting Erroneously, There is No Adequate Appellate Remedy and the Orderly Judicial Administration Exception Applies.
Having determined that the Respondent is acting within her jurisdiction, the next question is whether an appeal will be adequate if she is in fact acting erroneously. KRS 22A.020(4) allows the Commonwealth in criminal cases to appeal “an adverse decision or ruling of the circuit court.” Although this statute is not referenced in Commonwealth v. Bushart, 337 S.W.3d 666 (Ky. App. 2011), it was the avenue for appeal of the circuit court’s order in that case dismissing an indictment on immunity grounds. In that case, Bus-hart sought dismissal of the reckless homicide indictment claiming he acted in self-defense in shooting his girlfriend’s former boyfriend. On appeal, the Court of Appeals reversed because the circuit court had improperly considered Bushart’s affidavit in which he gave an account of the incident in rebuttal of the witness statements and a detective’s report. As the Bushart panel noted, the trial court improperly considered matters outside the discovery of record, an error compounded by the fact that the defendant’s affidavit contained statements that the Commonwealth could not cross-examine. Id. at 669.
One might argue that Bushart illustrates the availability of an adequate appeal right, i.e., if the Respondent errs by holding a full-blown evidentiary hearing (which could easily result in a mini-trial of the charges) and then granting immunity to Bennett, the Commonwealth may appeal. However, this position completely misses the point. Respondent has scheduled a hearing at which subpoenaed witnesses, including the alleged victims of assault and wanton endangerment, are supposed to testify. Just as the witness statements that defense counsel sought by way of interview in Peters could not be undone once obtained, the testimony elicited at an unnecessary evidentiary hearing prior to trial and upon no cited authority in our rules or case precedent cannot be undone. As we said in Peters, “[o]nce the information is furnished it cannot be recalled.” Id. citing Bender, 343 S.W.2d at 802. And, the circumstances in this writ action are even more concerning because they entail compelling testimony under *722oath pretrial before a judge as opposed to the informal interviews at issue in Peters. Thus, if Respondent is acting erroneously there is no truly adequate appellate remedy. '
Additionally, if Respondent is proceeding erroneously, there will be a “substantial miscarriage of justice” and action by this Court “is necessary and appropriate in the interest of orderly judicial administration.” Cox, 266 S.W.3d at 797. Nowhere in prior precedent of this Court or our Rules of Criminal Procedure is there authority for the defense subpoenaing a witness or victim in a criminal case to testify at a pretrial proceeding in circuit court about the facts surrounding the charges in an indictment.4 As wé noted in Rodgers, pretriál evidentiary hearings in the Commonwealth have not focused on “proof that is the essence of the crime charged,” but instead have related to searches and seizures, the right to counsel, the right to Miranda warnings, the competency of the defendant to stand trial and similar matters. 285 S.W.3d at 755. The exchange of information between the prosecution and the defense prior to trial has been controlled by the discovery provisions of our Rules of Criminal Procedure and the disclosure obligations recognized by the United States Supreme Court and this Court as a matter of due process. Porter v. Commonwealth, 394 S.W.3d 382 (Ky. 2011) (citing inter alia United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); King v. Venters, 596 S.W.2d 721 (Ky. 1980)). Thus, in Peters we did not hesitate to prohibit a district judge from requiring, without reliance on any rule or case law, a witness to appear at a pretrial hearing for an interview by defense counsel. We noted that such an unprecedented action had “far-reaching implications regarding pretrial procedure in the Commonwealth.” 353 S.W.3d at 596. The same can be said here, indeed more emphatically.
Our criminal justice system is premised on rules and case law precedent that provide for the collection of evidence, the pretrial exchange of information, i.e., discovery, and the pretrial disposition of discrete issues such as suppression of illegally obtained evidence and judicial determinations regarding the competency of the defendant or a witness. This orderly pretrial process, absent a plea agreement, is followed by a trial in which the evidence is presented to a jury for its consideration of the case, including its assessment of witness credibility, and an eventual verdict based on the law as set forth by the court in the jury instructions. Self-defense immunity is undoubtedly an important right but allowing (or in this case, requiring) a defendant claiming self-defense to subpoena the victim5 and other witnesses for sworn testimony at a pretrial evidentiary hearing before a jury is ever seated has “far-reaching implications,” id given “the large volume of Kentucky cases for which immunity may be an issue,” Rodgers, 285 S.W.3d at 756. Acknowledging Kentucky's strong *723preference for jury trials on criminal matters, discussed infra; the minimal eviden-tiary standard applicable to the threshold immunity determination, ie., probable cause that the force used was unlawful; and the inherent perils of allowing routine mini-trials6 in advance of the jury trial of! assault and homicide cases where self-defense (and also defense of others or property) is raised, in Rodgers we rejected the proposition that a defendant has the right to an evidentiary hearing. While Rodgers did not state that a circuit judge'is’'precluded from ever sua sponte ordering a hearing, it did outline a procedure that must be followed before a hearing is ever legally appropriate. If judges ignore the Rodgers procedure and routinely convene pretrial evidentiary hearings in cases involving self-defense claims, the orderly administration of justice is threatened. In sum, all elements for issuance of a writ of the second class are present and we will proceed to address whether the Respondent is acting erroneously.
IV. Respondent is Acting Erroneously and the Writ Should Issue.
In Rodgers, this Court observed that “[t]he trial judge’s uncertainty regarding how to implement the immunity provision [in KRS 503.085 was] understandable because the statute offers little guidance.” 285 S.W.3d at 754. KRS 503.085 grants immunity for the use of force to protect one’s - self, another person or one’s property unless there is “probable cause that the force used was unlawful” under the specifically applicable statute. This statutory language led to our conclusion that a court faced with a self-defense immunity motion should apply a probable cause standard.
‘[PJrobable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily,' or even usefully, reduced to a neat set of legal rules.’ Just as judges consider the totality of the circumstances in determining whether probable cause exists to issue a search warrant, they must consider all of the circumstances then known to determine whether probable cause exists to conclude that a defendant’s use of force was unlawful. If such cause does' not exist, immunity must be granted and, conversely, if it does exist, the matter must proceed.
285 S.W.3d at 754-55, citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The more difficult issue was the procedure to be employed.
The sole remaining issue is how the trial courts should proceed in determining probable cause. The burden is on the Commonwealth to establish probable cause and it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record,, Although Rodgers advocates an evidentiary hearing at which the defendant may counter probable cause with proof ‘by a preponderance of the evidence’ that the force was justified, this concept finds no support in the statute. The legislature did not delineate an evidentiary hearing and the only standard of proof against which a defendant’s conduct must be measured is the aforementioned probable cause. We decline to create a hearing right that the statute does not recognize and note that there are several compelling reasons for our conclusion.
*724Id. at 755. The compelling reasons for not having an evidentiary hearing included concerns that a proceeding involving “the same witnesses and same proof to be adduced at the eventual trial, in essence a mini-trial” before the matter got to a jury was “fraught with potential for abuse.” Id. Also, a pretrial hearing could result in one element of the crime, the absence of a privilege to act in self-defense, essentially being decided in a bench trial. “[Wjhere probable cause exists in criminal matters the longstanding practice and policy has been to submit those matters to a jury,” and we found no rational basis to allow otherwise. Id.
Three years later, Hammond v. Commonwealth, 366 S.W.3d 425, 433 n.8 (Ky. 2012), reiterated that an immunity claim “could be defeated by the Commonwealth upon a showing of probable cause based upon ‘witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record’ because one claiming self-defense immunity from prosecution has no right to an evidentiary hearing on the issue.”7 Most recently, Commonwealth v. Lemons, 437 S.W.3d 708 (Ky. 2014), a case involving a conditional guilty plea, we held that the appellate standard of review following the trial court’s denial of a motion to dismiss on immunity grounds is whether there was “a substantial basis” for the trial court’s findings. Lemons contains a lengthy review by this Court of the witness statements and other written evidence of record considered by the trial court in denying immunity in a homicide prosecution arising from a fight outside a bar. The opinion highlights the nine pivotal findings made by the trial court in finding that there was probable cause to conclude the defendant’s use of force was unlawful. Id. at 709-13. Importantly, the case illustrates how evidence of record, including particularly conflicting witness statements and law enforcement reports, can be reviewed and assessed in determining probable cause.
The foregoing cases establish that a defendant claiming self-defense immunity has no right to an evidentiary hearing with subpoenaed witnesses, and that the determination of probable cause can, and should, be made by the trial court on the evidence of record. In Rodgers, we recognized the new immunity statute, KRS 503.085, created an important shield against prosecution but we also acknowledged the Commonwealth’s strong preference for jury trials in criminal matters, citing RCr 9.26, which provides that when a defendant waives a jury trial in writing, the Commonwealth and court must consent. Indeed, in Short v. Commonwealth, 519 S.W.2d 828, 833 (Ky. 1975), this Court *725quoted at length from Patton v. United, States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930), to emphasize the fundamental importance of the jury as the fact-finder in a criminal matter.
Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury tidal have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.
Our resolution of the implementation of KRS 503.085 immunity through a probable cause assessment by the trial court on the evidence of record respects and balances both the immunity shield and the sanctity of the jury trial. As noted in Rodgers, if the Commonwealth fails to meet its probable cause burden based on the evidence of record, the proper response of the trial court is to grant the defendant’s motion to dismiss the indictment. 285 S.W.3d at 754-55. Where there is probable cause to believe the force used by the defendant was unlawful, a jury hears the evidence, assesses the credibility of the witnesses and applies the law, including the law on self-defense, as presented in the jury instructions. Id. In the almost six years since Rodgers was rendered, this approach has clearly worked in the day-to-day practice of our trial courts, and our legislature, presumed to be aware of our rulings, has not amended the statute to provide otherwise.
Real Party in Interest Bennett (who initially sought simply to have the trial court consider an enhanced videotape of the incident) now contends that Rodgers allows a trial court to make the probable cause determination from evidence of record but does not require it to do so, i.e., while Bennett may not be entitled to demand an evidentiary hearing, the trial court can decide to conduct one if it wants to hear from witnesses. This reasoning is simply erroneous.
Rodgers unequivocally requires the trial court to consider the evidence of record in making the probable cause determination on a KRS 503.085 immunity motion. This is, in essence, the “first step” in the orderly administration of justice when self-defense immunity is raised before the circuit court. In outlining how the trial courts “should proceed,” Rodgers states “[t]he burden is on the Commonwealth to establish probable cause and it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.” 285 S.W.3d at 755. The “may” refers to the Commonwealth and how it goes about meeting its burden; plainly, this Court was not indicating that the trial court may or may not consider the evidence of record, opting instead to subpoena witnesses for a full-blown hearing. Indeed, Rodgers not only explicitly and emphatically rejects a defendant’s entitlement to an evidentiary hearing, but also plainly directs the circuit court to look at the evidence of record.
In this case, despite both the Commonwealth’s and Bennett’s repeated requests, in writing and orally, that the Respondent *726simply review' the videotapes8 and discovery of record as outlined in Rodgers, she never did so. Instead, she stated that she had to actually hear from the witnesses, opined that Bennett was entitled to make his immunity case at such a hearing, and asked defense counsel if he would be subpoenaing the witnesses. Respondent appears to have been unaware that this Court has unanimously ruled that a defendant claiming self-defense immunity is not entitled to an evidentiary hearing with live witnesses. Moreover, she may have mistakenly believed that an evidentiary hearing was necessary as with many pretrial motions where the trial court must rule based on a preponderance of the evidence. See, e.g., Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998) (consent to search property a question of fact to be determined by a preponderance of the evidence following evidentiary hearing); Grady v. Commonwealth, 325 S.W.3d 333, 349 (Ky. 2010) (voluntariness of confession to be determined by preponderance of evidence after evidentiary hearing); Dunlap v. Commonwealth, 435 S.W.3d 537, 555 (Ky. 2014) (defendant’s competency to stand trial to be determined by preponderance of evidence following evidentiary hearing); Hammond, 366 S.W.3d at 425 (forfeiture by wrongdoing exception to hearsay rule requires evidentiary hearing and determination by preponderance of the evidence).
In contrast to these pretrial motions, the self-defense immunity determination is simply a probable cause determination and to the extent a hearing is necessary, it is akin to the preliminary hearing conducted under RCr 3.14 where the Commonwealth may meet its burden “in whole or in part” with hearsay evidence, usually testimony from a police officer. The Commonwealth’s witnesses, whoever they may be, are certainly subject to cross-examination by the defendant, and he may call his own witnesses but given the concerns outlined by this Court in Rodgers, the trial court' should proceed judiciously in such matters to avoid a mini-trial of the criminal charges prior to the jury trial. A probable cause hearing is qualitatively and quantitatively different from an evidentia-ry hearing that culminates in a judicial ruling based on the preponderance of the evidence.
Respondent’s disregard of the probable cause review process outlined in Rodgers is clear error, providing a strong basis for issuance of the requested writ, given the presence of the writ factors discussed supra.9 The Commonwealth has established that disregard of this , Court’s precedent regarding the proper process for determining probable cause as to self-defense immunity would result in a “substantial miscarriage of justice” in this case .and other future cases where it would disrupt the balance this Court struck in Rodgers and readily become a means of bypassing the criminal rules regarding pretrial discovery. Bender, 343 S.W.2d at 801. Like the single erroneous inmate transport order in Engle, 302 S.W.3d 60, which standing alone was not of enormous conse: quence, Respondent’s, order may seem *727clearly erroneous but limited in effect, yet as in Engle, the repetition of this error has great potential to undermine “the interest of orderly judicial administration.” Bender, 343 S.W.2d at 801. Hence, a writ is justified and should issue.
CONCLUSION
Without conducting a review of the evidence of record as outlined in Rodgers, the Respondent scheduled an evidentiary hearing with the intent of having the victim(s) and witnesses testify under oath about the incidents which resulted in the first-degree assault and wanton endangerment charges. This action was clearly erroneous because when a judge is faced with determining whether there is probable cause that a defendant’s use of force in self-defense was unlawful she must first review the record, and in those cases where the determination simply cannot be made on the record any ensuing hearing is not a full-blown evidentiary hearing but a probable cause hearing as outlined in RCr 3.14. Disregard of the first step in this' probable cause process in this case and. potentially many other cases involving claims of defense of self, others or one’s property will interfere with the orderly administration of justice and justifies a writ in this matter. For these reasons, we reverse the Court of Appeals and remand this matter to them for issuance of a writ.
Minton, C.J.; Barber, Keller, and Noble, JJ., concur. Keller, J., concurs by separate opinion in which Barber and Noble, JJ., join. Venters, J., dissents by separate opinion in which Cunningham, J., joins.
. Although the trial court did not make a specific finding that Bennett was the only person who had a gun, the Commonwealth has repeatedly stated that the discovery reflects that and Bennett has not contested that representation.
. It is unclear how the firing of a gun into a victim’s mouth is not the use of deadly physical force.
. There apparently was no written order setting aside the senior judge's order but the Respondent’s oral rulings made clear her intent and an evidentiary hearing, for purposes of hearing live testimony from the victim[s] and witnesses, was scheduled.
. Kentucky Rule of Criminal Procedure (RCr) 3.14(2) provides that at the preliminary hear- ■ ing “[t]he defendant may cross-examine witnesses against him or .her and may introduce evidence in his or her own behalf.',’ However, that probable cause hearing is not intended to be a discovery device, King v. Venters, 596 S.W.2d at 721, and has never been construed as requiring the trial witnesses, including the victims, to give testimony at the defendant’s behest. Indeed, the rule specifically allows the probable cause finding to be "based upon hearsay evidence in whole or in part.” CR 3.14(2).
. The dissent conveniently ignores the fact 'that the defendant in this case intended to call the victim to testify prior to the trial.
. This practice would certainly expose defense attorneys who do not call victims to testify to some level of scrutiny, including ineffective assistance of counsel claims for failure to obtain discovery from the victim’s own mouth via sworn testimony prior to trial.
. Hammond, did not involve self-defense but rather the admission of the hearsay statements of a murdered witness pursuant to the doctrine of forfeiture by wrongdoing. Kentucky Rule of Evidence (KRE) 804(b)(5) provides that the hearsay rule does not apply to “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Earlier, in Parker v. Commonwealth, 291 S.W.3d 647, 689 (Ky. 2009), this Court had held that when forfeiture by wrongdoing is raised "[the] trial court must hold an evidentiary hearing before ruling on the admissibility of the proposed hearsay.” Parker then outlined who has the burden of proof, how the burden shifts and the level of proof required; preponderance of the evidence. The Hammond conviction was reversed, in part, for failure to hold the required evidentiary hearing under KRE 804(b)(5) and that evidence-related motion was contrasted with an immunity motion under Rodgers, where the burden is merely probable cause and there is no right to an evidentiary hearing. A KRE 804(b)(5) hearing is yet another example of a recognized pretrial evidentiary hearing which addresses issues that are not elements of the crime to be tried.
. The dissent' grossly understates the character of the evidence of record available to the trial court for a probable cause determination. The trial court was not confined to reviewing "documents and looking at pictures.” In reality (as explained repeatedly in this opinion), there was video footage capturing the attack-footage that both parties implored the trial court to review.
. Strangely, the dissent insists that the Commonwealth "did not complain” about the trial court’s erroneous decision to compel an evi-dentiary hearing. To the contrary — the Commonwealth sought a writ. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284365/ | KELLER, J.
CONCURRING:
I concur with the result reached by the majority; however, I write separately to clarify what procedure I believe trial courts should follow going forward. As noted in the majority opinion, the Commonwealth bears the burden of showing that a defendant’s use of force was not justified. To meet that burden, the Commonwealth may direct “the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.” Rodgers, 285 S.W.3d at 755. I agree with the majority that the trial court’s first step should be to consider the evidence of- record. However, I also agree with Justice Venters that Rodgers does not . “categori-r cally bar a trial judge from -conducting an evidentiary hearing,” a hearing that should be the last step, and a step that should not be taken lightly. ■
As the majority states, the Commonwealth’s burden is to establish that there is probable cause to believe that the force used was not justified. This is not a significant evidentiary burden, arid it can be met by reference to the evidence of record. Thus, much like the procedural aspects of a Kentucky - Rule of Criminal Procedure (RCr) 11.42 motion, the trial court should first look to the record before undertaking to conduct any hearing. If, as in an RCr 11.42 proceeding, the court determines that the record is sufficient to make a determination, the court should rule on the defendant’s entitlement to immunity based on that record. If the record is not sufficient, the court may then conduct a hearing. However, in doing so, the court must keep firmly in mind that it is -the Commonwealth that bears the burden of -proof; Thus, the court should not, as it appears the court did here, sua sponte determine that a hearing is necessary prior to reviewing the record. In other words, if neither party requests a hearing, the court must decide the issue' of immunity on the record before it. Furthermore, if it conducts a hearing,' the court must also be mindful *728that the purpose of a hearing is simply to establish probable cause.
Barber and Noble, JJ., join. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284367/ | *741
OPINION
JONES, JUDGE:
This is a child custody action arising out Fayette Family Court. The family court awarded permanent sole custody to the Appellee, R.J.G. (“Father”). The Appellant, S.E.A. (“Mother”), argues that the trial court erred because it did not conduct an evidentiary hearing and based its factual findings almost exclusively on a written report filed by the guardian ad litem (“GAL”) whom Mother was never allowed to question.
Upon review, we conclude that the trial court should have conducted an evidentia-ry hearing at which both parties were provided an opportunity to present testimony. Moreover, the trial court’s reliance on the GAL’s report was improper as explained by our Supreme Court in Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014). Accordingly, we VACATE the trial court’s orders and REMAND with instructions to conduct a full evidentiary hearing and make findings pursuant to KRS1 403.270(2) based on the evidence presented.
I.Factual and Procedural Background
This consolidated appeal arises out of two separate, but related, actions concerning the parties’ minor child, A.A. While the procedural history of this matter is somewhat difficult to tease apart, the facts most relevant to the issues at hand are relatively straightforward.
The first matter, a Dependency, Neglect, and Abuse action (“DNA”), was commenced by the Cabinet for Health and Family Services on November 7, 2013. At this time, the child was living with Mother.2 Father, who resided in Connecticut, came to Lexington, Kentucky, to take part in the action. On November 13, 2013, the family court conducted a temporary removal hearing. Prior to the hearing, the family court appointed a GAL to represent child. After the hearing, the family court determined that the child qualified as a dependent, abused or neglected child and must temporarily be removed from Mother’s custody.
Shortly after the Cabinet filed the DNA Action, Father commenced a separate action seeking a declaration of paternity, permanent sole custody, and timesharing (“Custody Action”). The trial court conducted a preliminary custody hearing on November 15, 2013, at which time Mother agreed to stipulate that the child was a dependent child for the purposes of temporary custody.
On December 20, 2013, the family court conducted a full disposition hearing in the DNA Action.3 The hearing lasted three hours and the court allowed each party to present their respective cases.4 Thereafter, the family court determined that the child should remain in Father’s temporary custody with Father being allowed to return to Connecticut with the child. The trial court further stated that the DNA action would not be closed and the Cabinet was to develop a plan for Mother to complete. The trial court also ordered the GAL to file an additional report with the *742Court. The court also ordered that the Mother’s timesharing would be determined in the Custody Action.
The GAL filed her report on January 29, 2014. On January 30, 2014, the family-court entered an'order of temporary removal from Mother and granted Father sole custody of child. In so doing, the family court noted that no-further orders would be entered in the DNA action and that all subsequent orders would be entered in the Custody Action: It then appointed the GAL to represent the child in the Custody Action.
For the next several months, the parties engaged in discovery in anticipation of a final custody hearing on July 11, 2014. Prior to that date, Mother relocated to Connecticut and Father commenced a custody action there as well.5 After having been advised of the Connecticut action, the trial court canceled the July 11, 2014 hearing. However, on July 25, 2014, Father filed a motion for permanent custody in both the Custody Action and DNA Action. Mother filed timely responses to both actions, arguing that an award of custody would be inappropriate because no evidence had been taken and the court could not consider the statutory criteria under KRS 403:207(2), or make the required Findings of Fact and Conclusions of Law.
Without conducting an evidentiary hearing or receiving any deposition testimony, the family court- granted Father’s motion and entered an order in the DNA action only. Mother -timely filed a- Motion to Vacate the July 31, 2014 Order, or in the Alternative, to Enter more Specific Findings. The court scheduled a review hearing on August 14, 2014, and required the GAL to file another report on August 25, 2014. The report was filed in the Custody Action. On September 17, 2014, the family court entered its Findings of Fact, Conclusions of Law and Order in the Custody Action. No final custody hearing preceded entry of this order and the findings are based almost exclusively on the GAL’s reports.
This appeal followed.
' II. STANDARD OF REVIEW
Our appellate review of a custody matter requires a two step analysis. First, we review a trial court’s findings of fact under an abuse of discretion standard, only disturbing such findings when they are clearly erroneous. A judgment is not “clearly erroneous” if it is “supported by substantial evidence.” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Id. Second, we examine the trial court’s application of the law de novo. Heltsley v. Frogge, 350 S.W.3d 807, 808 (Ky. App. 2011).
At all times, we must keep in mind that “[t]he test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.”, Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008) (quoting B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005)).
III. Analysis
The role of a GAL and a friend of the court are quite different. A GAL *743functions as an attorney advocating for a party and a friend of the court advises the court. In Morgan, the Kentucky Supreme Court clarified the roles of each in relation to custody proceedings:
[T]he guardian ad litem should not be confused with the de facto friend of the court. Whereas the friend of the court investigates, reports, and makes custodial recommendations on behalf of the court, and is subject to cross-examination, the guardian ad litem is a lawyer for the child, counseling the child and representing him or her in the course of proceedings by, among other things, engaging in discovery, in motion practice, and in presentation of the case at the final hearing. The guardian ad litem neither testifies (by filing a report or otherwise) nor is subject to cross-examination.
Morgan, 441 S.W.3d at 119. Additionally, the Court concluded, however, that if a trial court relies on a GAL report, due process demands that the other parties must be afforded an opportunity to question/cross-examine the GAL. Id.
The family court canceled the previously scheduled hearing because Mother indicated that she would not be present at the hearing. However, after father filed his motion for permanent custody, the trial court ordered the GAL to file another report. Before even allowing time for a response, the trial court granted Father permanent custody. Moreover, it is clear from the family court’s September 2014 findings of fact that the court relied almost exclusively on the GAL’s various reports. At no time throughout any of the proceedings was Mother provided with an opportunity to cross-examine the GAL-
Even if Mother was not going to appear in person at the custody hearing, the trial court had an obligation to conduct a hearing. Even in a situation in which a party is in default, no custody determination can be made absent an evidentiary hearing to determine the child’s best interests. See Crews v. Shofner, 425 S.W.3d 906 (Ky. App. 2014).
Father references the “three hour evi-dentiary hearing” held in the DNA action on December 20, 2013. We do.not believe this hearing can serve as the basis for the trial court’s later findings. First, this hearing pre-dated two of the GAL reports the trial court relied upon in its findings. It, also pre-dated a report filed .by the Cabinet-in February 2014 and a May 2014 psychiatric evaluation of Mother, both of which' the family court, referenced in its order. Mother’s due process rights to cross-examine the GAL as part of a permanent custody determination cannot be satisfied based on a temporary custody hearing some six months prior.
Having determined that a full evidentia-ry hearing is a necessary pre-requisite to the entry of a permanent custody order we conclude that the court abused its discretion. While it may very well be determined on remand that the child’s best interest and’the statutory factors compel a ruling in Father’s favor, such a determination cannot be made absent an evidentiary hearing which comports with due process.
IV. Conclusion
Based on the forgoing, the family court’s orders awarding Father permanent custody are VACATED and this action REMANDED to the trial court for- further proceedings consistent with this Opinion.
ALL CONCUR.
. Kentucky Revised Statutes.
. The Dependency, Neglect, and Abuse action was filed based on concerns about Child’s truancy, but the Cabinet’s investigation revealed evidence of an unsuitable living environment as well as serious concerns about the Mother’s mental health.
. The GAL filed a report with the trial court prior to the hearing.
. However this hearing was held for the purpose of temporary, not permanent custody.
. The record contains no additional information concerning the status of the Connecticut action. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284368/ | *754ORDER
Per Curiam:
Chañe Nutt appeals from. a judgment entered upon a jury verdict finding him guilty of three counts of endangering the welfare of a child, one count of forcible sodomy, one count of statutory sodomy, one count of third degree assault, and one count of tampering with a witness. We affirm. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284369/ | Joseph M. Ellis, Judge
George Hall appeals from the Public Service Commission’s denial of his motion to intervene in a case in which Missouri-American Water Company (“MAWC”) has applied for a certificate of convenience and necessity to provide sewer service to a portion of Benton County, Missouri. For the following reasons, the appeal is- dismissed.
*763On September 8, 2014, MAWC filed its application with the Commission seeking a certificate of convenience and necessity to provide sewer service to a portion of Benton County, Missouri.1 In its application, MAWC stated that it planned to provide such service by purchasing an existing wastewater collection and treatment system owned by Benton County Sewer District # 1 (“District # 1”). After voters of that sewer district had voted to dissolve it, a Federal District Court had enjoined the dissolution of District # 1 and appointed a receiver to control its assets and operations and to explore the potential sale of the sewer system. MAWC had subsequently executed an asset purchase agreement to purchase District # l’s assets, and that agreement had been approved by the Federal District Court. MAWC asked the Commission for permission “to install, own, acquire, construct, operate, manage and maintain a sewer system for the public” in the area served by District # 1 and, specifically, for permission to acquire the assets of District # 1 identified in the asset purchase agreement.
The deadline for applying to intervene in the matter was set at October 1, 2014. The Missouri Department of Natural Resources filed a timely application to intervene and was granted status as a party. The Missouri Office of the Public Counsel is also party to the matter pursuant to § 386.710(2).
On November 16,2014, Appellant, acting pro se, filed a motion for leave to intervene out of time or, in the alternative, for leave to file an amicus curiae brief. After considering multiple responses in opposition to Appellant’s intervention and affording Appellant an opportunity to speak at a local public meeting, the Commission denied Appellant’s motion to intervene but granted him permission to file an amicus curiae brief. In denying leave to intervene, the Commission found that Appellant had good cause for not timely filing his motion to intervene but that Appellant’s interests were no different from those of the general public and, further, that he had faded to demonstrate that his interests would be adversely affected by any decision the Commission might render in the matter. It further found that the public interest would not be served by allowing him to intervene.
Appellant filed a motion asking the Commission to reconsider its ruling: In response, the Commission issued a further order acknowledging that' Appellant’s interest in operating his own, on-site residential septic system might not be shared by the general public but noted that Appellant’s interest in operating such a system could not be affected by any final order of the Commission rélated to MAWC’s application. The Commission stated that its authority in the case was limited to determining whéther MAWC should be authorized to purchase and operate a specific sewer system and that it had no authority related to Appellant’s ability to use a private septic system on his property. It concluded that its order denying his request to intervene out of time was correctly decided and denied Appellant’s motion for reconsideration.
On appeal, again acting pro se, Appellant claims that the Commission abused its discretion in denying his-motion to intervene because the record reflects that his interests would be affected by any decision reached by the Commission. He argues that the construction of District # l’s sew*764er system was illegally funded by loans from the United States Department of Agriculture (“USDA”) rather than revenue bonds as approved by the voters. He contends that District # l’s board of trustees had no authority to incur such debt absent voter approval. He maintains that the terms of the purchase agreement executed by MAWC improperly provide that MAWC will make payments on the USDA loans and that any proceeds from the sale of District # 1 should, instead, be divided between the residents of the district.
Before we can address the merits of Appellant’s appeal, we must consider MAWC’s motion to dismiss the appeal, which was taken with the appeal. MAWC contends that the Commission’s order concerns the denial of a request for permissive intervention and that the denial of such a request is not a final and appealable order. An appellate court can only entertain appeals from final orders or decisions of the Commission. AG Processing, Inc. v. KCP & L Greater Mo. Operations Co., 432 S.W.Bd 226, 230 (Mo. App. W.D. 2014) (citing MO. CONST. art V, § 18). An order denying permissive intervention is not a final order and is, therefore, not reviewable on interlocutory appeal. In re Adoption of C.T.P., 452 S.W.3d 705, 712 n. 14 (Mo. App. W.D. 2014) (internal quotation omitted); see also In re M.M.P., 10 S.W.3d 195, 197 (Mo. App. W.D. 2000); In re C.G.L., 28 S.W.3d 502, 504 (Mo. App. S.D. 2000).
In his motion, Appellant asked the Commission to exercise its discretion under 4-CSR 240-2.075 to allow him to intervene in the action. The Commission’s standard for intervention is set forth in 4 CSR 240-2.075(3), which states:
The commission may grant a motion to intervene or add new member(s) if—
(A) The proposed intervenor or new member(s) has an interest which is different from that of the general public and which may be adversely affected by a final order arising from the case; or
(B) Granting the proposed intervention would serve the public interest.
Any motion to intervene in an action before the Commission must be filed within thirty days after the Commission issues its order giving notice of the case, 1* CSR 21*0-2.075(1), however, the Commission may grant an application to intervene filed out of time upon a showing of good cause. I CSR 21*0-2.075(10).
MAWC argues that, because 4 CSR 240-2.075(3) provides that the Commission “may” permit intervention under the circumstances set forth, all intervention in actions before the Commission is permissive in nature and, therefore, the Commission’s denial of any motion to intervene is never appealable. We need not address this argument, however, because, even assuming arguendo the existence of intervention as a matter of right in actions before the Commission and an ability to appeal the denial of such intervention, Appellant’s motion clearly failed to plead any claim to intervention as a matter of right and any relief granted on his motion would necessarily have to have been permissive in nature.
In the absence of a statute or regulation specifically granting a party a right to intervene, “intervention of right exists when one seeking to intervene claims an interest relating to the transaction that is the subject of the action that is ■not adequately represented by existing parties and the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.” In re C.G.L., 28 S.W.3d at 504. The proposed intervenor bears the burden of establishing all of the elements required *765for intervention as a matter of right. Prentzler v. Carnahan, 366 S.W.3d 557, 561 (Mo. App. W.D. 2012).
“To intervene in an action as a matter of right, the intervenor’s interest in the action must be a direct and immediate claim to, and have its origin in, the demand made by one of the parties to the original action.” In re Adoption of C.T.P., 452 S.W.3d at 715 (internal quotations omitted). “An interest necessary for intervention as a matter of right does not include a mere, consequential, remote or conjectural possibility of being affected as a result of the action.” Id. at 714-15 (internal quotations omitted). “It must be such an immediate and direct claim upon the very subject matter of the action that the would-be intervenor will either gain or lose by the direct operation of the judgment that may be rendered therein. When a party claims intervention as a matter of right, they are asserting that they may be legally bound or prejudiced by any judgment entered in the case.” Myers v. City of Springfield, 445 S.W.3d 608, 611 (Mo. App. S.D. 2014) (internal quotation and citation omitted).
As noted supra, in the case at bar, MAWC merely requested a certificate of convenience and necessity allowing it to provide sewer service to a portion of Benton County, Missouri. MAWC asked the Commission for permission “to install, own, acquire, construct, operate, manage and maintain a sewer system for the public” in the area served by District # 1 and, specifically, for permission to acquire certain assets of District # 1 identified in the asset purchase agreement.
Appellant’s motion does not establish that the granting or denial of such a certificate of convenience and necessity to MAWC would affect him in any way. WTiile he claims that his desire to use a private septic system differentiates his interests from the members of the general public, nothing in his motion or the record reflects that any action taken by the Commission in this matter will impact upon his ability to use a private septic system. As noted by the Commission:
The Commission’s authority in this case is limited to determining whether [MAWC] should be authorized to purchase and operate a particular sewer system. The Commission has no authority to compel Mr. Hall to become a customer of a sewer system operated by [MAWC]. Nor does the Commission have authority to order any other person or governmental body to grant him authority to operate his own sewer system. Thus, Mr. Hall’s interest in operating his own on-site residential septic system cannot be affected by the Commission’s order regarding [MAWC] ’s application and does not provide a basis for his intervention in this case.
As to his remaining claims of interest, Appellant apparently wants the Commission to determine the validity and legal effect of the vote to dissolve District # 1 and the propriety of a loan agreement between District # 1 and the USDA, neither of whom are parties to the action before the Commission. The sole issue for the Commission to decide in this matter, however, is whether MAWC should be given permission to acquire certain assets and to operate a sewer system in the area formerly served by District # 1. As noted by the Commission, Appellant’s “concerns are not relevant to the application before the Commission in that the Commission has no authority to determine the propriety of the dissolution of [District # 1], nor can it determine whether a loan made to [District # 1] was fraudulent or whether it should be repaid by [District # 1] with the proceeds of the sale of its assets to [MAWC].” The Commission is not the proper body to address the issues raised *766by Appellant, and any decision by the Commission related to MAWC’s application for a certificate of convenience and necessity will have no practical effect on Appellant’s ability to protect his interests before the appropriate judicial body. Intervention may not be used by strangers to a pending action as “a vehicle by means of which such strangers may urge claims or contentions which have a proper and available forum elsewhere.” State ex rel. Farmer’s Mut. Auto. Ins. Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318, 323 (1954).
Since Appellant’s motion did not sufficiently allege a claim for intervention as a matter of right, we are left to conclude that only permissive intervention was sought. In re M.M.P., 10 S.W.3d at 198. An order denying a motion requesting permissive intervention is not final and ap-pealable. Id. at 198-99; In re C.G.L., 28 S.W.3d at 504. Accordingly, Appellant’s appeal must be dismissed.2
All concur.
. MAWC is a "water corporation,” a "sewér corporation,” and a "public utility” as those terms are defined in § 386.020 and is/therefore, subject to the supervision of the Commission.
. Having dismissed Appellant’s appeal on this basis, we need not address the PSC’s separate motion to dismiss the appeal on different grounds. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284371/ | ORDER
Per curiam:
S.L.C. appeals an adjudication judgment finding that her daughter should be subject to the jurisdiction of the court due to allegations that the child was without the proper care, custody, and support necessary for her well-being. Finding no error, we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284373/ | ORDER
PER CURIAM
David J. Albrecht (Husband) appeals from the judgment denying Husband’s motion to set aside a default judgment dissolving his marriage to Amy L. Albrecht (Wife), distributing property, ordering child support, awarding Wife sole physical custody of the parties’ child, and awarding Wife maintenance. We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential or precedential purpose. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284374/ | ORDER
PER CURIAM
American Multi-Cinema, Inc., (AMC) appeals from the decision and order of the State Tax Commission of Missouri (the Commission) setting aside decisions of the St. Louis County Board of Equalization sustaining the assessments made by Jake Zimmerman, Assessor, St. Louis County, Missouri, related to tangible personal property owned by AMC. 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. *794The decision and order of the Commission 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 precedential purpose. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284375/ | ORDER
PER CURIAM
Harley J. Smith appeals the 'motion court’s denial of his Rule 24.035 motion for post-conviction relief. The motion court’s findings of fact and conclusions of law are not clearly erroneous. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, setting forth the reasons for this order. We affirm. Rule 84.16(b)(2) & (5). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284377/ | OPINION ON MOTION TO SET SUPERSEDEAS AMOUNT
Opinion by
Chief Justice Wright
Before the Court is the motion of appel-lees K-Town Management, LLC d/b/a KTN US, IP Investments, Ltd., Odes H. Kim, Ji Hong Park, and Chul Seung Park to increase the amount appellants must post to suspend execution of the trial court’s judgment to include the attorney’s fees awarded by the trial court. See Tex. R. App. P. 24.4 (party may seek review of trial court’s ruling on amount of bond). We deny the motion and affirm the trial court’s ruling.
Appellants sued appellees for business disparagement, slander of title, tortious interference, and libel arising from statements published in appellees’ newspaper. Appellees moved to dismiss under the Texas Citizens Participation Act. See Tex. Civ. PRAC. & Rem. Code Ann. §§ 27.001-27.011 (West 2015) (“TCPA”). The trial court granted the motion and awarded appellees $83,683.87 for reasonable and necessary attorney’s fees. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009. The trial court’s order also includes amounts for attorney’s fees in the event of appeals to this Court and the Texas Supreme Court.
Appellants filed a cash deposit of $2,056 in lieu of a supersedeas bond. This deposit covers only costs of court. The trial court denied appellees’ motion to raise the amount to include the attorney’s fees awarded under the TCPA. We review a trial court’s ruling on the amount of a supersedeas bond for abuse of discretion. G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex.App.-Dallas 2006, no pet.). But to the extent it turns on a question of law, we review the amount of a bond de novo. Imagine Automotive Grp., Inc. v. Boardwalk Motor Cars, LLC, 356 S.W.3d 716, 718 (Tex.App.-Dallas 2011, no pet.).
When a judgment is for money, the amount of the security must equal the sum of: (1) the amount of compensatory damages awarded in the judgment; (2) interest for the estimated duration of the appeal; and (3) costs awarded in the judgment. Tex. Civ. Prac. & Rem. Code Ann. § 52.006(a) (West 2015); Tex. R. App. P. 24.2(a)(1). The Texas Supreme Court has held that “compensatory damages” under section 52.006 do not include attorney’s fees. In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168 (Tex.2013); In re Corral-Lerma, 451 S.W.3d 385 (Tex.2015) (per curiam). Appellees contend, however, that the TCPA provides a unique remedy of immediate redress and is to be construed liberally, so that the holdings of Nolle Plastics and Corral-Lerma do not apply to attorney’s fees awarded under the TCPA.
Under section 27.009 of the TCPA, if a trial court orders dismissal of an action, it “shall” award attorney’s fees to the moving party. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1); Cruz v. Van Sickle, 452 S.W.3d 503, 522 (Tex.App.-Dallas 2014, pet. filed) (rejecting argument that attorney’s fees award under TCPA is discretionary). Section 27.009 provides:
§ 27.009. Damages and Costs
*842(a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:
(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and
(2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.
(b) If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney’s fees to the responding party. ,
In Nalle Plastics, the supreme court interpreted the term “compensatory damages” used in section 52.006 of the civil ■practice and remedies code, which governs the amount of security to supersede a judgment. The court explained that the enactment of Chapter 52 of the code was “part of House Bill 4, a 2003 comprehensive tort reform measure.” Nolle Plastics, 406 S.W.3d at 169. The legislature created a “new balance” between the judgment creditor’s right in the judgment and,the judgment debtor’s right to meaningful appellate review. Id. at 170 (citing Elaine A. Carlson, Reshuffling the Deck: Enforcing and Superseding Civil Judgments on Appeal after House Bill ⅛, 46 S. Tex L.Rev. 1035, 1038 (2005)). After a review of case law addressing the difference between attorney’s fees and damages, the court concluded:
These cases demonstrate the difference between compensation owed for an underlying harm and fees that may be awarded for counsel’s services.... While attorney’s fees for the prosecution or defense of a claim may be compensatory in that they help make a claimant whole, they are not, and have never been, damages. Not every amount, even if compensatory, can be considered damages. Like attorney’s fees, court costs make a claimant whole, as does pre-judgment interest. Yet it is clear that neither costs nor interest qualify as compensatory damages. Otherwise, there would be no need to list those amounts separately in the supersedeas bond statute. See Tex Civ. Prac. & Rem. Code § 52.006(a) (security must be “equal [to] the sum of ... the amount of compensatory damages awarded in the judgments ... interest for the estimated duration of the appeal[,] and .'.. costs awarded in the. judgment”); see also Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.2000) (noting that the Court gives effect to all words of a statute and does not treat any language as surplusage).
Id. at 173-74.
The question presented in Corral-Ler-ma was similar. See Corral-Lerma, 451 S.W.3d at 386. Corral-Lerma sued Border Demolition and Environmental, Inc. under the Texas Theft Liability Act, and Border Demolition counterclaimed for attorney’s fees under the same Act.. Id. (citing Tex Crv. PRac. & Rem. Code Ann. § 134.005(b)). The trial court granted summary judgment for Border Demolition and awarded $78,001 in attorney’s fees through trial as well as conditional fees for appeal. Id. Although the trial court concluded that attorney’s fees were not included in the security amount, the court of appeals disagreed, explaining that under the Theft Liability Act, an attorney’s fees *843award “compensates or indemnifies a defendant for the legal expense he incurs in successfully defending a claim made against him under the Act.” See id. (quoting Corral-Lerma v. Border Demolition & Envtl, Inc., 420 S.W.3d 59, 64-65 (Tex. App.-El Paso 2012, order)).
Relying on Nalle Plastics, the supreme court granted mandamus relief and directed the court of appeals to withdraw its order. Id. at 388. Border Demolition sought to distinguish its award of attorney’s fees from the attorney’s fees awarded in Nalle Plastics, arguing that a prevailing defendant under the Texas Theft Liability Act must be awarded its attorney’s fees even without an award of compensatory damages. See id..at 386 (citing damages provision of Texas Theft Liability Act, Tex. Civ. Prac. & Rem. Code Ann. § 134.005(b)). The supreme court rejected this argument, explaining that “[t]his statutory distinction does not undermine the inherent differences between compensatory damages and attorney’s fees we acknowledged in Nalle Plastics. On the contrary, we observed that ‘[w]hile attorney’s fees for the prosecution or defense of a claim may be compensatory in that they help make a claimant whole, they are not, and have never been, damages.’ ” Id. at 386-87 (quoting Nalle Plastics, 406 S.W.3d at 173).
The court also rejected Border Demolition’s argument that if attorney’s fees were, not included in the security, then there would be “essentially no -security” during appeal. See id. at 387. The court noted that any other litigant who receives a compensatory damages award that is significantly smaller than an accompanying - attorney’s fees award is in the same position. Id. Because Chapter 52 reflects the legislature’s intent to create a “new balance” between judgment debtors and creditors, it is the court’s duty to “enforce the statute as we find it.” Id. In sum, the court concluded that attorney’s fees awarded under the Texas Theft Liability Act are not “compensatory damages” for “purposes of calculating the security amount necessary to supersede a judgment during appeal.” Id. at 386.
In addition to following Nalle Plastics in breach of contract cases, this Court has considered whether attorney’s fees awarded-under the deceptive trade practices act for a groundless claim brought in bad faith are “compensatory damages” that must be superseded under section 52.006. See Lopez v. RS Clark & Assocs., Inc., 396 S.W.3d 656, 657 (Tex.App. — Dallas 2013, no pet.) (on motion to review order requiring additional security to supersede judg-. ment).. In Lopez, the trial court specifically ruled that the attorney’s fees awarded in the judgment were compensatory damages “to compensate [appellee] for its actual economic or pecuniary loss as a result of the bad faith maintenance of this groundless suit.” Id. Relying on our opinion in Imagine Automotive, we reversed the trial court’s order including the fees in the amount to be superseded, explaining that attorney’s fees are not compensatory damages. Id.
We conclude that the analysis under Nalle Plastics and Corralr-Lerma applies to attorney’s fees awarded under the TCPA. Although title of the TCPA section addressing attorney’s fees (quoted above) is entitled “Damages and Costs,” Tex. Civ. PRAC. & Rem. -Code Ann. § 27.009 (emphasis added), the heading of a section “does not limit or expand the meaning of a statute,” as appellees recognize. Tex. Gov’t Code Ann. § 311.024 (West 2013). But1 appellees argue the substance of the *844provision nonetheless establishes that attorney’s fees awarded under the TCPA are not “a form of ancillary relief,” but are awarded “as compensatory damages for the injury that the judicial system immediately caused to the defendant because the system was abused by the plaintiffs.” They do not point to specific language in section 27.009 to support their interpretation, relying instead on the general purposes of the TCPA.
The supreme -court has explained that the TCPA “endorses a summary process” to accomplish its purpose “to identify and summarily dispose of lawsuits designed only to chill First Amendment rights.” In re Lipsky, 460 S.W.3d 579, 589 (Tex.2015). We have recently noted that “[t]he stated purpose of the [TCPA] is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and Otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious law-' suits for demonstrable injury.” ExxonMo-bil Pipeline Co. v. Coleman, 464 S.W.3d 841, 844 (Tex.App.-Dallas 2015, no pet. h.).
There is nothing in the language of section 27.009 to indicate that the attorney’s fees provided constitute “compensation owed for an underlying harm” in accordance with the purpose of the TCPA rather than “fees that may be awarded for counsel’s services” in defending a claim. See Nalle Plastics, 406 S.W.3d at 173-74. As we concluded in Lopez, even attorney’s fees incurred in defending a bad faith and groundless suit -are not “compensatory damages.” See Lopez, 396 S.W.3d at 657. Without statutory language to support a departure from the analysis of Nalle Plastics and Cormlr-Lerma, we deny appellees’ motion to increase the amount to. supersede the trial court’s judgment to include attorney’s fees.
We affirm the trial court’s order. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284378/ | . OPINION OF THE COURT BY
JUSTICE ABRAMSON
Jared Futrell and Kayla Lord appeal as of right from Judgments of the Wayne Circuit Court convicting each of them of wanton murder and sentencing each, in accord with the jury’s recommendation, to a maximum term of twenty-five years in prison. Lord and Futrell (Appellants) were found guilty of having participated, as principal or as accomplice, in the wanton killing of Lord’s seventeen-month-old son. Appellants were tried jointly, and because their cases thus overlap to a large extent, both factually and procédurally, we have consolidated the two appeals for consideration in this single Opinion.
Also overlapping are the issues raised, because Appellants make the identical allegations of error. Each contends that he or she is entitled to be acquitted because the Commonwealth failed to prove his or her guilt. If that relief is denied, each further *265contends that for a number of reasons the case should be retried. The trial court erred, Appellants maintain: (1) by failing to excuse two potential jurors for cause; (2) by allotting them too few peremptory juror challenges; (3) by recognizing a child-abuse pediatrician as an expert witness; (4) by allowing that witness to'opine that the injuries suffered by the child, in this case were not the result of an accident; (5) by admitting evidence of both parties’, prior bad acts; (6) by admitting into, evidence gruesome autopsy photographs; (7) by denying Appellants a full opportunity, to cross-examine one of the Commonwealth’s witnesses; (8) by giving a wanton murder jury instruction that incorporated unproved theories of the .crime; (9) by giving a combination “principal or accomplice” jury instruction; and (10) by refusing to give jury instructions on.the lesser included offenses of first-degree manslaughter, and reckless homicide. We agree with Appellants that in both cases the trial court abused its discretion, by refusing to remove for cause two unqualified prospective jurors and that under Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky. 2009), it is necessary to reverse and remand for additional proceedings. Other issues will be addressed only to the extent that they could recur upon a retrial.
RELEVANT FACTS
The Commonwealth’s proof tended to show that at about 7:55 a.m. on July 16, 2011 Lord and her boyfriend,.. Futrell, brought Lord’s seventeen-month-old son, Staten Stephenson, to the Wayne County Hospital emergency room. An emergency-room nurse, Tabitha Watters, testified that Futrell, distraught and hugging the child against his chest, carried the child through the lobby area directly into an examining room. He was soon followed by Lord, although it was the nurse’s impression that Lord had stayed behind momentarily to attend to her makeup. The child was dressed in. only a diaper, and the nurse testified that he was “covered in bruises.” She charted at the- time six bruises, but she testified that there were more than that1 — on the front and back of the head, on the cheek, on the right arm, on both sides of the abdomen extending around to the back, and on the right thigh.
The emergency room physician, Dr. Glenn Proudfoot, testified that initially' the child was not' breathing, had a ghastly pallor, and appeared to be dead. The child also had a grossly distended and taut abdomen," a sign, according to the doctor, that the abdomen was full of air. Concerned that pressure from the abdomen would interfere with efforts to breathe artificially for the child, Dr. Proudfoot attempted to release the air by inserting an “NG” (naso-gastrial) tube down the child’s esophagus and into his stomach.1 .The doctor found, however, that the tube would not go all the way down. When the doctor withdrew the tube he observed what appeared to be (and what later was determined to be) chewing gum on the end of it. Dr. Proudfoot then, inserted (after three tries to get the right fit) an endotracheal breathing tube into one of the child’s lungs.
Notwithstanding the setback with the NG tube, Dr. Proudfoot eventually succeeded in restoring Staten’s vital signs, and arrangements were made to airlift him to the University of Kentucky Medical Center. The child was placed in the helicopter, but before the helicopter could depart, he again lapsed into cardiac arrest *266and was returned to the emergency room. Dr. Proudfoot then determined that relieving the pressure in the child’s abdomen was essential. Although he had never before performed the procedure, he inserted a large IV needle into the abdominal cavity. He testified that air immediately escaped through the needle with an audible rush. As soon as the abdominal pressure was relieved, the doctor testified, the child’s vital signs stabilized so as to allow his evacuation to UK. Dr. Proudfoot testified that the discovery of the gummy substance on the NG tube suggested at the time that Staten may have choked on chewing gum, but he could not know that to any degree of certainty, and he deliberately did not tell the family that that was the case. Asked by the Commonwealth how gum could have migrated from the airway to the esophagus, the doctor admitted that he did not know and had never heard of such a case, but, he testified, he did not think it impossible.
At the UK Medical Center, Staten was initially treated by Dr. Marion Turner. Dr. Turner testified that the child “looked horrible,” that he was pale, cold, and was covered with bruises. His condition was highly unstable and required full life support for several hours. Even before he could be stabilized, surgery was required to repair a stomach rupture revealed by a CT scan. During the surgery, doctors discovered that Staten’s small intestine was also damaged, an injury that required additional surgeries to repair. The CT scan and a later MRI revealed numerous traumatic injuries to the child’s head, torso, and abdomen, including brain injuries severe enough to cause the cardiac arrest, which in turn, according to the doctor, caused injuries to other organs.
Once the child had been stabilized, he was photographed. At trial, Dr. Turner used the photographs to point out for the jury numerous traumatic bruises to the child’s head, ears, back, and right arm. Dr. Turner testified that it was soon apparent that the brain injury was irreversible. Not long after that determination Lord and the child’s father, Johnny Stephenson, agreed to have the child removed from life support.
Dr. Glenn Elmore, who in July 2011 was a resident at the UK Medical Center, testified that the removal from life support took place at about 10:00 pm on July 26, ten days after the child’s appearance at the Wayne County Hospital emergency room. Dr. Elmore testified that Lord requested and was allowed to hold the child until his breathing ceased at about 1:40 am on July 27. A few minutes after the child’s passing, according to Dr. Elmore, he overheard Lord say to the friend accompanying her, “I killed him.” Later, during her testimony, Lord claimed that her remark was a reference to her consent to the removal of life support, not a confession to homicide.
About eight hours after Staten Stephenson’s death, Dr. Victoria Graham, a forensic pathologist and an assistant Kentucky state medical examiner, performed the autopsy. Illustrating her findings with photographs taken in the course of her examination, Dr. Graham distinguished for the jury between more than thirty bruises which covered the child’s body and which the doctor believed were the result of traumatic injury, and several other bruises which the doctor thought were likely the result of medical treatment. Dr. Graham illustrated abrasions and bruises on the child’s scalp and additional bruises that appeared only beneath the scalp. She also illustrated an all-the-way-through fracture of the child’s occipital bone — the back, lower portion of the skull. Dr. Graham testified that she also observed both subdural and subarachnoidal hemorrhages — bleed*267ing, that is, outside the brain but beneath the dural and arachnoidal membranes. The cause of death, the doctor concluded, was hypoxic (lack of oxygen) ischemic (lack of blood flow) encephalopathy (brain injury), secondary to blunt force injury to the head. The blunt force injuries, the doctor explained, caused the brain to swell, and the swelling, cut off the flow of blood and oxygen. Dr. Graham testified she was unaware of any case in which CPR had caused a ruptured stomach or ruptured intestines. She also testified that the skull fracture did not show signs of healing and so had to have occurred withih days, not weeks, of the child’s presentation at the emergency room. She testified that she did not examine the fracture microscopically, which would have enabled her to date the fracture somewhat more precisely, because signs of hemorrhage were still associated with the fracture, indicating that it could not be very old, and she believed that the cause of death was apparent without the more precise dating.
In addition to Dr. Graham’s causation testimony, the Commonwealth also introduced testimony by Dr. Melissa Currie, the director of the Univérsity of Louisville’s department of forensic medicine and a board certified child abuse pediatrician. Dr. Currie testified that taken together the number, nature, and severity of the child’s injuries — in particular the widespread bruising in areas -not easily bruised; the ruptures to the child’s stomach and intestine; the severe fracture of the thick, not easily struck occipital-bone; and the subdural hematoma with its associated brain swelling — ruled out all but the most extreme sorts of accident scenarios — high speed automobile crashes, for example, or falls from high places. Dr. Currie seconded Dr. Graham’s view that CPR, however ineptly, performed, does not result in ruptured organs; she testified that choking does not cause subdural hematoma; and she explained .that the head and abdominal injuries were so severe that they would immediately have rendered the child symptomatic and probably unconscious. All of this made it virtually certain, in Dr. Currie’s view, that the fatal injuries in this case (where no traumatic accident was alleged,, much less an extreme one) had been inflicted, that the child had been violently shaken and that his head had either been slammed against a hard surface or forcibly struck with a hard, blunt object.
As to who might have inflicted Staten’s injuries, the Commonwealth’s proof followed two related tracks: proof, on , the one hand, that. Lord and Futrell were the only ones with the opportunity to cause the child’s injuries, and, on .the- other, hand, proof that the catastrophic injuries of mid-July 2011 were the culmination of a series of lesser injuries, a series that began soon after Futrell came into the picture. With respect to the first track, the Commonwealth showed that Staten was bom in early February 2010,. by which time Lord and Johnny Stephenson, the baby’s father, had already split. At some point after the baby was bom, they reunited for a couple of months, but later in 2010 they again broke up, and Lord moved to Texas, where her . family lived. ;In early 2011 she returned to Monticello, Kentucky. She and Stephenson briefly gave their relationship a last try, but when that did not work out, Lord spent a few months moving among different friends. She began seeing Fut-rell in about mid-May 2011, about sixty days before Staten’s fatal injuries. Early in July of that year, apparently while waiting for their mobile home to be ready, she moved in with him at his father’s home on Highway 789 outside Monticello.
Futrell’s father, Rick Futrell, testified that his son and Lord were staying with him on July 15, 2011. His . daughter and son-in-law were- also staying with him at *268the time, and that evening the- five adults and Staten had dinner together in the elder Futrell’s kitchen. According to Rick Futrell, the child was fine.' He had spent time early in the' evening playing outside with the dogs, and later had played in the kitchen while Rick prepared the meal. Rick remembered Staten bumping his head hard on the underside of the kitchen table, but he was his usual self again in a short while.
After dinner Rick Futrell went fishing with' his son-in-law; Lord and Jared Fut-rell drove into town to run errands; and Jared’s sister, Sarah, and Sarah’s friend, Madison Daffron, watched the child. Daf-fron testified that at least until Lord and Futrell returned, Staten was normal. He had no trouble moving about, responded to his ñamé, was in good spirits, and had'no noticeable bruises. Her impression later, when she came in to go to bed, was that Staten was in bed already and was sleeping normally.
Rick Futrell testified that at about 7:00 the next morning' (July 16, 2011), he knocked on the wall of his son’s room, as he had promised to do (the two bedrooms were adjoining). He then heard Lord get up and go into the bathroom.. He estimated that she was in the bathroom for about thirty minutes, during which time, he testified, he heard nothing out of the ordinary. He heard Lord return to the room she was sharing with Futrell; and only moments later heard her scream that the .baby was not breathing. He dressed as quickly as he could and came out into the hallway. He saw his son carry Staten out of the house toward the carport, and there he stopped him. He took the child from his son, checked for and could not find a pulse, reached his finger down the baby’s throat, and, finding no obstruction, began applying CPR. "Rick Futrell testified that during his employment ás a coal miner he had served on a rescue unit and had received CPR training. He had not been trained in CPR for babies, but he knew that babies required much gentler treatment than adults. He showed his son how to press with three fingers on the child’s sternum and how, every fifteen compressions or so, to breathe into the child’s mouth and nose. The elder Futrell then drove his son, Lord, and the child to the emergency room, with his son in the back seat performing CPR on the child. ’
■ Rick Futrell’s account of that morning was substantially in accord with the accounts Lord and Futrell gave to the inyes-tigators. The lead investigator, Detective Derrick Lester of the Monticello Police Department, testified that he had been called to the Wayne. County Hospital emergency room not long after Staten was admitted. He later traveled to the UK Medical Center, where he took brief statements from Lord and Futrell. Both described being awakened by Futrell’s father at about 7:00 that morning; both claimed to have seen Staten reaching for his sippy cup as Lord was getting up to go into the bathroom; and both stated, that upon Lord’s return .from the bathroom Futrell had discovered the child limp, not breathing, and with bluish lips.
The detective testified that he attended the autopsy during the early morning of July 27, 2011, and that having heard the medical examiner’s findings, he asked Lord and Futrell that same day to come to the police department’s headquarters for questioning. The couple willingly complied, and at the police station, after having waived their Miranda rights, each was interviewed separately two times. Video recordings of the statements were played for the jury. Throughout the interviews both repeatedly denied having injured the child or having seen the other do so. They expressed surprise at the autopsy findings, *269and they suggested that the child’s bruising and traumatic injuries may have occurred as a result of the child’s throwing himself backwards during temper tantrums, as a result of rough handling by the emergency medical providers, or as the result of an accident sometime previously while the child was in the custody, of his father or was being watched by someone else. Lord denied having given the child any chewing gum, and Futrell described performing CPR gently with his fingers, as his father had instructed him. The detective’s insistence that their stories did not jibe with the medical examiner’s report elicited only Futrell’s statement that he wished he could help but could not and Lord’s angry outburst that she was “going through” something the investigators could not comprehend. At the conclusion of the interviews the detective arrested the pair, and on September 12, 2011 a Wayne County grand jury indicted them on'one count each of murder and first-degree criminal abuse.
The Commonwealth’s second line of proof regarding who inflicted Staten’s injuries included testimony by a number of the couple’s acquaintances, who described instances of Lord or Futrell’s striking the child or expressing animosity toward him. This line of proof also included testimony to the effect that prior to mid-May 2011, when Lord began spending time with Fut-rell, the child had not been subject to unusual bruising, but that after Futrell became involved the child was seen with unusual bruises a number of times. For example, the child’s father, johnny Stephenson, and Johnny’s mother, Betty Lyons,2 both testified that they saw Staten fairly regularly and that in late May or early June 2011 they began noticing more bruising. Chelsea Humble, Fufrell’s former girlfriend, testified that on June 9, 2011 she ran into Futrell at Wal-Mart. Futrell was carrying the baby, Humble testified, and, in addition to his appearing very diriy the baby1 had bruises on his lower face suggestive of finger marks, as though someone had squeezed his face hard; Whitney Bell, a friend of Futrell’s from high-school, testified that in mid June 2011 she saw Futrell with the baby. Staten was crying, and. Futrell, obviously exasperated, shook him and told him to hush..-
Johnny’s sister, Lydia Stephenson, and Lydia’s friend, Chancie Pyles, both testified that Lord lived with Pyles in May and June 2011. Futrell was a frequent visitor. Lydia and Pyles testified that Lord would curse at the baby for misbehaving, and that to discipline him she would slap his mouth, strike the bottom of his feet, and pinch his ears. They also testified about an incident that occurred in late June. Pyles testified that on June 27, 2011 Lord called hqr and asked her to come home, because she and Futrell were arguing. Pyles was with Lydia at the time, and when the two friends got to Pyles’s house they found that Futrell was angry with Lord for being drunk. At one point, Pyles heard Futrell scream at Lord that he was “tired of your f ... king kid crying all the time.” A little later Lord was in the bathroom with the baby when Futrell came in and pushed her, knocking her into the child. Concerned, Pyles and Lydia offered to watch Staten for a while, and they took him to a nearby lake. Although a little dingier than usual, Pyles testified, the baby was fine during that outing and did not have bruises an hour or two later when she and Lydia returned him to Lord. The next morning, however, Staten “was all bruised up.” There were bruises on his face, on the back of his head, and on his back.
*270Lydia testified similarly about the incident on June 27, and stated that two days later, June 29, she saw Staten at the emergency room with bruises on his head and back and a scratch on his cheek. It was less than a week after that when Lord and Staten moved in with Futrell at the home of Futrell’s father.
The Commonwealth’s theory of the case was that Staten’s catastrophic injuries could not have occurred accidentally and that Lord and Futrell were the only people with access to the child when the injuries must have been inflicted. The defense countered with expert testimony by Dr. Donald Jason, an anatomical pathologist on the faculty at the Wake Forest University School of Medicine in Winston-Salem, North Carolina. Dr. Jason testified to the effect that the child choked on chewing gum, that the choking caused the cardiac arrest and the subdural hematoma, that Futrell’s overly energetic CPR both inflated the child’s stomach and then popped it, and that most of the bruising and the damaged intestine all occurred after the child entered the emergency room, either as a result of medical treatment or as a result of lack of oxygen. The skull fracture, according to the defense expert, was a “red herring,” an injury the child could have been walking around with for days.
Both Lord and Futrell testified at trial, and for the most part they reiterated the statements they had given previously. In accord with their expert’s testimony, however, Lord changed her statement about never having given her son chewing gun, and claimed that indeed she had given him' gum. Futrell claimed that the CPR he applied was not as gentle as he originally described, but was more like what would be appropriate for an adult.
At the close of proof, the Commonwealth moved to dismiss the charge of first-degree criminal abuse. It also moved to amend the indictment so as to charge wanton murder as an alternative to intentional murder' and to charge complicity as an alternative to principal liability. ‘ In support ' of its motion to add complicity charges, the Commonwealth argued that Lord could be thought to have breached her duty to protect her son, and that, if the jury believed that Lord was the principal, Futrell could be thought to have aided and abetted the killing. The trial court granted the Commonwealth’s motion to amend and thus ultimately instructed the jury on six different theories of the crime as to each defendant: intentional murder-principal, intentional murder-accomplice, or intentional murder-principal or accomplice; wanton murder-principal, wanton murder-accomplice, or wanton murder-principal or accomplice. The jury found both defendants guilty under the last alternative, wanton murder-principal or accomplice. Appellants take issue with these instructions on a number of grounds, beginning with their claim that the Commonwealth failed to prove any theory of the crime thereby entitling them to a directed verdict. We begin our analysis with the directed verdict claim.
ANALYSIS
I. Neither Appellant Was Entitled to a Directed Verdict.
Lord' and Futrell both maintain that the trial court erred by denying their respective motions for a directed verdict. A directed verdict is required if, but only if, the evidence, construed favorably to the Commonwealth, would not permit a reasonable juror to find the defendant guilty beyond a reasonable doubt. Jackson v. Commonwealth, 392 S.W.3d 907 (Ky. 2013) (citing Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991)). .
*271Under the pertinent portions of Kentucky Revised Statute (KRS) 507.020(1), “[a] person is guilty of murder when: (a) With intent to cause the death of another person, he causes the death of such person ... or (b) ... under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” “Wantonjessj” here means “aware[ness] of and conscious[ ] disregard” of the grave risk of death engaging in the conduct creates. KRS 501.020(3).
Clearly, construed favorably to the Commonwealth, the evidence that the child suffered catastrophic traumatic injury at a time when Appellants were the only people with access to him permitted the jury to find that at least one of them either killed the child deliberately or did so with wanton disregard for a grave risk of death under circumstances manifesting extreme indifference to human life. Appellants maintain, however, that that is not enough.
Each of the Appellants argues that the evidence did not show that she (or he) was the guilty party. It showed only that she (or he) may have been present at the time of the killing, and mere presence, both Appellants insist, does not make her (or him) either a principal or an accomplice. Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005) (citing Houston v. Commonwealth, 975 S.W.2d 925 (Ky. 1998)). While we agree that mere presence at the scene of a crime is not enough to prove involvement in the crime, we do not agree that the Commonwealth failed to prove anything more than mere presence. In addition to the proof that Appellants had access to Staten during the time the injuries were inflicted, the jury heard proof that both of them had mistreated the child and expressed contempt for him.' It also heard that Lord had expressed a sense of responsibility for the child’s death. The weight of that evidence with respect to either Lord or Futrell was for the jury to assess. The jury also had before it the Appellants’ police statements and their trial testimonies (which differed as to the chewing gum and the CPR), the credibility of which was again for the jury to determine. Depending on those assessments of weight and credibility, a reasonable juror could have been convinced that either Appellant or both of them inflicted the fatal injuries. Because either Appellant could have- been found guilty as the principal, neither was entitled to a directed verdict.
II. The Trial Court’s Failure to Remove For Cause Two Disqualified Potential Jurors Requires That Appellants’ Convictions Be Reversed.
In addition to their claims that they should have been granted directed verdicts, Appellants contend on several grounds that errors during the original proceedings entitle them to new trials. The first of these contentions is that the trial court abused its discretion when it denied defense motions to strike for cause two prospective jurors whose responses during voir dire raised sufficient doubts about their impartiality to disqualify them. We agree that the trial court’s refusal to strike these two panel members was an abuse of discretion. The issue was preserved, in accord with Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky. 2009), by virtue of Appellants’ motions to strike, by their use of peremptory strikes to remove the objected-to persons from the panel, by their exhaustion of their peremptory strikes, by their indication on the strike sheet of other panel members they wished to strike, and by service on the deciding jury of one of those would-be strikes. In these circumstances, we have held that the *272trial court’s failure to remove the challenged panel member deprives the party of a substantial right — the unhindered use of his or her full allotment of peremptory strikes — which deprivation is presumptively prejudicial and so amounts to a reversible error. Id.
As Appellants correctly note, an impartial jury . is a right guaranteed a criminal defendant by Section 11 of our Kentucky Constitution as well as the Sixth and Fourteenth Amendments to the Constitution of the United States. Ordway v. Commonwealth, 391 S.W.3d 762 (Ky. 2013) (citing Fugett v. Commonwealth, 250 S.W.3d 604 (Ky. 2008)). This right is implemented in part by Criminal Rule 9.36, which provides, among other things, that “[wjhen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.” Kentucky Rule of. Criminal Procedure (RCr) 9.36(1). This Court has recently emphasized the importance of juror impartiality by urging caution on trial courts as a “fundamental rule” of jury selection: “When there is uncertainty about whether a prospective juror should be stricken for causes, the prospective juror should be stricken. • The trial court should err on the. side of caution by striking the doubtful juror.” Ordway, 391 S.W.3d at 780.
' [5-12] Doubts about a prospective juror’s ability to “render a fair and impartial verdict on the evidence" can arise for a host of reasons, but they often arise from a juror’s having prejudged the' defendant based on information, or supposed information, acquired outside of court; or from the juror’s having some personal reason, such as a relationship with a trial participant or personal experience of a crime like the one alleged, to lean one way or the other. See, e.g., Gabbard v. Commonwealth, 297 S.W.3d at 844 (discussing prejudgment and bias as reasons for striking a prospective juror). Among jurors with some knowledge about the case the trial court ■ must distinguish between those whose minds remain open and those whose outside knowledge is apt to make them unable to base their decision on the evidence presented at trial. As for jurors with some relationship to- the case, the trial court must distinguish between those whose objectivity, whose “indifference,”3 remains intact and those so closely related to the case ór so susceptible to the relationship as to bé predisposed to be more (or less) critical of one side’s evidence than the other’s. In all cases these distinctions are to be based on the totality of the voir dire circumstances: the juror’s demeanor, the context of any questions, and the entirety of the juror’s responses. Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007). Where the juror’s responses and the rest of the circumstances have created a genuine doubt as to the juror’s impartiality, further questioning meant to resolve the doubt by eliciting further information is certainly appropriate, Paulley v. Commonwealth 323 S.W.3d 715 (Ky. 2010) (regretting, in a close case, the lack of followup questioning), but leading questions calling for “impartial” answers do not “cure” or “rehabilitate” prospective jurors whose relationship to some important aspect of the case is so close as to be presumptively disqualifying, Marsch v. Commonwealth, *273743 S.W.2d 880 (Ky. 1987) (citing Ward v. Commonwealth, supra), or who in some other way have already made their disqualification apparent. Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky. 1991). Again, “where questions about the impartiality *of a juror cannot be resolved with certainty, or in marginal cases, the questionable juror should be excused.” Ordway, 391 S.W.3d at 780.
Appellants maintain that the trial court abused its discretion in this case by refusing to excuse potential jurors 27 and 75. Both of these jurors acknowledged during voir dire a significant relationship with Lee Tobbe, an attorney of long standing in Wayne County, it appears,''and the assistant prosecutor for this case. Both jurors had been represented by attorney Tobbe in the past, and both had a more immediate connection with him. Juror 27, who owned and managed residential rental properties in Monticello, stated that attorney Tobbe was then representing his, Juror 27’s, son. We discuss Juror 27 below, but begin with Juror 75 for obvious reasons.
Juror 75, a former principal at one of the local schools, stated that, in addition to having been attorney Tobbe’s client “a long time ago,”, he had more recently had contact with attorney Tobbe on social services committees and through the school system. Juror 75 stated that attorney Tobbe “represented me or the school system in a juvenile case.” When asked during the prosecutor’s voir, dire whether his relationship with attorney Tobbe would “cause you to automatically give the Commonwealth’s case or witnesses more weight than you would anything else?” Juror'75 replied, “I think so.” The prosecutor then asked whether Juror 75’s relationship with attorney Tobbe would make it difficult for the juror to vote to acquit the defendants even if he felt the Commonwealth had failed to prove its case, and Juror 75 responded, “I really can’t answer that. I’m trying to be honest with you.” These exchanges occurred before the entire venire. At that point the prosecutor declared himself at a loss as to what else to ask Juror 75, said that he was sure defense counsel would have some questions for the juror and then moved on to other topics. Inexplicably, Appellants declined to question Juror 75 further regarding attorney Tobbe, so there the matter -stood until the very end of voir dire. Only then, after the close of questioning and just before the parties made their peremptory'strikes, did Futrell move to strike for cause some six or seven potential jurors, including Juror 75 “because of his relationship with Mr. Tobbe.” Lord joined Futrell’s motion, which the- trial court summarily denied. As noted above, the defense then used a peremptory strike to have Juror 75 removed and indicated panel members it would have struck instead had its .motions for “for cause” strikes been granted. Appellants now contend that the trial court abused its discretion when it denied their motion to remove Juror 75 for cause.4
*274Our law, not surprisingly, has long been that a potential juror’s close relationship with the prosecutor trying the case is presumptively disqualifying. Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985) (holding that Commonwealth Attorney’s ex-brother-in-law was not so closely related as to be presumptively excluded, but that the Commonwealth Attorney’s uncle should have been removed for cause). By itself, trial counsel’s prior representation of a potential juror does not imply so close a relationship as to require the juror’s removal, Grubb v. Norton Hospitals, Inc., 401 S.W.Sd 483 (Ky. 2013), but any suggestion of an on-going relationship with the prosecutor, such as the potential juror’s intent to make use of his professional services again, is disqualifying. Fugate v. Commonwealth, 993 S.W.2d 931, 938 (Ky. 1999) (stating that “a trial court is required to disqualify for cause prospective jurors who had a prior professional relationship with a prosecuting attorney and who profess that they would seek such a relationship in the future.”); Ordway v. Commonwealth, supra (noting that prospective juror whose sister was the Victim’s Advocate in that very case and thus closely associated with the prosecutor, should have been removed for cause). But see Clay v. Commonwealth, 291 S.W.3d 210 (Ky. 2008) (holding that a secretary for the former Commonwealth’s Attorney was not so closely related to the current Commonwealth’s Attorney, even though she had a friend who worked in his office, as to be presumed biased).
Although the record regarding this matter cannot be characterized as well developed, Juror 75’s significant associations in several capacities with assistant prosecutor Tobbe were, under our case law, sufficient to impute bias to Juror 75 and support his removal for cause. However, to the extent there was any question, removal for cause became the only acceptable course of action once Juror 75 acknowledged actual bias. Cf. Paulley v. Commonwealth, supra (holding that to the extent that the scantiness of the record cast doubt on potential juror’s uncertainty regarding her freedom from bias, the benefit of that doubt would be afforded the defendant). We agree with the Appellants, therefore, that the trial court’s failure to remove Juror 75 for cause was an abuse of discretion.
Unlike prospective Juror 75, prospective Juror 27 indicated that neither attorney Tobbe’s prior representation of him, nor Tobbe’s then current representation of Juror 27’s son would have any bearing on the juror’s ability to weigh the evidence. The cases cited above, however, make clear that the prosecutor’s on-going representation of potential Juror 27’s son gives that juror a close and presumptively disqualifying relationship with .the prosecutor, a relationship so apt to produce bias that even confident assurances to the contrary by the juror cannot erase significant doubts about his impartiality. See Fugate, 993 S.W.2d at 938, 939 (holding that two jurors who had been represented by the prosecutor in the past and remained on good terms with him should have been removed for cause notwithstanding juror assurances that the “association with the prosecutor would [not] cause him [the juror] to be biased in favor of the prosecution” and that “the contact [with the prosecutor] would not affect his [the juror’s] judgment whatsoever.”). Doubtful jurors, as noted above, should be removed, not papered over.
*275The impartiality of Juror 27 was doubtful for other reasons as well. He knew the child-victim’s biological father (Johnny Stephenson) through having rented property to him, and he had known and done business with Johnny Stephenson’s father (the victim’s paternal grandfather) “for years.” He had also, through his rental business, witnessed several instances of what he believed was child abuse and had reported instances to the authorities. Some of his reports had even led to prosecutions. These “connections to the case” — presumably his relationship with prosecutor Tobbe as well as his acquaintance with the victim’s family and awareness of child abuse — not only prompted a defense motion, to strike Juror 27 for cause, but prompted Juror 27 himself to ask to be excused.
It is certainly true, as the Commonwealth notes, that at the bench conference following Juror 27’s request, the juror was not able to articulate what it was about his “connections to the case” that made him doubt his suitability as a juror, and it is true that in response to the trial court’s prompting he denied being biased or prejudiced against anyone with whom he was acquainted who was involved in the case. He also replied to defense counsel’s concern that, if he, Juror 27, were on the jury, the defense would be at a disadvantage, by emphatically stating that he “would have to hear the evidence first.” If the record contained only Juror 27’s bench conference questions and responses, the trial court’s refusal to remove him for cause likely would not have been an abuse of discretion. Cf. Derossett v. Commonwealth, 867 S.W.2d 195 (Ky. 1993) (holding that mere acquaintance with victim’s family did not presumptively imply bias). The bench conference did not directly address, however, Juror 27’s then-current relationship through his son with assistant prosecutor Tobbe. Given the presumptive bias created by Tobbe’s ongoing legal representation of Juror 27’s son, the juror’s numerous expressions of discomfort throughout the course of voir dire_ and at the beginning of his bench conference assume a more troubling aspect.
All of Juror 27’s “connections with the case” were in fact connections with the prosecution, and while none of those connections by itself appears to have given Juror 27 much pause, as the number of connections became increasingly apparent Juror 27 expressed increasing discomfort. He acknowledged the relationship with prosecutor Tobbe; he recalled renting a residence to Johnny Stephenson the infant victim’s biological father and possibly to the father’s sister, the victim’s, aunt (also a witness for the Commonwealth); .he acknowledged that he had in effect helped to prosecute child abuse cases by watching out for child abuse among his tenants and reporting it whenever he suspected it. At each revelation of a connection, Juror 27 seemed, surprised that the questioner was not more concerned that the juror was perhaps too connected. Finally, when it was brought home to him that the infant victim’s paternal grandfather was a man whom he had known and done business with for twenty years, Juror 27 had “heard enough” to feel compelled to bring his concerns to the court’s attention and to ask to be excused.
Based on-questioning at' the bench, the trial court’-was apparently satisfied that potential Juror 27 clearly understobd the need for juror impartiality and clearly hoped, at least, that he would be able to be impartial. As the court saw it, those factors ' outweighed the potential juror’s concerns that somehow, in spite of himself, his several “connections to the case” would cause him to be biased. Neither the Appellants nor the Commonwealth shared that belief, it seems, because all parties *276used a peremptory strike on Juror 27. In fact, the trial court’s error was in failing to perceive that Juror 27⅛ other connections to the prosecution and his own misgivings, vague as they were, added to and confirmed the bias presumptively inherent in Juror 27’s close relationship to the assistant prosecutor, the attorney who was representing his son. Consideration of the totality of the circumstance should have eliminated any lingering doubt that Juror 27 needed to be removed for cause.
Because the trial court did not allow the parties any 'extra, error-correcting per-emptories, see Dunlap v. Commonwealth, 435 S.W.3d 537 (Ky. 2013) (approving the use of extra peremptories as1 a way of ■rendering harmless that same number of erroneous failures to remove for cause), and because Appellants established, in accord with Gabbard, supra, that at least one of the trial court’s two erroneous failures to remove for cause was prejudicial (one of the “otherwise stricken” jurors on Appellants’ list having sat on the jury), we must reverse Appellants’ convictions and remand the matter to the Wayne Circuit Court for additional proceedings. We limit our discussion of the other allegations of error to questions likely- to recur on retrial. ...
III. The Jury Instructions Raise Certain Unanimous Verdict Concerns.
A. Although There is Sufficient Evidence to Retry: Lord on a “Legal Duty” Complicity Theory, There is Not Sufficient Evidence that Futrell Aided or Abetted Lord, if the Jury Deems Her the Principal, To Retry Him For Complicity.
Appellants raise several issues with regard to the jury instructions. Two of their contentions — that the instructions in two ways deprived them of unanimous verdicts — warrant consideration in case of a new trial. Indeed, Appellants contend that the instructions included inadequately supported theories of the crime, and if that contention is" correct then double jeopardy principles would preclude the Commonwealth from reasserting those theories if the case were tried again. The more serious of Appellants’ concerns, in our view, is their objection to the combination principal/aecomplice instruction, and we begin with that objection.
As noted above, Appellants were not entitled to a directed verdict because there was sufficient evidence, allowing for the jury’s responsibility to make credibility determinations, for a rational jury to believe beyond a reasonable doubt that either of them (or both of them together) was guilty as a principal of murdering the child. That determination does not end the analysis, however, because the jury did not find either Appellant guilty simply as a principal. As noted above, the jury found both Appellants guilty of wanton murder under a so-called combination prineipal/ac-complice instruction. The wanton murder instructions directed the jury as follows:5
INSTRUCTION NO. 6 WANTON MURDER
If you do not find the Defendant guilty [of intentional murder], you will find the Defendant guilty of Wanton Murder under this Instruction if you believe from the evidence beyond a reasonable doubt all of the following:
A. That .on or about July 16, 2011 in Wayne County, Kentucky and before the finding of the Indictment herein, the defendant killed [the child] by inflicting *277blunt force trauma to his head, torso and/or other part's ‘ of his body. AND
B.That in so doing, she was wantonly engaging in conduct which created a grave risk of death to [the child] and thereby caused the death of [the child] under circumstances manifesting extreme indifference to human life.
INSTRUCTION NO. 6-B COMPLICITY TO WANTON MURDER
If you do not find the Defendant guilty of Murder under Instruction No. 6, you will find the Defendant guilty of Complicity to Wanton Murder under this Instruction if you believe from the evidence beyond a reasonable doubt all of the following:
A. That on or about July 16, 2011 in Wayne County, Kentucky and before the finding of the Indictment herein, Jared Futrell Killed [the child] by. inflicting-blunt force trauma to his head, torso and/or other parts of his body. AND
B. The Defendant was the mother of [the child]. AND
C. The Defendant failed to make a proper effort to protect [the child]. AND
D.- The failure by the defendant was in conscious disregard of a substantial and unjustifiable risk that [the child] would be killed, and that her disregard of that risk constituted a gross deviation from the standard of care that a reasonable person would have observed in the same situation under circumstances manifesting an extreme indifference to human life.
INSTRUCTION NO. 6-C WANTON MURDER — PRINCIPAL OR ACCOMPLICE
If you believe from-the evidence beyond a reasonable doubt that the Defendant is guilty of either Wanton Murder under Instruction No. 6 or Complicity to Wanton Murder under Instruction No. 6-B, but you are unable to determine from the evidence whether the Defendant committed the crime as Principal under Instruction No. 6 or Accomplice under Instruction No. 6-B, then you will find her guilty of Wanton Murder, Principal or Accomplice, under this Instruction and so state in your verdict.
The jury found both Appellants guilty under Instruction 6-C. Apparently, the jury believed them guilty of wanton murder as principal and accomplice, but could not agree which one was the principal and which was the accomplice. Combination instructions — instructions incorporating alternative, theories of a single crime — are appropriate, we have many times held, when, but only when, the evidence supports all of the alternatives. Caudill v. Commonwealth, 120 S.W.3d 635 (Ky. 2003) (citing Wells v. Commonwealth, 561 S.W.2d 85 (Ky. 1978)). This is so, we have explained, because “no matter which theory they believed, all the jurors convicted under a theory supported by the evidence and all the jurors convicted the defendant of the same offense.” Smith v. Commonwealth, 366 S.W.3d 399, 403 (Ky. 2012).
Complicity is not a separate offense. It is rather an alternative theory of the charged offense. K.R. v. Commonwealth, 360 S.W.3d 179, 186 (Ky. 2012) (“KRS 502.020 does not create a new offense, known as complicity_ Rather than being a separate 'crime, complicity is simply the means of committing another crime.”) (citations and internal quotation marks omitted); Smith v. Commonwealth, 370 S.W.3d 871, 873 n.l (Ky. 2012) (“[U n-der oür penal code “complicity” is not a separate crime; rather, it is a means by which a crime may be. committed.”). Accordingly, where both alternatives are supported by the evidence, combination princi*278pal/accomplice instructions, such-as those given in these cases, are proper, Halversen v. Commonwealth, 730 S.W.2d- 921 (Ky. 1986); Pate v. Commonwealth, 243 S.W.3d 327 (Ky. 2007).6 If one of the instructed upon theories is not supported by sufficient evidence, however, and there is a reasonable possibility that one or more jurors relied on the unsupported theory, then, as Appellants correctly assert, “a unanimous verdict has been denied and the verdict must be overruled.” Travis v. Commonwealth, 327 S.W.3d 456, 463 (2010).7
As discussed above, there was sufficient evidence to support a verdict finding either Appellant guilty as a principal. It remains to consider whether the evidence also supported finding either of them guilty of wanton murder as an accomplice.
Under the pertinent parts of the complicity statute, KRS 502.020,
[w]hen causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that offense when he
(a) Solicits or engages in a conspiracy with another person to engage in the conduct causing such result; or
(b) Aids, counsels, or attempts to aid another .person in planning.or engaging .in the conduct causing such result; or
(c) Having a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so.
KRS 502.020(2). Given the severity of Staten’s injuries, given the evidence that the child was fine or normal just hours before he was taken to the emergency room, and given the evidence that doctors managed to revive him, albeit ultimately they could not save him, a rational juror could have believed (and most likely did believe)' that “the conduct causing the result” — the death — was some sort of severe beating inflicted on the morning of July 16, 2011, a beating that produced the blunt force head injuries identified as the cause of death.
*279The Commonwealth’s theory of Lord’s complicity in the murder was derived from subpart (c) of the statute, ie., having a legal duty as his parent to protect the child from being beaten, Lord failed to make a proper effort to do so. See Instruction No. 6-B. Certainly the jury would have believed that Lord was Staten’s mother with a parent’s duties, there being no evidence to the contrary. Construed favorably to the. Commonwealth, the proof reflected that virtually from the beginning of his relationship with Lord, Futrell was prone to angry outbursts against Lord’s child, outbursts that included verbal abuse and rough handling such as shaking and pinching the child’s face. On several occasions the treatment was rough enough to leave bruises on Staten, and since Lord had to have been aware of the bruises she was likely to have been aware of their source. The child’s paternal grandmother and aunt, Lydia Stephenson, testified that the bruises started appearing when Lord began seeing Futrell in May. ’ Lydia Stephenson and Chancie Pyles testified to ah incident on June 27, where Futrell expressed rage at and contempt for the child. In the course of that argument, Futrell pushed Lord into the then sixteén-month old child who fell against a wall. That episode in conjunction with the more extensive and more serious bruising appearing on the child the very next day, injuries that prompted Lord to take him to the emergency room, could reasonably be thought to have put Lord on notice that Futrell’s growing impatience and temper posed a grave risk of death to her small child. Disregarding that risk, however, Lord not only continued to see Futrell, but she even moved out of the home she shared with Pyles and moved in with Futrell thereby increasing the risk to the child, a risk she, as the child’s mother, was duty bound to decrease if she could. That decision was so at odds with her child’s safety as to be reasonably deemed a manifestation of extreme indifference to the value of the child’s life. , There being thus sufficient evidence of Lord’s complicity for the jury to base its conviction of her on a “legal duty” theory, the trial court did not err by incorporating that theory in the jury instructions, including the combination principal/accomplice instruction upon which1 the jury ultimately relied in finding Lord guilty of wanton murder. At retrial, Lord can be retried for complicity to murder based on her failure to fulfill her legal duty, KRS 502.020(2)(c). '
Futrell’s complicity conviction is a different matter. The Commonwealth’s theory of Futrell’s complicity was that if Lord was the killer then Futrell aided and abetted her. The jury instruction meant to convey that theory provided as follows:
INSTRUCTION NO.. 6-B COMPLICITY TO MURDER
If you do not find the Defendant guilty of Murder under Instruction No. 6, you will find the Defendant guilty of Complicity to Wanton Murder under this Instruction if you believe from the evidence beyond a reasonable doubt all of the following:
A. That on or about July 16, 2011 in Wayne County Kentucky and before the finding of the Indictment herein, Jared Futrell killed [the child]' by inflicting blunt force trauma to his head, torso and/or other parts of his body.
B. Prior to the killing, the Defendant solicited, commanded, aided, attempted
to aid, planned, counseled or engaged in a conspiracy with Kayla Lord to engage in the conduct, or aided, counseled, or attempted to aid Kayla Lord in planning or committing discipline or abuse of [the child]; AND
C. The defendant was wantonly engaging in conduct which created a grave *280risk of death to' [the child] and thereby caused the death of [the child] under circumstances manifesting an extreme indifference to human life.
(emphasis supplied). This instruction is patently erroneous as a matter of law.
Part A of Futrell’s .complicity instruction requires for- a guilty verdict a finding that “Jared Fldrell killed [the child.]” As the Commonwealth acknowledges, Futrell’s complicity instruction should- have required a finding that Lord killed the child. Futrell could not be complicit in his own killing of the child. The Commonwealth contends that this error was so obvious that the jury can be relied upon to have recognized it and corrected for it. We reject that proposition. The misdrafted instruction allowed for a finding of complicity where Futrell himself killed the child, having previously aided, assisted or conspired with Lord in mistreatment of the child, and we cann'ot accept the Commonwealth’s argument that the jury would readily recognize this as an erroneous statement of the law of complicity to murder.
Next, part B of the instruction ostensibly presents the Commonwealth’s theory of Futrell’s complicity, but in fact it' simply lists the theories included in subsections (a) and (b) of KRS 502.020(2):
When causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient.for the commission of the offense is guilty of that offense when he:
(a) Solicits or engages in a conspiracy with another person to engage in the conduct causing the result; or
(b) Aids, counsels, or attempts to aid another-person in planning, or engaging in the conduct causing such result.
As discussed above .with regard to Lord’s alleged complicity, the proof was that, if the result, Staten’s death, was not an accident, then “the conduct causing the result,” had to have been an intense assault upon the child not long before he was admitted at the emergency room. There is no evidence’ in this case to support an instruction under subsection (a) — that Fut-rell solicited Lord to commit such an assault on her child or conspired with her to do so. While under Travis these irrelevant, unsupported theories might not require reversal, their inclusion was nevertheless erroneous.
The Commonwealth’s real complicity theory as to Futrell was under subsection (b) — that Futrell’s prior abusive treatment of the child aided somehow Lord’s fatal assault. The instruction fails to make clear, however, that to amount to complicity the aid had to pertain to the “conduct that caused the result,” that is, to the ultimate attack. Instead, the instruction merely asks the jury to find that Futrell “aided, counseled, or attempted to aid Kayla Lord in planning or committing discipline or abuse of [the child].” Aside from what again amount to extraneous theories — there was no evidence of planning, counseling, or attempting — the instruction erroneously directed the jury to focus not on the “conduct that caused the result,” (the blunt force trauma referenced in part A of the instruction) but on “planning or committing discipline- or abuse.” ■Futrell could not be found guilty of wanton murder by complicity if the jury merely believed that on other occasions he countenanced Lord’s disciplinary practices of slapping the child’s mouth and feet and pinching his ears.
The complicity theory lurking in the instructions is that Futrell’s own mistreatment of Staten aided the commission of the murder by encouraging Lord’s mis*281treatment of the child up to and including Lord’s ultimately beating him to ■ death. Even assuming ■ that Futrell’s mistreatment of the child could be deemed “aiding” for the purposes of KRS 502.020(2)(b), however, the problem with this theory is that the jury would have to find that he was aware that his encouragement ’of Lord’s disciplinary practices created a grave risk of death and that, under circumstances manifesting extreme indifference to human life, he disregarded that risk. The evidence simply does not support such a finding. Whatever one might, think of Lord’s alleged manner of disciplining her child (slapping his mouth and feet and pinching his ears), nothing the jury was told that she did leading up to July 16, 2011, could reasonably be thought to imply that she posed a grave risk of death to her son. Futrell, therefore, could not reasonably be convicted of murder by complicity for having disregarded such a risk. In addition to its other faults, therefore, the complicity instruction in Futrell’s case was erroneous because-it did not have adequate evidentiary support. Because there'is no assurance that Futrell’s conviction was not based at least in part on the erroneous instruction, his conviction has this alternative ground of reversal.
On remand both Appellants are subject to retrial as principals in the murder (intentional or wanton) of the child. Bowling v. House, 2011 WL 4072849 (E.D. Ky. 2011) (denying double-jeopardy based ha-beas petition where retrial as principal was allowed following virtually identical instructional error); Commonwealth v. Zanetti, 454 Mass. 449, 910 N.E.2d 869 (2009) (holding that conviction as accomplice does not imply acquittal or bar retrial as principal); United States v. Garcia, 938 F.2d 12 (2nd Cir. 1991) (holding that retrial on sufficiently proved theory was proper after conviction based on alternative instruction was reversed because one of the alternative theories had not' been proved). Lord is also subject to retrial on a complicity theory but Futrell is not, the Commonwealth having failed to present any evidence that he aided and abetted Lord in committing a fatal attack on her son.
B. The Murder Jury Instructions’ Cause of Death Provision Should he Corrected on Retrial.
Appellants also contend that the jury instructions regarding murder ran afoul of the unanimous verdict requirement by directing the jury to base a guilty verdict against either of them on a finding that he/she “killed [the child] by inflicting blunt force trauma to his head, torso and/or other parts of his body.” -This instruction ■ is faulty, Appellants complain, because there was no evidence of fatal blunt force trauma to any part of the child’s body but his head. We agree. There was certainly evidence of trauma to other parts of the child’s, body but no evidence that other, trauma caused his death. At a retrial, the instruction should conform to the evidence, which-focused on the blunt force trauma to the child’s head as the cause of death.
IV. The Trial Court Correctly Deemed Admissible Expert Testimony By the Child-Abuse Pediatrician.
Another issue apt to recur in the event of a retrial concerns the competence of the Commonwealth’s evidence that the child suffered inflicted, as opposed .to accidental, injuries. Undoubtedly the strongest evidence on that point was the testimony of Dr. Melissa Currie, who, as noted above, is a board certified child-abuse pediatrician. Dr. Currie testified that, to a virtual certainty, the child’s fatal injuries were inflicted. Both Appellants contend that the trial court erred two-fold — under both KRE *282702 and KRE 403 — by admitting that testimony. We disagree.
In our courts, the admissibility of expert testimony is governed by Kentucky Rule of Evidence (KRE) 702. That rule provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the princi-pies and methods reliably to the facts of the case.
Our rule is identical to its federal counterpart, Rule 702 of the Federal Rules of Evidence.8 Both rules incorporate guidance provided by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Daubert, a trial court’s task in assessing proffered expert testimony is to determine whether the testimony “both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597,113 S.Ct. 2786. In making its reliability determination, the trial court must consider “ “whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.’ ” Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 39 (Ky. 2004) (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). As the United States Court of Appeals for the Sixth Circuit has noted, “Daubert attempts to strike a balance between a liberal admissibility standard for relevant evidence on the one hand and the need to exclude misleading ‘junk science’ on the other.” Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 176-77 (6th Cir. 2009). The court’s role is not to judge the correctness of the expert’s conclusions; that assessment is for the jury. The court’s ga-tekeeping role, rather, is to “focus ... solely on [the] principles and methodology” employed to generate the conclusions, and to ensure that those principles and methods are reliable. Daubert, 509 U.S. at 595, 113 S.Ct. 2786.
There is no “definitive checklist or test” for determining reliability, but in Daubert the Court recognized a number of factors bearing on the inquiry. These include whether the principle, theory, or method in question “can be (and has been) tested,” whether it “has been subjected to peer review and publication,” whether it has a “known or potential rate of error,” and whether it enjoys acceptance within “a relevant scientific community.” 509 U.S. at 593-94, 113 S.Ct. 2786. Appellants contend that all of these “Daubert factors” weigh against the admissibility of Dr. Cur-rie’s inflicted-injury testimony, and that the trial court therefore abused its discretion by allowing that testimony to be introduced. Appellants, however, have failed to appreciate the basis of Dr. Currie’s opinion.
To begin, Daubert concerned scientific expertise, but the Court subsequently explained that Rule 702 applies to other types of expertise as well and that “[t]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the *283expert’s particular expertise, and the subject of his testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Citing Kumho Tire, this Court has upheld the admission of a forensic pediatrician’s opinion to the effect that burns on a child had been inflicted. The opinion was adequately supported, we held, by case reports documenting burns inflicted by means of cigarette lighters and by the doctor’s own experience with patients who had suffered such burns. “The cause of an injury may be within the ambit of an expert witness’s specialized knowledge,” we held, “and is properly admissible subject to the trial judge’s KRE 702 determination.” Ratliff v. Commonwealth, 194 S.W.3d 258, 270 (Ky. 2006). At the Daubert hearing in this case, Dr. Currie testified that her opinion was in part based on her familiarity with a voluminous body of case reports concerning injuries like those suffered by the child in this case and on her experience as a consultant in more than 3000 cases of potential child abuse, in most of which she had herself examined the child.
Even with regard to the Daubert factors, moreover, Dr. Currie’s testimony easily passes muster. As Dr. Currie explained, in cases of potential child abuse whether an injury was inflicted or accidental is of medical as well as legal significance — it can bear on decisions concerning what tests to perform and what treatments to pursue — and accordingly it has become a standard medical- diagnosis, arrived at differentially, like other diagnoses. That is, a child-abuse ■ pediatrician presented with an injured child will attempt to eliminate from a list of potential causes of the injury those causes not likely in the given case until arriving at the cause that is most likely. For example, Dr. Currie testified that in cases of subdural hematoma blood disorders are a potential cause that must be considered, and in cases of bone fracture bone disorders must be considered. In most cases, trauma turns out to be the likeliest cause, and at that point the question becomes whether the trauma was inflicted or accidental.
As Dr. Currie explained, since the middle of the twentieth century, when advances in radiology gave rise to the discovery that child abuse was far more common than had previously been suspected, see Narang, A Daubert Analysis of Abusive Head Trduma/Shahen Baby Syndrome, 11 Houston Journal of Health Law & Policy 505 (2011) (Narang) (recounting the development of the inflicted injury diagnosis), study after study has been devoted to distinguishing accidental traumatic injury from inflicted traumatic injury. Dr. Cur-rie testified that by comparing cases of known accident with cases of known abuse researchers have established with a high degree of statistical significance that certain injuries and certain patterns of injury are far more likely to have been inflicted than accidental. By the 198Qs, indeed, according to Dr. Currie, the literature in this area had become so extensive that a general pediatrician could not keep up with it. General pediatricians then began to rely on advice from pediatricians who made child abuse the focus of their practice. In 2009, the American Board of Pediatrics recognized this development and endorsed it by offering certification in the sub-specialty' of child-abuse pediatrics. Dr. Curry is so certified, she is the author of a chapter in one of the standard pediatric textbooks on child abuse, and she lectures and presents frequently on that topic at medical conferences.
This Court, as have many others, has recognized differential diagnosis . as a “widely-used technique in the medical community to identify and isolate causes of disease and death,” Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 107 *284(Ky. 2008), andj when properly performed, as “a reliable method of ascertaining medical causation.” Id. See also, Best v. Lowe’s Home Ctr., Inc., 568 F.3d at 178-180 (noting the wide-spread acceptance of differential diagnosis as a valid medical technique). In Best, the Sixth Circuit adopted the following test for assessing the reliability of a differential diagnosis in a given case: did the doctor (1) objectively ascertain the nature of the .patient’s injury; (2) “rule in” one or more potential causes of the injury using a. valid methodology; and (3) reach a conclusion by engaging in standard diagnostic techniques to rule out alternative causes. Dr.- Currie’s diagnosis followed this procedure.
We have also recognized .that an expert’s causation testimony may be based fully or primarily on his' or her review of the pertinent scientific literature, provided that the expert is qualified “to review the literature and render an opinion” on the specific matter at issue, Burton v. CSX Tmnsp., Inc., 269 S.W.3d 1, 8 (Ky. 2008), and further provided that there be “objective, verifiable evidence that the testimony is based on scientifically valid principles.” Id. at 9. “One means of showing this is by proof that'the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication.” Id. As Dr. Currie testified, especially since the advent of computerized databases made available large volumes of medical literature and made possible comprehensive reviews of that literature, literally thousands of1 peer-reviewed studies have been published on whether particular types of pediatric traumatic injury are apt to have been inflicted or accidental. See, for example, Narang, supra, and its companion article, Narang, et al., A'Daúbert Analysis of Abusive Head Trauma/ Shaken Baby Syndrome — Part II: An Examination of the Differential Diagnosis, 13 Houston Journal of Health Law & Policy, 203 (2013) (reviewing the literature — some 700 studies — pertaining to just two types of head injury, subdural hematoma and retinal hemorrhage).' Dr. Currie’s specialized training qualifies her to review and apply those studies, and she testified that appropriate studies informed and strongly supported her diagnosis in this case.
Thus, even with respect to the Daubert factors (testing, peer review and publication, error rate, and acceptance within a relevant community ' of practitioners) an iriflicted pediatric injury diagnosis can be, and in this case was, admissible.- While it is true, as Appellants note, that'the diagnosis generally has not been and' cannot be tested through randomized, controlled trials, it has been tested by repeated scrutiny in peer-reviewed observational studies conducted in accord with well-established statistical principles. Dr, Currie testified that error rates generally apply only to tests meant to establish the existence or not of a single factor, and not to diagnoses that must take multiple, varying factors into consideration. Nevertheless, differential diagnosis is generally recognized. as “ ‘not frequently lead[ing] to incorrect results,’ ” Best v. Lowe’s, 563 F.3d at 179 (iquoting In re Paoli R.R. Yard PCB Li-tig., 35 F.3d 717, 758 (3rd Cir. 1994)); many of the studies underlying the inflicted injury diagnosis have shown a highly predictive association of certain injuries or the- concurrence of certain injuries with inflicted injury, Narang at 579; and Dr. Currie testified that her own practice is to diagnose inflicted injury only conservatively, when the evidence for it;is compelling. On cross-examination in response to a question by defense 'counsel, he stated she was not aware of a single case in which she had diagnosed abuse and was later deter*285mined to be wrong.9 Finally, the fact that child-abuse pediatrics has become a certified pediatric sub-specialty recognized by the American Board of Pediatrics, plainly indicates that the abuse diagnosis is accepted in the most relevant scientific community. In sum, the trial court , did not abuse its discretion under KRE 702 by deeming Dr. Currie’s testimony reliable.
Reliability is not the end of the Daubert analysis. In addition to requiring that an expert’s testimony be reliable, KRE 702 also requires that it “assist the trier of fact to understand the evidence or to determine a fact in issue.” The testimony, that is, must be relevant, it must relate to a material issue in the case and it must “fit” the case in the sense that there must be “a valid scientific connection” between the expert’s specialized knowledge and the pertinent inquiry confronting the trier of fact. Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786. Even if relevant, moreover, expert testimony is subject to KRE 403 and may be excluded “if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury. — ” Because of the difficulty a lay jury is apt to have in evaluating it, expert testimony pose’s a significant risk of being misleading, a risk that should inform the trial court’s KRE 403 analysis. See, Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (because expert testimony can be “both powerful and quite misleading,” the trial court “in weighing possible prejudice against probative force ... exercises more control over experts than over lay witnesses.”) (citation and internal quotation marks omitted). Appellants contend that even if reliable for the purposes of KRE 702, Dr. Currie’s testimony should still have been excluded because it was not relevant and because it was unduly prejudicial. We disagree.
Evidence is relevant under KRE 401 if it has “any tendency to make the existence of any fact that is of consequence to the determination- of the action more probable or less probable than it would be without the evidence.” Dr. Currie’s testimony that the child’s injuries were not accidental but had been inflicted was obviously relevant and helpful to the jury in a case where the defense was accident. Also relevant and beyond the jury’s lay- knowledge was Dr. Currie’s testimony that both'the head injury and the abdominal injury were so severe that upon receiving them the child would likely have 'been rendered unconscious and would certainly have immediately been rendered symptomatic. That testimony tended to' refute defense claims that the injuries may have been' sustained sometime prior to the early morning of July 16, 2011.
In the face of this obvious relevance, the Appellants’ assertion that Dr. Currie’s testimony was not relevant is puzzling, but the claim seems to be that Dr. Currie’s opinion about an “ultimate”. issue in the case was not relevant and should have been left to the jury. This claim is absolutely meritless. Dr. Currie did not opine that Appellants were guilty (the ultimate issue) ‘or that Appellants were the perpetrators. See State v. Sanchez-Alfonso, 352 Or. 790, 293 P.3d 1011 (2012) (holding that identity of the' perpetrator not a valid part of the abuse diagnosis). Otherwise, as the Appellants acknowledge, this Court aban*286doned the so-called ultimate issue rule in Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997). If the Appellants’ “relevancy” argument is meant to be an invitation to reconsider Stringer, we decline the invitation.
Equally meritless is the contention that Dr. Currie’s testimony ought to have been excluded under KRE 403. Among other things, that rule permits, the exclusion of evidence which, though relevant, poses a substantial risk of undue prejudice, ie., a risk that the evidence will induce the jury to base' its decision on emotion or some other improper ground. Wilson v. Commonwealth, 438 S.W.3d 345 (Ky. 2014). Appellants assert that Dr. Currie’s testimony was unduly prejudicial because the doctor expressed confidence in her diagnosis (“This is a clear case of abuse.”), and because of her testimony, noted above, that she was not aware of ever having made an incorrect abuse diagnosis. Since the latter testimony was presented to the jury only because it was specifically elicited by the Appellants, they will not be heard now to complain about it. Furthermore, Dr. Currie explained in detail her findings and why she thought this a clear casé of abuse. Her confidence did not render her explanations unduly prejudicial.
In sum, the trial court did not abuse its discretion under KRE 702 by allowing Dr. Currie to opine that the injuries suffered by the child in this case were inflicted and not accidental. Many other, courts, have similarly held. See, e.g., Commonwealth v. Roderiques, 462 Mass. 415, 968 N.E.2d 908 (2012); McFolley v. State, 289 Ga. 890, 717 S.E.2d 199 (2011); O’Brien v. United States, 962 A.2d 282 (D.C. 2008); State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007); State v. Boyer, 741 N.W.2d 749 (S.D. 2007); People v. Martinez, 74 P.3d 316 (Colo. 2003); State v. Struzik, 269 Kan. 95, 5 P.3d 502 (2000). And see, Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (holding that admission of shaken-baby-syndrome testimony did not violate the Due Process Clause); Cavazos v. Smith, — U.S. ——, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011) (reversing grant of habeas corpus and holding that expert shaken-baby-syndrome testimony was sufficient to support conviction of assault on child resulting in death). In short Dr. Currie’s testimony did not taint the trial in any way.
V. The Trial Court Erred By Allowing the Appellants too Few Peremptory Juror Challenges.
Other possibly recurring issues raised by the Appellants can be addressed more succinctly. Clearly, the trial court granted Appellants too few peremptory juror challenges. The trial court allowed Lord and Futrell a total of eleven such challenges. As construed in Springer v. Commonwealth, 998 S.W.2d 439 (Ky. 1999), RCr 9.40 allows two defendants to be tried jointly before a jury with one or two alternate jurors a total of thirteen peremptory challenges: “nine to be exercised jointly pursuant to- RCr 9.40(1) and (2); one each to be exercised independently pursuant to RCr 9.40(3); and an additional one each to be exercised independently pursuant to RCr 9.40(2).” 998 S.W.2d at 444.
VI. The Trial Court Erred By Disallowing Diversion-Agreement Impeachment Cross-Examination.
Appellants also correctly contend that they should have been allowed to impeach Johnny Stephenson with, the fact that at the time of his testimony he-was on pre-trial diversion following his guilty plea to burglary and theft charges. The, diversion agreement was subject to revocation, *287and the United States Supreme Court has held that similarly revocable deals between witnesses and the prosecution implicate the defendant’s Confrontation Clause right to effective cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Such a deal implicates that right, the Court has explained, because “a jury might reasonably have found [that the threat of revocation] furnished the witness a motive for favoring the prosecution in his testimony.” Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431. As the Commonwealth points out, in Holt v. Commonwealth, 250 S.W.3d 647 (Ky. 2008), we held that in the circumstances of that case the trial court had not erred by disallowing diversion-agreement cross-examination, but this ease we think falls squarely within the Supreme Court’s holdings.
VII. The Trial Court Did Not Err By Allowing the Admission of Autopsy Photographs.
The trial court did not err by allowing the introduction during the medical examiner’s testimony of autopsy photographs illustrating the examiner’s findings. The court took care to exclude redundant photos and photos otherwise with little probative value. We have upheld the admission of such autopsy photographs many times. Staples v. Commonwealth, 454 S.W.3d 803 (Ky. 2014) (collecting cases).
VIII. The Trial Court Did Not Err By Allowing the Admission of Prior-Act Evidence Relevant to a Material Issue Other Than Appellants’ Characters.
Nor did the trial court err by allowing friends and acquaintances of Appellants to testify about seeing bruises on the child after Futrell came to be involved with him; about seeing Appellants physically disciplining the child and verbally abusing him; and about seeing Appellants engage in an argument during which Fut-rell expressed exasperation with and contempt for the child, and during which the couple’s conflict directly endangered the child. Appellants maintain that all of this testimony should have been excluded under KRE 404(b) as evidence calculated only to show bad character and action in conformity therewith. That rule provides, however, that evidence of other acts may be offered for such non-character purposes as proof of motive, opportunity, identity, or absence of mistake or accident. All of the challenged evidence here was relevant to rebut Appellants’ claim that the child’s fatal injuries were the result of a series of accidents, ie., swallowed chewing gum and then improper CPR. Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002) (holding in child-sex-abuse case that “evidence of similar acts perpetrated against the same victim are almost always admissible for [the purposes enumerated in the rule].”); Dant v. Commonwealth, 258 S.W.3d 12 (Ky. 2008) (citing Noel and upholding in a physical abuse case the admission of prior acts of physical abuse against the same victim). And see, Estelle v. McGuire, 502 U.S. at 62, 112 S.Ct. 475 (holding in a physical abuse case that due process did not require the exclusion of evidence of prior acts of abuse against the same victim because the prior acts tended to prove that the ultimate injury was not accidental).
Finally, Appellants also contend that the trial court erred by denying their requests for lesser-included-offense instructions. The particular errors complained of may or may not recur at a new trial, where the evidence bearing on lesser offenses is apt to be different. We decline, therefore, to address these contentions.
*288
CONCLUSION
The trial court erred in failing to strike two' jurors for 'cause and, given that all elements of the Gabbard inquiry are satisfied, the Appellants’ convictions must be reversed. Kayla Lord may be retried on both principal and complicity theoriés of murder (intentional or wanton) but, for the reasons outlined Jared Futrell is not subject to retrial on a complicity theory, the Commonwealth having presented no evidence that he aided and assisted Lord as she committed a fatal attack on her child. Futrell may, of course, be retried as a principal in the murder (intentional or wanton) of Staten Stephenson. Accordingly, in both 2013-SC-000184-MR (Futrell) and 2013-SC-000200-MR (Lord), we reverse the Judgment of the Wayne Circuit Court and remand for additional proceedings consistent with this Opinion.
Minton, C.J.; Barber; Keller, Noble, and Venters, JJ., concur.
Cunningham, J., concurs in part and dissents in part by séparate opinion.
. The tube was inserted through the child's mouth and apparently in that circumstance it is often referred to as an "OG” (oral-gastrial) tube rather than an "NG” tube. The medical records in this case have it both ways, so we have followed the parties’ practice.
. She is also referred to in the record as Betsy Lyons.
. “A properly qualified juror must be impartial, which former United States Supreme Court Chief Justice Charles Evans Hughes described as comprising a ‘mental attitude of appropriate indifference.’ ” Paulley v. Commonwealth, 323 S.W.3d 715, 720-21 (Ky. 2010) (quoting United States v. Wood, 299 U.S. 123, 145-46, 57 S.Ct. 177, 81. L.Ed. 78 (1936)).
. The Commonwealth notes that while both Appellants argue that potential Juror 75 should have been removed for cause, neither of them in the portion of his or her brief explaining how the alleged error was preserved, "makes [an] allegation that he [or she] ... used a peremptory strike on 75.” Both Appellants expressly make that allegation with respect to potential Juror 27, and we agree with the Commonwealth that the lack of a similar express allegation with respect to Juror 75 seems odd. Odd or not, however, we reject the Commonwealth's unsupported suggestion that the failure to expressly assert in their brief the use a peremptory strike on potential Juror 75 as well as on potential Juror 27 amounts somehow to an abandonment of their claim with respect to 75. The record makes clear that potential Juror 75 (as was potential Juror 27) was in fact removed *274by way of defense peremptory. Whatever the reason for the failure of the Appellants’ briefs to allege that fact expressly, the briefs adequately imply it and proceed to address the issue.
. We quote the instructions from, Lord’s case. With exceptions, discussed below, with respect to Instruction 6-B regarding Complicity to Wanton Murder, the instructions in Fut-rell’s case were identical aside from name and gender changes.
. Appellants’ arguments on this issue conflate a basic claim — that in this particular case a rational juror could not-have made a complicity finding and thus the combination instruc- ' tion was improper because it included an unsupported theory of the offense — with more general claims — that combination murder .instructions are inherently improper because they invite the jury to impute the principal’s mental state, and hence degree of culpability, to the accomplice and because complicity should be deemed a separate offense. We discussed the specific claims below. We reject the more general claims as we have before. See Halvorsen v. Commonwealth, supra. The instructions here plainly required the jury to find Lord herself aggravatedly wanton before it could find her guilty of wanton murr der, either as principal or as accomplice. Even considering the mental state element, therefore, we are not persuaded that, where both theories are supported by the evidence, a combination principal/accomplice instruction is materially different from any other combination instruction. Appellants also request, in effect, that we reconsider our holdings to the effect that complicity is not a separate ' offense.' This we decline to do. Although, we acknowledge that under our current approach complicity instructions can assume a troubling complexity. This precise issue was not preserved. KRS 502.020, moreover, clearly provides that “complicity” is not itself an offense; it is rather a basis for imputing liability to the complicitor for "an offense committed by another.”
. Travis’s rule of mandatory reversal presumes that the instructional error was preserved. The issue was preserved here. At the close of proof, when the Commonwealth moved to amend the indictment so as to charge both Lord and Futrell as accomplices as well as principals; they both objected to the amendment expressly on the ground that the evidence of complicity was not sufficient.
. Our Rule was amended in 2007 to “follow the development [of] and adopt[] exact language set by the Federal Rules.” KRE 702, Review Commission Notes.
. Appellants complain that this testimony was improperly self-bolstering. Clearly though this testimony was proper during the Daubert hearing, when the court was trying to assess the reliability of Dr. Currie’s methods. At trial, Dr. Currie did not mention her track record until defense counsel, apparently recalling the Daubert hearing testimony, asked her what it was. .Dr. Currie then repeated her Daubert-hearing remarks. That completely invited response was not improper self-bolstering.' | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284379/ | CUNNINGHAM, J.,
CONCURRING IN PART AND DISSENTING IN PART:
I respectfully concur in part and dissent in part. I concur in the reversal of this conviction for failure of the trial court to remove for cause the two potential jurors as addressed fully by the Majority.
I disagree with the Majority that there is not sufficient evidence to retry co-defendant Futrell for complicity in aiding and abetting co-defendant Lord in the commission of murder. .. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284381/ | VENTERS', J.,
DISSENTING:
I respectfully dissent because I believe the Majority embarks upon an unwise departure from the sound social policies realized in the Manis rule. Based upon a faulty premise, the majority abolishes the well-established Manis rule that has worked well in Kentucky for nearly 50 years and continues as the rule in many states.
The flaw of the majority’s reasoning is signaled by this statement, found on page 14 of its opinion: “[T]he Manis .rule create[s] a legal anomaly excepting obvious outdoor natural hazards from the comparative-fault doctrine.” That is incorrect, as explained below. For more than thirty years, the Manis rule has co-existed in complete harmony with comparative fault. Moreover, the majority’s premise reveals its conflation of two distinctly different concepts: duty and liability, or more directly, the existence of a duty and the allocation of liability. The Manis rule pertains to the, existence of a legal duty. The existence of a legal duty is a policy determination made legislatively by statute or judicially by common law decisions. Comparative fault, like, contributory negligence, pertains to how liability (or, if you prefer, “fault”) for an injury will be allocated after it has been determined that one or more of the parties breached a duty imposed by law. Nothing about the Manis rule is incompatible with comparative fault.
Because the majority conflates the concepts of duty and liability, it erroneously concludes that the Manis rule is an offshoot'of contributory negligence, and from there it reasons that the abrogation of the latter doctrine requires the demise of the former. The Manis rule is not derived from contributory negligence; it has been proven to be sound social policy operating without complication or injustice in comfortable harmony with comparative fault. The Manis rule is as viable now as it was in 1968 when the case of Standard Oil Co. v. Manis, 433 S.W.2d 856 (Ky. 1968), was decided. The circumstances that validated the wisdom of the rule when it was articulated have not changed. As long as the hazards of naturally-occurring accumulations of snow and ice remain intractable, there is no reason to change the rule.
The claim that the Manis rule survives only as a remnant of the by-gone era of contributory negligence reflects a fundamental misperception about the develop*301ment of tort law that we dispensed with in Henson v. Klein, 319 S.W;3d 413 (Ky. 2010), where we rejected a similar claim that the sudden emergency doctrine was an outmoded vestige of contributory negligence incompatible with comparative fault. Like the Manis rule, the sudden emergency doctrine pertain's to the question of whether duties exist and what the duties require. In no way does it affect, nor is it affected by, the method by which liability for a breach of those duties is allocated. We said in Henson:
Although the sudden emergency doctrine developed when contributory negligence denied damages to injured plaintiffs whose own breach of care contributed to their injuries, it is not in principle uniquely or exclusively applicable to contributory negligence. Moreover, nothing in the substance of the doctrine is incompatible with the more equitable principles of comparative negligence.
319 S.W.3d at 422.4 We warded off the same contention in Shelton v. Kentucky Easter Seals Soc., Inc., with respect to the “open and obvious hazard” doctrine as it pertains to artificially-created hazards:
The adoption of comparative negligence ... did not alter the requisite elements of a prima facie negligence claim. As a result of the holding in Hilen v. Hays, Kentucky became a pure comparative-fault state; but under comparative fault a plaintiff must still prove the defendant owed a duty to the plaintiff, breached that duty, and consequent injury followed. The evolution from contributory negligence to comparative , fault focused on the method in which fault is allocated but did not alter the substantive law surrounding what' duties are owed by a defendant.
413 S.W.3d 901, 906 (Ky. 2013) (emphasis added).
To reiterate: the shift to comparative fault “did not alter the substantive law surrounding what duties [exist].” Id. Ultimately, in Shelton we abrogated the “no duty” aspect of the open and obvious doctrine as it pertains to artificially-created hazards, but we did so for reasons based purely upon social policy. We did not succumb to the flawed reasoning that the “open and obvious” doctrine was based upon the theory of contributory negligence.
' Shelton emphasized that “[t]he determination of whether a duty exists is a legal question for the court.” - Id. at 908. “[W]hether a duty of care exists is ... a purely legal question, grounded in social policy.” Id. at 913. - We found no solid social policy to sustain the open and obvious rule in the context of an indoor artificially-created hazard. However, those policy considerations have no relevance to the conditions of naturally occurring snow and ice. The social policies supporting the Manis rule are reviewed below; but first, an explanation-to dispel the notion that the Manis■ rule is the step-child of contributory negligence.
A. The Manis Rule was not based upon contributory negligence and its continuing viability is not at odds with comparative fault.
“The Manis rule,” derived from Standard Oil v. Manis as well as subsequent cases including Corbin Motor Lodge v. Combs, 740 S.W.2d 944, 946 (Ky. 1987), and PNC Bank, Kentucky, Inc. v. Green, *30230 S.W.3d 185 (Ky. 2000), may be summarized as follows:
An obvious and natural accumulation of snow and ice does not constitute an unreasonable risk which the landholder (a landowner, a leaseholder, tenant, or other person with control of land) has a duty to remove or warn against; however, a landholder who undertakes to mitigate the danger posed by the snow and ice assumes the duty to avoid measures that heighten or conceal the dangerous condition.
As commonly condensed, the rule provides that a landholder has no duty with respect to naturally-occurring accumulations of snow and ice. This “no duty” aspect of the Manis rule has nothing to do with the contributory negligence of the invitee. Contributory negligence has never operated to exempt a person from a duty of care. Contributory negligence did not diminish the landholder’s general duty to maintain his property in a reasonably safe condition. Contributory negligence did not eliminate or reduce any duty at all. It simply provided that the landowner cannot be held liable for breaching his duty of care when an invitee’s own negligence contributed to the injury. The difference between having no duty and having no liability for the breach of a duty is fundamental. Under contributory negligence, the landholder has no liability despite his breach of a duty; under the Manis rule, the landholder has no duty.5
The point is further illustrated by the fact that the Manis rule insulates the landholder from liability for injuries caused by natural accumulations of snow and ice, even when the invitee has exercised the utmost care for his own safety and acted in the most reasonable way 'possible. The Manis rule simply takes no account of the invitee’s exercise of care. Given the universal knowledge that snow and ice left in the aftermath of a winter storm are dangerous, more often than not the vast majority of people exercise extreme caution when walking on ice, just like the injured pedestrian in PNC Bank, Kentucky, Inc. v. Green who complained the she “was forced to walk like she was ‘walking on eggs’ to avoid falling.” 30 S.W.3d at 187. That is exactly what people of ordinary common sense have always done. Yet, despite the exercise of extreme caution, people get injured because snow and ice in freezing weather is a natural condition that defies human control. The Manis rule applies to bar tort recovery, not because the plaintiff was negligent, but because the landholder had no duty. Far from being a rationale supporting the Manis rule, the plaintiffs contributory negligence is immaterial under Manis.
To hold that the Manis rule is derived from contributory negligence ignores the fact that Manis is completely indifferent to the conduct of the invitee. Regardless of how careful or how careless the invitee may be, under Manis, the landholder has no duty to render his property safe from the risks inherent to natural accumulations of snow and ice. To the contrary, contributory negligence is totally based upon the conduct of the invitee because, regardless of the landholder’s duty, it bars recovery *303when the invitee’s negligence, no matter how small, contributed to his injury.
Articulated nearly fifty years ago, the Manis rule operated concurrently with contributory negligence for only sixteen years, until 1984 when comparative fault supplanted contributory negligence. For a far longer span of time, over thirty years, the Manis rule has applied predictably, consistently, and harmoniously with comparative fault. The majority may denigrate the Manis rule by imputing to it a pedigree rooted in contributory negligence, but it improperly does so by inappropriately conflating the existence of a duty with the apportionment of liability resulting from the breach of a duty.
In Shelton and Henson, we recognized that comparative fault does not affect the substance of common law duties; rather, it operates within the existing regime of common law duties to allocate liability after it is determined that a duty was breached. Long ago, the Wyoming Supreme Court rejected the same claim now embraced by the majority when Wyoming’s rule, equivalent to the Manis rule, was challenged as a vestige of contributory negligence. That court said:
Comparative negligence only abrogated absolute defenses involving the plaintiff’s own negligence in bringing about his or her injuries. However, it did not impose any new duties of care on prospective defendants. Since the law of this state is to the effect that there is no duty to remove or warn of an obvious danger or one that is known to the plaintiff no change was accomplished in that law by the adoption of comparative negligence.
Sherman v. Platte County, 642 P.2d 787, 790 (Wyo. 1982) (emphasis added) (citation omitted).
The majority speculates (see footnote 2 at the bottom of page 13) that this Court’s refusal to retreat from the Manis rule when we decided Corbin Motor Lodge v. Combs in 1987 “may have been instrumental in the passage of KRS 411.182, which establishes comparative fault by statute.” That is strange indeed, because if the General Assembly was roused to action by our application of the Manis rule in Corbin Motor Lodge, it could easily have expressly abrogated the Manis rule at the same time. As long as we’re speculating, the fact that the General Assembly chose not to do so suggests strong legislative support/or the Manis rule.
Because the legislature has not weighed in with its policy prerogative, whether the Manis rule is abolished or upheld remains exclusively a public policy decision for this Court to decide. A wise decision on that issue should be based upon the continuing social value found in the benefits and burdens of the rule; it should not be based upon the illusion that the rule is tainted by an association with contributory negligence or is otherwise out-of-synch with the more fashionable trends of tort law development.
B. The Manis rule is a manifestation of sound and wise social policy; the hazard caused by naturally occurring snow and ice is not an “unreasonable” risk from which any duty arises.
Shelton re-affirms that whether a duty exists is a purely legal decision that can be made by the Court as a matter of social policy. Our responsibility for the development of common law duties obliges us to be mindful of the practicalities of day to day life as we craft social policy. Our function in that regard is to establish duties, or standards of care, that deter harmful behavior and promote beneficial conduct. After great deliberation and debate, we concluded in Shelton that the *304open and obvious doctrine as it pertained to artificial, man-made hazards, was no longer sound social policy. Some naturally occurring conditions, specifically snow and ice, present different considerations.
The overarching principle of premises liability is that “a landowner has a duty to an invitee to eliminate or warn of unreasonable risks of harm.” Shelton, 413 S.W.3d at 914. The same duty can also be described this way: “an invitor has a duty to maintain the premises in a reasonably safe condition 'in anticipation of the invitee’s arrival.” Id. at 908. “Reasonableness,” whether stated as an “unreasonable risk” or as a “reasonably safe condition” is the essential quality of a landholder’s duty. In Shelton, we recognized that the reasonableness of a risk, and hence the existence of a duty, should be discerned by- a jury, analyzing and weighing the benefits and burden of requiring the landholder to remove the hazard against the benefits and burden of not requiring the landholder to act. Id. at 918. (“There must be a weighing of the burden of eliminating* the risk with the harm posed.”).
Implicit in the Shelton calculus was our recognition that virtually every artificial hazard can be removed, fixed, or otherwise eliminated by the same hands that made the hazard or tolerated its presence. Loose wiring on the floor can be bundled and moved or covered with furniture; loose handrails on stairways and balconies can be secured; - potholes in-the parking lot can be filled; dark porches can be illuminated; broken steps, torn rugs and rotten floorboards can be repaired or replaced; asbestos can be removed or contained; grease on the pavement can be cleaned; spilled food on the grocery floor can be mopped up or roped off; a sharp curb- can be reshaped.
Shelton calls for a balancing process by which a hazard could not be regarded as an “unreasonable risk” when the burdens of eliminating it exceeded the risk of harm created by it. As noted above, virtually all of the artificial, or man-made, hazards that have caused injury in the cases we have seen were subject to relatively simple fixes, and so the question of whether they pose an. “unreasonable risk” can be readily determined. In real life, that assessment would be first undertaken by the landholder in deciding how to maintain his property. If injury and litigation ensue, under Shelton the jury would balance the scales and make the determination.
In sharp contrast however, the hazards of naturally-occurring accumulations of snow and ice present a fundamentally different problem. Despite all the technological advances since Manic was decided nearly fifty years ago, rock salt (or a similar compound) and snow shovels are still the state-of-the-art means for coping with snow and ice. And as everyone knows, they do not eliminate the hazard. Sometimes, they even make the hazard worse, as noted in Estep v. B.F. Saul Real Estate Inv. Trust, 843 S.W.2d 911, 914 (Ky. App. 1992) (Landholders who attempted to clear their lot and sidewalks of ice and snow assumed the' duty of doing so in a reasonable manner or be liable for their failure).
The landholder generally has no better ability to protect invitees from the hazards of snow and ice on a parking lot than he does to protect them from the hazards of a parking lot inundated with flood water or from the danger of strong winds that might cross his lands. In real-life, a landholder in freezing weather can no more effectively melt the ice from his sidewalk than he can hold back the flood waters or stop the wind.
No social benefit is achieved by imposing a duty that cannot be performed. We have repeatedly reaffirmed over the past fifty years that natural accumulations of *305snow and ice do not pose an “unreasonable risk” and so the landholder’s duty of ordinary care does not include an obligation to eliminate the hazard. Because the risk posed by snow and ice is a reasonable risk, it gives rise to no duty. The risk is reasonable, or stated in the alternative, the risk is not unreasonable, because: 1) the danger is readily apparent; 2) the eonse-. quences to pedestrians (falling) and to mo1 torists (wrecking) are universally understood; and 3) “the burden of eliminating the risk” is a practical impossibility. Even after the best efforts of snow and ice-removal are undertaken, the danger to those who walk on it remains. This is as true now as it was in 1968 when Mariis was decided.
The social policies informing our debate about the existence of a duty also require us to account for the ability of respective actors in the relevant arena to control the instrumentalities that inflict harm. For example, we do not impose upon a ear manufacturer the duty to remove hazards from a car built by a different car maker, nor do we burden a landholder with the duty to remove hazards from his neighbor’s land. The reasons are plain. To be sure, there is a measure of justice in requiring that those who cause injury must bear the burden of fixing it. But the greater reason is that to serve the social policy of reducing or eliminating the harm of 'injuries, the “burden of eliminating the risk” must land upon someone with enough control over the hazardous situation to fix it. With respect to snow and ice, the landholder may have control over land but he has no control over the weather. He has no way to control the snow and ice; and no way to effectively prevent it from hurting those who choose to walk' upon it.
In contrast with the landholder’s inability to control where the snow falls and where the ice remains, the invitee has absolute and total control of where and when he places his foot on the snow-covered ground. The injury does not occur until the invitee comes into contact" with the obvious danger. The invitee has far more control over how his body will come into contact with the ice ahead of him. As noted in the preceding section, it is generally foreseeable that people walking on snow and ice exercise the utmost caution; they are not’ careless. But, the social policy we evaluate has nothing to do with the invitee’s negligence or lack thereof. It has all to do with .the ability to control the circumstances that can prevent the harm. There is great wisdom in placing the burden of the reducing the risk upon the one who has the best ability to control the risk. The Manis rule does that. •
If our social policy is based upon the goal of reducing harmful injury, shifting the duty to the landholder by eliminating the Manis rule does not advance us to that goal because we would be placing the duty on one who cannot prevent the harm. The Supreme Court of Texas, a state which also operates under the Manis rule, noted that “the plaintiff is in a much better position to prevent injuries from ice or snow because the plaintiff can take precautions at the very moment the conditions are encountered.” See Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 414 (Tex. 2010) (quoting Eiselein v. K-Mart, Inc., 868 P.2d 893, 898 (Wyo. 1994) and citing to Manis). This point is important because it exemplifies the social policy at work — placing the duty to reduce harm on the actor who has the best ability to control the instrumentality of harm. It has nothing to do with the putative negligence of an invitee; it has all to do with control of the circumstances leading to the injury, which are inherently retained by the invitee.
*306The Supreme Court of Ohio has also rejected efforts to abrogate its articulation of the Manís rule:
Recognizing [the inherent dangers of winter weather] we have previously rejected the notion that a landowner owes a duty to the general public to remove natural accumulations of ice and snow from public sidewalks which abut the landowner’s premises, even where a city ordinance requires the landowner to keep the sidewalks free of ice and snow.... [W]e are unwilling to extend homeowner liability to cover slip-and-fall occurrences caused entirely by natural accumulations of ice and snow. To hold otherwise would subject Ohio homeowners to the perpetual threat of (seasonal) civil liability any time a visitor sets foot on the premises, whether the visitor is a friend, a door-to-door salesman or politician, or even the local “welcome wagon.”
Brinkman v. Ross, 68 Ohio St.3d 82, 623 N.E.2d 1175,1177-78 (Oh. 1993).
The Illinois Supreme Court retains the same rule, holding in Krywin v. Chicago Transit Auth., 238 I11.2d 215, 345 Ill.Dec. 1, 938 N.E.2d 440, 450 (Il. 2010):
[T]he natural accumulation rule applies in this case and [the landholder] had no duty to remove the natural accumulation of ice and snow from its platform, nor any duty to warn of the existence of such natural accumulation. As there was no evidence that the ice on the platform where plaintiff fell was anything other than a natural accumulation[.]
Other states retaining the “no duty” rule for natural accumulations of snow and ice include North Dakota (see Fast v. State, 680 N.W.2d 265, 270 (N.D. 2004)) (“We need not decide whether the snow and ice accumulation in this case was natural or artificial because, given the climate in North Dakota, it would be unreasonable and unduly burdensome to hold the State liable without some further act or omission on its part creating an unreasonably dangerous condition.”) and Wyoming. See Eiselein v. K-Mart, Inc., 868 P.2d 893, 895 (Wyo. 1994) (“[T]his court has adopted the rule that an owner or occupier of a premises will not be liable for injuries resulting from a slip and fall on a natural accumulation of ice or snow.”). However, we should not need a state-by-state survey to know the best policy for Kentucky. Given the fundamental differences between artificially-created hazards and the natural accumulation of snow and ice, and considering the social policies inherent to exercising our responsibility over the common law doctrine, I respectfully suggest that neither justice nor the people of Kentucky will be well-served by abrogating the Man-ís rule. The majority errs in doing so.
It is suggested that eliminating the Manís rule will encourage landholders to be pro-active in clearing their land of snow and ice. Common experience refutes that assumption, especially as it relates to business property. It is well-known that when a winter storm hits Kentucky, after a brief flurry to secure basic commodities, commerce comes to a virtual standstill as drivers are warned to stay off the roads. Businesses strive to make their properties as inviting as possible to employees and customers, working diligently to clear what can be cleared. Common everyday experience confirms that the Manís rule does not overcome the landholder’s fundamental incentive to make property safe and attractive for invitees. There is certainly no evidence to suggest that doing away with the rule will promote the social policy of making property safer.
It is also worth noting that elimination of the Manís rule will have its harshest effect on residential landholders, especially *307those who lack the means and resources to attack the hazard that nature has dropped upon their land. Until now, homeowners and renters have had no duty to remove the snow that fell and the ice that formed upon their sidewalks and driveways. From now on, they will be obligated to brave the elements, risking injury to themselves in a futile attempt to eliminate the defects that can only be truly “repaired” by warmer air and sunshine, which fortunately in Kentucky is usually only a few hours away, and rarely is it more than a day away. I fail to see the social advantages of the policy imposing that duty. We could as well impose a duty upon owners of outdoor swimming pools to protect invitees from the harmful ultraviolet rays of the sun, and one could reasonably construe the majority opinion as now imposing that very duty.
Under the majority opinion, the “burden” of snow and ice removal now placed upon the residential landholder might be ameliorated by the jury sorting out the inequities with a finding that the residential landholder has satisfied his duty to take “reasonable” measures if he has done no more than what his particular circumstances permit him to do. But then, we have one duty for the rich and another duty for the poor;. one for the hearty and healthy landholder who can shovel snow and another one for the frail and disabled. Attorneys, judges, and juries alike must now bend the assessment of what is “reasonable” to accommodate the particular circumstances of the landholder, essentially reflecting a social policy that says the poor man’s invitee is due less protection than invitees of the wealthy. Shoppers at stores operated by large wealthy corporations, such as Walmart, would be entitled to greater protections than those shopping at corner grocery stores in poor neighborhoods. We do not allow for such distinctions based upon wealth and status when .assessing what duties a driver on the highway must observe, but we do so now with respect to. premises liability. The majority’s new rule opens the door to vast realms of new issues to litigate and it solves nothing. It is a new rule for the -sake of having a new rule, and a solution in search of a problem.
The Manis rule is fair because it leaves all participants on equal footing. When confronted with naturally-occurring snow and ice, landholders and pedestrians alike must decide for- themselve's what risks they will take and what responsibilities they will assume. Each conforms his conduct to his own expectations, - abilities, and needs. I fail to see the social advantages of abolishing that policy. The Manis .rule is a valuable social policy now being discarded by this Court because the majority mistakenly assumes that despite the thirty years of practice to the contrary, the policy is no longer compatible with comparative negligence.
C. The trial court correctly granted summary judgment.
Appellant argues that even under the Manis rule, summary judgment would be improper because genuine issues of material fact remain in dispute. He identifies those facts as follows: 1) Was the ice upon which he fell a naturally-occurring accumulation or had it been transferred tliere by some other, presumably artificial, means? 2) Could Appellant have foreseen that a dangerous patch of ice would accumulate under the Holiday Inn carport? 3) Did the Holiday Inn undertake to remove the ice, thereby voluntarily assuming a duty not otherwise imposed by the law? And, 4) Was, Appellant forced to encounter the hazard by the lack of another means to exit?
*308Appellant is correct that if any of these questions were answered to his advantage, the Manis rule would not act as a bar to his recovery. The ■ trial court correctly determined that there was no genuine dispute about those facts. First, Appellant offered no evidence indicating that the source of the ice was anything other than a naturally-occurring accumulation. Appellant fell at 6:30 AM on a freezing February morning following a winter storm that dropped four inches of snow and ice overnight. The fall occurred in a carport with three sides open to the wind-driven snow. Thére is speculation and conjecture about it, but no evidence to support any finding other than the most obvious conclusion— the ice was the natural result of the preceding storm;
Second, Appellant’s lack of foreseeability argument is based upon his claim that he “had thé right to believe the covered walkway (the carport under which he fell) was free from potential hazards” because the Holiday Inn’s night manager should have known about the snow and ice under the carport. Appellant’s ability or inability to foresee the danger is not a material fact. Even if it was, having a “right” to a hazard-free passway does not eliminate the foreseeability of hazardous ice following a major winter storm that only a few hours earlier 'had forced Appellant off the' inter-staté highway in search of shelter.
Third, Appellant is correct that under PNC Bank v. Green, supra, Holiday Inn had a duty to avoid making things worse, converting a natural hazard into a man-made one. The evidence offered by Appellant to sustain that contention is the fact that the Holiday Inn had a snow removal plan which had not yet been effectuated at the time of his injury. Failing to' initiate action when one has no obligation to do so is far different from taking actions that aggravate an already bad situation. Obviously, the Holiday Inn’s failure to act sooner did not aggravate the natural condition that Appellant confronted when he left the building.
Finally, there is no evidence that Appellant was forced to leave the Holiday Inn at 6:30 in the morning before sunrise. He offered no evidence that he was forced to depart because of a check-out time imposed by the Holiday Inn, that he had overstayed his welcome, or was otherwise compelled to evacuate. This is not a case in which an invitee claims he was constructively trapped by the landholder’s failure to address the hazard for an inordinate amount of time. This injury occurred before daylight a few hours after the snowfall. Here, there was even uncertainty about whether the storm was over. The urgency in Appellant’s departure, was at his own behest. There is no suggestion that it was forced upon him. For these reasons, I agree with the trial court and the Court of Appeals , that summary judgment was an entirely appropriate disposition of this unfortunate event.
In conclusion, I respectfully submit that the majority is wrong in its assumption that the Manis rule must be abolished because it is based upon contributory negligence. The premise upon which the majority opinion is based is flawed. The social policy adopted by the majority, imposing a duty upon landholders to eliminate the dangers of natural accumulations of snow and ice is an unwise departure from a sound, beneficial common law principle.
I would affirm the decisions of the trial court and the Court of Appeals. Therefore, I dissent.
Abramson and Cunningham, JJ., join.
. It could also be said that every legal principle of Kentucky jurisprudence that existed before 1984 developed when contributory negligence was the. law. That does not make thoge principles dependent upon or derivative of contributory negligence.
. Other rules provide exemptions from duties of care in special circumstances. For example, a railroad landholder has no duty to maintain in any way the safety of a private rail crossing, and no duty to warn of the dangerous conditions. See Calhoun v. CSX Transp., Inc., 331 S.W.3d 236, 242 (Ky. 2011). As noted in the dissenting opinion in Calhoun, a century of development in railroad technology, mainly the elimination of the steam locomotive, casts doubt upon the lingering wisdom of that rule. Id. at 248. But, we have not seen any comparable development in the technology of snow and ice removal that would warrant a change in the rule. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284382/ | OPINION
MAZE, JUDGE:
The Department of Revenue, Finance and Administration Cabinet (the Department) appeals from an order of the Franklin Circuit Court upholding an order by the Kentucky Board of Tax Appeals (Board). The Department argues that the Board and the circuit court erred in finding that horse trailers which include living quarters similar to those in recreational vehicles fall within the statutory exemption from sales taxes under KRS 139.470(21). However, we agree with the Board and the circuit court that the trailers at issue are “intended for the carriage of freight,” and that the transportation of horses is within the meaning of the term “carriage of freight.” Hence, we affirm.
The underlying facts of this matter are not in dispute. Shinin’ B Trailer Sales, LLC (Shinin’) is a single member limited liability company owned and operated by John T. Bradbury in Elizabethtown, Kentucky. Shinin’ sells horse and livestock trailers. The Department conducted an audit of Shinin’ for the period January 1, 2008 through December 31, 2010. Following that audit, the Department concluded that Shinin’ had failed to collect sales tax on the sales of certain trailers. Based on this conclusion, the Department assessed Shinin’ $41,774.74 for the unpaid sales tax, plus interest and penalties.
The Department’s assessment was based upon Shinin’s sale of twenty-one separate horse trailers with living quarters containing a kitchen, bathroom, seating area, storage area and sleeping facilities. All of the trailers have a load capacity over 1,000 pounds and are designed to be drawn by a motor truck, truck tractor or by having their front end supported by a motor truck or truck tractor. All of the trailers have a rear portion containing horse stalls and space for horse-related items. Twenty of the trailers can carry three or four horses, and one of the trailers can carry six horses.
Shinin’ argued that the trailers were exempt from sales tax under KRS1 139.470(21). After the Department denied *311the- exemption, Shinin’ appealed the Department’s assessment to the Board pursuant to KRS 139.340. In its final order issued on May 9, 2013, the Board found that the exemption applied and reversed the 'assessment. Pursuant to KRS 131.370, the Department appealed the Board’s decision to Franklin Circuit Court. On June 11, 2014, the circuit court issued an opinion and order affirming the Board’s decision. This appeal followed.
KRS 13B.150(1) limits our review to the record from the Board unless there is an allegation of fraud or misconduct involving a party. No such allegation has been made, thus, we limit our review to the record as it existed before the Board. The Department argues only that the Board and the circuit court misinterpreted the statutory exemption in KRS 139.470(21). As this is solely a question of law> we review these matters de novo. Louisville Edible Oil Products, Inc. v. Revenue Cabinet, Commonwealth, 957 S.W.2d 272, 274 (Ky.App.1997), citing to Reis v. Campbell Co. Bd. of Educ., 938 S.W.2d 880 (Ky.1996), and Epsilon Trading Co., Inc. v. Revenue Cabinet, Commonwealth, 775 S.W.2d 937 (Ky.1989).
KRS 139.470(21) provides for a sales tax exemption for “[g]ross receipts from the sale of a semi-trailer as defined in KRS 189.010(12) and trailer as defined in KRS 189.010(17)[.]” KRS 189.010(12) defines “semitrailer” as
a vehicle designed to be attached to, and having its front end supported by, a motor truck or truck tractor, intended for the carrying of freight or merchandise and having a load capacity of over one thousand (1,000) pounds.
KRS 189.010(17) defines a “trailer” as , any vehicle designed to be drawn by a motor truck or truck-tractor, but supported wholly upon its own wheels, intended for the carriage of freight or merchandise and having a load capacity of over one thousand (1,000) pounds.
We begin with the basic rule of statutory construction that tax exemptions are narrowly construed, and the party seeking the exemption has the burden to show that it applies. Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky.2000). See also KRS 139.260, which codifies the rule. ' The issues in .this case involve the meaning of certain words and phrases in KRS 139.470(21). When interpreting statutory language, all words and phrases in a statute, unless otherwise defined, should be construed according to their common meaning. KRS 446.080(4). The common meaning of words is often determined by reference to dictionary definitions. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 719 (Ky.2012)
The parties agree that the vehicles at issue have a load capacity of over 1,000 pounds and are designed to be drawn by a motor truck or tractor trailer. In arguing against the exemption, the Department focuses bn the language, “intended for the carriage of freight or merchandise.” The Department contends that the trailers fail to meet the statutory definition in two significant aspects. First, the Department argues that horse trailérs with living quarters are hot objectively intended for a primary purpose as freight vehicles. And second, the Department asserts that the transportation of horses in such vehicles is neither freight nor merchandise as used in the statute.
On the first point, the Department takes the position that the presence of living quarters makes it impossible for the trailers to be used only or primarily for carrying freight or merchandise. In rejecting this argument, the Board and the circuit court both noted that the word “intended” is not modified by any limiting *312language such as “primarily,” “primary purpose,” “exclusively” or “only.” The Board also noted that the statutory definition of “recreational vehicle” set forth in the property tax statute, KRS 132.010(17), uses the language “primarily designed,” but KRS 189.010(12) and’ (17) do not include any similar limiting language. Consequently, the Board and the circuit court both concluded that Shinin’ is not required to prove that the trailers are exclusively or primarily intended for carriage of freight or merchandise.
We agree. • When a statute is clear on its face, courts are not at liberty to supply words or make additions. Metzinger v. Kentucky Ret. Sys., 299 S.W.3d 541, 546 (Ky.2009), citing Rue v. Kentucky Ret. Sys., 32 S.W.3d 87, 89 (Ky.App.2000). The dictionary definition of “intend” is “to plan or design for,” or as a transitive verb, “to mean (something) to be or be used (for); design ...” Webster’s New World College Dictionary (2010). Black’s Law Dictionary defines the word to mean “[t]o have in mind a fixed purpose to reach a desired objective; to have as one’s purpose.” Black’s Law Dictionary, 10 th ed. 2Ó14. Similarly, Kentucky case law interprets the word “intended” to mean the purpose for which the item was designed. Sterling Novelty Co. v. Commonwealth, 271 S.W.2d 366 (Ky.1954), holding that the statutory phrase “intended to be used for the purpose. of gambling” refers to the purpose for which the, machine or contrivance was designed, rather than the intentions of the owner. Id. at 368.
Based oh these common definitions, we conclude that the word “intended” focuses on the purpose for which the trailers were designed. There is no question that the trailers were intended for the transport of horses. The living quarters and storage space are included to further that purpose. We are not' at liberty to add limiting language that the General Assembly has chosen not "to include. In addition, the definitions of “trailer” and “semi-trailer” referenced in the sales tax statute are used by both the Transportation Cabinet and the Department. There is no indication that the General Assembly intended for the definitions to apply only to certain types of horse trailers.
Along these same lines, the Department also contends that the carriage of horses in these trailers is not “freight” within the meaning of the statute. The Department contends that the term “freight” requires that the property being transported be commercial in nature. Given the inclusion of living quarters, the Department argues that the trailers are designed for the recreational carriage of horses rather than a commercial use. The Department asserts that such recreational use places the trailers outside of the scope of the exemption.
Again, we disagree with the Department’s interpretation. The statutory definitions require that the trailers be “intended for the carriage of freight or merchandise.” The term “merchandise” has a commercial connotation. See Webster’s, supra, defining merchandise as “things bought and sold; goods; commodities; wares.” See also Black’s Law Dictionary, defining merchandise as “involved in trade or traffic; that which is passed from one person to another by purchase and sale.” In contrast, the word “freight” is defined as “[g]oods carried by a vessel or vehicle, especially by a commercial carrier ., Webster’s, supra. See also Black’s Law Dictionary, defining “freight” as “[gjoods transported by water, land, or air; CARGO.” By including both terms, the General Assembly clearly intended for the words to have different meanings. Thus, while “freight” may include merchandise or other goods transported for commercial pur*313poses, the definition may include the transportation of goods for non-commercial purposes as well.
Furthermore, as noted above, the word “intended” refers to the purpose for which the trailers are designed, not to the intended use of the owner or user. Sterling Novelty, supra at 368. The trailers are designed for the transportation of horses. Horses are “freight” within the context of the statute. The General Assembly did not specify that the definitions apply to only certain uses of horse trailers, or only when the trailers are purchased and used by a commercial carrier. Consequently, we agree with the Board and the circuit court that the horse trailers fall within the plain meaning of the statutory exemption.
Accordingly, the judgment of the Franklin Circuit Court is affirmed.
ALL CONCUR.
. Kentucky Revised Statutes. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284383/ | ORDER
Per Curiam:
Linda Jackson appeals the Labor and Industrial Relation Commission’s decision denying her unemployment benefits. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284384/ | ORDER
Per Curiam:
Kevin B. Strickland appeals the denial of his “Motion to Reopen Supreme Court Rule 27.26 Proceedings CV83-11316 Based on Abandonment by Counsel.” We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284385/ | ORDER
PER CURIAM.
Lester Davis appeals the motion court’s judgment denying his motion for post-conviction relief under Mo. R.Crim. P. 24.035 *374(2014) after an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal, and we conclude the motion court did not clearly err in denying Movant’s motion. An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The decision is affirmed. Mo. R. Civ. P. 84.16(b) (2015). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284386/ | ORDER
PER CÚRIAM
Nicholas Nettles (Defendant) appeals the trial court’s judgment, entered after a jury trial, finding him guilty of two counts of kidnapping, two counts of felonious restraint, two counts of sexual exploitation of a minor, and two counts of third-degree assault. Defendant claims that the trial court erred in denying his motion for judgment of acquittal on charges for sexual exploitation of a minor and kidnapping because the evidence was insufficient to support his convictions. Defendant also contends that the felonious restraint and kidnapping charges resulted in a violation of his right to be free from double jeopardy. We affirm.
We have reviewed the briefs of the parties and the record on appeal and have determined that an extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284397/ | ORDER
PER CURIAM.
Jeff Tacina (“Claimant”) appeals the decision of the Labor and Industrial Relations Commission (“Commission”) denying his claim for unemployment benefits. The Commission determined Claimant was disqualified from receiving benefits because he voluntarily quit his job without good cause attributable to his work or employer.
We have reviewed the briefs of the parties and the record on appeal and find the claim of error to be without merit. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.
We affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285293/ | OPINION
CLAYTON, JUDGE: .
Amanda Chadwick (“Grandmother”) appeals from the Bourbon Circuit Court order that found Chadwick is not a de facto. custodian of her grandchild and denied her custody and visitation. After careful review, we affirm and reverse in part and remand.
FACTS
At 15 years of age, Emily Flora (“Mother”) bore a son (“Child”) on October 8, 2010. The father, Michael Scott (“Father”), was 18 years old. Mother resided with her father, Charlie Warner (“Grandfather”), when Child was born. Mother had been placed with Grandfather by social services because Grandmother “had her own issues.” Four months later, Mother and Child moved in with Grandmother and resided there until April, 2013. Grandmother testified that she provided the majority of Child’s care and financial support during this time. Mother then moved out and kept Child at least twice a week through November, 2013-. ■ At that point, Grandmother asked Mother to keep Child while Grandmother recovered from her spouse’s death.1
From Child’s birth up through November, 2018, Mother controlled multiple aspects of Child’s life. While living with Grandmother, Mother claimed ‘Child as a dependent in order to receive KTAP, food stamps, child care reimbursement, medical cards, and tax benefits. Mother independently made choices regarding legal custody of Child. Mother was involved in multiple court proceedings acknowledging and affirming her role as the parent and custodian.
For example, after Mother left Grandmother’s home, Mother filed a petition for custody against Father, listing no other persons as having any legal claims' to Child. In August of 2013, Mother entered a written agreement with Father' establishing a visitation schedule'for Father to see Child. An agreed order was entered in Nicholas County in October 2013, awarding joint custody and equal timesharing of Child to Mother and Fatfier. The agreement hnd order were sought and executed without Grandmother’s consent or knowledge. In fact, the order did not mention Grandmother, instead designating a Mend as having the authority to make medical decisions for Child if neither Mother nor Father was available. In spite of these orders and agreements, though, Father did not have a significant role in Child’s care or support until November 2013. Mother, on the other hand, consistently participated in earing for Child from the date of his birth until November 2013.
In November 2013, while Child was in Mother’s care, Child suffered an injury *643consistent with sexual abuse alleged to have been caused by Mother’s live-in boyfriend. A Petition for Dependency, Neglect or Abuse was filed against Mother by the Department for Community Based Services in Nicholas County. As a result of those proceedings, Father was awarded permanent custody of Child, and Mother’s contact was limited to therapeutic settings as recommended by Child’s mental health practitioner.
Five months later, on Mareh.31, 2014, Grandmother filed her Petition seeking Custody and Timesharing. Grandmother testified she did not petition for custody rights sooner because she believed Father would allow her to visit Child and be involved in his life. On February 3, 2015, Mother filed against Father a petition seeking custody. She listed no other person as having any legal claims to Child. The current case involves only Grandmother’s petition.
Following the filing of Grandmother’s petition, Father and Grandmother entered into a mediated agreement that allowed Grandmother to visit with Child once per week in a public place. The agreement was to last for two months. Shortly after the agreement was made, Father began refusing to allow Child to visit with Grandmother, claiming Child became “highly distraught by even the idea of going to see” Grandmother. Grandmother moved to hold Father in contempt for violating the agreed order.
At a hearing on the contempt motion and to determine whether Grandmother was a de facto custodian, Grandmother called numerous witnesses who testified about Grandmother’s interactions with Child and the amount of care she provided. Father also testified, called witnesses, and cross-examined Grandmother’s witnesses. The hearing spanned two days and- lasted approximately three hours.
On'August 10, 2015, the trial court entered an order finding Grandmother had standing to bring a petition, but nonetheless denying Grandmother’s Petition because she was not a, de facto custodian. The trial court found that, Mother had been providing care and support for Child and had not abdicated her .role as primary caregiver during the period that Child was living with Grandmother.
The trial court made an alternative finding that even if Grandmother were a de facto custodian, it is in Child’s best interests to remain with his father because “... there was ample evidence that [Child] suffered trauma at the hands of his mother’s paramour[,] that [the paramour] associates with [Grandmother], and that [Child] feels significant stress and fear when he is faced with reuniting with her.” Furthermore, “[a]ccording to [Child’s] counselor, he has also revealed some events that have [Grandmother] under investigation with DCBS.”
Grandmother timely appealed. The case now stands submitted.
STANDARD OF REVIEW
Appellate courts “defer to factual findings of the court as conclusive if they are not clearly erroneous and if they are supported by substantial evidence.” Spreacker v. Vaughn, 397 S.W.3d 419, 421 (Ky.App.2012). “ ‘[Substantial evidence’ is ‘[e]vidence that’ a reasonable mind would accept as adequate to support a conclusion’ and evidence that,, when ‘taken alone or in light of all the evidence, .,. has sufficient probative value to induce conviction in the minds of reasonable men.’ ” Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003) (foot notes and citations omitted, alterations in original). A reviewing court should give “due regard” to the trial court’s determination of witness credibility and the weight *644of evidence, regardless of the conflicting evidence or the fact that a reviewing court would reach a contrary finding. Id.
The facts must then be applied' to the law, and a' “determination of the proper law to be applied to the facts is reviewed de novo.” Allen v. Devine, 178 S.W.3d 517, 524 (Ky.App.2005) (citing Lindley v. Paducah Bank & Trust; 114 S.W.3d 259, 263 (Ky.App.2002)).
ISSUES
Initially we address Father’s issue with Grandmother’s standing to bring a petition for custody and/or visitation. Father argues that Grandmother lacked standing to bring the action because she was not a “person acting .as a parent” as defined in Kentucky Revised Statutes (KRS) 403.800(13)(a). Pursuant to that statute, a person acting as a parent is someone other than the parent who “[h]as physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding!/]” We find Father’s argument unavailing. .
Grandmother testified she had predominant physical custody of Child up through the beginning of November, 2013. She filed her petition for custody at the end of March 2014. Physical .custody under this statute “does not require exclusive care and exclusive supervision.” Mullins v. Picklesimer, 317 S.W.3d 569, 575 (Ky. 2010). Performing traditionaí parenting responsibilities alongside another person “or on an equal time sharing basis” constitutes physical custody.
Here, Grandmother and Mother jointly exercised physical custody of Child up through November 2013. Accordingly, Grandmother. had physical custody of Child for at: least six months between March 2013, and March 2014. See, e.g., Lambert v. Lambert, 475 S.W.3d 646, 651 (Ky.App.2015) (non-parent who had physical custody of children for at least eight months prior to commencement of custody action had standing). We therefore find Grandmother had standing -to bring the petition for custody because she had custody of- Child for at least six of the twelve months immediately preceding the petition’s filing.
We next turn to whether Grandmother is a de facto custodian. The trial court found Grandmother was not a de facto custodian because she was not Child’s primary caregiver. We agree. KRS 403.270(l)(a) defines a de facto custodian as “a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of ... one (1) year or more if the child is three (3) years of-age or older_” (Emphasis added).
The phrase “the primary caregiver for, and financial supporter of’ has consistently been interpreted to mean a singular caregiver — someone who is the primary provider for a minor child. Consalvi v. Cawood, 63 S.W.3d 195, 198,(Ky.App.2001), ■ abrogated on other grounds by Moore v. Asente, 110 S.W.3d 336 (Ky.2003). See also Mullins, v. Picklesimer, 317 SW.3d 569, 573-574 (Ky.2010); Brumfield v. Stin-son, 368 S.W.3d 116, 118 (Ky.App.2012). A grandparent who co-parents a child with the natural mother or father does not make the grandparent the primaiy care: giver. “It has been "held that parenting the child alongside the natural parent does not meet the defacto custodian standard in KRS 403.270(l)(a).” Mullins, 317 S.W.3d at 574.
This reasoning is sound, especially in the instant case. Here, Mother was 15 years *645old when she gave birth to Child. She was still in high school, and Grandmother wanted to see both Child and Mother succeed in life, so she did what any good, loving, and caring grandmother would do — she continued to care, for her own child and her new .grandchild. But her care did not supplant Mother’s.. Mother lived with Child for most of the time Grandmother helped care for 'Child. Mother sought and received government benefits for Child. Mother entered custody agreements and held herself out as the child’s custodian throughout several court proceedings. And, when Grandmother had personal issues and could not care for Child, Child was - in Mother’s , exclusive care.
Grandmother’s supportive acts for both Mother and Child are laudable, but they did not make her the primary caregiver and financial supporter of Child. At the very least, the trial court’s factual findings on this issue are supported by substantial evidence, and the legal conclusion drawn therefrom is one readily ascertainable under this Commonwealth’s law. Thus, the trial court did not err by finding Grandmother was not a de facto custodian of Child.
Having found the trial court did not err by finding Grandmother is not a de facto custodian, we now turn to Grandmother’s argument that the trial court should have held Father in contempt for violating the terms of the agreed~to visitation between Grandmother and Child. It is undisputed that Father did not comply with the visitation agreement’s terms.-'Father testified he purposefully stopped permitting Child to see Grandmother because the child was visibly upset about going to see Grandmother, Father even introduced a video of the .child being upset. The trial court found,“no-fault” with Father’s decisión to terminate the agreed-to visits based on Father’s testimony, the video of Child being upset about going to see Grandmother, the neglect proceeding records indicating Child’s -ongoing fears of Mother and Grandmother, and new allegations against Grandmother and her ongoing investigation by social services.
Father responds that there is no legal basis for appealing a denial of contempt. Alternatively, he argues the trial court’s factual findings support the denial. Concerning whether the denial of a contempt ruling is subject to appellate review, the Court in. Mason v. Miracle, 297 Ky. 479, 180 S.W.2d 403 (Ky.App.1944), stated an order refusing to adjudge a party guilty of contempt is subject, to appellate review. Thus, this Court may properly examine the issue.
Here, the trial court’s factual findings are supported by substantial evidence. Father testified to the majority of the facts and submitted a video and paper exhibits supporting his claims, including letters from Child’s treating mental-health professional detailing reports of abuse by Mother and Grandmother. Because the trial court’s findings are substantially ' supported by a witness’s testimony, it would be error for us to substitute our judgment for the trial court’s. Moore v. Asente, 110 S.W.3d 336, 355 (Ky.2003). Accordingly, we will not disturb the trial court’s finding that Father was not at fault and' should not be held in contempt for ceasing visitation with Grandmother. Thus, the trial court did not err by denying the contempt motion.
Grandmother next argues the testimony of Stephanie Adamkin, the Child’s counselor, should not have been admitted as evidence. Grandmother claims Father did not respond to formal discovery -requests regarding expert witnesses,. thus Father should -have been precluded from *646introducing Adamkin’s testimony. Father responds that Adamkin’s testimony was introduced solely to respond to the motion for contempt, not to resolve the de facto custodian issue. Accordingly, whether the discovery request was complied with as it relates to the de facto custodian issue is irrelevant because her testimony was not utilized for the de facto custodian issue.
We agree with Father that the testimony was properly admitted, limited, and utilized in resolving the contempt issue. Even if Father failed to comply with discovery requests and should have been precluded from introducing Adamkin’s testimony on the de facto custodian issue, Adamkin’s testimony did not bear on whether Grandmother was a de facto custodian. Thus, the trial court did not err by admitting her testimony to. resolve the contempt claim.
Finally, Grandmother argues the case should be remanded for further hearings regarding custody and visitation. We agree. Grandmother claims thé hearing was limited solely to her defacto custodian and contempt issues, thus the evidence she presented was limited to those issues. Grandmother claims the trial court erroneously resolved her petition for custody and visitation in toto in spite of the hearing’s limited nature. After a careful review of the record, we agree that the trial court and the parties limited the hearing to the de facto custodian and contempt issues. Thus, we remand for additional proceedings on Grandmother’s custody and visitar tion petition. Because Grandmother has standing to bring her petition but is not a de facto custodian, to obtain custody Grandmother must prove either: (1) the parents are shown by clear and convincing evidence to be unfit custodians; or (2) the parents have waived their superior right to custody by clear and convincing evidence. Mullins v. Picklesimer, • 317 S.W.3d 569⅝ 578 (Ky.2010). -
This standard is difficult to meet because in .Kentucky “[p]arents of a child have a fundamental, basic, and constitutional right to raise, care for, and control their' own children.” Id. (citing Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989)). See also Lambert v. Lambert, 475 S.W.3d 646, 651-52 (Ky.App.2015). Likewise, to obtain visitation rights, Grandmother must rebut by- clear and convincing evidence the presumption that the parents are acting in the child’s best interests, and she must-prove that visitation with Grandmother is in the child’s best interests. ,KRS 405.021, Walker v. Blair, 382 S.W.3d 862 (Ky.2012).
Here, because the hearing concerned only Grandmother’s de facto custodial status and Father's alleged contempt, and those two issues have been resolved against Grandmother and now affirmed by us, Grandmother’s petition for custody and visitation may proceed pursuant to Mullins and Walker. We express no opinion on whether Grandmother’s custody and visitation claims are meritorious; we simply remand due to the fact that they have not been fully addressed.
Accordingly, we affirm and reverse the trial court’s order in part and remand for further proceedings consistent with this opinion.
CONCLUSION
The trial court did not err by finding Grandmother is not a de facto custodian, or by finding Father should not be held in contempt for violating the visitation agreement’s terms. ' However, the trial court did err by terminating Grandmother’s petition for custody and visitation without determining whether Grandmother, as a *647non-de facto custodian, can demonstrate Mother and Father are unfit custodians, or whether Mother and Father waived their superior right to custodial status. Thus, we affirm the trial court’s order inasmuch as it relates to Grandmother’s lack of de facto custodian status, and inasmuch as it found Father should not be held in contempt. We otherwise reverse and remand for further proceedings on Grandmother’s petition for custody and visitation.
ALL CONCUR.
. Grandmother’s brief states that it was her ex-spouse who died. | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5285294/ | Gary D. Witt, Judge
.This'appeal raised issues regarding the summary statement, fiscal note, summary, and fiscal note of an initiative petition filed with the Missouri Secretary of State. The initiative petition seeks to require providers of certain in-home services and vendors of consumer-directed services, which receive reimbursement from the State of Missouri pursuant to the MO HealthNet Program,- to pay a certain required per-centáge of the revenue derived from these services to the individual performing the services in the form of wages and benefits. Plaintiffs Protect Consumers’ Access to Quality Home Health Care Coalition, LLC and Elisa Pellham (collectively “Plaintiffs”) appeal the Amended Final Judgment of ■the trial court certifying the Official Ballot Title, including the summary statement, fiscal' note summary, and fiscal note, and denying all of Plaintiffs’ claims. We affirm in part, reverse in part, and remand for certification of a corrected summary statement.
FACTUAL BACKGROUND
Jeffrey Mazur submitted .to the Missouri Secretary of State (“Secretary”) an . initiative petition sample sheet (the “Initiative”) proposing a number of statutory amendments in relation to. Chapter 208.1 The *670•Initiative seeks to provide that “in-home Service providers which receive payments made on behalf of an eligible needy person pursuant to section 208.152, or other state statute providing for payments on behalf of such persons” must pay at least 85% of the revenue received from those services on the “wages and benefits” of the employee who performed those services. Section 208.152 is part of the State of Missouri’s system to provide for MO HealthNet (i.e., Medicaid) payments on behalf of eligible persons. Similarly, thé Initiative would require vendors of “consumer-directed services” to pay at least 85% of the funds paid by the State for those services to personal care attendants.
The summary statement (“Summary Statement”) prepared by the Secretary provides the following:
Shall Missouri law be amended to require in-home service providers and vendors to pay an employee at least 85 percent of the state funds they received for the service provided by the employee to eligible individuals?
The State Auditor’s office (the “Auditor”) followed its normal processes to prepare a fiscal note (“Fiscal Note”) and fiscal note summary (“Fiscal Note Summary”).
The Fiscal Note Summary prepared by the Auditor provides the following:
State universities and governmental entities estimate one-time costs exceeding $100,000 with the total costs being unknown and increased annual costs of at least $115,000. ■ Local governmental entities estimate no costs or savings from this proposal.
Plaintiffs filed a timely Petition challenging the Summary Statement, Fiscal Note Summary, and Fiscal Note as insufficient and unfair. The Circuit Court of Cole County conducted a hearing and heard oral arguments on Plaintiffs’ claims.
The trial court entered its Judgment, which was subsequently- amended, that denied Plaintiffs’- claims and certified the Official Ballot Title, including the Summary Statement, Fiscal Note. Summary and Fiscal Note. Plaintiffs now appeal. ;
STANDARD OF REVIEW
“De novo review of the trial court’s legal conclusions about the propriety of the secretary of ■ state’s summary statement and the auditor’s fiscal note and fiscal note summary is the appropriate standard of review when there.is no underlying factual dispute that would require deference to the trial court’s factual findings.” Brown v. Carnahan, 370 S.W.3d 637, 653 (Mo. banc 2012).
ANALYSIS Point One
In Point One on appeal, the Plaintiffs argue the trial court erred in certifying the Summary Statement because the Secretary’s Summary Statement is insufficient and unfair in that it fails to summarize the initiative in a manner that will not deceive or mislead voters.
The statute that governs the promulgation of summary statements for petitipns states, in. relevant part: ■
[T]he secretary of state shall prepare and transmit to the attorney general a summary statement of the measure which shall be a concise statement not exceeding one. hundred words. This statement shall be in the form of a ques-using language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure. -
§ 116.334.1.
Citizens may challenge proposed summary statements alleging they are insufficient or unfair. § 116.190; Mo. Mun. *671League v. Carnahan, 364 S.W.3d 548, 552 (Mo. App. W.D. 2011). “Insufficient means ‘inadequate; especially lacking adequate power, capacity, or competence.’ The word ‘unfair’ means to be ‘marked by injustice, partiality, or deception.’ Thus, the words ‘insufficient [or] unfair’ ... mean to inadequately [or] with bias, prejudice, deception and/or favoritism state the [consequences of the ■ initiative].”2 Mo. Mun. League, 364 S.W.3d at 552 (quoting Cures Without Cloning v. Fund, 259 S.W.3d 76, 81 (Mo. App. W.D. 2008)).
The ballot title is sufficient if it “makes the subject evident with sufficient clearness to give notice of the purpose to those interested or affected by the proposal.” Overfelt v. McCaskill, 81 S.W.3d 732, 738 (Mo. App. W.D. 2002) (superseded in part by statutes) (quoting- United Game-fowl Breeders Ass’n of Mo. v. Nixon, 19 S.W.3d 137,140 (Mo. banc 2000)). “[E]ven if the language proposed by [Plaintiffs) is more specific, and even if that level of specificity might be preferable, whether the summary statement prepared by the Secretary of State is the best language for describing the referendum is not the test.” Id. (quoting Bergman v. Mills, 988 S.W.2d 84, 92 (Mo. App. W.D. 1999)). “The critical test is ‘whether the language fairly and impartially summarizes the purposes of the measure so that voters will not be deceived or misled.’ ” Cures Without Cloning, 259 S.W.3d at 81 (quoting Bergman, 988 S.W.2d at 92).
The Plaintiffs claim that the Summary Statement is insufficient or-unfair in ,a number of respects. The Plaintiffs argue the Summary Statement: (1) fails to inform voters that the subject of the measure is in-home healthcare services for individuals in the MO HealthNet Program; (2) wrongly and confusingly describes “personal care attendants” as “employees”; (3) fails to describe who are “eligible individuals,” and “vendors,” and (4) uses the misleading term “pay”.
Plaintiffs first argue that the Summary Statement is insufficient or unfair because it fails to inform voters that the subject of the measure is in-home healthcare services for individuals receiving services under the MO HealthNet Program. Plaintiffs point is well taken. The Summary Statement is intended to give notice to voters of the subject of the initiative so that they may make an informed choice on whether to investigate the matter further. Thus, we have said that the Summary Statement must “make[] the subject evident with sufficient clearness to give notice of the purpose to those interested or affected by the proposal.” Over-felt, 81 S.W.3d at 738. “Sometimes it is necessary for the secretary of state’s summary statement to provide a context reference that will enable voters to understand the effect of the proposed change.” Brown, 370 S.W.3d at 654.
The. Summary Statement as currently drafted .only uses the term “in-home service providers” and fails to give any indication as to the underlying subject matter or the individuals who would be affected by the Initiative. “In-home service providers” gives no indication as to what types of services are contemplated or under what programs. At the very least, the language must include a reference to MO HealthNet, the statutory scheme that is explicitly referenced in the Initiative itself, which would give notice regarding *672the subject matter and individuals who would be affected by the Initiative. We decline to go further and require that the services being provided are described as “healthcare” services, as requested by Plaintiffs, as the services provided by the vendors of consumer-directed services include services that would not necessarily be considered “healthcare.” See §' 208.900 (services provided by personal care attendants include assisting customers with routine, tasks, such as moving into and out of bed, consuming food and drink, bathing and grooming, housekeeping, etc.) As the new language will include a reference to MO HealthNet, this is sufficient to give fair and sufficient notice to voters of the subject matter of the proposal.
Second, Plaintiffs argue that the use of the term “employees” is misleading because the Initiative, insofar as it pertains to “vendors” that .receive payments under the “consumer-directed services program,” would require 85%. of the revenues received to be paid to “personal care attendants” who aré not employees. The point is also well taken. Vendors that receive payments under the “consumer-directed services program” do not necessarily have an employer-employee relationship with personal care attendants. “Consumer-directed” is defined !as “the hiring, training, supervising, and directing of the personal care attendant by the consumer,” who is the person receiving the services. § ’208.900(2) (emphasis added). A “personal care attendant” is defined as “a" person, other than the consumer’s spouse, who performs personal care assistance services 1 for 'the consumer.” § 208.900(6). Vendors, on the othér hand, have an agreement with the State “to provide services including monitoring and oversight of the personal care attendant, orientation, and training of the consumer, and fiscal conduit services necessary for delivery of personal care assistance services to consumers.” § 208.900(10). The individual receiving the services is responsible for supervising the. personal care attendant, verifying wages, submitting time sheets, etc., whereas the vendor collects and certifies time sheets,, overseas the Medicaid reimbursement process, -and transmits payments. See § 208.909. Referring to personal' care attendants as “employees” of the vendor is inaccurate and misleading. This can be easily remedied by including in the Summary Statement a separate reference to personal care attendants.
The remaining three objections to the' proposed language by Plaintiffs are without merit. Plaintiffs argue that “eligible individuals” should be changed to “eligible needy individuals.” We do not see any reason why the Secretary should be required to classify the individuals receiving these services as “needy” and the Plaintiffs offer no reason why such a description is required to make the language sufficient or fair. Similarly, the Plaintiffs would like “vendors” changed to “personal care assistance service vendors.” However, as explained above, the language of the Summáry Statement will be changed to specify that vendors will pay “personal care attendants,” so this concern has already been addressed. Finally, thé Plaintiffs object to the term “pay” because it does not specify that the pay is actually pre-tax wages and benefits. Such specificity in a summary is not mandatory. The question is whether voters will be objectively informed as to the' subject matter of the initiative. “Pay” here is sufficient for this purpose and voters will be -able- to inquire further as to the specifics of what constitutes “pay” by looking at the Initiative itself.
The trial court has the authority to modify the original Summary Statement based *673on our findings above. See Cures Without Cloning, 259 S.W.3d at 83. Accordingly, we reverse the judgment and remand the cause to the trial court, for certification of the following summary statement: :
Shall Missouri law be amended to require in-home service providers and vendors to pay an employee or personal care attendant at least 85 percent of the state funds they received under the MO HealthNet Program for the service provided by the employee or the personal care attendant to eligible individuals?
Point Two
In Point Two on appeal, the Plaintiffs argue that the trial court erred in certifying the Fiscal Note Summary because it is unfair and insufficient in that (A) it misrepresents the information in the fiscal note concerning costs to state universities and (B) it fails to account for any impact on the state’s tax revenue.
Section 116.175.3 requires that the Auditor create a fiscal note and fiscal note summary that states the measure’s “estimated cost or savings, if any, to state or local governmental entities.” The summary can be no more thán fifty words and can be neither argumentative nor likely to create prejudice for or against the propose measure: Id.
In the context of requiring a fair and sufficient fiscal note by the state auditor, “the words insufficient and. unfair ... mean to inadequately - and with bias, prejudice, deception and/or favoritism state the fiscal consequences of the proposed proposition.” Hancock v. Secretary of State, 885 S.W.2d 42, 49 (Mo. App. 1994). Similarly, in examining the fairness and sufficiency of the-fiscal note . summary, the summary’s words are considered sufficient and fair .where they adequately and without bias, prejudice, or favoritism synopsize the fiscal note. See id. “[A] fiscal nóte summary is not judged on whether it is the-‘best’ language, only [on] whether it is - fair.” Missouri Mun. League [v. Carnahan], 303 S.W.3d [573] at 583 [ (Mo.App.W.D. 2010) ].
Brown, 370 S.W.3d at 654.
The Auditor received information concerning three potential types of public costs to the Státe of Missouri of this proposal. First, the Auditor received information from the Missouri Department of Social Services regarding potential costs of at least $115,000 annually. These costs are not in dispute.
Second, the Auditor received an email from Matthew Levsen, Associate Chief Financial Officer of University of Missouri Health Care. The email "stated that University of Missouri Health Care determined that the Initiative “could create additional'expenses in excess of $100,000,” which would be incurred “as the payment systems change for health care services from ‘fee for service’ methodology to a more bundled or capitated payment system.” He added, however, that “[t]he amounts are not able to be estimated at this time due to the language of the petition itself and the future, timeline of the payment systems.”
, Third, the Auditor received information from the Initiative’s proppnents that indicated (1) employees and personal care attendants would receive an increase in wages and benefits as a result of the Initiative and (2) more than 300 for-profit companies would see a .corresponding decrease in profits.
. The Fiscal Summary prepared by the Auditor states:
State universities and -governmental entities estimate one-time costs exceeding $100,000 with the total costs being un*674known and increased annual costs of at least $115,000. Local governmental entities estimate no costs or savings from this proposal-
Plaintiffs first argue that the reference to “universities” is misleading because only-one individual responded, Mr. Levsen, the Associate Chief Financial Officer of University of Missouri Health Care. The Auditor responds that the opening line is used in the collective for all of the response information received by the Auditor’s Office and not only to those entities that actually responded and that it was reasonable to infer that Mr. Levsen’s response was sent by the University of Missouri System as a whole.
We agree with the Auditor that the use of the collective term “state universities and governmental entities” is not unfair or insufficient, even if only one entity did in fact respond. For the purposes of a summary, limited by statute to fifty words, it is reasonable for the Auditor’s office to state that this single estimated cost was the only estimate provided by the state’s universities. It would be .unnecessarily cumbersome to require the Auditor’s office to more specifically categorize each response received in a summary. The Auditor is tasked with soliciting information from state and local governmental entities to determine what probable affect the initiative would have on state and local finances. Framing the response as one collectively from the state universities and governmental entities as a whole is not misleading or unfair.
In addition, here it was a reasonable inference for the Auditor to make that the response it received from Mr. Levsen represented the University of Missouri System as a whole. The record shows that Mr. Levsen’s response was made per the direction of Ryan Rapp, Controller for the University of- Missouri System, who was copied on the response. (LF .151). As multiple universities are part of that system, it was reasonable to infer that the response sent by Mr. Levsen, at the direction of the University of Missouri System Controller, represented a response on behalf of the. system as a whole.
The Plaintiffs also argue that the inclusion in the summary Of “one-timé -costs exceeding $100,000 with the total costs being unknown” is not supported by the response received from Mr. Levsen. We disagree. Mr. Levsen’s response was clear that the proposal “could create additional expenses in excess of $100,000” and that the expenses “would be incurred as the payment systems change for health care services from ‘fee for service’ methodology to a more bundled or capitated payment system.” The email continues on to say that he is unable to give an estimate of the amounts “due to uncertainty in the language and timeline of the change in the payment system.” The Auditor’s conclusion that Mr. Levsen’s estimate was a onetime cost was supported by Mr. Levsen’s statement that the costs would incurred due to the need to change the payment system. -It was reasonable to infer that this cost was. -a singular cost as nothing in Mr. Levsen’s statement suggests that this cost would be recurring.
Plaintiffs’ argument that Mr. Levsen’s cost estimate should not be included at all because it is not definite enough must also fail. The Auditor must include submissions -in the fiscal note regarding the potential cost or savings to state or local government entities as a result of the initiative. See Brown, 370 S.W.3d at 649-50. The role of the Auditor is not to judge the merits of a fiscal impact submission, but only to examine to determine whether the submission is complete, is relevant, has an identifiable source, and is reasonable. Id. at 649. Mr. Levsen *675clearly stated that the costs to the university system could be greater than $100,000 for the reason he provided but the actual costs were indeterminate due to ambiguity in the Initiative’s language and timing. These determinations will almost always be estimates, and nothing more can be expected. It is fair to characterize Mr. Levsen’s estimate in the fiscal note summary as “one-time costs exceeding $100,000 with the total costs being .unknown.”
The Plaintiffs also argue that the Fiscal Note Summary is inadequate because it fails to account for impact on the State’s tax revenue. The Plaintiffs impose on the Auditor a duty it does not have. Our Supreme Court has recently described the function of the Auditor as it relates to fiscal notes and summaries of proposed initiatives as follows:
In preparing the fiscal note, the auditor sends copies of the proposed’ ballot initiative to various state and local governmental entities requesting the entities review the same and provide information regarding the estimated costs or savings, if any, for the proposed ballot initiative. See sec. 116.175.1 (stating that the auditor “may consult with the state departments, local government entities, the general assembly and others with knowledge pertinent to .the cost of the proposal”). The auditor chooses local governmental entities based on geography, population, and form of government to ensure a good cross-section of local governments that might be affected by the proposal are represented. Proponents, opponents, and members of the public may submit fiscal impact submissions also; however, the auditor has no duty to notify members of the public when he receives an initiative petition from the secretary of state.
The auditor'does not analyze or evaluate the correctness of the returned fiscal impact submissions. -Rather, he or she examines the submissions to determine whether-they appear complete, are relevant, have an identifiable source, and are reasonable.- ■ ■ The auditor studies each- submission regarding completeness, determining whether the entity’s ■response conveys a complete representation of what the entity intended to send and if it reasonably is.-related to the proposal. He also reviews the submission to ensure there are no missing pages or breaks in the continuity of information. With respect to reasonableness, the auditor examines the submission to establish whether it addresses or diverges from the particular issue. The auditor’s determination of reasonableness is based on the auditor’s experience in state government and overall knowledge and understanding of business and economic issues. If the auditor concludes a/submission is unreasonable, he or she determines what weight the submission will be given when preparing the fiscal note .summary. If the auditor has any questions regarding the submission of an entity or needs to clarify an incomplete submission, he or she may conduct a follow-up inquiry.
The auditor then 'drafts the fiscal note and fiscal note summary based solely on •the responses he or she receives. The responses submitted are listed verbatim in the fiscal note - with only minor editing. The fiscal note summary- is a compilation of the various proposals and is intended to advise, the voters about the potential cost or savings, if any, from the adoption of the initiative.
Brown, 370 S.W.3d at 649-50. (footnotes omitted). In addition,.
[t]he auditor is not required to compel and second-guess reasonable submis*676'sions from entities but is able to rely on the responses submitted. Nor should the auditor wade into the policy debates surrounding initiative petitions, which an independent investigation would entail ■[...] It is ■ not the auditor’s role to choose a’ winner among these opposing viewpoints by independently researching the issue himself, double-checking economic theories and assumptions, and ■adopting one side’s view over another’s in the resulting fiscal note.
Id. at 660. :
While the Auditor -received géneral statements'regarding potential impacts on the economy by the proponents of the Initiative, the Auditor received no submission that provided a projection of an increase or decrease of tax revenué to the State. Having received no submission regarding ah impact on state finances for the Fiscal Note, it would be improper for the Auditor to include comment upon any impact to state finances in the summary. The Plaintiffs do not identify a submission or projection that they belieye should have been included by the Auditor, but rather argue that based upon Missouri’s tax structure there must be some1-impact. The analysis provided by Plaintiffs on appeal regarding possible tax consequences is mere conjecture and, regardless, it was not timely provided to: the- Auditor for inclusion in the Fiscal Note. As explained above, it is not the Auditor’s responsibility to undertake an independent investigation and comment upon a possible impact to state finances' if no submissions are made to the Auditor describing those impacts.
Point Two is denied.
Point Three
In Point Three on appeal; the Plaintiffs argue the trial court erred in certifying the Fiscal Note because it is unfair and insufficient in that it fails to undertake any examination of the initiative’s impact on small businesses as Plaintiffs allege is required by Section 116.175.1. The fairness and sufficiency standards set out above are equally applicable to fiscal notes. See Brown, 370 S.W.3d at 653. .-
Section 116.175.1 provides, in relevant part, as follows:
[U]pori receipt from the secretary of state’s ’ office of any petition sample sheet, joint resolution or bill, the auditor shall assess the fiscal impact of the proposed measure. The state auditor may cbnkult with the state departments, local government entities, the general assembly and others with knowledge’pertinent to the cost of the proposal. Proponents or opponents of any proposed measure may submit to the state auditor a proposed statement of fiscal impact estimating the cost of the proposal in a manner consistent with the standards of the governmental accounting standards board and section 23. U0, provided that all such proposals are received by the state auditor within ten days of his or her receipt of the, proposed measure from the secretary of state.
(emphasis added). Thus, the language of the statute explicitly ^provides that proponents or opponents of a measure, if they submit -a proposed statement of fiscal impact, must eomply with - Section 23.140, which provides, inter alia, that the statement include whether the legislation would have an impact on small businesses. Bee § -23.140.2(6); .Proceeding back to Section 116.175.2, the Auditor is required to “prepare a fiscal note and a fiscal note summary for- the proposed measure The fiscal note “shall state the-measure’s estimated cost or savings, if any, to state or local ■ governmental ' entities.” § 116.175.3 (emphasis added). As is clear from the-language above, there is no requirement that the Auditor include a *677statement regarding the impact to small businesses in the fiscal note and nothing requires the Auditor to undertake its own investigation on the measure’s impact to small businesses.
Oddly, the Plaintiffs do not recognize that, regardless, the Auditor did include a statement regarding the fiscal impact to small businesses in the Fiscal Note. The Auditor’s practice is to include all submissions in the fiscal note, including statements regarding impacts to small businesses, if they are timely received and meet the Auditor’s standards for inclusion, described supra. As is required , by Sections 116.175 and 23.140, the proponents of the measure included a statement of impact to small businesses that was included in the Fiscal Note. The Auditor followed its standard practice here and nothing in the statute requires anything further.
Point Three is denied.
CONCLUSION
The judgment is reversed with regard to the Summary Statement and remanded to the circuit court for certification of a summary statement as follows:
Shall Missouri law be amended to require in-home service providers, and vendors to pay an employee or personal care attéñdant at least 85 percent of the • state funds they received under the MO HealthNet Program for the service provided by the employee or the personal care attendant to eligible individuals?
In all other respects, the judgment is affirmed.
All concur
. Section 116.190.3 uses the words, “insufficient or unfair” (emphasis added), while Cures Without Cloning and other cases have .used the word "and” .in place of the word “or,” when analyzing this provision. We note that the proper consideration is whether the ballot title is "insufficient or unfair.” | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284387/ | ORDER
PER CURIAM:
David Roberson appeals the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. In his four points on appeal, Roberson claims that plea counsel was ineffective for failing to disclose that he would have to register as a sex offender every ninety days if he pleaded guilty and for “failing to investigate the direct consequences of his client pleading guilty; that counsel for probation revocation and sentencing was ineffective for failing to submit evidence that Roberson did not violate the terms or conditions of his probation and for failing to investigate alternatives to incarceration; and that the court erred in failing to provide a written summary of the evidence it relied on to determine that he violated the terms of his probation and to consider alternatives to incarceration. 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/5284388/ | ORDER
PER CURIAM:
Samuel Alen appeals his convictions for tampering in the first degree, section 569.080, RSMo Cum. Supp. 2013, and resisting arrest, section 575.150, RSMo Cum. Supp. 2013, and concurrent sentences of ten years and five years imprisonment, respectively. He contends that the trial court abused its discretion in denying his motion to sever the count of resisting arrest from the counts of burglary and tampering. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.
The judgment of convictions is affirmed. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284389/ | ORDER
Per Curiam
Sandra Stanton appeals from the judgment denying her Rule 29.15 motion for post-conviction relief after she was convicted of second-degree murder, first-degree endangering the welfare of a child, and abuse of a child resulting in death. Stanton contends the motion court clearly erred in denying post-conviction relief because her trial counsel was ineffective for failing to object to prior bad acts evidence. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment.
AFFIRMED. Rule 84.16(b) | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284390/ | ORDER
Per Curiam:
Ms. Renata Shearer appeals the admission of an expert witness’s testimony during the trial of a personal-injury claim.
For reasons stated in the memorandum provided to the parties, the judgment of the trial court is affirmed. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284391/ | Order
Per Curiam:
DeMun Walker appeals from the Judgment of the Circuit Court of DeKalb County, Missouri, denying his Rule 29.15 amended motion for post-conviction relief after an evidentiary hearing. Because a published opinion would have no prece-dential value, a memorandum of law 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/5284392/ | Order
Per Curiam:
Terry Birmingham appeals the denial, after an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. On appeal, Birmingham raises two claims of ineffective assistance of trial counsel. Because Birmingham failed to meet his burden of proving that counsel provided ineffective assistance, ' we affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284393/ | *399ORDER
Per Curiam:
Kathleen Crisp appeals the circuit court’s judgment awarding her $7,290.75 plus pre-judgment interest on her claim for breach of contracts and denying her claims for quantum meruit and tortious interference with contracts. Jason Hartman, Platinum Properties Investor Network, Inc., Karen Karanickolas, and Brittney Roberts cross-appeal claiming that Karanickolas and Roberts are not liable under the contracts and that Crisp’s damages should be limited to $750.00. We affirm. Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284394/ | ORDER
PER CURIAM.
Lonnie Snelling appeals the judgment dismissing Count XI of his second amended petition.1 against Respondents Matthew S. Chase and J.D. Haynes. No error of law appears. An extended opinion would have no precedential value. We affirm the judgment of the trial court under Rule 84.16(b). . ¡
. Count XI of Snelling’s second amended petition is titled “Abuse of Process/Intentional Interference with Judgment/Punitive Damages." | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284395/ | ORDER
PER CURIAM.
Heidi Katherine Wood appeals from the trial court’s Judgment and Decree of Dissolution of Marriage dividing the parties’ marital assets and debts and ordering spousal maintenance. We have reviewed the briefs of the parties and the record on appeal, and we conclude the trial court committed no reversible error. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reaéons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b) (2015). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284396/ | ORDER
PER CURIAM:
After a jury trial, Cynthia Walters was found guilty of one count of second-degree murder and one count of armed criminal action. Walters appeals her convictions, arguing the trial court erred in giving a voluntary intoxication jury instruction and in overruling her objection to the State’s closing argument. Because a published opinion would be of no precedential value, a memorandum has been provided to the parties.
The judgment of conviction is affirmed. Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284408/ | VENTERS, J.
CONCURS IN RESULT ONLY:
' I concur with the Majority opinion only insofar as it correctly concludes that Appellant was not entitled to a writ because he had an adequate remedy by way of a conventional appeal. I do not join in the extraneous dicta otherwise contained in the majority opinion because it is not germane to the decision we reach. . | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284399/ | ORDER ,
James Leahy (“Husband”) appeals. .a judgment for contempt arising.out of an alleged.breach of a settlement agreement incorporated into a judgment dissolving his marriage to Sheila A. Driemeyer (“Wife”).
Wé have reviewed the briefs of the par-tiés and the record on appeal and conclude that the trial court did not err.' An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.
, We- affirm the judgment pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284400/ | *403
ORDER
PER CURIAM
Joseph Kaliszewski (“Appellant”) appeals from a judgment of the Missouri Labor and Industrial Relations- Commission (“the Commission”) denying him unemployment compensation because he was an independent contractor and not an employee of Newell D. Dubail and his partners (collectively, “the Partnership”). 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/5284401/ | ORDER
PER CURIAM
Michael Coffman appeals the motion court's denial of his Rule 29.15 motion for post-conviction relief. The motion court’s findings of fact and conclusions of law are not clearly erroneous. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, setting forth the reasons for this order. We affirm. Rule 84.16(b)(2) & (5). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125633/ | Judgment reversed, and new trial ordered before another referee, costs to abide event. Opinion by
Talcott, P. J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6125634/ | Cases declined to be decided on account of defects in the appeal books. Mem. by
Hardin, J. | 01-04-2023 | 02-04-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284403/ | ORDER
PER CURIAM
Daniel Austin appeals the denial without an evidentiary hearing of his Rule 29.15 motion for post-conviction relief. Jones raises three points on appeal: (1) that trial counsel should have interviewed, properly investigated, subpoenaed, and called as a trial witness Michelle Link, who Austin claims would have testified that she was present at Austin’s arrest, and that he did not resist or attempt to resist his arrest by using or threatening physical force or violence; (2) that appellate counsel should have challenged the sufficiency of the evidence to convict Austin of resisting arrest; and (3) that appellate counsel should have challenged the constitutionality of the trial court’s refusal to suppress Austin’s post-arrest statement. We affirm.
The judgment of the trial court is based on findings of fact that are not clearly erroneous. An extended opinion would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284404/ | ORDER
PER CURIAM
Gary Fulk (“Defendant”) appeals from the trial court’s judgment following a jury trial convicting him of production of a controlled substance, in violation of Section 195.211, RSMo Cum. Supp. 2013; possession of a controlled substance, in violation of Section 195.202, RSMo Cum. Supp. 2013; and possession of drug paraphernalia with intent to use, in violation of Section 195.233, RSMo (2000). We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 30.25(b). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284406/ | OPINION
STEVEN L. HUGHES, Justice
Isabel Baeza appeals from a judgment in favor of Hector’s Tire & Wrecker Service, Inc. based on Baeza’s breach of contract. Baeza raises two issues on "appeal. First, Baeza contends the trial court erred in refusing to fin’d that Hector’s' claim was-barred by the affirmative defense of accord and satisfaction. Second, Baeza contends the evidence is legally and factually insufficient to support the trial court’s award of damages. We conclude the evi-*588denee supports the trial court’s determination that Baeza failed to meet its burden to establish the defense of accord and satisfaction. Further, although we agree there is insufficient evidence to support the amount of damages awarded, we conclude there is some evidence that Hector’s suffered damages as the result of Baeza’s breach of contract. We therefore reverse the trial court’s judgment and remand for a new trial on damages, unless Hector’s accepts the remittitur we suggest below.
BACKGROUND
Baeza is the owner of a trucking company that had contracts to haul paving materials from a plant in Reeves County to locations designated by its customers. Because Baeza could not fully accommodate the needs of his customers, he contacted Hector Garcia, the owner of Hector’s Tire & Wrecker Service, Inc., in July 2010 to assist his company in providing hauling services to his customers. Hector’s had previously performed unrelated work for Baeza in 2006 and 2007.
Hector Garcia on behalf of Hector’s Tire & Wrecker Service entered into an oral agreement with Baeza in which Hector’s agreed to provide hauling services to Bae-za on an as-needed basis. The parties agreed that when requested by Baeza, Hector’s would send a truck to a plant in Reeves County to pick up materials and deliver the materials to a designated location. The parties agreed that the plant would furnish Hector’s driver with a “load ticket” specifying the amount of each load picked up from the plant, and Hector’s would then provide the load tickets to Bae-za. In turn, Baeza would bill its customers for the loads and would pay Hector’s after receiving payment from his customers. The rate for payment on the load tickets was set by Baeza, and was based on the amount and type of a particular load. Hector’s agreed to pay Baeza a 5 percent commission on the amounts billed for each load.
Hector’s began performing work for Baeza in July 2010, but shortly thereafter a dispute arose regarding whether Baeza was properly compensating Hector’s under the terms of their agreement. Because of this unresolved dispute, Hector’s stopped providing services to Baeza in late October or early November 2010.
Hector’s subsequently retained an attorney who sent a demand letter to Baeza on or about April 11, 2011, claiming that Bae-za owed Hector’s $15,042.55 for unpaid load tickets. In the letter, Hector’s attorney further demanded that Baeza pay $250 in attorney’s fees, and warned that if payment was not received within ten days, he would recommend to his client that a lawsuit be filed.
Although Baeza admittedly received the demand letter, neither Baeza nor any of his office staff directly responded to the letter. Instead, almost four months later, around July 31, 2011, Baeza sent Hector’s two checks: one for $2,376.41 and one for $3,644, totaling $6,020.41. There were no notations on the checks to indicate they were being tendered in response to the demand letter, and in fact the notation lines on both checks were left blank. Further, the record does not indicate that Baeza sent a transmittal letter or made any other communication to Hector’s explaining why he was sending the checks. Both checks were deposited by Hector’s into its bank account in August 2011.
On December 14, 2012, Hector’s attorney sent a second letter to Baeza, claiming that Baeza still owed Hector’s $9,900.25 for unpaid services. The letter further stated that if payment was not received within 30 days, Hector’s would assume the debt was valid, and proceed with the filing of a *589lawsuit. There is nothing in the record to reflect that Baeza responded to this letter.
Eight months later, Hector’s sued Bae-za, alleging a breach of contract and requesting $9,900.25 in damages and reasonable attorney’s fees. In support of its claim, Hector’s attached several invoices it had allegedly submitted to Baeza and later supplemented its petition with a sworn account. The sworn account listed the invoice amounts that Hector’s had allegedly submitted to Baeza, together with a list of the payments that Hector’s had allegedly received. The account did not list any totals for the amounts billed to Baeza or the amounts received from Baeza, but it did list a final balance owed of $9,900.25. Baeza filed an answer verified by his office manager, Denise Baeza (also known as Denise Villanueva), that denied Hector’s claim and raised various affirmative defenses, including accord and satisfaction.
A bench trial was held on May 28, 2014. At trial, both parties acknowledged the existence of the parties’ oral agreement and further agreed that Hector’s was required to submit its load tickets to Baeza prior to receiving payments, and was also required to pay a 5 percent commission to Baeza on all amounts billed. However, the parties disagreed on: (1) whether Hector’s had properly provided Baeza with all of the load tickets, as required-, for payment; (2) whether Baeza had properly paid Hector’s for all of the load .tickets it had submitted to Baeza; and (3) whether Bae-za’s tender of the two checks to Hector’s in July 2011 constituted an “accord and satisfaction” fully discharging any debt Baeza owed to Hector’s.
Hector Garcia testified that at the end of every week in which his company had performed work for Baeza, he routinely placed all of the load tickets he had received in an envelope, which he placed in a mailbox at Baeza’s place of business. Hector Garcia further testified that he also generated an invoice, based on the total amount of load tickets he had received from the plant, which he then mailed to Baeza requesting payment. According to Hector Garcia, Baeza periodically sent him checks, but the amounts of the checks did not match his company’s invoice amounts; in addition, Hector Garcia testified that Baeza failed to include any references on the checks and failed to provide any other communications that would have allowed him to correlate the checks to any particular invoice Hector Garcia had prepared or to the load tickets he had submitted to Baeza. Hector Garcia testified that he therefore maintained an internal accounting system in which, he tracked the amounts of the invoices he had submitted to Baeza and the amounts of the payments that he had received from Baeza, which formed the basis of his sworn account. This account was introduced into evidence as Plaintiff s Exhibit One, together -with copies of .all of the invoices, that Hector’s had allegedly sent to Baeza. This exhibit did not list any totals for the. amounts owed or the amounts received, but listed a final balance owed of $9,900.25.
In her testimony, Baeza’s office manager, Denise Villanueva, did not directly dispute the mathematical calculations in Hector’s sworn accounting or question how Hector Garcia had arrivéd at $9,900.25 as the final balance due. Instead, she testified that based on her review of the records, she calculated that Baeza had paid Hector’s in full for all of the charges submitted. In an apparent attempt to explain the discrepancies in the parties’ calculations, Denise Villanueva testified that Hector’s had not submitted invoices to Baeza as claimed, but rather that Hector’s had instead only- turned in load tickets to Bae-za’s office. According to Villanueva, she did not see Hector’s invoices until after *590Hector’s attorney sent his demand letter to Baeza in April 2011.
Villanueva testified that she calculated the amounts owed based on the original load tickets that Hector’s provided, rather than on any invoices Hector’s might have submitted. According to Villanueva, when she received the load tickets from Hector’s, she would' create her own invoices to send to Baeza’s customers based on the amounts‘in the tickets, and that after the customers had paid Baeza, " Villanueva would then pay Hector’s based on the invoices that. she had created. Villanueva further explained that she would deduct the 5 percent commission owed under the terms of the parties’ agreement before making payment to Hector’s. Villanueva acknowledged that she did not put any notations on the checks she sent to Hector’s to indicate the account on which she was paying or that she had made a deduction for the 5 percent commission. Instead, she would only reference her own invoice number on the check stubs that she retained for her records.
According to Villanueva, when she received Hector’s demand letter in April 2011, she went back and reviewed the load tickets submitted by Hector’s, Baeza’s invoices, and Baeza’s check stubs.1 Based on her review, Villanueva concluded that Baeza had failed to pay Hector’s a total of $6,020.41 for certain load tickets that he had previously submitted.2 Villanueva thereafter sent Hector’s two checks in July 2011: one for $2,876.41, and another for $8,644, both of which cleared the bank in August 2011.3 Villanueva also testified that after sending- those two checks, she found another unpaid load ticket, and wrote a third check to Hector’s in the amount of $596.62. Villanueva testified, however, that the third check had not cleared the bank at the time of trial, and Hector Garcia testified that he never received that cheek.
In an apparent attempt to establish that the checks Villanueva sent to Hector’s in July 2011 constituted an “accord and satisfaction” of the parties’ dispute, Villanueva testified that she believed there was a dispute between the parties at the time she sent the checks, and that she sent the checks after receiving the demand letter from Hector’s attorney. Baeza’s attorney argued that Baeza’s actions in sending the checks in response to the demand letter were sufficient to establish that the checks were sent in “settlement in this case.” The trial court expressly found that the facts in this case did not meet “the requirements of accord and satisfaction]].]”
At the close of evidence, the trial court ruled in Hector’s favor, finding that the parties had entered into a valid contract and that Baeza had breached the parties’ contract. The court awarded damages to Hector’s in the amount of $9,900.25, as *591requested in its petition, together with prejudgment interest and attorney’s fees.
ACCORD AND SATISFACTION .
Standard of Review and Burden of Proof
In his first issue on appeal, Bae-za contends the trial court erred by not finding Hector’s claims were barred by the affirmative defense of accord and satisfaction. The party asserting the affirmative defense of accord and satisfaction has the burden of proof to establish its existence. Group Med. & Surgical Serv., Inc. v. Leong, 750 S.W.2d 791, 796 (Tex.App.-El Paso 1988, writ denied) (burden of proof is on the moving party to present evidence of the affirmative defense of accord and satisfaction); see also Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1979) (game).
The trial court made an express finding that Baeza did not present" sufficient evidence to meet its burden to establish the defense of accord and satisfaction. Findings of fact in a bench trial have the same force and dignity as a jury’s verdict upon questions and are reviewed for legal and factual sufficiency of the evidence by the same standards. Farrell v. Farrell, 459 S.W.3d 114, 118 (Tex.App.-El Paso 2015, no pet.) (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996)); see also Tierra Sol Joint Venture v. City of El Paso, 311 S.W.3d 492, 498 (Tex.App.-El Paso 2009, no pet.).
When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence is that the party established a fact or issue as “a matter of law.” Tierra Sol Joint Venture, 311 S.W.3d at 498. In conducting our review, we must consider- the evidence in the light most favorable to the trial court’s finding, and indulge every reasonable inference that would support it. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005)); see also Farrell, 459 S.W'.3d at 118 (the reviewing court must credit evidence that supports the trial court’s finding if a reasonable fact finder could rely on that evidence, and disregard contrary evidence unless a .reasonable fact finder could not).
When appealing the factual sufficiency of the evidence supporting an adverse finding 6n which the party had the burden of proof, the appellant must show that the adverse finding is against the great weight • and preponderance of the evidence. Thomas v. Layton, 324 S.W.3d 150, 153 (Tex.App.-El Paso 2010, pet. denied) (citing Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620-21 (Tex.2004)). In determining if & trial court’s findings of fact were factually sufficient, we review all evidence in the record, including evidence contrary to the verdict." Id. We may set aside the verdict only if the trial court’s finding is so against the great weight and preponderance of the evidence as to bé clearly wrong or manifestly unjust. Id. Further, we may not substitute our judgment for that of the fact finder, even if we would have reached a-different conclusion when reviewing the evidence. Id.; see also Tierra Sol Joint Venture, 311 S.W.3d at 498-99.
The Common Law Defense of / Accord and Satisfaction.
A party may assert the defense of accord and satisfaction under a common law doctrine, under statutory authority, or both. At trial, Baeza did not indicate which of these two theories he believed applied to his case, but makes reference to both theories in his brief. ■ We therefore review the record to determine whether he met the requirements under either of these two theories.
*592The common law defense of “accord and satisfaction” rests upon a new contract, express or implied, in which the parties agreed to the discharge of an existing obligation by means of a lesser payment tendered and accepted. See Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 863 (Tex.2000); Melendez v. Padilla, 304 S.W.3d 850, 852 (Tex.App.-El Paso 2010, no pet.). The term “accord” refers to the new agreement .in which one party agreed to give or perform and the other to accept “something other than or different from what she is, or considers herself to be, entitled to.” Melendez, 304 S.W.3d at 852-53. The term “satisfaction” refers to the actual performance of the new agreement, in which the party accepts the tendering of the lesser payment. Id.
To prevail under the common law theory of accord and satisfaction, the moving party is- required first to establish the existence of a dispute between the parties. Id. at 853. It is the very.existence of a dispute that provides the consideration for the parties’ new contract and for the accord and satisfaction itself. Milton M. Cooke Co. v. First Bank & Trust, 290 S.W.3d 297, 304 (Tex.App,-Houston [1st Dist.] 2009, no pet.). If a pre-existing dispute is established, the moving party must then establish that the parties “specifically and intentionally agreed” that the tendering and acceptance of the reduced sum would discharge the underlying obligation that formed the basis of their dispute. Melendez, 304 S.W.3d at 853; Milton M. Cooke Co., 290 S.W.3d at 304. Further, the moving party must establish that he tendered the reduced sum to the nonmoving party with an “unmistakable communication” to the nonmoving party that the tender of the reduced sum was upon the condition that acceptance would satisfy the underlying obligation. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969); Richardson v. Allstate Texas Lloyd’s, 235 S.W.3d 863, 865 (Tex.App.Dallas 2007, no pet.).
There is no doubt in the present case that Baeza established the first element of the defense of accord and satisfaction, as both parties agreed there was a “dispute” between the parties at the time Baeza sent its two checks to Hector’s in July 2011, three months after Hector’s attorney sent its demand letter to Baeza requesting payment of over $15,000 in damages. Therefore, the only issue left to consider is whether Baez'a’s tender of the reduced sum of $6,020.41 was made with an “unmistakable communication” to Hector’s that accepting this sum was upon the condition that its acceptance would satisfy the entire underlying obligation, or that the parties “specifically and intentionally” agreed that the acceptance of the reduced sum would discharge all of Baeza’s obligations to Hector’s.
In his brief, Baeza fails to point to any evidence in the record to demonstrate that he provided any such communication to Hector’s when tendering the checks, or that' the parties entered into any agreement to resolve their entire dispute at that time; instead, Baeza relies solely on the facts that he sent two checks to Hector’s after receiving the demand letter from Hector’s attorney, and that Hector’s accepted and cashed those checks.4 These *593facts, however, are insufficient, ■ standing alone, to meet the burden to establish the defense of accord and satisfaction. Courts have long held that the mere acceptance of a tendered check is not enough to meet that burden. See, e.g., Lopez, 22 S.W.3d at 863; Jenkins, 449 S.W.2d at 455; Milton M. Cooke Co., 290 S.W.3d at 304; Pate v. McClain, 769 S.W.2d 356, 361-62 (Tex.App.-Beaumont 1989, writ denied) (citing Infra-Pak v. Carlson Stapler & Shippers Supply, 803 F.2d 862 (5th Cir.1986) (¿ creditor’s acceptance of a check in an amount less than a disputed dollar- claim does not automatically discharge the entire debt)).
Instead, there must be some evidence in the record to establish that the parties intended for the tendered check to be payment in full of the parties’ dispute. Industrial Life Ins. Co. v. Finley, 382 S.W.2d 100, 105-06 (Tex.1964). For example, when a party includes a notation on a check or a transmittal letter indicating that the check is being tendered in “[f]ull and final settlement” of the parties’ dispute, the acceptance and cashing the check with knowledge of this recital may be viewed as an unequivocal acceptance of the settlement offer, thereby establishing an accord and satisfaction of the dispute; Id. Under such circumstances, an accord and satisfaction will be established unless the opposing party presents some evidence to establish an express agreement that the check was to be accepted only as partial payment. Id. While no particular language is needed to put the other party on notice that the acceptance of a lesser sum is intended as an accord and satisfaction, the Texas Supreme Court has held that any such statement must be made in “plain, definite and certain” terms, and must “be so clear, full arid explicit that it is not susceptible of any other interpretation.” Jenkins, 449 S.W.2d at 455; see also Pate, 769 S.W.2d at 361-62.
In the present case, the record does not contain any evidence to establish that Bae-za put Hector’s ’on notice that the two checks it sent to Hector’s were being tendered in full settlement of the parties’ dispute. Neither check contained a notation that the checks were being tendered in full settlement of the parties’ dispute, and neither of the checks was accompanied by a communication to that effect. Similarly, there is no evidence in the record to suggest that the parties otherwise came to any oral agreement regarding the effect of the checks.
Accordingly, we conclude that the evidence does not establish accord and satisfaction as a matter of law and that the trial court’s finding that Babza failed to meet its burden to establish the common law defense of accord and satisfaction is not against the great weight and preponderance of the evidence.
The Statutory Defense of Accord and Satisfaction
In addition to the common law defense of accord and satisfaction, the Texas Business and Commerce Code provides ari alternative method to establish the defense of accord and satisfaction when a person has tendered a negotiable instrument, such as a check, to another person who has made á claim against him. Tex. Bus. & Com.Code Ann. § 3.311 (West 2002). In particular, the Code provides that a person may discharge a debt when: (1) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim; (2) the amount of the *594claim was unliquidated or subject to a.bona fide dispute; and (3) the claimant obtained payment of the instrument.
Once again, it is clear that there was a “bona fide dispute” at the time the checks were sent, and that Hector’s “obtained payment” when the checks were accepted and cashed in August 2011. However, there was no evidence presented at trial that Baeza tendered the checks “as full satisfaction of the claim.” We do note, the trial court would not allow Villanueva to testify regarding her intent in sending the checks, believing that her “thought process” was not relevant to the suit. Unlike the common law defense of accord and satisfaction, the statutory defense of accord and satisfaction does take into account the defendant’s state of mind in sending a negotiable instrument, as the Code expressly requires that the instrument be sent with a “good faith” intent for it to be a full settlement of a dispute. Accordingly, although Baeza does not raise this issue on appeal, we bélieve that the trial court may have erred by refusing to allow Villanueva to testify regarding her intent in sending the checks. However, we need not resolve this issue, as Baeza did not meet the remaining requirements under the Code to establish the statutory defense of accord and satisfaction, and therefore, any such error would be harmless. See Franco v. Franco, 81 S.W.3d 319, 342 (Tex.App.-El Paso 2002, no pet.) (even if we were to agree that the trial court erroneously excluded evidence, we must still conduct a harm analysis to determine if the evidence was controlling on a material issue and is not cumulative); Patel v. Kuciemba, 82 S.W.3d 589, 594 (Tex.App.-Corpus Christi 2002,. pet. denied) (error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected).
As many courts have recognized, the remaining requirements of the Code are similar to the 'common law requirements for establishing accord and satisfaction. Milton M. Cooke Co., 290 SW.3d at 304 (section 3.311 does not conflict- with the common-law doctrine of accord and satisfaction; rather, the statute is consistent with the doctrine as interpreted by Texas courts); Case Funding Network, L.P. v. Anglo-Dutch Petroleum Intern., Inc., 264 S.W.3d 38, 50 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (Texas has adopted the Uniform Commercial Code’s provisions. on accord and satisfaction, which are consistent with the Texas courts’ recognition of the common law doctrine of accord and satisfaction); see also TexBus. & Com.Code Ann. § 3.311, cmt. 3 (“Section 3 — 311 is based on a belief that the common law rule produces a fair result and that informal dispute resolution by full satisfaction checks should be encouraged.”). As such, the person attempting to assert that a debt has been discharged under the Code by the tendering of an instrument must still establish that the nonmoving party was clearly made aware that the instrument was intended to discharge the debt prior to its acceptance. '
The Code provides two methods for establishing this key element. First, subsection (b) provides that a claim will be discharged by the tendering and acceptance of a negotiable instrument “if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.” For the same reasons that we concluded Baeza was unsuccessful in, establishing the common law defense of accord and satisfaction, we also conclude that Baeza failed to meet the statutory requirements of the defense under this particular subsection. As discussed above, *595the undisputed evidence at trial revealed that Baeza failed to provide any notation on the checks, let alone a “conspicuous statement,” to the effect that the checks were being tendered in full satisfaction of Hector’s claims; similarly, the record is devoid of any evidence that Baeza accompanied the checks with a written communication of any kind that could have fulfilled this statutory requirement.
Second, subsection (d) of the Code provides that a debt may be discharged by the tendering of a negotiable instrument “if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.” Once again, we conclude that Baeza failed to present any evidence to support a finding that Hector Garcia or anyone at Hector’s was aware that Baeza was tendering the checks in “full satisfaction of the claim.” As set forth above, when Baeza tendered its two checks, he admittedly failed to alert Hector Garcia, either in writing or orally, that he considered the checks to be in full satisfaction of Hector’s claim.- Further, Hector Garcia testified that when he received Baeza’s checks, he did not consider them to be in full satisfaction of his claims, and there is simply no evidence in the record to suggest that Hector Garcia accepted and cashed the checks with the knowledge that they were meant to be in satisfaction of his claim.
• Accordingly, we conclude that the evidence does not establish statutory accord and satisfaction as a matter of law and that the trial court’s implied finding that Baeza failed to meet its burden to establish the statutory defense of accord and satisfaction is not against the great weight and preponderance of the evidence. Issue One is overruled.
THE TRIAL COURT’S AWARD OF DAMAGES
In his second claim of error, Baeza challenges the award to Hector’s of damages in the amount of $9,900.25, contending that the evidence is both legally and factually insufficient to support that award. Baeza asks this Court to either reverse and render judgment, or in the alternative, to remand thé case to the trial court to reconsider the amount of damages to be awarded.
■' Standard of Review
The universal rule for measuring damages for breach of contract is just compensation for the loss or damage actually sustained. Davis v. Chaparro, 431 S.W.3d 717, 726 (Tex.App.-El Paso 2014, pet. denied) (citing Dakil v. Lege, 408 S.W.3d 9, 12 (Tex.App.-El Paso 2012, no. pet.)); see also Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 760 (Tex.App.-El Paso 2000, no pet.). A non-breaching party is generally entitled to all actual damages necessary to put him in the same economic position he would have been had the contract not been breached. This is commonly referred to as the benefit of the bargain. Davis, 431 S.W.3d at 726 (citing Bowen v. Robinson, 227 S.W.3d 86, 96 (Tex.App.-Houston [1st Dist.] 2006, pet. denied)). Under the implementation of this rule, a party should not receive less or more than the actual damages he incurred. Id. (citing Abraxas Petroleum Corp., 20 S.W.3d at 760).
We review challenges to the amount of a damages award by the same standard as any other challenge to a court’s finding. Dakil, 408 S.W.3d at 12-13. Therefore, we will review the trial court’s judgment under a legal sufficiency *596or “no evidence” standard, as well as under a factual sufficiency standard. The finding as to damages should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. Id. at 12 (citing Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App.-E1 Paso 1981, no writ)).
The Evidence of Damages
Baeza makes three challenges to the trial court’s award of damages: (1) the trial court did not credit a payment of $596.62 that Baeza allegedly made to Hector’s in July 2011; (2) the trial court failed to take into consideration the 5 percent commission owed to Baeza when calculating its award; and (3) the trial court failed to “match the disputed invoices” submitted at trial.
Baeza’s argument that the trial court failed to credit a payment of $596.62 in calculating the damages award is the easiest to resolve. The undisputed evidence at trial revealed that Hector’s never actually received a check in this amount. Hector Garcia testified that he never received this payment, and more importantly, Baeza’s own office manager testified that she had no record that the check she reportedly wrote for $596.62 cleared the bank. As such, we conclude that there was no basis for the trial court to have considered this payment in making its determination of the proper award of damages.
We find it more troubling to resolve the questions whether in making its determination that Hector’s was entitled to $9,900.25 in damages, the trial court properly took into consideration the 5 percent commission owed to Baeza and the invoices submitted in evidence.
In its initial pleading, Hector’s requested $9,900.25 in damages based on the balance it believed was owed, as set forth in its sworn accounting, and the trial court awarded damages to Hector’s in that exact amount. Although Baeza presented conflicting evidence in an attempt to establish that he did not owe anything to Hector’s, the trial court was allowed to rely on Hector’s sworn account, the invoices Hector’s submitted at trial, and Hector Garcia’s testimony at trial in calculating the damages award. Even Baeza’s own attorney recognized during closing argument that the parties’ dispute over the amount owed came down to “one company’s word against another.” Accordingly, if we did not believe there were other discrepancies in the trial court’s calculation of damages, our inquiry would stop here, and we would be compelled to uphold the trial court’s judgment.
The first discrepancy we see in the record is the fact that Hector Garcia acknowledged at trial that he failed to take into consideration the parties’ agreed upon 5 percent commission when he initially calculated that Baeza owed him $9,900.25, as requested in his petition. If this were the only mathematical error in this case, we would be compelled to agree with Baeza that the trial court erred by failing to deduct 5 percent from the amount of damages owed to Hector’s; it would then be a relatively easy task to reform the judgment to deduct for that amount, and to render judgment in the correct amount.
In its brief, however, Hector’s argues that even if the trial court failed to deduct the 5 percent . commission from the $9,900.25 amount that Hector’s initially requested, this failure is of no consequence, because Hector’s revised its damages calculations midway through trial and allegedly the evidence presented at trial actually supported a greater award of *597$14,558.45.5 If Hector’s revised damages calculation was mathematically sound, we would be compelled to agree that the trial court had more than sufficient evidence to support an award of the lesser amount of $9,900.25. We note, however, that Hector Garcia and his attorney appear to have made a fundamental error when they recalculated the damages amount.
We note that this recalculation occurred after the trial expressed concern that it was not entirely clear how Hector’s had arrived at the $9,900.25 amount it claimed was owed. In particular, although Hector’s sworn account contained a column purporting to list the amount of each invoice that Hector’s had allegedly sent to Baeza, the sworn account did not include a total for that column. Similarly, although the sworn account contained a column listing each of the payments Hector’s had allegedly received from Baeza, it failed to include any total for that amount. The trial court therefore suggested that it would be beneficial to “look at the total amounts that were claimed through the course of the parties’ dealing and see what five percent of that number is compared to •the claimed arrearages!.]”
After a recess during the trial, Hector Garcia testified that he and his attorney had reviewed the numbers set forth in the sworn account and concluded that they had originally made a mathematical error when they first calculated that Baeza owed Hector’s $9,900.25. In particular, Hector Garcia testified that he and his attorney had added up the charges to Baeza that were set forth in his sworn account, and arrived at a total amount of $60,587.17. Hector Garcia then testified that, after deducting for the 5 percent commission owed to Bae-za, he believed that the total amount of allowable charges to Baeza was $57,557.81. Rather than rely on his own figures in his sworn account to calculate the total amount of money that Baeza had paid him, however, Hector Garcia instead referred to an exhibit that Baeza had presented at trial,, which listed 13 cancelled checks that Baeza had allegedly written to Hector’s from July 2010 through July 2011, totaling $42,998.26.6 Hector Garcia stated that he had then subtracted that amount from the $57,557.81 in allowable charges when he concluded that Baeza owed him more than the original $9,900.25 that he had requested in his petition. Although Hector Garcia did not testify as to the revised amount he believed Baeza owed him, Hector’s attorney asserted, both in his closing argument at trial and in his brief on appeal, that he used these same figures to calculate that Baeza owed Hector’s a total of $14,558.45.
If this calculation were correct, once again, our analysis would end, as this would have provided a sufficient basis for upholding the court’s award of the lesser amount of $9,900.25 as originally-requested by Hector’s in his petition. However, our review of the evidence, including the invoices and sworn account submitted by Hector’s at trial, reveals that when Hector Garcia and his attorney recalculated the total charges to Baeza for work performed under the 2010 contract, they mistakenly included $8,279.28 in charges that Hector’s had submitted to Baeza for unrelated work performed in 2006 and 2007. Hector’s own records reflect that Baeza paid all of these earlier charges prior'to the time the par*598ties entered into their contract in 2010. In its recalculation, however, • Hector Garcia and his attorney failed to deduct Baeza’s payments for the 2006 and 2007 work performed, and instead only deducted Baeza’s payments for the 2010 work performed.
Our review of both the invoices and the sworn account reveals that Hector’s presented evidence of charges to Baeza totaling $52,307.89 for the 2010 work performed under the terms of the parties’ contract. 'When that amount is discounted by the 5 percent agreed-upon commission ($2,615.39), this leaves a total of $49,692.50 in allowable charges for the 2010 work performed. The next step in the equation would be to subtract the amounts that Baeza paid to Hector’s for the work Hec- ■ tor’s performed in 2010.
The trial court was presented with three different figures at trial regarding the amounts that Baeza allegedly paid to Hector’s under the terms of the parties’ 2010 contract. First, Hector Garcia initially testified at trial that he believed Baeza had paid him a total of $40¡447.19, but presented no evidence to support that belief. Using that figure, the amount owed to Hector’s would be $9,245.31. Second, by our calculation, Hector’s own sworn account listed payments received from Baeza in the total amount of $42,407.64. Using that figure, the amount owed to Hector’s would be $7,284.86. Third, as set forth above, Baeza presented an exhibit at trial, which included a list of 13 cancelléd checks that Baeza allegedly wrote to Hector’s in 2010 and 2011, totaling $42,998.26.7 Using that figure, the amount owed would be $6,694.24. .
All three of these scenarios leave a balance owed that is less than the $9,900.25 judgment awarded by the trial court, and we therefore conclude that the evidence presented at trial, even when viewed in the light most favorable to the trial court’s judgment, was both factually and legally insufficient to support the trial court’s judgment in the amount of $9,900.25.
. Nevertheless, while there is insufficient evidence to support the entire amount of the trial court’s award, there is sufficient evidence to demonstrate that Hector’s suffered some amount of damages as the result of Baeza’s breach of contract. However, because we cannot discern the .correct amount of those damages given the conflict in the evidence, we are unable to render judgment in favor of Hector’s in a lesser dollar amount. We therefore reverse the judgment of the trial court and remand the cause for a new trial on the issue of the amount of damages to be awarded to Hector’s.8 See, e.g., Formosa *599Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 51 (Tex.1998) (reversing and remanding case to the trial court for a new trial where there was “no legally sufficient evidence to support the entire amount of damages, but there [was] some evidence of the correct measure of damages”); see also Long v. Griffin, 442 S.W.3d 253, 256 (Tex.2014) (because the evidence was legally insufficient to support the amount of the trial court’s attorney’s' fee award, the Court remanded the case to allow the trial court to redetermine the amount of the award).
The Possibility of a Remittitur
As an alternative to á new trial, we believe it is appropriate to suggest a remitter to Hector’s pursuant to Tex. R.App.P. 46.3. Rule 46.3 permits this Court to suggest a remittitur' when an “appellant complains there is insufficient evidence to support an award and the court of appeals agrees, but concludes there is sufficient evidence to support a lesser award.” Samuels v. Nasir, 445 S.W.3d 886, 894 (Tex.App.-El Paso 2014, no pet.); see also Corral-Lerma v. Border Demolition & Envtl. Inc., 467 S.W.3d 109, 128 (Tex.App.-El Paso 2015, no pet. h.). As set forth- by the Texas Supreme Court in Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex.1987), if part of a damage verdict lacks sufficient evidentiary support, the proper course is to suggest a remitti-tur of that part of the verdict, giving the party prevailing in the trial court the option of accepting the remittitur or having the case remanded for a new trial. Id.
Although we believe the amount of the trial court’s award of damages was not supported by the evidence presented at trial, we nevertheless conclude there is sufficient evidence in the record to support a lesser award. We therefore believe it is appropriate to offer Hector’s a choice of accepting a remittitur if it believes that a new - trial on damages is not the most expeditious way to resolve the mathematical discrepancies in the record.
In determining the proper amount of a suggested remittitur in this instance, we must determine the maximum possible award that is supported by the evidence and subtract that amount from the damages award actually entered by the trial court. The calculation of damages in this case turns primarily on what figure is used to calculate the amount of payments that Baeza made to Hector’s under the terms of the parties’ 2010 contract. During trial, the parties submitted evidence of three different dollar amounts that Baeza allegedly paid to Hector’s under the terms of their contract: $40,447.19; $42,407.64; and $42,998.26. However, we believe that the first dollar figure of $40,447.19 was not *600supported by factually sufficient evidence; although Hector Garcia testified during trial that Baeza had only paid him this amount, his testimony was not supported by any documentary evidence, and in fact, the documentary evidence that he supplied at trial, including the sworn account and attached invoices, actually indicated that Baeza had paid Hector’s almost $2,000 more than that amount. As such, we decline to use that figure in calculating the maximum possible damages award that could have been made to Hector’s.
Instead, we conclude that the evidence presented to the trial court only supported an award of damages in the following two amounts: (1) $7,284.86, using the payment figure of $42,407.64, as set forth in Hector’s sworn account and attached invoices; and (2) $6,694.25, using the payment figures of $42,998.26, as set forth in Baeza’s trial exhibit. As $7,284.86 is the maximum damages award supportable by the evidence presented at trial, we conclude that the appropriate amount of a suggested remittitur would be $2,615.39 — the difference between the trial court’s award of $9,900.25 and the maximum award supportable by the evidence. If within 15 days of this opinion’s issuance, Hector’s accepts this suggested remittitur of $2,615.39, we will reform the trial court’s judgment and affirm as modified. If not, the judgment of the trial court will be reversed and this cause will be remanded for a new trial on the limited issue of the proper amount of damages to be awarded to Hector’s.
CONCLUSION
Because we conclude that there was insufficient evidence to support the amount of the trial court’s award of damages, we reverse the trial court’s judgment, and order a new trial on the issue of the proper amount of damages to be awarded to Hector’s. If, however, Hector’s timely files a remittitur of $2,615.39 within 15 days of the issuance of this opinion, the judgment will be reformed to reflect a damages award of $7,284.86, and affirmed in all other respects.
SUPPLEMENTAL OPINION
In our opinion dated July 31, 2015, we suggested a remittitur of $2,615.39 of the actual damages awarded to Appellee Hector’s Tire & Wrecker Service, Inc. We stated that if the remittitur were filed by Appellee within fifteen days of the date of the opinion, we would modify the judgment with respect to the damages awarded and affirm as modified.
On August 5, 2015, Appellee timely filed its consent to the suggestion of remittitur and asked the Court to modify thé trial court’s judgment consistent with our opinion and judgment in this matter. Accordingly, we vacate our judgment, but not our opinion, dated July 31, 2015, and modify the trial court’s judgment with respect to the damages awarded to reflect the remit-titur of $2,615.39. The trial court’s judgment is modified to award Appellee $7,284.86 in actual damages. See TEX. R. APP. P. 46.3. As modified, we affirm the trial court’s judgment. This Court’s opinion of July 31, 2015, otherwise remains in effect.
. At trial, Baeza introduced into evidence his invoices, together with cancelled checks, bank records, and other documentation regarding the payments it made to Hector’s; however, Baeza did not submit into evidence the original load tickets that it had received from Hector’s.
. Villanueva testified that her research also revealed that there may have been three or four "lost” load tickets, which Hector’s claimed it had submitted, amounting to $1,155.05 in charges. However, at the time of trial,, her office was still investigating whether Baeza had already paid Hector's for those tickets. Villanueva further explained that without the original load tickets, she would not be able to pay Hector’s for those particular loads.
.Villanueva testified, however, that she inadvertently failed to “take off the five percent” from one of the checks that she wrote for $3,644, and stated that it should have instead been written for $3,461.80.
. Baeza correctly points out that the trial court mistakenly stated that it was not finding an accord and satisfaction based, in part, on the fact that Baeza tendered an amount that was less than the amount demanded by Hector's. As set forth above, we recognize the very hallmark of “accord and satisfaction" is a party’s acceptance of a payment that is less than the amount originally requested or demanded by the other parly. However, the trial court did not rest its decision solely on the fact that the amount tendered did "not *593match" the amount demanded. Instead, the trial court also based its decision on the fact that there was "nothing on the check[s] that indicated” that the parties intended for the tendering and acceptance of the checks to be an accord and satisfaction.
. We note that Hector’s failed to request a trial amendment seeking this additional amount of damages, and instead advised the trial court that it would be satisfied with an award of $9,900.25 as requested in its petition.
. At trial, Hector Garcia mistakenly testified that Defendant’s Exhibit 1 showed a total of $42,999.36 in payments.
. Although Hector’s and its attorney indicated during trial that they were relying on this figure in revising their calculations of damages owed, we do not believe that their statements amount to either a judicial admission or a quasi-admission that would preclude Hector’s from asserting that Baezá paid it a different amount. Hector Garcia never expressly testified that he was embracing Bae-za’s calculations as being true; instead his attorney asked him leading questions during trial that led him down the path of relying on this exhibit in making his (mathematically incorrect) argument that Baeza actually owed Hector’s over $14,000. As Hector Garcia’s testimony did not amount to a "deliberate, clear, and unequivocal” adoption of the figures set forth in Baeza’s exhibit, we cannot conclude that his testimony on this point would be binding on Hector's. See Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex.1980) (quasi-admissions must be "deliberate, clear, and unequivocal”); see also Duncan v. F-Star Mgmt., L.L.C., 281 S.W.3d 474, 481 (Tex.App.-El Paso 2008, pet. denied); Phillips v. Phillips, 296 S.W.3d 656, 668 (Tex.App.-El Paso 2009, pet. denied).
. We note that TexR.App.P. 44.1(b) allows this Court to order a new trial on a limited issue if the trial court committed an error that "affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties”; however, the Rule *599does not allow us to "order a separate trial solely on unliquidated damages if liability is contested.” In the present case, although Baeza contested liability, we conclude that a new trial on the limited issue of damages is nevertheless appropriate; in particular, we conclude that the damages requested by Hector’s were liquidated in nature, as they were based on Hector’s sworn account and were documented by the written invoices that Hector’s attached to its petition. See, e.g., Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 845-46 (Tex.App.Dallas 2014, no pet.) (a claim is liquidated if the amount of damages may be accurately calculated by the trial court from the factual, as opposed to the conclusory, allegations in plaintiff’s petition and the instrument in writing); Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (suit to recover amount due for professional services was a liquidated claim proven by written invoices attached to original petition); Mantis v. Resz, 5 S.W.3d 388, 392 (Tex.App.-Fort Worth 1999, pet. denied) (in a suit on a sworn account, the petition with an attached sworn account and verified affidavit of the account was a liquidated claim proved by. written instruments). | 01-04-2023 | 01-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5284409/ | OPINION OF THE COURT BY
JUSTICE KELLER
Following a bench trial, the district court convicted Adrian Parrish of driving under the influence, first offense. Parrish appealed to the circuit court and argued a Brady1 violation. The circuit court reversed the conviction, and the Court of Appeals, on discretionary review, affirmed based on the circuit court’s findings and conclusions. This Court granted discretionary review, and for the reasons stated herein, we reverse the opinion of the Court of Appeals and reinstate the district court’s judgment.
I. BACKGROUND.
At 12:04 a.m. on November 18, 2010, Officer Cobb of the Nieholasville Police Department stopped Adrian Parrish’s vehicle after Parrish did not stop completely at two stop signs and failed to stay to the right side of the road. Upon approaching the vehicle, Officer Cobb smelled the odor of alcohol coming from inside,, and, after inquiry, Parrish volunteered that he had consumed three drinks within the thirty minutes before being stopped. With this, Officer Cobb asked Parrish to step out of his vehicle to perform field sobriety tests. Parrish performed the' one-legged stand and the heel-to-toe walk tests with some proficiency, yet Officer Cobb noted signs *696of impairment with both. Officer Cobb then administered a preliminary breath test (PBT) and showed the level reading to his police cruiser’s dashboard video recorder. Officer Cobb also noted on the citation that “PBT detected the presence of alcohol” but did not record the numerical level. Based on the totality of Parrish’s driving and the tests, Officer Cobb placed Parrish under arrest for suspected driving while under the influence of alcohol and transported him to the Jessamine County Detention Center.
At the station, Officer Cobb performed an Intoxilyzer breath alcohol level test on Parrish at 12:49 a.m.; the result was 0.086. Officer Cobb noted this result as well as the existence of the dashboard video on the citation and charged Parrish with driving under the influence, first offense.
Prior to trial, Parrish’s attorney made an informal request to obtain a copy of the dashboard video, but police told him that the video did not exist. Parrish’s attorney did not make a formal discovery request.
At the bench trial, Officer Cobb, the only witness, testified that he did not know why the video was unavailable. He testified that his cruiser was equipped with a video recording system, which was automatically set to begin recording when he activated his emergency lights. Officer Cobb stated that it is standard department practice to note the dashboard video on the citation and for the evidence clerk to take responsibility for delivering the video if it is requested. Officer Cobb was unaware that the video did not exist until the day of trial and even stated that he was curious as to its whereabouts.
On cross examination, Officer Cobb reiterated that the PBT showed the presence of alcohol and that he flashed the result to his dashboard video recorder, but he could not recall the exact numerical result. Officer Cobb admitted that it was possible that the level was less than 0.08. Parrish’s attorney attempted to lay a foundation for an extrapolation defense through Officer Cobb’s testimony. The district court allowed Officer Cobb to testify concerning the general principles of alcohol absorption into the body but sustained the Commonwealth’s objections as to any scientific testimony.
During closing arguments, Parrish’s attorney submitted that his client’s extrapolation defense was hampered by the missing dashboard video. However, he also conceded that he believed that the video was not destroyed purposefully by police and that Officer Cobb dealt fairly with Parrish.
The district court found that the Commonwealth had met its burden of proving Parrish was per se driving under the influence according to Kentucky Revised Statute (KRS) 189A.010(l)(a). The court stated that the majority of Parrish’s arguments, including any extrapolation arguments, went toward defending against a conviction under (l)(b) or the general “driving under the influence of alcohol” theory of prosecution. The court explained that without clear scientific evidence as to the extrapolation defense, it could not make a conclusion that Parrish’s blood alcohol content was under the legal limit when he was stopped. The district court made this finding under the totality of the evidence presented and with full awareness of the missing video. Finally, the court commended both Officer Cobb and Parrish for their honesty.
On appeal to the circuit court, Parrish argued that the PBT result was admissible and potentially exculpatory evidence. He further contended that police either destroyed or failed to preserve the only record of the result: the dashboard video.
*697Parrish argued that this amounted to a Brady violation.
The circuit court agreed with Parrish that the failure to preserve the PBT level was a Brady violation, finding that the PBT result “was, at the very least, destroyed inadvertently outside normal practices.” However, in response to the Commonwealth’s motion to reconsider, the circuit court specifically stated, “I don’t know what happened to the evidence, but I think that [Officer Cobb] intentionally did not record the evidence when he saw it was below .08. And that is why I think it constituted bad faith.” The circuit court reversed the district court and remanded the case for a new trial, with the recommendation that the ’ district court conduct a Daubert2 hearing.
The Court of Appeals affirmed the circuit court’s finding of a Brady violation, and this Court granted discretionary review. For the following reasons, we reverse the opinion of the Court of Appeals and reinstate the district court’s judgment.
II. STANDARD OF REVIEW.
The findings of fact by the tidal court following a bench trial “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.” Kentucky Rule of Civil Procedure (CR) 52.01; see also Patmon v. Hobbs, 280 S.W.3d 589, 593 (Ky. App. 2009). Keeping that in mind, this Court reviews de novo whether the conduct of the Commonwealth pertaining to the evidence at issue constitutes a Brady violation. Commonwealth v. Bussell, 226 S.W.3d 96,100 (Ky. 2007).
III. ANALYSIS.
The Commonwealth essentially argues that'the circuit court abused its discretion as a reviewing court and erroneously found a Brady violation. We agree.
In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Arizona v. Youngblood, the Supreme Court clarified what a defendant must prove when the government fails to collect or preserve evidence, holding, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve poténtially useful evidence does not constitute a denial of due process of law.” 488 U.S. 51, 58, 109 S.Ct. 333,102 L.Ed.2d 281 (1988). In other words, government culpability is irrelevant when the Commonwealth withholds plainly exculpatory evidence, but when the Commonwealth merely fads to collect or preserve evidence, as in the case here, the defendant must prove bad faith. When this Court adopted Youngblood, we added that “negligence simply does not rise to the level of bad faith.” Collins v. Commonwealth, 951 S.W.2d 569, 573, (Ky. 1997).
The circuit court’s finding of bad faith was erroneous because it was not supported by the record. First, the district court essentially made a finding to the contrary when it expressly began its ruling with a compliment to Officer Cobb’s honesr ty-
*698Second, there was no evidence before the district court that Officer Cobb or the Nicholasville Police Department failed to preserve, the dashboard video or the PBT result in bad faith. Officer Cobb testified that he was aware his cruiser was equipped with a video system and that it was set to automatically record. He, recalled that he purpqsefully showed the numerical result of the PBT to the dashboard camera in order to preserve a record of it. Furthermore, he noted the existence of .the dashboard video on the citation. Officer Cobb testified that the evidence clerk then should have taken responsibility for preserving and later providing the video. In fact, Officer .Cobb was unaware until trial that the video did not exist and was curious as to why it was not present.
Third, Parrish’s attorney did not argue to the district court that Officer Cobb acted in bad faith; he specifically stated that he did not believe that the video was purposefully destroyed and felt that Officer Cobb was fair to Parrish. Finally, no other witnesses were called to trace the custody of the video; therefore, neither we nor the lower courts should speculate as to the cause of its apparent non-existence.
Additionally, “Brady only applies to‘the discovery, after trial, of information which' had been known to the prosecution but unknown to the defense.” ’ Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002) (emphasis in original) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). Consequently, when such information is disclosed at trial and the defense actively cross-examines on it, there is no Brady violation. Nunley v. Commonwealth, 393 S.W.3d 9, 13 (Ky. 2013).
Here, the non-existence of the dashboard video was well known to Parrish before trial. His attorney made an informal request for a copy before trial and was told that the video did not exist. Moreover, the issue was fully explored at trial. Parrish took full advantage of cross-examining Officer Cobb on his standard procedure of showing a PBT result to the dashboard camera and noting the existence of the video on the citation. Finally, the district court was fully aware of the missing evidence when it made its ruling. “Brady does not give a defendant a second chance after trial once he becomes dissatisfied with the outcome if he had a chance at trial to address the evidence complained of.” Id.
Finally,,. Parrish’s argument that he only discovered that the video contained Brady material at trial is, likewise, not persuasive. Officer Cobb noted that a PBT was performed on the citation. • Parrish, therefore, knew the test was performed and was free to make a discovery request for any record of the results. Parrish chose not to do so. Furthermore, even if we assume Parrish did not become aware of this missing evidence until trial, the proper procedure would have been to request a continuance or, at least, a recess. Id. He did neither. Therefore, because Parrish did not avail himself of the opportunity to seek redress before the district court, he is foreclosed from doing so now.
Parrish was well aware of both the PBT and the dashboard video before trial and the district court found no evidence of bad faith; accordingly, the circuit court and the Court of Appeals erred when they found a Brady violation.
IV. CONCLUSION.
For the reasons stated above, we reverse the Court of Appeals and reinstate the judgment of the district court.
All sitting. Minton, C.J., Abramson, Barber, Cunningham, Keller and Venters, JJ., concur. Noble, J., concurs by separate opinion.
. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). | 01-04-2023 | 01-07-2022 |
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